*1 CASES Argued and Determined
COURT OF APPEALS
OF North Carolina
at Raleigh CENTER, LEE CENTER, INC. D/B/A WILSON CYCLE AND LEE MOTOR COMPANY,INC., CENTER, INC., v. WILSON CYCLE D/B/A CAROLINA MOTORSPORTS, ELLIS, ELLIS, L. MARK DANIEL AND CAROLINA MOTOR WILSON, INC., SPORTS OF
No. COA00-382 (Filed 2001) 17 April Pleadings— 1. amending complaint to include additional n plaintiff to dismiss —breach of contract —motion court did not abuse its in a discretion breach of
contract action allowing plaintiff Lee to amend its complaint plaintiff include Lee Motor as a denying defendants’ motion to claim, dismiss for failure to state plaintiff’s (1) initially because: failure to name Lee Motor as a plaintiff subject did not in a jurisdiction; result lack of matter - plaintiffs (2) were bring of contract they sufficiently
action alleged they since have privity were contract with defendants.
2. findings Contracts— fact —conclusions law breach —
The trial court err did not in breach of contract action findings its of fact and conclusions law that defendants breached the and damaged plaintiffs, (1) because: defendants continued to use the name “Wilson Center” in agreement; (2) violation defendants continued advertise they motorcycles sold and watercraft in their store in vio- agreement; plaintiffs lation of the defendants led IN THE COURT CTR., INC. INC. v. WILSON CYCLE
[143 they pre-sold watercraft to one cus- delivering were believe it a new for later sold to customer when defendants instead tomer they indicated the first cus- approximately over what paying. tomer would be notwithstanding judgment breach — motion for
3. Contracts— sufficiency of evidence the verdict — by action not in a breach of contract
The trial court did err notwithstanding the judgment denying defendants’ motion that: verdict, plaintiffs presented substantial evidence because and defend- plaintiff Lee Motor (1) a contract existed between Cycle sue on this contract ants, plaintiff Lee and by privity; defendants breached the based on and Cycle Center,” by advertising the sale of name “Wilson using the area, by motorcycles prohibited and watercraft within the agreement. breaching the verbal sufficiency for new
4. Contracts— breach —motion trial — evidence its in a did not abuse discretion
The trial court denying for a new trial defendants’ motion contract action plain- law not errors of the trial court did commit when presented evidence that defendants breached tiffs substantial agreement. attorney of contract action — no
5. Costs— fees — breach statutory basis by award- in a breach of contract action
The trial court erred attorney though even drafted con- ing plaintiffs fees agreement providing breaching that the provision in tractual party pay attorney their party non-breaching in the event the fees express agreement, there no brings to enforce the because suit attorney statutory authority permitting the award of contract cases. breach of Tyson part part. concurring dissenting
Judge September judgment Appeal defendants from dated County Superior E. III in Court. Heard Judge Ragan, James Wilson January Appeals 2001. the Court of
IN THE COURT OF APPEALS INC. v. WILSON CYCLE Farris, P.A., by Farris, Farris and Robert A. Jr. F. and Caroline Quinn, plaintiff-appellees. & Holdford, P.A., by Ivey,
Narron I. Joe for defendant- appellants. GREENE,Judge. Cycle Center, (Wilson Cycle), Inc. d/b/a Carolina
Motorsports, Motorsports Wilson, (collectively, Carolina Inc. appeal Defendants) a judgment September awarding dated 27 damages Center, Inc., to Lee (Lee Cycle) d/b/a Wilson *3 (WCC), Company, Center and Lee Motor (Lee Motor) (collec- Inc. tively, Plaintiffs).1 Cycle complaint
Lee a against filed alleging Defendants purchase agreement Defendants breached an October 1994 asset Cycle (the agreement). between Defendants and Lee Defendants filed Cycle’s an answer denying allegations, however, most of Lee admit- ting agreement Cycle. it had entered into the with Lee On 19 March . Cycle Lee complaint filed motion to amend its to allow Lee Motor to intervene the action. On 23 March Defendants complaint pursuant filed a motion to dismiss Plaintiffs Gen. 1A-1, Stat. Rules 12(b)(1) 12(b)(6). court, however, § and The trial Cycle complaint allowed Lee to amend its and denied Defendants’ motions, thirty allowing days responsive pleadings. to file Cycle complaint adding Lee amended its plaintiff Lee Motor as a and F. alleged: (Lee) president further John Lee is the and sole share- of Plaintiffs; promissory holder Lee signed agreement and on note Cycle; Cycle performed behalf of Lee and Lee all the obligations Defendants and received all the from benefits Defendants. non-jury trial,
