{ "id": 11241064, "name": "CHIEGE KALU OKWARA v. DILLARD DEPARTMENT STORES, INC., and TOWN OF PINEVILLE, and WALTER B. RORIE", "name_abbreviation": "Okwara v. Dillard Department Stores, Inc.", "decision_date": "2000-02-15", "docket_number": "No. COA99-309", "first_page": "587", "last_page": "596", "citations": [ { "type": "official", "cite": "136 N.C. App. 587" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "42 U.S.C. \u00a7 1988", "category": "laws:leg_statute", "reporter": "U.S.C.", "weight": 2, "pin_cites": [ { "page": "(b)" } ], "opinion_index": -1 }, { "cite": "42 U.S.C. \u00a7\u00a7 1981", "category": "laws:leg_statute", "reporter": "U.S.C.", "weight": 3, "opinion_index": -1 }, { "cite": "803 F.Supp. 1470", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 3767408 ], "year": 1992, "opinion_index": 0, "case_paths": [ "/f-supp/803/1470-01" ] }, { "cite": "1998 WL 1118672", "category": "reporters:specialty_west", "reporter": "WL", "year": 1998, "opinion_index": 0 }, { "cite": "969 F.2d 266", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 10514790 ], "year": 1992, "opinion_index": 0, "case_paths": [ "/f2d/969/0266-01" ] }, { "cite": "454 U.S., 70", "category": "reporters:federal", "reporter": "U.S.", "year": 1981, "opinion_index": 0 }, { "cite": "273 S.E.2d 331", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "opinion_index": 0 }, { "cite": "50 N.C. App. 294", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 2677838 ], "year": 1981, "opinion_index": 0, "case_paths": [ "/nc-app/50/0294-01" ] }, { "cite": "488 F.2d 714", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 213570 ], "year": 1974, "pin_cites": [ { "parenthetical": "listing this as one of twelve factors used to determine the amount of attorney's fees; its use in federal civil rights cases was cited with approval in Hensley'" } ], "opinion_index": 0, "case_paths": [ "/f2d/488/0714-01" ] }, { "cite": "461 U.S. 424", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11298707 ], "weight": 6, "year": 1983, "pin_cites": [ { "page": "51" } ], "opinion_index": 0, "case_paths": [ "/us/461/0424-01" ] }, { "cite": "191 F.3d. 499", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 11577968 ], "year": 1999, "pin_cites": [ { "parenthetical": "finding that the trial court acted within its discretion in awarding attorney's fees on the basis that plaintiffs claim was \"groundless\" and \"without foundation\"" } ], "opinion_index": 0, "case_paths": [ "/f3d/191/0499-01" ] }, { "cite": "994 F.2d 1076", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 10516903 ], "weight": 2, "year": 1993, "pin_cites": [ { "parenthetical": "finding the district court properly granted attorney's fees against a plaintiff who brought a \u00a7 1983 claim which was \"conjecture\" and \"speculation\" and \"had no basis in fact\"" }, { "page": "1081" } ], "opinion_index": 0, "case_paths": [ "/f2d/994/1076-01" ] }, { "cite": "83 L.Ed.2d 51", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1984, "pin_cites": [ { "parenthetical": "discussing the reasons courts have found a claim frivolous" } ], "opinion_index": 0 }, { "cite": "469 U.S. 826", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11978274, 11978470, 11978825, 11978379, 11978639, 11978767, 11978590, 11978515, 11978323, 11978422, 11978554, 11978684, 11978878 ], "year": 1984, "pin_cites": [ { "parenthetical": "discussing the reasons courts have found a claim frivolous" } ], "opinion_index": 0, "case_paths": [ "/us/469/0826-01", "/us/469/0826-05", "/us/469/0826-12", "/us/469/0826-03", "/us/469/0826-09", "/us/469/0826-11", "/us/469/0826-08", "/us/469/0826-06", "/us/469/0826-02", "/us/469/0826-04", "/us/469/0826-07", "/us/469/0826-10", "/us/469/0826-13" ] }, { "cite": "719 F.2d 63", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1899117 ], "weight": 3, "year": 1983, "pin_cites": [ { "page": "67" } ], "opinion_index": 0, "case_paths": [ "/f2d/719/0063-01" ] }, { "cite": "434 U.S. 412", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6183992 ], "weight": 