IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA25-968
Filed 7 October 2026
Guilford County, No. 25CV008856-400
MARISSA MUELLER, Plaintiff,
v.
ASHLEY LOFTUS, Defendant.
Appeal by Plaintiff Marissa Mueller from order entered 18 June 2025 by Judge
Caroline Pemberton in Guilford County District Court. Heard in the Court of Appeals
2 June 2026.
Lee M. Cecil for plaintiff-appellant.
Woodruff Family Law Group, by Carolyn J. Woodruff, J. Michelle Alcon, and
Y. Michael Yin for defendant-appellee.
STADING, Judge.
Marissa Mueller (“Plaintiff”) appeals from an order granting Ashley Loftus’s
(“Defendant”) motion for attorney’s fees in the amount of $3,640.00. For the reasons
below, we affirm.
MUELLER V. LOFTUS
Opinion of the Court
I. Background
On 25 April 2025, Plaintiff filed a verified complaint seeking a no-contact order
under N.C. Gen. Stat. § 50C-2. At the time of filing, Plaintiff was in a romantic
relationship with John Loftus, Defendant’s former husband. During that time,
Defendant and Mr. Loftus were engaged in a contentious child custody action.
Plaintiff’s complaint alleged that, during the fall of 2024: Defendant verbally
harassed Plaintiff at a children’s football game, followed her to a vehicle, opened the
rear door, and “yelled/cussed” at her; Defendant “cussed” and made derogatory
remarks to Plaintiff at “children’s football games[;]” Defendant repeatedly drove past
and photographed the residence where Plaintiff stayed with the “minor children” and
trespassed on that property. The complaint further alleged, during the spring of
2025: Defendant left voicemails at Plaintiff’s workplace, DRI Greensboro Imaging;
Defendant contacted Plaintiff’s director of nursing, facility manager, and front desk
staff; and called a pharmacy three times, stating that Plaintiff was not a licensed
nurse practitioner and that Defendant was “concerned” for her child’s safety with the
medication Plaintiff had prescribed.
That same day, the trial court entered an ex parte temporary no-contact order,
effective for ten days, and set 2 May 2025 as the date for a hearing on the Plaintiff’s
request for a permanent no-contact.
On 28 April 2025, Defendant filed a verified motion to dismiss, answer, and
motion for attorney’s fees, seeking fees under N.C. Gen. Stat. § 1A-1, Rule 11, and
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“N.C. Gen. Stat. § 50C et. seq.” Defendant denied the material allegations of the
complaint and, in verified responses supported by exhibits, asserted the following:
that on 19 April 2025, Defendant learned a prescription for Albuterol was ready for
her five-year-old son at a CVS Pharmacy; that the pharmacy printout identified
Plaintiff as the prescribing provider, and that the prescription had been called in from
Plaintiff’s place of employment at a time when the child was not in North Carolina;
that Plaintiff had prescribed the medication without examining the child; that the
North Carolina Board of Nursing’s online verification system showed Plaintiff’s nurse
practitioner approval was no longer active, leaving her with only an RN license in
this State; that a licensure specialist with the Board confirmed Plaintiff’s nurse
practitioner approval, which carries prescriptive authority, became inactive on 22
January 2025; and that Defendant thereafter contacted DRI Greensboro Imaging to
inquire about Plaintiff’s employment status and authority to prescribe medication,
leaving a message for Plaintiff’s supervisor and receiving a return call from Rachael
Limousin, the human resources director. Additionally, Defendant denied ever
driving past Plaintiff’s residence or following Plaintiff to any vehicle.
Defendant’s counsel issued subpoenas to Atrium Health Wake Forest Urgent
Care, the dispensing CVS Pharmacy, Ms. Limousin, and sought communication
records between Plaintiff’s employer and Defendant. Defendant incurred attorney’s
fees in connection with that preparation.
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Opinion of the Court
At approximately 5:17 p.m. on 1 May 2025, the evening before the scheduled
merits hearing, Plaintiff filed a notice of voluntary dismissal without prejudice, which
the clerk accepted the following morning. The notice stated that Plaintiff maintained
the truth of her allegations. Defendant’s motion for attorney’s fees remained pending
and was set for hearing on 21 May 2025.
