{ "id": 9364113, "name": "LISA E. GAFFNEY STILWELL, Plaintiff v. AMANDA DANLEY GUST, Defendant and Third Party Plaintiff v. TIMOTHY G. STILWELL, Third Party Defendant", "name_abbreviation": "Gaffney Stilwell v. Gust", "decision_date": "2001-12-28", "docket_number": "No. COA00-1414", "first_page": "128", "last_page": "134", "citations": [ { "type": "official", "cite": "148 N.C. App. 128" } ], "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": "287 S.E.2d 429", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1982, "pin_cites": [ { "page": "431" } ], "opinion_index": 0 }, { "cite": "56 N.C. App. 247", "category": "reporters:state", "reporter": "N.C. 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App. 347", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11237900 ], "weight": 4, "year": 1999, "pin_cites": [ { "page": "349" }, { "page": "351" }, { "page": "351" }, { "page": "350" } ], "opinion_index": 0, "case_paths": [ "/nc-app/132/0347-01" ] } ], "analysis": { "cardinality": 662, "char_count": 15548, "ocr_confidence": 0.729, "pagerank": { "raw": 2.3752878879767867e-07, "percentile": 0.7962060722459109 }, "sha256": "d216da5710100f10ce5cbd35e95d69edf63bde1e2366a1e58de47995c329cc13", "simhash": "1:aba3d46f7db32d55", "word_count": 2511 }, "last_updated": "2023-07-14T20:14:25.013425+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges HUDSON and CAMPBELL concur." ], "parties": [ "LISA E. GAFFNEY STILWELL, Plaintiff v. AMANDA DANLEY GUST, Defendant and Third Party Plaintiff v. TIMOTHY G. STILWELL, Third Party Defendant" ], "opinions": [ { "text": "EAGLES, Chief Judge.\nAfter a jury trial, the trial court entered judgment awarding Lisa E. Gaffney Stilwell (\u201cplaintiff\u2019) damages in the amount of $5,401.00 and attorneys\u2019 fees and costs in the amount of $10,853.75 in her civil negligence action against Amanda Danley Gust (\u201cdefendant\u201d). The trial court ordered that defendant recover $2,700.50 in contribution from Timothy G. Stilwell, plaintiff\u2019s husband (\u201cthird-party defendant\u201d). Defendant appeals. After careful consideration, we affirm.\nOn 9 February 1997, plaintiff was a passenger in an automobile operated by her husband, third-party defendant. Third-party defendant\u2019s vehicle collided with a vehicle operated by defendant. Plaintiff and her husband brought suit against defendant alleging negligence. Defendant counterclaimed and alleged that third-party defendant was negligent in the operation of his vehicle. Prior to trial, defendant settled with third-party defendant for his bodily injury claim and third-party defendant dismissed his claims against defendant. Due to defendant\u2019s claim for contribution, third-party defendant remained in this action. Defendant made an offer of judgment of $4,500.00 which plaintiff refused. The matter went to trial on 22 May 2000 in Gaston County Superior Court. The jury found both defendant and third-party defendant negligent and returned a verdict assessing damages in the amount of $5,401.00 for plaintiff.\nAfter the trial, plaintiff moved to tax costs and attorneys\u2019 fees against defendant. The trial court ordered payment of $853.75 in costs and $10,000.00 in attorneys\u2019 fees to plaintiff. As to the contribution claim, the trial court ordered that defendant recover $2,700.50 (one-half of the damages awarded) from third-party defendant. Defendant appeals.\nDefendant raises two issues on appeal: Whether the trial court erred in (1) taxing costs and attorneys\u2019 fees to defendant and (2) failing to enter judgment in favor of defendant for pro-rata contribution of the costs and attorneys\u2019 fees. After careful review, we affirm.\nDefendant contends that the trial court erred in awarding attorneys\u2019 fees and costs to plaintiff and taxing them entirely to defendant. Defendant argues that the trial court should have taxed one-half of plaintiff\u2019s costs and fees to defendant incurred before the offer of judgment and all the post-offer of judgment costs and fees to the third-party defendant. Defendant contends that her offer of $4,500.00 was more than her pro-rata share of the amount for which plaintiff would have settled. The third-party defendant made no offer to settle with plaintiff before trial. Defendant argues that this refusal'by the third-party defendant to make a settlement offer resulted in the matter proceeding to trial. Defendant contends that the costs and fees of trial were incurred as a result of the conduct of the third-party defendant, not defendant, and that it was inequitable to tax all the costs and fees to defendant. We are not persuaded.