Ocracomax, LLC v. Davis , 256 N.C. App. 496 ( 2017 )

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,
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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.
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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
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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.
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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.
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