{ "id": 4356089, "name": "JESSICA LEIGH FINCH, Plaintiff v. CAMPUS HABITAT, L.L.C., Defendant", "name_abbreviation": "Finch v. Campus Habitat, L.L.C.", "decision_date": "2012-04-17", "docket_number": "No. COA11-1485", "first_page": "146", "last_page": "150", "citations": [ { "type": "official", "cite": "220 N.C. App. 146" } ], "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 837", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12640256, 12640257, 12640258 ], "year": 2007, "opinion_index": 0, "case_paths": [ "/se2d/655/0837-01", "/se2d/655/0837-02", "/se2d/655/0837-03" ] }, { "cite": "362 N.C. 86", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 12640256, 12640258, 12640348, 12640253, 12640254, 12640255 ], "year": 2007, "opinion_index": 0, "case_paths": [ "/se2d/655/0837-01", "/se2d/655/0837-03", "/se2d/656/0591-01", "/se2d/655/0836-01", "/se2d/655/0836-02", "/se2d/655/0836-03" ] }, { "cite": "647 S.E.2d 672", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12638974 ], "pin_cites": [ { "page": "674" } ], "opinion_index": 0, "case_paths": [ "/se2d/647/0672-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 1-263", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 7, "opinion_index": 0 }, { "cite": "361 S.E.2d 75", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "opinion_index": 0 }, { "cite": "320 N.C. 798", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4726403, 4731173, 4724745, 4725229, 4724083 ], "year": 1987, "opinion_index": 0, "case_paths": [ "/nc/320/0798-02", "/nc/320/0798-03", "/nc/320/0798-05", "/nc/320/0798-01", "/nc/320/0798-04" ] }, { "cite": "355 S.E.2d 815", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1987, "pin_cites": [ { "page": "818" }, { "page": "818" } ], "opinion_index": 0 }, { "cite": "85 N.C. App. 684", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12170280 ], "year": 1987, "opinion_index": 0, "case_paths": [ "/nc-app/85/0684-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 6-21.2", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 13, "pin_cites": [ { "page": "(5)", "parenthetical": "emphasis added" }, { "page": "(5)" }, { "page": "(2)" }, { "page": "(2)" }, { "page": "(2)" } ], "opinion_index": 0 }, { "cite": "185 N.C. App. 153", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8208915 ], "pin_cites": [ { "page": "155-56" } ], "opinion_index": 0, "case_paths": [ "/nc-app/185/0153-01" ] } ], "analysis": { "cardinality": 432, "char_count": 8831, "ocr_confidence": 0.762, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.1483849058381396 }, "sha256": "e6651c140d90b44a6730cc5aacc9ee6c7c9cf629845183677bd504b4b7b157e2", "simhash": "1:be689b43d37f5474", "word_count": 1431 }, "last_updated": "2023-07-14T21:35:53.925153+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges ELMORE and STEELMAN concur." ], "parties": [ "JESSICA LEIGH FINCH, Plaintiff v. CAMPUS HABITAT, L.L.C., Defendant" ], "opinions": [ { "text": "STROUD, Judge.\nPlaintiff appeals judgment requiring her to pay attorney\u2019s fees to defendant Campus Habitat, L.L.C. For the following reasons, we reverse and remand the award of attorney\u2019s fees.\nI. Background\nPlaintiff leased a room in a student apartment from defendant Campus Habitat, L.L.C., (\u201cCampus\u201d) and this dispute began when plaintiff claimed that defendant Campus had breached the housing agreement (\u201cagreement\u201d), causing her to move out and stop paying rent. On or about 10 March 2010, plaintiff filed a complaint regarding breach of the agreement and requested a declaratory judgment, temporary restraining order, and preliminary injunction. On 12 May 2010, defendant Campus Habitat 2, L.L.C. (\u201cCampus 2\u201d) filed a motion to dismiss and defendant Campus Habitat, L.L.C. (\u201cCampus\u201d) filed an answer and counterclaimed for breach in the amount of $3,090.00. Defendant Campus also requested \u201cattorney\u2019s fees as provided in the Agreement[.]\u201d The agreement between plaintiff and defendant Campus provided that \u201c[rjesident is liable for all damages caused by the Resident\u2019s violation of any term of this Agreement. This includes all attorney\u2019s fees and collection costs.