{ "id": 9189720, "name": "BRENDA MACON PHILLIPS, Plaintiff v. JESSE CORNELIEUS BRACKETT, Defendant; BRENDA PHILLIPS, Plaintiff v. JESSE CORNELIEUS BRACKETT, Defendant", "name_abbreviation": "Phillips v. Brackett", "decision_date": "2003-02-04", "docket_number": "No. COA02-385", "first_page": "76", "last_page": "82", "citations": [ { "type": "official", "cite": "156 N.C. App. 76" } ], "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": "404 S.E.2d 359", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "pin_cites": [ { "page": "363", "parenthetical": "where the trial court was not required to make findings allocating the time spent on the case between work required to defend against the plaintiff's claim and that required to forward the defendant's counterclaim" } ], "opinion_index": 0 }, { "cite": "103 N.C. App. 52", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8519458 ], "year": 1991, "pin_cites": [ { "page": "59", "parenthetical": "where the trial court was not required to make findings allocating the time spent on the case between work required to defend against the plaintiff's claim and that required to forward the defendant's counterclaim" } ], "opinion_index": 0, "case_paths": [ "/nc-app/103/0052-01" ] }, { "cite": "551 S.E.2d 852", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "pin_cites": [ { "page": "856" } ], "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" } ], "opinion_index": 0, "case_paths": [ "/nc-app/144/0567-01" ] }, { "cite": "501 S.E.2d 701", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "pin_cites": [ { "page": "704" } ], "opinion_index": 0 }, { "cite": "129 N.C. App. 801", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11653191 ], "year": 1998, "pin_cites": [ { "page": "806" } ], "opinion_index": 0, "case_paths": [ "/nc-app/129/0801-01" ] }, { "cite": "550 S.E.2d 830", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2001, "pin_cites": [ { "page": "834-36", "parenthetical": "finding no abuse of discretion in trial court's award of attorney's fees where parties conceded there had been no unjust exercise of superior bargaining power" } ], "opinion_index": 0 }, { "cite": "145 N.C. App. 60", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11435464 ], "year": 2001, "pin_cites": [ { "page": "66-69", "parenthetical": "finding no abuse of discretion in trial court's award of attorney's fees where parties conceded there had been no unjust exercise of superior bargaining power" } ], "opinion_index": 0, "case_paths": [ "/nc-app/145/0060-01" ] }, { "cite": "513 S.E.2d 331", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "pin_cites": [ { "page": "334-35" } ], "opinion_index": 0 }, { "cite": "132 N.C. App. 347", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11237900 ], "year": 1999, "pin_cites": [ { "page": "351" } ], "opinion_index": 0, "case_paths": [ "/nc-app/132/0347-01" ] }, { "cite": "296 S.E.2d 459", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "opinion_index": 0 }, { "cite": "307 N.C. 93", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560701 ], "year": 1982, "opinion_index": 0, "case_paths": [ "/nc/307/0093-01" ] }, { "cite": "290 S.E.2d 397", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "pin_cites": [ { "page": "399" } ], "opinion_index": 0 }, { "cite": "56 N.C. App. 792", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524531 ], "year": 1982, "pin_cites": [ { "page": "796" } ], "opinion_index": 0, "case_paths": [ "/nc-app/56/0792-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 6-21.1", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "opinion_index": 0 } ], "analysis": { "cardinality": 644, "char_count": 14933, "ocr_confidence": 0.751, "pagerank": { "raw": 1.1496828645007286e-07, "percentile": 0.5810894766451635 }, "sha256": "be9da566cb73c96d713b2660cf5ea4cbd8032edb8895ad506042476fc70a8836", "simhash": "1:0b2ade667fc8cf70", "word_count": 2336 }, "last_updated": "2023-07-14T21:05:49.893248+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges WYNN and GEER concur." ], "parties": [ "BRENDA MACON PHILLIPS, Plaintiff v. JESSE CORNELIEUS BRACKETT, Defendant BRENDA PHILLIPS, Plaintiff v. JESSE CORNELIEUS BRACKETT, Defendant" ], "opinions": [ { "text": "BRYANT, Judge.\nJesse Cornelieus Brackett (Defendant) appeals a judgment filed 24 August 2001 awarding Brenda Macon Phillips (Plaintiff) damages and attorney\u2019s fees and a concurrent order denying Defendant\u2019s motions for relief from order and for reconsideration. We affirm.