 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Parsons v. Milner12/3/2002
UNPUBLISHED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).
This appeal arises from the trial court's award of an attorney's fee to plaintiff's counsel under N.C. Gen. Stat. ยง 6- 21.1 (2001) six years after obtaining a jury verdict in a personal injury action. On appeal, defendant's counsel argues that based on the delay of six years, the trial court abused its discretion by finding that plaintiff's counsel did not waive, by implication, his right to an attorney's fee. We find no abuse of discretion and, therefore, affirm the order of the trial court.
On 13 June 1995, based on a jury's verdict in favor of plaintiff, the trial court entered judgment for $4,600 and taxed defendant with costs, including plaintiff's attorney's fee "in anamount to be set at a later date."
On 23 August 1996, plaintiff's counsel contacted defense counsel by letter requesting a fee offer. An offer was made, several letters were exchanged, but no settlement was reached. On 19 May 1997, plaintiff's counsel requested a hearing for 5 June 1997, before Superior Court Judge C. Preston Cornelius, to resolve the fee issue. On 21 May 1997, defense counsel sent a letter to Judge Cornelius explaining his longstanding plans to take a fishing trip on the North Carolina coast on 5 June 1997. Plaintiff's counsel acquiesced, and the hearing was not held on 5 June 1997. At that time, neither plaintiff nor defense counsel requested to schedule another hearing.
Over the next three years it is unclear when, what, or if communications occurred between counsel. However, on 11 October 2000, plaintiff's counsel telephoned defense counsel stating he wanted to schedule a hearing "in the near future" because of Judge Cornelius' impending retirement. On 28 September 2001, a hearing was held before Judge Cornelius to resolve the matter. At that hearing, defendant's "primary position . . . simply that there been an implied waiver of the request of plaintiff's counsel for an attorney fee." The trial court, however, held that "plaintiff's attorney has not waived any right," and awarded plaintiff's attorney a fee of $7,000. From this order, defendant appeals.
We note, at the onset, that defendant does not challenge the trial court's initial substantive findings that plaintiff'sattorney was entitled to attorney's fees or the award of attorney's fees in the amount $7,000. Rather, defendant simply argues, by five assignments of error, that plaintiff's counsel waived his right to an attorney's fee by implication, and that, consequently, the judge erred in not finding such a waiver.
"The decision to allow attorney's fees is in the discretion of the presiding judge, and is reversible by an appellate court only for abuse of discretion." Davis v. Kelly, 147 N.C. App. 102, 106, 554 S.E.2d 402, 405 (2001). "Abuse of discretion results where the court's ruling is manifestly unsupported by reason or is so arbitrary that it could not have been the result of a reasoned decision." Blackmon v. Bumgardner, 135 N.C. App. 125, 130, 519 S.E.2d 335, 338 (1999) (citations omitted).
"Waiver is an affirmative defense which 'must be pled with certainty and particularity.'" Taha v. Thompson, 120 N.C. App. 697, 702, 463 S.E.2d 553, 556 (1995) (quoting Duke University v. St. Paul Mercury Ins. Co., 95 N.C. App. 663, 673, 384 S.E.2d 36, 42 (1989)). "Waiver by implication is not looked upon with favor
Page 1 2 North Carolina Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
By using the system, you agree to TERMS OF SERVICE
|