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Stilwell v. Gust12/28/2001
Appeal by defendant from judgment entered 1 September 2000 by Judge Beverly T. Beal in Gaston County Superior Court. Heard in the Court of Appeals 8 October 2001.
After a jury trial, the trial court entered judgment awarding Lisa E. Gaffney Stilwell ("plaintiff") damages in the amount of $5,401.00 and attorneys' fees and costs in the amount of $10,853.75 in her civil negligence action against Amanda Danley Gust ("defendant"). The trial court ordered that defendant recover $2,700.50 in contribution from Timothy G. Stilwell, plaintiff's husband ("third-party defendant"). Defendant appeals. After careful consideration, we affirm.
On 9 February 1997, plaintiff was a passenger in an automobile operated by her husband, third-party defendant. Third-party defendant's vehicle collided with a vehicle operated by defendant. Plaintiff and her husband brought suit against defendant alleging negligence. Defendant counterclaimed and alleged that third-party defendant was negligent in the operation of his vehicle. Prior to trial, defendant settled with third-party defendant for his bodily injury claim and third-party defendant dismissed his claims against defendant. Due to defendant's claim for contribution, third-party defendant remained in this action. Defendant made an offer of judgment of $4,500.00 which plaintiff refused. The matter went to trial on 22 May 2000 in Gaston County Superior Court. The jury found both defendant and third-party defendant negligent and returned a verdict assessing damages in the amount of $5,401.00 for plaintiff.
After the trial, plaintiff moved to tax costs and attorneys' fees against defendant. The trial court ordered payment of $853.75 in costs and $10,000.00 in attorneys' fees to plaintiff. As to the contribution claim, the trial court ordered that defendant recover $2,700.50 (one-half of the damages awarded) from third-party defendant. Defendant appeals.
Defendant raises two issues on appeal: Whether the trial court erred in (1) taxing costs and attorneys' fees to defendant and (2) failing to enter judgment in favor of defendant for pro-rata contribution of the costs and attorneys' fees? After careful review, we affirm.
Defendant contends that the trial court erred in awarding attorneys' fees and costs to plaintiff and taxing them entirely to defendant. Defendant argues that the trial court should have taxed one-half of plaintiff's costs and fees to defendant incurred before the offer of judgment and all the post-offer of judgment costs and fees to the third-party defendant. Defendant contends that her offer of $4,500.00 was more than her pro-rata share of the amount for which plaintiff would have settled. The third-party defendant made no offer to settle with plaintiff before trial. Defendant argues that this refusal by the third-party defendant to make a settlement offer resulted in the matter proceeding to trial. Defendant contends that the costs and fees of trial were incurred as a result of the conduct of the third-party defendant, not defendant, and that it was inequitable to tax all the costs and fees to defendant. We are not persuaded.
Attorneys' fees generally are not recoverable by the successful party at trial as a part of court costs. Washington v. Horton, 132 N.C. App. 347, 349, 513 S.E.2d 331, 333 (1999). However, in personal injury or property damage actions where the judgment for recovery of damages is $10,000.00 or less, by statutory exception the presiding judge in his or her discretion may award attorneys' fees as part of costs. G.S. § 6-21.1 (1999); Thorpe v. Perry-Riddick, __ N.C. App. __, __, 551 S.E.2d 852, 856 (2001).
The award of attorneys' fees under G.S. § 6-21.1 is within the
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