\nAttorneys\u2019 fees generally are not recoverable by the successful party at trial as a part of court costs. Washington v. Horton, 132 N.C. App. 347, 349, 513 S.E.2d 331, 333 (1999). However, in personal injury or property damage actions where the judgment for recovery of damages is $10,000.00 or less, by statutory exception the presiding judge in his or her discretion may award attorneys\u2019 fees as part of costs. G.S. \u00a7 6-21.1 (1999); Thorpe v. Perry-Riddick, 144 N.C. App. 567, 571, 551 S.E.2d 852, 856 (2001).\nThe award of attorneys\u2019 fees under G.S. \u00a7 6-21.1 is within the discretion of the presiding judge. Washington, 132 N.C. App. at 351, 513 S.E.2d at 334.\nNorth Carolina case law is clear that to overturn the trial judge\u2019s determination, the defendant must show an abuse of discretion. Abuse of discretion results where the court\u2019s ruling is manifestly unsupported by reason or so arbitrary that it could not have been the result of a reasoned decision.\nThorpe, 144 N.C. App. at 570, 551 S.E.2d at 855 (2001) (citations and quotations omitted). In awarding fees, the trial court\u2019s discretion is not unrestrained. Washington, 132 N.C. App. at 351, 513 S.E.2d at 334. In Washington, we noted that the trial court, in exercising its discretion, should consider the following factors:\n(1) settlement offers made prior to the institution of the action . . .; (2) offers of judgment pursuant to Rule 68, and whether the \u201cjudgment finally obtained\u201d was more favorable than such offers; (3) whether defendant unjustly exercised \u201csuperior bargaining power\u201d; (4) in the case of an unwarranted refusal by an insurance company, the \u201ccontext in which the dispute arose\u201d; (5) the timing of settlement offers; (6) the amounts of the settlement offers as compared to the jury verdict; and the whole record.\nId. at 351, 513 S.E.2d at 334-35 (citations omitted). Even so, the trial court does not need to make detailed findings for each factor. Tew v. West, 143 N.C. App. 534, 537, 546 S.E.2d 183, 185 (2001). If the court awards attorneys\u2019 fees, it must make findings of fact to support the award. Porterfield v. Goldkuhle, 137 N.C. App. 376, 378, 528 S.E.2d 71, 73 (2000). These findings must include the \u201ctime and labor expended, the skill required, the customary fee for like work, and the experience or ability of the attorney.\u201d Cotton v. Stanley, 94 N.C. App. 367, 369, 380 S.E.2d 419, 421 (1989).\nThe trial court properly considered the appropriate factors enumerated in Washington. As for the first factor, the trial court found that defendant made offers to plaintiff as early as October 1999 and at the settlement conference two weeks prior to trial. The record shows that the complaint was filed on 2 September 1999 and the summons issued the same day. There is no evidence that defendant made any settlement offers prior to the commencement of this action.\nIn considering the second factor, the trial court found that the \u201cjury award is more than any amount offered prior to trial\u201d by defendant. \u201cJudgment finally obtained\u201d means the amount entered as final judgment modified by any adjustments. Poole v. Miller, 342 N.C. 349, 353, 464 S.E.2d 409, 411 (1995), reh\u2019gs denied, 342 N.C. 666, 467 S.E.2d 722 (1996). \u201c[C]osts incurred after the offer of judgment but prior to the entry of judgment\u201d should also be included with the jury verdict to determine the \u201cjudgment finally obtained.\u201d Roberts v. Swain, 353 N.C. 246, 250-51, 538 S.E.2d 566, 569 (2000). The trial court awarded $10,000.00 in attorneys\u2019 fees, to be included as costs, and $853.75 as costs to plaintiff. These figures added to the jury award of $5,401.00 clearly exceed defendant\u2019s Offer of Judgment of $4,500.00. Even excluding costs and fees, the jury award exceeded the Offer of Judgment.\nAs to the third factor, the court found that defendant and her insurance company \u201cunjustly exercised its superior bargaining power by refusing to budge through and including trial from its initial and full valuation of Plaintiff\u2019s claims.\u201d\nFactor four is not pertinent here since \u201c[o]ur appellate courts have uniformly held that a finding of unwarranted refusal to pay a claim is required only in suits brought by an insured or a beneficiary against an insurance company defendant.