In a presented evidence that in October 1994, Lee, Motor, agreement on behalf Lee into with entered Cycle. Wilson Lee testified the on agreement was entered into behalf Cycle incorporated of Lee Motor because Lee not at the time of provided The agreement. agreement pay Lee Motor would $187,500.00“plus motorcycle[,] ATV[,]personal the cost of new watercraft[,] generator inventory” Yamaha and lawnmower to Wilson Cycle for: (M. against Ellis) 1. We note Plaintiffs also filed suit Mark L. Ellis Daniel Ellis
(D. Ellis), individually, however, court dismissed Plaintiffs’ action as to M. Ellis D. Ellis. APPEALS IN THE COURT OF CTK., INC. WILSON or similar name, “Wilson Center” The trade (a) thereof; and sounding derivative (Hereinafter motorcycles; “all terrain vehicles”
(b) All new and lawnmow- watercraft; generators “ATVs”):personal Yamaha herein; any noncur- parts, as defined ers; all new accessories inventory (any used accessories, as defined herein parts and rent Agreement); under this specifically excluded watercraft, ATV[]s,new Any motorcycles, personal (d) used parties .... upon mopeds agreed between or used Cycle, along with M.Ellis and agreed that Wilson further Ellis, not D. would control, employed
directly indirectly operate, be own, manage, motorcy- with, any manner, any new or be connected thirty-five personal dealer within watercraft sales cle or new Cycle’s]prin- present location (35) mile radius [Wilson period years. place of five cipal of business for of the purported “bind and inure to the benefit agreement also heirs, assigns.” The respective . successors and parties . . and their provision parties also included *4 costs, party pay attorney[’]s[] “all fees or breaching obligating the any arising brought or action to enforce expenses out of suit other any agreement. under the rights conferred” On January 1995, agreement. finalized the behalf
In the payment agreement on the Cycle, a as down Lee Lee executed check signed promissory (the a note $80,290.73 amount of be note) remaining agreement debt on the to promissory for the owed February sixty monthly beginning 1996.On paid installments concerning Defendants’ Defendants March Plaintiffs contacted Cycle printed it Center” on display sign with the name “Wilson products for sale. After “several sign advertising Yamaha the “[sjeveral repeated requests,” Defendants removed months” and products. advertising Yamaha sign orders May 1995, Plaintiffs about certain
In Defendants contacted in which Defendants prior agreement made to the Defendants personal prior receiving the deposits watercraft had taken on And, made personal from Sea-Doo. watercraft [Plaintiffs] IN THE COURT INC. WILSON CYCLE (the agreement), verbal that [Defendants] they bring deposits could their customers that had
[Defendants] from to store and the would deliver units [Plaintiffs] [Plaintiffs’] But, for them. profits would the get from sale [Defendants] presold because had units. [Defendants] out, . . . get
As it turned would come and [Defendants] customers, units bringing without and for whatever various reasons, the per- customer was never available get to come sonal watercraft when And, would come and it. get [Defendants] [Plaintiffs], in good faith, agreed carry to let [Defendants] personal deposits on, watercrafts had assuming [Defendants] that selling were people to the [Defendants] [the watercrafts] deposits had told had [Defendants] [Plaintiffs] [Defendants] from. particular told being were watercraft was sold to Richard fact, (Hurst), watercraft,
Hurst and in the same with the same vehicle number, Jerry Temple identification was sold to (Temple) in Wilson 4on June 1995. Temple Defendants sold the watercraft they selling after Plaintiffs believed were it to Hurst for $4,666.50. also Defendants continued to use the trade name “Wilson receipts, on envelopes, Center” business billing statements as late as June 1995. 7 August 1995, officially On changed Defendants corporate Center, name Wilson Inc. Carolina Motorsports Wilson, Inc.
