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Barry v. Carpenter9/17/2002
UNPUBLISHED
A decision without a published opinion is authority only in the case in which such decision is rendered and should not be cited in any other case in any court for any other purpose, nor should any court consider any such decision for any purpose except in the case in which such decision is rendered. See Rule of Appellate Procedure 30 (e)(3).
A jury awarded plaintiff $139.90 for personal injuries sustained in an automobile collision with defendant on 1 May 1998. Plaintiff moved for attorney's fees pursuant to N.C. Gen. Stat. § 6-21.1 (1999). After hearing from the parties, the trial court entered findings of fact summarizing the course of the litigation as follows: Plaintiff made an initial settlement demand of $10,500 on 3 February 1999. Defendant responded with an offer of $3,200 on 2 March 1999. Plaintiff reduced her demand to $6,000, and defendant increased his offer to $4,200 in April, 1999. Plaintifffiled her complaint in May 1999. No further settlement offers were made by either party. Defendant never filed an offer of judgment. See N.C.R. Civ. P. 68.
The matter was submitted to an arbitrator, who entered a ruling in favor of plaintiff in the amount of $9,000 on 18 November 1999. Plaintiff offered to accept this amount without seeking attorney's fees. Defendant exercised his right to a jury trial de novo, which was held on 21 May 2001, resulting in the $139.90 verdict.
The trial court found that plaintiff "acted in good faith in presenting medical expenses and bills in the amount of $3,332.00 to the jury." In light of plaintiff's medical expenses, her physical injuries, and the results of arbitration, the trial court further found that plaintiff did not act unreasonably in refusing defendant's settlement offers. Instead, the trial court found that defendant acted unreasonably in failing to increase his settlement offer in response to the arbitrator's ruling.
The trial court concluded that plaintiff was entitled to recover a reasonable attorney's fee under N.C. Gen. Stat. § 6-21.1. The fact that the jury's verdict was less than the amount of defendant's settlement offer before plaintiff filed her complaint was deemed not "determinative of the attorney fee issue." Based on the affidavit of plaintiff's counsel, the trial court further determined that $6,847.50 was a reasonable fee. Defendant appeals the attorney's fee award.
Defendant argues that the trial court abused its discretion inawarding attorney's fees under N.C. Gen. Stat. § 6-21.1 without considering all of the relevant factors enumerated in Washington v. Horton, 132 N.C. App. 347, 513 S.E.2d 331 (1999). Defendant further claims the trial court improperly based the amount of the fee on the hours billed by plaintiff's counsel without determining whether counsel's representation was based upon a contingent fee contract. Finally, defendant contends the trial court erred in considering the amount of the arbitration award when ruling on the attorney's fee request.
A trial court's award of attorney's fees pursuant to N.C. Gen. Stat. § 6-21.1 is reviewed for abuse of discretion and will be reversed only when it is completely arbitrary or "'manifestly unsupported by reason[.]'" See Davis v. Kelly, 147 N.C. App. 102, 106, 554 S.E.2d 402, 405 (quoting Blackmon v. Bumgardner, 135 N.C. App. 125, 130, 519 S.E.2d 335, 338 (1999)). In exercising its discretion, however, the trial court shall enter findings of fact as to the following factors, based on the entire record:
(1) settlement offers made prior to the institution of the action . . .; (2) offers of judgment pursuant to Rule 68, and whether the "judgment finally obtained" was more favorable
Page 1 2 3 North Carolina Personal Injury Attorneys
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