{ "id": 8897562, "name": "RANDY DEAN McDANIEL, JR., Plaintiff v. DARREN TIMOTHY McBRAYER, Defendant", "name_abbreviation": "McDaniel v. McBrayer", "decision_date": "2004-05-18", "docket_number": "No. COA03-939", "first_page": "379", "last_page": "384", "citations": [ { "type": "official", "cite": "164 N.C. App. 379" } ], "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": "132 N.C. App. 347", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11237900 ], "year": 1999, "opinion_index": -1, "case_paths": [ "/nc-app/132/0347-01" ] }, { "cite": "479 S.E.2d 32", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1997, "pin_cites": [ { "page": "34" }, { "page": "34", "parenthetical": "concluding that, where the record on appeal did not include relevant portions of the transcript, the Court would not engage in speculation as to potential error by the trial court" } ], "opinion_index": 0 }, { "cite": "125 N.C. App. 136", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11865801 ], "weight": 2, "year": 1997, "pin_cites": [ { "page": "139" }, { "page": "139" } ], "opinion_index": 0, "case_paths": [ "/nc-app/125/0136-01" ] }, { "cite": "576 S.E.2d 410", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "pin_cites": [ { "page": "414" } ], "opinion_index": 0 }, { "cite": "156 N.C. App. 384", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9190744 ], "year": 2003, "pin_cites": [ { "page": "389-90" } ], "opinion_index": 0, "case_paths": [ "/nc-app/156/0384-01" ] }, { "cite": "163 S.E.2d 353", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1968, "pin_cites": [ { "page": "357" } ], "opinion_index": 0 }, { "cite": "274 N.C. 328", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560069 ], "year": 1968, "pin_cites": [ { "page": "333" } ], "opinion_index": 0, "case_paths": [ "/nc/274/0328-01" ] }, { "cite": "518 S.E.2d 551", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1999, "pin_cites": [ { "page": "554" } ], "opinion_index": 0 }, { "cite": "134 N.C. App. 709", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11147121 ], "year": 1999, "pin_cites": [ { "page": "713" } ], "opinion_index": 0, "case_paths": [ "/nc-app/134/0709-01" ] }, { "cite": "581 S.E.2d 80", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "pin_cites": [ { "page": "84" } ], "opinion_index": 0 }, { "cite": "158 N.C. App. 111", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9186227 ], "year": 2003, "pin_cites": [ { "page": "115" } ], "opinion_index": 0, "case_paths": [ "/nc-app/158/0111-01" ] }, { "cite": "554 S.E.2d 402", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "pin_cites": [ { "page": "406" } ], "opinion_index": 0 }, { "cite": "147 N.C. App. 102", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9378221 ], "year": 2001, "pin_cites": [ { "page": "108" } ], "opinion_index": 0, "case_paths": [ "/nc-app/147/0102-01" ] }, { "cite": "546 S.E.2d 183", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "pin_cites": [ { "page": "185", "parenthetical": "upholding fee award where the court's findings omitted whether the defendant exercised superior bargaining power" } ], "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", "parenthetical": "upholding fee award where the court's findings omitted whether the defendant exercised superior bargaining power" } ], "opinion_index": 0, "case_paths": [ "/nc-app/143/0534-01" ] }, { "cite": "538 S.E.2d 566", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "569" } ], "opinion_index": 0 }, { "cite": "353 N.C. 246", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 135750 ], "year": 2000, "pin_cites": [ { "page": "251" } ], "opinion_index": 0, "case_paths": [ "/nc/353/0246-01" ] }, { "cite": "573 S.E.2d 172", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2002, "pin_cites": [ { "page": "176", "parenthetical": "finding no abuse of discretion where the defendant's prejudgment offer was approximately four and one-half times the verdict" }, { "page": "175" } ], "opinion_index": 0 }, { "cite": "154 N.C. App. 460", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9250576 ], "weight": 2, "year": 2002, "pin_cites": [ { "page": "465", "parenthetical": "finding no abuse of