Plaintiff did not appear at the 21 May 2025 hearing, although her counsel did.
No witnesses testified, and no evidence was taken until the close of the hearing, when
Defendant’s exhibits were admitted. At the outset, the trial court observed that
Plaintiff’s voluntary dismissal was proper, noting that Plaintiff “has the right to do
that.” The trial court then asked Defendant’s counsel to identify the statutory basis
for the fee request, to which counsel responded, “Bad faith, frivolous.”
The trial court examined the complaint’s allegations with counsel for both
parties. The trial court found Plaintiff’s allegations that Defendant had contacted
the director of nursing, facility manager, front desk staff, and the dispensing
pharmacy were “not frivolous[.]” The trial court further inquired and Plaintiff’s
counsel confirmed that Plaintiff had written the prescription for Defendant’s son and
acknowledged that Plaintiff had produced no telephone records, photographs, or other
corroboration of Defendant’s alleged actions. As to Defendant’s counsel’s argument
that Plaintiff’s last-minute dismissal came only after Defendant had issued
subpoenas and incurred fees, the trial court stated: “That’s the point that I’m trying
to get at, not the definition of harassment because it never got there, but the fact that
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Opinion of the Court
[Plaintiff] waited till an unreasonable time after your client had accumulated all
these fees.” Defendant’s counsel identified $3,640.00 in fees, supported by an
affidavit.
At the end of the hearing, the trial court ruled:
So I’m going to tell you this. She’s going to pay her attorney
fees. I find it unreasonable. I find it ridiculous . . . . To call
at 5:30 in the evening after she has had her go through all
this, got witnesses – she could have dismissed it earlier
than that . . . . So[,] the Court is going to grant the motion.
The trial court made the following pertinent findings of fact:
5. John Loftus paid the Plaintiff’s attorney’s fees, and the
filing of this Complaint was likely for an improper purpose.
6. Defendant had to expend attorney’s fees in preparing a
defense to Plaintiff’s Complaint, including issuing several
subpoenas and arranging for witnesses, including
professional witnesses, to refute Plaintiff’s claims.
8. Plaintiff’s Nurse Practitioner license in North Carolina
was not active at the time she prescribed a medication for
Defendant’s minor son, and Plaintiff knew or had reason to
believe that her license was suspended when she dispensed
the medication and at the time she filed her Complaint.
9. Defendant argues that Plaintiff dismissed her
Complaint because she was concerned that if she continued
with her Complaint she might be brought up on
disciplinary action by the Board of Nursing and possibly
face criminal charges for dispensing medication without a
license.
10. The Court finds that Plaintiff could have dismissed her
Complaint in a reasonable amount of time prior to the
hearing, before Defendant was forced to spend money on
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Opinion of the Court
attorney’s fees and arranging for witnesses to be present in
court rather than waiting until after-hours the evening
before the hearing.
11. Due to Plaintiff’s . . . actions in waiting until afterhours the evening before the hearing of her Complaint
Defendant incurred unnecessary and significant legal fees.
12. The Plaintiff did not appear for the attorney fee hearing
and did not give her attorney any evidence to offer to the
Court to contradict the Defendant’s evidence that she
dismissed her actions due to the possibility of being
disciplined by the Board of Nursing for dispensing
medication without a license.
13. The Court finds that Plaintiff dispensed medication to
Defendant’s minor child during a time when her Nurse
Practitioner License had expired and therefore subjected
her to disciplinary actions by the Board of Nursing in
addition to possibly criminal charges.
14. The Plaintiff’s Complaint is not well grounded in law
and fact and is not warranted by existing Law. It was filed
in bad faith, and this Court finds that it was for an
improper purpose.
15. The Defendant has incurred reasonable attorney’s fees
in defense of this action.
16. Pursuant to N.C.G.S. Chapter 50C-2 and G.S. 1A-1,
Rule 11, an award of attorney’s fees is proper.
17. Counsel for the Defendant, Attorney J. Michelle Alcon,
filed an affidavit regarding attorney’s fees on May 20, 2025.