6, "year": 1978, "pin_cites": [ { "page": "417" }, { "page": "698" }, { "page": "422" }, { "page": "701" } ], "opinion_index": 0, "case_paths": [ "/us/434/0412-01" ] }, { "cite": "344 S.E.2d 321", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "323", "parenthetical": "finding that where defendants in a \u00a7 1983 action successfully moved for summary judgment, \"[t]here is no question that defendants were the 'prevailing parties' \"" } ], "opinion_index": 0 }, { "cite": "81 N.C. App. 486", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523927 ], "year": 1986, "pin_cites": [ { "page": "488", "parenthetical": "finding that where defendants in a \u00a7 1983 action successfully moved for summary judgment, \"[t]here is no question that defendants were the 'prevailing parties' \"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/81/0486-01" ] }, { "cite": "196 S.E.2d 193", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1973, "pin_cites": [ { "page": "196" } ], "opinion_index": 0 }, { "cite": "283 N.C. 327", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8558770 ], "year": 1973, "pin_cites": [ { "page": "331" } ], "opinion_index": 0, "case_paths": [ "/nc/283/0327-01" ] }, { "cite": "506 S.E.2d 754", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "pin_cites": [ { "page": "758" } ], "opinion_index": 0 }, { "cite": "131 N.C. App. 231", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11198623 ], "year": 1998, "pin_cites": [ { "page": "235" } ], "opinion_index": 0, "case_paths": [ "/nc-app/131/0231-01" ] }, { "cite": "346 S.E.2d 137", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "parenthetical": "finding that the failure of appellant to \"except and assign error separately to each finding or conclusion that he or she contends is not supported by the evidence . . . will result in waiver of the right to challenge the sufficiency of the evidence to support particular findings of fact\"" } ], "opinion_index": 0 }, { "cite": "317 N.C. 333", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4775585, 4775853, 4771860, 4771992, 4775065 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/nc/317/0333-01", "/nc/317/0333-05", "/nc/317/0333-03", "/nc/317/0333-02", "/nc/317/0333-04" ] }, { "cite": "340 S.E.2d 755", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "759-60" } ], "opinion_index": 0 }, { "cite": "79 N.C. App. 678", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523105 ], "year": 1986, "pin_cites": [ { "page": "684" } ], "opinion_index": 0, "case_paths": [ "/nc-app/79/0678-01" ] }, { "cite": "357 S.E.2d 439", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "opinion_index": 0 }, { "cite": "86 N.C. App. 299", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12128493 ], "year": 1987, "opinion_index": 0, "case_paths": [ "/nc-app/86/0299-01" ] }, { "cite": "330 S.E.2d 616", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "opinion_index": 0 }, { "cite": "313 N.C. 612", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4722697, 4725936, 4721340, 4722525, 4724158 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/nc/313/0612-03", "/nc/313/0612-05", "/nc/313/0612-01", "/nc/313/0612-02", "/nc/313/0612-04" ] }, { "cite": "325 S.E.2d 260", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "opinion_index": 0 }, { "cite": "72 N.C. App. 372", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526819 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/nc-app/72/0372-01" ] }, { "cite": "42 U.S.C. \u00a7 1983", "category": "laws:leg_statute", "reporter": "U.S.C.", "opinion_index": 0 }, { "cite": "510 S.E.2d 652", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "opinion_index": 0 }, { "cite": "348 N.C. 499", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1659779, 1659760, 1659668, 1659705, 1659835 ], "year": 1998, "opinion_index": 0, "case_paths": [ "/nc/348/0499-05", "/nc/348/0499-02", "/nc/348/0499-01", "/nc/348/0499-04", "/nc/348/0499-03" ] }, { "cite": "496 S.E.2d 851", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "opinion_index": 