\nOn 3 March 2000, Plaintiff filed a complaint seeking \u201can amount in excess of $10,000\u201d in damages for Defendant\u2019s negligent driving resulting in a collision with Plaintiff\u2019s vehicle. In his answer filed 3 April 2000, Defendant admitted negligence but denied Plaintiff\u2019s allegations of injuries, medical expenses, and lost income. Following trial, the jury entered a verdict for Plaintiff in the amount of $3,829.98 as compensation for her personal injuries. Plaintiff moved for a new trial. Before the trial court ruled on the motion, Plaintiff suggested the trial court first hear her motion for attorney\u2019s fees as this might alleviate the need to move for a new trial. The trial court inquired whether Defendant had any objection to this, and Defendant answered he did not. In support of her motion for attorney\u2019s fees, Plaintiff submitted affidavits from her counsel and other attorneys familiar with Defendant\u2019s insurer. The affidavits outlined the work performed by Plaintiff\u2019s counsel, the hours expended, and his customary rate. They also described: (1) the actions and posture of Defendant\u2019s insurer and counsel in this case, (2) Defendant\u2019s insurer\u2019s general claims practices, (3) observations associated with Defendant\u2019s insurer with respect to other claims, including its tendency to litigate small claims to the appellate stage, and (4) web sites dedicated to alleged abuses by Defendant\u2019s insurer.\nIn a judgment filed 24 August 2001, the trial court found in pertinent part:\n1. This is a personal injury action arising out of a vehicular collision in which ... Defendant admittedly failed to reduce the speed of his vehicle to the extent necessary to avoid contact with the rear of the vehicle being operated by . . . Plaintiff while Plaintiff\u2019s vehicle was stopped pursuant to a duly erected traffic control signal at an intersection on March 30, 1998.\n2. [Plaintiff]... and her husband ... have been clients of the firm of Carruthers & Roth, P.A. for many years.\n4. [Plaintiffs counsel] first met with [Plaintiff] on April 28, 1998 in connection with her claims arising out of the collision.\n5. After meeting with [Plaintiff], Carruthers & Roth, P.A. obtained copies of medical records on [Plaintiff] from all treating medical providers ....\n7. After obtaining medical records and bills, [Plaintiff\u2019s counsel] prepared a demand letter summarizing the liability and damages information on [Plaintiff] and forwarded this letter on August 11, 1999 to [Defendant\u2019s insurer].\n8. The initial demand letter submitted on behalf of [Plaintiff] was $38,750.00.\n9. On October 28, 1999, in response to requests from [Defendant\u2019s insurer], [Plaintiff\u2019s counsel] forwarded... copies of W-2 forms for [Plaintiff] for 1996, 1997 and 1998, and requested an offer from [Defendant\u2019s insurer] in settlement of [Plaintiff\u2019s] claim.\n10. Plaintiff received no offer from [Defendant\u2019s insurer] on [her] claim and filed suit in Guilford County Superior Court on March 3, 2000.\n11. During the course of handling this case, Carruthers & Roth responded to various discovery requests from [Defendant\u2019s insurer] and, on February 20, 2001, defended the depositions of [Plaintiff] and her husband . . . taken by counsel retained by [Defendant\u2019s insurer] to represent. . . Defendant.\n13. Mediation of this matter was held on April 5, 2001.\n14. During the period of approximately three years prior to the mediation on April 5, 2001, neither [Defendant\u2019s insurer] nor counsel retained by [Defendant\u2019s insurer] made any offers of settlement on [Plaintiff\u2019s] claim, despite admitting that [Defendant] was negligent.\n15. During mediation . . . [Defendant\u2019s insurer\u2019s] adjuster and counsel retained by [Defendant\u2019s insurer] communicated, for the first time, an offer of $6,000.00 to settle [Plaintiff\u2019s] claim. Counsel for [Plaintiff] understood that the offer was nonnegotiable.\n16. On April 5, 2001, counsel retained by [Defendant\u2019s insurer] to defend ... Defendant filed a pleading entitled \u201cOffer of Judgment\u201d which stated that. . . Defendant \u201coffers to allow Judgment to be taken against him in the amount of $6,001.00, which amount includes all attorneys fees and costs of court accrued to the date of the making of this offer and interest as may be allowed pursuant to G.S. \u00a7 24-5.\u201d\n17. On May 2, 2001, counsel for . . . Plaintiff communicated to counsel for... Defendant an offer by... Plaintiff to accept a total of $9,000.00 in settlement of her claim.\n18. Counsel retained by [Defendant\u2019s insurer] to represent . . . Defendant made no counter]-]offers.\nThe trial court entered findings with respect to the hours expended by Plaintiff\u2019s counsel and his staff, his hourly rate, and the customary fees for such work. The trial court also made note of the affidavit assertions regarding Defendant\u2019s insurer\u2019s claims practices and concluded Defendant\u2019s insurer had engaged in the unjust exercise of superior bargaining power in this case. The trial court then entered judgment for compensatory damages in the amount of $3,829.98 and awarded Plaintiff $15,231.50 in attorney\u2019s fees.