\u201d Washington, 132 N.C. App. at 350, 513 S.E.2d at 334. Here, the insurance company is not the defendant.\nAs to factor five, the trial court found that defendant and defendant\u2019s insurer filed a formal Offer of Judgment on or about 15 October 1999 for $4,500.00 and \u201cat the May 4, 2000 settlement conference held two weeks before the trial of this matter, [defendant and defendant\u2019s insurer] refused to offer more than the amount of $4,500.00 to settle [this matter].\u201d\nConsidering factor six, the trial court found that the highest settlement offer by defendant was $4,500.00 and the jury returned a verdict of $5,401.00. The trial court stated \u201c[t]hat the jury award is more than any amount offered prior to trial by Defendant Gust and/or Allstate.\u201d The trial court reviewed the entire record including the affidavits, memorandum, cases and arguments of counsel.\nThe trial court also made the following finding as required by Porterfield:\n15. That given the nature and complexity of this case, the time expended by counsel is reasonable . . . and is consistent with that which may have been expected by an attorney of similar experience and expertise in this geographic area, . . . compared with the services which might be expected from other law firms in this geographic area, the amount of $150.00 per hour for attorneys\u2019 time is reasonable.\nThe record contains a copy of the motion which includes as attachments the attorney\u2019s time sheets reflecting time spent on this matter and an affidavit from plaintiff\u2019s attorney that he devoted 68.5 billable hours to the case.\nThe trial court applied the factors set forth in Washington and made the appropriate findings as required by Porterfield. There is no evidence that the $10,000.00 in attorneys\u2019 fees is unreasonable. Nor is there any showing of abuse of discretion by the trial court in the award of fees.\nSecond, the trial court awarded plaintiff $853.75 in costs. This figure represents $375.00 for an expert witness fee, $400.00 for deposition costs, and $78.75 for filing and service fees.\n\u201c[C]osts which are not allowed as a matter of course under G.S. \u00a7 6-18 or \u00a7 6-19 ... may be allowed in the discretion of the court under G.S. \u00a7 6-20 . . . .\u201d Estate of Smith v. Underwood, 127 N.C. App. 1, 12, 487 S.E.2d 807, 815, disc. review denied, 347 N.C. 398, 494 S.E.2d 410 (1997). \u201cThe trial court\u2019s discretion to tax costs pursuant to [G.S. \u00a7 6-20] is not reviewable on appeal absent an abuse of discretion.\u201d Lewis v. Setty, 140 N.C. App. 536, 538, 537 S.E.2d 505, 507 (2000). \u201cWhile case law has found that deposition costs are allowable under section 6-20, it has in no way precluded the trial court from taxing other costs that may be \u2018reasonable and necessary.\u2019 \u201d Minton v. Lowe\u2019s Food Stores, 121 N.C. App. 675, 680, 468 S.E.2d 513, 516, disc. review denied, 344 N.C. 438, 476 S.E.2d 119 (1996).\nIn assessing fees, the trial court properly considered Washington and Porterfield. In determining costs, the trial court considered the motions, affidavits, and arguments of counsel. Plaintiff sued defendant only. Moreover, when making the settlement offers, defendant never asserted that the $4,500.00 was to cover only its pro-rata share of the liability. At the hearing on the motion to allow attorneys\u2019 fees as costs, plaintiff indicated \u201cshe would [have] considered] settling\u201d for a sum around $6,000.00. Defendant never increased the amount of her offer. The original offer was $4,500.00 and it remained the top offer through the settlement conference two weeks before the trial. The awards taxing costs and fees to defendant are within the trial court\u2019s discretion and defendant has not shown an abuse of that discretion.\nIn its second assignment of error, defendant contends that the trial court erred in failing to enter judgment in favor of defendant for pro-rata contribution. Defendant argues that the amount subject to contribution must be the jury verdict plus costs and fees. We are not persuaded.\nDefendant relies on Great West Casualty Co. v. Fletcher, 56 N.C. App. 247, 287 S.E.2d 429 (1982) and Roberts v. Swain, 353 N.C. 246, 538 S.E.2d 566 (2000). In Great West Casualty Co., this Court stated that \u201cthe pro rata share of each defendant is determined by dividing the amount of the judgment by the number of persons against whom it has been obtained.