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.)

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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

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