MONSANTO COMPANY v. ARE-108 ALEXANDER ROAD, LLC
Filing
69
MEMORANDUM OPINION AND ORDER signed by CHIEF JUDGE WILLIAM L. OSTEEN JR. on 06/23/2014. For the reasons set forth herein, IT IS HEREBY ORDERED that Plaintiff's request for attorneys' fees is DENIED. (Taylor, Abby)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
MONSANTO COMPANY,
)
)
)
)
)
)
)
)
)
Plaintiff,
v.
ARE-108 ALEXANDER ROAD, LLC,
Defendant.
1:10CV898
MEMORANDUM OPINION AND ORDER
OSTEEN, JR., District Judge
Presently before the court is a dispute concerning whether
N.C. Gen. Stat. § 6-21.2(2) mandates an attorneys’ fees award of
exactly fifteen percent of the “outstanding balance” or whether
it serves as a cap on such fees.
The parties also dispute the
definition and application of the term “outstanding balance,” as
such term is used in N.C. Gen. Stat. § 6-21.2.
This court
previously adopted the recommendation of the Magistrate Judge as
to all issues (see Doc. 59).
This court then requested
additional briefing as to two issues related to attorneys’ fees,
and those briefs have been submitted as directed.
This matter
is now ripe for resolution, and, for the reasons that follow,
this court finds that an award of attorneys’ fees would be
inappropriate in the present case.
In summary, this court finds that there is no “outstanding
balance” due pursuant to the terms of the lease agreement.
Further, the present dispute falls outside those creditor-debtor
relationships captured by the statutory language of N.C. Gen.
Stat. § 6-21.2. Rather, this court finds that the recovery of
lease overpayments in this case, while proper, is more
accurately characterized as arising from a collateral procedural
agreement.
That collateral agreement did not contain its own
provision for payment of attorneys’ fees, and, therefore, such
fees are inapposite in the present case.
I.
PROCEDURAL HISTORY
In its Complaint, Plaintiff requested “[a]n award of its
attorneys’ fees and costs pursuant to Section 44(k) of the Phase
1B Lease (“Section 44(k)”) and as otherwise permitted by law.”
(Complaint (“Compl.”) (Doc. 1) at 12.)
In its motion for
summary judgment, Plaintiff contended it was entitled to an
award of attorneys’ fees and costs in light of the agreement,
citing N.C. Gen. Stat. § 6-21.2.
(Pl.’s Mem. of Law in Supp. of
Mot. for Summ. J. (Doc. 21) at 20-21.)
The Magistrate Judge
agreed, finding both that Defendant had not responded to this
portion of Plaintiff’s motion and that the lease constituted
“‘evidence of indebtedness’ under N.C. Gen. Stat. § 6-21.2 such
that attorney’s fees would be authorized at least up to 15% of
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the outstanding balance on the lease.”
(Mem. Op. &
Recommendation (“Recommendation”) (Doc. 52) at 11 n.5.)
Defendant filed objections to the recommendation.
(Doc. 54.)
Although Defendant did not specifically object to this finding
as to attorneys’ fees, Defendant did object to the entry of
summary judgment, contending that the motion was premature until
such time as discovery was permitted and conducted.
In the
absence of a response to Plaintiff’s original argument and the
Magistrate Judge’s finding that the attorneys’ fees provision of
Section 44(k) was applicable, this court finds such matter
established for purposes of this litigation.
As noted in this
court’s order adopting the recommendation, “Plaintiff is
entitled to an award of attorneys’ fees pursuant to Section
44(k) of the Lease as permitted by N.C. Gen. Stat. § 6-21.2(2).”
(Doc. 59 at 2-3.)
However, what may be permitted or required by N.C. Gen.
Stat. § 6-21.2(2) presents a complex issue on the facts of this
case.
As indicated by this court’s order, two outstanding
questions remain: (1) whether the term “outstanding balance”
referenced in N.C. Gen. Stat. § 6-21.2(2) is applicable to the
present matter and (2) whether the 15% referred to in the
statute serves as a mandate or a cap on reasonable attorneys’
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fees.
These issues have been addressed by the supplemental
briefing filed by the parties.
II.
FACTS
The facts are fully set out in the Magistrate Judge’s
thorough Recommendation.
(See Recommendation (Doc. 52).)
Those
facts are adopted and will not be repeated in full here.
Plaintiff filed this action seeking a declaratory judgment as to
the legal effect of certain terms of its lease agreement with
Defendant.
