(a) In any suit brought or defended under the provisions of Article 2 or Article 3 of this Chapter, the presiding judge or arbitrator may allow a reasonable attorneys' fee to the attorney representing the prevailing party. This attorneys' fee is to be taxed as part of the court costs with the final judgment or arbitration award.
(b) The court or arbitrator shall determine the prevailing party based on the principal amount in controversy between the parties as of the commencement of the trial, arbitration, or hearing resulting in a judgment or arbitration award, considering all relevant facts and circumstances.
(c) If a party serves (i) an offer of judgment in accordance with G.S. 1A-1, Rule 68, or (ii) a written settlement offer, so that the offer is received at least 30 days before the commencement of the trial, arbitration, or hearing resulting in a judgment or award resolving all matters in controversy between the parties, the last offer shall be deemed to be that party's monetary position for purposes of determining the amount in controversy.
(d) In determining the amount of reasonable attorneys' fees and expenses under this section, the court or arbitrator may consider all relevant facts and circumstances, including, without limitation, the following:
(1) The amount in controversy and the results obtained.
(2) The reasonableness of the time and labor expended, and the billing rates charged, by the attorneys.
(3) The novelty and difficulty of the questions raised in the action.
(4) The skill required to perform properly the legal services rendered.
(5) The relative economic circumstances of the parties.
(6) Settlement offers made prior to the commencement of the trial, arbitration, or hearing.
(7) Offers of judgment pursuant to Rule 68 of the North Carolina Rules of Civil Procedure and whether judgment finally obtained was more favorable than such offers.
(8) Whether a party unjustly exercised superior economic bargaining power in the conduct of the action or withheld payment of undisputed amounts.
(9) The timing of settlement offers.
(10) The extent to which the party seeking attorneys' fees prevailed in the action.
(11) The amount of attorneys' fees awarded in similar cases.
(e) A party may submit evidence relating to an award of attorneys' fees by affidavit or declaration. The court or arbitrator may admit other evidence, including, without limitation, live or deposition testimony. A party may submit expert testimony to support an award, but the court or arbitrator shall not require expert testimony.
(f) For purposes of this section, "prevailing party" is the party whose monetary position at the commencement of the trial, arbitration, or hearing is closest to the amount of the judgment or arbitration award. The court or arbitrator shall determine the prevailing party based upon the principal amount in controversy between the parties as of the commencement of the trial, arbitration, or hearing resulting in a judgment or arbitration award, considering all relevant facts and circumstances. (1991 (Reg. Sess., 1992), c. 1010, s. 3; 1993 (Reg. Sess., 1994), c. 763, s. 1; 2022-1, s. 4(a).)
§§ 44A-36 through 44A-39. Reserved for future codification purposes.
Article 4.
Self-Service Storage Facilities.
Notes of Decisions
Terry's Floor Fashions, Inc. v. Crown Gen. Contractors, Inc., 645 S.E.2d 810 (N.C. Ct. App. 2007).
· cites it 70× “Finally, plaintiff sought recovery of attorneys fees pursuant to N.C. Gen.Stat. § 44A-35, alleging that defendant Alvis "unreasonably refused to fully resolve the matters which constitute the basis of the Lien part of this Complaint.”
Waters Edge Builders, LLC v. Longa, 715 S.E.2d 193 (N.C. Ct. App. 2011).
· cites it 11× “Accordingly, the trial court’s order granting plaintiff a lien on defendants’ real property is reversed.”
S. Seeding Serv., Inc. v. W.C. English, Inc., 735 S.E.2d 829 (N.C. Ct. App. 2012).
· cites it 24× “In addition, the trial court held that since Southern Seeding “is the prevailing party in this action as defined in N.C. Gen. Stat. § 44A-35 and there was an unreasonable refusal by English to fully resolve the matter which constituted the basis of the suit[,]” English was…”
Barrett Kays & Assocs., P.A. v. Colonial Bldg. Co., 500 S.E.2d 108 (N.C. Ct. App. 1998).
· cites it 8× “Ill N.C. Gen. Stat. § 44A-35 states that: [T]he presiding judge may allow a reasonable attorneys’ fee to the attorney representing the prevailing party.”
Martin & Loftis Clearing & Grading, Inc. v. Saieed Constr. Sys. Corp., 608 S.E.2d 124 (N.C. Ct. App. 2005).
· cites it 38× “Saieed Construction Systems Corporation (“defendant”), presents the following issues for our consideration: Whether the trial court (I) erroneously awarded plaintiff attorneys’ fees as the plaintiff was not a prevailing party under N.C. Gen. Stat. § 44A-35; and (II) erroneously…”
Grp. III Mgmt., Inc. v. Suncrete of Carolina, Inc., 819 S.E.2d 781 (S.C. Ct. App. 2018).
“For purposes of this **157 section, " prevailing party " is a party plaintiff or third[-]party plaintiff who obtains a judgment of at least fifty percent (50%) of the monetary amount sought in a claim or is a party defendant or third[-]party defendant against whom a claim is…”
Lupo v. Share of North Carolina, Inc., 682 S.E.2d 247 (N.C. Ct. App. 2009).
· cites it 14× “We uphold, however, the trial court's award of attorneys' fees to defendants under N.C. Gen. Stat. § 44A-35 (2007) and N.C. Gen.”
Century Fire Prot., LLC v. Heirs (N.C. Ct. App. 2014).
· cites it 14× “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 -5- property) or Article…”
SMS Constr., Inc. v. Wittels, 809 S.E.2d 373 (N.C. Ct. App. 2018).
· cites it 6× “Motion for Attorney Fees Finally, defendant contends that the trial court erred in awarding attorney fees to plaintiff under North Carolina General Statute § 44A-35. [W]hether to award attorney's fees is within the sound discretion of the trial court and will not be overturned…”
Miller & Long, Inc. v. Intracoastal Living, LLC, 2011 NCBC 17 (N.C. Bus. Ct. 2011).
· cites it 8× “4 of the Buildings Two and Three Subcontract as well as pursuant to N.C. Gen. Stat. § 44A-35 (herein, further references to the General Statutes will be to "G.”
Century Fire Prot., LLC v. Heirs (N.C. Ct. App. 2014).
“§ 44A-35 to the Curtis Neal Mauser Heirs, Stephen Mauser, and Betty Mauser Scipone (collectively “the Mauser -2- Defendants”).”
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