discretion where the defendant's prejudgment offer was approximately four and one-half times the verdict" }, { "page": "464" } ], "opinion_index": 0, "case_paths": [ "/nc-app/154/0460-01" ] }, { "cite": "513 S.E.2d 331", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1999, "pin_cites": [ { "page": "334-35" }, { "page": "334" } ], "opinion_index": 0 }, { "cite": "372 S.E.2d 523", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "page": "527" } ], "opinion_index": 0 }, { "cite": "323 N.C. 279", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2562603 ], "year": 1988, "pin_cites": [ { "page": "285" } ], "opinion_index": 0, "case_paths": [ "/nc/323/0279-01" ] }, { "cite": "550 S.E.2d 830", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "pin_cites": [ { "page": "833", "parenthetical": "quoting State v. Hennis, 323 N.C. 279, 285, 372 S.E.2d 523, 527 (1988)" } ], "opinion_index": 0 }, { "cite": "145 N.C. App. 60", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11435464 ], "year": 2001, "pin_cites": [ { "page": "65", "parenthetical": "quoting State v. Hennis, 323 N.C. 279, 285, 372 S.E.2d 523, 527 (1988)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/145/0060-01" ] }, { "cite": "551 S.E.2d 852", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "pin_cites": [ { "page": "855" } ], "opinion_index": 0 }, { "cite": "144 N.C. App. 567", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11435704 ], "year": 2001, "pin_cites": [ { "page": "570" } ], "opinion_index": 0, "case_paths": [ "/nc-app/144/0567-01" ] }, { "cite": "591 S.E.2d 18", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 2004, "pin_cites": [ { "page": "22" }, { "page": "22-23" }, { "page": "23" }, { "page": "23", "parenthetical": "concluding that, because the case raised neither issues of \"superior bargaining power\" nor \"unwarranted refusal,\" findings as to these factors were unnecessary" } ], "opinion_index": 0 }, { "cite": "162 N.C. App. 241", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8916244 ], "weight": 3, "year": 2004, "pin_cites": [ { "page": "246" }, { "page": "247" } ], "opinion_index": 0, "case_paths": [ "/nc-app/162/0241-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 6-21.1", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 2003, "opinion_index": 0 }, { "cite": "132 N.C. App. 347", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11237900 ], "weight": 2, "year": 1999, "pin_cites": [ { "page": "351" }, { "page": "350" } ], "opinion_index": 0, "case_paths": [ "/nc-app/132/0347-01" ] } ], "analysis": { "cardinality": 582, "char_count": 13524, "ocr_confidence": 0.751, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.21221237222710668 }, "sha256": "53d3814cff66d622a117123a47fb1611dd89b55f82ca3b9a1c0d6a81472b86b7", "simhash": "1:0febc22874861cd4", "word_count": 2200 }, "last_updated": "2023-07-14T17:15:16.246957+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges CALABRIA and STEELMAN concur." ], "parties": [ "RANDY DEAN McDANIEL, JR., Plaintiff v. DARREN TIMOTHY McBRAYER, Defendant" ], "opinions": [ { "text": "WYNN, Judge.\nDefendant Darren Timothy McBrayer appeals from a judgment and order of the trial court awarding to Plaintiff Randy Dean McDaniel, Jr. $4,500.00 in attorneys\u2019 fees and $1,437.90 in costs following a favorable jury verdict and award in the amount of $800.00. Defendant contends the trial court erred in awarding attorneys\u2019 fees and costs to Plaintiff where Defendant made an offer of judgment of $5,000.00, and the jury awarded Plaintiff only $800.00. For the reasons stated herein, we affirm the order of the trial court.\nThe pertinent facts of the instant appeal are as follows: Plaintiff filed a complaint 15 January 2002 in Superior Court, Davie County, seeking recovery for injuries he sustained in an automobile collision with Defendant. On 1 July 2002, Defendant made an offer of judgment pursuant to Rule 68 of our Rules of Civil Procedure in the amount of $5,000.00. Defendant repeated his offer 10 October 2002. On 21 April 2003, the case came for trial, following which the jury awarded Plaintiff $800.00 for his personal injuries. The trial court thereafter awarded Plaintiff costs in the amount of $1,437.90 and attorneys\u2019 fees in the amount of $4,500.00. The trial court denied Defendant\u2019s motion for costs. Defendant appealed.