{ "id": 8469247, "name": "GENE H. CARSWELL, Plaintiff v. HENDERSONVILLE COUNTRY CLUB, INC., A North Carolina Corporation, Defendant", "name_abbreviation": "Carswell v. Hendersonville Country Club, Inc.", "decision_date": "2005-03-15", "docket_number": "No. COA04-691", "first_page": "227", "last_page": "231", "citations": [ { "type": "official", "cite": "169 N.C. App. 227" } ], "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": "399 S.E.2d 132", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "opinion_index": 0 }, { "cite": "327 N.C. 643", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2493472, 2496355, 2493582, 2493167, 2497967 ], "year": 1990, "opinion_index": 0, "case_paths": [ "/nc/327/0643-01", "/nc/327/0643-02", "/nc/327/0643-03", "/nc/327/0643-05", "/nc/327/0643-04" ] }, { "cite": "394 S.E.2d 217", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "219" } ], "opinion_index": 0 }, { "cite": "100 N.C. App. 51", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526263 ], "pin_cites": [ { "page": "55" } ], "opinion_index": 0, "case_paths": [ "/nc-app/100/0051-01" ] }, { "cite": "556 S.E.2d 293", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "opinion_index": 0 }, { "cite": "354 N.C. 565", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 138456 ], "year": 2001, "opinion_index": 0, "case_paths": [ "/nc/354/0565-01" ] }, { "cite": "545 S.E.2d 745", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "752" } ], "opinion_index": 0 }, { "cite": "143 N.C. App. 1", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11432820 ], "pin_cites": [ { "page": "11-12" } ], "opinion_index": 0, "case_paths": [ "/nc-app/143/0001-01" ] }, { "cite": "570 S.E.2d 506", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "opinion_index": 0 }, { "cite": "356 N.C. 301", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1511202, 1511420, 1511125, 1511175 ], "year": 2002, "opinion_index": 0, "case_paths": [ "/nc/356/0301-02", "/nc/356/0301-03", "/nc/356/0301-04", "/nc/356/0301-01" ] }, { "cite": "551 S.E.2d 207", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "pin_cites": [ { "page": "212", "parenthetical": "provision in consent judgment for attorneys' fees invalid in absence of statutory authority" } ], "opinion_index": 0 }, { "cite": "145 N.C. App. 290", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11437188 ], "year": 2001, "pin_cites": [ { "page": "297-98", "parenthetical": "provision in consent judgment for attorneys' fees invalid in absence of statutory authority" } ], "opinion_index": 0, "case_paths": [ "/nc-app/145/0290-01" ] }, { "cite": "462 S.E.2d 219", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "opinion_index": 0 }, { "cite": "341 N.C. 702", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 793212 ], "year": 1995, "opinion_index": 0, "case_paths": [ "/nc/341/0702-01" ] }, { "cite": "266 S.E.2d 812", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "pin_cites": [ { "page": "814-15" } ], "opinion_index": 0 }, { "cite": "300 N.C. 286", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561053 ], "year": 1980, "pin_cites": [ { "page": "289" } ], "opinion_index": 0, "case_paths": [ "/nc/300/0286-01" ] }, { "cite": "450 S.E.2d 498", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "page": "502", "parenthetical": "citing Enterprises, Inc. v. Equipment, Co., 300 N.C. 286, 289, 266 S.E.2d 812, 814-15 (1980)" } ], "opinion_index": 0 }, { "cite": "117 N.C. App. 232", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524938 ], "year": 1994, "pin_cites": [ { "page": "238", "parenthetical": "citing Enterprises, Inc. v. Equipment, Co., 300 N.C. 286, 289, 266 S.E.2d 812, 814-15 (1980)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/117/0232-01" ] }, { "cite": "441 S.E.2d 144", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "page": "144-45", "parenthetical": "with the exception of domestic relations cases, a consent judgment is merely a court-approved contract without a judicial determination" } ], "opinion_index": 0 }, { "cite": "114 N.C. App. 105", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527185 ], "year": 1994, "pin_cites": [ { "page": "106", "parenthetical": "with the exception of domestic relations