\u201d On 15 April 2011, before the hearing began, plaintiff moved to dismiss defendant Campus 2 as a party; the trial court allowed the motion. On 1 July 2011, the trial court entered a judgment ordering defendant Campus recover $3,090.00 from plaintiff \u201cby way of judgment\u201d and $4,458.50 from plaintiff \u201cas reimbursement for . . . attorney\u2019s fees[.]\u201d Plaintiff appeals.\nII. Attorney\u2019s Fees\nThe only issues plaintiff raises on appeal are regarding the award of attorney\u2019s fees.\nThe case law in North Carolina is clear that to overturn the trial judge\u2019s determination on the issue of attorneys\u2019 fees, the defendant must show an abuse of discretion. However, where an appeal presents a question of statutory interpretation, full review is appropriate, and we review a trial court\u2019s conclusions of law de novo.\nBruning & Federle Mfg. Co. v. Mills, 185 N.C. App. 153, 155-56, 647 S.E.2d 672, 674 (citations, quotation marks, and brackets omitted), cert denied, 362 N.C. 86, 655 S.E.2d 837 (2007).\nA. Notice\nPlaintiff first claims that pursuant to N.C. Gen. Stat. \u00a7 6-21.2 defendant Campus failed to properly notify her it was seeking attorney\u2019s fees. In its judgment, the trial court noted it was awarding attorney\u2019s fees pursuant to N.C. Gen. Stat. \u00a7 6-21.2 which provides:\nThe holder of an unsecured note or other writing(s) evidencing an unsecured debt, and/or the holder of a note and chattel mortgage or other security agreement and/or the holder of a conditional sale contract or any other such security agreement which evidences both a monetary obligation and a security interest in or a lease of specific goods, or his attorney at law, shall, after maturity of the obligation by default or otherwise, notify the maker, debtor, account debtor, endorser or party sought to be held on said obligation that the provisions relative to payment of attorneys\u2019 fees in addition to the \u201coutstanding balance\u2019\u2019 shall be enforced and that such maker, debtor, account debtor, endorser or party sought to be held on said obligation has five days from the mailing of such notice to pay the \u201coutstanding balance\u201d without the attorneys\u2019 fees. If such party shall pay the \u201coutstanding balance\u201d in full before the expiration of such time, then the obligation to pay the attorneys\u2019 fees shall be void, and no court shall enforce such provisions.\nN.C. Gen. Stat. \u00a7 6-21.2(5) (2009) (emphasis added).\nIn Wilson Bldg. Co. v. Thorneburg Hosiery Co., 85 N.C. App. 684, 355 S.E.2d 815, disc. review denied, 320 N.C. 798, 361 S.E.2d 75 (1987), this Court stated:\nThe notice provision of G.S. 6-21.2(5) simply provides that the obligor will have five days notice to pay any outstanding balance on the debt before the claimant goes to the expense of employing counsel to collect the balance due. In our opinion, the notice provision has no application in this situation where the obligor has refused to pay Wilson\u2019s claim and demanded arbitration pursuant to the terms of the contract. Wilson was forced into the position of having to employ counsel not only to collect its own claim, but also to protect it against Thomeburg\u2019s claim because of Thorneburg\u2019s demand of arbitration. When Wilson filed its response to Thorneburg\u2019s demand for arbitration, and its own claim for the balance due on the contract, it clearly notified Thorneburg it was demanding attorneys\u2019 fees under the terms of the contract.\nId. at 688-89, 355 S.E.2d at 818.\nHere, defendant Campus was in the same position as Wilson. See id. at 689, 355 S.E.2d at 818. Plaintiff filed a complaint and thus defendant Campus\nwas forced into the position of having to employ counsel not only to collect its own claim, but also to protect it against [the plaintiff\u2019s] claim .... When [defendant Campus] filed its response to [the plaintiff\u2019s] demand . . . and its own claim for the balance due on the contract, it clearly notified [the plaintiff] it was demanding attorneys\u2019 fees under the terms of the contract.