{
  "id": 8527882,
  "name": "THORNEBURG HOSIERY CO., INC., Plaintiff v. G. L. WILSON BUILDING COMPANY, Defendant",
  "name_abbreviation": "Thorneburg Hosiery Co. v. G. L. Wilson Building Co.",
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    "judges": [
      "Judges BECTON and ORR concur."
    ],
    "parties": [
      "THORNEBURG HOSIERY CO., INC., Plaintiff v. G. L. WILSON BUILDING COMPANY, Defendant"
    ],
    "opinions": [
      {
        "text": "JOHNSON, Judge.\nOn 23 May 1985, Thorneburg commenced this civil action in Rowan County Superior Court seeking a court determination of the damages it was owed as a result of Wilson\u2019s breach of the contract. A consent order was entered placing the case in inactive status upon Wilson\u2019s motion to dismiss, because the issues raised in Thorneburg\u2019s complaint were already being determined as part of an arbitration proceeding Wilson had initiated in Iredell County in order to collect the amount it claimed it was owed by Thorneburg pursuant to the contract in question. (Note that Thorneburg is the plaintiff in the Rowan County action while Wilson is the plaintiff in the arbitration proceedings.) The arbitrators entered an award for Wilson and assessed Thorneburg with over $200,000.00 in attorney\u2019s fees. This award was confirmed by the Iredell County Superior Court. Thorneburg appealed.\nOn appeal by Thorneburg to this Court, we ruled that \u201ccounsel fees are not a subject of arbitration,\u201d notwithstanding the fact that the contract contained a provision authorizing an award of attorney\u2019s fees expended by the contractor for the collection of the owner\u2019s defaulted payment. Wilson Building Co. v. Thorneburg Hosiery Co., 85 N.C. App. 684, 687, 355 S.E. 2d 815, 817 (1987). This Court further held that in this jurisdiction the award of attorney\u2019s fees in this type of case, where the payment of attorney\u2019s fees is fixed by contract, G.S. sec. 6-21.2 is controlling. The amount of attorney\u2019s fees is provided by statute and, therefore, the matter is nonarbitrable. Id. The matter was remanded to the Iredell County Superior Court with instructions to \u201cremand the proceedings to the arbitrators to delete from the award any counsel fees including any fees for the \u2018consultant to attorney\u2019 plus any interest awarded thereon.\u201d Id. at 689, 355 S.E. 2d at 819.\nAfter the matter had been submitted to the arbitrators for correction consistent with the opinion of this Court, Wilson filed a motion to have judgment entered upon the corrected award for attorney\u2019s fees in accordance with G.S. sec. 6-21.2, G.S. sec. 6-21.5, and G.S. sec. 1A-1, Rule 11, and to resubmit the award to the arbitrators pursuant to G.S. sec. 1-567.10. Thorneburg filed a motion to confirm the award of the arbitrators after remand. The Iredell court concluded in an order entered 19 February 1988 that G.S. sec. 6-21.5 does not apply to arbitration proceedings; that Wilson was entitled to attorney\u2019s fees pursuant to G.S. sec. 6-21.2; that there had been no Rule 11 violation; and that Wilson\u2019s motion to have the award resubmitted for arbitration pursuant to G.S. sec. 1-567.10 should be denied. Thorneburg\u2019s motion for confirmation of the award was granted.\nWilson then filed a motion in this Rowan County action for an award of attorney\u2019s fees pursuant to G.S. sec. 6-21.5 in the Superior Court, Rowan County. (Note that the Rowan County action had been placed in inactive status and no further action had been taken upon it.) The trial judge ruled that Wilson\u2019s motion should be denied because \u201cthere was not a complete absence of a justiciable issue of either law or fact raised by plaintiff [Thorneburg] in the complaint.\u201d\nFrom this order, Wilson appeals.