Tommy Davis Construction Inc. v. Cape Fear Public Utility Authority et al

Filing 62

ORDER granting 53 Motion for Attorney Fees - Plaintiff is awarded $20,270.00 in attorney's fees and costs. Upon entry of judgment, interest shall continue to accrue at the federal, post-judgment rate until the judgment is satisfied. The clerk is directed to enter judgment accordingly. Signed by Senior Judge Malcolm J. Howard on 10/2/2014. (Lee, L.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
SOUTHERN DIVISION
NO.: 7:13-CV-2-H
TOMMY DAVIS CONSTRUCTION
INC.,
Plaintiff,

v.

ORDER

CAPE FEAR PUBLIC UTILITY
AUTHORITY and NEW HANOVER
COUNTY,
Defendants.

This matter is before the court on plaintiff's motion
attorney

fees

responded

and

and

nontaxable

plaintiff

costs

replied.

[DE #53].

This

for

Defendant

matter

is

ripe

for

adjudication.
BACKGROUND

Plaintiff is a North Carolina corporation in the business
of

building

residential

Utility Authority

homes.

( "CFPUA")

Defendant

District

and

("NHCWSD")

independent water

Defendant New Hanover County

maintained

Public

It was created in 2007

by consolidating county and city governments'

created

Fear

is a water and sewer authority that

provides services in New Hanover County.

and sewer systems.

Cape

New

Hanover

before CFPUA came

County

("the County")

Water

and

into existence.

Sewer
NHCWSD

provided water and sewer services in the unincorporated areas of
the County. The County created a "facility fee" 1 for residential
units due at the time of building permit application.
On July 8,
plaintiff,
acted

2014,

the court granted summary judgment for

upon

the

based

ultra

vires

by

determination

charging

that

that

facility

defendants
fee

for

had
sewer

services to be rendered, but failing to render those services or
take concrete steps to do so.
COURT'S DISCUSSION

The

court

first

examines

whether

appropriate to award in this case.
fees pursuant to N.C.
statute,

attorney's

Gen.

fees

Stat.

are

§

the

N.C. Gen. Stat.

is a defendant who was

§

are

According to that

6-21.7.

"in

any

action

in

upon a finding by the court

city or county acted outside

authority."

fees

Plaintiff seeks attorney's

discretionary

which a city or county is a party,
that

attorney

6-21.7.

the

scope of its

legal

In this case the county

found to act outside the scope of its

legal authority.

The court need not reach the issue raised by

defendant CFPUA,

and apparently untested in North Carolina case

law,

as

to

independently

whether
of

the

it

could

be

county.

See,

1

liable
e.g.,

This was also known as an "impact fee"
the ordinance.
2

for

attorney's

Izydore

v.

fees

City

of

in other versions of

Durham,

746

S.E.2d

324

(N.C.

App.

2013),

review

denied,

749

S.E.2d 851 (N.C. 2013).
Attorney's
additional

fees

are

mandatory

if

the

court

finding "that the city's or county's

abuse of its discretion."

Id.

makes

action was

an
an

An abuse of discretion may be

found when the county's action was so unreasonable as to not be
the

result

Currituck,

of

a

reasoned

762 S.E.2d 289

decision.
(N.C. App.

Etheridge
2014).

v.

County

of

In this case, there

is not enough evidence to find abuse of discretion.

Thus,

the

award of attorney's fees is discretionary, not mandatory.
Having decided that the court has discretion to award fees
in this case, the court now turns to the issue of what attorney
fee

is

In

reasonable.

reasonable

number

of

determining

hours

in

the

reasonable

calculating

the

rate

and

lodestar,

the

court is guided by the following twelve factors:
( 1) the time and labor required; ( 2) the novelty and
difficulty of the questions; (3) the level of skill
required to perform the legal service properly; ( 4)
the preclusion of employment by the attorney due to
acceptance of the case; ( 5) the customary fee;
( 6)
whether the fee is fixed or contingent; ( 7) the time
limitations
imposed
by
the
client
or
the
circumstances; (8) the amount involved and the results
obtained; ( 9) the experience, reputation, and ability
of the attorneys;
( 10) the "undesirability" of the
case; ( 11) the nature and length of the professional
relationship with the client; and (12)
awards in
similar cases.
Rum Creek Coal Sales, Inc. v. Caperton, 31 F.3d 169, 175 (4th
Cir. 1994).
3

The
provided.

court

has

carefully

reviewed

the

documentation

In consideration of all of the lodestar factors,

the

court finds that a fee award of $20,000.00 plus nontaxable costs
of $270.00 are appropriate.
CONCLUSION

For the foregoing reasons,

plaintiff is awarded $20,270.00

in attorney's fees and costs.

Upon entry of judgment,

shall

the

continue

to

accrue

at

until the judgment is satisfied.

federal,

interest

post-judgment

The clerk is directed to enter

judgment accordingly.
This

2-~day

rate

of October 2014.

istrict Judge

At Greenville, NC
#33

4