{ "id": 8353277, "name": "ALLEN PARKER, Plaintiff v. BRIAN KEITH HENSLEY, Defendant", "name_abbreviation": "Parker v. Hensley", "decision_date": "2006-02-07", "docket_number": "No. COA05-299", "first_page": "740", "last_page": "745", "citations": [ { "type": "official", "cite": "175 N.C. App. 740" } ], "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": "N.C. Gen. Stat. \u00a7 6-20", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 2005, "pin_cites": [ { "parenthetical": "providing, \"[C]osts may be allowed or not, in the discretion of the court[.]\"" } ], "opinion_index": 0 }, { "cite": "528 S.E.2d 71", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2000, "opinion_index": 0 }, { "cite": "137 N.C. App. 376", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11093532 ], "year": 2000, "opinion_index": 0, "case_paths": [ "/nc-app/137/0376-01" ] }, { "cite": "255 S.E.2d 782", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "pin_cites": [ { "page": "784" } ], "opinion_index": 0 }, { "cite": "42 N.C. App. 50", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8552125 ], "year": 1979, "pin_cites": [ { "page": "53" } ], "opinion_index": 0, "case_paths": [ "/nc-app/42/0050-01" ] }, { "cite": "513 S.E.2d 331", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "pin_cites": [ { "page": "334", "parenthetical": "holding that the decision to allow attorney fees rests with the trial judge, and that decision may only be reversed for an abuse of discretion" } ], "opinion_index": 0 }, { "cite": "132 N.C. App. 347", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11237900 ], "year": 1999, "pin_cites": [ { "page": "351", "parenthetical": "holding that the decision to allow attorney fees rests with the trial judge, and that decision may only be reversed for an abuse of discretion" } ], "opinion_index": 0, "case_paths": [ "/nc-app/132/0347-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 6-21.1", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "year": 2005, "opinion_index": 0 }, { "cite": "551 S.E.2d 852", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 2001, "pin_cites": [ { "page": "856", "parenthetical": "citation omitted" }, { "page": "856" }, { "page": "856" } ], "opinion_index": 0 }, { "cite": "144 N.C. App. 567", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11435704 ], "weight": 3, "year": 2001, "pin_cites": [ { "page": "572", "parenthetical": "citation omitted" }, { "page": "571" }, { "page": "572" } ], "opinion_index": 0, "case_paths": [ "/nc-app/144/0567-01" ] }, { "cite": "379 S.E.2d 30", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "pin_cites": [ { "page": "37", "parenthetical": "\"a panel of the Court of Appeals is bound by a prior decision of another panel of the same court addressing the same question, but in a different case, unless overturned by an intervening decision from a higher court\"" } ], "opinion_index": 1 }, { "cite": "324 N.C. 373", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2483734 ], "year": 1989, "pin_cites": [ { "page": "384", "parenthetical": "\"a panel of the Court of Appeals is bound by a prior decision of another panel of the same court addressing the same question, but in a different case, unless overturned by an intervening decision from a higher court\"" } ], "opinion_index": 1, "case_paths": [ "/nc/324/0373-01" ] }, { "cite": "571 S.E.2d 220", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "opinion_index": 1 }, { "cite": "356 N.C. 315", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1511539 ], "year": 2002, "opinion_index": 1, "case_paths": [ "/nc/356/0315-01" ] }, { "cite": "553 S.E.2d 431", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 5, "year": 2001, "pin_cites": [ { "page": "444" } ], "opinion_index": 1 }, { "cite": "146 N.C. App. 449", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11359409 ], "year": 2001, "opinion_index": 1, "case_paths": [ "/nc-app/146/0449-01" ] }, { "cite": "372 S.E.2d 523", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "page": "527" } ], "opinion_index": 1 }, { "cite": "323 N.C. 279", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2562603 ], "year": 1988, "pin_cites": [ { "page": "285" } ], "opinion_index": 1, "case_paths": [ "/nc/323/0279-01" ] }, { "cite": "513 S.E.2d 331", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "opinion_index": 1 }, { "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" ] } ], "analysis": { "cardinality": 562, "char_count": 12457, "ocr_confidence": 0.747, "pagerank": { "raw": 5.207966869300525e-08, "percentile": 0.327872590255262 }, "sha256": "bad503ada9aee06a392d24c96157f17c5d22828fbc15cc9c6487e99f4308a62b", "simhash": "1:23b6da227e4f8e64", "word_count": 2029 }, "last_updated": "2023-07-14T22:29:36.119960+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judge STEELMAN concurs.", "Judge JOHN concurs in part and dissents in part with separate opinion." ], "parties": [ "ALLEN PARKER, Plaintiff v. BRIAN KEITH HENSLEY, Defendant" ], "opinions": [ { "text": "WYNN, Judge.