Okwara v. Dillard Dept. Stores, Inc.

• Decision Date: 15 February 2000
• Docket Number: No. COA99-309.,COA99-309.
• Citation: 136 NC App. 587,525 S.E.2d 481
• Court: North Carolina Court of Appeals
• Parties: Chiege Kalu OKWARA v. DILLARD DEPARTMENT STORES, INC., and Town of Pineville, and Walter B. Rorie.

525 S.E.2d 481

136 NC App. 587

Chiege Kalu OKWARA v. DILLARD DEPARTMENT STORES, INC., and Town of Pineville, and Walter B. Rorie.

No. COA99-309.

Court of Appeals of North Carolina.

February 15, 2000.

Daly & Daly, P.A., by George Daly, Charlotte, for plaintiff-appellant.

Underwood Kinsey Warren & Tucker, P.A., by C. Ralph Kinsey, Jr., Charlotte, for defendant-appellee Dillard Department Stores, Inc.

Bailey & Dixon, L.L.P., by Patricia P. Kerner, Raleigh, for defendant-appellee Town of Pineville.

MARTIN, Judge.

Plaintiff Chiege Kalu Okwara filed suit against Officer Walter B. Rorie, Dillard Department Stores ("Dillard") and the Town of Pineville ("Town") on 2 December 1994, alleging negligent hiring, defamation, slander per se, race discrimination, violations of 42 U.S.C. §§ 1981 and 1983, infliction of emotional distress, false imprisonment, battery, and assault. These allegations stemmed from a 10 December 1993 incident at a Dillard Department Store in Pineville, North Carolina, in which defendant Rorie, an offduty Pineville police officer working as a security guard for Dillard, investigated a report that plaintiff was shoplifting. Plaintiff alleged that she was investigated as a result of a race-based shoplifter profile, and also alleged that during Rorie's investigation, he struck her in the stomach, made derogatory and defamatory statements to her, and restrained her against her will.

Plaintiff's claims against Dillard and the Town for negligent employment and civil rights violations were dismissed pursuant to an order of summary judgment entered 14 December 1995. On 30 August 1996, plaintiff's remaining claims were dismissed as a sanction for failing to comply with previous discovery orders, and plaintiff was taxed with costs. Plaintiff appealed. By opinion filed 17 February 1998, this Court affirmed. Okwara v. Dillard Dept. Stores (unpublished, COA97-438, 128 N.C.App. 748, 496 S.E.2d 851 (1998)). Plaintiff's petition to the North Carolina Supreme Court for discretionary review was denied on 8 July 1998. Okwara v. Dillard Dept. Stores, 348 N.C. 499, 510 S.E.2d 652 (1998).

Both Dillard and Pineville moved for an order taxing plaintiff with costs, including attorneys' fees incurred in defending plaintiff's claims asserted under federal civil rights laws, 42 U.S.C. §§ 1981 and 1983. On 7 December 1998, the trial court entered a Judgment for Costs taxing plaintiff with costs, including attorneys' fees, incurred by both Dillard and the Town.

The trial court found, inter alia:

25. Discovery conducted by the parties in this action disclosed that there was no evidence to support Plaintiff's claims under Section 1983 against either the Town or Dillard. As clearly demonstrated by Plaintiff's sworn deposition testimony and interrogatory answers, Plaintiff did not have one scintilla of evidence to support her Complaint allegations with respect to these claims at the time she filed the Complaint and did not present any competent evidence to support them in opposition to the Town's and Dillard's Motion for Summary Judgment.

26. In her memorandum filed with this Court in opposition to the Motions for Summary Judgment, Plaintiff did not point to a single fact supporting her speculative allegations that the Town had an official policy to use a profile to identify shoplifters based on the race of the individual and that Dillard authorized and condoned Defendant Rorie's supposed use of such a policy.

27. Plaintiff made her allegations in her Verified Complaint with respect to her purported Section 1983 claims (Second Cause of Action) against Dillard and the Town and prosecuted such claims through their dismissal based upon her own conjecture and speculation. Plaintiff's Section 1983 claims (Second Cause of Action) were not well-grounded in fact when Plaintiff filed her Verified Complaint and she did not develop or produce any evidence whatsoever to support her speculative allegations prior to the dismissal of such claims.

28. Plaintiff's Verified Complaint established that each of her purported eight (8) Causes of Action arose out of a common nucleus of operative facts and that each such Cause of Action was inextricably interwoven with the others. The work of Dillard's and the Town's counsel on the case was directed at all claims until their and the Town's Motions for Summary Judgment were heard and decided on December 14, 1995. Because all of Plaintiff's claims arose out of the same set of facts and related legal theories, all of the work of the attorneys for Dillard and the Town prior to that hearing, including extensive discovery (with the exception of some research time directed specifically at other claims), related to the litigation as a whole.