Those disputed terms dealt with the amount owed as
lease payments during two term extensions provided for by the
lease and exercised by Plaintiff.
Plaintiff alleged in its
First Claim for Relief, and this court subsequently found, that
Plaintiff “would not be obligated to pay Base Rent during either
of the two five-year Term Extensions beginning November 1, 2010,
and November 1, 2015, respectfully.”
¶ 32.)
(See Compl. (Doc. 1)
Thus, this court’s findings resulted in a declaration
that Plaintiff does not owe a Base Rent for the two five-year
terms as Defendant contended.
The remaining issues for determination arise as a result of
the attorneys’ fees provision contained in the lease agreement.
Section 44(k) of the lease provides, in relevant part, as
follows:
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(k) Attorneys Fees. If either Landlord or Tenant
reasonably seeks legal services with respect to the
proper interpretation or enforcement of this Lease,
the party receiving substantially the result it sought
or defended (the “Prevailing Party”), whether by
award, judgment, stipulation, settlement, workout,
default or otherwise . . . shall be entitled to
recover from the adverse party all reasonable fees and
costs incurred by the Prevailing Party in connection
with such legal services (“Legal Fees”).
(Joint Mot. to File Contractual Documents under Seal, Ex. 1,
Lease Agreement (Doc. 47-1) at 41.)1
Plaintiff argues that its payment of rent amounts demanded
by Defendant during the pendency of this litigation creates an
“outstanding balance” necessary for the determination of
attorneys’ fees.
In support of the motion for summary judgment,
Plaintiff filed the affidavit of Janice Edwards, who stated that
Plaintiff had made over $190,000 in “payments of Base Rent and
related costs to [Defendant] under protest under the Phase 1B
Lease . . . .” (Declaration of Janice Edwards (“Edwards Decl.”)
(Doc. 22) ¶ 5.)
Plaintiff’s Complaint further alleged that:
Based on [Defendant’s] improper demands and
threats of legal action, Monsanto has paid ARE-108
Base Rent in amounts that ARE-108 claims are owing
under the Phase 1B Lease. All such payments made
after November 1, 2010 are expressly made under
All citations in this Order to documents filed with the
court refer to the page numbers located at the bottom right-hand
corner of the documents as they appear on CM/ECF.
1
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protest, with a reservation of rights by Monsanto, and
such monthly payments will continue under protest
until this case is resolved.
(Compl. (Doc. 1)¶ 38.)
The first payment under protest was made on November 15,
2010.
(Edwards Decl. (Doc. 22) ¶ 5.)
The Complaint was filed
on November 19, 2010.
Attached to the Complaint as Exhibit 5 (Doc. 1-5) is a
letter prepared and sent on behalf of Plaintiff to Defendant.
In that letter, counsel outlines the conditions of the payments
under protest.
Specifically, the letter notified Defendant that
all of the contested payments were made under protest, that
Plaintiff reserved the right to be refunded all of the contested
payments, and that Plaintiff reserved all rights under the lease
to recover interest on the contested payments as well as
attorneys’ fees. (Compl., Ex. 5 (Doc. 1-5) at 3.)
III. ANALYSIS
As found in the Recommendation and adopted by this court,
North Carolina law governs interpretation of the lease
agreement.
(See Recommendation (Doc. 52) at 6 n.3.)
Under
North Carolina law, an award of attorneys’ fees requires
statutory authorization, even if a contractual provision
otherwise applies.
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As was stated by Chief Judge (now Justice) Brock
in Supply, Inc. v. Allen, 30 N.C. App. 272, 276, 227
S.E.2d 120, 123 (1976), “[t]he jurisprudence of North
Carolina traditionally has frowned upon contractual
obligations for attorney's fees as part of the costs
of an action.” Certainly in the absence of any
contractual agreement allocating the costs of future
litigation, it is well established that the nonallowance of counsel fees has prevailed as the policy
of this state at least since 1879. See Trust Co. v.
Schneider, 235 N.C. 446, 70 S.E. 2d 578 (1952); Parker
v. Realty Co., 195 N.C. 644, 143 S.E. 254 (1928). Thus
the general rule has long obtained that a successful
litigant may not recover attorneys’ fees, whether as
costs or as an item of damages, unless such a recovery
is expressly authorized by statute. Hicks v.