0 }, { "cite": "128 N.C. App. 748", "category": "reporters:state", "reporter": "N.C. App.", "year": 1998, "opinion_index": 0 }, { "cite": "42 U.S.C. \u00a7 1988", "category": "laws:leg_statute", "reporter": "U.S.C.", "weight": 2, "pin_cites": [ { "page": "(b)" } ], "opinion_index": 0 }, { "cite": "42 U.S.C. \u00a7\u00a7 1981", "category": "laws:leg_statute", "reporter": "U.S.C.", "weight": 2, "opinion_index": 0 } ], "analysis": { "cardinality": 850, "char_count": 21885, "ocr_confidence": 0.751, "pagerank": { "raw": 4.860324067652926e-07, "percentile": 0.9327806370178339 }, "sha256": "8bb40ceffae4400774d9d62ea03fc183036da363264f3e69aa0a15d63ce66835", "simhash": "1:9799416267ac253a", "word_count": 3552 }, "last_updated": "2023-07-14T19:33:36.366510+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges LEWIS and WYNN concur." ], "parties": [ "CHIEGE KALU OKWARA v. DILLARD DEPARTMENT STORES, INC., and TOWN OF PINEVILLE, and WALTER B. RORIE" ], "opinions": [ { "text": "MARTIN, Judge.\nPlaintiff Chiege Kalu Okwara filed suit against Officer Walter B. Rorie, Dillard Department Stores (\u201cDillard\u201d) and the Town of Pineville (\u201cTown\u201d) on 2 December 1994, alleging negligent hiring, defamation, slander per se, race discrimination, violations of 42 U.S.C. \u00a7\u00a7 1981 and 1983, infliction of emotional distress, false imprisonment, battery, and assault. These allegations stemmed from a 10 December 1993 incident at a Dillard Department Store in Pineville, North Carolina, in which defendant Rorie, an off-duty Pineville police officer working as a security guard for Dillard, investigated a report that plaintiff was shoplifting. Plaintiff alleged that she was invest\u00ed-gated as a result of a race-based shoplifter profile, and also alleged that during Rorie\u2019s investigation, he struck her in the stomach, made derogatory and defamatory statements to her, and restrained her against her will.\nPlaintiff\u2019s claims against Dillard and the Town for negligent employment and civil rights violations were dismissed pursuant to an order of summary judgment entered 14 December 1995. On 30 August 1996, plaintiff\u2019s remaining claims were dismissed as a sanction for failing to comply with previous discovery orders, and' plaintiff was taxed with costs. Plaintiff appealed. By opinion filed 17 February 1998, this Court affirmed. Okwara v. Dillard Dept. Stores (unpublished, COA97-438, 128 N.C. App. 748, 496 S.E.2d 851 (1998)). Plaintiff\u2019s petition to the North Carolina Supreme Court for discretionary review was denied on 8 July 1998. Okwara v. Dillard Dept. Stores, 348 N.C. 499, 510 S.E.2d 652 (1998).\nBoth Dillard and Pineville moved for an order taxing plaintiff with costs, including attorneys\u2019 fees incurred in defending plaintiff\u2019s claims asserted under federal civil rights laws, 42 U.S.C. \u00a7\u00a7 1981 and 1983. On 7 December 1998, the trial court entered a Judgment for Costs taxing plaintiff with costs, including attorneys\u2019 fees, incurred by both Dillard and the Town.\nThe trial court found, inter alia:\n25. Discovery conducted by the parties in this action disclosed that there was no evidence to support Plaintiff\u2019s claims under Section 1983 against either the Town or Dillard. As clearly demonstrated by Plaintiff\u2019s sworn deposition testimony and interrogatory answers, Plaintiff did not have one scintilla of evidence to support her Complaint allegations with respect to these claims at the time she filed the Complaint and did not present any competent evidence to support them in opposition to the Town\u2019s and Dillard\u2019s Motion for Summary Judgment.\n26. In her memorandum filed with this Court in opposition to the Motions for Summary Judgment, Plaintiff did not point to a single fact supporting her speculative allegations that the Town had an official policy to use a profile to identify shoplifters based on the race of the individual and that Dillard authorized and condoned Defendant Rorie\u2019s supposed use of such a policy.