Bass v. Goss

412 S.E.2d 145 (1992) 105 N.C. App. 242

Alesia BASS, Plaintiff,
v.
George GOSS, Defendant.

No. 9114SC279.

Court of Appeals of North Carolina.

January 21, 1992.

Robert T. Perry, Durham, for plaintiff, appellant.

Reynolds, Bryant, Patterson & Covington, P.A. by Joseph B. Chambliss, Jr., Durham, for defendant, appellee.

HEDRICK, Chief Judge.

G.S. 6-21.1 provides in pertinent part:

In any personal injury or property damage suit, ... instituted in a court of record, where the judgment for recovery of damages is ten thousand dollars ($10,000) 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 fees to be taxed as a part of the court costs.

Judge Brannon's order denying plaintiff's motion for attorney's fees "pending remand to the Arbitrator for a further determination" was error. G.S. 6-21.1 requires the judge upon motion made to award attorney's fees as a part of the costs.

The action of the arbitrator after the case was remanded by order dated 13 December 1990 was a nullity in as much as plaintiff had given timely notice of appeal to this Court prior to the arbitrator's ruling on 8 February 1991.

While Judge Brannon's order entered 13 December 1990 is not clear as to whether plaintiff's motion for attorney's fees was denied or merely denied pending remand to the arbitrator, the appeal raises the question of whether the judge should award attorney's fees in this type of case as part of the costs. We hold the judge has discretion whether to and in what amount to award attorney's fees in this type of case.

In so far as Judge Brannon's order denied the motion, it is reversed, and the cause is remanded to the Superior Court for entry of an order in accordance with G.S. 6-21.1.

Reversed and remanded.

WELLS and JOHNSON, JJ., concur.