{ "id": 4178132, "name": "FREE SPIRIT AVIATION, INC. and GEORGE RONAN, Plaintiffs v. RUTHERFORD AIRPORT AUTHORITY; RUSTY WASHBURN, individually and as a member of the Rutherford Airport Authority; PHILLIP ROBBINS, individually and as a member of the Rutherford Airport Authority; ALAN GUFFEY, individually and as a member of the Rutherford Airport Authority; DON GREENE, individually and as a member of the Rutherford Airport Authority; and DAVID RENO, as a member of the Rutherford Airport Authority, Defendants", "name_abbreviation": "Free Spirit Aviation, Inc. v. Rutherford Airport Authority", "decision_date": "2010-08-03", "docket_number": "No. COA09-806", "first_page": "192", "last_page": "204", "citations": [ { "type": "official", "cite": "206 N.C. App. 192" } ], "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": "669 S.E.2d 320", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12642296, 12642295 ], "year": 2008, "opinion_index": 0, "case_paths": [ "/se2d/669/0320-02", "/se2d/669/0320-01" ] }, { "cite": "657 S.E.2d 673", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12640569 ], "year": 2008, "pin_cites": [ { "page": "677" } ], "opinion_index": 0, "case_paths": [ "/se2d/657/0673-01" ] }, { "cite": "671 S.E.2d 23", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12642474 ], "weight": 2, "year": 2009, "pin_cites": [ { "page": "30" }, { "page": "30" } ], "opinion_index": 0, "case_paths": [ "/se2d/671/0023-01" ] }, { "cite": "659 S.E.2d 742", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12640823 ], "year": 2008, "pin_cites": [ { "page": "748" } ], "opinion_index": 0, "case_paths": [ "/se2d/659/0742-01" ] }, { "cite": "665 S.E.2d 570", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12641758 ], "year": 2008, "pin_cites": [ { "page": "577" } ], "opinion_index": 0, "case_paths": [ "/se2d/665/0570-01" ] }, { "cite": "664 S.E.2d 8", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12641721 ], "weight": 2, "year": 2008, "pin_cites": [ { "page": "9-10", "parenthetical": "\"Free Spirit I\"" }, { "page": "12" } ], "opinion_index": 0, "case_paths": [ "/se2d/664/0008-01" ] }, { "cite": "398 S.E.2d 445", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "page": "453-54", "parenthetical": "taking judicial notice of briefs filed in Court in prior, related appeal" } ], "opinion_index": 0 }, { "cite": "327 N.C. 526", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2493040 ], "year": 1990, "pin_cites": [ { "page": "541-42", "parenthetical": "taking judicial notice of briefs filed in Court in prior, related appeal" } ], "opinion_index": 0, "case_paths": [ "/nc/327/0526-01" ] }, { "cite": "362 N.C. 675", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4149913 ], "year": 2008, "opinion_index": 0, "case_paths": [ "/nc/362/0675-01" ] }, { "cite": "189 N.C. 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App.", "case_ids": [ 4160015 ], "weight": 2, "year": 2008, "pin_cites": [ { "page": "582", "parenthetical": "\"Free Spirit I\"" }, { "page": "586" } ], "opinion_index": 0, "case_paths": [ "/nc-app/191/0581-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 14-234", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 6, "year": 2009, "pin_cites": [ { "page": "(a)(l)", "parenthetical": "providing that \"[n]o public officer or employee who is involved in making or administering a contract on behalf of a public agency may derive a direct benefit from the contract\" except in limited situations" }, { "page": "(a)(l)" }, { "page": "(a)(l)" }, { "page": "(a)(l)" }, { "page": "(a)(l)" } ], "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 143-318", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 12, "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 6-21.5", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 12, "year": 2009, "opinion_index": 0 } ], "analysis": { "cardinality": 1009, "char_count": 30448, "ocr_confidence": 0.722, "pagerank": { "raw": 9.838377172010642e-08, "percentile": 0.5337591110524205 }, "sha256": "41342343505919e3fb210973bd04cccf4a25ccedede396df7b0a2458ef86debf", "simhash": "1:8f89317e7e2f8470", "word_count": 4903 }, "last_updated": "2023-07-14T18:24:03.194595+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Chief Judge MARTIN and Judge ELMORE concur." ], "parties": [ "FREE SPIRIT AVIATION, INC. and GEORGE RONAN, Plaintiffs v. RUTHERFORD AIRPORT AUTHORITY; RUSTY WASHBURN, individually and as a member of the Rutherford Airport Authority; PHILLIP ROBBINS, individually and as a member of the Rutherford Airport Authority; ALAN GUFFEY, individually and as a member of the Rutherford Airport Authority; DON GREENE, individually and as a member of the Rutherford Airport Authority; and DAVID RENO, as a member of the Rutherford Airport Authority, Defendants" ], "opinions": [ { "text": "GEER, Judge.