An unpublished opinion of the North Carolina Court of Appeals does not constitute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
A   p   p    e   l   l   a    t   e       P   r    o   c   e   d    u   r   e   .




                                 NO. COA13-1243

                      NORTH CAROLINA COURT OF APPEALS

                              Filed: 1 April 2014


TAWANDA L. METTS,
     Plaintiff,

      v.                                    Durham County
                                            No. 10 CVS 5717
PAMELA PARKINSON,
     Defendant.


      Appeal by plaintiff from order entered               17 July     2013 by

Judge Henry W. Hight, Jr., in Durham               County Superior Court.

Heard in the Court of Appeals 5 March 2014.


      Taibi Kornbluth Law Group, P.A., by J. Michael Genest, for
      plaintiff-appellant.

      Law Offices of Robert E. Ruegger, by Robert E. Ruegger, for
      defendant-appellee.


      BRYANT, Judge.


      Where plaintiff requests attorneys’ fees pursuant to N.C.

Gen. Stat. § 6-21.1 the trial court may, upon consideration of

the whole record and Washington factors, in its discretion award

attorneys’ fees.
                                          -2-
     On 22 September 2010, plaintiff Tawanda L. Metts filed a

complaint      against    defendant       Pamela    Parkinson     for    negligence

arising from a car accident between them.                       In her complaint

plaintiff sought an award in excess of $10,000.00 plus court

costs and attorneys’ fees.                On 31 May 2012, a jury awarded

plaintiff $6,600.00.

     On 7 June 2012, plaintiff filed a motion for attorneys’

fees pursuant to N.C. Gen. Stat. §§ 6-21.1 and 7A-305.                       On 16

July, the trial court awarded plaintiff $2,200.00 in attorneys’

fees and $1,907.77 in costs.               Plaintiff appealed to this Court

arguing   that    the    amount     of    attorneys’     fees   awarded    was    not

supported by proper findings of fact.                    This Court agreed and

remanded to the trial court for findings of fact.1

     On   remand,       the    trial     court    made   findings   of    fact    but

sustained its prior award of $2,200.00 in attorneys’ fees to

plaintiff. Plaintiff appeals.

                              ____________________________

     On appeal, plaintiff raises several issues regarding the

manner    in   which     the    trial     court    determined     the    amount    of

attorneys’ fees.




1
  See Metts v. Parkinson, No. COA12-1357, 2013 N.C. App. LEXIS
428 (May 7, 2013).
                                             -3-
    Plaintiff        first       argues      that    the    trial     court      erred     in

failing to base its award of attorneys’ fees on the hours worked

by plaintiff’s attorney and for the time spent preparing for

plaintiff’s appeal.          We disagree.

    We review a trial court’s awarding of attorneys’ fees for

an abuse of discretion.               Blackmon v. Bumgardner, 135 N.C. App.

125, 130, 519 S.E.2d 335, 338 (1999).                         “Abuse of discretion

results where the court's ruling is manifestly unsupported by

reason or so arbitrary that it could not have been the result of

a reasoned decision."            Id. (citations omitted).              "[T]he scope of

appellate    review     .    .    .    is    strictly       limited    to       determining

whether    the     trial     judge's        underlying      findings       of    fact     are

supported     by    competent         evidence,      in     which     event      they     are

conclusively       binding       on    appeal,       and    whether     those       factual

findings in turn support the judge's ultimate conclusions of

law."     State v. Cooke, 306 N.C. 132, 134, 291 S.E.2d 618, 619

(1982) (citations omitted).                  A trial judge's determination to

award attorneys’ fees will not be overturned absent an abuse of

discretion.        Whitfield v. Nationwide Mut. Ins. Co., 86 N.C. App.

466, 469, 358 S.E.2d 92, 94 (1987) (citation omitted).

    Plaintiff        first    contends        that    the    trial    court       erred    in

awarding    attorneys’        fees     because       it     failed    to      follow      the
                                      -4-
requirements    of    N.C.G.S.   §   6-21.1.     Specifically,      plaintiff

argues that by imposing a “one-third contingency fee in this

case, without regard to the actual hours worked and customary

rate,” the trial court has violated N.C.G.S. § 6-21.1.

