              IN THE COURT OF APPEALS OF NORTH CAROLINA

                                   No. COA17-608

                              Filed: 21 November 2017

Hyde County, No. 15 CVS 16

OCRACOMAX, LLC, Plaintiff,

             v.

CHRISTOPHER M. DAVIS and wife, JENNIFER L. DAVIS; OCRACOKE
HORIZONS UNIT OWNERS ASSOCIATION, INC., Defendants.


      Appeal by Defendants from order entered 12 October 2016 and order entered

2 February 2017 by Judge Wayland J. Sermons, Jr., in Hyde County Superior Court.

Heard in the Court of Appeals 16 October 2017.


      Hornthal, Riley, Ellis & Maland, LLP, by L. Phillip Hornthal, III, for the
      Plaintiff-Appellee.

      Nexsen Pruet PLLC, by Norman W. Shearin, for the Defendants-Appellants.


      DILLON, Judge.


      Christopher M. Davis and Jennifer L. Davis (the “Davis Defendants”) appeal

the trial court’s order dismissing their appeal from a decision on the Ocracomax, LLC,

(“Plaintiff”) Motion for Costs in the underlying action. The Davis Defendants argue

that their appeal was meritorious, in that the order granting trial costs to Plaintiff

(1) improperly assigned said costs to them alone, and not to all the defendants; and

(2) included costs incurred by Plaintiff in a prior appeal. After careful review, we

affirm.
                                 OCRACOMAX V. DAVIS

                                   Opinion of the Court



                                     I. Background

      Plaintiff and the Davis Defendants are each residents of a condominium

complex overseen by Defendant Ocracoke Horizons Unit Owners Association, Inc.

(the “HOA Defendant”). In February 2015, Plaintiff filed the underlying action

against all Defendants, seeking a declaratory judgment stating its right to a parking

space in a shared garage. After considering the briefs and pleadings, the trial court

issued an order granting Plaintiff’s Motion for Judgment on the Pleadings and taxing

costs to Defendants (the “Judgment”), which our Court later affirmed in a prior

appeal in this matter.

      Plaintiff filed a Motion to Determine Costs. The trial court entered an order

determining Plaintiff’s costs in the underlying action (the “Costs Order”). In the

Costs Order, the trial court taxed all of Plaintiff’s fees throughout trial and the first

appeal to the Davis Defendants alone.

      The Davis Defendants filed a Petition for Writ of Certiorari, requesting that

our Court review the Costs Order. We allowed Defendant’s petition, and now consider

their appeal.

                                      II. Analysis

      The Davis Defendants challenge the costs assigned by the trial court in two

respects: First, the Davis Defendants argue that the trial court erred in taxing costs

and attorney’s fees against them, but not against the HOA Defendant. Second,



                                          -2-
                                 OCRACOMAX V. DAVIS

                                   Opinion of the Court



Defendants allege that the trial court improperly included attorney’s fees incurred on

appeal in its award to Plaintiff. We address each argument in turn.

      A trial court’s grant of attorney’s fees, supported by statutory authority, will

not be overturned absent an abuse of discretion. Buford v. Gen. Motors Corp., 339

N.C. 396, 406, 451 S.E.2d 293, 298 (1994). We review the trial court’s decision only

to determine if its “ruling was manifestly unsupported by reason and could not have

been the result of a reasoned decision.” Old Republic Nat'l Title Ins. Co. v. Hartford

Fire Ins. Co., ___ N.C. ___, ___, 797 S.E.2d 264, 269 (2017).

      The Davis Defendants contend that the trial court abused its discretion by

taxing costs and attorney’s fees solely against the Davis Defendants, because the Cost

Order was contradictory to the “law of the case” established in the first appeal, where

we affirmed the trial court’s order granting Plaintiff judgment on the pleadings,

including costs, against all Defendants. See N.C. Nat’l Bank v. Va. Carolina Builders,

307 N.C. 563, 566, 299 S.E.2d 629, 631 (1983) (“Once an appellate court has ruled on

a question, that decision becomes the law of the case and governs the question not

only on remand at trial, but on a subsequent appeal of the same case.”). Specifically,

the Judgment, which we affirmed in the first appeal, included a decree that “[c]osts

are taxed to the defendants.” The Davis Defendants read this decree to mean that

costs are to be taxed against all the Defendants. We disagree.