\nDefendant contends the trial court abused its discretion in awarding Plaintiff $4,500.00 in attorneys\u2019 fees where Defendant made an offer of judgment in the amount of $5,000.00 and the jury awarded Plaintiff only $800.00. Defendant argues the trial court further abused its discretion in awarding Plaintiff costs and denying Defendant\u2019s motion for costs. For the reasons stated herein, we hold the trial court acted within its discretion in awarding attorneys\u2019 fees and costs to Plaintiff.\nSection 6-21.1 of our General Statutes provides that:\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 (2003). The trial court\u2019s decision to award attorneys\u2019 fees is discretionary and will not be overturned absent a showing of abuse of discretion. Overton v. Purvis, 162 N.C. App. 241, 591 S.E.2d 18, 22 (2004); Thorpe v. Perry-Riddick, 144 N.C. App. 567, 570, 551 S.E.2d 852, 855 (2001). \u201cTo prevail, defendant must show that the trial court\u2019s ruling is \u2018manifestly unsupported by reason or is so arbitrary that it could not have been the result of a reasoned decision.\u2019 \u201d Robinson v. Shue, 145 N.C. App. 60, 65, 550 S.E.2d 830, 833 (2001) (quoting State v. Hennis, 323 N.C. 279, 285, 372 S.E.2d 523, 527 (1988)).\nIn determining whether to award attorneys\u2019 fees, the trial court must consider the entire record, including, but not limited to, the following factors: (1) settlement offers made prior to the institution of the action; (2) offers of judgment pursuant to Rule 68, and whether the \u201cjudgment finally obtained\u201d was more favorable than such offers; (3) whether the defendant unjustly exercised \u201csuperior bargaining power[;]\u201d (4) in the case of an unwarranted refusal by an insurance company, the \u201ccontext in which the dispute arose[];\u201d (5) the timing of settlement offers; and (6) the amounts of the settlement offers as compared to the jury verdict. Washington v. Horton, 132 N.C. App. 347, 351, 513 S.E.2d 331, 334-35 (1999); see also Overton, 162 N.C. App. at 246, 591 S.E.2d at 22-23.\nIn his first argument, Defendant contends the trial court abused its discretion in awarding attorneys\u2019 fees in that such an award was \u201cmanifestly unreasonable in light of the small verdict and Defendant\u2019s settlement offers.\u201d Defendant contends that allowing attorneys\u2019 fees in such cases \u201cdiscourages settlement and is tantamount to a guarantee that lawyers will always be paid.\u201d This Court recently rejected a similar proportionality argument in Overton. There, the defendant argued the trial court abused its discretion by awarding attorneys\u2019 fees in excess of $32,000.00 in a case where the jury awarded only $7,000.00. Id. at 247, 591 S.E.2d at 23. We found no abuse of discretion by the trial court. See also Furmick v. Miner, 154 N.C. App. 460, 465, 573 S.E.2d 172, 176 (2002) (finding no abuse of discretion where the defendant\u2019s prejudgment offer was approximately four and one-half times the verdict). We further note that our Supreme Court, in rejecting the contention that including costs and attorneys\u2019 fees incurred after an offer of judgment in calculating the \u201cjudgment finally obtained\u201d discourages the settlement of cases, deemed that such policy arguments are \u201cbetter addressed to the legislative branch of government.\u201d Roberts v. Swain, 353 N.C. 246, 251, 538 S.E.2d 566, 569 (2000). Accordingly, we hold the trial court did not abuse its discretion in awarding attorneys\u2019 fees in the amount of $4,500.00.\nDefendant further contends the trial court failed to consider the timing and amount of the settlement offers. We disagree. In its order granting Plaintiff attorneys\u2019 fees, the trial court made specific findings of fact detailing Defendant\u2019s two offers of judgment for $5,000.00 dated 28 March and 10 October 2002. The trial court also found Defendant repeated this offer during a mediation of the case 19 November 2002, and again at trial on 21 April 2003. In light of these detailed findings, there is no merit to Defendant\u2019s argument that the trial court failed to consider the timing and amount of his settlement offers.