{ "id": 2677838, "name": "WARD LUMBER COMPANY, A Corporation, Plaintiff v. JOHN C. BROOKS, Commissioner of Labor of the State of North Carolina, Defendant", "name_abbreviation": "Ward Lumber Co. v. Brooks", "decision_date": "1981-01-06", "docket_number": "No. 8010SC530", "first_page": "294", "last_page": "298", "citations": [ { "type": "official", "cite": "50 N.C. App. 294" } ], "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": "261 S.E. 2d 919", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "opinion_index": -1 }, { "cite": "298 N.C. 806", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8574340, 8574361, 8574382, 8574319, 8574393 ], "year": 1979, "opinion_index": -1, "case_paths": [ "/nc/298/0806-02", "/nc/298/0806-03", "/nc/298/0806-04", "/nc/298/0806-01", "/nc/298/0806-05" ] }, { "cite": "254 S.E. 2d 923", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "opinion_index": -1 }, { "cite": "297 N.C. 299", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569249, 8569379, 8569416, 8569333, 8569302 ], "year": 1979, "opinion_index": -1, "case_paths": [ "/nc/297/0299-01", "/nc/297/0299-04", "/nc/297/0299-05", "/nc/297/0299-03", "/nc/297/0299-02" ] }, { "cite": "N.C. Gen. Stat. \u00a7 95436", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "pin_cites": [ { "page": "(a)" } ], "opinion_index": -1 }, { "cite": "251 S.E. 2d 698", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "opinion_index": -1 }, { "cite": "39 N.C. App. 519", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8553399 ], "weight": 2, "year": 1979, "opinion_index": -1, "case_paths": [ "/nc-app/39/0519-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 1-253", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "opinion_index": -1 }, { "cite": "42 U.S.C. \u00a7 1988", "category": "laws:leg_statute", "reporter": "U.S.C.", "weight": 3, "opinion_index": -1 }, { "cite": "42 U.S.C. \u00a7 1983", "category": "laws:leg_statute", "reporter": "U.S.C.", "weight": 4, "opinion_index": -1 }, { "cite": "383 U.S. 715", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6175285 ], "year": 1966, "opinion_index": 0, "case_paths": [ "/us/383/0715-01" ] }, { "cite": "415 U.S. 528", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6178436 ], "year": 1974, "opinion_index": 0, "case_paths": [ "/us/415/0528-01" ] }, { "cite": "436 F. Supp. 891", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 3952926 ], "year": 1977, "opinion_index": 0, "case_paths": [ "/f-supp/436/0891-01" ] }, { "cite": "43 A.L.R. Fed. 243", "category": "reporters:federal", "reporter": "A.L.R. Fed.", "year": 1979, "opinion_index": 0 }, { "cite": "562 F. 2d 390", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 885779 ], "year": 1977, "opinion_index": 0, "case_paths": [ "/f2d/562/0390-01" ] }, { "cite": "574 F. 2d 423", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 926378 ], "year": 1978, "opinion_index": 0, "case_paths": [ "/f2d/574/0423-01" ] }, { "cite": "413 N.Y.S. 2d 528", "category": "reporters:state", "reporter": "N.Y.S.2d", "year": 1979, "opinion_index": 0 }, { "cite": "67 A.D. 2d 828", "category": "reporters:state", "reporter": "A.D.2d", "case_ids": [ 5520949 ], "year": 1979, "opinion_index": 0, "case_paths": [ "/ad2d/67/0828-01" ] }, { "cite": "42 U.S.C. \u00a7\u00a7 1981-1983", "category": "laws:leg_statute", "reporter": "U.S.C.", "opinion_index": 0 }, { "cite": "39 N.C. App. 519", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8553399 ], "year": 1979, "opinion_index": 0, "case_paths": [ "/nc-app/39/0519-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 1-253", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "pin_cites": [ { "page": "et seq." } ], "opinion_index": 0 }, { "cite": "42 U.S.C. \u00a7 1988", "category": "laws:leg_statute", "reporter": "U.S.C.", "weight": 3, "opinion_index": 0 }, { "cite": "42 U.S.C. \u00a7 1983", "category": "laws:leg_statute", "reporter": "U.S.C.", "weight": 6, "opinion_index": 0 } ], "analysis": { "cardinality": 447, "char_count": 8484, "ocr_confidence": 0.897, "pagerank": { "raw": 2.71078003749458e-07, "percentile": 0.8293085813111112 }, "sha256": "f477c58c550e361aa58aee0f07556e6771f6bc34e6661e11898b5636a708e293", "simhash": "1:1329fdd16827ea97", "word_count": 1412 }, "last_updated": "2023-07-14T22:39:05.008611+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges Vaughn and Wells concur." ], "parties": [ "WARD LUMBER COMPANY, A Corporation, Plaintiff v. JOHN C. BROOKS, Commissioner of Labor of the State of North Carolina, Defendant" ], "opinions": [ { "text": "MARTIN (Robert M.), Judge.