An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.



                                 NO. COA13-983
                        NORTH CAROLINA COURT OF APPEALS

                                Filed: 20 May 2014


PATRICIA MORALES,
          Plaintiff,

      v.                                      Cabarrus County
                                              No. 12 CVD 1061
ANA R. GARCIA,
          Defendant.


      Appeal by plaintiff from judgment entered 19 April 2013 by

Judge   D.   Brent     Cloninger    in   Cabarrus     County    District    Court.

Heard in the Court of Appeals 8 January 2014.


      The Law Offices of Michael A. DeMayo, L.L.P., by Ahmad S.
      Washington, for plaintiff-appellant.

      Bolster, Rogers & McKeown, LLP, by Meredith L. Cushing, for
      defendant-appellee.


      GEER, Judge.


      Plaintiff Patricia Morales appeals from a judgment granting

in part and denying in part plaintiff's motion to recover costs

and denying plaintiff's motion for attorneys' fees.                   Because the

trial   court    did   not   have    discretion     to   deny   costs    for   fees

enumerated in N.C. Gen. Stat. § 7A-305(d) (2013), we reverse and

remand for entry of an award of service fees and interpreter
                                              -2-
fees.      However, the trial court did not abuse its discretion in

awarding expert witness fees                   of    only $300.00 for time spent

actually testifying.                We also affirm the denial of attorneys'

fees because the trial court complied with N.C. Gen. Stat. § 6-

21.1 (2011).

                                             Facts

      On 8 July 2011, plaintiff and defendant Ana R. Garcia were

involved        in    a     motor    vehicle      collision      in   which     plaintiff

suffered        injuries       as    a     result    of      defendant's       negligence.

Plaintiff incurred medical expenses of $5,877.07.                          On 25 October

2011, prior to the filing of plaintiff's complaint, defendant

offered to settle plaintiff's claims for $4,885.00.                             Plaintiff

rejected the offer and filed suit on 30 March 2012.

      On    18       June    2012,       defendant    filed     an    answer    admitting

negligence and served on plaintiff an offer of judgment in the

amount     of     $4,888.00.             Defendant    served     a    second    offer     of

judgment on 3 August 2012 for $5,100.00.                       A jury trial was held

on   11    March      2013,    and,      during     trial,    plaintiff      lowered    her

demand     from      $10,000.00       to    $7,800.00.         The    jury     returned   a

verdict of $5,643.42.

      A hearing was held on plaintiff's motion for costs and

attorneys' fees on 19 April 2013.                    The trial court awarded costs

of $300.00 for an hour of expert witness testimony, but denied
                                        -3-
plaintiff's motion for costs for a filing fee, trial exhibits,

interpreter fees, and service fees.              The trial court also denied

plaintiff's motion for attorneys' fees under N.C. Gen. Stat. §

6-21.1.   Plaintiff timely appealed to this Court.

                                         I

    Plaintiff         first   argues    that    the    trial   court   erred     by

denying certain costs requested in plaintiff's motion for costs.

Whether a trial court has properly interpreted the statutory

framework applicable to costs is a question of law reviewed de

novo.     See Jarrell v. Charlotte-Mecklenburg Hosp. Auth., 206

N.C. App. 559, 561, 698 S.E.2d 190, 191 (2010).

    N.C. Gen. Stat. § 6-1 (2013) provides: "To the party for

whom judgment is given, costs shall be allowed as provided in

Chapter   7A    and    this   Chapter."         N.C.   Gen.    Stat.   §   7A-305,

however, specifies the costs assessable in civil actions.                    If a

cost is set forth in N.C. Gen. Stat. § 7A-305(d), "'the trial

court is required to assess the item as costs.'"                       Priest v.

Safety-Kleen Sys., Inc., 191 N.C. App. 341, 343, 663 S.E.2d 351,

353 (2008) (quoting Miller v. Forsyth Mem'l Hosp., Inc., 173

N.C. App. 385, 391, 618 S.E.2d 838, 843 (2005)).

    Plaintiff argues that              she is   entitled to recover, at a

minimum, $750.00 in additional costs.                  These costs include a

service   fee   ($30.00),      an   interpreter        fee   ($265.00),    and   an
                                         -4-
expert witness fee for actual time spent testifying in court

($450.00).       Service fees are included in N.C. Gen. Stat. § 7A-

305(d)(6), and interpreter fees are included in N.C. Gen. Stat.

§ 7A-305(d)(8).         Plaintiff produced undisputed evidence that she

had incurred the service and interpreter fees.                     The trial court

was   therefore         required    to      assess     those    items     as    costs.