In or about March opened a Carolina Motorsports Kinston, geographic boundary located outside agreement, selling motorcycles, per- established in the new and used watercraft, ATVs, boats, sonal and other recreational vehicles. Defendants, however, Motorsports continued advertise Carolina buying motorcycles, selling without making dis- motorcycles tinction as to whether the were new or used. February 1997, (Stutzman) Plaintiffs hired Ed Stutzman purchase Motorsports
Invisible Audit to make a from Carolina *5 Motorsports Wilson, Wilson. Stutzman went to Carolina “less than two miles from Stutzman M. asked Ellis if Defendants had [WCC].” any “new for sale” and M. Ellis informed him that Yamaha[]s a Defendants “had new one in the which was sent being back Kinston store.” M. Ellis showed Stutzman a Yamaha [their] Tlmberwolf terrain running all vehicle and told he was Stutzman special $3,750.00. gave deposit on it for M. and Stutzman Ellis M. IN THE COURT INC. v. WILSON CYCLE CTR.,
LEE deliver the vehicle to that he would have to informed Stutzman Ellis Motorsports Wilson had because Carolina in Greenville Stutzman paper (new) the Timberwolf out,” and, thus, “the work for “sold up M. Ellis wrote the Kinston store.” have to be written at would deposit “proceeded out the receipt and to cross for the Stutzman a receipt phone top of the which name, and number at address 4445, 237-7076, Wilson, NC Cycle Center, Inc., Box P.O. ‘Wilson read[] stamped M. Ellis “then in red permanent black marker.” 27893’with a phone name, address and num- Motorsports’ under the ink ‘Carolina in black ink to the He then wrote Kinston he had crossed out. ber stamp.” day, Motorsports Later that Stutzman right of the Carolina Motorsports paid rest of in Wilson and back to Carolina went receipt M. wrote Stutzman a price for Timberwolf. Ellis purchase telephone name, address, and again through marked business and Motorsports Ellis, M. Kinston, NC.” wrote in “Carolina number and delivery take of the vehicle at however, he could not told Stutzman delivery of the Stutzman take the Wilson store instead allowed Motorsports in A Wilson. week Timberwolf 17.4 miles from Carolina training certificate from later, received an invoice Stutzman Kinston Defendants’ store. the close of all the evi-
At the of Plaintiffs’ evidence and close dence, 12(b)(6) alleging motion their Defendants renewed subject standing action on lack of failed to state a cause of based The jurisdiction verdict. trial and made motions directed matter September Plaintiffs’ Defendants’ motions. On court denied expended attorney he stating an affidavit had about submitted expertise “[bjased time, effort and on case and on hours this matter, it that a fee in required belief in connection [his] reasonable, plus fair and costs.” amount of would be found as fact: court . Agree- . . into the Purchase that Plaintiff Lee Motor entered . . . . was and is the ben- ; . . . that. . Lee ment with [WCC] Promissory supporting Note eficiary Obligor of the [the] [agreement.... [agreement,
. . . . . entered . to the addition [I]n whereby to deliver into verbal Plaintiff[s] [were] [the] personal pre-sold Sea Doo water craft certain Defendants] did in to consúmate said sales allow Plaintiff[s] Defendants] number bearing a 1995 Sea Doo serial fact deliver to Defendants] *6 IN THE COURT OF APPEALS CTR., INC. v. WILSON CYCLE CTR., INC. (2001)]
[143 May 6, about . . . Hurst; ZZNA4015L495on or for sale to but Defendants], Temple instead sold to . . . that. said vehicle on or profit about June $1,000.00; at and that Fifth, have . . . agreement Defendants further breached the with Plaintiffs as follows:
(a) continue to Defendants use the name “Wilson Center”; competed
(b) Defendants with violation of the Plaintiff[s] compete, particularly covenant not maintaining a business thirty-five within (35) miles of Defendants location on Highway Wilson, Carolina, was, 301 North of North which for purposes all intents and extension the Kinston location of the .... business
(1) parts kept were store; New and sold in the Wilson motorcycle (2) A (Big Dog) new was delivered to the kept premises; Wilson store and on products
(3) Other Yamaha (ATV[s])were sold from the location; (4) newspaper store; Radio and ads advertise the Wilson operated Both the Kinston and Wilson locations were corporate name; under the same and that Sixth, finds fact are not [the court] a[s] ATV[]s “motorcycle[,]”[] only within the definition of and the included] advertising which agreement violated the between the ads the Wilson market which advertised the Wilson [were] sight product store as a for sales of either new or ads which did product not designate whether used .... new or The trial court as a concluded matter of law that Defendants had $10.00 agreement breached Plaintiffs and awarded Plaintiffs damages $22,575.00 as agree- fees for of the ment. The trial concluded court also Defendants breached the verbal compensatory awarded Plaintiffs dam- ages for verbal agreement. breach of the moved for judgment notwithstanding the verdict and a new trial. The trial court, however, denied Defendants’ motions. IN THE COURT
LEE INC. WILSON CYCLE *7 in (I) whether: the trial court abused its discretion The issues are Cycle (II) permitting complaint; to its the trial court erred Lee amend agreement; (III) trial concluding Defendants breached the denying judgment notwith- court erred in Defendants’ motion verdict; denying in Defendants’ standing (IV) the trial court erred statutory trial; a there a basis for the trial (V) motion for new was award to Plaintiffs. court’s of
I [1] argue the trial court erred allowing Lee Cycle plaintiff. support Lee as a In of complaint amend its to include Motor Cycle’s initially failure to argument, (A) this Defendants contend: Lee subject plaintiff Lee as a resulted in the lack of matter name Motor jurisdiction Cycle bring was a of (B) Lee not breach privity action was not of contract contract because Lee disagree. We Defendants.