\nThe issues are whether: (I) the trial court\u2019s award of attorney\u2019s fees contravened public policy and the purpose of N.C. Gen. Stat. \u00a7 6-21.1; (II) Defendant preserved for appeal the question whether the trial court\u2019s ruling on Plaintiff\u2019s motion for attorney\u2019s fees was an improper advisory opinion; (III) Defendant waived any assignment of error with respect to the trial court\u2019s reliance on affidavit assertions relating to Defendant\u2019s insurer\u2019s general or past claims practices; (IV) the award of attorney\u2019s fees punished proper case investigation and discovery; and (V) the trial court made sufficient findings as to the time and labor expended by Plaintiffs counsel in this case.\nI\nDefendant first contends the trial court\u2019s award of attorney\u2019s fees contravened public policy and the purpose of section 6-21.1. Section 6-21.1 provides:\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....\nN.C.G.S. \u00a7 6-21.1 (2001). Defendant argues that because Plaintiff initially demanded $38,750.00 in compensation, Plaintiff\u2019s claim does not fall within the purview of this section and the trial court should therefore have denied her request for attorney\u2019s fees. We disagree. It is \u201c[t]he amount of the judgment obtained, not the amount of the judgment sought, [that] governs applicability of the statute.\u201d Purdy v. Brown, 56 N.C. App. 792, 796, 290 S.E.2d 397, 399, rev\u2019d on other grounds, 307 N.C. 93, 296 S.E.2d 459 (1982). The judgment for recovery of damages obtained in this case was $3,829.98 and thus within the range that invokes operation of the statute. Consequently, this assignment of error is overruled.\nII\nDefendant next argues the trial court\u2019s ruling on Plaintiff\u2019s motion for attorney\u2019s fees was an improper advisory opinion that served to guarantee attorney\u2019s fees. Defendant, however, did not object to the trial court\u2019s ruling on the motion for attorney\u2019s fees prior to ruling on Plaintiff\u2019s initial motion for a new trial. Accordingly, Defendant failed to preserve this issue for appellate review. See N.C.R. App. P. 10(b)(1) (\u201c[i]n order to preserve a question for appellate review, a party must have presented to the trial court a timely request, objection or motion\u201d).\nIII\nDefendant further asserts the trial court\u2019s reliance on the affidavit assertions relating to Defendant\u2019s insurer\u2019s general claims practices amounted to an abuse of discretion. We first note that Defendant did not cite any relevant authority in his brief to this Court in support of his argument and thereby has waived appellate review of this issue. See N.C.R. App. P. 28(b)(6). Moreover, even assuming the trial court erred in relying on the affidavit assertions in question, such error was harmless. Although the trial court, in order to award attorney\u2019s fees, needed to make findings with respect to the factors listed in Washington v. Horton, 132 N.C. App. 347, 351, 513 S.E.2d 331, 334-35 (1999), including any exercise of superior bargaining power, the existence of such a use of bargaining power is not required for a fee award, see Robinson v. Shue, 145 N.C. App. 60, 66-69, 550 S.E.2d 830, 834-36 (2001) (finding no abuse of discretion in trial court\u2019s award of attorney\u2019s fees where parties conceded there had been no unjust exercise of superior bargaining power). As long as the trial court\u2019s consideration of the other relevant Washington factors justifies an award of attorney\u2019s fees under section 6-21.1, there is no .abuse of discretion. See id. In this case, we are satisfied with the trial court\u2019s remaining findings on the Washington factors and find no abuse of discretion.\nIV\nDefendant also contends the award of attorney\u2019s fees punished proper case investigation and discovery by Defendant\u2019s insurer. Specifically, Defendant argues Plaintiff\u2019s failure to provide documentary support for her claim of lost wages, which was part of her overall claim for damages, was the reason Defendant was unable to make any settlement offers prior to mediation. While Defendant\u2019s argument carries some weight as far as the disputed lost wage claim, it does not explain the absence of any settlement offers with respect to damages for which Defendant did receive timely documentary support, such as Plaintiff\u2019s medical expenses. This Court has previously held that the trial court properly awarded attorney\u2019s fees pursuant to section 6-21.1 where a \u201cdefendant\u2019s refusal to pay at least the undisputed amount of [the] loss to [the] plaintiff was unwarranted.