\nThe Rutherford Airport Authority (\u201cthe Authority\u201d) and its individual members Rusty Washburn, Alan Guffey, Don Greene, and Phillip Robbins (collectively \u201cdefendants\u201d) appeal from the trial court\u2019s order denying their motion for attorneys\u2019 fees pursuant to N.C. Gen. Stat. \u00a7 6-21.5 (2009) and N.C. Gen. Stat. \u00a7 143-318.16B (2009). Defendants contend they are entitled to attorneys\u2019 fees under N.C. Gen. Stat. \u00a7 6-21.5 with respect to those claims dismissed at the directed verdict stage because plaintiffs persisted in litigating the claims after they reasonably should have known the claims were not justiciable. Since defendants base their claim of non-justiciability solely on arguments regarding those claims that the trial court rejected at the summary judgment stage, we hold that the trial court properly determined that plaintiffs did not unreasonably continue to litigate those claims through trial.\nWith respect to the request for fees under N.C. Gen. Stat. \u00a7 143-318.16B, we hold that the trial court\u2019s refusal to award defendants attorneys\u2019 fees was based at least in part on its mistaken belief that only one party can be a prevailing party under N.C. Gen. Stat. \u00a7 143-318.16B. Because a lawsuit may result in more than one prevailing party and because the trial court made its decision while under a misapprehension of the law, we reverse and remand the portion of the trial court\u2019s order addressing N.C. Gen. Stat. \u00a7 143-318.16B for further findings of fact.\nFacts\nFrom 1995 until 28 February 2005, plaintiff Free Spirit Aviation, Inc. (\u201cFree Spirit\u201d), which is owned by plaintiff George Ronan, was the Fixed Based Operator (\u201cFBO\u201d) at the Rutherford Airport. As the FBO, Free Spirit was responsible for managing the Airport, including selling fuel and repairing and maintaining airplanes. The Authority, which oversaw the FBO, was composed of five members: Rusty Washburn, Alan Guffey, Don Greene, Phillip Robbins, and David Reno. This appeal arises out of litigation concerning the Authority\u2019s selection of Leading Edge Aviation, one of Free Spirit\u2019s competitors, to take over as the FBO in 2006.\nOn 27 January 2006, plaintiffs filed suit against defendants, claiming improprieties in the Authority\u2019s selection of Leading Edge as the new FBO. Plaintiffs alleged that defendants violated Article 33C of Chapter 143 of the General Statutes, commonly known as the Open Meetings Laws, in holding certain meetings and in improperly entering into a closed session. Plaintiffs requested injunctions against further violations of the Open Meetings Laws and against implementation of the 13 January 2006 decision naming Leading Edge as the new FBO.\nPlaintiffs also alleged that the Authority, acting through defendants Washburn, Robbins, Guffey, and Greene, unlawfully chose Leading Edge over Free Spirit to be the FBO in retaliation for complaints made by Ronan about the closed session meetings held by the Authority. Plaintiffs further alleged that Washburn, Robbins, and Greene engaged in malfeasance of office by receiving improper benefits from hangar lease agreements with the Authority and that Greene received a discount on fuel costs in violation of N.C. Gen. Stat. \u00a7 14-234(a)(l) (2009) (providing that \u201c[n]o public officer or employee who is involved in making or administering a contract on behalf of a public agency may derive a direct benefit from the contract\u201d except in limited situations). Plaintiffs also asserted claims for wrongful interference with contract, conspiracy, and punitive damages.\nAfter plaintiffs filed their complaint, plaintiffs dismissed their claims against defendant David Reno, and defendant Phillip Robbins passed away. Mr. Robbins\u2019 estate was substituted as a defendant. Defendants then filed a motion for summary judgment, asserting that plaintiffs failed to produce any evidence to support any of their claims and, alternatively, that the individual defendants were entitled to public official immunity.\nOn 15 June 2007, the trial court denied defendants\u2019 motion for summary judgment on the ground that genuine issues of material fact existed as to whether defendants violated the Open Meetings Laws, whether defendants acted in a retaliatory or malicious manner, whether the individual defendants were protected by public official immunity, whether the individual defendants received improper benefits in violation of N.C. Gen. Stat. \u00a7. 