\nThe Civil Rights Attorney\u2019s Fees Awards Act of 1976, \u00a7 2, 42 U.S.C. \u00a7 1988 (1978) provides:\nIn any action or proceeding to enforce a provision of sections 1977, 1978, 1979, 1980, and 1981 of the Revised Statutes [42 U.S.C. \u00a7\u00a7 1981-1983,1985,1986],... the court, in its discretion, may allow the prevailing party, other than the United States, a reasonably attorney\u2019s fee as part of the costs.\nAttorney\u2019s fees may be recovered as part of costs in state court proceedings instituted to enforce provisions of 42 U.S.C. \u00a7 1983. Ashley v. Curtis, 67 A.D. 2d 828, 413 N.Y.S. 2d 528 (App. Div., 1979). Our previous opinion in this case at 39 N.C. App. 519 did not address the question of whether plaintiff had established a violation of 42 U.S.C. \u00a7 1983. Where a claim is based on both a state statute which does not provide for the recovery of attorney\u2019s fees and on 42 U.S.C. \u00a7 1983, it is not necessary that the court base its decision on \u00a7 1983 in order for the prevailing party to be entitled to attorney\u2019s fees under 42 U.S.C. \u00a7 1988. If the court does not address the \u00a7 1983 claim, but rather decides the case on the basis of the state statute, the test for determining whether the prevailing party is entitled to attorney\u2019s fees is two-pronged: (1) was there a substantial claim under \u00a7 1983 and (2) was there a common nucleus of operative facts. Kimbrough v. Arkansas Activities Ass\u2019n., 574 F. 2d 423 (8th Cir. 1978); Seals v. Quarterly County Court, Etc., 562 F. 2d 390 (6th Cir. 1977); Annot., 43 A.L.R. Fed. 243 (1979); see also Southeast Legal Defense Group v. Adams, 436 F. Supp. 891 (D. Ore. 1977). H.R.Rep. No. 94-1558, 94th Cong., 2d Sess. 4, n. 7 (1976) states that where a court decides the case on the non-fee claim,\nif the claim for which fees may be awarded meets the \u201csubstantiality\u201d test, see Hagans v. Lavine, supra; [415 U.S. 528 (1974)] United Mine Workers v. Gibbs, 383 U.S. 715 (1966), attorney\u2019s fees may be allowed even though the court declines to enter judgment for the plaintiff on that claim, so long as the plaintiff prevails on the non-fee claim arising out of a \u201ccommon nucleus of operative fact.\u201d\nThe court below found that 42 U.S.C. \u00a7 1988 was inapplicable to the relief obtained by the plaintiff pursuant to the North Carolina Declaratory Judment Act, N.C. Gen. Stat. \u00a7 1-253 et seq. The dispositive issue on this appeal, as plaintiff-appellant concedes in its brief, is \u201cwhether there was a substantial claim under Section 1983 and a common nucleus of operative facts between the 1983 claim and the Declaratory Judgment claim.\u201d\n42 U.S.C. \u00a7 1983 (1978) provides:\nEvery person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunites secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.\nThe record discloses that although a citation and notification of proposed penalty were issued to plaintiff, plaintiff contested the citation and proposed penalty and subsequently the defendant voluntarily dismissed that portion of the administrative proceeding related to plaintiff\u2019s refusal to honor the adminstrative inspection warrant. In addition, the record discloses that plaintiff\u2019s place of business was not inspected during the pendency of this litigation. Plaintiff therefore was not deprived of any constitutional rights as a result of the issuance of the invalid warrant. Simply stated, plaintiff has failed to show any deprivation of rights as required in order to claim relief under 42 U.S.C. \u00a7 1983. As plaintiff has failed to meet the first prong of the test referred to above, a substantial claim under 42 U.S.C. \u00a7 1983, and thus is not entitled to recover its attorney\u2019s fees under 42 N.C. U.S.C. \u00a7 1988, we will not address the issue of whether plaintiff has met the second prong of that test.\nOur decision renders any possible error in the court\u2019s order dismissing plaintiff\u2019s motion for attorney\u2019s fees nonprejudicial.\nAffirmed.