Accordingly, the trial court erred by denying plaintiff's motion

for costs as to the service fee and interpreter fees, amounting

to $295.00.1

      As   for    the    expert     witness    fee,    N.C.     Gen.    Stat.   §   7A-

305(d)(11) allows costs for "[r]easonable and necessary fees of

expert     witnesses       solely     for     actual     time    spent     providing

testimony at trial, deposition, or other proceedings."                           While

the trial court is required to assess the expert witness costs,

it has discretion to determine what amount is "reasonable and

necessary."      Khomyak v. Meek, 214 N.C. App. 54, 68, 715 S.E.2d

218, 226 (2011), disc. review denied, 365 N.C. 545, 720 S.E.2d

392 (2012).        Plaintiff provided the court with                    the expert's

invoice charging $600.00 for the two hours that he spent in

court.     The invoice indicates that the expert spent one and a

      1
      Defendant contends that as of the time of this appeal,
defendant has paid a total of $542.43 in costs, which is $242.43
above the $300.00 ordered by the trial court, and that therefore
this issue is moot.    Because, however, this contention is not
supported by the record on appeal, we may not consider it.
                                     -5-
half hours of his time actually testifying in court.                    On the

other hand, at the hearing, defendant's counsel estimated that

the witness testified for "just about one hour" and noted that

the expert testified that he was not charging for his time, even

though he was.2

     The trial court held "I'm going to allow fees in the amount

of $300 for [Dr. Patel's] one hour of testimony, it might have

been an hour and 15 minutes but I'm also considering the fact

that the -- some of the things he said (inaudible)."                   Although

the trial court did not make an explicit finding as to how long

the expert actually testified, it is clear that the trial court

was aware of the parties' contentions as to the length of time

the expert actually testified.             The trial court balanced the

expert's   hourly    rate,    approximate        length   of    testimony,   and

considerations      of   certain    statements       in   his    testimony    in

determining   an    award    of   costs   that    would   be    reasonable   and

necessary.    Under these circumstances, we cannot conclude that

the trial court abused its discretion in awarding $300.00 for

the cost of the expert's time actually testifying in court.



     2
      Defendant's counsel also noted that after the expert
testified that he was not charging, "then Mr. Washington
[plaintiff's counsel] tried to get him to say he actually was
changing [sic] for his time."  We do not have a transcript of
the expert testimony and, therefore, cannot consider this
argument.
                                     -6-
    Accordingly, we affirm the trial court's award of costs as

to expert witness fees.         However, we reverse and remand to costs

for service and interpreter fees.

                                     II

    Next,     plaintiff   argues     that    the    trial   court   erred   in

denying her motion for attorneys' fees made pursuant to N.C.

Gen. Stat. § 6–21.1.        Plaintiff argues that the trial court

failed   to   consider    the    whole     record   or   make   findings    in

compliance with Washington v. Horton, 132 N.C. App. 347, 513

S.E.2d 331 (1999).        Washington, however, was decided under a

prior and materially different version of the statute, and is

therefore, inapplicable.

    It appears from our review of the hearing transcript that

both parties mistakenly believed that the prior version of N.C.

Gen. Stat. § 6-21.1 was applicable to this case.3               However, our

General Assembly amended N.C. Gen. Stat. § 6–21.1 in 2011.                  The

amendment "[became] effective October 1, 2011, and applies to

actions commenced on or after that date."             2011 N.C. Sess. Laws

ch. 283 §§ 3.1, 4.2.       This action was commenced 30 March 2012,

and therefore, is subject to the amended version of the statute.
    3
      Plaintiff's counsel, Mr. Washington, provided the judge
with "the old version of 6-21.1" and then, after addressing the
Washington factors, referenced the differences in "the new
version of the attorney's fee statute" at the end of his
argument. In response, defendant's counsel, Ms. Cushing, stated
that the new statute "obviously is not in play yet."
                                         -7-
      The statute reads, in pertinent part, as follows:

                 (a) In any personal injury or property
            damage suit, or suit against an insurance
            company under a policy issued by the
            defendant insurance company in which the
            insured or beneficiary is the plaintiff,
            instituted in a court of record, upon
            findings by the court (i) that there was an
            unwarranted refusal by the defendant to
            negotiate or pay the claim which constitutes
            the basis of such suit, (ii) that the amount
            of damages recovered is twenty thousand
            dollars ($20,000) or less, and (iii) that
            the amount of damages recovered exceeded the
            highest offer made by the defendant no later
            than 90 days before the commencement of
            trial, the presiding judge may, in the
            judge's   discretion,   allow   a   reasonable
            attorneys'   fees   to   the   duly   licensed
            attorneys     representing    the     litigant
            obtaining a judgment for damages in said
            suit, said attorneys' fees to be taxed as a
            part of the court costs.       The attorneys'
            fees so awarded shall not exceed ten
            thousand dollars ($10,000).