14-234(a)(l), and whether defendants wrongfully interfered with plaintiffs\u2019 contract.\nDefendants appealed the trial court\u2019s ruling that they were not entitled to the protection of public official immunity. On appeal, defendants contended that plaintiffs had failed to demonstrate that a genuine issue of fact existed regarding whether the individual defendants acted with malice. On 21 February 2008, this Court affirmed the trial court\u2019s denial of defendants\u2019 motion for summary judgment. See Free Spirit Aviation, Inc. v. Rutherford Airport Auth., 191 N.C. App. 581, 582, 664 S.E.2d 8, 9-10 (2008) (\u201cFree Spirit I\").\nOn remand and prior to trial, plaintiffs dismissed their claim for conspiracy and their claim for injunctive relief. The remaining claims proceeded to trial, and at the close of plaintiffs\u2019 evidence, the trial court granted defendants\u2019 motion for a directed verdict on plaintiffs\u2019 claims of malicious and retaliatory acts, receipt of improper benefits in violation of N.C. Gen. Stat. \u00a7 14-234(a)(l), wrongful interference with contract, and punitive damages.\nFollowing defendants\u2019 evidence, the trial court submitted the following issues to the jury:\n1. Whether there was an unannounced official meeting of the Rutherford Airport Authority on December 15, 2004? Answer:\n2. Whether there was an unannounced official meeting of the Rutherford Airport Authority on February 21, 2005? Answer:\n3. Whether there was an unannounced official meeting of the Rutherford Airport Authority on May 5, 2005? Answer:\n4. Whether there was an unannounced official meeting of the Rutherford Airport Authority on September 22, 2005? Answer:\n5. Whether there was an unannounced official meeting of the Rutherford Airport Authority on September 28, 2005? Answer:\n6. Whether the closed sessions of the Rutherford Airport Authority for January 10, 2006, and January 13, 2006, were properly entered into? Answer:\nIn addressing these issues, the jury found that defendants did not have unannounced official meetings on the dates set out in questions one through five, but found, in response to question six, that the Authority improperly entered into closed sessions on 10 January 2006 and 13 January 2006.\nThe trial court granted plaintiffs\u2019 motion for attorneys\u2019 fees, finding that \u201cPlaintiffs\u2019 claim for relief regarding Defendants\u2019 violation of the Open Meetings laws through improperly entering into a closed session on January 10, 2006, was a significant issue in this matter.\u201d The court concluded that it was required, under N.C. Gen. Stat. \u00a7 143-318.16B, to apply the \u201cmerits test\u201d set out in H.B.S. Contractors, Inc. v. Cumberland County Bd. of Educ., 122 N.C. App. 49, 468 S.E.2d 517, disc. review improvidently allowed, 345 N.C. 178, 477 S.E.2d 926 (1996). Applying that test, the trial court noted that \u201cwhile Defendants prevailed on more claims, and Plaintiffs did not prevail on all of their claims, Plaintiffs did prevail on a very significant issue in this matter, and are the prevailing parties pursuant to N.C.G.S. \u00a7 143-318.16B.\u201d\nThe trial court further concluded that \u201cPlaintiffs\u2019 issues regarding retaliatory or malicious acts; receipt of improper benefits and violations of N.C.G.S. \u00a7 14-234(a)(l); and wrongful interference with contract by Defendants, were justiciable, and were not frivolous.\u201d The trial court concluded, therefore, that defendants were not prevailing parties under either N.C. Gen. Stat. \u00a7 143-318.16B or N.C. Gen. Stat. \u00a7 6-21.5.\nAfter noting that the individual defendants followed the advice of the Authority\u2019s attorney, the court entered judgment for attorneys\u2019 fees in favor of plaintiffs against solely the Authority in the amount of $17,500.00. The trial court denied defendants\u2019 motion for attorneys\u2019 fees. Defendants timely appealed to this Court from that order.\nI\nDefendants first contend that the trial court erred in failing to award them attorneys\u2019 fees under N.C. Gen. Stat. \u00a7 6-21.5 for the following claims: (1) malfeasance of office by retaliating against plaintiffs, (2) improper personal benefit from a contract made or administered on behalf of a public agency in violation of N.C. Gen. Stat. \u00a7 14-234(a)(l), and (3) wrongful interference with plaintiffs\u2019 contractual rights. The trial court denied summary judgment as to those claims, but subsequently, at trial, granted a directed verdict on them.