\nJudges Vaughn and Wells concur.", "type": "majority", "author": "MARTIN (Robert M.), Judge." } ], "attorneys": [ "Hugh Joseph Beard, Jr., for the plaintiff appellant.", "Attorney General Edmisten by Assistant Attorney General Tiare B. Smiley, for the defendant-appellee." ], "corrections": "", "head_matter": "WARD LUMBER COMPANY, A Corporation, Plaintiff v. JOHN C. BROOKS, Commissioner of Labor of the State of North Carolina, Defendant\nNo. 8010SC530\n(Filed 6 January 1981)\n1. Attorneys at I aw \u00a7 7.5\u2014 attorney fees \u2014 civil rights action\nWhere a claim is based on both a State statute which does not provide for recovery of attorney fees and on 42 U.S.C. \u00a7 1983, it is not necessary that the court base its decision on \u00a7 1983 in order for the prevailing party to be entitled to attorney fees under 42 U.S.C. \u00a7 1988. If the court does not address the \u00a7 1983 claim but decides the case on the basis of the State statute, the test for determining whether the prevailing party is entitled to attorney fees is whether there was (1) a substantial claim under \u00a7 1983 and (2) a common nucleus of operative facts.\n2. Attorneys at La w \u00a7 7.5\u2014 attorney fees \u2014 civil rights action\u2014failure to show substantial claim\nPlaintiff corporation is not entitled to attorney fees pursuant to 42 U.S.C. \u00a7\u00a7 1983 and 1988 in an action in which it was held that G.S. 95-136(a) is unconstitutional to the extent that it purports to authorize warrantless OSHA inspections of business premises and that an administrative inspection warrant for plaintiff\u2019s premises was not based on probable cause and was invalid where defendant voluntarily dismissed that portion of the administrative proceeding relating to a citation and proposed penalty for plaintiff\u2019s refusal to allow an inspection of its premises, plaintiff\u2019s place of business was not inspected during the pendency of this litigation, plaintiff was not deprived of any constitutional rights as a result of the invalid warrant, and plaintiff therefore failed to show a substantial claim under 42 U.S.C. \u00a7 1983 which would permit an award of attorney fees under 42 U.S.C. \u00a7 1988.\nAppeal by plaintiff from Preston, Judge. Order entered 13 March 1980 in Superior Court, Wake County. Heard in the Court of Appeals, 4 December 1980.\nThis case is before us for the second time on appeal. The action was instituted by plaintiff Ward Lumber Company and five other individual plaintiffs under the North Carolina Declaratory Judgment Act, N.C. Gen. Stat. \u00a7 1-253 etseq., and under 42 U.S.C. \u00a7 1983 (1978). It involved a challenge to warrantless OSHA inspections.,Our previous opinion, Gooden v. Brooks, Comr. of Labor, 39 N.C. App. 519,251 S.E. 2d 698 (1979), affirmed the trial court\u2019s dismissal for failure to state a claim upon which relief could be granted as to all plaintiffs except Ward Lumber Company. As to Ward Lumber Company, the appellant on this appeal, we held that it was entitled to a declaratory judgment that N.C. Gen. Stat. \u00a7 95436(a) is unconstitutional to the extent that it purports to authorize warrantless inspections.\nDefendant subsequently appealed our decision to the Supreme Court of North Carolina, which granted defendant\u2019s petition for discretionary review and denied plaintiff\u2019s motion to dismiss. Gooden v. Brooks, Comr. of Labor, 297 N.C. 299, 254 S.E. 2d 923 (1979). The record discloses that after the parties submitted briefs and after oral argument, the Supreme Court vacated its prior order granting discretionary review and dismissed the appeal. Gooden v. Brooks, Comr. of Labor, 298 N.C. 806, 261 S.E. 2d 919 (1979).\nThis appeal concerns the denial of plaintiff\u2019s request for attorney\u2019s fees. On 10 January 1980 plaintiff moved for summary judgment pursuant to our opinion at 39 N.C. App. 519, requesting injunctive and declaratory relief and the award of attorney\u2019s fees. Simultaneously, plaintiff filed a motion for fees under The Civil Rights Attorney\u2019s Fees Awards Act of 1976, \u00a7 2,42 U.S.C. \u00a7 1988 (1978). On 23 January 1980 the superior court granted the injunctive and declaratory relief requested and ordered that the matter be retained on the docket to determine plaintiff\u2019s entitlement to attorney\u2019s fees. On 15 February 1980 defendant filed a motion to dismiss the request for attorney\u2019s fees.\nFrom an order granting defendant\u2019s motion to dismiss and denying plaintiff\u2019s motion for attorney\u2019s fees, plaintiff appeals.\nHugh Joseph Beard, Jr., for the plaintiff appellant.\nAttorney General Edmisten by Assistant Attorney General Tiare B. Smiley, for the defendant-appellee." }, "file_name": "0294-01", "first_page_order": 320, "last_page_order": 324 }