N.C. Gen. Stat. § 6–21.1(a) (emphasis added).

      The   language     of   the   statute      is    plain   and      unambiguous.

Before awarding fees, the presiding judge must first make the

following   three    findings:      (1)   that    there     was    an    unwarranted

refusal by the defendant to negotiate or pay the claim which

constitutes    the   basis    of    the   suit,       (2)   that   the    amount    of

damages recovered is twenty thousand dollars ($20,000) or less,

and   (3)   that   the   amount     of    damages      recovered     exceeded      the

highest offer made by the defendant no later than 90 days before

the commencement of trial.          It follows that if the judge cannot
                                          -8-
make any of these three findings, the judge has no discretion to

award attorneys' fees.         "When the language of a statute is clear

and unambiguous, there is no room for judicial construction and

the courts must give the statute its plain and definite meaning,

and are without power to interpolate, or superimpose, provisions

and limitations not contained therein." In re Banks, 295 N.C.

236, 239, 244 S.E.2d 386, 388–89 (1978).

      Even    if    the   judge     has     made    all    three       findings,        the

plaintiff    is    not    automatically         entitled       to    attorneys'        fees.

Instead,     reasonable      fees   "may    [be    awarded],          in    the   judge's

discretion."       N.C. Gen. Stat. § 6-21.1(a).

      Finally, the amendment added a second subsection to N.C.

Gen. Stat. § 6-21.1 to address the requirements once a judge has

decided to award attorneys' fees:

                  (b) When the presiding judge determines
             that an award of attorneys' fees is to be
             made under this statute, the judge shall
             issue a written order including findings of
             fact detailing the factual basis for the
             finding   of   an  unwarranted   refusal  to
             negotiate or pay the claim, and setting
             forth the amount of the highest offer made
             90 days or more before the commencement of
             trial, and the amount of damages recovered,
             as well as the factual basis and amount of
             any such attorneys' fees to be awarded.

N.C. Gen. Stat. § 6-21.1(b).              Thus, if the trial judge makes all

the   requisite      findings       and     additionally            decides,      in    his

discretion,    to    award    attorneys'        fees,     he    must       then   enter    a
                                      -9-
written order outlining the findings required in subsection (a),

the factual basis for the subsection (a)(i) finding, and "the

factual   basis   and   amount   of   any   such   attorneys'   fees   to   be

awarded."   Id.

    The factual basis for the attorneys' fees would include the

facts necessary for an appellate court "to determine whether the

amount of the award of attorney fees is reasonable," including

"(1) the reasonable time and labor for Plaintiff's counsel to

expend, (2) skill required by this case, (3) the customary fee

for similar cases and (4) the experience and ability of the

Plaintiff's attorney."       Parker v. Hensley, 175 N.C. App. 740,

742, 743, 625 S.E.2d 182, 185 (2006).

    Here, the plaintiff recovered a jury verdict of $5,643.43

plus 8% per annum interest and $300.00 in costs.            This recovery

is less than $20,000.00, in accordance with subsection (ii) of

N.C. Gen. Stat. § 6–21.1(a).           The recovery also exceeded the

highest offer made by defendant, $5,100.00, as required under

subsection (iii).       As to subsection (i), however, the trial

court concluded that "I cannot find any unwanted (sic) refusal

by the defendant to pay a claim."           This finding is supported by

competent evidence in the record that "[t]he settlement offers

were offered throughout the period of even before the filing of

the suit" and that the biggest difference between the offer of
                                              -10-
judgment      and    the    amount         awarded    by    the    jury    was      less   than

$1,000.00.          Therefore, subsection (i) of N.C. Gen. Stat. § 6–

21.1(a)       was    not     met,      and     plaintiff        was     not    entitled      to

attorneys' fees under N.C. Gen. Stat. § 6-21.1.

       Further, because the trial judge did not have discretion to

award attorneys' fees, he was not required to issue a written

order   under       subsection        (b).         Therefore,     plaintiff's         argument

that    the    trial       court      erred    by     failing      to     make      sufficient

findings      of     fact        as   to     the     time   and       labor    expended      by

plaintiff's counsel, the skill required, the customary fee for

like work, and the experience or ability of plaintiff's counsel

is without merit.            Such findings are only required if the trial

court determines attorneys' fees should be granted.                                   We hold

that the trial court's denial of attorneys' fees complied with

the    requirements         of    N.C.     Gen.     Stat.   §     6-21.1      and    therefore

affirm.


       Affirmed in part; reversed and remanded in part.

       Judges BRYANT and CALABRIA concur.

       Report per Rule 30(e).
