US Piping, Inc. v. Travelers Indemnity Company , 9 N.C. App. 561 ( 1970 )

176 S.E.2d 835 (1970)

U. S. PIPING, INC.
v.
The TRAVELERS INDEMNITY COMPANY.

No. 7010DC497.

Court of Appeals of North Carolina.

October 21, 1970.

Bailey, Dixon, Wooten & McDonald, by Wright T. Dixon, Jr., and John N. Fountain, Raleigh, for plaintiff appellee.

Willis Smith, Jr., Smith, Leach, Anderson & Dorsett, Raleigh, for defendant appellant.

CAMPBELL, Judge.

This appeal presents two questions: (1) Was there error in awarding attorney's fees? (2) Was there error in awarding judgment in favor of the plaintiff for $712.00?

Ordinarily, attorney's fees are not recoverable as an item of damages or part of the costs in litigation. Perkins v. American Mutual Fire Ins. Co., 4 N.C.App. 466, 167 S.E.2d 93 (1969). The Legislature has enacted an exception to this general rule and allows the trial judge to award attorney's fees in certain situations. G.S. § 6-21.1 provides:

"Allowance of counsel fees as part of costs in certain cases.—In any personal injury or property damage suit, or suit against an insurance company under a policy issued by the defendant insurance company and in which the insured or beneficiary is the plaintiff, upon a finding by the court that there was an unwarranted refusal by the defendant insurance company to pay the claim which constitutes the basis of such suit, instituted in a court of record, where the judgment for recovery of damages is two thousand dollars ($2,000.00) 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."

This statute provides for three instances in which attorney's fees may be awarded: A personal injury suit, a property damage suit, or a suit against an insurance company where the insured or beneficiary is the plaintiff. This action is clearly not a personal injury suit, and therefore, to award attorney's fees, one of the two latter categories would have to apply. While this action originally started as a property damage suit, it no longer falls within that category. The suit by plaintiff against Moore in which plaintiff recovered a judgment was a property damage suit. Here plaintiff seeks to hold the defendant liable for the judgment obtained against Moore. This suit is based upon the contract of insurance which Moore had with the defendant and as such is not a property damage suit.

The final category in which attorney's fees may be awarded under the statute is "suit against an insurance company under a policy issued by the defendant insurance company and in which the insured or beneficiary is the plaintiff, upon a finding by the court that there was an unwarranted refusal by the defendant insurance company to pay the claim which constitutes the basis of such suit." In the instant case there was no finding by the trial court "that there was an unwarranted refusal by the defendant insurance company to pay the claim which constitutes the basis of such suit." Where the statute requires that the trial judge make certain findings of fact before making a discretionary ruling, failure to make the required findings negates the effect of the discretionary ruling. Blake v. Blake, 6 N.C.App. 410, 170 S.E.2d 87 (1969); Rogers v. Rogers, 2 N.C.App. 668, 163 S.E.2d 645 (1968). Since there was no proper finding by the trial court in the present case to sustain an award of attorney's fees, it is not necessary to decide, and we do not decide in this case, whether plaintiff qualifies as a "beneficiary" within the meaning of the statute.

With regard to the second question presented by this appeal, the trial court found sufficient facts to support the award of a judgment against the defendant in the amount of $712.00. Where a jury trial is waived, the court's findings of fact are conclusive if supported by any competent evidence, and a judgment supported by such findings will be affirmed. 1 Strong, N.C. Index 2d, Appeal and Error, § 57, p. 223; York Industrial Center, Inc. v. Michigan Mutual Liability Co., 271 N.C. 158, 155 S.E.2d 501 (1967). We have examined the record and are of the opinion that the evidence is sufficient to support the findings of fact and that the findings of fact support the conclusions of law.

For the reasons stated above the judgment of the trial court is reversed insofar as it awards attorney's fees in the present action and is affirmed insofar as it awards judgment in favor of the plaintiff in the amount of $712.00, plus interest and costs as rendered in previous action.

Reversed in part.

Affirmed in part.

BRITT and VAUGHN, JJ., concur.