{ "id": 4172420, "name": "SHONDA ALSTON, Plaintiff-Appellee v. FEDERAL EXPRESS CORP. and SEDGWICK CMS, Defendants-Appellants", "name_abbreviation": "Alston v. Federal Express Corp.", "decision_date": "2009-10-20", "docket_number": "No. COA09-115", "first_page": "420", "last_page": "426", "citations": [ { "type": "official", "cite": "200 N.C. App. 420" } ], "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": "655 S.E.2d 869", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12640274 ], "weight": 2, "year": 2008, "pin_cites": [ { "page": "874", "parenthetical": "internal citation omitted" }, { "page": "875" } ], "opinion_index": 0, "case_paths": [ "/se2d/655/0869-01" ] }, { "cite": "188 N.C. App. 518", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4155214 ], "year": 2008, "pin_cites": [ { "page": "526", "parenthetical": "internal citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/188/0518-01" ] }, { "cite": "397 S.E.2d 330", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "page": "333" } ], "opinion_index": 0 }, { "cite": "100 N.C. App. 490", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527036 ], "year": 1990, "pin_cites": [ { "page": "495" } ], "opinion_index": 0, "case_paths": [ "/nc-app/100/0490-01" ] }, { "cite": "530 S.E.2d 70", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "72", "parenthetical": "quoting Allen v. Rupard, 100 N.C. App. 490, 495, 397 S.E.2d 330, 333 (1990). Pursuant to N.C. Gen. Stat. \u00a7 97-10.2(j" } ], "opinion_index": 0 }, { "cite": "138 N.C. App. 500", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11080505 ], "year": 2000, "pin_cites": [ { "page": "504", "parenthetical": "quoting Allen v. Rupard, 100 N.C. App. 490, 495, 397 S.E.2d 330, 333 (1990). Pursuant to N.C. Gen. Stat. \u00a7 97-10.2(j" } ], "opinion_index": 0, "case_paths": [ "/nc-app/138/0500-01" ] }, { "cite": "569 S.E.2d 711", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "713" } ], "opinion_index": 0 }, { "cite": "153 N.C. App. 254", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9249313 ], "year": 2002, "pin_cites": [ { "page": "257" } ], "opinion_index": 0, "case_paths": [ "/nc-app/153/0254-01" ] }, { "cite": "157 S.E.2d 378", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1967, "pin_cites": [ { "page": "379", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "271 N.C. 702", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8566667 ], "year": 1967, "pin_cites": [ { "page": "704", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/271/0702-01" ] }, { "cite": "545 S.E.2d 254", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "pin_cites": [ { "page": "257", "parenthetical": "internal quotations omitted" } ], "opinion_index": 0 }, { "cite": "143 N.C. App. 88", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11433257 ], "year": 2001, "pin_cites": [ { "page": "94", "parenthetical": "internal quotations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/143/0088-01" ] }, { "cite": "401 S.E.2d 662", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "pin_cites": [ { "page": "666", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "102 N.C. App. 247", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523208 ], "year": 1991, "pin_cites": [ { "page": "254", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/102/0247-01" ] }, { "cite": "328 S.E.2d 7", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1985, "pin_cites": [ { "page": "9", "parenthetical": "internal quotations and citations omitted" }, { "page": "9" } ], "opinion_index": 0 }, { "cite": "74 N.C. App. 256", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523985 ], "weight": 2, "year": 1985, "pin_cites": [ { "page": "259", "parenthetical": "internal quotations and citations omitted" }, { "page": "259" } ], "opinion_index": 0, "case_paths": [ "/nc-app/74/0256-01" ] }, { "cite": "593 S.E.2d 453", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2004, "pin_cites": [ { "page": "455" } ], "opinion_index": 0 }, { "cite": "163 N.C. App. 350", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8917729 ], "year": 2004, "pin_cites": [ { "page": "352" } ], "opinion_index": 0, "case_paths": [ "/nc-app/163/0350-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 97-10.2", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 10, "year": 2007, "pin_cites": [ { "page": "(j)" }, { "page": "(j)" }, { "page": "(j)" }, { "page": "(j)" }, { "page": "(j)" }, { "page": "(j)" }, { "page": "(j)" }, { "page": "(j)" }, { "page": "(j)" }, { "page": "(j)(2007)", "parenthetical": "emphasis added" } ], "opinion_index": 0 } ], "analysis": { "cardinality": 608, "char_count": 12475, "ocr_confidence": 0.749, "pagerank": { "raw": 6.279817540927259e-08, "percentile": 0.38709785782877687 }, "sha256": "e657452ab6233b2f2069380bd3cf66bf44401a2a1616e2b5439b8bb2e6f37f8d", "simhash": "1:9e6b4d66541ccdd2", "word_count": 2017 }, "last_updated": "2023-07-14T15:34:12.558956+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges BRYANT and ELMORE concur." ], "parties": [ "SHONDA ALSTON, Plaintiff-Appellee v. FEDERAL EXPRESS CORP. and SEDGWICK CMS, Defendants-Appellants" ], "opinions": [ { "text": "CALABRIA, Judge.