             IN THE COURT OF APPEALS OF NORTH CAROLINA

                                  No. COA15-217

                               Filed: 5 January 2016

Wake County, No. 12-CVS-17050

E. BROOKS WILKINS FAMILY MEDICINE, P.A., Plaintiff,

            v.

WAKEMED; WAKEMED D/B/A FALLS POINTE MEDICAL GROUP; INAM
RASHID, MD; MICHELE CASEY, MD; MONICA OEI, MD; AND LESLIE
ROBINSON, MD, Defendants.


      Appeal by Plaintiff and cross-appeal by Defendants from orders entered 5

August 2015 by Judge Michael J. O’Foghludha in Wake County Superior Court.

Heard in the Court of Appeals 9 September 2015.


      John M. Kirby, for Plaintiff-Appellant.

      Smith Moore Leatherwood LLP, by Matthew Nis Leerberg and William R.
      Forstner, for Defendants-Appellees/Cross-Appellants WakeMed and WakeMed
      d/b/a/ Falls Pointe Medical Group; Robinson Bradshaw & Hinson, P.A., by
      Julian H. Wright, Jr. and Andrew A. Kasper, for Defendants-Appellees/Cross-
      Appellants Inam Rashid, MD; Michele Casey, MD; Monica Oei, MD; and Leslie
      Robinson, MD.


      INMAN, Judge.


      E. Brooks Wilkins Family Medicine, P.A. (“Plaintiff”) appeals from an order

awarding attorneys’ fees to Inam Rashid, MD, Michele Casey, MD, Monica Oei, MD,

and Leslie Robinson, MD (collectively “Doctor Defendants”) and an order awarding

attorneys’ fees to WakeMed and WakeMed d/b/a Falls Pointe Medical Group

(collectively “WakeMed Defendants”). WakeMed Defendants and Doctor Defendants
                          WILKINS FAMILY MEDICINE V. WAKEMED

                                       Opinion of the Court



(collectively “Defendants”) cross-appeal from both orders awarding Defendants

attorneys’ fees.    Plaintiff also appeals from the order affirming the dismissal of

Plaintiff’s appeal. After careful review, we dismiss Plaintiff’s appeal as to all orders

except the attorneys’ fees orders and affirm the attorneys’ fee orders.


                          Factual & Procedural Background


       Plaintiff is a family medical practice in Raleigh. In January 2010, Doctor

Defendants resigned from their employment with Plaintiff and formed their own

practice affiliated with WakeMed Defendants. In March 2012, Plaintiff brought an

action against Defendants. In August 2012, the claim was subsequently dismissed

without prejudice.1


       On 7 December 2012, Plaintiff filed a second complaint, alleging all Defendants

misappropriated trade secrets under N.C. Gen. Stat. § 66-152 et seq. and committed

unfair and deceptive trade practices under N.C. Gen. Stat. § 75-1.1. Plaintiff also

alleged that Doctor Defendants breached certain contracts.                   On 4 June 2013,

pursuant to Defendants’ motions to dismiss, the trial court dismissed Plaintiff’s

unfair and deceptive trade practice (“UDTP”) claims with prejudice based upon the

“learned profession” exception provided in the UDTP statute.




       1The first complaint, which also included a named defendant who is not a party to the action
from which this appeal arises, is not included in the record.

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      On 30 August 2013 and 4 September 2013, Defendants moved to compel

discovery from Plaintiff, alleged discovery abuses by Plaintiff, and sought an order

awarding costs and fees.      On 4 November 2013, the trial court entered orders

compelling Plaintiff to provide full and complete responses to Defendants’ discovery

requests and to provide requested documents before 27 December 2013. The orders

warned Plaintiff that the court “reserve[d] the right to impose any sanctions allowed

by Rule 37.”

      Plaintiff did not comply with the court orders to provide discovery. Two weeks

after the court-ordered deadline, on 13 and 17 January 2014, Defendants again

moved to compel discovery from Plaintiff, sought an order awarding costs and fees

from Plaintiff, and moved for dismissal of the action as a sanction under Rule 37 of

the North Carolina Rules of Civil Procedure. After the motions were filed, Plaintiff

produced more than 6,000 pages of additional documents and admitted that most of

the documents had been in Plaintiff’s possession prior to the initial discovery

response deadline in the spring of the previous year.

