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Taylor v. Cadle8/4/1998
under Rule 60(a), from which relief may be granted.
The trial court in its judgment, and now the plaintiffs on appeal, rely on United Laboratories as authority for requiring the trial court to make findings relative to an award or denial of attorney's fees pursuant to N.C. Gen. Stat. § 6-21.1. In that case, the trial court awarded attorney's fees to the plaintiff in his unfair trade practices claim pursuant to N.C. Gen. Stat. § 75-16.1 but failed to make specific findings regarding the award. Upon review, this Court held that "in order for the appellate court to determine if the statutory award of attorney['s] fees is reasonable, the record must contain findings of fact as to the time and labor expended, the skill required, the customary fee for like work, and the experience or ability of the attorney." Id. at 494, 403 S.E.2d at 111. Therefore, the Court concluded that since the trial court failed to make findings regarding such matters, it was "unable to make a determination as to the reasonableness of the trial court's award," and remanded the case to the trial court for an entry of such findings. Id. at 495, 403 S.E.2d at 111.
However, the present case is distinguishable from United Laboratories. Under the Rules for Court-Ordered Arbitration previously cited, after thirty days had elapsed, the chief district court Judge was required to adopt the arbitrator's award, which did not include an award of attorney's fees. As such, since no attorney's fees were awarded, he was not required to make findings regarding attorney's fees and his failure to do so was not an omission under Rule 60(a). Therefore, it was error for the trial court to grant plaintiffs relief from the 30 October 1996 judgment under Rule 60(a), and we reverse the trial court's order and judgment entered on 8 April 1997.
In summary, we conclude that under the language and intent of the Rules for Court-Ordered Arbitration, an arbitrator is authorized to decide all monetary claims raised by the pleadings in civil actions requesting damages in an amount less than $15,000.00, including those claims for attorney's fees and costs where permitted by law. Whenever a party requests attorney's fees and the arbitrator awards or denies attorney's fees or fails to consider the issue, the dissatisfied party must timely appeal the award, even though it is satisfactory in all other respects. Failure of the dissatisfied party to timely preserve the issue will result in a waiver of this issue on appeal.
The trial court's order and judgment is reversed, and the cases are remanded for reinstatement of the arbitrator's award adopted by the trial court on 30 October 1996.
Reversed and remanded.
Chief Judge EAGLES and JUDGE HORTON concur.
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