\nNext, Defendant argues the trial court abused its discretion by awarding attorneys\u2019 fees where Defendant did not exercise \u201csuperior bargaining power\u201d over Plaintiff, and there was no \u201cunwarranted refusal to settle\u201d by Defendant\u2019s insurer. We find no merit in these arguments. The trial court\u2019s failure to make a finding as to Defendant\u2019s exercise of unfair bargaining power is not grounds for reversal. See Tew v. West, 143 N.C. App. 534, 537, 546 S.E.2d 183, 185 (2001) (upholding fee award where the court\u2019s findings omitted whether the defendant exercised superior bargaining power). Further, it is well established that where an insurance company is not a named defendant, there is no requirement that the trial court make an \u201cunwarranted refusal\u201d finding in order to award attorneys\u2019 fees. Furmick, 154 N.C. App. at 464, 573 S.E.2d at 175; Washington, 132 N.C. App. at 350, 513 S.E.2d at 334. Defendant\u2019s insurer was never a named defendant in this action, and the trial court was therefore not required to make any findings regarding the insurer\u2019s actions. See Overton, 162 N.C. App. at 247, 591 S.E.2d at 23 (concluding that, because the case raised neither issues of \u201csuperior bargaining power\u201d nor \u201cunwarranted refusal,\u201d findings as to these factors were unnecessary).\nWe further reject Defendant\u2019s argument that the trial court believed it had no discretion in granting Plaintiff\u2019s motion for attorneys\u2019 fees. The trial court in its order specifically noted it had considered the entire record in light of Washington, and that \u201cin its discretion\u201d it would award attorneys\u2019 fees. The trial court then made nine detailed findings of fact in support of its award. The findings, in summary, included: (1) all of the offers of settlement made by both parties and Defendant\u2019s insurer after suit was filed; (2) Defendant\u2019s two offers of judgment of $5,000.00, which was less than the \u201cjudgment finally obtained\u201d in the amount of $6,737.90; (3) no findings regarding unjust exercise of superior bargaining power, but as we have already noted, the absence of such a finding does not require reversal, see Davis v. Kelly, 147 N.C. App. 102, 108, 554 S.E.2d 402, 406 (2001); (4) no findings regarding an unwarranted refusal to pay an insurance policy, which we have determined was unnecessary, however; and (5) the dates and amounts of all offers to settle by the parties in arbitration and mediation, in offers of judgment, and during trial. Further, the jury verdict was $800.00, the judgment finally obtained was $6,737.90, and Defendant offered to settle the case for $5,000.00. From the judgment and its findings, it is clear the trial court exercised its discretion by considering the whole record and in applying the Washington factors. The findings are sufficient to support the trial court\u2019s conclusion that Plaintiff should be awarded attorneys\u2019 fees, and therefore, the trial court properly exercised its discretion in granting Plaintiff\u2019s motion. Messina v. Bell, 158 N.C. App. 111, 115, 581 S.E.2d 80, 84 (2003).\nBy further assignment of error, Defendant argues the trial court erred in granting Plaintiff\u2019s Rule 68 motion for costs and denying Defendant\u2019s motion for costs. Defendant\u2019s argument is based entirely upon his position that the trial court abused its discretion in awarding attorneys\u2019 fees. As we discern no abuse of discretion by the trial court in awarding attorneys\u2019 fees, we necessarily overrule this assignment of error.