\nFederal Express Corp. (\u201cFedEx\u201d) and Sedgwick CMS (collectively \u201cdefendants\u201d) appeal from an amended order entered 17 July 2008, setting the amount of defendants\u2019 workers\u2019 compensation lien pursuant to N.C. Gen. Stat. \u00a7 97-10.2(j) (2007). We vacate in part, reverse in part, and remand for further findings.\nI. Procedural History\nShonda Alston (\u201cplaintiff\u2019) was working as a courier for FedEx when she was involved in an automobile collision in Durham County on 24 November 2004. The driver of the other automobile, an employee with the North Carolina Department of Transportation (\u201cNCDOT\u201d), failed to reduce his speed and crashed into the rear of plaintiff\u2019s FedEx vehicle. Plaintiff sustained multiple injuries, including an injury to her left knee. According to plaintiff\u2019s treating physician, she will eventually need a total knee replacement.\nAs a result of plaintiffs injuries, defendants paid $51,789.06 in medical expenses, $32,886.78 in wage benefits, and a $142,500.00 settlement of the workers\u2019 compensation claim. Plaintiff resolved her State Tort Claim against NCDOT by entering into a settlement agreement for $300,000.00 (\u201cthe third-party settlement\u201d). After deducting attorney\u2019s fees, plaintiff estimated the amount of her recovery was $198,400.00.\nOn 16 August 2007, plaintiff filed an application in Durham County Superior Court, pursuant to N.C. Gen. Stat. \u00a7 97-10.2(j) (2007), to determine the amount, if any, of defendants\u2019 statutory lien. On 12 October 2007, the trial court entered an order reducing defendants\u2019 lien to $50,000.00. The order did not mention any amount for attorney\u2019s fees.\nPlaintiff submitted to the North Carolina Industrial Commission (\u201cthe Commission\u201d) a proposed order to distribute the third-party settlement proceeds. On 20 March 2008, the Commission entered an order finding and concluding that defendants were entitled to a statutory lien of $50,000.00. Plaintiff filed a Motion for Reconsideration with the Commission on 28 March 2008, asserting that it was the intention of the trial court to reduce defendants\u2019 lien by the amount of plaintiff\u2019s attorney\u2019s fees. On 22 April 2008, the Commission filed an order staying its disbursement order pending a further ruling on the proper distribution of the third-party settlement funds.\nOn 28 May 2008, plaintiff filed a Motion to Clarify the Order Setting the Amount of Workers\u2019 Compensation Lien (\u201cMotion to Clarify\u201d) in Durham County Superior Court. On 17 July 2008, the trial court entered an Amended Order. The only change from the original order was the addition of a single conclusion of law, that defendants \u201cshall pay [their] share of attorney fees.\u201d Defendants appeal.\nII. Jurisdiction\nDefendants argue that the trial court was without subject matter jurisdiction to enter its amended order. We disagree. \u201c[W]hether a trial court has subject matter jurisdiction is a question of law, which is reviewable on appeal de novo.\u201d Ales v. T. A. Loving Co., 163 N.C. App. 350, 352, 593 S.E.2d 453, 455 (2004).\nAlthough plaintiff does not cite any particular rule of civil procedure in her \u201cMotion to Clarify,\u201d it appears to be a motion for relief from the trial court\u2019s original order. Rule 60(b) of the North Carolina Rules of Civil Procedure allows the trial court, upon appropriate motion, to:\nrelieve a party or his legal representative from a final judgment, order, or proceeding for the following reasons: (1) Mistake, inadvertence, surprise, or excusable neglect; (2) Newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b); (3) Fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (4) The judgment is void; (5) The judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (6) Any other reason justifying relief from the operation of the judgment.