An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA14-146-2
                         NORTH CAROLINA COURT OF APPEALS

                            Filed:    2 September 2014


CENTURY FIRE PROTECTION, LLC,
     Plaintiff,

      v.                                      Catawba County
                                              No. 12 CVS 1788
CURTIS NEAL MAUSER HEIRS;
STEPHEN MAUSER; BETTY MAUSER
SCIPONE; NADEAN M. YODER; J.C.
FAW; and MELVIN HOWELL, d/b/a
“Club Miami”
     Defendants.


      Appeal by plaintiff from order entered 24 June 2013 by

Judge   Timothy     S.    Kincaid    in   Catawba    County     Superior    Court.

Originally heard in the Court of Appeals 22 May 2014.                     Petition

for Rehearing allowed 31 July 2014.


      Kenison, Dudley & Crawford, LLC, by Thomas E. Dudley, III,
      for plaintiff-appellant.

      Sigmon, Clark, Mackie, Hanvey & Ferrell, P.A., by Stephen
      L. Palmer, for defendants-appellees.


      DAVIS, Judge.


      Century Fire Protection, LLC (“Plaintiff”) appeals from the

trial court’s order awarding attorneys’ fees pursuant to N.C.

Gen. Stat. § 44A-35 to the Curtis Neal Mauser Heirs, Stephen
                                         -2-
Mauser,    and    Betty    Mauser      Scipone    (collectively           “the     Mauser

Defendants”).        On 17 June 2014, this Court filed an opinion

dismissing    Plaintiff’s       appeal    as     having    been       taken      from   an

unappealable interlocutory order, reasoning that the underlying

order     granting    summary       judgment     in     favor        of    the     Mauser

Defendants    did    not     resolve    the    matter     as    to    the     remaining

defendants.       On 18 July 2014, Plaintiff filed a petition for

rehearing pursuant to Rule 31 of the North Carolina Rules of

Appellate Procedure.

     In its petition, Plaintiff argued that the Court had erred

by dismissing the appeal because the order appealed from was, in

fact, a final judgment.           In conjunction with its petition for

rehearing,       Plaintiff    sought     to    supplement       the       record     with

additional documentation showing the resolution of its claims

against Defendants Nadean M. Yoder (“Yoder”), J.C. Faw (“Faw”),

and Melvin Howell d/b/a “Club Miami” (“Howell”).                          Based on our

review of Plaintiff’s petition for rehearing and the exhibits

attached thereto, we are now satisfied that the trial court’s

order granting attorneys’ fees to the Mauser Defendants was not

interlocutory.1       As such, we have granted the petition (1) to

1
  We take this opportunity to remind Plaintiff’s counsel that it
is the appellant’s burden to demonstrate that this Court has
jurisdiction to hear an appeal.     See N.C.R. App. P.28(b)(4).
Where, as here, the order being appealed appears on its face to
be interlocutory because it does not resolve all claims against
                                      -3-
supplement the record; and (2) to rehear this matter for the

purpose of addressing the merits of Plaintiff’s appeal.                     After

careful review, we affirm.

                             Factual Background

       On 27 June 2012, Plaintiff filed a complaint in Catawba

County Superior Court against the Mauser Defendants, Yoder, Faw,

and    Howell    (collectively   “Defendants”).           In    its    complaint,

Plaintiff       alleged   that   it   had      provided    “fire       protection

materials and labor” pursuant to a contract it had entered into

with Faw and Howell, who were acting as agents for the remaining

defendants.       The complaint further alleged that Plaintiff had

“fully performed its obligations under the contract and provided

materials and labor . . . in the amount of $52,525.00” but that

Defendants had “unreasonably refused to pay Plaintiff’s claim.”

In    its   complaint,    Plaintiff   sought    recovery       under   breach   of

contract and quantum meruit theories and sought to enforce its

claim of lien against Defendants’ real property.

