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Bryant v. Richards2/15/2005
Defendant Richards appeals the trial court's order awarding attorney's fees to plaintiff. For the reasons set forth below, we affirm.
On 19 July 1999, plaintiff and defendant were involved in a motor vehicle collision in which defendant rear-ended plaintiff. Plaintiff filed suit in June of 2002 alleging that defendant's negligence caused him personal injuries. In answer, defendant admitted that he negligently failed to reduce speed to avoid the collision. After unsuccessful mediation, defendant made an Offer of Judgment of $10,001 on 6 June 2003. The case went to trial in Superior Court in Harnett County and on 21 July 2003 a juryreturned a verdict of $7500 for plaintiff. The plaintiff served a Motion for Costs and Attorney's Fees and on 25 August 2003, the court entered judgment and ordered defendant to pay plaintiff $11,430 in attorney's fees and $2,394.00 in costs. Defendant appeals the order for attorney's fees and costs.
First, defendant argues that the trial court erred in awarding costs for plaintiff's expert witness, Dr. Monaco, where there was no evidence that the witness had been subpoenaed. Defendant correctly asserts that expert witness fees cannot be awarded as costs unless there is evidence that the expert was subpoenaed. Rogers v. Sportsworld of Rocky Mount, 134 N.C. App. 709, 713, 518 S.E.2d 551, 554 (1999). However, defendant did not make this objection in the trial court. In his written response to plaintiff's Motion for Costs, defendant objected on the grounds that Monaco's deposition was taken after the Offer of Judgment, but did not object to the lack of a subpoena.
Rule 46 (b) of the North Carolina Rules of Civil Procedure requires a party to preserve exceptions to rulings not directed to the admissibility of evidence by objecting "at the time the ruling or order is made or sought." N.C. Gen. Stat. § 1A-1, Rule 46 (2003). Rule 46 (b) further requires that the party object "to the action of the court" or "make known the action that the party desires the court to take and the party's grounds for its position." Id. Contentions not raised at trial may not be raised for the first time on appeal. Plemmer v. Matthewson, 281 N.C. 722, 725, 190 S.E.2d 204, 206 (1972). Here, as defendant did not objectto the absence of a subpoena at the time he filed his response, he has failed to preserve this issue for appeal. We overrule this assignment of error.
Defendant also contends that the trial court failed to make sufficient findings of fact in support of its orders awarding attorney's fees to plaintiff's attorney. We disagree. N.C. Gen. Stat. § 6-21.1 (2003) gives the judge in a personal injury suit where the judgment is $10,000 or less the discretion to award reasonable attorney's fees to the plaintiff's attorney. In Washington v. Horton, this Court articulated guidelines for the trial court in awarding attorney's fees pursuant to N.C.G.S. § 6- 21.1. 132 N.C. App. 347, 513 S.E.2d 331 (1999). Defendant asserts that the trial court did not properly exercise its discretion because it did not consider all of the factors set forth in Washington v. Horton. The factors in Washington include:
(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.
Id. 132 N.C. App. at 351, 513 S.E.2d at 33
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