BROOKWOOD UNIT OWNERSHIP ASS'N v. Delon

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477 S.E.2d 225 (1996)

BROOKWOOD UNIT OWNERSHIP ASSOCIATION, Plaintiff, v. Welbon DELON and Barbara A. Delon, Defendants.

No. COA96-21.

Court of Appeals of North Carolina.

November 5, 1996.

*226 Hunter Law Firm by R. Christopher Hunter, Durham, and Gregg S. Pasternack, for plaintiff-appellee.

Paul G. Ennis, Chapel Hill, for defendants-appellants.

EAGLES, Judge.

Defendants first argue that the trial court erred in awarding reasonable attorney's fees in excess of fifteen percent of the plaintiff's judgment. Defendants argue that G.S. § 6-21.2(2) is controlling and provides the fifteen percent limitation on the recovery of attorney's fees. We disagree.

Plaintiff Association is a unit ownership project created prior to 1 October 1986 and organized pursuant to the North Carolina Unit Ownership Act. G.S. § 47A-1 to -37 (1983). Thereafter, effective 1 October 1986, the General Assembly enacted the North Carolina Condominium Act as codified at § 47C-1-101 et seq. (1986). Generally speaking, the Condominium Act applies prospectively "to all condominiums created ... after October 1, 1986." G.S. § 47C-1-102 (1986).

The Condominium Act also expressly lists, however, a number of sections which are to be retroactively applied to condominiums created prior to 1 October 1986.

One of these provisions, G.S. § 47C-4-117, expressly authorizes the recovery of attorney's fees and provides in pertinent part:

If a declarant or any other person subject to this chapter fails to comply with any provision hereof or any provision of the declaration or bylaws, any person or class of person adversely affected by that failure has a claim for appropriate relief. The court may award reasonable attorney's fees to the prevailing party.

G.S. § 47C-4-117 (1986). This statute is specific authority contained within the very Chapter that currently governs in part the operation of plaintiff Association. G.S. § 47C-1-102 expressly provides that G.S. § 47C-4-117 applies to plaintiff Association and all others similarly situated. Accordingly, we conclude that G.S. § 47C-4-117 is controlling here.

Defendant would have us believe that G.S. § 6-21.2(2) somehow supersedes G.S. § 47C-4-117 and creates a broad general rule that "reasonable" attorney's fees always means fifteen percent of the outstanding balance. We are not persuaded. In 1967, the General Assembly enacted G.S. § 6-21.2 as part of a package of provisions designed to amend the "Uniform Commercial Code `and other related statutes.'" Stillwell Enterprises, Inc. v. Equipment Co., 300 N.C. 286, 293, 266 S.E.2d 812, 816-17 (1980) (citations omitted). Nineteen years later, in 1986, the General Assembly enacted the North Carolina Condominium Act, which was based upon the Uniform Condominium Act promulgated by the National Conference of Commissioners on Uniform State Laws. Had the General Assembly wished that the recovery of attorney's fees under the Condominium Act be governed by G.S. § 6-21.2, the General Assembly could have included language to that effect. G.S. § 47C-4-117 is a subsequently enacted, more specific statute and, absent express direction from the General Assembly, we cannot give greater effect to the earlier, more general provisions of G.S. § 6-21.2.

*227 Defendant next argues that the trial court erred in failing to make findings of fact as to whether plaintiff's attorney's fees were "reasonable." We agree.

It is well-settled that when awarding reasonable attorney's fees, the trial court must make findings of fact to support the award. E.g., Hill v. Jones, 26 N.C.App. 168, 170, 215 S.E.2d 168, 170, disc. review denied, 288 N.C. 240, 217 S.E.2d 664 (1975).

[T]o determine if an award of counsel fees is reasonable, "the record must contain findings of fact as to the time and labor expended, the skill required, the customary fee for like work, and the experience or ability of the attorney" based on competent evidence.

West v. Tilley, 120 N.C.App. 145, 151, 461 S.E.2d 1, 4 (1995) (quoting United Laboratories, Inc. v. Kuykendall, 102 N.C.App. 484, 494, 403 S.E.2d 104, 111 (1991), aff'd, 335 N.C. 183, 437 S.E.2d 374 (1993) (citations omitted)). The record here contains no findings whatsoever with regard to the reasonableness of the attorney's fees awarded. Accordingly, we remand with direction to the trial court to make findings of fact as to the reasonableness of the attorney's fees sought to be recovered by plaintiff.

Affirmed in part, reversed in part and remanded.

JOHN C. MARTIN and SMITH, JJ., concur.