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  "name": "STACY CUNNINGHAM, Plaintiff v. JAMES RILEY, SR., in his capacity as a MECKLENBURG COUNTY DEPUTY SHERIFF, JAMES PENDERGRAPH, SHERIFF OF MECKLENBURG COUNTY, Defendants",
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    "judges": [
      "Judges WYNN and HUDSON concur."
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      "STACY CUNNINGHAM, Plaintiff v. JAMES RILEY, SR., in his capacity as a MECKLENBURG COUNTY DEPUTY SHERIFF, JAMES PENDERGRAPH, SHERIFF OF MECKLENBURG COUNTY, Defendants"
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      {
        "text": "STEELMAN, Judge.\nOn 2 November 1997, while an inmate at the Mecklenburg County jail, plaintiff was assaulted by James Riley, Sr. (Riley). Riley was deputy sheriff of Mecklenburg County when he assaulted plaintiff. Plaintiff initiated this lawsuit against Riley, James Pendergraph, the Sheriff of Mecklenburg County, and Mecklenburg County, seeking damages for the injuries he sustained as a result of the assault. During the course of the litigation the trial court dismissed the claims against all parties named in the amended complaint except for Riley in his official capacity as a Mecklenburg County Deputy Sheriff.\nTrial was held at the 18 August 2003 session of superior court. The only issues submitted to the jury were whether Riley committed an assault and battery upon the plaintiff, and if so, what amount of money was plaintiff entitled to recover as damages for personal injuries. The jury returned a verdict in favor of plaintiff in the amount of $49,500.00. Following the verdict, the parties made several post-verdict motions. The trial court (1) denied plaintiff\u2019s motion to amend his pleading to add a claim under 42 U.S.C. \u00a7 1983 and seek recovery of attorney\u2019s fees under 42 U.S.C. \u00a7 1988; (2) granted in part and denied in part plaintiff\u2019s motion for costs; and (3) held that plaintiff\u2019s claims were barred under the doctrine of sovereign immunity. Plaintiff appeals.\nSovereign Immunity\nMecklenburg County purchased insurance covering the acts of the employees of the Mecklenburg County Sheriff\u2019s Department. A suit against a sheriff\u2019s deputy in his official capacity constituted a suit against the county, thus triggering this insurance coverage. See Kephart v. Pendergraph, 131 N.C. App. 559, 563, 507 S.E.2d 915, 918 (1998). However, this coverage was limited. A claim was not covered under the insurance policy unless the total loss, including the amount of the verdict, plaintiff\u2019s costs, and defendant\u2019s costs, when added together, exceeded defendant\u2019s $250,000.00 self-insured retention. The jury awarded plaintiff $49,500.00, the trial court awarded plaintiff $1,750.00 in costs, and defendant\u2019s costs for defending the action were $129,046.13. When added together, the total amount was $180,296.13. Since this was less than $250,000.00, the trial court concluded defendant had not waived sovereign immunity, and plaintiff was precluded from recovering the amount of the verdict or costs.\nThe doctrine of sovereign immunity generally bars recovery in actions against deputy sheriffs sued in their official capacity. Id. A county may waive sovereign immunity by purchasing liability insurance, but only to the extent of coverage provided. N.C. Gen. Stat. \u00a7 153A-435(a) (2004). In Kephart, this Court analyzed the effect of a self-insured retention provision on a plaintiff\u2019s right to recover in a case arising out of the same county and the same sheriff\u2019s department at issue in this case. The amount of the county\u2019s self-insured retention in Kephart was $100,000.00 and the policy limit was $2,750,000.00. This Court determined the county had not waived their sovereign immunity for claims up to $100,000.00, although it did waive immunity for claims in excess of that amount. As a result, to the extent there was a self-insured retention, the county did not waive its sovereign immunity. Kephart, 131 N.C. App. at 564, 507 S.E.2d at 918-19. See also Wilhelm v. City of Fayetteville, 121 N.C. App. 87, 89, 464 S.E.2d 299, 300 (1995) (holding there was no waiver of governmental immunity by the city in being self-insured for claims up to $250,000.00, although immunity was waived for amounts in excess thereof because of purchase of liability insurance policies covering such amounts). The same issue that was litigated in Kephart, is at issue here, and we are bound by the holding in Kephart. In re Appeal from Civil Penalty, 324 N.C. 373, 384, 379 S.E.2d 30, 36 (1989). In order for plaintiff to recover, the total loss must exceed the county\u2019s $250,000.00 self-insured retention. Plaintiffs claims are barred by the doctrine of sovereign immunity unless the total loss exceeded $250,000.00.