       On 3 August 2012, the Mauser Defendants filed an amended

answer and motion to dismiss pursuant to Rule 12(b)(6) of the


all of the named defendants, it is incumbent upon the appellant
to ensure that the record on appeal contains the necessary
documentation to show this Court that no further claims remain
for resolution in the trial court.    As such, the documentation
provided to the Court in conjunction with Plaintiff’s petition
for rehearing should have been included in the original record,
and we admonish counsel for failing to include it.
                                        -4-
North Carolina Rules of Civil Procedure or, in the alternative,

a motion for summary judgment pursuant to Rule 56.                          The Mauser

Defendants’ motion was heard by the Honorable Timothy S. Kincaid

in Catawba County Superior Court on 28 May 2013.                            The trial

court concluded that (1) no agency relationship existed between

the Mauser Defendants and Faw and Howell (who leased property

owned by the Mauser Defendants); and (2) there was no contract

between Plaintiff and the Mauser Defendants.                 Accordingly, on 19

June 2013, the trial court entered an order granting summary

judgment in favor of the Mauser Defendants with respect to all

of Plaintiff’s claims.          The trial court also awarded the Mauser

Defendants $7,860.12 in attorneys’ fees by means of a separate

order   entered   24    June    2013.     With    regard       to    the     remaining

defendants,    (1)     Plaintiff    voluntarily         dismissed       its     claims

against Yoder; (2) the trial court entered a default judgment

against Howell; and (3) Faw filed for Chapter 11 bankruptcy.

Plaintiff     appeals    from     the    24     June    2013        order     awarding

attorneys’ fees to the Mauser Defendants.

                                   Analysis

    Plaintiff’s sole argument on appeal is that the trial court

erred   in   awarding    attorneys’      fees    to    the   Mauser         Defendants

pursuant to N.C. Gen. Stat. § 44A-35.                 In actions arising under

the provisions of Article 2 (addressing claims of lien on real
                                       -5-
property)    or    Article   3    (addressing       payment     and     performance

bonds) of Chapter 44A of the North Carolina General Statutes,

the    presiding     judge   is   authorized        to      award   a      reasonable

attorneys’ fee to the prevailing party “upon a finding that

there was an unreasonable refusal by the losing party to fully

resolve the matter which constituted the basis of the suit or

the basis of the defense.”             N.C. Gen. Stat. § 44A-35 (2013).

“Thus, the statute requires the satisfaction of two elements for

attorneys’ fees to be properly awarded: (1) the party so awarded

must be the prevailing party, and (2) the party being required

to pay attorneys’ fees must have unreasonably refused to resolve

the matter.”       S. Seeding Serv., Inc. v. W.C. English, Inc., ___

N.C. App. ___, ___, 735 S.E.2d 829, 835 (2012).

       On appeal, this Court reviews an award of attorneys’ fees

under N.C. Gen. Stat. § 44A-35 for abuse of discretion.                      Terry’s

Floor Fashions, Inc. v. Crown Gen. Contr’rs, Inc., 184 N.C. App.

1, 17, 645 S.E.2d 810, 820 (2007), aff’d per curiam, 362 N.C.

669,   669   S.E.2d    321   (2008).         “To    demonstrate       an    abuse   of

discretion,    the    appellant    must      show    that    the    trial    court’s

ruling was manifestly unsupported by reason, or could not be the

product of a reasoned decision.”               Id. (citation and quotation

marks omitted).
                              -6-
    In this case, the trial court made the following findings

of fact in its order awarding attorneys’ fees to the Mauser

Defendants:

         1.   The suit brought against the Mauser
         Defendants, and defended by them, was done
         so under Article 2 of Chapter 44A of the
         North Carolina General Statutes.

         2.   The    Mauser   Defendants    are   the
         prevailing party in the suit.

         3.   The Mauser Defendants engaged in no
         actions which could have subjected them to
         liability to the Plaintiff as alleged in the
         Complaint.

         4.   The Plaintiff was advised in writing by
         counsel for the Mauser Defendants of the
         insufficient   basis,   both   legally   and
         factually, under which the Plaintiff sought
         to impose liability against the Mauser
         Defendants.

         5.    After being advised of the insufficient
         legal and factual basis under which the
         Plaintiff sought to impose liability against
         the    Mauser    Defendants   the   Plaintiff
         unreasonably refused to resolve the matter
         which    constituted   the   basis   of   the
         Plaintiff’s complaint.

         6.   The Mauser Defendants are entitled to
         recover their costs incurred in defending
         this suit, including reasonable attorney
         fees under N.C.G.S. § 44A-35, from the
         Plaintiff.

         7.   The Mauser Defendants have incurred
         attorney fees in defending this suit to the
         law firm of Anthony & Brown, P.L.L.C.   The
         court finds that $2,080.12 is a reasonable
         fee for the legal services provided to the
         Mauser  Defendants  by   Anthony  &  Brown,
                                   -7-
         P.L.L.C.