                                          -3-
                                OCRACOMAX V. DAVIS

                                  Opinion of the Court



      The Judgment dealt at length with the merits of the underlying case. The

Judgment established Plaintiff’s rights in the condominium property, and spoke to

the assignment of fees and costs only insofar as costs were to be “taxed to the

defendants.” We do not find the language of the Judgment, which did not determine

the amount of costs, to be conclusive on how the costs were to be allocated among the

defendants. We are unpersuaded by Plaintiff’s argument that the language in the

Judgment amounts to the law of the case which determined how the costs were to be

allocated. Further, it is clear from the procedural history of this case that the issue

of fees and costs was not conclusively decided until the Costs Order. The Judgment

determined the rights of the parties, while the Costs Order thoroughly set out the

amount of the costs awarded and each defendant’s obligations with regard to the

award.

      The Davis Defendants also contend that the trial court lacked the statutory

authority necessary to grant attorney’s fees which Plaintiff incurred in the first

appeal. Specifically, the Davis Defendants argue that N.C. Gen. Stat. § 47C-4-117,

the statute under which the trial court awarded attorney’s fees, should have been

construed strictly to allow an award of attorney’s fees generated only from trial

proceedings. We disagree.

      It is true that courts may not award attorney’s fees (and costs) without

statutory authority to do so, Hicks v. Albertson, 284 N.C. 236, 238, 200 S.E.2d 40, 42



                                         -4-
                                 OCRACOMAX V. DAVIS

                                   Opinion of the Court



(1973), and that such authority is generally to be construed strictly according to its

express terms. Sunamerica Fin. Corp. v. Bonham, 328 N.C. 254, 257, 400 S.E.2d 435,

437 (1991). However, when the ability to grant attorney’s fees is assigned in a non-

remedial spirit, fees and costs may be granted from “all stages of litigation, including

on appeal.” McKinnon v. CV Indus., Inc., 228 N.C. App. 190, 199, 745 S.E.2d 343,

350 (2013) (holding that unlike attorney’s fees awarded under N.C. Gen. Stat. § 6-

21.5 (2013), the grant of attorney’s fees under N.C. Gen. Stat. § 75-16.1 (2013) is “not

confined solely to the trial level”); see United Labs., Inc. v. Kuykendall, 335 N.C. 183,

192, 437 S.E.2d 374, 380 (1993) (explaining the purpose of a chapter-specific

attorney’s fee statute as to encourage private enforcement, rather than simply

punitive). This Court has previously held that N.C. Gen. Stat. § 47C-4-117 is a

specific grant of authority to award attorney’s fees in condominium association cases,

which supersedes more general attorney’s fee statutes. Brockwood Unit Ownership

Ass'n v. Delon, 124 N.C. App. 446, 448-49, 477 S.E.2d 225, 226 (1996).

      We now hold that N.C. Gen. Stat. § 47C-4-117 is a non-remedial grant to award

attorney’s fees, and may thereby be construed broadly to allow an award including

fees incurred on appeal.     Chapter 47C of the North Carolina General Statutes

contains the North Carolina Condominium Act, including a specific grant of authority

to award attorney’s fees in actions under the Chapter.




                                          -5-
                                 OCRACOMAX V. DAVIS

                                   Opinion of the Court



      We recognize the Davis Defendants’ argument in their brief that the language

of N.C. Gen. Stat. § 47C-4-117 does not expressly grant the authority to grant fees

incurred on appeal. However, we need not construe this statute so strictly. The

statute vests a cause of action in any person, or class of person, adversely affected by

a condominium association’s failure to comply with any provision of either Chapter

47 of the North Carolina General Statutes, or of the association’s bylaws. N.C. Gen.

Stat. § 47C-4-117 (2015). In order to promote actions by private actors under this

cause of action, the statute further grants authority to the reviewing court to grant

reasonable attorney’s fees to a prevailing party. Id. It is clear from the position of

N.C. Gen. Stat. § 47C-4-117 within Chapter 47C, and the granting language as a

whole, that the statute was designed to convey the ability to prosecute an action

notwithstanding the threat of overbearing fees, whether at the trial level or the

appellate level.

      We find no error in the trial court’s Costs Order, as it acted within its sound

discretion to determine the amount of attorney’s fees and costs and tax them against

the Davis Defendants, and we thereby affirm.

      AFFIRMED.

      Chief Judge MCGEE and Judge ELMORE concur.




                                          -6-
