{
  "id": 8956944,
  "name": "FANNY LEE BROWN, Individually And as Guardian Ad Litem for SCOTTIE NOBLES, a minor, Plaintiffs v. FLOYD TRAVIS MILLSAP, Defendant",
  "name_abbreviation": "Brown v. Millsap",
  "decision_date": "2003-11-18",
  "docket_number": "No. COA02-1696",
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    "judges": [
      "Judge LEVINSON concurs.",
      "Judge TYSON dissents in a separate opinion."
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    "parties": [
      "FANNY LEE BROWN, Individually And as Guardian Ad Litem for SCOTTIE NOBLES, a minor, Plaintiffs v. FLOYD TRAVIS MILLSAP, Defendant"
    ],
    "opinions": [
      {
        "text": "WYNN, Judge.\nThis appeal arises from the trial court\u2019s determination that Plaintiff, Scottie Nobles, was not entitled to recover attorneys\u2019 fees under N.C. Gen. Stat. \u00a7 6-21.1 (2001) because the judgment obtained exceeded $10,000.00. Plaintiff contends the trial court erroneously included the costs and prejudgment interest in its calculation of the \u201cjudgment obtained.\u201d For the reasons stated in Sowell v. Clark, 151 N.C. App. 723, 567 S.E.2d 200 (2002), we agree with Plaintiff.\nThe underlying facts show that Plaintiff brought a personal injury action and obtained a jury verdict of $9,500.00. Thereafter, Plaintiff moved the trial court to award court costs in the amount of $435.00 and reasonable attorney\u2019s fees, pursuant to N.C. Gen. Stat. \u00a7 6-21.1, in the amount of $3,500.00. After granting Plaintiffs motion for court costs and awarding prejudgment interest, the trial court concluded that it lacked authority to award plaintiff reasonable attorney\u2019s fees because the jury verdict plus court costs and prejudgment interest exceeded $10,000.00. Plaintiff appeals.\nOn appeal, Plaintiff contends the trial court erred by adding court costs of $435.00 and prejudgment interest of $669.76 to the jury\u2019s verdict of $9,500.00 to find that the judgment obtained exceeded the $10,000.00 limit for awarding attorney\u2019s fees under N.C. Gen. Stat. \u00a7 6-21.1. We agree.\nUnder N.C. Gen. Stat. \u00a7 6-21.1 (2001), in certain personal injury suits \u201cwhere 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 . . . said attorney\u2019s fee to be taxed as a part of the court costs.\u201d In Sowell v. Clark, 151 N.C. App. 723, 567 S.E.2d 200 (2002), this Court stated:\nDamages and costs are legally separate items. Damages comprise compensation for injuries through the negligence of another. Costs are the expenses a party incurs for prosecuting or defending an action.\nThus, this Court considered only the amount of the jury\u2019s verdict for damages in determining whether the \u201cjudgment for recovery of damages\u201d exceeded $10,000. See also Boykin v. Morrison, 148 N.C. App. 98, 557 S.E.2d 583 (2001) (stating \u201cwe hold that the word \u2018damages\u2019 as used in G.S. \u00a7 6-21.1 applies only to the compensatory damage amounts when determining whether the judgment amount is equal to or less than $10,000); Purdy v. Brown, 56 N.C. App. 792, 290 S.E.2d 397, rev\u2019d on other grounds, 307 N.C. 93, 296 S.E.2d 459 (1982) (employing jury verdict amount in determination that judgment for recovery of damages was below amount specified in N.C. Gen. Stat. \u00a7 6-21.1, which at that time was $5,000). Accordingly, we conclude the trial court erroneously concluded it \u201cmust add to the jury verdict the costs reasonably expended by the plaintiff . . . and [the] prejudgment interest\u201d in order \u201cto determine if the judgment finally obtained for recovery of damages is $10,000 or less.\u201d\nRemanded for a new hearing.\nJudge LEVINSON concurs.\nJudge TYSON dissents in a separate opinion.",
        "type": "majority",
        "author": "WYNN, Judge."