\nThe remaining issues discussed in this opinion deal with plaintiffs attempts to recover costs in addition to the amount of the jury award in order to bring the total loss to a sum in excess of $250,000.00.\n42 U.S.C. \u00a7 1983\nPlaintiff contends the trial court erred in denying his motion to amend the pleadings to add a claim under 42 U.S.C. \u00a7 1983 and to seek recovery of attorney\u2019s fees under 42 U.S.C. \u00a7 1988. We disagree.\nFollowing the jury\u2019s verdict, plaintiff made a motion pursuant to Rule 15(b) of the North Carolina Rules of Civil Procedure, seeking leave to amend his complaint to add a cause of action against defendant under 42 U.S.C. \u00a7 1983. The trial court\u2019s ruling on a motion to amend will not be overturned absent a clear showing of abuse of discretion. Harrold v. Dowd, 149 N.C. App. 777, 785, 561 S.E.2d 914, 920 (2002). The trial court may deny leave to amend where such amendment would be futile. Id. at 785-86, 561 S.E.2d at 920.\nThe only defendant that remained in this action at trial was Riley, in his official capacity as a deputy sheriff. Plaintiff argued that both parties consented to a jury instruction on assault and battery that incorporated language from Myrick v. Cooley, 91 N.C. App. 209, 371 S.E.2d 492 (1988). This language discussed the legal standard for determining whether a police officer exceeded the limits of privileged force for purposes of liability. Id. at 215-16, 371 S.E.2d at 496. Plaintiff contends that by agreeing to include this language in the jury charge, defendant impliedly consented to submit a 42 U.S.C. \u00a7 1983 cause of action to the jury.\nPlaintiff contends that a sheriff and his deputies are \u201cpersons\u201d within the meaning of 42 U.S.C. \u00a7 1983, and thus subject to suit under that provision. We need not decide this issue, as other grounds exist to support the trial court\u2019s ruling that permitting plaintiff to amend his complaint to add a cause of action under 42 U.S.C. \u00a7 1983 would be futile. In Monell v. New York City Dep't of Soc. Serv., the United States Supreme Court held that while a local governmental body could be sued under \u00a7 1983, its liability could not be based upon a theory of respondeat superior. 436 U.S. 658, 56 L. Ed. 2d 611 (1978). The official capacity claim against Riley as deputy sheriff constituted a suit against the local governmental entity, the county, under the theory of respondeat superior. Boyd v. Robeson County, - N.C. App. -, -, - S.E.2d -, - (2005) (COA03-1222) (relying on Kentucky v. Graham, 473 U.S. 159, 165-66, 87 L. Ed. 2d 114, 121 (1985) which stated \u201cOfficial-capacity suits . . . generally represent only another way of pleading an action against an entity of which an officer is an agent\u201d).\nFurthermore, in order for a plaintiff to recover under 42 U.S.C. \u00a7 1983, he must show the local government had in effect a policy or custom, \u201cwhether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy\u201d to which the injury could be attributed. Monell, 436 U.S. at 694, 56 L. Ed. 2d at 638. Plaintiff failed to present any evidence that Riley acted pursuant to a municipal policy or custom, or committed the act while in the role of the municipality\u2019s final policymaker on that subject. Nor was this issue submitted to the jury for disposition. Consequently, the trial judge did not abuse his discretion in denying plaintiff\u2019s motion to amend his complaint to add a cause of action under 42 U.S.C. \u00a7 1983, as such an amendment would have been futile. This assignment of error is without merit.\nCosts\nPlaintiff next contends the trial court erred in denying his motion for costs and expenses, including attorney\u2019s fees, following a favorable jury verdict. We disagree.\nN.C. Gen. Stat. \u00a7 6-18 requires the trial court to award costs to the prevailing plaintiff in an action for assault or battery. N.C. Gen. Stat. \u00a7 6-18(3) (2004). The costs to be awarded under N.C. Gen. Stat. \u00a7 6-18 are limited to the costs specifically listed in N.C. Gen. Stat. \u00a7 7A-305(d). Dep\u2019t of Transp. v. Charlotte Area Mfd. Housing, Inc., 160 N.C. App. 461, 469, 586 S.E.2d 780, 785 (2003), and those awarded in the trial court\u2019s discretion under N.C. Gen. Stat. \u00a7 6-20. Lord v. Customized Consulting Specialty, Inc., 164 N.C. App. 730, 734, 596 S.E.2d 891, 895 (2004).