\nN.C. Gen. Stat. \u00a7 6-21.5 provides:\nIn any civil action, special proceeding, or estate or trust proceeding, the court, upon motion of the prevailing party, may award a reasonable attorney\u2019s fee to the prevailing party if the court finds that there was a complete absence of a justiciable issue of either law or fact raised, by the losing party in any pleading. The filing of a general denial or the granting of any preliminary motion, such as a motion for judgment on the pleadings pursuant to G.S. 1A-1, Rule 12, a motion to dismiss pursuant to G.S. 1A-1, Rule 12(b)(6), a motion for a directed verdict pursuant to G.S. 1A-1, Rule 50, or a motion for summary judgment pursuant to G.S. 1A-1, Rule 56, is not in itself a sufficient reason for the court to award attorney\u2019s fees, but may be evidence to support the court\u2019s decision to make such an award. A party who advances a claim or defense supported by a good faith argument for an extension, modification, or reversal of law may not be required under this section to pay attorney\u2019s fees. The court shall make findings of fact and conclusions of law to support its award of attorney\u2019s fees under this section.\n(Emphasis added.) In this case, the trial court determined th\u00e1t the claims at issue \u201cwere justiciable, and were not frivolous\u201d and that defendants were not prevailing parties under N.C. Gen. Stat. \u00a7 6-21.5.\nWe review a denial of a motion for attorneys\u2019 fees under N.C. Gen. Stat. \u00a7 6-21.5 for abuse of discretion. See Willow Bend Homeowners Ass\u2019n v. Robinson, 192 N.C. App. 405, 417, 665 S.E.2d 570, 577 (2008). The presence or absence of justiciable issues in pleadings is, however, a question of law that this Court reviews de novo. Sprouse v. North River Ins. Co., 81 N.C. App. 311, 325, 344 S.E.2d 555, 565, disc. review denied, 318 N.C. 284, 348 S.E.2d 344 (1986).\nIn deciding a motion under N.C. Gen. Stat. \u00a7 6-21.5, \u201cthe trial court is required to evaluate whether the losing party persisted in litigating the case after a point where he should reasonably have become aware that the pleading he filed no longer contained a justiciable issue.\u201d Sunamerica Fin. Corp. v. Bonham, 328 N.C. 254, 258, 400 S.E.2d 435, 438 (1991). This Court has explained further:\nA \u201cjusticiable issue\u201d is not defined by our statutes or case law. A \u201cjusticiable controversy\u201d is a real and present one, not merely an apprehension or threat of suit or difference of opinion. Presumably, a \u201cjusticiable controversy\u201d involves \u201cjusticiable issues,\u201d thus those which are real and present, as opposed to imagined or fanciful. \u201cComplete absence of a justiciable issue\u201d suggests that it must conclusively appear that such issues are absent even giving the losing party\u2019s pleadings the indulgent treatment which they receive on motions for summary judgment or to dismiss.\nSprouse, 81 N.C. App. at 326, 344 S.E.2d at 565 (internal citations omitted).\nDefendants contend that following the deposition of George Ronan, plaintiffs should have been aware that there was no justiciable issue as to their claims of retaliation, improper benefits, and wrongful interference with contract. According to defendants, plaintiffs should have ceased litigating those claims at that point.\nWith respect to the retaliation and wrongful interference with contract claims, defendants assert that Ronan\u2019s deposition established that there was no evidence of defendants\u2019 retaliating against plaintiffs for complaining about alleged violations of the Open Meetings Laws or of defendants\u2019 acting maliciously by selecting Leading Edge over plaintiffs. Defendants point out that Ronan, when asked in his deposition what evidence he had that the Authority was retaliating against him, said only: \u201cHere I am. They threw me out.\u201d Defendants also point to other testimony by Ronan that he was upset about the selection of Leading Edge because its owner was the least qualified of the four FBO bidders. Defendants argue that Ronan\u2019s testimony showed that Ronan merely thought defendants made a mistake in selecting Leading Edge and not that defendants were acting maliciously in failing to choose Free Spirit as the FBO.\nWith respect to plaintiffs\u2019 claim that Washburn and Robbins, by leasing hangars at the Airport, received improper benefits in violation of N.C. Gen. Stat. \u00a7 14-234(a)(l), defendants point out that Ronan admitted in his deposition that an individual need not be an Authority member to lease an airport hangar or extend a lease on one, which defendants contend \u201cma[de] this claim meritless.