{ "id": 8960404, "name": "GLENN I. HODGE, JR., Plaintiff v. NORTH CAROLINA DEPARTMENT OF TRANSPORTATION and NORRIS TOLSON, Secretary of the North Carolina Department of Transportation, Defendants", "name_abbreviation": "Hodge v. North Carolina Department of Transportation", "decision_date": "2003-12-16", "docket_number": "No. COA03-51", "first_page": "726", "last_page": "730", "citations": [ { "type": "official", "cite": "161 N.C. App. 726" } ], "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": "370 S.E.2d 247", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "opinion_index": 0 }, { "cite": "322 N.C. 610", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2516910, 2513367 ], "year": 1988, "opinion_index": 0, "case_paths": [ "/nc/322/0610-01", "/nc/322/0610-02" ] }, { "cite": "367 S.E.2d 655", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "page": "658" } ], "opinion_index": 0 }, { "cite": "322 N.C. 271", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2516033 ], "year": 1988, "pin_cites": [ { "page": "276" } ], "opinion_index": 0, "case_paths": [ "/nc/322/0271-01" ] }, { "cite": "441 S.E.2d 135", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "335 N.C. 566", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2532352, 2526477, 2532206, 2529831 ], "year": 1994, "pin_cites": [ { "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/335/0566-03", "/nc/335/0566-01", "/nc/335/0566-04", "/nc/335/0566-02" ] }, { "cite": "434 S.E.2d 229", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1993, "pin_cites": [ { "page": "232" }, { "page": "232", "parenthetical": "quoting Black's Law Dictionary 630 (6th ed. 1990)" }, { "page": "232" } ], "opinion_index": 0 }, { "cite": "111 N.C. App. 815", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524178 ], "weight": 2, "year": 1993, "pin_cites": [ { "page": "818" }, { "page": "818" } ], "opinion_index": 0, "case_paths": [ "/nc-app/111/0815-01" ] }, { "cite": "499 S.E.2d 187", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "opinion_index": 0 }, { "cite": "347 N.C. 602", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 551221 ], "year": 1998, "opinion_index": 0, "case_paths": [ "/nc/347/0602-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 126-5", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "pin_cites": [ { "page": "(d)" } ], "opinion_index": 0 }, { "cite": "535 S.E.2d 32", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2000, "pin_cites": [ { "parenthetical": "per curiam" } ], "opinion_index": 0 }, { "cite": "352 N.C. 664", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 684960 ], "weight": 2, "year": 2000, "pin_cites": [ { "parenthetical": "per curiam" } ], "opinion_index": 0, "case_paths": [ "/nc/352/0664-01" ] }, { "cite": "528 S.E.2d 22", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2000, "opinion_index": 0 }, { "cite": "137 N.C. App. 247", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11092856 ], "weight": 2, "year": 2000, "opinion_index": 0, "case_paths": [ "/nc-app/137/0247-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 6-19.1", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 3, "year": 2003, "pin_cites": [ { "parenthetical": "emphasis added" } ], "opinion_index": 0 } ], "analysis": { "cardinality": 490, "char_count": 8906, "ocr_confidence": 0.773, "pagerank": { "raw": 4.89950402824256e-08, "percentile": 0.30815522449378324 }, "sha256": "401d9003855109857c861ef43314a3f09a56ad6be2453caf7904eee199a62c31", "simhash": "1:9ba82e66fe3b0462", "word_count": 1418 }, "last_updated": "2023-07-14T20:10:07.642184+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges WYNN and TIMMONS-GOODSON concur." ], "parties": [ "GLENN I. HODGE, JR., Plaintiff v. NORTH CAROLINA DEPARTMENT OF TRANSPORTATION and NORRIS TOLSON, Secretary of the North Carolina Department of Transportation, Defendants" ], "opinions": [ { "text": "ELMORE, Judge.\nIn this appeal, we must determine whether the trial court erred by ordering the North Carolina Department of Transportation (DOT) and Norris Tolson (collectively, defendants) to pay attorney\u2019s fees incurred by Glenn I. Hodge, Jr. (plaintiff) in plaintiff\u2019s prosecution of his claim for injunctive relief. For the reasons discussed herein, we conclude that the trial court did not have jurisdiction to hear plaintiff\u2019s motion for attorney\u2019s fees pursuant to N.C. Gen. Stat. \u00a7 6-19.1 (2003), and we vacate the trial court\u2019s order.