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Mejia v. Patel2/5/2002
superior bargaining power. See Washington; see also Williams v. Manus, 142 N.C. App. 384, 542 S.E.2d 680 (2001).
Additionally, even if the trial court made adequate findings to support some award of fees to plaintiff, the trial court did not make adequate findings (including a finding concerning the fee arrangements between plaintiff and his multiple attorneys, see Washington, 132 N.C. App. at 351, 513 S.E.2d at 334) such that the amount of fees awarded was supported. See Porterfield v. Goldkuhle, 137 N.C. App. 376, 528 S.E.2d 71 (2000); Epps v. Ewers, 90 N.C. App. 597, 369 S.E.2d 104 (1988). Rather, the trial court awarded fees based solely upon Petho's hourly rate, despite the recognition that plaintiff employed multiple attorneys and law firms, and that Petho's affidavit regarding time spent on this matter included hours expended by Petho and Latorre's law firms. For instance, plaintiff may have had a fee arrangement to compensate Petho at a reduced hourly rate of $150.00, or an arrangement to compensate Latorre's firm at an hourly rate of $125.00. More likely, plaintiff had a fee arrangement to compensate his attorneys on a contingency fee basis rather than at an hourly rate. In any event, we conclude that the amount of thefees award, as well as the award of fees in and of itself, is unsupported by the trial court's findings of fact.
Furthermore, we note that the trial court's findings of fact 1 and 2 conflict with the evidence in the record. While the trial court found that Petho was not the original attorney of record in this matter and became involved only after the suit was filed, we note that Petho signed plaintiff's complaint, and was later removed as counsel of record by notice filed by plaintiff on 12 August 1998. There is no indication in the record of when Petho was re- instated as counsel of record. Additionally, the trial court's findings indicate that Latorre's law firm never responded to pre- suit offers. The trial court indicates the opinion that if Petho had handled the matter from the outset, a settlement would have ensued and trial could have been avoided. As noted above, however, Petho signed plaintiff's complaint, and clearly was involved as early as 9 January 1998; furthermore, there is no justification for attributing to defendants the failure to settle, when it appears that settlement would have occurred but for plaintiff's decision to substitute counsel.
The trial court abused its discretion in awarding plaintiff attorneys' fees without properly considering the factors outlined in Washington and making the required findings. Accordingly, we reverse the award of fees and remand for further review and fact- finding in accordance with the Washington factors. In the event the trial court is unable to make adequate findings to support an award of attorneys' fees under the Washington analysis, the trialcourt should deny plaintiff's motion for fees.
Defendants do not challenge the amount of the underlying jury award or the expert witness fee awarded to plaintiff. Our decision therefore leaves those portions of the judgment intact. The trial court's 21 November 2000 order denying defendants' motion to reconsider is reversed and remanded, and the 1 February 2000 judgment is,
Affirmed in part, reversed in part, and remanded.
Judges HUDSON and THOMAS concur.
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