{ "id": 8378742, "name": "BOMBARDIER CAPITAL, INC., Plaintiff v. LAKE HICKORY WATERCRAFT, INC.; MARK J. MARCHESE; LAUREN E. MARCHESE; JOHN T. ADAIR; HILMA S. ADAIR; and SARA PETERS, Defendants; and as to MARK J. MARCHESE and LAUREN E. MARCHESE, Defendants/Third Party Plaintiffs v. JOE CARL ROWE, Third Party Defendant", "name_abbreviation": "Bombardier Capital, Inc. v. Lake Hickory Watercraft, Inc.", "decision_date": "2006-07-18", "docket_number": "No. COA05-1049", "first_page": "535", "last_page": "542", "citations": [ { "type": "official", "cite": "178 N.C. App. 535" } ], "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": "609 S.E.2d 497", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12632480, 12632481, 12632482, 12632483, 12632484, 12632485, 12632486, 12632487, 12632488, 12632489, 12632490, 12632491, 12632492, 12632493 ], "year": 2005, "pin_cites": [ { "parenthetical": "unpublished opinion" } ], "opinion_index": 0, "case_paths": [ "/se2d/609/0497-14", "/se2d/609/0497-01", "/se2d/609/0497-02", "/se2d/609/0497-03", "/se2d/609/0497-04", "/se2d/609/0497-05", "/se2d/609/0497-06", "/se2d/609/0497-07", "/se2d/609/0497-08", "/se2d/609/0497-09", "/se2d/609/0497-10", "/se2d/609/0497-11", "/se2d/609/0497-12", "/se2d/609/0497-13" ] }, { "cite": "168 N.C. App. 728", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12632508, 12632492 ], "year": 2005, "pin_cites": [ { "parenthetical": "unpublished opinion" } ], "opinion_index": 0, "case_paths": [ "/se2d/609/0498-14", "/se2d/609/0497-12" ] }, { "cite": "323 S.E.2d 922", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "opinion_index": 0 }, { "cite": "312 N.C. 621", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4757614, 4751602, 4754239, 4750583, 4751711 ], "year": 1984, "opinion_index": 0, "case_paths": [ "/nc/312/0621-04", "/nc/312/0621-02", "/nc/312/0621-01", "/nc/312/0621-05", "/nc/312/0621-03" ] }, { "cite": "319 S.E.2d 650", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "page": "655" } ], "opinion_index": 0 }, { "cite": "70 N.C. App. 221", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8521343 ], "year": 1984, "pin_cites": [ { "page": "226" } ], "opinion_index": 0, "case_paths": [ "/nc-app/70/0221-01" ] }, { "cite": "266 S.E.2d 812", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "pin_cites": [ { "parenthetical": "the statute applies not only to notes and conditional sale contracts, but also to such other evidence of indebtedness as other writings evidencing an unsecured debt or any other such security agreement which evidences both a monetary obligation and a lease of specific goods" } ], "opinion_index": 0 }, { "cite": "300 N.C. 286", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561053 ], "year": 1980, "pin_cites": [ { "parenthetical": "the statute applies not only to notes and conditional sale contracts, but also to such other evidence of indebtedness as other writings evidencing an unsecured debt or any other such security agreement which evidences both a monetary obligation and a lease of specific goods" } ], "opinion_index": 0, "case_paths": [ "/nc/300/0286-01" ] }, { "cite": "253 S.E.2d 613", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "pin_cites": [ { "page": "616", "parenthetical": "agreements intended as security are evidence of indebtedness covered under the statute" } ], "opinion_index": 0 }, { "cite": "40 N.C. App. 726", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8553037 ], "year": 1979, "pin_cites": [ { "page": "730", "parenthetical": "agreements intended as security are evidence of indebtedness covered under the statute" } ], "opinion_index": 0, "case_paths": [ "/nc-app/40/0726-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 6-21.2", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 2005, "opinion_index": 0 }, { "cite": "197 S.E.2d 880", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1973, "opinion_index": 