\nIn analyzing whether the trial court properly assessed costs, we must undertake a three-step analysis. First, we must determine whether the cost sought is one enumerated in N.C. Gen. Stat. \u00a7 7A-305(d); if so, the trial court is required to assess the item as costs. Id. Second, where the cost is not an item listed under N.C. Gen. Stat. \u00a7 7A-305(d), we must determine if it is a \u201ccommon law cost\u201d under the rationale of Charlotte Area. Id. (defining \u201c \u2018common law\u2019 costs as being those costs established by case law prior to the enactment of N.C. Gen. Stat. \u00a7 7A-320 in 1983\u201d). Third, if the cost sought to be recovered is a \u201ccommon law cost,\u201d we must determine whether the trial court abused its discretion in awarding or denying the cost under N.C. Gen. Stat. \u00a7 6-20. Id.\nIn this case, plaintiff seeks recovery for costs related to (1) attorney\u2019s fees, (2) legal assistant and administrative support staff, (3) depositions and deposition related expenses, (4) expert witness fees, (5) copy expenses, (6) reproductions of videotapes, (7) \u201cmiscellaneous expenses (telephone bill, etc.)\u201d (7) mailing costs, (8) transcript costs, (9) mediator fee, and (10) service of process.\nA. Attorney\u2019s Fees\nA prevailing party may not recover attorney\u2019s fees as damages or as part of the court costs in the absence of some contractual obligation or statutory authority. Bailey v. State of North Carolina, 348 N.C. 130, 159, 500 S.E.2d 54, 71 (1998); Thorpe v. Perry-Riddick, 144 N.C. App. 567, 570, 551 S.E.2d 852, 856 (2001). Plaintiff points to N.C. Gen. Stat. \u00a7 7A-305(d)(3), which states that \u201c[t]he following expenses, when incurred, are also assessable or recoverable, as the case may be: ... (3) Counsel fees, as provided by law[,]\u201d as providing the statutory authority authorizing the trial court to award attorney\u2019s fees. This is an incorrect reading of the statute, as the provision does not merely read that the successful litigant is entitled to \u201ccounsel fees,\u201d but modifies that by stating, \u201cas provided by law.\u201d Absent a separate statute authorizing the award of attorney\u2019s fees, such as N.C. Gen. Stat. \u00a7 6-21.1, a successful litigant cannot recover attorney\u2019s fees. See Lee Cycle Ctr., Inc. v. Wilson Cycle Ctr., Inc., 143 N.C. App. 1, 12-13, 545 S.E.2d 745, 754 (2001). Plaintiff has not cited any statute, nor do we find any authority allowing the trial judge to award attorney\u2019s fees to the prevailing party in a civil assault case, nor were they allowed at common law. The trial court did not err in denying plaintiffs motion for attorney\u2019s fees.\nB. Legal Assistants and Administrative Support Staff\nWe next address the costs attributable to legal assistants and administrative support staff. These costs are not listed as a recoverable expense under N.C. Gen. Stat. \u00a7 7A-305(d). Further, if attorney\u2019s fees are generally not a recoverable cost, there is no logical reason for us to find the costs attributable to an attorney\u2019s legal assistants and administrative support staff would be recoverable. There is no statutory authority authorizing the recovery of these costs, nor can we find any authority that they were allowed under the common law. The trial court did not err in denying plaintiff recovery of these costs.\nC. Remaining Costs\nSince plaintiff is not entitled to recover attorney\u2019s fees or costs associated with the attorney\u2019s legal assistants or administrative support staff, we need not discuss whether the trial court erred in denying plaintiff recovery of the remaining costs. Even if plaintiff was entitled to recover all of the other costs which he appeals, those costs combined with plaintiff\u2019s jury award and defendant\u2019s costs would not exceed $250,000.00, the amount of defendant\u2019s self-insured retention. As a result, plaintiff has failed to prove defendant waived his sovereign immunity and is barred from any recovery. We need not address plaintiff\u2019s remaining arguments.\nFor the reasons discussed herein, we affirm the trial court\u2019s rulings.\nAFFIRMED.\nJudges WYNN and HUDSON concur.\n. To the extent of the $250,000.00 self-insured retention, plaintiff could recover only if Mecklenburg County adopted a resolution pursuant to Chapter 980 of the 1988 Session Laws. The record in this case is devoid of any such resolution.",
        "type": "majority",
        "author": "STEELMAN, Judge."