\u201d\nDefendants, however, made these exact arguments to the trial court as part of their motion for summary judgment. The trial court, in denying defendants\u2019 motion for summary judgment, concluded that Authority minutes, other portions of Ronan\u2019s deposition, and an e-mail were sufficient to give rise to an issue of fact regarding whether defendants had acted in a retaliatory or malicious manner, whether defendants received improper benefits, whether defendants violated N.C. Gen. Stat. \u00a7 14-234(a)(l), whether defendants wrongfully interfered with plaintiffs\u2019 contracts, and whether the individual defendants were protected by public official immunity.\nDefendants likewise made these same arguments in their appeal to this Court from that summary judgment order, contending that the same Ronan testimony established that the individual defendants did not act with legal malice and that plaintiffs thus could not overcome their defense of public official immunity. Although this Court in Free Spirit I addressed only the issue of public official immunity, the Court, in the process, concluded \u2014 as the trial court had \u2014 that the evidence cited by defendants was not uncontroverted and that issues of fact as to legal malice existed with respect to the claims that defendants received improper benefits in violation of N.C. Gen. Stat. \u00a7 14-234 and wrongful interference with contract. Free Spirit I, 191 N.C. App. at 586, 664 S.E.2d at 12. In this appeal, defendants do not make any attempt to reconcile their arguments with the holding of Free Spirit I regarding the evidence.\nTo rule in defendants\u2019 favor, we would have to hold that a plaintiff is required to voluntarily abandon a claim even though a court has ruled that the claim may go to trial. Our appellate courts have not specifically addressed this issue. This Court has held that \u201c[t]he mere fact that plaintiffs\u2019 complaint survived a Rule 12(b)(6) motion to dismiss is not determinative proof of justiciability.\u201d Winston-Salem Wrecker Ass\u2019n v. Barker, 148 N.C. App. 114, 119, 557 S.E.2d 614, 618 (2001). The Court\u2019s .reasoning was, however, that \u201c[t]he purpose of a Rule 12(b)(6) motion to dismiss is to test the legal sufficiency of the complaint.\u201d Id. (emphasis added). A denial of a motion to dismiss, addressing only whether the complaint\u2019s allegations state a claim for relief, does not preclude a determination that the actual facts, as opposed to the allegations, are not sufficient to raise a justiciable issue. In contrast, at the summary judgment stage, the question is whether the non-movant has presented sufficient evidence to give rise to a genuine issue of fact on the material issues in the case and keep the case moving forward to the fact finder.\nAlthough the trial court, in this case, ultimately granted defendants\u2019 motion for a directed verdict, there was nothing until that point indicating to plaintiffs that no justiciable issue existed with respect to their claims. The Florida Court of Appeals addressed precisely this issue in Kahn For Use & Benefit of Amica Mut. Ins. Co. v. Kahn, 630 So.2d 223 (Fla. Dist. Ct. App. 1994) (per curiam). In Kahn, the trial court denied the defendants\u2019 motion for summary judgment, but, after the presentation of evidence, entered a directed verdict. Id. at 223. The trial court then awarded attorneys\u2019 fees to the defendants under Fla. Stat. Ann. \u00a7 57.105(1), which \u2014 like N.C. Gen. Stat. \u00a7 6-21.5 \u2014 provides for an award of attorneys\u2019 fees to the prevailing party when the court finds that the losing party knew or should have known its claim or defense was not supported by the facts or the law.\nWhen the plaintiffs in Kahn appealed, the appellate court reversed the award of attorneys\u2019 fees, explaining:\nThe difficulty we have with the section 57.105 award is that the trial court found sufficient issues in. dispute to deny the defendants\u2019 motion for summary judgment. In order for there to be an,award under subsection 57.105(1), there must b\u00e9 \u201ca complete absence of a justiciable issue of either law or fact raised by the complaint or defense of the losing party.\u201d Where the trial court found that there was a sufficient justiciable issue created to survive summary judgment, we do not see how it can be said that there was a complete absence of a justiciable issue in the case. It is true that a directed verdict was later granted, but the granting of a directed verdict in favor of the defendants does not automatically translate into a determination that the action was without basis and frivolous.