0 }, { "cite": "283 N.C. 666", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559840, 8559809, 8559848, 8559821, 8559860 ], "year": 1973, "opinion_index": 0, "case_paths": [ "/nc/283/0666-03", "/nc/283/0666-01", "/nc/283/0666-04", "/nc/283/0666-02", "/nc/283/0666-05" ] }, { "cite": "196 S.E.2d 598", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1973, "pin_cites": [ { "page": "602" } ], "opinion_index": 0 }, { "cite": "18 N.C. App. 183", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8548013 ], "year": 1973, "pin_cites": [ { "page": "187" } ], "opinion_index": 0, "case_paths": [ "/nc-app/18/0183-01" ] }, { "cite": "68 S.E.2d 272", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1951, "pin_cites": [ { "page": "275" } ], "opinion_index": 0 }, { "cite": "234 N.C. 644", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8625393 ], "year": 1951, "pin_cites": [ { "page": "648" } ], "opinion_index": 0, "case_paths": [ "/nc/234/0644-01" ] }, { "cite": "304 U.S. 458", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 10805 ], "weight": 2, "year": 1938, "pin_cites": [ { "page": "464" }, { "page": "1466" } ], "opinion_index": 0, "case_paths": [ "/us/304/0458-01" ] }, { "cite": "563 S.E.2d 190", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "parenthetical": "quoting Johnson v. Zerbst, 304 U.S. 458, 464, 82 L. Ed. 1461, 1466 (1938)" } ], "opinion_index": 0 }, { "cite": "355 N.C. 493", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 220106, 220010, 220045, 219924, 220085 ], "year": 2002, "pin_cites": [ { "parenthetical": "quoting Johnson v. Zerbst, 304 U.S. 458, 464, 82 L. Ed. 1461, 1466 (1938)" } ], "opinion_index": 0, "case_paths": [ "/nc/355/0493-04", "/nc/355/0493-01", "/nc/355/0493-05", "/nc/355/0493-02", "/nc/355/0493-03" ] }, { "cite": "558 S.E.2d 199", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 2001, "pin_cites": [ { "page": "206" }, { "page": "206" }, { "page": "206-07" } ], "opinion_index": 0 }, { "cite": "148 N.C. App. 1", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9363461 ], "year": 2001, "pin_cites": [ { "page": "10" } ], "opinion_index": 0, "case_paths": [ "/nc-app/148/0001-01" ] }, { "cite": "298 S.E.2d 357", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1983, "pin_cites": [ { "page": "362", "parenthetical": "quoting 3A A. Corbin, Corbin on Contracts \u00a7 628, at 16 (1960)" }, { "page": "362" } ], "opinion_index": 0 }, { "cite": "307 N.C. 342", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8562325 ], "year": 1983, "pin_cites": [ { "page": "350", "parenthetical": "quoting 3A A. Corbin, Corbin on Contracts \u00a7 628, at 16 (1960)" } ], "opinion_index": 0, "case_paths": [ "/nc/307/0342-01" ] }, { "cite": "514 S.E.2d 275", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "opinion_index": 0 }, { "cite": "349 N.C. 240", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 571617, 571620, 571690, 571723, 571691 ], "year": 1998, "opinion_index": 0, "case_paths": [ "/nc/349/0240-02", "/nc/349/0240-03", "/nc/349/0240-04", "/nc/349/0240-01", "/nc/349/0240-05" ] }, { "cite": "500 S.E.2d 752", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "pin_cites": [ { "page": "759" } ], "opinion_index": 0 }, { "cite": "129 N.C. App. 562", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11651585 ], "year": 1998, "pin_cites": [ { "page": "575" } ], "opinion_index": 0, "case_paths": [ "/nc-app/129/0562-01" ] }, { "cite": "171 S.E. 354", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1933, "pin_cites": [ { "page": "355" } ], "opinion_index": 0 }, { "cite": "205 N.C. 359", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8628743 ], "year": 1933, "pin_cites": [ { "page": "360" } ], "opinion_index": 0, "case_paths": [ "/nc/205/0359-01" ] }, { "cite": "597 S.E.2d 674", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2004, "pin_cites": [ { "page": "694" }, { "page": "693" } ], "opinion_index": 0 }, { "cite": "358 N.C. 440", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2986682 ], "year": 2004, "pin_cites": [ { "page": "471" } ], "opinion_index": 0, "case_paths": [ "/nc/358/0440-01" ] }, { "cite": "586 S.E.2d 247", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "pin_cites": [ { "page": "249" } ], "opinion_index": 0 }, { "cite": "357 N.C. 492", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 491872 ], "year": 2003, "pin_cites": [ { "page": "496" } ], "opinion_index": 0, "case_paths": [ "/nc/357/0492-01" ] } ], "analysis": { "cardinality": 802, "char_count": 17017, "ocr_confidence": 0.755, "pagerank": { "raw": 5.2166354660646145e-08, "percentile": 0.3293852267062674 }, "sha256": "523872ec6295f3ce954ebc6beed46b003a4268b97a756cff2b6e5ae453e98cd0", "simhash": "1:9b7cda3e958b3c76", "word_count": 2699 }, "last_updated": "2023-07-14T17:18:34.747306+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges TYSON and ELMORE concur." ], "parties": [ "BOMBARDIER CAPITAL, INC., Plaintiff v. LAKE HICKORY WATERCRAFT, INC.; MARK J. MARCHESE; LAUREN E. MARCHESE; JOHN T. ADAIR; HILMA S. ADAIR; and SARA PETERS, Defendants, and as to MARK J. MARCHESE and LAUREN E. MARCHESE, Defendants/Third Party Plaintiffs v. JOE CARL ROWE, Third Party Defendant" ], "opinions": [ { "text": "JACKSON, Judge.\nThird-party defendant Joe Carl Rowe (\u201cRowe\u201d) appeals from the trial court\u2019s entry of summary judgment and attorney fees award in favor of defendant/third-party plaintiff Mark J. M\u00e1rchese (\u201cM\u00e1rchese\u201d). On or about 8 December 1992, Lake Hickory Watercraft, Inc. (\u201cLake Hickory\u201d) was incorporated in North Carolina, and Lake Hickory issued a total of three stock certificates of ninety shares each. John T. Adair (\u201cAdair\u201d), Stanley Peters (\u201cPeters\u201d); and M\u00e1rchese each received one certificate. On 6 January 1993, Bombardier Capital, Inc. (\u201cBombardier\u201d) and Lake Hickory entered into a security agreement pursuant to which Bombardier advanced funds to Lake Hickory in exchange for a security interest in Lake Hickory\u2019s inventory. The following day, Adair, Peters, M\u00e1rchese, and their respective wives each signed a guaranty providing that each signing party would \u201cguarantee full and prompt payment to [Bombardier] of all obligations of [Lake Hickory] to [Bombardier].\u201d (the \u201cGuaranty\u201d) Peters died sometime between signing the Guaranty and the date of this action.\nOn 24 June 1998, M\u00e1rchese and Rowe entered into a contract for the sale of Marchese\u2019s ninety shares of stock for nine thousand dollars (the \u201cContract\u201d). The Contract contained the following two provisions:\n2. . . . That as further consideration for this purchase, [Rowe] agrees to assume, and pay, and save [M\u00e1rchese] harmless from any direct or indirect liability arising out of or through any indebtedness, obligation, or undertaking of . . . Bombardier Capital (Account number 691119) ... including reasonable attorneys fees in defense of the same, and specifically, but not by way of limitation, any guarantees of either [M\u00e1rchese], individually, or of . . . Bombardier Capital (Account number 691119).\n3. That [Rowe] shall provide to [M\u00e1rchese], at closing, written verification that [M\u00e1rchese] has been released of any and all guarantees, notes, or obligations, of [M\u00e1rchese] to . . . Bombardier Capital[.]\nNotwithstanding the requirement of Contract provision 3, Rowe did not provide a written verification to M\u00e1rchese that he had been released of any and all guarantees, notes, or obligations. Nonetheless, M\u00e1rchese proceeded with the closing because he thought that the written verification \u201cwould be forthcoming.