      On 31 March 2014, during a hearing on Defendants’ motions for sanctions, the

trial court announced from the bench that, in the exercise of the court’s discretion,

the action would be dismissed as a sanction for Plaintiff’s violation of the court’s prior

discovery orders.    The trial court noted “example after example” of Plaintiff’s

violations of the prior discovery orders and found that Plaintiff’s responses were



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“evasive and incomplete and designed to obfuscate the defense of this lawsuit.” The

trial court instructed counsel for Defendants to prepare a detailed written order and

to submit it to counsel for Plaintiff for his review before providing it to the trial court

in electronic form.

       On 25 April 2014, the trial court filed orders (one regarding claims against

Doctor Defendants, the other regarding claims against WakeMed Defendants)

(collectively, “the discovery sanction orders”) containing extensive findings of fact,

including that “Plaintiff’s repeated failures to comply with this Court’s discovery

orders were intentional and intended to obstruct the defense of this case.” The orders

also noted that the trial court considered sanctions short of dismissing the action with

prejudice “and determine[d] the sanctions imposed are reasonable, necessary, and

justified in light of the particular facts and circumstances of this case.” The trial

court arranged for the discovery sanction orders to be served on the parties by the

trial court coordinator in the Wake County Superior Court Judges’ Office. Appended

to the last page of each order was a certificate of service stating the following:

              I HEREBY CERTIFY that the foregoing document was
              served on the parties listed below by mailing and/or hand-
              delivering a copy thereof to each of said parties, addressed,
              postage prepaid as follows:

                      H. Wood Vann [counsel for Plaintiff]
                      120 E. Parrish St., Ste. 200
                      Durham, NC 27701
                            ....



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                                   Opinion of the Court



      This, the 25th day of April, 2014.

                                         ____________
                                         Terri Stewart
                                         Trial Court Coordinator
                                         Wake County Superior Court Judges’ Office


      Thirty-three (33) days after entry and service of the discovery sanction orders,

on 28 May 2014, Plaintiff filed and served a notice of appeal from various orders,

including the discovery sanction orders.

      On 16 June 2014, Defendants jointly moved to dismiss Plaintiff’s appeal from

the discovery sanction orders as untimely. Defendants also moved for attorneys’ fees,

expenses, and costs related to Plaintiff’s discovery abuses and related to the defense

against Plaintiff’s UDTP claims. On 5 August 2014, the trial court entered orders

(“the attorneys’ fees orders”) awarding Doctor Defendants $141,637.50 in attorneys’

fees and WakeMed Defendants $63,784.00 in attorneys’ fees from Plaintiff. The

orders denied Defendants’ requests for fees incurred in dismissing the UDTP claims.

On that same day, the trial court also entered an order dismissing Plaintiff’s appeal

from the discovery sanction orders (“appeal dismissal order”) on the ground that

Plaintiff failed to timely file and serve notice of appeal from those orders, missing the

deadline provided by Rule 3(c)(1) of the North Carolina Rules of Appellate Procedure.

      On 21 August 2014, Plaintiff filed notice of appeal from the attorneys’ fees

orders and the appeal dismissal order. On 3 and 4 September 2014, Defendants filed



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notices of cross-appeal from the attorneys’ fees orders.          On 26 February 2015,

Defendants filed a joint motion to dismiss Plaintiff’s appeal from all orders other than

the attorneys’ fees orders. On 9 March 2015, Plaintiff filed a petition for writ of

certiorari to permit this Court to review various orders, including the discovery

sanction orders and the appeal dismissal order.

                        I. Joint Motion to Dismiss Appeals

      Plaintiff appears to appeal from three categories of orders: (1) the discovery

sanction orders, (2) the appeal dismissal order, and (3) the attorneys’ fees orders.

Defendants contend the parties’ appeals from the attorneys’ fees orders are the only

matters properly before this Court. We agree, for reasons explained below.

                 A. Appeal from the Discovery Sanction Orders

      Plaintiff contends the trial court erred in dismissing its appeal from the

discovery sanction orders. Plaintiff argues its 28 May 2014 notice of appeal was

properly filed pursuant to Rule 3 of the North Carolina Rules of Appellate Procedure

after the trial court failed to comply with Rules 58 and 5 of the North Carolina Rules

of Civil Procedure. Because Plaintiff’s interpretation of these rules is flawed, and

because Plaintiff had timely actual notice of the discovery sanction orders, we affirm

the trial court’s dismissal of Plaintiff’s appeal from these orders.