\nWilson brings forth two questions for review. We have combined them for purposes of this appeal. In short, Wilson contends that the trial court erred by refusing to admit evidence which could prove whether there was any basis for assessing attorney\u2019s fees pursuant to G.S. sec. 6-21.5, and by refusing to consider evidence of the arbitration proceedings, including evidence of the arbitrators\u2019 conclusion that Thorneburg\u2019s claims were baseless, which required the trial court to impose attorney\u2019s fees pursuant to G.S. sec. 6-21.5. We disagree.\nG.S. sec. 6-21.5 provides the following:\nIn any civil action or special 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.\nUpon review of this statute, and the facts in the case sub judice, two matters become readily apparent. First, although Thorneburg filed its complaint in civil court, the case had already been submitted for arbitration and was settled by the award of the arbitrators. The attorney\u2019s fees which were expended in this matter were therefore expended as a result of arbitration and not litigation in our courts. G.S. sec. 6-21.5 does not apply to attorney\u2019s fees incurred in an arbitration hearing. The clear language of the statute provides that \u201cthe court\u201d may make the award. G.S. sec. 6-21.5. \u201cIt allows the trial judge to award attorney\u2019s fees. . . . The statute also requires the trial judge to make findings of fact and conclusions of law to support the award.\u201d (Emphasis added.) Bryant v. Short, 84 N.C. App. 285, 288, 352 S.E. 2d 245, 246, 247 (1987). It necessarily follows that in order for the trial court to make such an award, the \u201ccivil action\u201d or \u201cspecial proceeding\u201d providing the basis for the award must have been held before that tribunal or pursuant to its authority. See also Sprouse v. North River Ins. Co., 81 N.C. App. 311, 344 S.E. 2d 555 (1986).\nSecond, no order other than the order which placed the case in inactive status was entered and no action taken in the Rowan County case. The Rowan County court had no underlying claim before it from which to evaluate a motion for attorney\u2019s fees pursuant to G.S. sec. 6-21.5.\nBecause our statutes have provided a fixed amount of attorney\u2019s fees to be recovered in cases of this nature, see G.S. sec. 6-21.2, the issue of attorney\u2019s fees is adequately addressed. G.S. sec. 6-21.5 is unavailable to Wilson for the recovery of attorney\u2019s fees when the case was tried before a panel of arbitrators and not in Rowan County Superior Court.\nAffirmed.\nJudges BECTON and ORR concur.",
        "type": "majority",
        "author": "JOHNSON, Judge."
      }
    ],
    "attorneys": [
      "Tucker, Hicks, Hodge and Cranford, P.A., by John E. Hodge, Jr., Robert B. Tucker, Jr., and Fred A. Hicks, for plaintiff-appellee.",
      "Patton Boggs & Blow, by Eric C. Rowe and C. Allen Foster, for defendant-appellant."
    ],
    "corrections": "",
    "head_matter": "THORNEBURG HOSIERY CO., INC., Plaintiff v. G. L. WILSON BUILDING COMPANY, Defendant\nNo. 8819SC1071\n(Filed 1 August 1989)\nAttorneys at Law \u00a7 7.5\u2014 case tried by arbitration \u2014 no award of attorney\u2019s fees as part of costs\nThe trial court properly refused to award attorney\u2019s fees pursuant to N.C.G.S. \u00a7 6-21.5 since the case was tried before a panel of arbitrators and not in Rowan County Superior Court.\nAPPEAL by defendant Wilson Building Co. (Wilson) from Beaty, James A., Jr., Judge. Order entered 30 June 1988 in Superior Court, ROWAN County. Heard in the Court of Appeals 18 April 1989.\nThis civil action was originally instituted by Thorneburg Hosiery Co. (Thorneburg) so that a determination could be made as to any damages owed to it by Wilson as the result of an alleged breach of a construction contract by Wilson. For the second time, this matter is before this Court on appeal. By this appeal Wilson contests the trial court\u2019s refusal to award attorney\u2019s fees authorized by G.S. sec. 6-21.5.\nTucker, Hicks, Hodge and Cranford, P.A., by John E. Hodge, Jr., Robert B. Tucker, Jr., and Fred A. Hicks, for plaintiff-appellee.\nPatton Boggs & Blow, by Eric C. Rowe and C. Allen Foster, for defendant-appellant."
  },
  "file_name": "0769-01",
  "first_page_order": 799,
  "last_page_order": 802
}