{ "id": 9250576, "name": "JOSEPH ALAN FURMICK, Plaintiff v. GREGORY R. MINER, Defendant", "name_abbreviation": "Furmick v. Miner", "decision_date": "2002-12-03", "docket_number": "No. COA01-1346", "first_page": "460", "last_page": "466", "citations": [ { "type": "official", "cite": "154 N.C. App. 460" } ], "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": "551 S.E.2d 852", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "pin_cites": [ { "page": "857" } ], "opinion_index": 0 }, { "cite": "144 N.C. App. 567", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11435704 ], "year": 2001, "pin_cites": [ { "page": "572-73" } ], "opinion_index": 0, "case_paths": [ "/nc-app/144/0567-01" ] }, { "cite": "546 S.E.2d 183", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "pin_cites": [ { "page": "185" } ], "opinion_index": 0 }, { "cite": "143 N.C. App. 534", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11435886 ], "year": 2001, "pin_cites": [ { "page": "537" } ], "opinion_index": 0, "case_paths": [ "/nc-app/143/0534-01" ] }, { "cite": "528 S.E.2d 71", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "73", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "137 N.C. App. 376", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11093532 ], "year": 2000, "pin_cites": [ { "page": "378", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/137/0376-01" ] }, { "cite": "519 S.E.2d 335", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "pin_cites": [ { "page": "338" } ], "opinion_index": 0 }, { "cite": "135 N.C. App. 125", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11239468 ], "year": 1999, "pin_cites": [ { "page": "130" } ], "opinion_index": 0, "case_paths": [ "/nc-app/135/0125-01" ] }, { "cite": "554 S.E.2d 402", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "pin_cites": [ { "page": "405" }, { "page": "405" }, { "page": "406-07" } ], "opinion_index": 0 }, { "cite": "147 N.C. App. 102", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9378221 ], "weight": 3, "pin_cites": [ { "page": "106" }, { "page": "106" }, { "page": "109" } ], "opinion_index": 0, "case_paths": [ "/nc-app/147/0102-01" ] }, { "cite": "513 S.E.2d 331", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 7, "year": 1999, "pin_cites": [ { "page": "333" }, { "page": "334" }, { "page": "334" }, { "page": "351" }, { "page": "334-35", "parenthetical": "citations omitted" }, { "page": "335" } ], "opinion_index": 0 }, { "cite": "132 N.C. App. 347", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11237900 ], "weight": 5, "year": 1999, "pin_cites": [ { "page": "349" }, { "page": "351" }, { "page": "351" }, { "page": "352" } ], "opinion_index": 0, "case_paths": [ "/nc-app/132/0347-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 6-21.1", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "opinion_index": 0 } ], "analysis": { "cardinality": 574, "char_count": 13229, "ocr_confidence": 0.753, "pagerank": { "raw": 7.487164528228816e-08, "percentile": 0.44591518656106977 }, "sha256": "58a61aa77d000af0fd88d392f1f5f283a9f2d60aa8cdc58a9144472346048c43", "simhash": "1:8721c0227dfa1e56", "word_count": 2136 }, "last_updated": "2023-07-14T14:30:59.212861+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges MARTIN and TYSON concur." ], "parties": [ "JOSEPH ALAN FURMICK, Plaintiff v. GREGORY R. MINER, Defendant" ], "opinions": [ { "text": "THOMAS, Judge.\nThe issue for consideration in this appeal is whether the trial court erred in awarding attorney\u2019s fees, costs and prejudgment interest under N.C. Gen. Stat. \u00a7 6-21.1.\nThe jury returned an $812.11 verdict for plaintiff, Joseph Alan Furmick, upon his claim for personal injuries. Defendant, Gregory R. Miner, had earlier filed a $3,671.00 Offer of Judgment. The trial court nevertheless awarded plaintiff $6,500.00 in attorney\u2019s fees, $1,866.90 in costs and $81.20 in prejudgment interest.\nDefendant appeals, arguing the trial court: (1) erred by failing to make adequate findings of fact; (2) abused its discretion in awarding fees in light of the amount of defendant\u2019s settlement offers as compared to the jury verdict; and (3) erred in awarding prejudgment interest.\nWe agree with defendant as to the inclusion of prejudgment interest, but otherwise affirm the trial court. We remand the case for the limited purpose of allowing the trial court to make a determination regarding attorney\u2019s fees for services performed on appeal.