      Rule 3(c) of the North Carolina Rules of Appellate Procedure provides that a

party in a civil action must file and serve a notice of appeal:



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             (1) within thirty days after entry of judgment if the party
             has been served with a copy of the judgment within the
             three day period prescribed by Rule 58 of the Rules of Civil
             Procedure; or

             (2) within thirty days after service upon the party of a copy
             of the judgment if service was not made within that three
             day period[.]

N.C. R. App. P. 3(c)(1) & (2) (2013). Rule 58 of the North Carolina Rules of Civil

Procedure, entitled “Entry of Judgment,” provides in pertinent part:

             [A] judgment is entered when it is reduced to writing,
             signed by the judge, and filed with the clerk of court. The
             party designated by the judge or, if the judge does not
             otherwise designate, the party who prepares the judgment,
             shall serve a copy of the judgment upon all other parties
             within three days after the judgment is entered. Service
             and proof of service shall be in accordance with Rule 5.

N.C. Gen. Stat. § 1A-1, Rule 58 (2013) (emphasis added).

      Rule 5 of the North Carolina Rules of Civil Procedure, entitled “Service and

filing of pleadings and other papers[,]” consistently refers to the service of papers,

including orders, in the passive voice—“service shall be made,” “may be made in a

manner,” “shall be served” are the verb forms in this Rule—and does not specify who

is authorized or required to serve an order. N.C. Gen. Stat. § 1A-1, Rule 5 (2013).

      Plaintiff contends 25 April 2014, the date the discovery sanction orders were

entered, did not commence the thirty-day appeal period as required by Rule 3 because

(1) the orders were not properly served pursuant to Rule 58 and (2) the orders did not

contain proper certificates of service pursuant to Rule 5. As explained below, we hold


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                                    Opinion of the Court



that the trial court has the inherent authority to serve its own orders and that any

errors in the certificates of service were obviated by timely actual notice to Plaintiff

of the discovery sanction orders.

       Plaintiff contends that the trial court’s office did not properly serve the

discovery sanction orders as required by the language of Rule 58, so that service on

25 April 2014 did not trigger the Rule 3(c)(1) deadline for Plaintiff to appeal. Plaintiff

argues that because the trial court coordinator is not a “party” to the action, was not

the “party” designated by the judge, and was not the “party” who prepared the

judgment, the trial court coordinator’s service of the discovery sanctions orders was

ineffective to trigger the thirty-day deadline provided in Rule 3(c)(1), which refers to

Rule 58, and instead required Plaintiff to meet the later deadline provided in Rule

3(c)(2).

       We reject Plaintiff’s argument that service of an order by the court does not

comply with Rule 58 because the trial court is not a “party,” i.e., not one of the named

parties to the action. While we acknowledge that the word “party” is used in several

of the North Carolina Rules of Civil Procedure to refer to litigants, we do not believe

that the General Assembly intended to deprive trial courts of the inherent authority

to serve their own orders. Such an interpretation would make no common sense and

would violate our state constitution.




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                                   Opinion of the Court



      “[T]he order is the responsibility of the trial court, no matter who physically

prepares the draft of the order.” In re A.B., ___ N.C. App. ___, ___, 768 S.E.2d 573,

579 (2015). The fair administration of justice requires that trial courts have the

authority to take responsibility not only for signing orders, but also for filing and

serving orders. While counsel, on behalf of parties, often serve orders that have been

signed and filed by the trial court, trial courts routinely sign, file, and serve orders

directly upon all parties. Service by the trial court, usually through a trial court

coordinator or other court staff, bypasses the need to coordinate with counsel,

expedites service, and usually avoids doubt and dispute regarding entry of orders and

service upon all parties.

      The North Carolina Constitution provides in pertinent part: “The General

Assembly shall have no power to deprive the judicial department of any power or

jurisdiction that rightfully pertains to it as a co-ordinate department of the

government[.]” N.C. Const. art. IV, § 1. Our Supreme Court has explained:

             The inherent power of the Court has not been limited by
             our constitution. To the contrary, the constitution protects
             such power. . . . Our courts have repeatedly made reference
             to and affirmed the existence and exercise of inherent
             judicial power. . . . Inherent power is that which the court
             necessarily possesses irrespective of constitutional
             provisions. Such power may not be abridged by the
             legislature. Inherent power is essential to the existence of
             the court and the orderly and efficient exercise of the
             administration of justice. Through its inherent power the
             court has authority to do all things that are reasonably
             necessary for the proper administration of justice.