\nId. Accordingly, N.C. Gen. Stat. \u00a7 6-21.2(5) is inapplicable to this situation. See id. Thus, this argument is overruled.\nB. Amount\nPlaintiff next contends the attorney\u2019s fees awarded were more than allowed by statute. N.C. Gen. Stat. \u00a7 6-21.2(2) provides;\nIf 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(2) (2009). Here, defendant Campus counterclaimed for $3,090.00, the amount owing on the agreement. The trial court found that \u201c[t]he amount owed by the Plaintiff to the Defendant pursuant to the lease agreement for unpaid rent is $3,090.00\u201d and ordered plaintiff pay defendant Campus this amount. The trial court further ordered plaintiff pay $4,458.50 in attorney\u2019s fees. Fifteen percent of $3,090.00 is $463.50; the trial court therefore awarded nearly ten times the amount allowed by statute, in violation of N.C. Gen. Stat. \u00a7 6-21.2(2). See id.\nDefendant Campus contends that although the trial court awarded attorney\u2019s fees specifically pursuant to N.C. Gen. Stat. \u00a7 6-21.2, the trial court could have awarded attorney fees under N.C. Gen. Stat. \u00a7 1-263, and the trial court had discretion under N.C. Gen. Stat. \u00a7 1-263 to exceed 15% of $3,090.00. However, the trial court here clearly stated it was awarding attorney\u2019s fees pursuant to N.C. Gen. Stat. \u00a7 6-21.2. The trial court made no mention in open court or in the judgment of N.C. Gen. Stat. \u00a7 1-263 and made no findings of fact or conclusions of law which would indicate that N.C. Gen. Stat. \u00a7 1-263 played any part in its determination. In addition, there is no indication in the transcript or communications between the trial court and counsel in the record that N.C. Gen. Stat. \u00a7 1-263 was argued or considered as a basis for the award of attorney\u2019s fees. Under these circumstances, we cannot assume that the trial court made a clerical error in its reference to N.C. Gen. Stat. \u00a7 6-21.2 instead of N.C. Gen. Stat. \u00a7 1-263. The award of attorney\u2019s fees of more than 15% of the \u201coutstanding balance\u201d is in. violation of the stated statute. Id. Accordingly, we reverse the award and remand for entry of an award of attorney\u2019s fees which is in compliance with N.C. Gen. Stat. \u00a7 6-21.2.\nIII. Conclusion\nFor the foregoing reasons, we reverse and remand the trial court\u2019s award of attorney\u2019s fees.\nREVERSED and REMANDED.\nJudges ELMORE and STEELMAN concur.", "type": "majority", "author": "STROUD, Judge." } ], "attorneys": [ "Khot & Associates, PLLC, by Bobby P. Khot, for plaintiff-appellant.", "Narron & Holdford, P.A., by I. Joe Ivey, for defendant-appellee." ], "corrections": "", "head_matter": "JESSICA LEIGH FINCH, Plaintiff v. CAMPUS HABITAT, L.L.C., Defendant\nNo. COA11-1485\n(Filed 17 April 2012)\n1. Attorney fees \u2014 breach of contract \u2014 notification of intent to seek attorney fees\nPlaintiff\u2019s argument that pursuant to N.C.G.S. \u00a7 6-21.2, defendant failed to properly notify her it was seeking attorney\u2019s fees in a breach of contract case was without merit. N.C.G.S. \u00a7 6-21.2(5) was inapplicable to this situation.\n2. Attorney fees \u2014 breach of contract \u2014 statutorily allowed amount \u2014 award exceeded amount\nThe trial court erred in a breach of contract case by awarding defendant attorney fees of more than 15% of plaintiff\u2019s outstanding rent balance. The trial court awarded attorney fees pursuant to N.C.G.S. \u00a7 6-21.2 but awarded ten times the statutorily allowed amount.\nAppeal by plaintiff from judgment entered 1 July 2011 by Judge William G. Stewart in District Court, Wilson County. Heard in the Court of Appeals 22 March 2012.\nKhot & Associates, PLLC, by Bobby P. Khot, for plaintiff-appellant.\nNarron & Holdford, P.A., by I. Joe Ivey, for defendant-appellee." }, "file_name": "0146-01", "first_page_order": 156, "last_page_order": 160 }