{ "id": 8914880, "name": "VIVICA McINTYRE, Petitioner v. FORSYTH COUNTY DEPARTMENT OF SOCIAL SERVICES, Respondent", "name_abbreviation": "McIntyre v. Forsyth County Department of Social Services", "decision_date": "2004-01-06", "docket_number": "No. COA02-1301", "first_page": "94", "last_page": "100", "citations": [ { "type": "official", "cite": "162 N.C. App. 94" } ], "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": "934 F.2d 693", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 10540436 ], "year": 1991, "pin_cites": [ { "page": "694" } ], "opinion_index": 0, "case_paths": [ "/f2d/934/0693-01" ] }, { "cite": "941 F.2d 674", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 11717680 ], "year": 1991, "pin_cites": [ { "page": "675" } ], "opinion_index": 0, "case_paths": [ "/f2d/941/0674-01" ] }, { "cite": "945 F.2d 982", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 10525461 ], "year": 1991, "pin_cites": [ { "page": "986" } ], "opinion_index": 0, "case_paths": [ "/f2d/945/0982-01" ] }, { "cite": "8 F.3d 775", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 10512999 ], "year": 1993, "pin_cites": [ { "page": "777" } ], "opinion_index": 0, "case_paths": [ "/f3d/8/0775-01" ] }, { "cite": "22 F.3d 213", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 10505299 ], "year": 1994, "opinion_index": 0, "case_paths": [ "/f3d/22/0213-01" ] }, { "cite": "319 F.3d 1346", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 9255192, 9339834 ], "year": 2003, "pin_cites": [ { "page": "1350" } ], "opinion_index": 0, "case_paths": [ "/vet-app/17/1346-01", "/f3d/319/1346-01" ] }, { "cite": "28 U.S.C.S. \u00a7 2412", "category": "laws:leg_statute", "reporter": "U.S.C.", "opinion_index": 0 }, { "cite": "459 S.E.2d 626", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1995, "pin_cites": [ { "page": "628", "parenthetical": "emphasis added" } ], "opinion_index": 0 }, { "cite": "341 N.C. 167", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 793206 ], "year": 1995, "opinion_index": 0, "case_paths": [ "/nc/341/0167-01" ] }, { "cite": "826 F.2d 1042", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1741555 ], "weight": 2, "year": 1987, "pin_cites": [ { "page": "1047" }, { "page": "1047" } ], "opinion_index": 0, "case_paths": [ "/f2d/826/1042-01" ] }, { "cite": "441 S.E.2d 135", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "opinion_index": 0 }, { "cite": "335 N.C. 566", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2532352, 2526477, 2532206, 2529831 ], "year": 1994, "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" }, { "page": "232" } ], "opinion_index": 0 }, { "cite": "111 N.C. App. 815", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524178 ], "weight": 3, "year": 1993, "pin_cites": [ { "page": "818" }, { "page": "818" }, { "page": "818" } ], "opinion_index": 0, "case_paths": [ "/nc-app/111/0815-01" ] }, { "cite": "476 S.E.2d 431", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "pin_cites": [ { "page": "433" } ], "opinion_index": 0 }, { "cite": "124 N.C. App. 180", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11888999 ], "year": 1996, "pin_cites": [ { "page": "183" } ], "opinion_index": 0, "case_paths": [ "/nc-app/124/0180-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 126-4", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 2001, "pin_cites": [ { "page": "(11)" } ], "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 6-19.1", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 13, "year": 2001, "opinion_index": 0 } ], "analysis": { "cardinality": 677, "char_count": 15595, "ocr_confidence": 0.755, "pagerank": { "raw": 7.504219697643495e-08, "percentile": 0.4466266179997367 }, "sha256": "3845649a4bbf9a3f285130e5e7285f43361d1199e3a3b645dc58d9d1e80f83ac", "simhash": "1:ae2837d7b533e60a", "word_count": 2519 }, "last_updated": "2023-07-14T16:27:54.754463+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges MARTIN and LEVINSON concur." ], "parties": [ "VIVICA McINTYRE, Petitioner v. FORSYTH COUNTY DEPARTMENT OF SOCIAL SERVICES, Respondent" ], "opinions": [ { "text": "McCULLOUGH, Judge.