\nFinally, Defendant contends the trial court erred in awarding Plaintiff\u2019s expert witness fee of $400.00 as part of the costs where there is insufficient evidence that the expert was subpoenaed to testify. Defendant correctly notes that, unless an expert witness is subpoenaed, witness fees are not recognized as costs, and the trial court is without authority to award such. Rogers v. Sportsworld of Rocky Mount, Inc., 134 N.C. App. 709, 713, 518 S.E.2d 551, 554 (1999). In Rogers, the expert witness testified that he was not served with a subpoena. Id. Because the trial court was without authority to award an expert witness fee where the expert witness was not subpoenaed, we held the trial court abused its discretion in assessing the expert witness fee upon the defendant. Id.\nUnlike Rogers, the record on appeal here is silent on the issue of whether the expert witness was subpoenaed. \u201cAn appellate court is not required to, and should not, assume error by the trial judge when none appears on the record before the appellate court.\u201d State v. Williams, 274 N.C. 328, 333, 163 S.E.2d 353, 357 (1968); Hicks v. Alford, 156 N.C. App. 384, 389-90, 576 S.E.2d 410, 414 (2003); Pharr v. Worley, 125 N.C. App. 136, 139, 479 S.E.2d 32, 34 (1997). We note, however, the trial court\u2019s judgment includes an award of $20.00 for \u201cservice of subpoenas\u201d as part of Plaintiffs costs. The record does not include the deposition testimony of the expert witness, nor did Defendant object to the trial court\u2019s award of the expert witness fee on the basis of non-service. Under these circumstances, we cannot, without engaging in speculation, hold the trial court erred in awarding to Plaintiff $400.00 for his expert witness fee. See Pharr, 125 N.C. App. at 139, 479 S.E.2d at 34 (concluding that, where the record on appeal did not include relevant portions of the transcript, the Court would not engage in speculation as to potential error by the trial court).\nIn summary, we find no abuse of discretion by the trial court in awarding Plaintiff attorneys\u2019 fees and costs and in denying Defendant\u2019s motion for costs. The order of the trial court is hereby,\nAffirmed.\nJudges CALABRIA and STEELMAN concur.", "type": "majority", "author": "WYNN, Judge." } ], "attorneys": [ "Lewis & Daggett, Attorneys at Law, P.A., by C. Michael Day, for plaintiff appellee.", "Davis & Hamrick, L.L.P., by H. Lee Davis, Jr. and Richard Clay Stuart, for defendant appellant." ], "corrections": "", "head_matter": "RANDY DEAN McDANIEL, JR., Plaintiff v. DARREN TIMOTHY McBRAYER, Defendant\nNo. COA03-939\n(Filed 18 May 2004)\n1. Costs\u2014 attorney fees \u2014 abuse of discretion standard\nThe trial court did abuse its discretion by awarding plaintiff $4,500 in attorney fees and $1,437.90 in costs following a jury verdict in the amount of $800 for injuries sustained in an automobile accident even though defendant made an offer of judgment of $5,000, or by denying defendant\u2019s motion for costs, because: (1) the trial court properly considered the timing and amount of the settlement offers; (2) the trial court\u2019s failure to make a finding as to defendant\u2019s exercise of unfair bargaining power is not grounds for reversal; (3) where an insurance company is not a named defendant, there is no requirement that the trial court make an unwarranted refusal finding in order to award attorney fees; and (4) the trial court exercised its discretion by considering the whole record and by applying the factors in Washington, 132 N.C. App. 347 (1999).\n2. Costs\u2014 expert witness fee \u2014 speculation\nAlthough defendant contends the trial court erred by awarding plaintiff an expert witness fee of $400 as part of the costs without sufficient evidence that the expert was subpoenaed to testify, the record does not include the deposition testimony of the expert, defendant failed to object to the trial court\u2019s award of the expert witness fee on the basis of non-service, and under these circumstances, the Court of Appeals cannot hold there was error without engaging in speculation.\nAppeal by defendant from judgment and order entered 12 May 2003 by Judge Larry G. Ford in Superior Court, Davie County. Heard in the Court of Appeals 20 April 2004.\nLewis & Daggett, Attorneys at Law, P.A., by C. Michael Day, for plaintiff appellee.\nDavis & Hamrick, L.L.P., by H. Lee Davis, Jr. and Richard Clay Stuart, for defendant appellant." }, "file_name": "0379-01", "first_page_order": 411, "last_page_order": 416 }