A Subject jurisdiction matter plaintiff’s join party a This has held that a failure to does Court subject jurisdiction proceeding.” of result in “a lack of over the matter not App. Inc., 81 Refrigeration, cil v. Bruce Stancil N.C. Stan 567, 573, 789, 793, denied, 418, 318 N.C. 349 344 S.E.2d disc. review request plaintiff permitted A to amend a com (1986). S.E.2d 601 plaint 530, 533-34, party, Rice, to add a v. 75 N.C. 331 Goodrich plaintiff’s 195, a trial on the (1985), ruling S.E.2d 197 court’s complaint appeal, will to amend its not be disturbed on absent motion discretion, App. 387, 402, Sloan, of v. 137 529 abuse Walker case, despite Cycle’s (2000). S.E.2d 247 In this Lee failure subject juris plaintiff, Lee a the trial had matter name Motor as court over action. abused its dis diction We cannot hold the court complaint and Lee permitting cretion Lee to amend its add plaintiff. as a Motor
B Privity contract of a failure a claim in a To withstand motion to dismiss for to state action, plaintiff’s allegations a must either show it contract privity contract, beneficiary or it is a direct contract. Jones, 146 (1917). Chandler v. 173 N.C. S.E. See “ Privity on, or has defined as ‘a interest founded been [derivative IN THE COURT OF APPEALS INC. v. WILSON CYCLE of, contract, growing connection, par out bond of union between ” ties; mutuality Murray Co., interest.’ Nationwide Mutual Ins. App. 1, 15, 123 N.C. 472 S.E.2d 366 (1996) (quoting Law Black’s Dictionary (6th 1990)), ed. disc. review 345 N.C. plaintiff beneficiary S.E.2d If anis intended to a con
tract, implies law privity Id. contract. case, viewing allegations light Plaintiffs’ most favor Plaintiffs,
able to Corp., see Ford v. Peaches Entertainment App. 155, 156, (1986) (in on a ruling motion to dis upon miss failure may to state claim which granted, relief be trial court must alleged determine “whether the facts com plaint, light plaintiffs, when viewed in the give most favorable to the *8 rise to a theory”), claim for relief on disc. review N.C. 318 694, sufficiently 746 (1987), S.E.2d Plaintiffs have alleged privity complaint alleges contract: Plaintiffs’ Lee and Lee Motor are by Lee, owned the same shareholder; president sole of Lee and Motor, signed agreement Lee promissory note; and executed the Cycle performed obligations and Lee all agreement of the received all the benefits from allegations the seller. These suffi are cient to on, of, establish “a derivative interest or growing founded out contract, connection, parties.” bond of union betwéen the Accordingly, properly the trial court denied Defendants’ motion dismiss for failure to state claim.
II [2] Defendants argue the trial court’s findings fact are not supported support the evidence and do not the conclusions lawof agreement damaged that Defendants breached Plaintiffs. We disagree.