\n630 So.2d at 223-24 (emphasis added) (internal citations omitted).\nWe find the Florida court\u2019s analysis persuasive under the circumstances of this case. Here, defendants have focused on the summary judgment evidence rather than the trial evidence and have not demonstrated why plaintiffs could not have reasonably pursued their claims given the rationale of the trial court\u2019s summary judgment order and the reasoning of this Court in the first appeal. Like the Florida Court of Appeals in Kahn, \u201cwe do not see how it can be said that there was a complete absence of a justiciable issue in the case\u201d given the order denying summary judgment. Id.\nDefendants argue, however, that such an approach would improperly preclude an award of fees whenever a case proceeded to trial after a denial of a motion for summary judgment. We need not address whether fees are always precluded after a denial of summary judgment because under the circumstances of this case \u2014 given the trial court\u2019s summary judgment order, our previous opinion in Free Spirit I, and defendants\u2019 arguments relying upon deposition testimony \u2014 the trial court did not err in denying defendants\u2019 motion for attorneys\u2019 fees under N.C. Gen. Stat. \u00a7 6-21.5.\nII\nDefendants also contend that the trial court erred in denying their motion for attorneys\u2019 fees under N.C. Gen. Stat. \u00a7 143-318.16B, which provides:\nWhen an action is brought pursuant to G.S. 143-318.16 or G.S. 143-318.16A, the court may make written findings specifying the prevailing party or parties, and may award the prevailing party or parties a reasonable attorney\u2019s fee, to be taxed against the losing party or parties as part of the costs. The court may order that all or any portion of any fee as assessed be paid personally by any individual member or members of the public body found by the court to have knowingly or intentionally committed the violation; provided, that no order against any individual member shall issue in any case where the public body or that individual member seeks the advice of an attorney, and such advice is followed.\nThe first issue raised by N.C. Gen. Stat. \u00a7 143-318.16B is the identification of the prevailing party or parties. \u201cThe designation of a party as a prevailing party ... is a legal determination which we review de novo.\u201d Smyth ex rel. Smyth v. Rivero, 282 F.3d 268, 274 (4th Cir.), cert. denied, 537 U.S. 825, 154 L. Ed. 2d 35, 123 S. Ct. 112 (2002). Nonetheless, an award of attorneys\u2019 fees pursuant to N.C. Gen. Stat. \u00a7 143-318.16B is \u201cdiscretionary under the statute.\u201d Knight v. Higgs, 189 N.C. App. 696, 704, 659 S.E.2d 742, 748 (2008). Thus, even if a trial court determines that a party is a prevailing party, it may still exercise its discretion to refuse to award fees. See News & Observer Pub. Co. v. Coble, 128 N.C. App. 307, 311, 494 S.E.2d 784, 787 (\u201cThe award of attorneys\u2019 fees [under \u00a7 143-318.16B] is discretionary with the trial court. The trial court is authorized but no longer required to award attorneys\u2019 fees to the prevailing party.\u201d), aff\u2019d per curiam, 349 N.C. 350, 507 S.E.2d 272 (1998).\nIn H.B.S. Contractors, 122 N.C. App. at 57, 468 S.E.2d at 523, this Court adopted the \u201cmerits test\u201d for determining a prevailing party entitled to attorneys\u2019 fees under \u00a7 143-318.16B. As the Court explained, \u201c[u]nder the merits test, \u2018to receive attorney\u2019s fees allowed by statute to the prevailing party, a party must prevail on the merits of at least some of his claims.' \u201d Id., 468 S.E.2d at 522 (quoting Smith v. Univ. of N.C., 632 F.2d 316, 352 (4th Cir. 1980)). An award of attorneys\u2019 fees is authorized if a party succeeds \u201c \u2018on any significant issue in the litigation which achieves some of the benefit the parties sought in bringing the suit.\u2019 \u201d Id., 468 S.E.2d at 523 (quoting House v. Hillhaven, Inc., 105 N.C. App. 191, 195-96, 412 S.E.2d 893, 896, disc. review denied, 331 N.C. 284, 417 S.E.2d 251 (1992)).\nIn H.B.S. Contractors, this Court concluded that the plaintiff was a prevailing party because it \u201csucceeded, at least in part, by securing a declaration the Board violated the Open Meetings Law.