\nOn 10 April 1997, plaintiff was driving home from work when his vehicle was struck from behind by a vehicle operated by defendant. Plaintiff suffered lower back pain and as a result incurred medical bills totaling $600.56.\nApproximately two weeks after the accident, J.J. Hoyer, a representative of defendant\u2019s liability insurance carrier, went to plaintiff\u2019s home and made a settlement offer. According to Hoyer, he offered to pay the total of plaintiff\u2019s medical expenses up to that date plus $1,000.00. Plaintiff does not deny an offer was made but does not remember the amount. In any event, plaintiff, who was still receiving medical treatment, refused the offer.\nOn 11 October 2000, after plaintiff instituted suit and mediation was unsuccessful, defendant filed an Offer of Judgment in the amount of $3,671.00. Plaintiff again declined to settle.\nThe case was tried before a jury on 4 and 5 December 2000.\nBy his first assignment of error, defendant contends the trial court erred in awarding fees and costs because it failed to make specific findings of fact. While the trial court made findings of fact concerning the reasonableness of the fees and costs, defendant argues it did not make required findings regarding whether an award was appropriate. We disagree.\nGenerally, the prevailing party is not entitled to recover attorney\u2019s fees as a part of court costs. Washington v. Horton, 132 N.C. App. 347, 349, 513 S.E.2d 331, 333 (1999). However, our legislature has provided for the recovery of attorney\u2019s fees in certain cases where the damage award is less than $10,000.00:\nIn any personal injury or property damage suit, or suit against an insurance company under a policy issued by the defendant insurance company and in which the insured or beneficiary is the plaintiff, upon a finding by the court that there was an unwarranted refusal by the defendant insurance company to pay the claim which constitutes the basis of such suit, instituted in a court of record, where the judgment for recovery of damages is ten thousand dollars ($10,000) or less, the presiding judge may, in his discretion, allow a reasonable attorney fee to the duly licensed attorney representing the litigant obtaining a judgment for damages in said suit, said attorney\u2019s fee to be taxed as a part of the court costs.\nN.C. Gen. Stat. \u00a7 6-21.1 (2001). \u201cThe allowance of attorney fees is in the discretion of the presiding judge, and may be reversed only for abuse of discretion.\u201d Washington, 132 N.C. App. at 351, 513 S.E.2d at 334. Accordingly, to overturn the trial court\u2019s decision, it must be shown that it is \u201cso arbitrary that it could not have been the result of a reasoned decision,\u201d or is \u201cmanifestly unsupported by reason.\u201d Davis v. Kelly, 147 N.C. App. 102, 106, 554 S.E.2d 402, 405 (quoting Blackmon v. Bumgardner, 135 N.C. App. 125, 130, 519 S.E.2d 335, 338 (1999)).\nThis discretion, however, is not unbridled. Washington, 132 N.C. App. at 351, 513 S.E.2d at 334. The trial court must consider the entire record, including: (1) settlement offers made before suit was filed; (2) offers of judgment made pursuant to Rule 68 of the North Carolina Rules of Civil Procedure, and whether the judgment finally obtained was more favorable than such offers; (3) whether the defendant unjustly exercised superior bargaining power; (4) in the case of an unwarranted refusal by an insurance company, the context in which the dispute arose; (5) the timing of the settlement offers; (6) the amounts of settlement offers as compared to the jury verdict; and (7) the whole record. Id. at 351, 513 S.E.2d at 334-35 (citations omitted). If the trial court determines that an award of attorney\u2019s fees is proper, it must also make factual findings concerning time and labor expended, the skill required, the customary fee for similar work, and the experience or ability of the attorney based on competent evidence. Porterfield v. Goldkuhle, 137 N.C. App. 376, 378, 528 S.E.2d 71, 73 (2000) (citations omitted). However, the trial court is not required to make detailed findings of fact for each factor. Tew v. West, 143 N.C. App. 534, 537, 546 S.E.2d 183, 185 (2001).