Appellate findings review of of fact “made a trial with- judge, jury, out a is . . . competent limited to whether there is evidence to support findings Starco, Bonding of fact.” Inc. v. AMG and Ins. 332,
Services,
A trial
(1996).
law, however,
court’s conclusions of
axe reviewable de novo on
appeal.
at
Id.
jury Potts to be competent support the trial case, evidence In this there is both the findings of fact Defendants breached court’s presented at trial shows: Defendants agreement. Evidence the verbal Cycle Center”; con- Defendants use the name “Wilson continued to they motorcycles and watercraft in their sold tinued to advertise they were deliv- store; and led Plaintiffs believe Defendants pre-sold to Hurst when Defendants Sea Doo watercraft ering approximately over what Temple instead later sold it they $1,000.00in dam- paying. Accordingly, would be indicated Hurst they position have puts would ages to Plaintiffs addition, the agreement not been breached. In been in had the verbal $10.00 in nominal dam- awarding Plaintiffs trial court did not err findings of facts establish Defendants breached ages. The trial court’s damages, thus, were entitled to some agreement, injury as a result of the breach. despite obtaining substantial not compe- supported by Therefore, findings of fact are the trial court’s of law. support the trial court’s conclusions tent evidence Ill [3] next argue the trial court erred denying notwithstanding judgment the verdict. We Defendants’ motion disagree. *9 contract, plain- prevail a for breach of a on claim order par- the show a valid contract existed between
tiff’s evidence must ties, contract, the terms the the facts con- the defendant breached of Claggett damages from the stituting breach, and resulted breach. the S.E.2d. University, App. 126 N.C. v. Wake Forest 446 (1997). case, viewing light most favorable to
In this the evidence Price, 523, 527, 408, 411 Plaintiffs, v. 315 N.C. 340 S.E.2d see Smith notwithstanding verdict, the evi- (on judgment motion for a light non-moving favorable to the be viewed in the most dence must every produced support substantial evidence to ele- party), Plaintiffs claim, Reitter, App. v. 105N.C. a breach contract see Cobb ment of party 218, 220, (1992) (moving judg- entitled to 412 S.E.2d only non-moving party if is notwithstanding the verdict ment elements of its claim produce substantial evidence unable relief). Plaintiffs a contract existed between Lee established IN THE COURT OF APPEALS v. LEE INC. WILSON CYCLE opinion
Motor and Defendants we have stated Part I of this that Lee to sue Furthermore, on this contract. agreement by evidence existed using Defendants breached the name Center,” motorcycles “Wilson advertising the sale of within prohibited area, by breaching watercraft the ver- bal agreement. this Accordingly, evidence substantial evidence Defendants breached the agreement (substan- with Plaintiffs. See id.
tial support evidence is evidence a might accept reasonable mind court, conclusion). therefore, The trial denying did not err in judgment notwithstanding Defendants’ motion for the verdict.
IV [4] Defendants next argue the trial court erred in denying their motion for a new trial. disagree. ruling We trial court’s on a motion a new trial is within the trial court’s sound discretion appeal and will not be showing reversed on absent a errors that law occurred at trial or ruling court’s amounted to a sub justice. miscarriage Beddingfield, stantial Allen 118 N.C.