\u201d Id. at 58, 468 S.E.2d at 523. The Court held that H.B.S. was a prevailing party even though H.B.S. had not obtained everything set out in its prayer for relief, including its request for a declaration that the order based on the closed session was null and void. Id.\nIn this case, the trial court held that plaintiffs were prevailing parties and entitled to attorneys\u2019 fees, while defendants were not prevailing parties. The trial court concluded:\n3. Plaintiffs succeeded on a significant issue in this matter in obtaining a verdict that Defendants violated the Open Meetings laws by improperly entering into a closed session on January 10, 2006.\n4. In exercising its discretion to award attorney\u2019s fees pursuant to N.C.G.S. \u00a7 143-318.16B, the Court must apply the \u201cmerits test\u201d adopted in H.B.S. Contractors, Inc. v. Cumberland Co. Bd. of Education, 468 S.E.2d 517 (N.C. App. 1996).\n5. Applying the merits test here, while Defendants prevailed on more claims, and Plaintiffs did not prevail on all of their claims, Plaintiffs did prevail on a very significant issue in this matter, and are the prevailing parties pursuant to N.C.G.S. \u00a7 143-318.16B.\n7. Defendants are not prevailing parties under either N.C.G.S. \u00a7 143-318.16B or N.C.G.S. \u00a7 6-21.5.\nDefendants do not dispute that plaintiffs were prevailing parties and do not challenge the trial court\u2019s award of fees to plaintiffs. Rather, defendants contend that they were also prevailing parties who were entitled to fees. This argument raises the question whether both a plaintiff and a defendant can be prevailing parties in the same action.\nThe plain language of the statute says a court may award attorneys\u2019 fees to \u201cthe prevailing party or parties.\u201d N.C. Gen. Stat. \u00a7 143-318.16B (emphasis added). Although no appellate court has addressed this issue in the context of N.C. Gen. Stat. \u00a7 143-318.16B, this Court held in Persis Nova Constr., Inc. v. Edwards, 195 N.C. App. 55, 66, 671 S.E.2d 23, 30 (2009), that the plain language of N.C. Gen. Stat. \u00a7 6-21.5, which also authorizes attorneys\u2019 fees to a \u201cprevailing party,\u201d meant that \u201cattorney\u2019s fees may be awarded against more than one party in an action.\u201d The Court then concluded that the trial court erred in determining that the defendants were not prevailing parties when they prevailed on the claims in the plaintiff\u2019s complaint, but the plaintiff prevailed on the defendants\u2019 counterclaim. 195 N.C. App. at 67, 671 S.E.2d at 30.\nOther courts have recognized that the phrase \u201cprevailing party\u201d is \u201c \u2018a legal term of art.\u2019 \u201d Griggs v. E.I. DuPont de Nemours & Co., 385 F.3d 440, 454 (4th Cir. 2004) (quoting Buckhannon Bd. & Care Home, Inc. v. West Va. Dep\u2019t of Health & Human Res., 532 U.S. 598, 603, 149 L. Ed. 2d 855, 862, 121 S .Ct. 1835, 1839 (2001)). In Grissom v. The Mills Corp., 549 F.3d 313, 318 (4th Cir. 2008), the Fourth Circuit parenthetically quoted Smyth, 282 F.3d at 274, which explains that since the phrase \u201cprevailing party\u201d is a term of art, it should be \u201c \u2018interpreted consistently \u2014 that is, without distinctions based on the particular statutory context in which it appears.\u2019 \u201d Interpreting the phrase in N.C. Gen. Stat. \u00a7 143-318.16B consistently with N.C. Gen. Stat. \u00a7 6-21.5 requires that we hold that more than one party \u2014 including both a plaintiff and a defendant in the same action \u2014 can be the prevailing party entitled to fees.\nThe trial court\u2019s conclusion of law number 5 stated that plaintiffs \u201c[were] the prevailing parties pursuant to N.C.G.S. \u00a7 143-318.16B.\u201d In the decretal portion of the order, the trial court stated that \u201cjudgment is entered for Plaintiffs, as prevailing party in this matter, against Defendant Rutherford Airport Authority for attorneys fees pursuant to N.C.G.S. \u00a7 143-318.16B . . . .\u201d These statements indicate that the trial court mistakenly believed that it was required to designate either plaintiffs or defendants as the prevailing party, and that it was not possible for both to be prevailing parties.