\n27. Plaintiff made her allegations in her Verified Complaint with respect to her purported Section 1983 claims (Second Cause of Action) against Dillard and the Town and prosecuted such claims through their dismissal based upon her own conjecture and speculation. Plaintiff\u2019s Section 1983 claims (Second Cause of Action) were not well-grounded in fact when Plaintiff filed her Verified Complaint and she did not develop or produce any evidence whatsoever to support her speculative allegations prior to the dismissal of such claims.\n28. Plaintiffs Verified Complaint established that each of her purported eight (8) Causes of Action arose out of a common nucleus of operative facts and that each such Cause of Action was inextricably interwoven with the others. The work of Dillard\u2019s and the Town\u2019s counsel on the case was directed at all claims until their and the Town\u2019s Motions for Summary Judgment were heard and decided on December 14, 1995. Because all of Plaintiff\u2019s claims arose out of the same set of facts and related legal theories, all of the work of the attorneys for Dillard and the Town prior to that hearing, including extensive discovery (with the exception of some research time directed specifically at other claims), related to the litigation as a whole.\nThe trial court also made seventeen findings of fact regarding the hourly rates charged by defendants\u2019 counsel and the time spent in defense of plaintiff\u2019s claims.\nThe trial court reached the following conclusions of law:\n1. This Court lacked jurisdiction to enter any order taxing costs until the mandate of the Court of Appeals was issued remanding this matter back to the Mecklenburg County Superior Court.\n2. The North Carolina General Statutes set no specific deadline for filing a Motion for Costs.\n3. Defendants Dillard and the Town were the prevailing parties in this action.\n4. Plaintiff\u2019s claims pursuant to 42 U.S.C. \u00a7 1983 against Defendants Dillard and the Town were frivolous, unreasonable and groundless.\n5. All of Plaintiff\u2019s claims involved a common core of facts and related legal theories.\n6. The fees sought by Defendant Dillard for work done by attorneys and paralegals before the entry of partial summary judgment on December 14, 1995, are reasonable, and the Court concludes, in its discretion that $65,111.00 for fees incurred by Defendant Dillard should be taxed as costs in this action.\n7. The fees sought by Defendant the Town for work done by attorneys and paralegals before the entry of partial summary judgment on December 14, 1995, are reasonable, and the Court concludes, in its discretion, that $39,286.00 for fees incurred for the defense of the Town should be taxed as costs in this action.\n8. Fees incurred by Defendants Dillard and the Town in defending this action after partial summary judgment was entered on December 14, 1995, cannot be taxed by the Court as costs in this action.\nThe trial court awarded costs and attorneys\u2019 fees to Dillard in the amount of $70,949.51 and to the Town in the amount of $40,735.00. Plaintiff appeals.\nIn each of her arguments to this Court, plaintiff challenges both the sufficiency of the evidence to support certain of the trial court\u2019s findings of fact, and the conclusions of law drawn from these findings. Plaintiff, however, has not assigned error to any of the trial court\u2019s findings. Appellate review is confined to a consideration of issues presented by proper assignments of error set out in the record on appeal. Wade v. Wade, 72 N.C. App. 372, 325 S.E.2d 260, disc. review denied, 313 N.C. 612, 330 S.E.2d 616 (1985). Where findings of fact are challenged on appeal, each contested finding of fact must be separately assigned as error, and the failure to do so results in a waiver of the right to challenge the sufficiency of the evidence to support the finding. Taylor v. N.C. Dept. of Transportation, 86 N.C. App. 299, 357 S.E.2d 439 (1987); Concrete Service Corp. v. Investors Group, Inc., 79 N.C. App. 678, 684, 340 S.E.2d 755, 759-60, cert. denied, 317 N.C. 333, 346 S.E.2d 137 (1986) (finding that the failure of appellant to \u201cexcept and assign error separately to each finding or conclusion that he or she contends is not supported by the evidence . . . will result in waiver of the right to challenge the sufficiency of the evidence to support particular findings of fact\u201d). Where an appellant fails to assign error to the trial court\u2019s findings of fact, the findings are \u201cpresumed to be correct.