100, 101-02,
287, 289,
disc. review
340 N.C.
parts
V [5] finally argue trial court erred in awarding statutory fees without a basis for such an award. agree. We
It is well established in this State that of a the face care “[e]ven fully provision indemnifying party drafted contractual for such may attomey[’]s[] fees as be necessitated successful action on itself, consistently the contract our have courts refused to sustain statutory authority such an award absent therefor.” Stillwell Enterprises, Equipment Co., Inc. v. Interstate *10 812,
S.E.2d (1980);2 814-15 Delta N.C. see Env. Consultants v. Wysong Co., App. 160, 167, 690, 695, &Miles 132N.C. 510 S.E.2d disc. Supreme exception general rule, permitting 2. Our Court has carved out an to this attorney’s provisions separation agreements. the enforcement of in fees contained Stott, 702, 704, 219, (1995). Bromhal v. 341 N.C. 462 S.E.2d 221 THE 12 IN COURT INC. v. WILSON CYCLE App. N.C. 1 appeal N.C. 536 70 dismissed, 350 S.E.2d
review denied and attorney’s fees as costs (successful litigant cannot recover (1999) case, award). In express statutory for such absent an basis the despite provision agreement providing a contractual non-breaching party attorney’s fees in the event the breaching pay express party agreement, there is no statu- brings suit to enforce the attorney’s tory authority in permitting award of fees the cases. contract provides 6-21.2 the statu- §
Plaintiffs first contend N.C. Gen. Stat. attorney’s tory disagree. fees. We trial court’s award of basis the provides: This section note, attorney[’]s[] upon any pay fees conditional
Obligations to . . . valid of indebtedness shall be sale contract or other evidence debt, note, if enforceable, part of such and collectible as such . . . after be collected contract other evidence indebtedness maturity.... party Thus, (1) 6-21.2 section 6-21.2 allows §
N.C.G.S. attorney’s fees after the debt has (2) (3) the debt to recover owed note, in provided it is written conditional sale con matured 6-21.2; First tract, of indebtedness. N.C.G.S. see § or other evidence Ltd., Assocs., Rd. Bank & Tr. Co. v. Park Citizens App. 153, 157, (attorney’s fees in the event of default 515 S.E.2d note), N.C. promissory maker of disc. review Inc., Regency Ventures, v. (1999); S.E.2d 284 RC Associates 373-74, (1993) (one purpose of 432 S.E.2d N.C. pay “is debtor last chance to N.C. Gen. Stat. 6-21.2 to allow the § attorney’s outstanding litigation balance to avoid award fees”). debt, Defendants, are case, not seek-
In this owed attorney’s event, has not matured. ing to recover fees. debt statutory form the basis to award Accordingly, section 6-21.2 cannot fees, awarding attorney’s thus, the trial court erred Plaintiffs attorney’s Plaintiffs fees. alternatively pro- Stat. § contend that Gen. 6-20 statutory disagree. We basis for the award.
vides the provides to allow “costs” its discre- 6-20 the trial court Section limited (1999). Assessable costs civil cases are § tion. N.C.G.S. 6-20 Corp. Carter, Lee Sara to those items listed section 7A-305. 732, 738, grounds, other reversed on *11 THE
IN COURT OF APPEALS 13 CTR., CTR., LEE INC. v. WILSON CYCLE INC. CYCLE (2001)] 1 N.C.
[143 Attorney’s N.C. S.E.2d 308 are (1999). fees only provided under section “as law.” 7A-305(d) § 7A-305 N.C.G.S. (1999); Tape Corp. System Tape v. Broadcasting see Records v.
Corp., App. 183, 187, (attorney’s fees “are express costs, statutory not recoverable ... as an item ... of absent authority fixing awarding them”), cert. Thus, S.E.2d 880 section 6-20 does authorize a not attorney’s part
court to include fees as a the costs awarded under section, specifically permitted by that unless another statute. part, part.
Affirmed reversed in
Judge JOHN concurs.
Judge part part separate TYSON concurs in dissents opinion.
TYSON, concurring part, part. Judge, dissenting in I I parts through majority’s opinion. concur in IV the I disagree plaintiffs majority’s with the conclusion that are not entitled to attorney’s recover fees under G.S. or § § either 6-21.2 G.S. 6-20. respectfully part Accordingly, majority’s I from V dissent opinion. majority’s opinion notes, provides:
As the G.S. 6-21.2 § pay attorneys’ upon any Obligations note, conditional sale other contract or evidence of indebtedness . . . be valid and shall part debt, if enforceable, note, and collectible as of such such other evidence of indebtedness . . . contract or be collected after maturity.... majority’s (1999) (emphasis supplied).
N.C. Gen. Stat. 6-21.2 The § opinion provide statutory concludes G.S. 6-21.2 does not § authority attorney’s plaintiffs party to recover fees because “the debt, Defendant, seeking owed the not recover fees.” analysis. disagree I with this phrase indebtedness” “other evidence of contained G.S. Supreme “any 6-21.2 defined has been our Court to include
§ printed instrument, signed or written otherwise executed obligor(s), legally obliga- which evidences on its face enforceable THE IN COURT CYCLE
LEE
INC. WILSON
money.”
Enterprises,
pay
Inc. v. Interstate
tion to
Stillwell
*12
294,
812,
The
286,
Equipment Co., 300 N.C.
266 S.E.2d
any
Supreme
“does no violence to
Court
that such definition
stated
general
its
provisions
with
specific
and accords well
of the statute’s
agreed upon
remedy expressly
collection
purpose to validate a debt
contracting
(emphasis
parties.”
at
G.S. 6-21.2 was
that
§
dispute
improper.