      },
      {
        "text": "TYSON, Judge\ndissenting.\nI respectfully dissent from the majority\u2019s opinion.\nI. Issue\nThe sole issue before this Court is whether the court erred by concluding that it lacked authority under N.C. Gen. Stat. \u00a7 6-21.1 to award reasonable attorney\u2019s fees to plaintiff.\nTT. N.C. Gen. Stat. \u00a7 6-21.1\nPlaintiff contends the trial court erred by adding court costs of $435.00 and prejudgment interest of $669.76 to the jury\u2019s verdict of $9,500.00 to determine if the $10,000.00 amount of N.C. Gen. Stat. \u00a7 6-21.1 was exceeded.\n\u201cThe general rule in this State is that, in the absence of statutory authority therefor, a court may not include an allowance of attorneys\u2019 fees as part of the costs recoverable by the successful party to an action or proceeding.\u201d Boykin v. Morrison, 148 N.C. App. 98, 104, 557 S.E.2d 583, 586 (2001) (quoting In re King, 281 N.C. 533, 540, 189 S.E.2d 158, 162 (1972)) (citations omitted). N.C. Gen. Stat. \u00a7 6-21.1 is an exception to this general rule. Id. The statute provides:\nIn any personal injury or property damage 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) (emphasis supplied).\nOur Supreme Court has held that:\nThe obvious purpose of this statute is to provide relief for a person who has sustained injury or property damage in an amount so small that, if he must pay his attorney out of his recovery, he may well conclude that is not economically feasible to bring suit on his claim. In such a situation the Legislature apparently concluded that the defendant, though at fault, would have an unjustly superior bargaining power in settlement negotiations.\nHicks v. Albertson, 284 N.C. 236, 239, 200 S.E.2d 40, 42 (1973). \u201cThis statute, being remedial, should be construed liberally to accomplish the purpose of the Legislature and to bring within it all cases fairly falling within its intended scope.\u201d Id. Once the court determines that the \u201cjudgment for recovery of damages\u201d is $10,000.00 or less, the decision to award a party reasonable attorney\u2019s fees rests within the judge\u2019s discretion. N.C. Gen. Stat. \u00a7 6-21.1 (2001). Attorney\u2019s fees are not automatically awarded. Id.\nHere, the jury returned a verdict for compensatory damages in the amount of $9,500.00. The trial court entered a judgment in favor of plaintiff for the amount of $9,500.00 plus prejudgment interest pursuant to N.C. Gen. Stat. \u00a7 24-5 (2001). The court, upon plaintiff\u2019s motion and in its discretion, additionally awarded plaintiff $435.00 in court costs. The trial court added both the court costs and the prejudgment interest to the jury\u2019s verdict of $9,500.00 to determine if the \u201cjudgment for recovery of damages\u201d was $10,000.00 or less under the terms of N.C. Gen. Stat. \u00a7 6-21.1.\nThe trial court found that \u201cthe court must add to the jury verdict the costs reasonably expended by the plaintiff in such lawsuit which are to be taxed against the defendant and must also add thereto prejudgment interest at 8% per annum applied to the jury\u2019s verdict.\u201d The trial court found, after adding court costs and prejudgment interest, that the \u201cjudgment for recovery of damages\u201d equaled $10,604.76. The trial court reasoned that since the \u201cjudgment for recovery of damages\u201d exceeded the sum of $10,000.00, the court lacked authority under N.C. Gen. Stat. \u00a7 6-21.1 to consider plaintiff\u2019s motion for attorney\u2019s fees and denied plaintiff\u2019s motion without a hearing on the merits.\nCourt costs are not automatically awarded to or added to a successful party\u2019s claim. N.C. Gen. Stat. \u00a7 6-20 (2001) states that \u201ccosts may be allowed or not, in the discretion of the court, unless otherwise provided by law.\u201d \u201c[C]osts ... are entirely creatures of legislation, and without this they do not exist.\u201d City of Charlotte v. McNeely, 281 N.C. 684, 691, 190 S.E.2d 179, 185 (1972) (quoting Clerk\u2019s Office v. Commissioners, 121 N.C. 29, 30, 27 S.E. 1003 (1897)). \u201cThe court\u2019s power to tax costs is entirely dependent upon statutory authorization.\u201d State v. Johnson, 282 N.C. 1, 27, 191 S.E.2d 641, 658 (1972) (citing City of Charlotte, 281 N.C. at 691, 190 S.E.2d at 185). \u201cAn award of costs is an exercise of statutory authority; if the statute is misinterpreted, the judgment is erroneous.\u201d City of Charlotte, 281 N.C. at 691, 190 S.E.2d at 185 (quoting Morris, Solicitor v. Shinn, 262 N.C. 88, 89, 136 S.E.2d 244, 245 (1964)).\nPrejudgment interest, however, is automatically awarded to the prevailing party\u2019s claim. N.C. Gen. Stat. \u00a7 24-5 (2001) states:\n(b) [i]n an action other than contract, any portion of a money judgment designated by the fact finder as compensatory damages bears interest from the date the action is commenced until the judgment is satisfied. Any other portion of a money judgment in an action other than contract, except the costs, bears interest from the date of entry of judgment until the judgment is satisfied. Interest on an award in an action other than contract shall be at the legal rate.\nUnder this statute, the trial court has no discretion whether to award prejudgment interest to the prevailing party\u2019s award. Id.\nThe majority\u2019s opinion relies on Sowell v. Clark to support their holding that the trial court erred in adding prejudgment interest and court costs to the jury verdict. 