\nN.C. Gen. Stat. \u00a7 1A-1, Rule 60(b) (2007). Additionally,\nIf the motion does not allege factual allegations corresponding to the specific situations contemplated in clauses (1) through (5), subsection (6) serves as a grand reservoir of equitable power by which a court may grant relief from an order or judgment. The expansive test by which relief can be given under subsection (6) is whether (1) extraordinary circumstances exist and (2) there is a showing that justice demands it.\nIn re Oxford Plastics v. Goodson, 74 N.C. App. 256, 259, 328 S.E.2d 7, 9 (1985) (internal quotations and citations omitted). \u201cThe purpose of Rule 60(b) is to strike a proper balance between the conflicting principles of finality and relief from unjust judgments. Generally, the rule is liberally construed.\u201d Carter v. Clowers, 102 N.C. App. 247, 254, 401 S.E.2d 662, 666 (1991) (citations omitted). The motion for relief from a judgment or order made pursuant to Rule 60(b) is within the sound discretion of the trial court and the trial court's decision will not be disturbed absent an abuse of that discretion. Oxford, 74 N.C. App. at 259, 328 S.E.2d at 9. In the instant case, it is unclear whether the trial court\u2019s initial order intended the reduction of the lien to $50,000.00 as a final reduction or whether the lien was to be further reduced for attorney\u2019s fees. Although the trial court\u2019s intentions regarding the distribution of attorney\u2019s fees is not clear from the record, subsequent correspondence by the parties suggested that neither the parties nor the Commission could agree on how to interpret the trial court\u2019s order. Pursuant to Rule 60(b)(6)\u2019s \u201cgrand reservoir of equitable power,\u201d the trial court had jurisdiction to revisit its order so that its intentions could be made clear. This assignment of error is overruled.\nIII. Attorney\u2019s Fees\nDefendants argue that an award of attorney\u2019s fees is not authorized by N.C. Gen. Stat. \u00a7 97-10.2(j). We agree.\n\u201c[A] successful litigant may not recover attorneys\u2019 fees, whether as costs or as an item of damages, unless such a recovery is expressly authorized by statute.\u201d Southland Amusements & Vending, Inc. v. Rourk, 143 N.C. App. 88, 94, 545 S.E.2d 254, 257 (2001) (internal quotations omitted). The general rule in North Carolina is that attorney\u2019s fees are not allowed as a part of the costs in civil actions or special proceedings, unless there is express statutory authority for fixing and awarding the attorney\u2019s fees. Bowman v. Chair Co., 271 N.C. 702, 704, 157 S.E.2d 378, 379 (1967) (citations omitted).\nPlaintiff\u2019s action was brought pursuant to N.C. Gen. Stat. \u00a7 97-10.2(j), which states, in relevant part: \u201cthe judge shall determine, in his discretion, the amount, if any, of the employer\u2019s lien, whether based on accrued or prospective workers\u2019 compensation benefits, and the amount of cost of the third-party litigation to be shared between the employee and employer.\u201d N.C. Gen. Stat. \u00a7 97-10.2(j) (2007). There is no express authority in N.C. Gen. Stat. \u00a7 97-10.2(j) that provides an award of attorney\u2019s fees as part of the costs of third-party litigation.\nIn the instant case, the trial court awarded plaintiff attorney\u2019s fees because it considered attorney\u2019s fees to be included in the cost of the plaintiff\u2019s third-party settlement litigation. In the absence of any express authority to award attorney\u2019s fees, this portion of the trial court\u2019s order was erroneous as a matter of law. The portion of the trial court\u2019s order granting plaintiff the payment of a portion of her attorney\u2019s fees by defendants is vacated.\nIV. Remainder of the Amended Order\nDefendants argue the trial court erred by failing to consider and make findings in its order as to factors that must be considered pursuant to N.C. Gen. Stat. \u00a7 97-10.2(j). We agree.\nThe trial court has discretion under N.C. Gen. Stat. \u00a7 97-10.2(j) to adjust the amount of a workers\u2019 compensation lien, even if the result is a double recovery for the plaintiff. Holden v. Boone, 153 N.C. App. 254, 257, 569 S.E.2d 711, 713 (2002). However, \u201cthe discretion granted [to the trial court] under G.S. \u00a7 97-10.2(j) is,not unlimited; \u2018the trial court is to make a reasoned choice, a judicial value judgment, which is factually supported . . . [by] findings of fact and conclusions of law sufficient to provide for meaningful appellate review.