\nThe facts are set out in full in a previous opinion of this Court, Hodge v. N.C. Dep\u2019t. of Transportation, 137 N.C. App. 247, 528 S.E.2d 22, rev\u2019d, 352 N.C. 664, 535 S.E.2d 32 (2000). Briefly, plaintiff was employed in January 1992 by the DOT as an internal auditor and was promoted to chief of the DOT\u2019s Internal Audit Section in May 1992. In May 1993, plaintiff\u2019s position was reclassified as policymaking exempt pursuant to N.C. Gen. Stat. \u00a7 126-5(d). Plaintiff petitioned the Office of Administrative Hearings for a contested case hearing challenging this reclassification, and in November 1993, the DOT dismissed plaintiff as chief of its Internal Audit Section. After proceedings before the Office of Administrative Hearings, the State Personnel Commission, the Wake County Superior Court, and this Court, our Supreme Court ultimately determined that the position of Chief Internal Auditor had been improperly reclassified as policymaking exempt. See N. C. Dept. of Transportation v. Hodge, 347 N.C. 602, 499 S.E.2d 187 (1998). Consequently, plaintiff was awarded back pay and reinstated to employment by the DOT in May 1998, albeit as an Internal Auditor II rather than as Chief Internal Auditor.\nIn July 1998, plaintiff commenced the litigation giving rise to this appeal by applying to the Wake County Superior Court for injunctive relief to compel his reinstatement to the position of Chief Internal Auditor. On 12 February 1999, the trial court granted summary judgment in plaintiff\u2019s favor and ordered that he be immediately reinstated to the position of Chief Internal Auditor. On appeal, a divided panel of this Court reversed the trial court\u2019s order. See Hodge v. N.C. Dep\u2019t. of Transportation, 137 N.C. App. 247, 528 S.E.2d 22 (2000). However, in an opinion filed 6 October 2000, our Supreme Court reversed this Court\u2019s decision, effectively reinstating the trial court\u2019s order granting summary judgment and injunctive relief in plaintiff\u2019s favor. See Hodge v. N.C. Dep\u2019t. of Transportation, 352 N.C. 664, 535 S.E.2d 32 (2000) (per curiam). Approximately seventeen months later, on 15 March 2002, plaintiff filed a motion seeking to recover attorney\u2019s fees from defendants. By its order entered 15 October 2002, the trial court granted plaintiff\u2019s motion and awarded reasonable attorney\u2019s fees in the amount of $25,500.00, and costs in the amount of $837.85. From this order, defendants now appeal.\nBy their first assignment of error, defendants contend the trial court lacked jurisdiction to award attorney\u2019s fees pursuant to N.C. Gen. Stat. \u00a7 6-19.1, because plaintiff did not file his motion within 30 days of the final disposition of his case. We agree.\nSection 6-19.1 of our General Statutes provides, in pertinent part, as follows:\nIn any civil action, other than an adjudication for the purpose of establishing or fixing a rate, or a disciplinary action by a licensing board, brought by the State or brought by a party who is contesting State action pursuant to G.S. 150B-43 or any other appropriate provisions of law, unless the prevailing party is the State, the court may, in its discretion, allow the prevailing party to recover reasonable attorney\u2019s fees, including attorney\u2019s fees applicable to the administrative review portion of the case, in contested cases arising under Article 3 of Chapter 150B, to be taxed as court costs against the appropriate agency if:\n(1) The court finds that the agency acted without substantial justification in pressing its claim against the party; and\n(2) The court finds that there are no special circumstances that would make the award of attorney\u2019s fees unjust. The party shall petition for the attorney\u2019s fees within SO days following final disposition of the case. The petition shall be supported by an affidavit setting forth the basis for the request. . . .\nN.C. Gen. Stat. \u00a7 6-19.1 (2003) (emphasis added).\nIn reviewing an award of attorney\u2019s fees under Section 6-19.1, a different panel of this Court has previously stated that \u201c[t]he 30-day filing period contained in the statute is a jurisdictional prerequisite to the award of attorney\u2019s fees, and it begins to run after the decision has become final and it is too late to appeal.