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Gurganus v. Cartwright12/31/2002
UNPUBLISHED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).
Kelly Ann Cartwright (Defendant) appeals a judgment filed 26 October 2001 ordering her to pay Joseph M. Gurganus (Plaintiff) damages, costs, and attorney's fees.
On 19 April 2000, Plaintiff brought suit against Defendant seeking damages for injuries sustained in an automobile accident on Highway 158 in Camden, North Carolina, when Defendant rear-ended the vehicle in which Plaintiff was a passenger. A year after the lawsuit was filed, Defendant, on 5 April 2001, tendered an offer of judgment in the amount of $5,111.86 plus all accrued costs up tothe time of the offer. Two weeks later, Defendant made an informal offer to settle the entire claim for $6,720.00 but noted that any attempt to mediate would be a waste of time. No settlement agreement was reached between the parties.
On 24 October 2001, a jury awarded Plaintiff $5,217.00 in damages. Plaintiff, by verified motion filed 25 October 2001, moved to recover costs and attorney's fees from Defendant pursuant to N.C. Gen. Stat. § 6-21.1. The motion and the attachments thereto set forth that, prior to the initiation of this lawsuit, Plaintiff had attempted to settle his claim with Defendant's insurer but was advised the insurer "would never pay more than $1,000.00." Furthermore, after Plaintiff's attorney sent Defendant's insurer a settlement package including $4,556.40 in medical bills and $5,200.00 in loss of income, Plaintiff was told the insurer was not willing to offer "'much of anything'" because Plaintiff was "'a crook.'"
The trial court allowed Plaintiff's motion and, on 26 October 2001, entered judgment awarding Plaintiff $5,862.50 in attorney's fees and $1,139.00 in costs.
The dispositive issue is whether, based on the evidence in the record, the trial court properly considered and applied the factors outlined in Washington v. Horton, 132 N.C. App. 347, 513 S.E.2d 331 (1999).
In a personal injury action where the plaintiff recovers damages of $10,000.00 or less, the trial court may allow reasonableattorney's fees as part of the costs taxed against the defendant. N.C.G.S. § 6-21.1 (2001). An award of attorney's fees under section 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 (2001) (quoting Blackmon v. Bumgardner, 135 N.C. App. 125, 130, 519 S.E.2d 335, 338 (1999)). In exercising its discretion, the trial court must enter findings, based on the entire record, as to the following factors:
(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 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; (6) the amounts of the settlement offers as compared to the jury verdict . . . . Washington, 132 N.C. App. at 351, 513 S.E.2d at 334-35 (citations omitted).
Although the trial court's findings, supported by competent evidence, must be sufficient to allow for meaningful appellate review, detailed findings as to each factor are not necessa
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