Albertson, 284 N.C. 236, 200 S.E. 2d 40 (1972). Even
in the face of a carefully drafted contractual
provision indemnifying a party for such attorneys’
fees as may be necessitated by a successful action on
the contract itself, our courts have consistently
refused to sustain such an award absent statutory
authority therefor. Howell v. Roberson, 197 N.C. 572,
150 S.E. 32 (1929); Tinsley v. Hoskins, 111 N.C. 340,
16 S.E. 325 (1892).
Stillwell Enters., Inc. v. Interstate Equip. Co., 300 N.C. 286,
294-95, 266 S.E.2d 812, 814-15 (1980).
Plaintiff contends it meets both the statutory and
contractual requirements for an award of attorneys’ fees.
Specifically, Plaintiff argues N.C. Gen. Stat. § 6-21.2 provides
the statutory authorization and Section 44(k) of the lease
satisfies the contractual mandate for awarding attorneys’ fees
to the “Prevailing Party.”
Plaintiff’s conclusions.
This court disagrees with both of
Each is addressed in turn below.
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A.
Statutory Authorization - Scope
North Carolina Gen. Stat. § 6-21.2 does not, by its terms,
apply to the recovery of lease payments made under protest and
ultimately remitted after judgment as occurred in this case.
The introductory paragraph of Section 6-21.2 states:
Obligations to pay attorneys’ fees upon any note . . .
or other evidence of indebtedness . . . shall be valid
and enforceable, and collectible as part of such debt,
if such note . . . or other evidence of indebtedness
be collected by or through an attorney at law after
maturity, subject to the following provisions . . .
N.C. Gen. Stat. § 6-21.2.
Parsing the language of Section 6-21.2, North Carolina
courts have determined the statute “allows (1) the party owed
the debt (2) to recover attorney's fees (3) after the debt has
matured (4) provided it is written in the note, conditional sale
contract, or other evidence of indebtedness.”
E.g., Lee Cycle
Ctr., Inc. v. Wilson Cycle Ctr., Inc., 143 N.C. App. 1, 12, 545
S.E.2d 745, 752, aff'd, 354 N.C. 565, 556 S.E.2d 293 (2001).
Here, although the lease agreement is an “evidence of
indebtedness,” Plaintiff’s claim for attorneys’ fees fails as
Plaintiff is not the “party owed the debt,” the debt in the
present case has not “matured,” nor is this particular debt
written in the note.
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Under North Carolina law, a lease agreement for real
property is “evidence of indebtedness” for purposes of N.C. Gen.
Stat. § 6-21.2.
In Stillwell, the N.C. Supreme Court held that
a lease agreement is “obviously an ‘evidence of indebtedness.’”
300 N.C. at 294, 266 S.E.2d at 818.
As the Stillwell court
explained, “[t]he [leasing] contract acknowledges a legally
enforceable obligation by plaintiff-lessee to remit rental
payments to defendant-lessor as they become due, in exchange for
the use of the property which is the subject of the lease.”
Id.
Based on this contractual relationship, the court concluded that
there was “no reason why the obligation by plaintiff to pay
attorneys’ fees incurred by defendant upon collection of the
debts arising from the contract itself should not be enforced to
the extent allowed by G.S. 6-21.2.”
Id. at 294-95, 266 S.E.2d
at 818.
Although Stillwell addressed a lease of personal property,
the North Carolina Court of Appeals has applied the reasoning of
Stillwell to find that a lease of real property is “evidence of
indebtedness” under N.C. Gen. Stat. § 6-21.2.
See WRI/Raleigh,
L.P. v. Shaikh, 183 N.C. App. 249, 258, 644 S.E.2d 245, 250
(2007).
This court agrees with the Shaikh analysis, and finds
that N.C. Gen. Stat. § 6-21.2 applies to a lease of real
property.
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While the lease here is a debt instrument as contemplated
by N.C. Gen. Stat. § 6-21.2, Plaintiff, as a lessee/debtor,
falls outside the scope of the statute.
As noted above, Section
6-21.2, “allows . . . the party owed the debt” to obtain
attorneys’ fees for having to resort to collection via judicial
action.
Lee Cycle, 143 N.C. App. at 12, 545 S.E.2d at 752.
The
statute’s introductory paragraph provides that “[o]bligations to
pay attorneys’ fees upon any . . . evidence of indebtedness
. . . shall be valid and enforceable, and collectible as part of
such debt . . . .”
N.C. Gen. Stat. § 6-21.2 (emphasis added);
see id. § 6-21.2(2) (“If such . . . evidence of indebtedness
provides for the payment of reasonable attorneys' fees by the
debtor, . . .” (emphasis added).)