cases, a consent judgment is merely a court-approved contract without a judicial determination" } ], "opinion_index": 0, "case_paths": [ "/nc-app/114/0105-01" ] }, { "cite": "594 S.E.2d 793", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2004, "pin_cites": [ { "page": "795", "parenthetical": "consent judgment which contains no findings or conclusions is merely recital of parties' agreement; not an adjudication of rights" } ], "opinion_index": 0 }, { "cite": "163 N.C. App. 779", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8921013 ], "year": 2004, "pin_cites": [ { "page": "781", "parenthetical": "consent judgment which contains no findings or conclusions is merely recital of parties' agreement; not an adjudication of rights" } ], "opinion_index": 0, "case_paths": [ "/nc-app/163/0779-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 55-16-04", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 4, "pin_cites": [ { "page": "(a) and (b)" }, { "page": "(c)" }, { "page": "(c)" } ], "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 55-16-01", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "opinion_index": 0 } ], "analysis": { "cardinality": 557, "char_count": 10132, "ocr_confidence": 0.748, "pagerank": { "raw": 8.43072990387578e-08, "percentile": 0.48388747760969847 }, "sha256": "bb94e19dc946daed92923d9fcfa3b9a5394e8849229318df25321d6a52b58b17", "simhash": "1:6e0b07663dbf3474", "word_count": 1613 }, "last_updated": "2023-07-14T22:06:54.593382+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Chief Judge MARTIN and Judge McCULLOUGH concur." ], "parties": [ "GENE H. CARSWELL, Plaintiff v. HENDERSONVILLE COUNTRY CLUB, INC., A North Carolina Corporation, Defendant" ], "opinions": [ { "text": "ELMORE, Judge.\nGene H. Carswell (plaintiff) is a shareholder of Hendersonville Country Club, Inc. (defendant) and was elected as a director in August 1999. On 7 December 2001 plaintiff made a request in writing to defendant that he be allowed to review and copy certain documents, including a shareholder list. On 14 January 2002 defendant provided plaintiff access to the minutes of board meetings and other corporate documents at the Club\u2019s management office. While copying these documents, plaintiff inquired about obtaining shareholder personal information. When defendant\u2019s staff advised plaintiff that his inquiry would be considered by management, plaintiff left the office without completing the document review he had requested.\nOn 1 February 2002 plaintiff\u2019s attorney, Mr. Timothy Cosgrove, demanded that defendant provide plaintiff with a list of names and home addresses of all shareholders; stock transfer records; tax returns over the past five years; and the name of defendant\u2019s 401K administrator. Plaintiff then corresponded directly with the President of defendant\u2019s Board of Directors, Mr. John Gould. On 13 March 2002 defendant informed plaintiff that it had already made available for plaintiffs review the tax returns, stock transfer records, accounting records, minutes of director and shareholder meetings, and a list of shareholder names. Defendant indicated that its concern for shareholder privacy prompted the decision to withhold shareholder home addresses and phone numbers.\nDespite being provided access to defendant\u2019s records, on 26 March 2002, plaintiff filed an application in Henderson County Superior Court for inspection of business records pursuant to N.C. Gen. Stat. \u00a7 55-16-01 et. seq. In response to plaintiff\u2019s conduct, defendant suspended plaintiff\u2019s membership with the Club effective 2 April 2002. Defendant then filed a motion to dismiss plaintiff\u2019s complaint, but the parties subsequently entered into settlement negotiations. The parties and their attorneys signed a consent order and voluntary dismissal with prejudice of plaintiff\u2019s action; the order was approved by Judge Zoro J. Guice on 2 July 2002. The parties agreed that plaintiff \u201cshall have full and ongoing access to all records of the Club, and at Plaintiff\u2019s expense may copy same, during normal business hours of the Club\u2019s office . . . .