\nThis matter is an appeal from the 4 June 2002 order granting $18,000 attorney\u2019s fees to Robert Winfrey. Mr. Winfrey provided legal services during the judicial review portion of Vivica McIntyre\u2019s (hereinafter \u201cpetitioner\u201d) underlying employment action. Petitioner was the prevailing party in the underlying action, and was awarded attorney\u2019s fees generally in an 8 April 1999 order. These fees were later assigned to Mr. Winfrey in a 9 July 2001 order by Judge Donald W. Stephens. The 9 July 2001 order also denied Mr. Winfrey\u2019s motion for a temporary restraining order and preliminary injunction regarding settlement negotiations between the named parties. The assignment of fees was necessary since Mr. Winfrey\u2019s license to practice law had been revoked at the time, and he could no longer act as petitioner\u2019s representative.\nIn the underlying employment case, petitioner was dismissed on 22 March 1995 from her position as an Income Maintenance Caseworker II in the Food Stamp Unit by respondent, Forsyth County Department of Social Services (\u201cDSS\u201d). DSS claimed petitioner\u2019s job performance was unsatisfactory according to state and federal regulations. In a recommended decision on 24 January 1996, Administrative Law Judge (\u201cALJ\u201d) Sammie Chess granted petitioner reinstatement, lost wages, lost benefits, and reasonable cost of attorney\u2019s fees. The State Personnel Commission (\u201cSPC\u201d) decided to counter the ALJ\u2019s recommended decision and issued an advisory recommendation that DSS\u2019s dismissal of petitioner was reasonable in light of the circumstances. DSS then rendered its final agency decision, fully accepting the SPC\u2019s recommended decision.\nThe case moved to Wake County Superior Court before Judge Stafford G. Bullock who granted reinstatement of petitioner\u2019s wages, benefits, and attorneys fees in an 8 February 1999 order. Judge Bullock\u2019s award to petitioner of attorney\u2019s fees was simply stated, \u201crespondent shall pay petitioner the reasonable costs of her attorney fees.\u201d This Court affirmed the Wake County Superior Court in an unpublished decision on 6 June 2000. DSS\u2019s subsequent Petition for Writ of Certiorari was denied by the Supreme Court on 20 December 2000. On 6 April 2001, Mr. Winfrey filed pleadings entitled \u201cNOTICE OF ATTORNEY CHARGING LIEN\u201d on the parties to the underlying action. Therein, he asserted that he had rendered legal services in the amount of forty-five thousand four hundred and fifteen dollars ($45,415.00) to petitioner for both the administrative and judicial review portions of the case. Mr. Winfrey did not petition for attorney\u2019s fees on his behalf until 18 March 2002 in Wake County.\nMr. Winfrey\u2019s application for attorney\u2019s fees for the judicial review portion of the underlying case was heard at the 20 May 2002 Session of the Wake County Superior Court before Judge Bullock. The court ruled without review of the official record, and without sworn statements. The award from the May 2002 order was based on the oral representations by Mr. Winfrey as to the number of hours of legal services he provided during petitioner\u2019s judicial review portion of the underlying action up until his disbarment. DSS supplied the court with a copy of N.C. Gen. Stat. \u00a7 6-19.1 (2001), in effect in 1995 at the time the underlying cause of action arose. This statute was not directly applied in Judge Bullock\u2019s 4 June 2002 order\u2019s findings of fact or conclusions of law. DSS appealed.\nDSS raises three alternative issues on appeal. The first of these issues claims that the superior court abused its discretion when ordering any specific amount of attorney\u2019s fees pursuant to Mr. Winfrey\u2019s motion for such fees, when Mr. Winfrey had not complied with the procedural steps of N.C. Gen. Stat. \u00a7 6-19.1. DSS argues that the superior court lacked \u201cjurisdiction\u201d to hear the motion for attorney\u2019s fees, specifically that the superior court was time barred from hearing Mr. Winfrey\u2019s motion for attorney\u2019s fees.