On these facts, Plaintiff, as
a debtor, is not collecting on indebtedness under the lease as
contemplated by the statute.
Multiple court decisions have
confirmed this interpretation of Section 6-21.2’s plain
language.
See Lee Cycle, 143 N.C. App. at 12, 545 S.E.2d at 752
(“[T]he parties owed the debt, Defendants, are not seeking to
recover attorney’s fees . . . . Accordingly, section 6–21.2
cannot form the statutory basis to award Plaintiffs attorney's
fees.”); In re Vogler Realty, Inc., 365 N.C. 389, 396, 722
S.E.2d 459, 464 (2012) (“[S]ection 6–21.2 governs only
attorney's fees for the creditor's attorney.); F.D.I.C. v.
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Cashion, Civil Action No. 1:11cv72, 2012 WL 1098619 (W.D.N.C.
Apr. 2, 2012), aff’d, 720 F.3d 169 (4th Cir. 2013) (“ Section
6-21.2 of the North Carolina General Statutes allows for an
award of attorneys’ fees in actions to enforce obligations owed
under a promissory note that itself provides for the payment of
attorneys' fees.” (emphasis added)).
These cases accord with
the overarching goal of N.C. Gen. Stat. § 6-21.2. See Trull v.
Cent. Carolina Bank & Trust, 124 N.C. App. 486, 491, 478 S.E.2d
39, 42 (1996) aff'd in part, review dismissed in part, 347 N.C.
262, 490 S.E.2d 238 (1997) (“[T]he purpose of G.S. 6-21.2 is to
allow the debtor a last chance to pay his outstanding balance
and avoid litigation, not to reward the prevailing party with
the reimbursement of his costs in prosecuting or defending the
action.”). Here, on these facts, Plaintiff as well as the debt
recovered fall outside the scope of N.C. Gen. Stat. § 6-21.2,
and, therefore, this section does not form a statutory basis for
Plaintiff’s attorneys’ fees claim on the facts presently before
this court.
Furthermore, the statute provides that contractual
provisions awarding attorneys’ fees are enforceable only if the
“note, contract or other evidence of indebtedness be collected
by or through an attorney at law after maturity . . . .”
Gen. Stat. § 6-21.2 (emphasis added).
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Use of the term
N.C.
“maturity” suggests a contractual due date. See Webster’s New
College Dictionary (3rd ed. 2008) (“2a. The time at which an
obligation, as a note or bond, is due.”); Black’s Law Dictionary
(9th ed. 2009) (defining “date of maturity” as “[t]he date when
a debt falls due, such as a debt on a promissory note or bond”).
This court generally agrees with Defendant that “[b]y
definition, debt ‘matures’ when a party defaults by missing a
[scheduled] payment.” (Doc. 61 at 9 (citing Kindred of N.
Carolina, Inc. v. Bond, 160 N.C. App. 90, 104-05, 584 S.E.2d
846, 855 (2003)).
Here, no maturity date existed for the disputed payments
made by Plaintiff.
The duty to repay the amounts paid under
protest arose only after entry of this court’s order, rather
than pursuant to a contractual maturity date.
Therefore,
without a maturity date or default, these disputed lease
payments are not, by definition, collected after maturity as
N.C. Gen. Stat. § 6-21.2 requires.
Although the lease was used
to determine the amount of the monthly payments under protest,
it was the oral and written terms imposed by Plaintiff and
accepted by Defendant to resolve Defendant’s threats of
litigation that controlled the payments after the dispute arose.
See infra Section III.C.
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B.
Statutory Authorization
i.
Outstanding Balance
Section 6-21.2 authorizes attorneys’ fees as a percentage
of the “outstanding balance.”
The outstanding balance is
defined as “the principal and interest owing at the time suit is
instituted to enforce any security agreement securing payment of
the debt and/or to collect said debt.”
N.C. Gen. Stat.
§ 6-21.2(3).
Here, Plaintiff, as a lessee, owed Defendant no principal
or interest at the time the suit was filed.
Moreover, the suit
was for declaratory relief, not to collect or enforce a security
agreement.
As a result, the “outstanding balance” owed pursuant
to the lease agreement is zero.
A zero outstanding balance
results in a statutory allowance of zero.
This court therefore
concludes that no attorneys’ fees are awardable under the lease
agreement.
While this result may ultimately seem counterintuitive, it
stems from the disjunction between Plaintiff’s position as
lessee and the intended beneficiaries of Section 6-21.2.