151 N.C. App. 723, 567 S.E.2d 200 (2002). That case is distinguishable from the facts at bar. In Sowell, the jury awarded plaintiff damages in the amount of $4,950.00. Id. at 725, 567 S.E.2d at 201. The trial court then awarded plaintiff $6,180.23 in court costs and prejudgment interest. Id. at 728, 567 S.E.2d at 203. I agree with the holding in Sowell, that costs and damages are \u201clegally separate items.\u201d Id. Prejudgment interest and costs are also legally separate items.\nN.C. Gen. Stat. \u00a7 24-5 (2001) states that the \u201cportion of a money judgment designated by the fact finder as compensatory damages bears interest. . . .\u201d Our Supreme Court has held that \u201cthe probable intent of the prejudgment interest statute [N.C. Gen. Stat. \u00a7 24-5] is threefold: (1) to compensate plaintiffs for loss of the use of their money, (2) to prevent unjust enrichment of the defendant by having money he should not have, and (3) to promote settlement.\u201d Brown v. Flowe, 349 N.C. 520, 524, 507 S.E.2d 894, 896 (1998) (emphasis supplied); See Powe v. Odell, 312 N.C. 410, 413, 322 S.E.2d 762, 764 (1984) (interpreting the 1983 version of N.C. Gen.- Stat. \u00a7 24-5). Prejudgment interest is automatically added to a successful party\u2019s award for damages to compensate the prevailing party. It must also be added to the jury\u2019s verdict to determine the final amount of the \u201cjudgment for recovery of damages\u201d under N.C. Gen. Stat. \u00a7 6-21.1. See Boykin, 148 N.C. App. at 106, 557 S.E.2d at 587 (\u201cWe hold that the word \u2018damages\u2019 as used in G.S. \u00a7 6-21.1 applies only to the compensatory damage amounts when determining whether the judgment amount is equal to or less than $10,000.\u201d). If the automatic addition of prejudgment interest causes the \u201cjudgment for recovery of damages\u201d to exceed the $10,000.00 maximum amount under N.C. Gen. Stat. \u00a7 6-21.1, the court is without authority to hear a party\u2019s motion for attorney\u2019s fees.\nThe addition of prejudgment interest in Sowell, unlike at bar, would not have caused the \u201cjudgment for recovery of damages\u201d to exceed the $10,000.00 statutory maximum. The trial court\u2019s error in Sowell in not adding the prejudgment interest as part of the \u201cjudgment for recovery of damages\u201d was harmless.\nSince statutory authority and case law hold court costs to be discretionary, the trial court at bar erred in adding the court costs of $435.00 to the jury award of $9,500.00 to determine whether the $10,000.00 maximum was exceeded. Prejudgment interest is automatically added to plaintiff\u2019s award to compensate a prevailing party. The trial court was required to add the amount of $669.76 to the jury\u2019s award of $9,500.00 to determine whether the $10,000.00 statutory maximum was exceeded. Although the trial court erred by adding discretionary court costs to the jury\u2019s verdict, this error is harmless. The addition of $669.76 in prejudgment interest to the jury\u2019s award of $9,500.00, less $435.00 court costs, equals $10,169.76, which exceeds the statutory maximum. Unlike Sowell, the automatic addition of prejudgment interest causes the \u201cjudgment for recovery of damages\u201d to exceed the statutory maximum of $10,000.00.\nIII. Conclusion\nThe trial court erred by adding discretionary court costs of $435.00 to the jury\u2019s award of $9,500.00 with interest to determine whether plaintiff was entitled to be heard on its motion for attorney\u2019s fees under N.C. Gen. Stat. \u00a7 6-21.1. This error is harmless because the trial court was required to automatically add prejudgment interest of $669.76 to the jury\u2019s verdict of $9,500.00. The \u201cjudgment for recovery of damages\u201d exceeded the statutory maximum of $10,000.00.1 would affirm the trial court\u2019s ruling. I respectfully dissent.",
        "type": "dissent",
        "author": "TYSON, Judge"
      }
    ],
    "attorneys": [
      "T. Craig Wright for plaintiff-appellant.",
      "Russ, Worth, Cheatwood & Hancox, by Philip H. Cheatwood, for defendant-appellee."
    ],
    "corrections": "",
    "head_matter": "FANNY LEE BROWN, Individually And as Guardian Ad Litem for SCOTTIE NOBLES, a minor, Plaintiffs v. FLOYD TRAVIS MILLSAP, Defendant\nNo. COA02-1696\n(Filed 18 November 2003)\nCosts\u2014 attorney fees \u2014 personal injury \u2014 court costs \u2014 prejudgment interest\nThe trial court erred in a personal injury action by determining that plaintiff was not entitled to recover attorney fees under N.C.G.S. \u00a7 6-21.1 based on its conclusion that the judgment exceeded $10,000 after including the costs and prejudgment interest in its calculation of the judgment, and the case is remanded for a new hearing, because: (1) damages and costs are legally separate items; and (2) damages, as used in N.C.G.S. \u00a7 6-21.1, applies only to the compensatory damage amounts when determining whether the judgment amount is equal to or less than $10,000.\n' Judge Tyson dissenting.\nAppeal by plaintiff from judgment entered 28 September 2002, nunc pro tunc for 19 September 2002, by Judge Wiley F. Bowen, Superior Court, Columbus County. Heard in the Court of Appeals 7 October 2003.\nT. Craig Wright for plaintiff-appellant.\nRuss, Worth, Cheatwood & Hancox, by Philip H. Cheatwood, for defendant-appellee."
  },
  "file_name": "0282-01",
  "first_page_order": 312,
  "last_page_order": 317
}