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Beard v. N.C. State Bar, 320 N.C. 126, 129, 357 S.E.2d 694, 695-96 (1987) (citations

omitted). Therefore, because Plaintiff’s interpretation of the word “party” in Rule 58

would violate the separation of powers required by our state constitution, “[w]e

cannot attribute to the language used the force and effect urged by [Plaintiff].

Instead, we must construe it in such a manner as to bring it within the legislative

authority of the General Assembly and make it consistent with the validity of the

statute in which it is used.” Rhodes v. Asheville, 230 N.C. 759, 759, 53 S.E.2d 313,

313 (1949).

        Plaintiff also contends service of the discovery sanction orders was invalid

pursuant to Rule 5 of the Rules of Civil Procedure because the certificates of service

did not specify the date on which the documents were served and did not specify the

means of service. Plaintiff argues that defects in the certificates of service tolled the

time for filing an appeal such that its appeal was timely.

        Each certificate of service is dated 25 April 2014, and thus sufficiently shows

the date of service.2 The certificates state that the document was served “by mailing

and/or hand delivering” a copy to counsel for Plaintiff. The use of “and/or” in judicial

proceedings is disfavored. See Gordon v. State Farm Mut. Auto. Ins. Co., 6 N.C. App.



        2 The trial court found that the discovery sanction orders were served on 25 April, the same
day they were entered. The trial court is in the best position to weigh all the evidence and its findings
“‘are conclusive on appeal if there is evidence to support them, even though the evidence might sustain
a finding to the contrary.’” In re Bass, 366 N.C. 464, 467, 738 S.E.2d 173, 175 (2013) (quoting Knutton
v. Cofield, 273 N.C. 355, 359, 160 S.E.2d 29, 33 (1968)).

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185, 188, 169 S.E.2d 514, 516 (1969) (“We do not look with favor upon the ambiguous

and uncertain term ‘and/or.”’(citation and internal quotation marks omitted)). We

need not address this issue, however, because Plaintiff had actual notice of the

discovery sanction orders within the time period required by Rule 3(c)(1).

      This Court has held a litigant’s actual notice of a final order within three days

of its entry triggers Rule 3(c) and notice of appeal must be filed within thirty days of

the date of entry. See Magazian v. Creagh, __ N.C. App. __, __, 759 S.E.2d 130, 131

(2014) (“[W]hen a party receives actual notice that a judgment has been entered, the

service requirements of Rule 3(c) are not applicable, and actual notice substitutes for

proper service.”); see also Manone v. Coffee, 217 N.C. App. 619, 623, 720 S.E.2d 781,

784 (2011) (explaining that when a party receives actual notice “the party has been

given fair notice . . . that judgment has been entered”), see also Huebner v. Triangle

Research Collaborative, 193 N.C. App. 420, 425, 667 S.E.2d 309, 312 (2008) (holding

that this Court “do[es] not believe the purposes of Rule 58 are served by allowing a

party with actual notice to file a notice of appeal and allege timeliness based on lack

of proper service”). So, even if service of the discovery sanction orders was improper

for any of the reasons asserted by Plaintiff, if Plaintiff had actual notice of the orders

within three days of their entry, but waited more than thirty days (from the date the

orders were entered) before filing the notice of appeal, its notice would be untimely.




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      Here, Plaintiff’ presented no evidence that might have supported a finding that

it did not receive actual notice within the time period designated by Rule 3(c)(1). Rule

6(a) of the Rules of Civil Procedure provides in pertinent part: “When the period of

time prescribed or allowed is less than seven days, intermediate Saturdays, Sundays,

and holidays shall be excluded in the computation.” N.C. Gen. Stat. § 1A–1, Rule 6(a)

(2013); see Magazian, __ N.C. App. at __, 759 S.E.2d at 131 (As with formal notice,

“[t]he three day period [for receiving actual notice of an order] excludes weekends and

court holidays.”). Because the discovery sanction orders were entered on 25 April

2014, a Friday, the three day deadline under Rule 3(c) and Rule 58 for service of the

orders was Wednesday, 30 April 2014. Although Plaintiff’s counsel submitted an

affidavit to the trial court stating that he did not receive delivery of the orders “until

after April 27,” a Sunday, he did not deny receiving delivery on 28 April, 29 April, or

