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Phillips v. Warren9/3/2002
present case was $6,000.00. Total costs for plaintiff presumably amount to $1,835.47. The trial court awarded $29.00 of prejudgment interest to plaintiff instead of the full amount of $613.00. The total at this point comes to $8,448.47 ($6,000.00 + $613.00 + $1,835.47).
ATTORNEYS' FEES
The trial court denied plaintiff's motion for attorneys' fees, which would have been added to the judgment finally obtained had they been awarded. Plaintiff contends that since the trial court's decision to deny its motion for attorneys' fees under N.C. Gen. Stat. § 6-21.1 was based in part on its miscalculation of prejudgment interest and costs that it should be overturned.
Generally, attorneys' fees are not recoverable as costs of an action absent statutory authority. See Hicks v. Albertson, 284 N.C. 236, 200 S.E.2d 40 (1973). N.C. Gen. Stat. § 6-21.1 authorizes a trial court in its discretion to "allow a reasonable attorney fee" to a successful litigant in a personal injury or property damage suit "where the judgment for recovery of damages is . . . ($10,000) or less . . . to be taxed as a part of the court costs." N.C. Gen. Stat. § 6-21.1. The purpose of this statute is "`to provide relief for a person who has sustained injury or property damage in an amount so small that, if he must pay his attorney out of his recovery, he may well conclude that it is not economically feasible to bring suit on his claim.'" Robinson, 145 N.C. App. at 64, 550 S.E.2d at 833 (quoting Hicks, 284 N.C. at 239, 200 S.E.2d at 42). "The discretion accorded the trial court in awarding attorney fees pursuant to N.C. Gen. Stat. § 6-21.1 is not unbridled." Washington, 132 N.C. App. at 351, 513 S.E.2d at 334 (holding that the court must examine the entire record, including but not limited to: (1) settlement offers made prior to institution of the action; (2) offers of judgment made pursuant to Rule 68 and whether the judgment finally obtained was more favorable than such offers; (3) whether defendant unjustly exercised superior bargaining power; (4) in the case of an unwarranted refusal by an insurance company, the context in which the dispute arose; (5) the timing of settlement offers; and (6) the amounts of settlement offers as compared to the jury verdict. Id. at 351, 513 S.E.2d at 334-35).
Plaintiff acknowledges that in order for the trial court's order on attorneys' fees to be overturned an abuse of discretion, arbitrariness, or an error of law must be shown. Coastal Production v. Goodson Farms, 70 N.C. App. 221, 226, 319 S.E.2d 650, 655, disc. review denied, 312 N.C. 621, 323 S.E.2d 922 (1984). Plaintiff maintains the trial court's error in calculating the judgment finally obtained is sufficient error to require reversal.
The trial court indeed erred in calculating the judgment finally obtained for the reasons set forth above. In addition, according to the findings of fact, the trial court only considered the pre-suit settlement offer made by the insurance carrier. All the findings that the trial court made as to attorneys' fees completely ignore the offers of judgment made and did not take into account the correct amount of the judgment finally obtained.
We then remand this issue to the trial court for a re-determination of the appropriateness of attorneys' fees in light of this opinion. Should attorneys' fees be awarded on remand, the new judgment finally obtained should be adjusted to reflect that determination. Only then can the trial court make the final and correct determination as to whether defendant's offers of judgment prevail or fail.
Reversed and remanded.
Chief Judge EAGLES and BIGGS concur.
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