\u201d Inspirational Network, Inc. v. Combs, 131 N.C. App. 231, 235, 506 S.E.2d 754, 758 (1998). Our review, therefore, is limited to the question of whether the trial court\u2019s findings of fact, which are presumed to be supported by competent evidence, support its conclusions of law and judgment. Taylor v. N. C. Dept. of Transportation, supra.\nPlaintiff argues the conclusions of law are erroneous because (1) defendants were time-barred from seeking attorneys\u2019 fees two years after the federal claims were dismissed; (2) the facts found do not justify an award of attorneys\u2019 fees according to the standard set forth in 42 U.S.C. \u00a7 1988; (3) the award was unreasonable; and (4) at least a portion of the award should be nullified because it was incurred for work unrelated to the federal civil rights claims. We have carefully considered her arguments and find no basis upon which to disturb the trial court\u2019s judgment.\nI.\nPlaintiff first contends defendants\u2019 claim for attorneys\u2019 fees was time-barred. Citing F.R. Civ. P. 54(d)(2)(B) requiring motions for attorneys\u2019 fees to be filed within fourteen days following the entry of judgment, plaintiff argues we should apply a \u201crule of reasonableness\u201d and find that it was violated by the \u201cunreasonable and prejudicial\u201d two year time period between the partial summary judgment order and the attorneys\u2019 fee motions. The fourteen day rule contained in F.R. Civ. P. 54(d)(2)(B) clearly does not apply to litigation pending in our State courts and the North Carolina Rules of Civil Procedure contain neither a counterpart to F.R. Civ. P. 54(d)(2)(B) nor a deadline for filing a motion for costs and fees. Rather, \u201c[t]he usual practice in awarding attorneys\u2019 fees is to make the award at the end of the litigation when all the work has been done and all the results are known.\u201d Baxter v. Jones, 283 N.C. 327, 331, 196 S.E.2d 193, 196 (1973).\nAs established by the record and the trial court\u2019s findings, the litigation was ended on 8 July 1998 when plaintiff\u2019s petition for discretionary review was denied by the North Carolina Supreme Court. Dillard\u2019s amended motion for costs was filed 14 September 1998, and the Town\u2019s motion for costs was filed 10 August 1998, both within a reasonable time after the \u201cresults were known.\u201d We hold the motions for costs were not time-barred.\nII.\nPlaintiff next argues the award of attorneys\u2019 fees was unjustified according to 42 U.S.C. \u00a7 1988(b). This section expressly allows attorney\u2019s fees in federal civil rights cases and reads:\n(b) Attorney\u2019s fees\nIn any action or proceeding to enforce a provision of sections 1981, 1981a, 1982, 1983, 1985, and 1986 of this title, . . . the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney\u2019s fee as part of the costs, except that in any action brought against a judicial officer for an act or omission taken in such officer\u2019s judicial capacity such officer shall not be held liable for any costs, including attorney\u2019s fees, unless such action was clearly in excess of such officer\u2019s jurisdiction.