30 April—all days within the deadline for service as calculated by Rule 6(a) and

within the scope of Rule 3(c)(1). As long as Plaintiff received actual notice of the

discovery sanction orders on 28 April, 29 April, or 30 April—a fact not disputed by

any evidence—it had thirty days from 25 April to file notice of appeal. Since April

has thirty days, Plaintiff’s deadline to file an appeal initially fell on 25 May. However,

25 May was a Sunday, and Monday, 26 May was a federal holiday on which the court

was closed. Thus, Plaintiff’s deadline to file the notice of appeal was extended to the

next business day, 27 May. See N.C. R. App. P. 27(a) (in computing a period of time



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allowed by the Rules of Appellate Procedure, when the last day of the period is a

Saturday, Sunday, or legal holiday, “the period runs until the end of the next day

which is not a Saturday, Sunday or legal holiday.”).

      The untimely nature of Plaintiff’s notice of appeal from the discovery sanction

orders deprives this Court of jurisdiction over the appeal. See Bailey v. State, 353

N.C. 142, 156, 540 S.E.2d 313, 322 (2000) (citation omitted) (“The provisions of Rule

3 are jurisdictional, and failure to follow the rule's prerequisites mandates dismissal

of an appeal.”); see also Dogwood Dev. & Mgmt. Co., LLC v. White Oak Transp. Co.,

362 N.C. 191, 198, 657 S.E.2d 361, 365 (2008) (“[I]n the absence of jurisdiction, the

appellate courts lack authority to consider whether the circumstances of a purported

appeal justify application of [N.C. R. App. P.] 2.”). Therefore, we dismiss Plaintiff’s

appeal from the discovery sanctions orders.

      Plaintiff asks this Court to issue a writ of certiorari in the event it concludes

the 28 May 2014 notice of appeal was untimely, in order to address the issues raised

in the notice of appeal. “A petition for the writ must show merit or that error was

probably committed below. Certiorari is a discretionary writ, to be issued only for

good and sufficient cause shown.” State v. Grundler, 251 N.C. 177, 189, 111 S.E.2d

1, 9 (1959) (citations omitted). It appears the trial court properly sanctioned Plaintiff

for failure to comply with discovery, having considered lesser sanctions and finding

them to be inappropriate in this case. In our discretion, we deny Plaintiff’s petition.



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                     B. Appeal from Appeal Dismissal Order

       Plaintiff appeals from the 5 August appeal dismissal order. Defendants

contend Plaintiff’s purported appeal from the dismissal order is procedurally barred.

Plaintiff argues a party can appeal as of right a lower court’s dismissal of an appeal,

as demonstrated by decisions of this Court reversing trial court orders dismissing

appeals.

       There is a split in this Court’s decisions regarding the method of seeking

appellate review of a trial court’s dismissal of an appeal. Defendants rely on State v.

Evans, 46 N.C. App. 327, 327, 264 S.E.2d 766, 767 (1980) (holding that “[n]o appeal

lies from an order of the trial court dismissing an appeal for failure to perfect it within

apt time, the proper remedy to obtain review in such case being by petition for writ

of certiorari[]”) and High Point Bank and Trust Co. v. Fowler, __ N.C. App. __, __, 770

S.E.2d 384, 386-87 (2015) (dismissing an appeal from a trial court’s order of dismissal

entered on the ground that the appellants failed to give timely notice of appeal).

       Plaintiff relies upon Lawrence v. Sullivan, 192 N.C. App. 608, 614-20, 666

S.E.2d 175, 178-81 (2008), a case in which this Court reversed a trial court’s order

dismissing an appeal for alleged violations of Rules 7 and 11 of the North Carolina

Rules of Appellate Procedure. This Court noted that “[a] motion to dismiss an appeal

is a matter within the discretion of the trial court,” thus limiting the review to

whether “there was a clear abuse of discretion,” but the Court ultimately held that



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the trial court had abused its discretion in dismissing the appeal, and it reached the

substantive merits of the case. Id. at 614-15, 620, 666 S.E.2d at 179, 181. Plaintiff

also relies upon Cobb v. Rocky Mount Bd. of Educ., 102 N.C. App. 681, 403 S.E.2d 538

(1991), in which this Court reversed an order entered by the trial court dismissing an

appeal, concluding that the trial court’s order was erroneous. Rather than reaching

the merits, this Court remanded the matter to the trial court to settle the record

properly and to certify the appeal as taken on the date of the mandate of this Court’s

decision. Id. at 685, 403 S.E.2d at 541.