Id. at
266 S.E.2d at
of a
was
arising out
lease
at
contained a
agreement
that
lease
issue
818. The Court noted
the
by
remit
obligation
plaintiff-lessee
the
to
rental
legally enforceable
property.
for
Id.
payments
exchange
to
use of
the defendant-lessor
Holding
agreement
“is obvi-
at
In the event of violation the Seller herein, including set but not limited to and/or warranties forth Compete”], provisions Paragraph 11 hereof Not [“Covenant right, payments to offset anv then Purchaser shall have provisions Seller to the hereof in the pursuant mav be due the IN THE COURT OF APPEALS INC. v. WILSON CYCLE damaged amount bv which Purchaser has been bv such breach.
(emphasis supplied). $1,010.00 plaintiffs awarded the trial court “evidence of Agreement provided payments indebtedness.” The over and above promissory provides Paragraph Agreement note. of the also plaintiffs right to offset the owed under amount sought awarded. Plaintiffs such an and cancella- offset complaint. tion outstanding of the notes in their are credi- tors of on a Thus, defendants “matured” debt. consistent Supreme Stillwell, holding provides authority G.S. § Court’s 6-21.2 “upon plaintiffs to recover the of the collection *13 arising 294-95, debts from the contract itself.” Stillwell at 266 S.E.2d (emphasis at 818 supplied). attorney’s
The trial
award
court’s
of
fees is also authorized
provides that,
actions,
may
G.S. 6-20.
6-20
§
G.S.
other
costs
be
§
“[i]n
not,
court,
pro
allowed or
in the
discretion of
unless otherwise
vided
(1999).
may,
law.” N.C. Gen. Stat. 6-20
A trial
in
§
court
its
discretion,
attorney’s
“just
equi
award
fees under G.S. 6-20 if
§
Boyd,
App. 204, 208,
1,
table.”
v.
3-4,
Batcheldor
119 N.C.
458 S.E.2d
(1995)
disc. review
341 N.C.
(citing
S.E.2d 753
Dodson,
Wachovia Bank & Trust Co. v.
260 N.C.
In of suits the allowance costs rests in the discretion of Worthy Brower, 6-20, the court. G.S. § Under attorney’s part trial court’s of fees as a costs allowance is within qnd appeal the court’s discretion “will not sound be disturbed on Carolina, absent an discretion.” Bank abuse of Wachovia North Jaguar, Inc., N.A. v. Bob Dunn 117N.C. (1994) (citation omitted). plaintiffs equitable case, sought (1) remedies Agreement, (2) prohibiting cancellation of the from col- defendants any lecting Agreement, returning due under the sums plaintiffs any paid Agreement. monies under The trial court ordered that defendants be “restrained from further violations of remedy Thus, Agreement.” equitable under This nature. G.S. 6-20, costs, plaintiffs § the trial had discretion to award in- court IN THE COURT RE DULA
IN present evidence of attorney’s no eluding fees. Defendants award. I would affirm in the trial court’s abuse of discretion 6-21.2 or § either G.S. under trial court’s award part V of ma- therefore, from I, respectfully dissent G.S. 6-20. § jority’s opinion. STORM
IN THE MATTER OF MICAH minor child DULA, No. COA00-391 (Filed 2001) 17 April Planning Rights— Permanency or- 1. Parental Termination placed of home for months outside der —child custody continuing of a child Permanency Planning order A County Department of Services was Social with the Caldwell custody had been and remanded where child reversed placement outside the home for 19 months of DSS parental termination of direct DSS to initiate the court did not N.C.G.S. proceedings findings or make rights 7B-907(d)(l-3). § Rights— parent efforts to reunite
2. of Parental Termination findings and child — *14 attempt obligation had to further to reunite
The trial court no custody parent obligated to locate in with his and was child DSS permanent placement parent’s home where the court outside prevent or elimi- had made numerous efforts to found DSS placement outside the home. nate the need for part. part dissenting Judge concurring Tyson January filed Appeal respondent mother from order County District Court. Heard Judge L. Jones Caldwell Jonathan January Appeals 30 2001. the Court of petitioner-appellee. Spillman M.
Elizabeth respondent-appellant. D. Austen Judfor by attorney advocate.
No filed brief