\u201d In 1999, Lake.Hickory failed to meet its obligations pursuant to the security agreement, therefore breaching the security agreement. As a result, on 4 April 2000, Bombardier filed a complaint against Lake Hickory, M\u00e1rchese, Adair, and Peters\u2019 wife (hereinafter collectively referred to as \u201cdefendants\u201d) for, inter alia, breach of contract and breach of guaranty. On 26 July 2000, M\u00e1rchese filed an answer and a third-party complaint against Rowe seeking indemnification and attorney fees pursuant to the Contract.\nOn 21 August 2002, Bombardier filed a motion for summary judgment against defendants. After a hearing on Bombardier\u2019s summary judgment motion, the Honorable Christopher M. Collier entered summary judgment against defendants and awarded $237,096.17 in damages and $35,564.00 in attorney fees to Bombardier.\nOn 20 October 2003, M\u00e1rchese filed a motion for summary judgment against Rowe alleging, inter alia, that there is no genuine issue of material fact as to Marchese\u2019s claim for breach of contract and indemnification. On 13 November 2003, the Honorable Christopher M. Collier entered summary judgment in favor of M\u00e1rchese, and ordered that Rowe pay M\u00e1rchese $165,000 and that Marchese\u2019s application for attorney fees be addressed by separate order. Rowe appealed.\nOn 1 March 2005, this Court dismissed Rowe\u2019s appeal as interlocutory because the trial court had not entered summary judgment in favor of Mrs. M\u00e1rchese, had not ruled on Rowe\u2019s motion for summary judgment, and had held open Marchese\u2019s application for attorney fees in an unpublished opinion. See Bombardier Capital, Inc. v. Lake Hickory Watercraft, Inc., 168 N.C. App. 728, 609 S.E.2d 497 (2005) (unpublished opinion).\nM\u00e1rchese filed a motion for attorney fees against Rowe, and on 6 June 2005, the Honorable Christopher M. Collier ordered that M\u00e1rchese was entitled to $21,500 in attorney fees and $1,780.24 in costs. Thereafter, Mrs. M\u00e1rchese filed for voluntary dismissal. Rowe filed a timely appeal of the 13 November 2003 summary judgment order and 6 June 2005 order granting attorney fees and expenses.\nOn appeal, Rowe argues the trial court erred in granting summary judgment in favor of M\u00e1rchese because genuine issues of material fact exist concerning (1) Marchese\u2019s failure to mitigate his damages; (2) the failure of a condition precedent in the Contract between the parties; (3) Marchese\u2019s waiver of the right to seek indemnification from Rowe; and (4) whether Mrs. M\u00e1rchese was an intended beneficiary of the Contract between the parties such that any payment made to secure a release of Mrs. M\u00e1rchese from the judgment should not be included in any amount determined to be owed to M\u00e1rchese by Rowe. In addition, Rowe argues the trial court erred in awarding attorney fees on the grounds that the award is contrary to existing law and unsupported by the evidence. We first address the summary judgment issues, then proceed to the attorney fees issue.\nSummary judgment is appropriate \u201cif the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law.\u201d N.C. Gen. Stat. \u00a7 1A-1, Rule 56(c) (2005). In deciding a motion for summary judgment, a trial court must consider the evidence in the light most favorable to the non-moving party. See Summey v. Barker, 357 N.C. 492, 496, 586 S.E.2d 247, 249 (2003). If there is any evidence of a genuine issue of material fact, a motion for summary judgment should be denied. Howerton v. Aral Helmet, Ltd., 358 N.C. 440, 471, 597 S.E.2d 674, 694 (2004). We review an order allowing summary judgment de novo. Id. at 470, 597 S.E.2d at 693.