\nHere, the trial court\u2019s order states \u201c[a]t the hearing for costs and attorney fees, the Court considered the following materials:\u201d\n1. Motion for Costs with exhibits submitted by Plaintiff;\n2. Bill of Costs and Attorney\u2019s Fees submitted by Plaintiff;\n3. Affidavit of Philip R. Miller, III, attorney for Plaintiff;\n4. Testimony of Mr. J.J. Hoyer, insurance adjuster for Liberty Mutual Insurance, the liability insurance carrier in this case, who appeared and testified at the hearing pursuant to a subpoena issued by counsel for Plaintiff;\n5. Exhibits tendered during the hearing;\n6. Legal arguments and authorities submitted by Mr. Miller; and\n7. Legal arguments and authorities submitted by Mr. Tillman.\nThe Court has reviewed all of the above-referenced materials as well as the relevant case law setting forth the elements that must be satisfied before ordering a defendant to pay costs and attorney\u2019s fees pursuant to North Carolina General Statute \u00a7 6-21.1. In particular, pursuant to Washington v. Horton. 132 N.C. App. 347, 513 S.E.2d 331 (1999), the Court has considered the following factors:\n1. Settlement offers made prior to the institution of the action;\n2. The offer of judgment in the amount of $3,671.00 made by the Defendant pursuant to Rule 68 on the 11th day of October, 2000 and whether the Judgment finally obtained was more favorable than such offer;\n3. Whether the Defendant exercised superior bargaining power;\n4. The timing of settlement offers as reflected and summarized in Exhibit 4 of Plaintiff\u2019s motion for costs and attorney fees and as occurred prior to the start of the jury trial when the undersigned Judge told both attorneys to confer with their respective clients in an effort to settle the case;\n5. The amounts of the settlement offers as compared to the jury verdict; and\n6. The whole record.\nIn a footnote following (6) above, the order provided:\nIn light of the fact that this was a case against an individual defendant and not an insurance company, the Court did not consider and therefore does not make any findings on the issue of whether there was an unwarranted refusal by the Defendant insurance company to pay the claim which constitutes the basis of such suit.\nThe trial court then made ten additional findings pertaining to the reasonableness of the award, the time and labor expended, the skill required, the customary fee for like work, and the experience or ability of plaintiffs counsel.\nDefendant correctly asserts that the trial court\u2019s mere recitation that it has considered all of the Washington factors, without additional fact finding, is inadequate and does not allow for meaningful appellate review. Thorpe v. Perry-Riddick, 144 N.C. App. 567, 572-73, 551 S.E.2d 852, 857 (2001). Here, however, the trial court incorporated by reference the parties\u2019 briefs and other evidence it had reviewed including exhibits, testimony, and an affidavit. It then specifically noted defendant\u2019s pre-judgment offer of $3671.00, the timing of the settlement offers \u201cas reflected and summarized in Exhibit 4,\u201d and the fact that the Washington factor regarding an insurance company\u2019s unwarranted refusal to pay a claim did not apply here.\nThe trial court did not specifically note each offer and the amount. However, the trial court did make reference to \u201coffers\u201d in its findings. Since there were essentially only two amounts offered, the one by Hoyer and the Offer of Judgment, which was one dollar more than the mediation offer, we hold the findings are adequate as to that factor.\nThe trial court also did not expressly find that the judgment finally obtained \u2014 damages plus costs plus attorney\u2019s fees \u2014 exceeded the Offer of Judgment. It did, however, state the factor was considered. The judgment finally obtained here totaled $9,179.01, which does not include prejudgment interest. Clearly, that exceeded defendant\u2019s top offer of $3,671.00.\nFinally, the trial court did not make a finding about whether the defendant unjustly exercised superior bargaining power. The lack of such a finding was in no way prejudicial to defendant. Accordingly, we reject this assignment of error.