{ "id": 8557147, "name": "YEARGIN CONSTRUCTION COMPANY, INC. v. FUTREN DEVELOPMENT CORPORATION", "name_abbreviation": "Yeargin Construction Co. v. Futren Development Corp.", "decision_date": "1976-06-16", "docket_number": "Nos. 7526SC798 and 7526SC953", "first_page": "731", "last_page": "735", "citations": [ { "type": "official", "cite": "29 N.C. App. 731" } ], "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": "196 S.E. 333", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1938, "opinion_index": 0 }, { "cite": "213 N.C. 347", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8628015 ], "year": 1938, "opinion_index": 0, "case_paths": [ "/nc/213/0347-01" ] }, { "cite": "187 S.E. 2d 752", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "opinion_index": 0 }, { "cite": "281 N.C. 140", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8574023 ], "year": 1972, "opinion_index": 0, "case_paths": [ "/nc/281/0140-01" ] }, { "cite": "183 S.E. 2d 859", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "opinion_index": 0 }, { "cite": "12 N.C. App. 481", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8550527 ], "year": 1971, "opinion_index": 0, "case_paths": [ "/nc-app/12/0481-01" ] }, { "cite": "70 S.E. 2d 578", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1952, "opinion_index": 0 }, { "cite": "235 N.C. 446", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8625413 ], "year": 1952, "opinion_index": 0, "case_paths": [ "/nc/235/0446-01" ] }, { "cite": "131 S.E. 2d 326", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1963, "opinion_index": 0 }, { "cite": "259 N.C. 704", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8562313 ], "year": 1963, "opinion_index": 0, "case_paths": [ "/nc/259/0704-01" ] }, { "cite": "72 S.E. 2d 21", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1952, "opinion_index": 0 }, { "cite": "236 N.C. 96", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8622485 ], "year": 1952, "opinion_index": 0, "case_paths": [ "/nc/236/0096-01" ] }, { "cite": "143 S.E. 254", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1928, "pin_cites": [ { "page": "256" } ], "opinion_index": 0 }, { "cite": "195 N.C. 644", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8631205 ], "year": 1928, "pin_cites": [ { "page": "646" } ], "opinion_index": 0, "case_paths": [ "/nc/195/0644-01" ] }, { "cite": "16 S.E. 325", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1892, "opinion_index": 0 }, { "cite": "111 N.C. 340", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8651306 ], "year": 1892, "opinion_index": 0, "case_paths": [ "/nc/111/0340-01" ] } ], "analysis": { "cardinality": 431, "char_count": 7551, "ocr_confidence": 0.627, "pagerank": { "raw": 3.6729566491974766e-07, "percentile": 0.8910438407799065 }, "sha256": "d3b01b8ee28d6db822a03257137888c261a393c74382272e1f9cd77d029b9407", "simhash": "1:ba29df6ba869707c", "word_count": 1201 }, "last_updated": "2023-07-14T16:29:22.308082+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges Vaughn and Arnold concur." ], "parties": [ "YEARGIN CONSTRUCTION COMPANY, INC. v. FUTREN DEVELOPMENT CORPORATION" ], "opinions": [ { "text": "BRITT, Judge.\nPlaintiff\u2019s Appeal\nThe sole question presented by plaintiff\u2019s appeal is whether the trial court erred in denying plaintiff\u2019s motion for attorneys\u2019 fees in amount of $31,900, representing ten percent of the principal amount of the verdict. We hold that the court did not err in denying the motion.\nThe contract between the parties contains the following provision :\n\u201cIn the event any Progress Payment or any final payment, or any part of either of same, shall not be paid when and as the same shall become due and payable as provided herein, such Progress Payment or final payment, or part thereof as shall be past due shall bear interest at the rate of ten percent (10%) per annum, and in the event of any such nonpayment, if same be placed in the hands of an attorney for collection or if collected through any bankruptcy proceedings or any other court action, Owner agrees to pay, in addition to all other sums due or to become due hereunder, an additional ten percent of any monies so unpaid as attorneys\u2019 fees.\u201d\nPlaintiff argues that under the common law of our State, parties may contract for the payment of attorneys\u2019 fees in the event of litigation based on the contract. We do not find this argument persuasive.\nThe first expression of our Supreme Court on this question was in Tinsley v. Hoskins, 111 N.C. 340, 16 S.E. 325 (1892). There the court held that a stipulation in a promissory note \u201cthat in case this note is collected by legal process the usual collection fee shall be due and payable\u201d is not consistent with public policy, therefore, the same is not enforceable.\nIn Parker v. Realty Company, 195 N.C. 644, 646, 143 S.E. 254, 256 (1928), the court stated with approval the general rule that \u201c \u2018 [a] ttorneys\u2019 fees are not recoverable by successful litigants in this State, as such are not regarded as a part of the court costs\u2019.\u201d The court further declared that \u201c[t]his rule has been applied to suits on promissory notes, breach of contract, personal injury and injunctions.\u201d\nIt appears to be well established that ordinarily attorneys\u2019 fees are recoverable only when expressly authorized by statute. Horner v. Chamber of Commerce, 236 N.C. 96, 72 S.E. 2d 21 (1952). See also Hoskins v. Hoskins, 259 N.C. 704, 131 S.E. 2d 326 (1963) ; Wachovia Bank & Trust Company v. Schneider, 235 N.C. 446, 70 S.E. 2d 578 (1952) ; Credit Corporation v. Wilson, 12 N.C. App. 481, 183 S.E. 2d 859 (1971), aff'd, 281 N.C. 140, 187 S.E. 2d 752 (1972).