\nThe second issue raised by DSS is also based on N.C.. Gen. Stat. \u00a7 6-19.1. It claims an abuse of discretion by the trial court\u2019s award of general attorney\u2019s fees in its 8 April 1999 order for the underlying employment dismissal claim by petitioner. Specifically, DSS claims it had \u201csubstantial justification\u201d to dismiss the petitioner in the first place and therefore an award of attorney\u2019s fees against the agency violates the statute. If we determine DSS did have \u201csubstantial justification\u201d to dismiss petitioner, DSS claims any award of attorney\u2019s fees is improper against the agency and violates N.C. Gen. Stat. \u00a7 6-19.1.\nFinally, DSS argues that should this Court find the superior court had jurisdiction to assess the amount of the attorney\u2019s fee award to Mr. Winfrey in the 4 June 2002 order, and that DSS lacked \u201csubstantial justification\u201d to dismiss petitioner in the underlying action, DSS claims the court abused its discretion when valuing the attorney\u2019s fees at $18,000. DSS claims the court failed to make requisite findings as to the following factors when assessing a reasonable fee for the judicial review portion of the case: (a) the actual attorney representation contract for legal services provided during the judicial review portion of the underlying employment case; (b) the basis for any allegation of complexity of the claim; (c) reasonableness of the application for fees considering the high degree of complexities; (d) customary charges for legal services where the cause of action arose; (e) the attorney\u2019s years of experience specifically representing clients with State Personnel Act Claims.\nBecause we believe Mr. Winfrey\u2019s motion for attorney\u2019s fees pursuant to N.C. Gen. Stat. \u00a7 6-19.1 did not comply with the statute\u2019s procedural requirements, this opinion will not address DSS\u2019s second and third issues.\nBoth respondent and Mr. Winfrey argue that this dispute for attorney\u2019s fees stemming from the judicial review portion of the case is governed by N.C. Gen. Stat. \u00a7 6-19.1. The statute grants the trial court authority to award attorney\u2019s fees to a prevailing party of an agency decision in an employment dispute, and provides:\nIn any civil action . . . 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 ... 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 30 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. Awards for fees incurred during the administrative portion of an employment dispute, involving the SPC, are specifically provided for by N.C. Gen. Stat. \u00a7 126-4(11) (2001) limiting review of a commission\u2019s award or denial of attorney\u2019s fees. A trial court cannot award attorney\u2019s fees in State Personnel cases for services rendered prior to judicial review. See Morgan v. N.C. Dept. of Transportation, 124 N.C. App. 180, 183, 476 S.E.2d 431, 433 (1996).\nThe underlying employment case and award to petitioner for her reinstatement, lost wages and benefits, and attorney\u2019s fees, was finally disposed of when the Supreme Court denied a Writ of Certiorari on 20 December 2000. This was the last action settling the rights of the parties and disposing all issues of the underlying controversy, leaving only the amount of the awarded attorney\u2019s fees to be determined. Mr. Winfrey\u2019s application for attorney\u2019s fees for the judicial review portion of the case was not until on or about 15 March 2002.