\nBy his second assignment of error, defendant contends the trial court abused its discretion in awarding attorney\u2019s fees where the jury verdict was $812.11. He argues that his initial offer eighteen days after the accident was nearly twice the jury verdict, and his mediation offer and offer immediately following mediation were approximately four and a half times the verdict. Defendant further emphasizes that plaintiffs settlement demands never fell below $4,000.\nWhile defendant\u2019s prejudgment offers were higher than the ultimate jury verdict, we can not say these facts render the trial court\u2019s award \u201ccompletely arbitrary\u201d or \u201cmanifestly unsupported by reason.\u201d Davis, 147 N.C. App. at 106, 554 S.E.2d at 405. The trial court considered both the amount of the verdict and \u201c[t]he timing of settlement offers as reflected and summarized in Exhibit 4 of Plaintiff\u2019s motion for costs and attorney fees and as occurred prior to the start of the jury trial when the undersigned Judge told both attorneys to confer with their respective clients in an effort to settle the case.\u201d Accordingly, the trial court acted within its authority under section 6-21.1 and we reject defendant\u2019s argument.\nBy his third assignment of error, defendant contends the trial court erred in awarding prejudgment interest in the amount of $81.20. We agree. This Court held in Washington that because there is no provision in section 6-21.1 for the assessment of interest, the trial court erred by including interest in its award of attorney\u2019s fees. Washington, 132 N.C. App. at 352, 513 S.E.2d at 335. Accordingly, we vacate that portion of the award charging interest.\nPlaintiff has also moved, in this Court, for attorney\u2019s fees incurred during the appellate process. The trial court does have discretion under section 6-21.1 to award such fees. Davis v. Kelly, 147 N.C. App. 102, 109, 554 S.E.2d 402, 406-07 (2001). We therefore remand this case to allow the trial court, upon plaintiff\u2019s motion and in its discretion, to make findings of fact relevant to a determination of reasonable attorney\u2019s fees for services performed on appeal and to enter an award consistent with those findings.\nAccordingly, we vacate that part of the trial court\u2019s order awarding prejudgment interest but otherwise affirm. We remand for consideration of attorney\u2019s fees incurred for the appeal.\nVACATED IN PART; AFFIRMED IN PART; REMANDED IN PART.\nJudges MARTIN and TYSON concur.", "type": "majority", "author": "THOMAS, Judge." } ], "attorneys": [ "Blanchard, Jenkins, Miller & Lewis, PA, by Philip R. Miller, III, for plaintiff-appellee.", "Granfill, Sumner & Hartzog, L.L.P, by Jesse M. Tillman, III, for defendant-appellant." ], "corrections": "", "head_matter": "JOSEPH ALAN FURMICK, Plaintiff v. GREGORY R. MINER, Defendant\nNo. COA01-1346\n(Filed 3 December 2002)\n1. Costs\u2014 attorney fees \u2014 findings\u2014sufficiency\nThe trial court\u2019s findings in a personal injury action were sufficient to support an award of attorney fees under N.C.G.S. \u00a7 6-21.1 where the findings sufficiently referred to certain factors without being specific.\n2. Costs\u2014 attorney fees \u2014 offers higher than verdict\nThe trial court did not abuse its discretion by awarding attorney fees to plaintiff where defendant\u2019s prejudgment offers were higher than the jury verdict, but the court considered both the amount of the verdict and the timing of the settlement offers.\nB. Costs\u2014 attorney fees \u2014 prejudgment interest\nThere is no provision in N.C.G.S. \u00a7 6-21.1 for the assessment of prejudgment interest and the trial court erred in a personal injury action by including prejudgment interest in an award of attorney fees.\n4. Costs\u2014 attorney fees \u2014 appellate services\nThe trial court has discretion under N.C.G.S. \u00a7 6-21.1 to award attorney fees for services performed on appeal, and the case was remanded for findings and an award.\nAppeal by defendant from judgment entered 17 May 2001 by Judge A. Leon Stanback, Jr. in Wake County Superior Court. Heard in the Court of Appeals 22 August 2002.\nBlanchard, Jenkins, Miller & Lewis, PA, by Philip R. Miller, III, for plaintiff-appellee.\nGranfill, Sumner & Hartzog, L.L.P, by Jesse M. Tillman, III, for defendant-appellant." }, "file_name": "0460-01", "first_page_order": 488, "last_page_order": 494 }