\n\u201cIf the trial court elects to award attorney fees, it must also enter findings of fact as to the time and labor expended, skill required, customary fee for like work, and experience or ability of the attorney based on competent evidence.\u201d Thorpe v. Perry-Riddick, 144 N.C. App. 567, 572, 551 S.E.2d 852, 856 (2001) (citation omitted). In this case, Plaintiff argues that the trial court awarded Plaintiff attorney fees under North Carolina General Statute section 6-21.1 without making any findings of fact to support the amount of the award. See N.C. Gen. Stat. \u00a7 6-21.1 (2005). As we agree with Plaintiffs contention, we remand this case to the trial court for further findings of fact.\nThis matter arises from a vehicular collision on 10 March 2003, in which Plaintiffs new pickup truck was damaged as a result of Defendant\u2019s negligence. Plaintiff demanded Defendant\u2019s liability insurance carrier, Farm Bureau Mutual Insurance Company, replace his damaged truck with a new truck. But Farm Bureau declined to replace Plaintiff\u2019s truck, agreeing instead to repair the truck and address any issue regarding \u201cdiminution in value\u201d after completing the repairs. The truck was repaired at a cost of $5,737.63, which is not an issue in this matter. Instead, the parties disagreed as to the amount to be attributable for \u201cdiminution in value\u201d (Farm Bureau initially offered up to $2000, but Plaintiff demanded $8,500.00).\nPlaintiff retained counsel and filed suit on 18 July 2003. In October 2003, Defendant served an Offer of Judgment for $4,385.73, but Plaintiff requested $8,500.00 plus attorney fees and costs, or, alternatively, \u201ca comparable truck less minimal allowance for mileage, loss of use and attorney fees and costs.\u201d Thereafter, the parties unsuccessfully attempted to mediate this matter.\nThis matter went to trial on 1 June 2004. Before jury selection, Defendant offered $6,000.00 but Plaintiff demanded $7,500.00. In closing arguments, however, Plaintiff asked the jury for a total verdict of $5,500.00, which was the maximum \u201cdiminution in value\u201d Plaintiff\u2019s evidence supported. The jury returned a verdict for Plaintiff in the amount of $4,500.00 for \u201cdiminution in value\u201d.\nFollowing the jury verdict, Plaintiff moved for an award of $8,964.50 in attorney fees and $1,701.00 in costs. On 24 August 2004, the trial court awarded Plaintiff attorney fees in the amount of $500.00, but denied Plaintiff\u2019s request for costs.\nPlaintiff first argues that the trial court failed to make findings to support the award of attorney fees in the amount of $500.00 under North Carolina General Statute section 6-21.1. We agree.\nPreliminarily, we note that the issue on appeal concerns the amount of the attorney fee award, not whether attorney fees should be awarded which the trial court in this case, in its discretion, elected to do after considering the factors under Washington v. Horton, 132 N.C. App. 347, 351, 513 S.E.2d 331, 334 (1999) (holding that the decision to allow attorney fees rests with the trial judge, and that decision may only be reversed for an abuse of discretion). See N.C. Gen. Stat. \u00a7 6-21.1 (providing that where the recovery of damages is $10,000.00 or less in a property damage suit, upon a finding that there was an unwarranted refusal by the defendant insurance company to pay the claim which constitutes the basis for such suit, the presiding judge has discretion to grant attorney fees).\nThe amount of attorney fees is also discretionary. Black v. Standard Guaranty Ins. Co., 42 N.C. App. 50, 53, 255 S.E.2d 782, 784 (1979). However, the trial court\u2019s discretion is not \u201cunbridled.\u201d Thorpe, 144 N.C. App. at 571, 551 S.E.2d at 856. Indeed, where a trial court awards attorney fees under North Carolina General Statute section 6-21.1, the trial court must also make findings of fact supported by competent evidence concerning \u201cthe time and labor expended, skill required, customary fee for like work, and experience or ability of the attorney based on competent evidence.