       When prior decisions of this Court conflict, the earlier of those decisions is

controlling precedent. See, e.g., In re R.T.W., 359 N.C. 539, 542 n.3, 614 S.E.2d 489,

491 n.3 (2005). The line of cases supporting Defendants’ argument predate the

decisions relied on by Plaintiff. Thus, we conclude that no appeal lies in this Court

from the appeal dismissal order. As we do not have jurisdiction, we dismiss Plaintiff’s

appeal as to the appeal dismissal order.

       Plaintiff petitions this Court, if it finds it necessary, to issue a writ of certiorari

to review the appeal dismissal order.         Even assuming arguendo that a writ of

certiorari would confer jurisdiction on this Court and we were to grant it, as we

already discussed, the trial court properly dismissed Plaintiff’s appeal from the

discovery sanction orders as being untimely. Therefore, we deny the petition for writ

of certiorari as to this issue.



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                        II. Appeals from Attorneys’ Fees Orders

                                     A. Plaintiff’s Appeal

       Plaintiff contends the trial court erred in the amount of attorneys’ fees awarded

to Defendants as sanctions under Rule 37 of the North Carolina Rules of Civil

Procedure. 3 Specifically, Plaintiff argues a portion of the costs and expenses awarded

to Doctor Defendants is not attributable to Plaintiff’s discovery violations. Plaintiff

also claims because counsel for WakeMed Defendants did not submit billing records,

it was not possible for the trial court to determine the fees attributable to discovery

violations.

       “A trial court’s award of sanctions under Rule 37 will not be overturned on

appeal absent an abuse of discretion.” Graham v. Rogers, 121 N.C. App. 460, 465,

466 S.E.2d 290, 294 (1996). “An abuse of discretion results where the court's ruling

is manifestly unsupported by reason or is so arbitrary that it could not have been the

result of a reasoned decision. ” Couch v. Private Diagnostic Clinic, 146 N.C. App. 658,

667-68, 554 S.E.2d 356, 363 (2001) (citation and internal quotation marks omitted).

       Rule 37(a)(4) of the Rules of Civil Procedure provides that, upon a successful

motion for an order compelling discovery, the trial court shall award the moving party

“the reasonable expenses incurred in obtaining the order, including attorney's fees,


       3   Plaintiff also argues the discovery sanction orders contained erroneous findings and thus,
the trial court erred in using these orders to support an award of attorneys’ fees. However, as we lack
jurisdiction to review the discovery sanction orders, we dismiss that portion of the appeal, and
accordingly, will not address this argument.

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unless the court finds that the opposition to the motion was substantially justified or

that other circumstances make an award of expenses unjust.” N.C. Gen. Stat. § 1A-

1, Rule 37(a)(4) (2013). Moreover, Rule 37(b)(2) provides that if a party fails to obey

a discovery order, “the court shall require the party failing to obey the order to pay

the reasonable expenses, including attorney's fees, caused by the failure, unless the

court finds that the failure was substantially justified or that other circumstances

make an award of expenses unjust.” N.C. Gen. Stat. § 1A-1, Rule 37(b)(2) (2013).

      In each of the attorneys’ fees orders, the trial court found that the fees awarded

were “attributable to the [Defendants’] efforts related to Plaintiff’s deficient discovery

and not for other aspects of the defense of this action[.]” The respective orders

specified that the trial court considered the affidavit of Julian H. Wright, Jr. in its

award to Doctor Defendants and the affidavits of William R. Forstner and Jeanne M.

Foley in its award to WakeMed Defendants.

      Julian Wright, attorney for Doctor Defendants, submitted billing records to the

trial court showing attorney and staff time expended on the disputed discovery issues.

In his affidavit, Wright explained the “entries . . . are only for time devoted to work

that dealt with getting, understanding, reviewing, analyzing, and eventually filing

motions under Rule 37 about Plaintiff’s deficient discovery responses and document

productions.” Although WakeMed Defendants’ counsel did not submit billing records,

William R. Forstner, attorney for WakeMed Defendants, stated in his affidavit that



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“the fees attributable to issues surrounding Plaintiff’s evasive, incomplete, and

duplicative discovery responses represent at least 328 billable hours,” and that in

calculating the hours “our firm excluded entries unrelated to Plaintiff’s discovery

deficiencies, including any ambiguous entries.” Finally, Jeanne M. Foley, a paralegal

for the law firm representing Defendant WakeMed, submitted an affidavit stating:

             I have never worked on a litigation case in which the
             document production and overall discovery responses were
             so fractured and complicated. I encountered numerous and
             repeated deficiencies with Plaintiff’s production too
             numerous to recount in this Affidavit. . . . The time and
             expense were significantly increased by Plaintiff’s
             approach to discovery and document production.

