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Council v. Slack9/7/2004
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
Danielle Council (plaintiff) appeals from an order filed 24 March 2003 reducing plaintiff's attorney's fees from $23,312.50 to $1,165.00.
On 23 January 1997, plaintiff and Lewis Slack (defendant) were involved in an automobile accident in Orange County, North Carolina. Plaintiff filed a lawsuit on 13 May 1999 against defendant alleging the accident was caused by defendant's negligence and that plaintiff suffered serious personal injury and lost wages as a result. Plaintiff requested $187,000.00 to settle her claim. On 12 April 1999, the parties attempted an unsuccessfulcourt-ordered mediation.
On 22 January 2001, a four-day trial began. The plaintiff was represented by attorneys James E. Rogers and Lydia E. Lavelle in Orange County Superior Court. On 9 February 2001 judgment was entered for the plaintiff in the amount of $1,165.00; motion for attorney's fees and costs was to be heard at a later date.
For the convenience of the parties, venue was transferred from Orange County to Durham County Superior Court. On 9 July 2001, Judge Donald M. Jacobs awarded attorney's fees of $18,462.50 for Rogers, $4,850.00 for Lavelle and $6,981.65 in costs.
On appeal, the North Carolina Court of Appeals held the trial court did not abuse its discretion in awarding attorney fees and costs, but reversed Judge Jacobs' order and remanded the matter back to the trial court for sufficient findings as to whether or not the attorney's fees were reasonable. Council v. Slack, 153 N.C. App. 811, 571 S.E.2d 86 (2002) (unpublished) (hereafter Council I). In particular, the Court of Appeals stated that Judge Jacobs failed to determine (1) the reasonable time and labor for plaintiff's counsel to expend on the case; (2) the level of skill required by this case; (3) the customary fee for similar cases; and (4) the experience of the attorneys.
On 10 March 2003 Judge J.B. Allen, Jr., pursuant to the remand, conducted a hearing in Durham County Superior Court and awarded attorney's fees for plaintiff in the amount of $1,165.00. Plaintiff appeals.
The dispositive issue in this appeal is whether the trial court erred in failing to follow the Court of Appeals mandate in Council I.
In Council I, this Court remanded the case to the trial court to address the reasonableness of the award of attorney's fees based on the following factors:
(1) what was reasonable time and labor for plaintiff's counsel to expend, (2) skill required by this case, (3) the customary fee for similar cases and (4) the experience of the attorneys.
"A decision of this Court on a prior appeal constitutes the law of the case, both in subsequent proceedings in the trial court and on a subsequent appeal." Transportation, Inc. v. Strick Corp., 286 N.C. 235, 239, 210 S.E.2d 181, 183 (1974); see Epps v. Duke, 122 N.C. App. 198, 201, 468 S.E.2d 846, 849 (1996). " ur mandate is binding upon [the trial court] and must be strictly followed without variation or departure. No judgment other than that directed or permitted by the appellate court may be entered." D & W, Inc. v. Charlotte, 268 N.C. 720, 722, 152 S.E.2d 199, 202 (1966). "We have held judgments of Superior court which were inconsistent and at variance with, contrary to, and modified, corrected, altered or reversed prior mandates . . . to be unauthorized and void." Lea Co. v. North Carolina Bd. of Transp., 323 N.C. 697, 699, 374 S.E.2d 866, 8
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