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Mejia v. Patel2/5/2002
UNPUBLISHED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).
Kinnari M. Patel and David W. Burlingham argue on appeal that the trial court erred in awarding attorney fees to plaintiff under N.C. Gen. Stat. § 6-21.1. We agree, and remand to the trial court for reconsideration.
In January 1998, plaintiff brought an automobile-related personal injury action against defendants under a complaint signed by his attorneys, William Benjamin Smith and Douglas A. Petho. Defendants Patel and Burlingham each filed an answer as well as cross-claims against one another seeking contribution. On 12 August 1998, plaintiff filed a notice of substitution of counsel removing Petho as counsel of record and substituting Scott A. Beckey of the Law Offices of Stefan R. Latorre, P.A. On 18 September 1998, plaintiff filed a notice of substitution of counsel removing Beckey as counsel of record and substituting Stefan R. Latorre.
On 17 November 1998, the parties appeared for court-ordered non-binding arbitration and plaintiff was awarded $552.00. Plaintiff appealed, and the case proceeded to jury trial, whereupon the jury awarded plaintiff $2,200.00 for his personal injuries. Following trial, plaintiff moved for attorneys' fees under N.C. Gen. Stat. § 6-21.1 (1999). In support of this motion, Petho submitted an affidavit indicating his hourly rate of $175.00 and listing the time expended by him as well as by Latorre's law firm in prosecuting the action. Petho's affidavit indicated a total time of thirty-one hours spent on plaintiff's matter by himself and Latorre's law firm, but did not apportion the thirty-one hours between the attorneys or their law firms. In its judgment, the trial court stated:
hat following the trial of this action, the Plaintiff made a motion pursuant to N.C. General Statute 6-21.1 for attorneys fees, and that the Defendant be taxed with the costs of this action, . . . and the Court having reviewed the file, the Motion and Affidavit of Plaintiff's attorneys, and having heard arguments of counsel, in its discretion makes the following findings of fact and conclusions of law:
2. That the Court having reviewed the Affidavits of Plaintiff's attorneys find they have rendered valuable services to the Plaintiff;
3. That the Defendant shall pay Plaintiff's attorneys pursuant to N.C. General Statute 6-21.1, attorneys fees in the sum of $5,425.00 which the Court finds to be fair and reasonable based upon the time expended by Plaintiff's attorneys and the results obtained at the trial of this action.
Defendant Burlingham filed a timely motion to reconsider the award of attorneys' fees and/or make additional findings of fact to support the award. In support of his motion, Burlingham submitted affidavits from his insurer's claims adjuster (Vera Lewis) and his attorney (Erik A. Schwanz). The trial court denied defendant's motion to reconsider. From this order and the trial court's 1 February 2000 judgment, defendants appeal.
Defendants argue that the award of attorney's fees was not supported by adequate findings of fact and conclusions of law. We agree.
In her affidavit filed in support of defendants' motion to reconsider the award of attorneys' fees, Vera Lewis affied as follows:
7. On 11/25/97 I spoke with Plaintiff's attorney, Stefan Latorre inquiring about the claim, settlement, and the
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