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Council v. Slack11/5/2002
UNPUBLISHED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).
Plaintiff filed a complaint alleging personal injury as the result of an automobile accident with defendant. At the mediation conference she sought $187,000 in damages. After unsuccessful mediation, the case went to trial, which resulted in a verdict for plaintiff in the amount $1,165.
Plaintiff then moved for an award of costs and attorney fees. Subsequently, after a hearing, the trial court awarded plaintiff costs of $6,981.65, and attorney fees for both of her attorneys,Ms. Lavelle and Mr. Rogers, in the amount of $4,850.00 and $18,462.50, respectively.
In its order allowing attorney fees, the trial court's findings, in pertinent part, are summarized as follows: (1) defendant made two oral conditional offers to settle for $10,000, one during mediation and the other during jury deliberations; (2) defendant did not exercise superior bargaining power nor did plaintiff unreasonably go to trial; (3) although the plaintiff's demand may have been excessive, it could have also reasonably been more than $10,000; (4) plaintiff's refusal to settle was not unreasonable; (5) defendant made no offers of judgment; (6) the amount of the oral conditional settlement offers were substantially above the jury's verdict; (7) plaintiff's credibility was severely challenged and (8) plaintiff's attorneys had no way of controlling plaintiff's credibility issues.
Defendant assigns as error the trial court's awards of attorney fees and costs. Specifically, defendant contends the trial court abused its discretion in awarding attorney fees and costs. However, defendant's argument is directed only at the trial court's award of attorney fees.
Attorney fees are recoverable by a successful party to a trial as part of court costs in personal injury actions where the judgment for damages is $10,000 or less. N.C. Gen. Stat. § 6-21.1 (2001); Washington v. Horton, 132 N.C. App. 347, 349, 513 S.E.2d 331, 333 (1999). In such a case, the trial court has the discretion to allow reasonable attorney fees as a part of courtcosts. N.C. Gen. Stat. § 6-21.1. We review defendant's assignment of error for an abuse of that discretion. Hillman v. United States Liab. Ins. Co., 59 N.C. App. 145, 296 S.E.2d 302 (1982); Callicut v. Hawkins, 11 N.C. App. 546, 181 S.E.2d 725 (1971).
In determining whether to award attorney fees, a trial court should consider:
the entire record... including but not limited 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; and the whole record[.] Washington, 132 N.C. App. at 351, 513 S.E.2d at 334-35 (citations omitted).
Here, the trial court addressed the Washington factors, and admittedly, some of the findings favor defendant. However, upon reviewing all of the findings, we cannot conclude that the trial court abused its discretion in awarding attorney fees and costs.
Nevertheless, where a t
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