\nRowe first contends the trial court erred in granting summary judgment because genuine issues of material fact exist concerning Marchese\u2019s failure to mitigate his damages. Our Court has held that in an action for tort committed or breach of contract without excuse, it is a well settled rule of law that the party who is wronged is required to use due care to minimize the loss. First Nat\u2019l Pictures Distrib. Corp. v. Seawell, 205 N.C. 359, 360, 171 S.E. 354, 355 (1933). However, \u201c[t]he duty to mitigate damages arises only after a breach occurs.\u201d Strader v. Sunstates Corp., 129 N.C. App. 562, 575, 500 S.E.2d 752, 759, disc. rev. denied, 349 N.C. 240, 514 S.E.2d 275 (1998).\nHere, Marchese\u2019s liability under the Guaranty with Bombardier arose when Lake Hickory defaulted and Bombardier sought payment from the individual guarantors. M\u00e1rchese satisfied his obligation to Bombardier under the Guaranty, and sought indemnification from Rowe pursuant to the Contract. Rowe\u2019s argument that the breach occurred when Lake Hickory failed to comply with the security agreement is incorrect. In contrast, the breach complained of occurred when Rowe failed to- indemnify M\u00e1rchese pursuant to Contract provision 2, and M\u00e1rchese mitigated damages by sending a letter informing the creditor of his stock sale Contract and by sending a letter to Rowe clearly expressing his intention to enforce the Contract\u2019s indemnity clause. Therefore, M\u00e1rchese mitigated damages, and is entitled to recover from Rowe under the Contract.\nNext, Rowe argues that the trial court erred in granting summary judgment because genuine issues of material fact exist concerning the failure of a condition precedent in the Contract between the parties. As a general rule, conditions precedent \u201c \u2018are those facts and events, occurring subsequently to the making of a valid contract, that must exist or occur before there is a right to immediate performance, before there is a breach of contract duty, before the usual judicial remedies are available.\u2019 \u201d Farmers Bank, Pilot Mountain v. Michael T. Brown Distrib., Inc., 307 N.C. 342, 350, 298 S.E.2d 357, 362 (1983) (quoting 3A A. Corbin, Corbin on Contracts \u00a7 628, at 16 (1960)). The use of such words as \u201cwhen,\u201d \u201cafter,\u201d \u201cas soon as,\u201d and the like, give clear indication that a promise is not to be performed except upon the occurrence of a stated event. Id. at 351, 298 S.E.2d at 362.\nHere, Rowe incorrectly contends that Contract provision 3 is a condition precedent of the Contract that required him to provide M\u00e1rchese with written verification that M\u00e1rchese had been released of any and all obligations, and, as a result of Rowe\u2019s failure to provide this written verification, the Contract never existed. Rowe\u2019s argument fails because the plain language of Contract provision 3 does not require a condition to occur before the contract is valid. Moreover, M\u00e1rchese proceeded with the closing based upon Rowe\u2019s mere assurances that the verification was forthcoming. Therefore, Rowe\u2019s failure to provide written verification does not support a condition precedent, and Rowe\u2019s argument is without merit.\nThird, Rowe contends the trial court erred in granting summary judgment because genuine issues of material fact exist concerning Marchese\u2019s waiver of the right to seek indemnification from Rowe. Specifically, Rowe argues that M\u00e1rchese waived his right to indemnification because Rowe did not provide M\u00e1rchese with a written verification for release of obligations and M\u00e1rchese proceeded with the Contract. This Court has established that waiver is \u201c \u2018an intentional relinquishment or abandonment of a known right or privilege.