\u2019 \u201d In re Biddix, 138 N.C. App. 500, 504, 530 S.E.2d 70, 72 (2000) (quoting Allen v. Rupard, 100 N.C. App. 490, 495, 397 S.E.2d 330, 333 (1990). Pursuant to N.C. Gen. Stat. \u00a7 97-10.2(j),\n[t]he judge shall consider the anticipated amount of prospective compensation the employer or workers\u2019 compensation carrier is likely to pay to the employee in the future, the net recovery to plaintiff, the likelihood of the plaintiff prevailing at trial or on appeal, the need for finality in the litigation, and any other factors the court deems just and reasonable, in determining the appropriate amount of the employer\u2019s lien.\nN.C. Gen. Stat. \u00a7 97-10.2(j)(2007) (emphasis added).\nAlthough we have held that there is no mathematical formula or set list of factors for the trial court to consider in making its determination, it is clear from the use of the words \u201cshall\u201d and \u201cand\u201d in subsection (j), that the trial court must, at a minimum, consider the factors that are expressly listed in the statute. Otherwise, such words are rendered meaningless.\nIn re Estate of Bullock, 188 N.C. App. 518, 526, 655 S.E.2d 869, 874 (2008) (internal citation omitted) (emphasis added). In the instant case, there are no findings of fact in the trial court\u2019s order for the following mandatory statutory factors: (1) the net recovery to plaintiff; (2) the likelihood of plaintiff prevailing at trial or on appeal; and (3) the need for finality in the litigation. The findings provided in the trial court\u2019s order are insufficient to determine \u201cwhether the court properly exercised its discretion or if it acted under a misapprehension of law\u201d when it reduced the amount of defendants\u2019 lien. Id. at 527, 655 S.E.2d at 875. As a result, the trial court\u2019s order must be reversed and remanded for additional findings.\nThe record on appeal includes an additional assignment of error by defendants and a cross-assignment of error by plaintiff not addressed in their respective briefs to this Court. Pursuant to N.C.R. App. P. 28(b)(6) (2008), we deem them abandoned and need not address them.\nVacated in part, reversed in part, and remanded for additional findings.\nJudges BRYANT and ELMORE concur.", "type": "majority", "author": "CALABRIA, Judge." } ], "attorneys": [ "James E. Rogers, P.A., by James E. Rogers, for plaintiffappellee.", "Cranfill, Sumner & Hartzog, LLP, by Roy G. Pettigrew and Meredith Taylor Berard, for defendants-appellants." ], "corrections": "", "head_matter": "SHONDA ALSTON, Plaintiff-Appellee v. FEDERAL EXPRESS CORP. and SEDGWICK CMS, Defendants-Appellants\nNo. COA09-115\n(Filed 20 October 2009)\n1. Workers\u2019 Compensation\u2014 statutory lien \u2014 amount\u2014subject matter jurisdiction \u2014 Rule 60(b) relief\nThe trial court had subject matter jurisdiction to enter an amended order in an action to determine the amount of defendants\u2019 statutory workers\u2019 compensation lien. Rule 60(b) relief is within the sound discretion of the trial court, the court\u2019s intentions about the distribution of attorney fees is not clear from the record, and subsequent correspondence by the parties suggested that neither the parties nor the Industrial Commission could agree on how to interpret the court\u2019s order.\n2. Workers\u2019 Compensation\u2014 lien \u2014 statutory\u2014attorney fees\nThe trial court erred in an action to determine the amount of a workers\u2019 compensation lien by awarding attorney fees under N.C.G.S. \u00a7 97-10.2Q). Attorney fees are not allowed as a part of the costs in civil actions or special proceedings without express statutory authority and N.C.G.S. \u00a7 97-10.2Q) does not authorize an award of attorney fees as part of the costs of third-party litigation.\n3. Workers\u2019 Compensation\u2014 lien \u2014 findings\nThe trial court erred by failing to consider and make findings as to factors that must be considered pursuant to N.C.G.S. \u00a7 97-10.2(j). Although the statute gives the court the discretion to adjust the amount of a workers\u2019 compensation lien, the court must make findings and conclusions sufficient for meaningful appellate review.\nAppeal by defendants from order entered 17 July 2008 by Judge A. Leon Stanback, Jr. in Durham County Superior Court. Heard in the Court of Appeals 20 August 2009.\nJames E. Rogers, P.A., by James E. Rogers, for plaintiffappellee.\nCranfill, Sumner & Hartzog, LLP, by Roy G. Pettigrew and Meredith Taylor Berard, for defendants-appellants." }, "file_name": "0420-01", "first_page_order": 446, "last_page_order": 452 }