These three affidavits support the trial court’s factual findings that the fees awarded

to Defendants were attributable to Plaintiff’s discovery violations.      See Long v.

Joyner, 155 N.C. App. 129, 137, 574 S.E.2d 171, 177 (2002) (affirming the award of

attorneys’ fees when the amount of fees corresponded with the charges identified by

attorney in an affidavit).

      Plaintiff contends the trial court erred in its “blanket award” of all fees

requested from alleged discovery violations, without providing any analysis of the

basis of the award. “Rule 37(a)(4) requires the award of expenses to be reasonable,

[and] the record must contain findings of fact to support the award of any expenses,

including attorney's fees.” Benfield v. Benfield, 89 N.C. App. 415, 422, 366 S.E.2d

500, 504 (1988).



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      In the attorneys’ fees orders, the trial court made findings of fact, supported

by record evidence, regarding the reasonableness of the fees. The trial court found

the following:

             [T]he time and labor expended, and expenses incurred,
             addressing Plaintiff’s deficient discovery and the necessary
             interventions of this [c]ourt were reasonable and necessary
             for the defense of the case. . . . This conclusion is based, in
             part, upon the many hours of time spent by the [c]ourt
             attempting to review and evaluate Plaintiff’s discovery
             responses during the [c]ourt’s consideration of the [Doctor
             Defendants’ Motion to Compel and the Defendants’
             Motions for Sanctions].

      Based on the record evidence and the trial court’s findings, the trial court acted

well within its discretion in determining reasonable attorneys’ fees to be awarded

against Plaintiff and in favor of Defendants. We therefore affirm the attorneys’ fees

orders as related to the discovery sanctions.

                           B. Defendants’ Cross-Appeal

      Defendants assert that the trial court committed reversible error by failing to

review Defendants’ motions for attorneys’ fees incurred in obtaining dismissal of the

UDTP claim according to the legal standard provided in the UDTP statute. We hold

that when the trial court in its discretion denies a motion for attorneys’ fees, it need

not make statutory findings required to support a fee award.

      “Questions regarding statutory interpretation are reviewed de novo under an

error of law standard.” Price & Price Mech. of N.C., Inc. v. Miken Corp., 191 N.C.



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App. 177, 179, 661 S.E.2d 775, 777 (2008). However, once the trial court applies the

proper legal standard, “[t]he decision whether or not to award attorney fees . . . rests

within the sole discretion of the trial judge.” Printing Servs. of Greensboro, Inc. v.

Am. Capital Group, Inc., 180 N.C. App. 70, 81, 637 S.E.2d 230, 236 (2006), aff'd, 361

N.C. 347, 643 S.E.2d 586, 586-87 (2007) (citations omitted). “The judge's decision to

deny attorney fees under the [judge’s discretion] is limited only by the abuse of

discretion rule[,]” Varnell v. Henry M. Milgrom, Inc., 78 N.C. App. 451, 457, 337

S.E.2d 616, 620 (1985) (citations omitted), and a trial court may be reversed “only

upon a showing that its actions are manifestly unsupported by reason.”           Castle

McCulloch, Inc. v. Freedman, 169 N.C. App. 497, 504, 610 S.E.2d 416, 422 (citation

omitted), aff'd per curiam, 360 N.C. 57, 620 S.E.2d 674 (2005).

      N.C. Gen. Stat. § 75-16.1 provides in pertinent part:

             In any suit instituted by a person who alleges that the
             defendant violated G.S. 75-1.1, the presiding judge may, in
             his discretion, allow a reasonable attorney fee to the duly
             licensed attorney representing the prevailing party, such
             attorney fee to be taxed as a part of the court costs and
             payable by the losing party, upon a finding by the presiding
             judge that:

                    ...

                    (2) The party instituting the action knew, or should
                    have known, the action was frivolous and malicious.