\u201d Id.; see also Porterfield v. Goldkuhle, 137 N.C. App. 376, 528 S.E.2d 71 (2000). The mere recitation that the fees are \u201creasonable\u201d without further findings is inadequate. Id.\n\u25a0 Here, the amount of attorney fees awarded is not supported by the trial court\u2019s findings of fact or conclusions of law. The trial court awarded attorney fees in the amount of $500.00 where Plaintiff\u2019s counsel provided an affidavit and detailed worksheet outlining his fees to support an award in the amount of $8,964.50. The trial court awarded attorney fees based only on the following conclusion:\n18. For all of the foregoing reasons the Court finds, in its discretion that Plaintiff should recover attorney\u2019s fees in the amount of $500.00.\nAlthough the trial court heard arguments in support of attorney fees, it failed to make findings concerning: (1) the reasonable time and labor for Plaintiff\u2019s counsel to expend, (2) skill required.by this case, (3) the customary fee for similar cases and (4) the experience and ability of the Plaintiff\u2019s attorney: See Thorpe, 144 N.C. App. at 572, 551 S.E.2d at 856. Because the trial court\u2019s findings of fact are insufficient for us to determine whether the amount of the award of attorney fees is reasonable, we remand for the trial court to make findings of fact on the time and labor expended by Plaintiff\u2019s counsel, the skill required and the customary fee for similar work, and Plaintiff counsel\u2019s experience or ability. We note, however, that we do not disapprove of the actual amount awarded by the trial court in this case; indeed, we return this matter to the trial court to make proper findings to support whatever amount the trial judge decides in his discretion is appropriate in this case.\nPlaintiff next contends the trial court erred in denying him costs under North Carolina General Statute section 6-20. An award of costs under section 6-20 is discretionary. See N.C. Gen. Stat. \u00a7 6-20 (2005) (providing, \u201c[C]osts may be allowed or not, in the discretion of the court[.]\u201d). As we can discern no abuse of discretion by the trial court, we uphold the denial of costs in this matter.\nRemanded in part, Affirmed in part.\nJudge STEELMAN concurs.\nJudge JOHN concurs in part and dissents in part with separate opinion.\n. Plaintiff\u2019s motion also stated:\n29. Plaintiff retained counsel ... on a one-third contingency fee plus cost contract.\n30. Notwithstanding this one-third contract contingency fee contract counsel for the Plaintiff waives the one-third fee provision and relies on the Court for an award of attorney fees consistent with N.C.G.S. \u00a7 6-21.1.", "type": "majority", "author": "WYNN, Judge." }, { "text": "JOHN, Judge,\nconcurring in part and dissenting in part.\nBecause I believe the amount of attorney fees awarded plaintiff by the trial court did not constitute an abuse of discretion, I must respectfully dissent from that portion of the majority opinion remanding for additional findings. I concur in that portion of the majority opinion affirming the trial court\u2019s denial of an award of costs.\nThe majority remands \u201cfor the trial court to make findings of fact on the time and labor expended by Plaintiff\u2019s counsel, the skill required and the customary fee for similar work, and Plaintiff counsel\u2019s experience and ability.\u201d However, these factors were not contested in the trial court. Counsel for plaintiff proffered to the trial court a detailed affidavit containing all the information the majority deems lacking in the court\u2019s judgment. Counsel for defendant stated he \u201cd[id no]t disagree with Mr. Bell\u2019s affidavit\u201d and that he felt the rate and hours represented were \u201cfair.\u201d\nContested below was the question of whether the amount of time expended by plaintiff\u2019s counsel was commensurate with a case in which the maximum amount of recovery supported by plaintiff\u2019s evidence (and which amount plaintiffs counsel sought in his jury argument) was less than the sum offered by defendant in settlement (and which latter figure likewise was greater than the jury verdict). Thus the issue before this Court is not whether the trial court\u2019s judgment contained findings irrelevant to the dispute at hand, but whether the trial court\u2019s order constituted an abuse of discretion in light of its exhaustive, four-page recitation of findings addressing, and its consideration of, the guidelines set out in Washington v. Horton, 132 N.C. App. 347, 513 S.E.2d 331 (1999).