\u201d Whiteco Industries, Inc. v. Harrelson, 111 N.C. App. 815, 818, 434 S.E.2d 229, 232 (1993), appeal dismissed and disc. review denied, 335 N.C. 566, 441 S.E.2d 135 (1994) (citations omitted) (emphasis added). In Whiteco, this Court cited with approval the Black\u2019s Law Dictionary definition of \u201cfinal disposition\u201d as \u201c \u2018[s]uch a conclusive determination of the subject-matter that after the award, judgment, or decision is made, nothing further remains to fix the rights and obligations of the parties, and no further controversy or litigation can arise thereon.\u2019 \u201d Id. at 818, 434 S.E.2d at 232 (quoting Black\u2019s Law Dictionary 630 (6th ed. 1990)).\nIn the present case, we conclude that the litigation underlying the instant appeal reached its \u201cfinal disposition\u201d within the meaning of Section 6-19.1(2) twenty days after the North Carolina Supreme Court filed its written opinion on 6 October 2000 reinstating plaintiff to the position of chief of the DOT\u2019S Internal Audit Section. See N.C.R. App. P. 32(b) (2004) (unless an appellate court orders otherwise, its mandate shall issue 20 days after the court\u2019s written opinion is filed with the clerk). We reject plaintiff\u2019s contention that he satisfied the 30-day filing period contained in Section 6-19.1(2) by praying for attorney\u2019s fees within the complaint by which he initiated this litigation. The statute\u2019s plain language requires a prevailing party seeking recovery of attorney\u2019s fees to \u201cpetition\u201d for them. \u201cWhen the language of a statute is clear and unambiguous, there is no room for judicial construction, and the courts must give it its plain and definite meaning.\u201d Lemons v. Old Hickory Council, 322 N.C. 271, 276, 367 S.E.2d 655, 658, reh\u2019g denied, 322 N.C. 610, 370 S.E.2d 247 (1988). Because a petition is \u201c[a] formal written application to a court requesting judicial action on a certain matter,\u201d see Black\u2019s Law Dictionary 1145 (6th ed. 1990), we conclude that a request for attorney\u2019s fees contained within a complaint\u2019s prayer for relief does not constitute a \u201cpetition\u201d within the meaning of Section 6-19.1(2).\nBecause plaintiff did not move for attorney\u2019s fees until 15 March 2002, almost a year and a half after final disposition of his case, we hold that plaintiff failed to satisfy the \u201cjurisdictional prerequisite\u201d imposed by Section 6-19.1(2) that he petition for attorney\u2019s fees within 30 days of his case\u2019s final disposition. Whiteco, 111 N.C. App. at 818, 434 S.E.2d at 232. Accordingly, we vacate the trial court\u2019s order awarding attorney\u2019s fees and costs to plaintiff and remand to the trial court for entry of an order dismissing plaintiff\u2019s motion for attorney\u2019s fees and costs.\nBecause we conclude that the trial court lacked jurisdiction to order an award of attorney\u2019s fees to plaintiff, we need not address defendants\u2019 remaining assignments of error.\nVacated and remanded.\nJudges WYNN and TIMMONS-GOODSON concur.", "type": "majority", "author": "ELMORE, Judge." } ], "attorneys": [ "Broughton Wilkins Sugg & Thompson, P.L.L.C., by R. Palmer Sugg, for plaintiff-appellee.", "Attorney General Roy Cooper, by Special Deputy Attorney General Robert O. Crawford, III and Assistant Attorney General Sarah Ann Lannom, for defendants-appellants." ], "corrections": "", "head_matter": "GLENN I. HODGE, JR., Plaintiff v. NORTH CAROLINA DEPARTMENT OF TRANSPORTATION and NORRIS TOLSON, Secretary of the North Carolina Department of Transportation, Defendants\nNo. COA03-51\n(Filed 16 December 2003)\nCosts\u2014 attorney fees \u2014 failure to file timely motion\nThe trial court erred by ordering defendants to pay plaintiff attorney fees under N.C.G.S. \u00a7 6-19.1 in a claim for injunctive relief to compel plaintiffs reinstatement to the position of Chief Internal Auditor, because: (1) a request for attorney fees contained within a complaint\u2019s prayer for relief does not constitute a petition within the meaning of N.C.G.S. \u00a7 6-19.1; and (2) the trial court did not have jurisdiction to hear plaintiff\u2019s motion for attorney fees since plaintiff failed to petition for attorney fees within thirty days of the final disposition of his case.\nAppeal by defendants from judgment entered 15 October 2002 by Judge Narley L. Cashwell in Wake County Superior Court. Heard in the Court of Appeals 28 October 2003.\nBroughton Wilkins Sugg & Thompson, P.L.L.C., by R. Palmer Sugg, for plaintiff-appellee.\nAttorney General Roy Cooper, by Special Deputy Attorney General Robert O. Crawford, III and Assistant Attorney General Sarah Ann Lannom, for defendants-appellants." }, "file_name": "0726-01", "first_page_order": 756, "last_page_order": 760 }