     North    Carolina   General     Statutes,   section    6-21.1.,     holds

that:

             In   any  personal   injury .   .  .  suit,
             instituted in a court of record, where the
             judgment for recovery of damages is ten
             thousand dollars ($10,000) or less, the
             presiding judge may, in his discretion,
             allow a reasonable attorney fee to the duly
             licensed attorney representing the litigant
             obtaining a judgment for damages in said
             suit, said attorney’s fee to be taxed as a
             part of the court costs.

N.C.G.S. § 6-21.1 (2009).2           A trial court’s decision to award

attorneys’ fees pursuant to N.C.G.S. § 6-21.1 is not unbridled,

however.     Thorpe v. Perry-Riddick, 144 N.C. App. 567, 571, 551

S.E.2d   852,   856    (2001).       In   determining   whether     to   award

attorneys’ fees,

             the trial court is to consider the            entire
             record    in    properly   exercising            its
             discretion, including but not limited         to the
             following factors: (1) settlement             offers
             made prior to the institution of the          action

2
  As plaintiff filed her complaint against defendant on                    22
September 2010, the applicable version of N.C.G.S. § 6-21.1                is
the 2009 version. N.C.G.S. § 6-21.1 was subsequently amended               by
2011 N.C. Sess. Law 283, which applied to actions filed on                 or
after 1 October 2011.
                                       -5-
              []; (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 v. Horton, 132 N.C. App. 347, 351, 513 S.E.2d 331,

334—35 (1999) (citations omitted).             “If the trial court elects

to award attorney fees, it must also enter findings of fact as

to the time and labor expended, skill required, customary fee

for like work, and experience or ability of the attorney based

on    competent   evidence.”     Thorpe,      144   N.C.   App.   at     572,   551

S.E.2d at 856 (citing Porterfield v. Goldkuhle, 137 N.C. App.

376, 378, 528 S.E.2d 71, 73 (2000)).

       In its order awarding attorneys’ fees to plaintiff, the

trial court made findings of fact that: defendant’s insurance

carrier denied liability for the accident prior to litigation;

defendant did not make an offer of judgment to plaintiff; at

mediation, plaintiff refused to settle for less than $35,000.00

and defendant’s insurance carrier offered $5,500.00 to settle

the    case    before   an   impasse    was    declared;    a     jury    awarded

plaintiff      $6,600.00;    defendant’s      insurance    carrier       did    not
                                           -6-
exercise superior bargaining power; and “[t]he Court recalls the

trial of this case and the issues involved, and has considered

the whole record of the case[.]                  While a "[m]ere recitation by

the trial court that it has considered all Washington factors"

without      making       additional     findings    of     fact    is    inadequate,

Thorpe, 132 N.C. App. at 572, 551 S.E.2d at 857, "the trial

court   is       not    required    to   make     detailed    findings      for   each

factor."         Id. (citing Tew v. West, 143 N.C. App. 534, 546 S.E.2d

183 (2001)).           Rather, the trial court must merely make findings

as to "those facts matching those Washington factors apposite to

the instant case."              Id., 132 N.C. App. at 573, 551 S.E.2d at

857.        As    such,   the    trial   court’s    findings       of    fact   are   in

accordance with the required factors of Washington.

       On    remand,      the   trial    court   made     additional     findings     of

fact: plaintiff incurred costs of $1,907.77; plaintiff’s counsel

submitted         affidavits       indicating      that      plaintiff’s        primary

attorney spent 105.4 hours of time, at $225.00 per hour, while a

second attorney spent 29.3 hours, at $250.00 per hour, on the

case; plaintiff’s primary attorney is an associate attorney who

became licensed to practice law in 2010; this was plaintiff’s

attorney’s second jury trial; plaintiff’s second attorney took

no active role in the trial; the case concerned a car accident
                                                  -7-
and had no significant evidentiary issues; the hours spent by

plaintiff’s attorneys “are disproportionately higher than the

hours reasonably and normally spent by plaintiff’s counsel in

this type of civil case”; and that “[i]t is customary for an

attorney         to    receive      1/3      (one    third)      of     the     settlement   or

Judgment amount as a fee for services rendered.”                                    The trial

court concluded that plaintiff’s primary attorney “spent more

than    a    reasonable         amount       of    time    on    the    case,    and,   in   its

discretion,            finds    that      an      attorney’s      fee    of     $2,200.00    is

appropriate in this case.”