\nTo show an abuse of discretion, an appellant must demonstrate the trial court\u2019s ruling is \u201cmanifestly unsupported by reason or is so arbitrary that it could not have been the result of a reasoned decision.\u201d State v. Hennis, 323 N.C. 279, 285, 372 S.E.2d 523, 527 (1988). In Whiteside Estates, Inc. v. Highlands Cove, L.L.C., 146 N.C. App. 449, 553 S.E.2d 431 (2001), disc. review denied, 356 N.C. 315, 571 S.E.2d 220 (2002), this Court considered whether the trial court abused its discretion in awarding attorney fees absent \u201cappropriate findings of fact as to the time and labor expended, the skill required, the customary fee for like work, and the experience or ability of the attorney.\u201d Id. at 468, 553 S.E.2d at 444. In that case, as in the case sub judice, an extensive affidavit was presented to the trial court addressing such matters, and the award of fees was not challenged upon those grounds but rather upon the contention that portions of the requested fees were unrelated to the matter at hand. Id. The trial court\u2019s award of attorney fees in Whiteside, see id., contained a statement similar to the trial court\u2019s recitation herein that it had reviewed \u201cthe entire record, including Plaintiff\u2019s Motion for Attorney\u2019s Fees, the arguments of counsel, the Court file, and the Court\u2019s own recollection of how this case was tried[.]\u201d This Court concluded in Whiteside that, under the circumstances presented and notwithstanding the absence of the findings noted above, it \u201ccfould] not find an abuse of discretion\u201d and affirmed the award of attorney fees. Id.\nIn the instant case, all the information required by the majority opinion of the trial court in the form of findings of fact was without question before that court, and is essentially uncontested and irrelevant to the court\u2019s award of attorney fees. The trial court set forth extensive findings addressing the Washington factors and in consideration thereof reasoned that \u201cPlaintiff should recover attorney\u2019s fees in the amount of $500.00.\u201d Reviewing the trial court\u2019s plenary findings and following the mandate of Whiteside, see In the Matter of Appeal from Civil Penalty, 324 N.C. 373, 384, 379 S.E.2d 30, 37 (1989) (\u201ca panel of the Court of Appeals is bound by a prior decision of another panel of the same court addressing the same question, but in a different case, unless overturned by an intervening decision from a higher court\u201d), I cannot say the court\u2019s decision was \u201cmanifestly unsupported by reason or [wa]s so arbitrary that it could not have been the result of a reasoned decision.\u201d I therefore vote to affirm the trial court\u2019s judgment in its entirety.", "type": "concurring-in-part-and-dissenting-in-part", "author": "JOHN, Judge," } ], "attorneys": [ "Braxton H. Bell, for plaintiff-appellant.", "Poyner and Spruill, LLP, by Randall R. Adams, for defendant-appellee." ], "corrections": "", "head_matter": "ALLEN PARKER, Plaintiff v. BRIAN KEITH HENSLEY, Defendant\nNo. COA05-299\n(Filed 7 February 2006)\n1. Costs\u2014 attorney fees \u2014 failure to make findings of fact\nThe trial court erred in a negligence case arising out of an automobile accident by failing to make findings to support the $500 award of attorney fees under N.C.G.S. \u00a7 6-21.1, and the case is remanded to the trial court to make proper findings to support whatever amount the trial judge decides in his discretion is appropriate in this case, because: (1) where a trial court awards attorney fees under N.C.G.S. \u00a7 6-21.1, the trial court must also make findings of fact supported by competent evidence concerning the time and labor expended, skill required, customary fee for like work, and experience or ability of the attorney based on competent evidence; and (2) the mere recitation that the fees are reasonable without further findings is inadequate.\n2. Costs\u2014 denial \u2014 abuse of discretion standard\nThe trial court did not abuse its discretion in a negligence case arising out of an automobile accident by denying plaintiff costs under N.C.G.S. \u00a7 6-20.\nJudge John concurring in part and dissenting in part.\nAppeal by Plaintiff from judgment entered 28 September 2004 by Judge Jerry R. Tillett in Superior Court, Edgecombe County. Heard in the Court of Appeals 15 November 2005.\nBraxton H. Bell, for plaintiff-appellant.\nPoyner and Spruill, LLP, by Randall R. Adams, for defendant-appellee." }, "file_name": "0740-01", "first_page_order": 774, "last_page_order": 779 }