\u201d Great West Casualty Co., 56 N.C. App. at 249, 287 S.E.2d at 431. Roberts provided that a \u201cjudgment finally obtained\u201d is the final amount entered by the court as a judgment, including the jury verdict plus any applicable adjustments. Roberts, 353 N.C. at 249, 538 S.E.2d at 568 (quoting Poole v. Miller, 342 N.C. 349, 353, 464 S.E.2d 409, 411 (1995)). Attorneys\u2019 fees and court costs are included in determining \u201cjudgment finally obtained.\u201d Id. at 249, 538 S.E.2d at 568.\nDefendant\u2019s reliance on these cases is misplaced. In Great West Casualty Co., this Court was interpreting a Tennessee contribution statute, not G.S. \u00a7\u00a7 IB-1 to -6, the North Carolina contribution statute. The Roberts court was applying \u201cjudgment finally obtained\u201d as used in Rule 68 of the North Carolina Rules of Civil Procedure. \u201cJudgment finally obtained\u201d was defined in Poole, which stated:\nThus, we construe the legislature\u2019s choice of the phrase \u201cjudgment finally obtained\u201d as indicative of the legislature\u2019s intent that it is the amount ultimately and finally obtained by the plaintiff from the court which serves as the measuring stick for purposes of Rule 68. For these reasons, we conclude that, within the confines of Rule 68, \u201cjudgment finally obtained\u201d means the amount ultimately entered as representing the final judgment, i.e., the jury\u2019s verdict as modified by any applicable adjustments, by the respective court in the particular controversy, not simply the amount of the jury\u2019s verdict.\nId. at 353, 464 S.E.2d at 411 (emphasis added). The Court explicitly limited the application of its definition of \u201cjudgment finally obtained\u201d to Rule 68.\nIn its judgment, the trial court ordered \u201cthat Defendant and Third Party Plaintiff Amanda Danley Gust shall pay [plaintiff] the amount of $853.75 as part of Court costs\u201d and \u201cthat the [plaintiff] shall have and recover from Defendant and Third Party Plaintiff Gust reasonable attorney fees in the amount of $10,000.00, as part of costs . . . .\u201d We discern no abuse of discretion in the trial court\u2019s award to plaintiff of fees and costs. Since the fees and costs were taxed explicitly to defendant, the remaining portion of the judgment subject to contribution is the jury verdict for damages. In calculating the pro-rata shares, the trial court properly applied G.S. \u00a7\u00a7 IB-1 to -6 to this figure to determine defendant\u2019s and third-party defendant\u2019s pro-rata share of $2,700.50.\nAffirmed.\nJudges HUDSON and CAMPBELL concur.", "type": "majority", "author": "EAGLES, Chief Judge." } ], "attorneys": [ "Law Offices of Michael A. DeMayo, L.L.P., by Frank F. Voler,for the plaintiff-appellee.", "Morris York Williams Surles & Barringer, L.L.P., by R. Gregory Lewis, for the defendant-appellant.", "Steven J. Colombo, P.A., by R. Michael Chandler, for the third party defendant-appellee." ], "corrections": "", "head_matter": "LISA E. GAFFNEY STILWELL, Plaintiff v. AMANDA DANLEY GUST, Defendant and Third Party Plaintiff v. TIMOTHY G. STILWELL, Third Party Defendant\nNo. COA00-1414\n(Filed 28 December 2001)\n1. Costs\u2014 attorney fees \u2014 taxed entirely to one party\nThe trial court did not abuse its discretion by taxing fees and costs entirely against the defendant in an automobile accident case where defendant contended that the matter proceeded to trial after her offer of judgment only because the third-party defendant ( plaintiffs husband and the driver of the car in which she was injured) made no offer to settle. The trial court properly considered the required factors and made appropriate findings.\n2. Contribution\u2014 amount subject to \u2014 fees and costs taxed to one party\nThe trial court did not abuse its discretion in its award of fees and costs in a negligence action where defendant contended that the amount subject to contribution must be the jury verdict plus costs and fees. Since the fees and costs were taxed explicitly to defendant, the portion of the verdict subject to contribution is the jury verdict for damages.\nAppeal by defendant from judgment entered 1 September 2000 by Judge Beverly T. Beal in Gaston County Superior Court. Heard in the Court of Appeals 8 October 2001.\nLaw Offices of Michael A. DeMayo, L.L.P., by Frank F. Voler,for the plaintiff-appellee.\nMorris York Williams Surles & Barringer, L.L.P., by R. Gregory Lewis, for the defendant-appellant.\nSteven J. Colombo, P.A., by R. Michael Chandler, for the third party defendant-appellee." }, "file_name": "0128-01", "first_page_order": 158, "last_page_order": 164 }