\u2019 \u201d Medearis v. Trustees of Myers Park Baptist Church, 148 N.C. App. 1, 10, 558 S.E.2d 199, 206 (2001), disc. rev. denied, 355 N.C. 493, 563 S.E.2d 190 (2002) (quoting Johnson v. Zerbst, 304 U.S. 458, 464, 82 L. Ed. 1461, 1466 (1938)). A waiver may be express or implied. Id. at 11, 558 S.E.2d at 206. \u201cA waiver is implied when a person dispenses with a right \u2018by conduct which naturally and justly leads the other party to believe that he has so dispensed with the right.\u2019 \u201d Id. at 12, 558 S.E.2d at 206-07 (quoting Guerry v. Am. Trust Co., 234 N.C. 644, 648, 68 S.E.2d 272, 275 (1951).\nIn the case sub judice, neither the record nor the parties indicate that M\u00e1rchese expressly waived his right to indemnification. M\u00e1rchese did not impliedly waive his right to indemnification because he did not engage in conduct that naturally and justly would lead Rowe to believe he dispensed with his right to receive indemnification. Specifically, the Contract\u2019s indemnification clause and release clause are two separate independent clauses, and Rowe\u2019s failure to release M\u00e1rchese from prior obligations did not waive the indemnification clause. Therefore, M\u00e1rchese did not waive his right to indemnification, and Rowe\u2019s argument is meritless.\nRowe\u2019s fourth argument states that the trial court erred in granting summary judgment because there is a material issue of fact as to whether Mrs. M\u00e1rchese was an intended beneficiary of the Contract. The scope of review on appeal is confined to a consideration of those exceptions set out and made the basis of assignments of error in the record on appeal. N.C. R. App. P., Rule 10 (2006). \u201cAssignments of error not set out in [Rowe\u2019s] brief, or in support of which no reason or argument is stated or authority cited, will be taken as abandoned.\u201d N.C. R. App. P., Rule 28(b)(6) (2006). Rowe failed to cite authority supporting his fourth argument. For this reason, Rowe\u2019s fourth argument is not properly before us.\nFinally, Rowe contends that the trial court erred in awarding attorney fees on the grounds that the award is 'contrary to existing law and unsupported by the evidence. Ordinarily, attorney fees are not recoverable either as an item of damages or of costs, absent express statutory authority for fixing and awarding them. United Artists Records, Inc. v. Eastern Tape Corp., 18 N.C. App. 183, 187, 196 S.E.2d 598, 602, cert. denied, 283 N.C. 666, 197 S.E.2d 880 (1973). However,\n[o]bligations to pay attorneys\u2019 fees upon any note, conditional sale contract or other evidence of indebtedness, in addition to the legal rate of interest or finance charges specified therein, shall be valid and enforceable, and collectible as part of such debt, if such note, contract or other evidence of indebtedness be collected by or through any attorney at law after maturity, subject to the following provisions:\n(2) If such note, conditional sale contract or other evidence of indebtedness provides for the payment of reasonable attorneys\u2019 fees by the debtor, without specifying any specific percentage, such provision shall be construed to mean fifteen percent (15%) of the \u201coutstanding balance\u201d owing on said note, contract or other evidence of indebtedness.\nN.C. Gen. Stat. \u00a7 6-21.2 (2005), See also Marine Ecology Sys., Inc. v. Spooners Creek Yacht Harbor, Inc., 40 N.C. App. 726, 730, 253 S.E.2d 613, 616 (1979) (agreements intended as security are evidence of indebtedness covered under the statute); Stillwell Enter., Inc. v. Interstate Equip. Co., 300 N.C. 286, 266 S.E.2d 812 (1980) (the statute applies not only to notes and conditional sale contracts, but also to such other evidence of indebtedness as other writings evidencing an unsecured debt or any other such security agreement which evidences both a monetary obligation and a lease of specific goods). When the trial court determines an award of attorney fees is appropriate und\u00e9r the statute, the amount of attorney fees awarded lies within the discretion of the trial court. Coastal Prod. Credit Ass\u2019n v. Goodson Farms, Inc., 70 N.C. App. 221, 226, 319 S.E.2d 650, 655, disc. rev. denied, 312 N.C. 621, 323 S.E.2d 922 (1984).