\nA defendant in a \u00a7 1981 or \u00a7 1983 claim who successfully moves for summary judgment is a prevailing party for purposes of \u00a7 1988. See, e.g., Shaw v. Jones, 81 N.C. App. 486, 488, 344 S.E.2d 321, 323 (1986) (finding that where defendants in a \u00a7 1983 action successfully moved for summary judgment, \u201c[t]here is no question that defendants were the \u2018prevailing parties\u2019 \u201d). Although the statute itself does not distinguish between a prevailing defendant or a prevailing plaintiff, the Supreme Court in Christiansburg Garment Co. v. Equal Employment Opportunity Commission, 434 U.S. 412, 417, 54 L.Ed.2d 648, 698 (1978) held that, while a prevailing plaintiff \u201cshould ordinarily recover an attorney\u2019s fee unless special circumstances would render such an award unjust,\u201d a prevailing defendant is differently situated and may only be entitled to attorney\u2019s fees if the claim brought by the plaintiff is \u201cfrivolous, unreasonable, or groundless, or that the plaintiff continued to litigate after it clearly became so.\u201d Id. at 422, 54 L.Ed.2d at 701. This stricter standard is based on the rationale that, although prevailing defendant awards are clearly warranted in some circumstances, large fee awards would have a \u201cchilling effect\u201d on plaintiffs considering civil rights claims. Id.\nChristiansburg did not define a precise measure of frivolousness, stating only that subjective bad faith is not required in order to find the claim frivolous. Id. Instead, this determination was left to the discretion of trial courts; courts since Christiansburg have awarded attorney\u2019s fees under \u00a7 1988 against plaintiffs who have brought claims wholly untenable at law, or wholly unsubstantiated in fact. See, e.g., Arnold v. Burger King Corp., 719 F.2d 63 (4th Cir. 1983), cert. denied, 469 U.S. 826, 83 L.Ed.2d 51 (1984) (discussing the reasons courts have found a claim frivolous); Hutchison v. Staton, 994 F.2d 1076 (4th Cir. 1993) (finding the district court properly granted attorney\u2019s fees against a plaintiff who brought a \u00a7 1983 claim which was \u201cconjecture\u201d and \u201cspeculation\u201d and \u201chad no basis in fact\u201d); DeBauche v. Trani, 191 F.3d. 499 (4th Cir. 1999) (finding that the trial court acted within its discretion in awarding attorney\u2019s fees on the basis that plaintiffs claim was \u201cgroundless\u201d and \u201cwithout foundation\u201d).\nPlaintiff argues that her federal civil rights claims were not frivolous, so that any award of attorneys\u2019 fees was improper. However, in its finding of fact numbered 25, the trial court found, inter alia:\nPlaintiff did not have one scintilla of evidence to support her Complaint . . . and did not present any competent evidence to support them in opposition to the Town\u2019s and Dillard\u2019s Motion for Summary Judgment.\nIn its finding of fact numbered 27, the trial court found that plaintiff\u2019s claims were based solely on \u201cconjecture and speculation,\u201d and were \u201cnot well-grounded in fact.\u201d Plaintiff did not assign error to these findings, they are binding on appeal, and they support the trial court\u2019s conclusion of law numbered 4 that plaintiff\u2019s claims were frivolous and groundless. A plaintiff who files frivolous claims may be charged with reasonable attorney\u2019s fees; this assignment of error is overruled.\nIII.\nNext plaintiff argues that, even if her claims are determined to be frivolous, the hourly rates charged by Dillard\u2019s counsel were unreasonable. Once it is established that the party seeking fees is entitled to them, the trial court must also make certain the fees charged are reasonable. Arnold, 719 F.2d at 67. This decision is largely left to the discretion of the trial judge, who has \u201cintimate knowledge\u201d of the facts and circumstances of the case.\u201d Id. The \u201cmost useful starting point for determining the amount of a reasonable fee is the number of hours reasonably expended on the ligation multiplied by a reasonable hourly rate.\u201d Hensley v. Eckerhart, 461 U.S. 424, 76 L.Ed.2d 40 (1983). To determine a reasonable hourly rate, the Court may look at \u201cthe customary fee for similar work in the community.