\nWhen the trial court exercises its discretion under a misapprehension of the law, it is appropriate to remand for reconsideration in light of the correct law. In Harwell v. Thread, 78 N.C. App. 437, 438-39, 337 S.E.2d 112, 113 (1985), the plaintiff appealed from the Industrial Commission\u2019s denial of her claim for attorneys\u2019 fees, claiming the Commission denied her request for fees under the mistaken belief that it could not award attorneys\u2019 fees in a case in which both the plaintiff and the defendant insurer appealed. The Court agreed that the language in the Commission\u2019s order was ambiguous as to whether the Commission believed it lacked the authority to award fees in a case where both parties appealed. Id. at 439, 337 S.E.2d at 113. It, therefore, held: \u201cWe cannot discern whether the Industrial Commission exercised its discretion in denying attorney\u2019s fees or believed it was compelled to deny attorney\u2019s fees due to a misapprehension of the law. We therefore remand this case to the Industrial Commission for a discretionary determination consistent with this opinion.\u201d Id.\nSimilarly, here, even though the trial court had discretion whether to award fees, because it appears the court was acting under a misapprehension of law, it could not properly exercise that discretion. We must, therefore, remand for reconsideration of this issue under the correct standard. The trial court will be required to determine on remand whether defendants prevailed on a significant issue and if so, whether, in the exercise of the court\u2019s discretion, defendants should be awarded attorneys\u2019 fees.\nAffirmed in part; reversed and remanded in part.\nChief Judge MARTIN and Judge ELMORE concur.\n. Defendants\u2019 summary judgment motion is not included in the record on appeal. We have relied upon the description of that motion included in the trial court\u2019s order denying the motion for summary judgment.\n. This Court takes judicial notice of defendants\u2019 brief in Free Spirit I. As this Court has previously held, \u201c[i]n addition to the record on appeal, appellate courts may take judicial notice of their own filings in an interrelated proceeding.\u201d Lineberger v. N.C. Dep\u2019t of Corr., 189 N.C. App. 1, 6, 657 S.E.2d 673, 677, aff\u2019d in part and disc. review improvidently allowed in part per curiam, 362 N.C. 675, 669 S.E.2d 320 (2008). See also Alford v. Shaw, 327 N.C. 526, 541-42, 398 S.E.2d 445, 453-54 (1990) (taking judicial notice of briefs filed in Court in prior, related appeal).", "type": "majority", "author": "GEER, Judge." } ], "attorneys": [ "Craig Law Firm, PLLC, by Sam B. Craig, for plaintiffsappellees.", "Womble Carlyle Sandridge & Rice, PLLC, by Sean F. Perrin, for defendants-appellants Rusty Washburn, Phillip Robbins, Alan Guffey, and Don Greene." ], "corrections": "", "head_matter": "FREE SPIRIT AVIATION, INC. and GEORGE RONAN, Plaintiffs v. RUTHERFORD AIRPORT AUTHORITY; RUSTY WASHBURN, individually and as a member of the Rutherford Airport Authority; PHILLIP ROBBINS, individually and as a member of the Rutherford Airport Authority; ALAN GUFFEY, individually and as a member of the Rutherford Airport Authority; DON GREENE, individually and as a member of the Rutherford Airport Authority; and DAVID RENO, as a member of the Rutherford Airport Authority, Defendants\nNo. COA09-806\n(Filed 3 August 2010)\n1. Attorney Fees\u2014 denial of summary judgment motion \u2014 reasonable pursuit of claim\nThe trial court did not err by failing to award defendant attorney fees under N.C.G.S. \u00a7 6-21.5 for claims including malfeasance of office by retaliating against plaintiffs, improper personal benefit from a contract made or administered on behalf of a public agency, and wrongful interference with plaintiffs\u2019 contractual rights. Defendants failed to demonstrate why plaintiffs could not have reasonably pursued their claims given the rationale of the trial court\u2019s summary judgment order and the reasoning of the Court of Appeals in the first appeal.\n2. Attorney Fees\u2014 prevailing party \u2014 prevailed on significant issue\nThe trial court erred by failing to award defendant attorney fees under N.C.G.S. \u00a7 143-318.16B based on its mistaken belief that it was required to designate either plaintiffs or defendants as the prevailing party, and that it was not possible for both to be prevailing parties. On remand, the trial court must determine whether defendants prevailed on a significant issue and if so, whether in the exercise of the trial court\u2019s discretion, defendants should be awarded attorney fees.\nAppeal by defendants from order entered 6 April 2009 by Judge Mark Powell in Rutherford County Superior Court. Heard in the Court of Appeals 30 November 2009.\nCraig Law Firm, PLLC, by Sam B. Craig, for plaintiffsappellees.\nWomble Carlyle Sandridge & Rice, PLLC, by Sean F. Perrin, for defendants-appellants Rusty Washburn, Phillip Robbins, Alan Guffey, and Don Greene." }, "file_name": "0192-01", "first_page_order": 216, "last_page_order": 228 }