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N.C. Gen. Stat. § 75-16.1 (2013). In the attorneys’ fees orders, with respect to the

UDTP claim, the trial court found:

             The [c]ourt exercises its discretion and declines to award
             the [Defendants] their attorneys’ fees pursuant to N.C.
             Gen. Stat. § 75-16.1. The [c]ourt finds that a claim
             dismissed pursuant to Rule 12(b)(6) is not necessarily
             frivolous or malicious under § 75-16.1. The [c]ourt further
             finds that Plaintiff’s pleading of the UDTP claim did not
             inhibit the [c]ourt’s consideration of the merits of this
             action.

Defendants assert that neither conclusion of the trial court addresses the legal

standard required by N.C. Gen. Stat. § 75-16.1(2) to support either an award or a

denial of attorneys’ fees regarding the UDTP claims.

      We are aware of no prior appellate decision in this state expressly addressing

the issue of whether a trial court that denies a motion to award attorneys’ fees is

required to apply the factual analysis specified in N.C. Gen. Stat. § 75-16.1. Based

on the language of the statute, we hold that the trial court is not required to make

such findings in any order declining to award attorneys’ fees.

      The provision that the trial court may award attorneys’ fees “upon a finding by

the presiding judge that . . . [t]he party instituting the action knew, or should have

known, the action was frivolous and malicious[,]” reflects an intent by the legislature

that any award of attorneys’ fees must be justified by certain factual criteria.

However, the structure of the provision suggests that the legislature requires no such

findings by the trial court in denying fees. The distinction between orders awarding


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and denying fees makes sense, because if the trial court in its discretion is disinclined

to award fees, the analysis of factors necessary to support a fee award is obviated.

Requiring a trial court to engage in such an exercise to support an order denying

attorneys’ fees would be like requiring a civil jury which found no negligence to

include in its verdict the amount of damage proximately caused by negligence.

      This Court’s decision in Varnell v. Henry M. Milgrom, Inc., 78 N.C. App. 451,

337 S.E.2d 616, while not directly on point, is instructive. Reviewing an appeal from

a trial court order denying a motion for attorneys’ fees which included no findings,

this Court in Varnell held that the trial judge’s decision to deny attorneys’ fees “is

limited only by the abuse of discretion rule,” and in quoting the statute, deemed it

unnecessary to include findings required to support an award of fees. 78 N.C. App.

at 457, 337 S.E.2d at 620.

      This case is different from Varnell only because the trial court, in denying the

motion for attorneys’ fees, entered findings that do not track statutory language

providing for awarding fees. The findings may shed light on how the trial court made

its decision, but they were neither required nor prohibited by the statute. Only if the

findings reflected that the decision was manifestly unsupported by reason would the

trial court’s order be reversed. The trial court’s findings (1) that a claim subject to

dismissal on the face of the complaint is not necessarily frivolous and (2) that the

claim did not impede the trial court’s handling of the action are, in our view,



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reasonable. In effect, the trial court explained why it declined to award fees because

the claim was not necessarily frivolous or malicious.

      All of the case authorities relied upon by Defendants involved appeals from

orders allowing fees and set forth an analysis which makes the award of fees – not an

order denying fees – contingent upon statutory findings. See Birmingham v. H & H

Home Consultants & Designs, Inc., 189 N.C. App. 435, 442-44, 658 S.E.2d 513, 518-

19 (2008) (reversing and remanding order granting motion for attorneys’ fees under

N.C. Gen. Stat. § 75-16.1 because trial court misapplied the standard for assessing

whether action was “frivolous and malicious”); see also McKinnon v. CV Indus., Inc.,

__ N.C. App. __, __, 745 S.E.2d 343, 351 (2013) (remanding award of attorneys’ fees

to the trial court to “make an ultimate finding as to whether plaintiff knew or should

have known that the assertion . . . of his Chapter 75 claim was frivolous and

malicious.”).

      We hold that the trial court here satisfied its duty under the statute by first,

recognizing that it had to exercise its discretion, and second, by stating that in its

discretion it would decline to award the requested fees. The findings that followed

suggest that the trial court had no need to engage in the analysis required to award

fees and that the litigation was not, in the view of the trial court, inhibited by the

UDTP claims. Even assuming arguendo that the findings have any legal significance,




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they do not apply the wrong legal standard, because the statute does not articulate a

standard for denying attorneys’ fees.

                                     Conclusion

      We dismiss Plaintiff’s appeal as to all orders except the attorneys’ fees orders.

We deny Plaintiff’s petition for writ of certiorari. We affirm the attorneys’ fee orders.



      DISMISSED IN PART; AFFIRMED IN PART.

      Judges CALABRIA and STROUD concur.




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