\nRespondent argues that the superior court lacked jurisdiction to hear the 15 May 2002 motion because Mr. Winfrey\u2019s petition for attorney\u2019s fees was well beyond the 30-day requirement of N.C. Gen. Stat. \u00a7 6-19.1. Respondent rests its jurisdictional argument on the case Whiteco Industries, Inc. v. Harrelson, 111 N.C. App. 815, 818, 434 S.E.2d 229, 232 (1993), disc. review denied, appeal dismissed, 335 N.C. 566, 441 S.E.2d 135 (1994), which states that: \u201cthe 30-day filing period contained in the statute [ N.C. Gen. Stat. \u00a7 6-19.1] is a jurisdictional prerequisite to the award of attorney\u2019s fees, cf., J.M.T. Mach. Co., Inc. v. United States, 826 F.2d 1042, 1047 (Fed. Cir. 1987) interpreting the Equal Access to Justice Act (EAJA)[.]\u201d Thus, respondent argues under Whiteco that N.C. Gen. Stat. \u00a7 6-19.1 is an absolute 30-day deadline from final disposition for filing a petition for attorney\u2019s fees, which if not met, bars a superior court from assessing attorney\u2019s fees for the review portion of the underlying action.\nPetitioner argues pursuant to the Supreme Court\u2019s holding in Able Outdoor, Inc. v. Harrelson, 341 N.C. 167, 459 S.E.2d 626 (1995), which states:\nN.C.G.S. \u00a7 6-19.1 provides for attorney\u2019s fees to be taxed as costs in some instances. The court had jurisdiction to interpret this section. We do not believe the General Assembly intended that N.C.G.S. \u00a7 6-19.1 would provide for a separate proceeding in which the court does not have jurisdiction until certain prerequisites are met.\nId. at 170, 459 S.E.2d at 628 (emphasis added). Petitioner interprets Able to allow a superior court to hear a petition for attorney\u2019s fees pursuant to N.C. Gen. Stat. \u00a7 6-19.1, and grant a specified award, so long as a superior court generally awarded attorney\u2019s fees in the underlying action.\nWhile Mr. Winfrey states the law of Able correctly \u2014 that a superior court has jurisdiction to award attorney\u2019s fees before final disposition of the case when reviewing the agency action de novo \u2014 we do not agree that Able governs the facts of this case. In Able, the attorney\u2019s fees were both awarded and the amount assessed by the superior court before the final disposition of the case. In the instant case, Mr. Winfrey did not petition for attorney\u2019s fees until well over a year after the Supreme Court denied certiorari and the case became final on 20 December 2000.\nWe agree with respondent\u2019s reading of Whiteco that N.C. Gen. Stat. \u00a7 6-19.1 acts as a time bar to a prevailing party seeking attorney\u2019s fees. Whiteco also falls in line with Able, stating that, \u201cDOT\u2019S argument that the 30-day period establishes a starting point as well as a deadline\u201d is too narrow. Whiteco Indus., 111 N.C. App. at 818, 434 S.E.2d at 232. The statutory thirty days is not a starting point, meaning, a party seeking attorney\u2019s fees need not wait until final disposition to petition for them. Furthermore, the superior court may hear, award, and even assess attorney\u2019s fees pursuant to N.C. Gen. Stat. \u00a7 6-19.1 before final disposition on the merits of the underlying claim as the Court did in Able. The superior court initially awarding attorney\u2019s fees in the instant case made no findings as to the amount of fees owed for the review portion on the underlying merits. Therefore, Mr. Winfrey should have pursued the specifics of his award under N.C. Gen. Stat. \u00a7 6-19.1 after final disposition on the merits. He did not.\nTo hold that the statute allowed a party to petition for attorney\u2019s fees after the 30 days from final disposition would make the statute a nullity. Under such an interpretation, so long as attorney\u2019s fees were awarded in the underlying action generally, then an attorney could move for them with particularity obtaining actual valuation when he or she so chooses, and within no required time frame such as this tax year or the next.