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Taylor v. Cadle8/4/1998
Appeal by defendant from judgment entered 8 April 1997 by Judge David A. Leech in Pitt County District Court. Heard in the Court of Appeals 2 June 1998.
On 28 July 1995, defendant was involved in an automobile accident with a vehicle driven by plaintiff Antonio D. Howard (Howard), in which plaintiff Connie Taylor (Taylor) was a passenger. Both Howard and Taylor (collectively plaintiffs) filed actions in Pitt County District Court seeking damages for the injuries they suffered, court costs, and attorney's fees. Defendant answered, denying liability, and the cases were assigned to mandatory arbitration.
At the arbitration hearing, the arbitrator heard evidence from both parties, including evidence regarding plaintiffs' request for attorney's fees. On 20 September 1996, the arbitrator entered an award of $900.00 for Howard and $2,000.00 for Taylor, but did not enter an award of attorney's fees. The parties did not appeal the arbitrator's awards, and on 30 October 1996, the chief district court Judge for Pitt County entered judgments adopting the awards. The defendant paid both judgments, and they were each marked satisfied on the Pitt County judgment docket on 5 December 1996.
On 10 January 1997, the plaintiffs filed a motion for attorney's fees and costs pursuant to N.C. Gen. Stat. § 6-21.1 and § 7A-305. Following a hearing, the trial court made the following findings:
6. [The arbitrator] heard evidence from the parties concerning the motor vehicle collision and their alleged injuries resulting therefrom, and heard arguments of counsel. Plaintiff[s'] counsel's included a request . . . for an award of reasonable attorney's fees, which was supported by time sheets documenting plaintiff[s'] counsel's expenditure of time in the case.
7. On September 20, 1996, [the arbitrator] entered an award [for plaintiffs, but] made no notation of an amount awarded as attorney's fees but merely drew a horizontal line in the blank space provided for attorney's fees on the arbitration award form.
8. The Court is aware of and hereby takes judicial notice of the February 7, 1992, Memorandum issued by the Administrative Office of the Courts concluding that the allowance of reasonable attorney's fees under [N.C. Gen. Stat.] § 6-21.1 is "a matter especially within the province of the Judge, and not subject to arbitration under the Rules of Court Ordered Arbitration." Said Memorandum advises arbitrators hearing cases pursuant to court-ordered arbitration that such motions for attorney's fees must be heard by a Judge of the trial division in which the case is pending.
9. The Court believes that the AOC procedure for determining attorney's fees under [N.C. Gen. Stat.] § 6-21.1 in court-ordered arbitration is understood as policy by the Arbitration Coordinator of Pitt County and is part of the training of the arbitrators in Pitt County.
10. In declining to enter an amount for attorney's fees, [the arbitrator] was complying with the AOC policy set forth in its Memorandum of February 7, 1992.
11. laintiff[s'] complaint included a prayer for an award of attorney's fees in its payer for relief.
12. Neither party appealed [the arbitrator's] award within the 30 day period for appeal as prescribed by Rule 5(b) of the Rules for Court-Ordered Arbitration in North Carolina. 13. On October 30, 1996, [the chief district court judge for Pitt County] entered a judgment adopting the arbitrator's findings without hearing or notice.
14. In signing the judgment adopting the arbitrator's award, [the chief district court Judge for Pitt County] made no entry of attorney's fees or findings of fact relative to atto
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