The opinion
An unpublished opinion of the North Carolina Court of Appeals does not constitute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
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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
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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.
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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
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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).
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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,
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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
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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
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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.