\nIn the instant case, Mr. Winfrey was generally awarded attorney\u2019s fees when Judge Bullock overturned DSS\u2019s final agency decision in the 8 April 1999 order. After the petitioner won on appeal and petition for certiorari was denied, the disposition on the merits was final. Judge Bullock\u2019s general award of attorney\u2019s fees for the review portion of the case still did not secure Mr. Winfrey\u2019s right to specified attorney\u2019s fees. By statute he was required to petition for them within the 30-day time frame with an accompanying affidavit, specifying the basis for the particularity of his fee petition. He did not make his petition for well over a year from the date of final disposition. Therefore, he is now time barred from moving for their recovery.\nWhile this Court\u2019s holding in Whiteco and the Supreme Court\u2019s holding in Able adequately support our decision, federal decisions interpreting the similar Equal Access to Justice Act (\u201cEAJA\u201d), 28 U.S.C.S. \u00a7 2412, support our reasoning. The federal courts have repeatedly held the 30-day requirement for filing a petition for attorney\u2019s fees against a government agency is a jurisdictional prerequisite. In Scarborough v. Prinicipi, 319 F.3d 1346, 1350 (Fed. Cir. 2003) the Federal Circuit Court of Appeals reaffirmed the following:\nThe same mandatory language (\u201cshall\u201d) is used with respect to the thirty-day time limit and the other four requirements that make up the application. This court and five other U.S. Courts of Appeals have characterized the thirty-day time limit for submitting a fee application under the EAJA as jurisdictional in nature. See Bazalo v. West, 150 F.3d at 1383; J.M.T. Mach. Co. v. United States, 826 F.2d 1042, 1047 (Fed. Cir. 1987); see also Yang v. Shalala, 22 F.3d 213, 215 n.4 (9th Cir. 1994); Newsome v. Shalala, 8 F.3d 775, 777 (11th Cir. 1993); Damato v. Sullivan, 945 F.2d 982, 986 (7th Cir. 1991); Welter v. Sullivan, 941 F.2d 674, 675 (8th Cir. 1991); Peters v. Sec\u2019y of HHS, 934 F.2d 693, 694 (6th Cir. 1991).\n(Emphasis added.)\nThe superior court was time barred from considering Mr. Winfrey\u2019s petition for attorney\u2019s fees. In light of our ruling on this issue, DSS\u2019s second and third issues on appeal contesting the propriety of the award are moot. After careful review of the arguments of the parties, the record, and governing North Carolina case law, the superior court order awarding Mr. Winfrey attorney\u2019s fees for the judicial review portion of the underlying agency action is\nReversed.\nJudges MARTIN and LEVINSON concur.\n. We note, as the Court did in Whiteco, that judicial economy favors the hearing of petitioner\u2019s motion for attorney\u2019s fees after final disposition of the underlying merits. This Court in Whiteco noted that, but for finding substantial justification for the agency action and denying attorney\u2019s fees on those grounds, this issue may have posed problems in the award of attorney\u2019s fees. Whiteco, 111 N.C. App. at 818, 434 S.E.2d at 232.", "type": "majority", "author": "McCULLOUGH, Judge." } ], "attorneys": [ "Cathryn Gamer Carson for Robert Winfrey petitioner appellee.", "Gloria L. Woods for Forsyth County Department of Social Services respondent appellant." ], "corrections": "", "head_matter": "VIVICA McINTYRE, Petitioner v. FORSYTH COUNTY DEPARTMENT OF SOCIAL SERVICES, Respondent\nNo. COA02-1301\n(Filed 6 January 2004)\nCosts\u2014 attorney fees \u2014 employment dispute \u2014 State Personnel Commission \u2014 timeliness\nThe superior court was time barred from considering a petition for attorney fees incurred in the judicial review portion of an employment dispute involving the State Personnel Commission. The petition for attorney fees was filed well beyond the 30 day limit of N.C.G.S. \u00a7 6-19.1.\nAppeal by respondent Forsyth County Department of Social Services from an order entered 4 June 2002 by Judge Stafford G. Bullock in Wake County Superior Court. Heard in the Court of Appeals 20 August 2003.\nCathryn Gamer Carson for Robert Winfrey petitioner appellee.\nGloria L. Woods for Forsyth County Department of Social Services respondent appellant." }, "file_name": "0094-01", "first_page_order": 122, "last_page_order": 128 }