\u201d Plaintiff was granted permission to copy shareholder addresses and telephone numbers and any other documents \u201cthat Plaintiff believes necessary to fulfill his duties as director during his term or to which he is entitled to as a stockholder.\u201d The order also provided that plaintiff was reinstated as a Club member, canceling his suspension. With respect to th\u00e9 issue of attorneys\u2019 fees, the order stated the following:\n6. The parties agree to submit to this court for decision by Brief and stipulated facts (if the parties cannot stipulate as to facts then by affidavit proposed by each of the parties) without request for oral argument their respective requests for the award of attorneys fees in this matter. This court shall retain jurisdiction in this matter to enforce the terms and conditions by which the parties have agreed and consented to the entry of this Order as set out herein.\nIn accordance with the terms of the consent order, both parties submitted affidavits setting out their requests for attorneys\u2019 fees. Judge Baker ruled on the requests and mailed a copy of his order along with a letter to the parties addressing their entitlement to attorneys\u2019 fees. In this letter, Judge Baker observed that almost every single assertion by one side was contested by the opposing party. In the order, he determined that each party should bear its own costs and expenses and denied the requests for attorneys\u2019 fees. From this order entered 20 January 2004, plaintiff appeals.\nPlaintiff contends that an award of attorneys\u2019 fees was mandated under N.C. Gen. Stat. \u00a7 55-16-04. We disagree. Our General Statutes permit a shareholder who properly demands and is denied access to corporate records to apply for court-ordered inspection and copying of the requested documents at the corporation\u2019s expense. See N.C. Gen. Stat. \u00a7 55-16-04(a) and (b). The statute further provides that\nIf the court orders inspection and copying of the records demanded, it shall also order the corporation to pay the shareholder\u2019s costs (including reasonable attorneys\u2019 fees) incurred to obtain the order unless the corporation proves that it refused inspection in good faith because it had a reasonable basis for doubt about the right of the shareholder to inspect the records demanded.\nN.C. Gen. Stat. \u00a7 55-16-04(c) (2003). Thus, the language of the statute is clear that attorneys\u2019 fees may only be awarded following a court order requiring the corporation to allow inspection and copying of the records demanded by the shareholder. Here, the court did not enter an order to this effect. Rather, the parties agreed that plaintiff would have ongoing access to defendant\u2019s records and signed a consent order which was approved by the court. This consent order is not an adjudication of rights in favor of plaintiff because it contains no findings of fact or conclusions of law by the trial court. See Ibele v. Tate, 163 N.C. App. 779, 781, 594 S.E.2d 793, 795 (2004) (consent judgment which contains no findings or conclusions is merely recital of parties\u2019 agreement; not an adjudication of rights); Crane v. Green, 114 N.C. App. 105, 106, 441 S.E.2d 144, 144-45 (1994) (with the exception of domestic relations cases, a consent judgment is merely a court-approved contract without a judicial determination). As there was no court order enforcing plaintiff\u2019s statutory right to inspection and copying of defendant\u2019s corporate records at defendant\u2019s expense, plaintiff was not entitled to an award of attorneys\u2019 fees under N.C. Gen. Stat. \u00a7 55-16-04(c).\nNext, plaintiff argues that Paragraph 6 of the consent order provides the court with authority to award attorneys\u2019 fees. However, \u201c[a]s a general rule contractual provisions for attorney\u2019s fees are invalid in the absence of statutory authority.