North
Carolina’s public policy counsels against awarding attorneys’
fees unless expressly authorized by statute.
See State
Wholesale Supply, Inc. v. Allen, 30 N.C. App. 272, 276, 227
S.E.2d 120, 123 (1976)(“The jurisprudence of North Carolina
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traditionally has frowned upon contractual obligations for
attorney's fees as part of the costs of an action.”).
“Even in
the face of a carefully drafted contractual provision
indemnifying a party for such attorneys' fees as may be
necessitated by a successful action on the contract itself, our
courts have consistently refused to sustain such an award absent
statutory authority therefor.”
S.E.2d at 814-15.
Stillwell, 300 N.C. at 289, 266
Section 6-21.2 marks one such statutory
authorization, however, Plaintiff appears to fall outside those
parties the statute was crafted to safeguard on these particular
facts.
As a result of the particular facts of this case,
Section 6-21.2 does not appear to contemplate or permit
attorneys’ fees recovery in the case of a declaratory judgment
action where the required lease payments have been made.
ii.
Fifteen Percent - Ceiling or Mandatory?
As noted above, Section 6-21.2 does make valid or
enforceable an award of attorneys’ fees as called for under the
present lease agreement.
Section 6-21.2 further provides:
(1) If such note, conditional sale contract or
other evidence of indebtedness provides for attorneys’
fees in some specific percentage of the “outstanding
balance” as herein defined, such provision and
obligation shall be valid and enforceable up to but
not in excess of fifteen percent (15%) of said
“outstanding balance” owing on said note, contract or
other evidence of indebtedness.
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(2) If such note, conditional sale contract or
other evidence of indebtedness provides for the
payment of reasonable attorneys' fees by the debtor,
without specifying any specific percentage, such
provision shall be construed to mean fifteen percent
(15%) of the “outstanding balance” owing on said note,
contract or other evidence of indebtedness.
N.C. Gen. Stat. § 6-21.2(1) & (2).
Section 44(k) of the lease agreement does not specify a
specific percentage of attorneys’ fees, and, therefore,
subsection (2) applies.
The parties dispute whether the fifteen
percent of the “outstanding balance” should be construed as a
mandatory award or whether it is a permissive award with a
maximum amount (ceiling) of 15%.
(Compare Plaintiff’s brief
(Pl.’s Supplemental Mem. Regarding Attorneys’ Fees (“Pl.’s Br.”)
(Doc. 62) at 1 (“Subsection (2) mandates an award of attorneys’
fees in the amount of 15% of the outstanding balance,
irrespective of the fees actually incurred.”) with Defendant’s
brief (Def.’s Br. in Resp. Regarding Attorneys’ Fees (“Def.’s
Br.”) (Doc. 61) at 2 (“[I]n cases where attorneys’ fees are
expressly permitted under N.C. Gen. Stat. § 6-21.2(2), North
Carolina courts have the judicial discretion under recent case
law to award attorneys’ fees less than 15% of the “outstanding
balance” owed by the debtor.”).)
However, under either
interpretation of the statute, there is no “outstanding balance”
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due under the current leasing agreement.
Therefore, this court
does not find it necessary to resolve this dispute.
C.
Contractual Authorization
Notwithstanding the statutory analysis above, this court
further finds that the contractual relationship between the
parties does not support an award of attorneys’ fees.
As
discussed in greater detail below, although there is money due
from Defendant to Plaintiff resulting from a secondary agreement
between the parties, there is no attorneys’ fees provision in
that agreement, and, therefore, attorneys’ fees are not
awardable as to that claim.
In other words, this court finds
that the recovery of funds due in this case occurs not as a
result of the lease agreement, but rather as a result of what
this court construes to be a separate agreement settling, in
part, claims that were threatened by Defendant prior to this or
related litigation.
The lease does not have a provision which addresses in any
fashion the payment of amounts under protest as described in the
Complaint.
Furthermore, no evidence has been submitted which
supports a finding as to the specific terms of any payments
under protest except as described above and contained in the
Complaint and the attached letter incorporated by reference.
This court construes the second claim for relief as a claim
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under a separate agreement, one arising from the terms of a
partial settlement.
As described above, Plaintiff made these
lease payments in an effort to forestall the legal action
threatened by Defendant.
(Compl. (Doc. 1) ¶ 38 (“Based on
[Defendant’s] improper demands and threats of legal action,
Monsanto has paid ARE-108 Base Rent in amounts that ARE-108
claims are owing under the Phase 1B Lease.”).)