\u201d Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir. 1974) (listing this as one of twelve factors used to determine the amount of attorney\u2019s fees; its use in federal civil rights cases was cited with approval in Hensley').\nHere, the trial court\u2019s conclusion that the hourly rate charged by Dillard\u2019s attorneys was reasonable is clearly supported by its finding that the hourly rates charged by the attorneys who worked on this case were \u201cthe usual and customary rates for the firm for such cases and were reasonable and under the prevailing market rates for the defense of these types of claims by other firms and lawyers of comparable experience to [Dillard\u2019s attorney],\u201d a finding to which plaintiff has not assigned error. This assignment of error is overruled.\nIV.\nFinally, plaintiff challenges the amount of the fee, arguing that it should be reduced by the amount expended by defendants in defense of the non-federal claims. In Hensley v. Eckerhart, 461 U.S. 424, 76 L.Ed.2d 40 (1983), the Supreme Court held that where multiple state' law and federal law claims are litigated together, fees incurred defending both the federal civil rights claims and other claims may be fairly charged to the prevailing party under \u00a7 1988 so long as all of these claims stem from a common nucleus of law or fact. See also Ward Lumber Co. v. Brooks, Comm\u2019r of Labor, 50 N.C. App. 294, 273 S.E.2d 331, cert. denied, 454 U.S., 70 L.Ed.2d 638 (1981). This is so because, as noted in Hensley, \u201c[m]uch of counsel\u2019s time will be devoted generally to the litigation as a whole, making it difficult to divide the hours expended on a claim-by-claim basis.\u201d Id. at 435, 76 L.Ed.2d at 51. This determination is left largely to the discretion of the trial courts. Id.\nPlaintiff urges this Court to treat a prevailing defendant differently than a prevailing plaintiff when considering apportionment. Plaintiff argues that a stricter standard should be applied to apportionment when the defendant seeks damages in order to avoid the \u201cchilling effect\u201d large fee awards would have on plaintiffs pursuing federal civil rights claims. We are not persuaded. Plaintiff has not guided us to a single case which recognizes this distinction when apportioning fees incurred in the defense of non-federal claims. The Seventh Circuit, when faced with this issue, found that rules of apportionment from Hensley should apply equally to prevailing defendants and prevailing plaintiffs. Munson v. Milwaukee Board of School Directors, 969 F.2d 266 (7th Cir. 1992); see also Hoffine v. Brogan, 1998 WL 1118672 (S.D.Cal 1998); Kennedy v. McCarty, 803 F.Supp. 1470 (S.D Ind. 1992). The Fourth Circuit has observed that once the court properly determines a claim is frivolous, an imposition of fees \u201cchills nothing that is worth encouraging.\u201d Hutchinson v. Staton, 994 F.2d 1076, 1081 (4th Cir. 1993).\nThe trial court in this case properly applied this standard in the Judgment for Costs, concluding that defendants may be awarded fees for any portion of the defense stemming from the same nucleus of fact. In its finding of fact numbered 28, the trial court found that plaintiff\u2019s claims arose from \u201ca common nucleus of operative facts,\u201d and that each claim was \u201cinextricably interwoven\u201d with the other claims. The finding, to which error was not assigned, supports the trial court\u2019s conclusion that no apportionment of fees was necessary before partial summary judgment; the conclusion is a correct application of the law. This assignment of error is overruled.\nWe have reviewed plaintiff\u2019s remaining assignments of error and find them without merit. We affirm the Judgment for Costs.\nAffirmed.