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    "attorneys": [
      "Pamela A. Hunter for plaintiff-appellant.",
      "Womble Carlyle Sandridge & Rice, by Scott D. MacLatchie, for defendants-appellees."
    ],
    "corrections": "",
    "head_matter": "STACY CUNNINGHAM, Plaintiff v. JAMES RILEY, SR., in his capacity as a MECKLENBURG COUNTY DEPUTY SHERIFF, JAMES PENDERGRAPH, SHERIFF OF MECKLENBURG COUNTY, Defendants\nNo. COA04-806\n(Filed 5 April 2005)\n1. Immunity\u2014 sovereign \u2014 waiver\u2014loss exceeding $250,000\nThe claims of a plaintiff who alleged that he was assaulted by a deputy while an inmate in the Mecklenburg County jail were barred by sovereign immunity unless the total loss exceeded a self-insured retention of $250,000. Mecklenburg County had purchased insurance for a total loss exceeding $250,000, including the verdict, plaintiff\u2019s costs, and defendant\u2019s costs.\n2. Pleadings\u2014 motion to amend \u2014 42 U.S.C. \u00a7 1983 \u2014 requirements\nThe trial court did not abuse its discretion by denying plaintiff\u2019s motion to amend the pleadings after the verdict, to add a claim under 42 U.S.C. \u00a7 1983 where plaintiff alleged that he had been assaulted by a deputy while an inmate in the Mecklenburg County jail. The claim against the deputy in his official capacity constituted a respondeat superior suit against the county and local government liability under 42 U.S.C. \u00a7 1983 cannot be based on a theory of respondeat superior. Moreover, a 42 U.S.C. \u00a7 1983 claimant must show that the local government had in effect a policy or custom to which the injury could be attributed, which this plaintiff did not do. Nor was this issue submitted to the jury.\n3. Costs\u2014 civil assault \u2014 favorable verdict \u2014 attorney fees\nThe trial court did not err by denying plaintiffs motion for attorney fees following a favorable jury verdict in a civil assault case. Absent a separate authorizing statute, not found here, a successful litigant cannot recover attorney fees.\n4. Costs\u2014 assistants and support staff \u2014 not allowed\nThe trial court did not err by denying a successful plaintiff costs for legal assistants and administrative support staff. These are not listed as recoverable expenses under N.C.G.S. \u00a7 7A-305(d) and there is no logical reason to find that these costs are recoverable when attorney fees are not generally recoverable.\nAppeal by plaintiff from judgment entered 4 November 2003 by Judge Richard Doughton in Mecklenburg County Superior Court. Heard in the Court of Appeals 15 February 2005.\nPamela A. Hunter for plaintiff-appellant.\nWomble Carlyle Sandridge & Rice, by Scott D. MacLatchie, for defendants-appellees."
  },
  "file_name": "0600-01",
  "first_page_order": 630,
  "last_page_order": 636
}