         8.   The   Mauser   Defendants   have   also
         incurred attorney fees in defending this
         suit to the law firm of Sigmon, Clark,
         Mackie, Hanvey and Ferrell, P.A.   The court
         finds that $5,780.00 is a reasonable fee for
         the legal services provided to the Mauser
         Defendants by Sigmon, Clark, Mackie, Hanvey
         and Ferrell, P.A.

    Plaintiff     does   not    dispute    the   fact     that   the    Mauser

Defendants were the prevailing parties in this matter.                 Rather,

Plaintiff argues that awarding attorneys’ fees was inappropriate

because “[t]here is simply no evidence on the record of any

unreasonable conduct by Plaintiff.”        We disagree.

    Plaintiff’s     claims     against    the    Mauser    Defendants     were

premised on its assertions that (1) Faw and Howell were agents

of the Mauser Defendants; and (2) Faw and Howell entered into

the contract with Plaintiff “with the express consent of [the

Mauser Defendants].”      In their responsive pleading filed on 3

August 2012, the Mauser Defendants asserted that (1) they had

never given Faw or Howell consent to contract with Plaintiff on

their behalf; (2) Faw and Howell were not authorized to act as

agents for the Mauser Defendants; (3) the Mauser Defendants had

not entered into any express or implied contract with Plaintiff;

and (4) “[t]here is no evidence, nor does Plaintiff allege even

an iota of evidence” that supports its allegations of either an

agency relationship or consent by the Mauser Defendants for Faw
                                     -8-
or Howell to contract with Plaintiff.

    In a letter dated 4 April 2013, counsel for the Mauser

Defendants reiterated to Plaintiff’s counsel that the allegation

of an agency relationship between the Mauser Defendants and Faw

or Howell was factually baseless and requested that Plaintiff

dismiss its claims against the Mauser Defendants since each of

those claims was premised on the existence of such an agency

relationship.       Finally, on 9 May 2013, the Mauser Defendants’

counsel    served    Plaintiff     with    affidavits   from   the    Mauser

Defendants which asserted that (1) Faw and Howell entered into

the contract for improvements to the property without the Mauser

Defendants’ consent or knowledge; and (2) the Mauser Defendants

had never authorized Faw or Howell “to act as their agent in any

regard, and in particular, with respect to contracting for the

improvements provided for in the Contract.”

    Plaintiff nevertheless proceeded with its claims and, at

the 28 May 2013 hearing, failed to present any evidence refuting

the facts attested to in the affidavits.                Consequently,     the

trial court concluded that there was “nothing to show” that an

agency relationship existed or that the Mauser Defendants were

liable to Plaintiff under any theory.

    As such, given Plaintiff’s decision to go forward with its

claims    against   the   Mauser   Defendants    despite   being     informed
                                   -9-
multiple times that its claims against them were baseless and

despite their inability to offer evidence in support of these

claims,   we   cannot   conclude   that   the   trial   court   abused   its

discretion by determining that Plaintiff’s refusal to resolve

these claims was unreasonable.2

                               Conclusion

     For the reasons stated above, we affirm the trial court’s

24 June 2013 order.

     AFFIRMED.

     Judges HUNTER, JR. and ERVIN concur.

     Report per Rule 30(e).




2
  Plaintiff argues, in the alternative, that if an award of
attorneys’ fees was appropriate, the award should be limited to
fees incurred after 9 May 2013 — the date the Mauser Defendants
filed their motion seeking attorneys’ fees. Plaintiff cites no
legal authority for the proposition that an award of attorneys’
fees pursuant to N.C. Gen. Stat. § 44A-35 must be limited in
this manner.   See Moss Creek Homeowners Ass’n v. Bissette, 202
N.C. App. 222, 233, 689 S.E.2d 180, 187 (declining to address
argument concerning propriety of trial court’s award of
attorneys’ fees where appellants failed to cite any legal
authority in support of their position), disc. review denied,
364 N.C. 242, 698 S.E.2d 402 (2010). Moreover, we note that the
Mauser   Defendants  originally   included  their  request  for
attorneys’ fees under N.C. Gen. Stat. § 44A-35 in their answer
to Plaintiff’s complaint.       Accordingly, this argument is
overruled.