\u201d Forsyth Municipal ABC Board v. Folds, 117 N.C. App. 232, 238, 450 S.E.2d 498, 502 (1994) (citing Enterprises, Inc. v. Equipment, Co., 300 N.C. 286, 289, 266 S.E.2d 812, 814-15 (1980)). The only exception recognized by our Supreme Court deals with contractual provisions for attorneys\u2019 fees contained in separation agreements. See Bromhal v. Stott, 341 N.C. 702, 462 S.E.2d 219 (1995). Thus, even though the consent order contained an express provision permitting the parties to seek recovery of attorneys\u2019 fees, neither party is entitled to an award of fees absent statutory authority. See Harborgate Prop. Owners Ass\u2019n v. Mountain Lake Shores Dev. Corp., 145 N.C. App. 290, 297-98, 551 S.E.2d 207, 212 (2001) (provision in consent judgment for attorneys\u2019 fees invalid in absence of statutory authority), disc. review denied, 356 N.C. 301, 570 S.E.2d 506 (2002); see also Lee Cycle Ctr., Inc. v. Wilson Cycle Ctr., Inc., 143 N.C. App. 1, 11-12, 545 S.E.2d 745, 752 (contractual provision notwithstanding, parties could not recover attorneys\u2019 fees without express statutory authority), aff\u2019d, 354 N.C. 565, 556 S.E.2d 293 (2001). As the court properly denied the requests of both parties, plaintiff\u2019s argument is overruled.\nFinally, plaintiff argues that the trial court erred in failing to enter findings pursuant to N.C. Gen. Stat. \u00a7 1A-1, Rule 52(a)(1). We disagree. Rule 52(a)(1) of the North Carolina Rules of Civil Procedure applies only to \u201cactions\u201d tried before the trial court without a jury. See N.C. Gen. Stat. \u00a7 1A-1, Rule 52(a)(1) (2003); Tay v. Flaherty, 100 N.C. App. 51, 55, 394 S.E.2d 217, 219 (Rule 52(a)(1) inapplicable to hearing on petition for attorneys\u2019 fees because an \u201caction\u201d was already in existence; petition must be characterized as motion for court order pursuant to Rule 7(b)(1)), disc. review denied, 327 N.C. 643, 399 S.E.2d 132 (1990). Here, the parties filed petitions for attorneys\u2019 fees and sought an order of the court; plaintiff\u2019s action had already been addressed in the consent order. Therefore, Rule 52(a)(1) does not apply to the court\u2019s order denying the petitions for an award of attorneys\u2019 fees.\nWe hold that the trial court properly denied both parties\u2019 requests for attorneys\u2019 fees and affirm the court\u2019s order directing each party to pay its own costs and expenses.\nAffirmed.\nChief Judge MARTIN and Judge McCULLOUGH concur.", "type": "majority", "author": "ELMORE, Judge." } ], "attorneys": [ "Law Offices of William M. Alexander, Jr., PLLC, by William M. Alexander, Jr., for plaintiff-appellant.", "Van Winkle, Buck, Wall, Starnes & Davis, P.A., by Stephen J. Grabenstein, for defendant-appellee." ], "corrections": "", "head_matter": "GENE H. CARSWELL, Plaintiff v. HENDERSONVILLE COUNTRY CLUB, INC., A North Carolina Corporation, Defendant\nNo. COA04-691\n(Filed 15 March 2005)\n1. Corporations; Costs\u2014 attorney fees \u2014 access to corporate records \u2014 no court order\nPlaintiff shareholder was not entitled to an award of attorney fees under N.C.G.S. \u00a7 55-16-04(c) where there was no court order enforcing plaintiff\u2019s statutory right to inspection and copying of defendant\u2019s corporate records at defendant\u2019s expense. The parties had signed a consent order that plaintiff would have access, but that order contained no findings or conclusions and was not an adjudication of rights.\n2. Costs\u2014 attorney fees \u2014 authority to award \u2014 consent order\nA provision in a consent order giving the court the authority to award attorney fees in a dispute over access to corporate records was not valid in the absence of statutory authority.\n3. Judgments\u2014 findings \u2014 bench trial \u2014 consent order \u2014 subsequent petition for attorney fees\nThe trial court did not err by failing to enter findings pursuant to N.C.G.S. \u00a7 1A-1, Rule 52(a)(1) in ruling on a petition for attorney fees. That rule applies only to \u201cactions\u201d tried before the trial court without a jury; here, the action had been addressed in a consent order.\nAppeal by plaintiff from order entered 20 January 2004 by Judge James L. Baker, Jr. in Henderson County Superior Court. Heard in the Court of Appeals 31 January 2005.\nLaw Offices of William M. Alexander, Jr., PLLC, by William M. Alexander, Jr., for plaintiff-appellant.\nVan Winkle, Buck, Wall, Starnes & Davis, P.A., by Stephen J. Grabenstein, for defendant-appellee." }, "file_name": "0227-01", "first_page_order": 257, "last_page_order": 261 }