\nJudges LEWIS and WYNN concur.", "type": "majority", "author": "MARTIN, Judge." } ], "attorneys": [ "Daly & Daly, P.A., by George Daly, for plaintiff-appellant.", "Underwood, Kinsey Warren & Tucker, P.A., by G. Ralph Kinsey, Jr., for defendant-appellee Dillard Department Stores, Inc.", "Bailey & Dixon, L.L.P., by Patricia P. Kemer, for defendant-appellee Town of Pineville." ], "corrections": "", "head_matter": "CHIEGE KALU OKWARA v. DILLARD DEPARTMENT STORES, INC., and TOWN OF PINEVILLE, and WALTER B. RORIE\nNo. COA99-309\n(Filed 15 February 2000)\n1. Costs\u2014 attorney fees \u2014 no time bar \u2014 award at end of litigation\nAlthough plaintiff cites Federal Civil Procedure Rule 54(d)(2)(B) to show defendants\u2019 claims for attorney fees were time barred since the claims were not filed within fourteen days following entry of judgment, the trial court did not err in taxing plaintiff with costs, including attorney fees incurred in defending plaintiff\u2019s claims asserted under federal civil rights laws 42 U.S.C. \u00a7\u00a7 1981 and 1983, because: (1) the federal civil procedure rule does not apply to litigation pending in our state courts; (2) the North Carolina Rules of Civil Procedure do not contain a counterpart to the federal rule, nor a deadline for filing a motion for costs and fees; and (3) the usual practice in awarding attorney fees is to make the award at the end of the litigation when all work has been done and all the results are known, and defendants\u2019 motions for costs were filed within a reasonable time after the results were known.\n2. Costs\u2014 attorney fees \u2014 civil rights claim \u2014 frivolous\nThe trial court\u2019s taxing of plaintiff with costs, including attorney fees incurred in defending plaintiff\u2019s claims asserted under federal civil rights laws 42 U.S.C. \u00a7\u00a7 1981 and 1983, was not unjustified under 42 U.S.C. \u00a7 1988(b) because: (1) the trial court found that plaintiff\u2019s claims were based solely on \u201cconjecture and speculation\u201d and were \u201cnot well-grounded in fact\u201d; (2) plaintiff did not assign error to these findings, meaning they are binding on appeal; and (3) the findings support the trial court\u2019s conclusion of law that plaintiff\u2019s claims were frivolous and groundless.\n3. Costs\u2014 attorney fees \u2014 reasonableness\u2014usual and customary rates\nThe trial court did not abuse its discretion by determining that the hourly rates charged by defendant Dillard\u2019s counsel were reasonable when taxing plaintiff with costs, including attorney fees incurred in defending plaintiff\u2019s claims asserted under federal civil rights laws 42 U.S.C. \u00a7\u00a7 1981 and 1983, because this con-elusion was supported by the trial court\u2019s finding, to which plaintiff has not assigned error, that the hourly rates charged by the attorneys who worked on this case were the \u201cusual and customary rates for the firm for such cases and were reasonable under the prevailing market rates for the defense of these types of claims by other firms and lawyers of comparable experience.\u201d\n4. Costs\u2014 attorney fees \u2014 federal and other claims \u2014 common nucleus of law or fact\nAlthough plaintiff contends the amount of attorney fees awarded to defendants should be reduced by the amount expended in defense of the non-federal claims, the trial court did not abuse its discretion in determining the amount it taxed plaintiff with costs because: (1) fees incurred defending both federal civil rights claims and other claims may be fairly charged to the prevailing party under 42 U.S.C. \u00a7 1988 so long as all of these claims stem from a common nucleus of law or fact; and (2) a prevailing defendant is not treated differently than a prevailing plaintiff when considering apportionment.\nAppeal by plaintiff from judgment entered 7 December 1998 by Judge Marvin K. Gray in Mecklenburg County Superior Court. Heard in the Court of Appeals 8 December 1999.\nDaly & Daly, P.A., by George Daly, for plaintiff-appellant.\nUnderwood, Kinsey Warren & Tucker, P.A., by G. Ralph Kinsey, Jr., for defendant-appellee Dillard Department Stores, Inc.\nBailey & Dixon, L.L.P., by Patricia P. Kemer, for defendant-appellee Town of Pineville." }, "file_name": "0587-01", "first_page_order": 621, "last_page_order": 630 }