\nPlaintiff next argues that assuming the common law does not allow recovery of attorneys\u2019 fees in this case, their recovery is authorized by G.S. 6-21.2 (enacted in 1967) which provides in pertinent part: \u201cObligations to pay attorneys\u2019 fees upon any note, conditional sale contract or other evidence of indebtedness . . . shall be valid and enforceable. . . .\u201d (Emphasis added.) Plaintiff contends that the provision of the contract quoted above is an \u201cevidence of indebtedness\u201d in the contemplation of the statute. We reject this argument.\nIn Brown v. Brown, 213 N.C. 347, 196 S.E. 333 (1938), the Supreme Court held that while all questions of public policy are for the determination of the Legislature, a statute will not be construed to alter established principles of public policy founded on good morals unless that intent is clearly and unequivocally expressed in the statute. We think the rule of strict construction must be applied to G.S. 6-21.2 and that when the statute is strictly construed, the interpretation urged by plaintiff cannot be given.\nFor the reasons stated, the order from which plaintiff appeals is affirmed.\nDependant\u2019s Appeal\nDefendant\u2019s sole assignment of error relates to exceptions to three portions of the trial court\u2019s charge to the jury. Suffice it to say, we have carefully reviewed the entire charge, with particular reference to defendant\u2019s exceptions, and conclude that defendant has failed to show prejudicial error.\nOn plaintiff\u2019s appeal \u2014 affirmed.\nOn defendant\u2019s appeal \u2014 no error.\nJudges Vaughn and Arnold concur.", "type": "majority", "author": "BRITT, Judge." } ], "attorneys": [ "Grier, Parker, Poe, Thompson, Bernstein, Gage & Preston, by Gaston H. Gage and William P. Farthing, Jr., and Hayns-worth, Perry, Bryant, Marion & Johnstone, by Charles T. Roy, Jr., for plaintiff appellant-appellee.", "William H. Ashendorf and Perry, Patrick, Farmer & Michaux, by Roy H. Michaux, Jr., for defendant appellant-appellee." ], "corrections": "", "head_matter": "YEARGIN CONSTRUCTION COMPANY, INC. v. FUTREN DEVELOPMENT CORPORATION\nNos. 7526SC798 and 7526SC953\n(Filed 16 June 1976)\n1. Attorney and Client \u00a7 7\u2014 attorneys\u2019 fees \u2014 no recovery by successful litigants\nThe trial court did not err in denying plaintiff\u2019s motion for attorneys\u2019 fees in an amount representing ten percent of the principal amount of the jury verdict, as the contract of the parties provided, since attorneys\u2019 fees are not recoverable by successful litigants in this State, as such are not regarded as a part of the court costs. Ordinarily, attorneys\u2019 fees are recoverable only when expressly authorized by statute.\n2. Attorney and Client \u00a7 7\u2014 attorneys\u2019 fees \u2014 provision in contract for \u2014 no evidence of indebtedness\nIn this action to recover sums due for breach of contract to build condominiums, recovery of attorneys\u2019 fees was not authorized by the provision of G.S. 6-21.2 that \u201cobligation to pay attorneys\u2019 fees upon any note, conditional sale contract or other evidence of indebtedness . . . shall be valid and enforceable,\u201d since the parties\u2019 contract providing for recovery of 10 percent of any sum collected through litigation as attorneys\u2019 fees did not amount to an \u201cevidence of indebtedness\u201d within the meaning of the statute.\nAppeal by plaintiff and defendant from Thornburg, Judge. Judgment entered 18 June 1975, and order entered 23 June 1975 in Superior Court, Mecklenburg County. Heard in the Court of Appeals 10 May 1976,\nIn its complaint plaintiff alleges that it entered into a contract with defendant to construct condominiums on land owned by defendant; that defendant breached the contract by failing to make payments as agreed upon, by delaying construction so that plaintiff incurred additional costs, and by requiring plaintiff to perform extra work. Plaintiff prayed for judgment in amounts aggregating $470,506.\nDefendant filed answer in which it admitted entering into the contract attached to the complaint but denied any breach of the contract. It further pleaded a counterclaim in which it alleged that plaintiff breached the contract by failing to construct the condominiums in accordance with the plans and specifications and by abandoning work on the project. Defendant prayed for judgment against plaintiff for amounts aggregating $589,410.\nIssues were submitted to and answered by the jury as follows:\n1. Did defendant Futren Development Corporation breach its construction contract with plaintiff Yeargin Construction Company, Inc.?\nAnswer: Yes.\n2. If so, what amount was plaintiff Yeargin Construction Company, Inc., damaged by such breach?\nAnswer: $319,000 plus interest.\n3. Did plaintiff Yeargin Construction Company, Inc. breach its construction contract with defendant Futren Development Corporation ?\nAnswer: No.\n4. If so, what amount was Futren Development Corporation damaged by such breach?\nAnswer :\nThe court entered judgment in favor of plaintiff for $319,000 plus interest and costs. Defendant appealed from the judgment. In a separate order the court denied plaintiff\u2019s motion for the recovery of attorneys\u2019 fees and plaintiff appealed from the order. The parties filed separate appeals but we have ordered the appeals consolidated.\nGrier, Parker, Poe, Thompson, Bernstein, Gage & Preston, by Gaston H. Gage and William P. Farthing, Jr., and Hayns-worth, Perry, Bryant, Marion & Johnstone, by Charles T. Roy, Jr., for plaintiff appellant-appellee.\nWilliam H. Ashendorf and Perry, Patrick, Farmer & Michaux, by Roy H. Michaux, Jr., for defendant appellant-appellee." }, "file_name": "0731-01", "first_page_order": 763, "last_page_order": 767 }