By virtue of
accepting those disputed lease payments and not pursuing the
threatened legal action, whatever that action could have been,
it also appears Defendant accepted those terms. See, e.g.,
Erskine v. Chevrolet Motors Co., 185 N.C. 479, 489, 117 S.E.
706, 710 (1923)(“[W]here one makes a promise conditioned upon
the doing of an act by another, and the latter does that act,
the contract is not void for want of mutuality, and the promisor
is liable though the promisee did not at the time of the promise
engage to do the act; for upon performance of the condition by
the promisee, the contract becomes clothed with a valid
consideration, which relates back and renders the promise
obligatory.”).
With respect to whether or not the recovery of these
payments under protest arises under the original lease and
therefore subject to the attorneys’ fees provisions, this court
finds EAC Credit Corp. v. Wilson instructive.
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281 N.C. 140, 187
S.E.2d 752 (1972).
In a case involving a promissory note with
an attorneys’ fees provision and a related guaranty contract
which did not contain a separate attorneys’ fees provision, the
North Carolina Supreme Court held that “[t]he rights of the
plaintiff as against the guarantors, defendants herein, arise
out of the guaranty contract and must be based on that
contract.”
EAC, 281 N.C. at 145, 187 S.E.2d at 755.
The
Supreme Court held that “G.S. [§] 6-21.2 does not authorize
collection of attorneys’ fees in this action. The guaranty
contract sued upon does not so provide. Guaranty of payment
alone does not render the guarantors liable for attorneys' fees
which the principal debtor, by the terms of the note, is bound
to pay.”
Id. at 146-47, 187 S.E.2d at 756.
EAC is distinguishable on its facts.
Nevertheless, this
court finds that like the guaranty agreement in EAC, the
outstanding balance arises from an agreement which is separate
from the lease agreement.
Therefore, an award of attorneys’
fees as to the monies paid under protest must be based upon that
agreement and relatedly, statutory authorization.
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Neither the
allegations in the Complaint nor the letter2 indicate an
attorneys’ fees provision for that secondary agreement.
The
fact that the second cause of action is collateral to the lease
dispute coupled with the fact that Plaintiff reserved all rights
under the lease to recover attorneys’ fees are not together
sufficient to impose the lease agreement’s attorneys’ fees
provision on the partial settlement agreement.
Further, such
provisions do not render recovery under the settlement agreement
a recovery under the lease agreement.
Therefore, this court
finds that the dispute over the payments under protest arises
from a separate contract that did not contain a provision for
awarding attorneys’ fees nor has Plaintiff identified any
applicable statutory authority for such an award.
It is a very close issue as to whether the language in the
letter creates a separate attorneys’ fees obligation as to the
partial settlement agreement. (See Compl., Ex. 5 (Doc. 1-5) at 3
(“reserves, all rights it has under the Lease and applicable law
to recover interest on Contested 1B Payments, attorneys’ fees
and costs . . . .”).) That language may arguably be subject to
differing interpretations. However, this court concludes the
language in the letter is most reasonably read to reserve rights
under an existing contract rather than adding an attorneys’ fees
provision to a new contract, that is, the settlement agreement.
Even if the provision is ambiguous, this court reaches the same
conclusion. When construing an ambiguous provision in a written
instrument, “the court is to construe the ambiguity against the
drafter – the party responsible for choosing the questionable
language.” Novacare Orthotics & Prosthetics East, Inc. v.
Speelman, 137 N.C. App. 471, 476, 528 S.E.2d 918, 921 (2000).
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D.
Notice Requirement
In response to this court’s order for supplemental briefing
on the issue of attorneys’ fees, Defendant contended for the
first time that Plaintiff failed to serve notice as required
under N.C. Gen. Stat. § 6-21.2(5).
11.)
(Def.’s Br. (Doc. 61) at
Plaintiff responded that its Complaint “did not merely
seek attorneys’ fees, it gave notice to [Defendant] that it
could avoid the obligation to pay fees by paying the outstanding
balance in a timely fashion.”
(Pl.’s Br. (Doc. 62) at 12 n.5.)
This court does not find it necessary to reach this issue
because of the other grounds upon which attorneys’ fees are
denied.
IV.
CONCLUSION
For the reasons set forth herein, IT IS HEREBY ORDERED that
Plaintiff’s request for attorneys’ fees is DENIED.
This the 23rd day of June, 2014.
_______________________________________
United States District Judge
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