       Plaintiff argues that the trial court erred because its

award       of    attorneys’          fees     was   not       based    on    the   affidavits

submitted by plaintiff’s attorney.                        We disagree, as the language

of N.C.G.S. § 6-21.1 clearly states that a trial court may award

attorneys’ fees at its discretion.                         See Harrison v. Herbin, 35

N.C. App. 259, 261, 241 S.E.2d 108, 109 (1978) (“While [N.C.G.S.

§ 6-21.1] is aimed at encouraging injured parties to press their

meritorious but pecuniarily small claims, we do not believe that

it   was     intended          to   encourage        parties      to     refuse     reasonable

settlement            offers    and    give       rise    to    needless        litigation   by

guaranteeing that counsel will, in all cases, be compensated.”).

Moreover, as the trial court considered the entire record before
                                            -8-
it and made findings of facts as required by both Washington and

Thorpe, the trial court acted within its discretion in awarding

$2,200.00 in attorneys’ fees to plaintiff.                     See Messina v. Bell,

158 N.C. App. 111, 115, 581 S.E.2d 80, 84 (2003) (“From the

findings,    it    is   clear     that      the     trial     court    exercised        its

discretion by considering the whole record and in applying the

Washington    factors.          Thus,       the     findings    are    sufficient        to

support the trial court's conclusion that plaintiff should be

awarded attorney's fees, and therefore, the trial court did not

abuse its discretion in granting plaintiff's motion.”).

      Plaintiff    further      argues       that    the    trial     court     erred    in

failing to award attorneys’ fees for the time spent preparing

for   plaintiff’s       appeal.         A    trial     court    has    the    authority

pursuant to N.C.G.S. § 6-21.1 to award additional attorney's

fees for an appeal.         Hill v. Jones, 26 N.C. App. 168, 171, 215

S.E.2d 168, 170 (1975).           A plaintiff must make a motion to the

trial court seeking attorneys’ fees for an appeal.                              Davis v.

Kelly, 147 N.C. App. 102, 109, 554 S.E.2d 402, 406—07 (2001).

      On 10 July 2013, plaintiff made a motion to the trial court

for   attorneys’    fees    relating         to     plaintiff’s       initial    appeal.

Plaintiff    provided      to     the       trial     court    affidavits        of     her

attorneys’ fees for both the original jury trial and appeal.
                                           -9-
The trial court accepted these documents noting that “I’m going

to have to take a look at it.”                 In its order awarding plaintiff

$2,200.00 in attorneys’ fees, the trial court did not mention

any fees or costs incurred as a result of plaintiff’s appeal.

However, as discussed above, the trial court was not required to

award attorneys’ fees to plaintiff for either an initial action

or an appeal.      Moreover, as we have already determined that the

trial court considered the appropriate factors and made findings

of   fact   regarding      its    decision       to   award   attorneys’      fees    to

plaintiff,    we   cannot    say        that    the   trial   court   erred    in    not

awarding      attorneys’         fees     to     plaintiff     for     her     appeal.

Accordingly, the trial court did not abuse its discretion in

awarding $2,200.00 in attorneys’ fees to plaintiff.                        See Overton

v. Purvis, 162 N.C. App. 241, 247—48, 591 S.E.2d 18, 23 (2004)

(“The record indicates that the trial court considered these

statements, together with argument from counsel, in determining

whether and to what extent attorneys' fees were appropriate.                          We

hold   that    these    statements        are    competent     and    sufficient     to

support     the    trial    court's        award       and    find    no     abuse    of

discretion.”).         As such, we need not reach plaintiff’s third

argument on appeal.

       Affirmed.
                         -10-
Judges STEPHENS and DILLON concur.

Report per Rule 30(e).