\u201d PHC, Inc. v. N.C. Farm Bureau Mut. Ins. Co., 129 N.C. App. 801, 806, 501 S.E.2d 701, 704 (1998). As Defendant in this case offered no justification for his failure to make a settlement offer prior to mediation reflecting the damages for which there was documentary support, the trial court did not abuse its discretion in noting Defendant\u2019s lack of settlement offers and awarding Plaintiff attorney\u2019s fees in part on this basis.\nV\nIn his last assignment of error, Defendant argues the trial court made insufficient findings as to the time and labor expended by Plaintiff\u2019s counsel in this case.\nWe agree with Defendant that \u201c[i]f the trial court elects to award attorney fees, it must also enter findings of fact as to the time and labor expended.\u201d Thorpe v. Perry-Riddick, 144 N.C. App. 567, 572, 551 S.E.2d 852, 856 (2001). In this case, the trial court\u2019s findings reflect the various tasks performed by Plaintiff\u2019s counsel during the course of his representation of Plaintiff\u2019s claim. These tasks include obtaining and forwarding Plaintiff\u2019s medical records, drafting a demand letter, corresponding with Defendant\u2019s insurer and his counsel, replying to interrogatories, defending depositions, participating in mediation, and going to trial. The trial court then listed the hours spent by Plaintiff\u2019s counsel and his staff with respect to this matter. Although the trial court made the requisite findings as to time and labor, Defendant contends the trial court was further obligated to specifically break down the number of hours allocated to each activity. Such detail, however, is not required to support an award of attorney\u2019s fees. See, e.g., Mickens v. Robinson, 103 N.C. App. 52, 59, 404 S.E.2d 359, 363 (1991) (where the trial court was not required to make findings allocating the time spent on the case between work required to defend against the plaintiff\u2019s claim and that required to forward the defendant\u2019s counterclaim). As the trial court\u2019s findings were sufficient, there was no abuse of discretion in awarding Plaintiff the requested attorney\u2019s fees.\nAffirmed.\nJudges WYNN and GEER concur.\n. We have carefully reviewed the remaining issues raised by Defendant in his brief to this Court and find them to be without merit.", "type": "majority", "author": "BRYANT, Judge." } ], "attorneys": [ "Garruthers & Roth, P.A., by Kenneth R. Keller and J. Patrick Haywood, for plaintiff appellee.", "Teague, Rotenstreich & Stanaland, L.L.P., by Stephen G. Teague, for defendant appellant." ], "corrections": "", "head_matter": "BRENDA MACON PHILLIPS, Plaintiff v. JESSE CORNELIEUS BRACKETT, Defendant BRENDA PHILLIPS, Plaintiff v. JESSE CORNELIEUS BRACKETT, Defendant\nNo. COA02-385\n(Filed 4 February 2003)\n1. Costs\u2014 attorney fees \u2014 personal injury action \u2014 judgment amount controls\nThe trial court did not err by awarding attorney fees in a personal injury action where the plaintiff initially demanded $38,750 in compensation, but the judgment was for $3,829 in damages and was thus within the range that invokes N.C.G.S. \u00a7 6-21.1.\n2. Appeal and Error\u2014 preservation of issues \u2014 failure to object at trial\nDefendant did not object at trial and did not preserve for appeal its contention that a ruling on plaintiff\u2019s motion for attorney fees was an improper advisory opinion because that ruling came before a ruling on plaintiff\u2019s prior motion for a new trial.\n3. Costs\u2014 attorney fees \u2014 personal injury action \u2014 findings\nAny error in the trial court\u2019s reliance on affidavits concerning defendant-insurer\u2019s claims practices when awarding attorney fees for plaintiff was harmless because the findings on the remaining factors from Washington v. Horton were satisfactory.\n4. Costs\u2014 attorney fees \u2014 personal injury claim \u2014 lack of settlement offers\nThe trial court did not abuse its discretion in a personal injury action by awarding plaintiff attorney fees based in part on lack of settlement offers, even though plaintiff had not provided documentation for her lost wage claim, because there were no offers for the claims for which defendant received timely support.\n5. Costs \u2014 attorney fees \u2014 findings\u2014time and labor\nThe trial court\u2019s findings concerning the time and labor expended by plaintiff\u2019s counsel in a personal injury action were sufficient to support the award of attorney fees where the findings reflected the tasks performed and the hours spent. The court was not obligated to break down the number of hours allocated to each activity.\nAppeal by defendant from judgment filed 24 August 2001 and order filed 24 August 2001 by Judge A. Moses Massey in Guilford County Superior Court. Heard in the Court of Appeals 7 January 2003.\nGarruthers & Roth, P.A., by Kenneth R. Keller and J. Patrick Haywood, for plaintiff appellee.\nTeague, Rotenstreich & Stanaland, L.L.P., by Stephen G. Teague, for defendant appellant." }, "file_name": "0076-01", "first_page_order": 106, "last_page_order": 112 }