\nHere, the trial court granted attorney fees in an amount less than fifteen percent of the $165,000 award. Attorney testimony, affidavits, and billing statements supported the attorney fees award. Therefore, the trial court did not abuse its discretion, and properly awarded attorney fees pursuant to the Contract. Accordingly, we affirm the trial court\u2019s award of attorney fees in favor of M\u00e1rchese.\nIn conclusion, we hold that the trial court did not err in granting summary judgment in favor of M\u00e1rchese, and ordering that M\u00e1rchese is entitled to $21,500 in attorney fees and $1,780.24 in costs.\nAFFIRMED.\nJudges TYSON and ELMORE concur.", "type": "majority", "author": "JACKSON, Judge." } ], "attorneys": [ "The Law Firm of J. Richardson Rudisill, Jr., by Donna N. Price, for third party plaintiff-appellees.", "Sigmon, Clark, Mackie, Hutton, Hanvey & Ferrell, P.A., by Warren A. Hutton and Stephen L. Palmer, for third party defendant-appellant." ], "corrections": "", "head_matter": "BOMBARDIER CAPITAL, INC., Plaintiff v. LAKE HICKORY WATERCRAFT, INC.; MARK J. MARCHESE; LAUREN E. MARCHESE; JOHN T. ADAIR; HILMA S. ADAIR; and SARA PETERS, Defendants, and as to MARK J. MARCHESE and LAUREN E. MARCHESE, Defendants/Third Party Plaintiffs v. JOE CARL ROWE, Third Party Defendant\nNo. COA05-1049\n(Filed 18 July 2006)\n1. Guaranty\u2014 default by company after stockholder buyout\u2014 mitigation of damages\nThere were no issues of material fact concerning the failure of one of the three initial stockholders and guarantors of a business to mitigate his damages after the business defaulted and payment was sought from the guarantors.\n2. Contracts\u2014 condition precedent \u2014 stock sale with indemnity clause \u2014 no condition in contract language\nThere was no genuine issue of material fact concerning the failure of a condition precedent in a stock sale contract with an indemnity clause. The plain language of the contract does not require a condition to occur before the contract is valid.\n3. Contracts\u2014 indemnification \u2014 waiver\nThere were no genuine issues of material fact concerning a waiver by a former stockholder (M\u00e1rchese) of the right to seek indemnification from the stockholder who had bought him out. A waiver is an intentional relinquishment or abandonment of a known right or privilege; neither the record nor the parties here indicate that M\u00e1rchese expressly waived his right to indemnification, nor did he do so impliedly.\n4. Appeal and Error\u2014 preservation of issues \u2014 argument not supported by authority\nAn argument not supported by authority was not properly before the Court of Appeals.\n5. Costs\u2014 attorney fees \u2014 guaranty assumption in stock purchase agreement \u2014 indemnity\nThe trial court did not abuse its discretion in awarding attorney fees pursuant to N.C.G.S. \u00a7 6-21.2 of less than fifteen percent of the indemnity for breach of an assumption of a guaranty of payment in a stock purchase agreement where the agreement contained a provision for the payment of attorney fees and the amount of attorney fees awarded was supported by attorney testimony, affidavits and billing statements.\nAppeal by third party defendant Joe Carl Rowe from the judgement entered 13 November 2003 by Judge Christopher M. Collier in Alexander County Superior Court. Heard in the Court of Appeals 22 February 2006.\nThe Law Firm of J. Richardson Rudisill, Jr., by Donna N. Price, for third party plaintiff-appellees.\nSigmon, Clark, Mackie, Hutton, Hanvey & Ferrell, P.A., by Warren A. Hutton and Stephen L. Palmer, for third party defendant-appellant." }, "file_name": "0535-01", "first_page_order": 567, "last_page_order": 574 }