The trial court also made seventeen findings of fact regarding the hourly rates charged by defendants' counsel and the time spent in defense of plaintiff's claims.

The trial court reached the following conclusions of law:

1. This Court lacked jurisdiction to enter any order taxing costs until the mandate of the Court of Appeals was issued remanding this matter back to the Mecklenburg County Superior Court.

2. The North Carolina General Statutes set no specific deadline for filing a Motion for Costs.

3. Defendants Dillard and the Town were the prevailing parties in this action.

4. Plaintiff's claims pursuant to 42 U.S.C. § 1983 against Defendants Dillard and the Town were frivolous, unreasonable and groundless.

5. All of Plaintiff's claims involved a common core of facts and related legal theories.

6. The fees sought by Defendant Dillard for work done by attorneys and paralegals before the entry of partial summary judgment on December 14, 1995, are reasonable, and the Court concludes, in its discretion that $65,111.00 for fees incurred by Defendant Dillard should be taxed as costs in this action.

7. The fees sought by Defendant the Town for work done by attorneys and paralegals before the entry of partial summary judgment on December 14, 1995, are reasonable, and the Court concludes, in its discretion, that $39,286.00 for fees incurred for the defense of the Town should be taxed as costs in this action.

8. Fees incurred by Defendants Dillard and the Town in defending this action after partial summary judgment was entered on December 14, 1995, cannot be taxed by the Court as costs in this action.

The trial court awarded costs and attorneys' fees to Dillard in the amount of $70,949.51 and to the Town in the amount of $40,735.00. Plaintiff appeals.

In each of her arguments to this Court, plaintiff challenges both the sufficiency of the evidence to support certain of the trial court's findings of fact, and the conclusions of law drawn from these findings. Plaintiff, however, has not assigned error to any of the trial court's findings. Appellate review is confined to a consideration of issues presented by proper assignments of error set out in the record on appeal. Wade v. Wade, 72 N.C.App. 372, 325 S.E.2d 260, disc. review denied, 313 N.C. 612, 330 S.E.2d 616 (1985). Where findings of fact are challenged on appeal, each contested finding of fact must be separately assigned as error, and the failure to do so results in a waiver of the right to challenge the sufficiency of the evidence to support the finding. Taylor v. N.C. Dept. of Transportation, 86 N.C.App. 299, 357 S.E.2d 439 (1987); Concrete Service Corp. v. Investors Group, Inc., 79 N.C.App. 678, 684, 340 S.E.2d 755, 759-60, cert. denied, 317 N.C. 333, 346 S.E.2d 137 (1986) (finding that the failure of appellant to "except and assign error separately to each finding or conclusion that he or she contends is not supported by the evidence ... will result in waiver of the right to challenge the sufficiency of the evidence to support particular findings of fact"). Where an appellant fails to assign error to the trial court's findings of fact, the findings are "presumed to be correct." Inspirational Network, Inc. v. Combs, 131 N.C.App. 231, 235, 506 S.E.2d 754, 758 (1998). Our review, therefore, is limited to the question of whether the trial court's findings of fact, which are presumed to be supported by competent evidence, support its conclusions of law and judgment. Taylor v. N.C. Dept. of Transportation, supra. Plaintiff argues the conclusions of law are erroneous because (1) defendants were timebarred from seeking attorneys' fees two years after the federal claims were dismissed; (2) the facts found do not justify an award of attorneys' fees according to the standard set forth in 42 U.S.C. § 1988; (3) the award was unreasonable; and (4) at least a portion of the award should be nullified because it was incurred for work unrelated to the federal civil rights claims. We have carefully considered her arguments and find no basis upon which to disturb the trial court's judgment.

I.

Plaintiff first contends defendants' claim for attorneys' fees was time-barred. Citing F.R. Civ. P. 54(d)(2)(B) requiring motions for attorneys' fees to be filed within fourteen days following the entry of judgment, plaintiff argues we should apply a "rule of reasonableness" and find that it was violated by the "unreasonable and prejudicial" two year time period between the partial summary judgment order and the attorneys' fee motions. The fourteen day rule contained in F.R. Civ. P. 54(d)(2)(B) clearly does not apply to litigation pending in our State courts and the North Carolina Rules of Civil Procedure contain neither a counterpart to F.R. Civ. P. 54(d)(2)(B) nor a deadline for filing a motion for costs and fees. Rather, "[t]he usual practice in awarding attorneys' fees is to make the award at the end of the litigation when all the work has been done and all the results are known." Baxter v. Jones, 283 N.C. 327, 331, 196 S.E.2d 193, 196 (1973).

As established by the record and the trial court's findings, the litigation was ended on 8 July 1998 when plaintiff's petition for discretionary review was denied by the North Carolina...