A total of eight (8) hours of work was performed in
preparation for court, and two (2) hours of court time were
required in this matter.
18. Attorney J. Michelle Alcon delegated tasks to a
paralegal, Cheri Reaves, as is customary for most attorneys
in the area to keep costs down. Ms. Reaves is a certified
paralegal through the N.C. State Bar and her hourly rate
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Opinion of the Court
is $260.00.
19. Counsel for the Defendant, Attorney J. Michelle Alcon,
is duly licensed in the State of North Carolina and has been
so licensed since 2009. She is also a Board-Certified
Criminal Law Specialist. Her hourly rate is $390.00 per
hour. Attorney Alcon’s fees and rate are comparable to
other attorneys with her experience in this community and
State.
20. The expenses incurred on behalf of the Defendant by
Attorney Alcon are reasonable given her experience level,
time and effort expended in the case, and the Court’s
general awareness of attorneys’ rates in this jurisdiction.
The trial court therefore made the following relevant conclusions of law:
3. The Plaintiff’s filing of the Complaint and the
unreasonable delay in dismissing the action were in bad
faith.
4. Pursuant to N.C.G.S. Chapter 50C-2 and G.S. 1A-1, Rule
11, an award of attorney’s fees is proper.
5. The Defendant has incurred reasonable attorney’s fees
based upon the experience of Attorney Alcon, which is
reasonable based upon her experience and the rate of other
attorneys in this area.
The trial court ordered Plaintiff to pay Defendant’s attorney’s fees in the
amount of $3,640.00. Plaintiff timely entered her written notice of appeal.
II. Analysis
On appeal, Plaintiff maintains that the trial court failed to apply the correct
legal standard under N.C. Gen. Stat. § 1A-1, Rule 11(a) in assessing attorney’s fees
against her. Plaintiff also contends that the order’s findings of fact and conclusions
of law do not support the award of attorney’s fees.
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Opinion of the Court
Rule 11(a) of the North Carolina Rules of Civil Procedure provides, in pertinent
part:
The signature of an attorney or party constitutes a
certificate by him that he has read the pleading, motion, or
other paper; that to the best of his knowledge, information,
and belief formed after reasonable inquiry it is well
grounded in fact and is warranted by existing law or a good
faith argument for the extension, modification, or reversal
of existing law, and that it is not interposed for any
improper purpose, such as to harass or to cause
unnecessary delay or needless increase in the cost of
litigation . . . . If a pleading, motion, or other paper is
signed in violation of this rule, the court, upon motion or
upon its own initiative, shall impose upon the person who
signed it, a represented party, or both, an appropriate
sanction, which may include an order to pay to the other
party or parties the amount of the reasonable expenses
incurred because of the filing of the pleading, motion, or
other paper, including a reasonable attorney’s fee.
N.C. Gen. Stat. § 1A-1, Rule 11(a) (2025).
“The trial court’s decision to impose or not to impose mandatory sanctions
under N.C.G.S. § 1A-1, Rule 11(a) is reviewable de novo as a legal issue.” Turner v.
Duke Univ., 325 N.C. 152, 165, 381 S.E.2d 706, 714 (1989). Upon de novo review, we
determine “(1) whether the trial court’s conclusions of law support its judgment or
determination, (2) whether the trial court’s conclusions of law are supported by its
findings of fact, and (3) whether the findings of fact are supported by a sufficiency of
the evidence.” Id. Only “[i]f the appellate court makes these three determinations in
the affirmative” must it “uphold the trial court’s decision to impose or deny the
imposition of mandatory sanctions under N.C.G.S. § 1A-1, Rule 11(a).” Id.
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Opinion of the Court
Thus, appellate review of sanctions under Rule 11 “consists of a three-pronged
analysis: (1) factual sufficiency, (2) legal sufficiency, and (3) improper purpose,” and
“[a] violation of any one of these prongs requires the imposition of sanctions.” Jonna
v. Yaramada, 273 N.C. App. 93, 109, 848 S.E.2d 33, 47 (2020). For each prong, the
trial court must make findings of fact and conclusions of law. McClerin v. R-M Indus.,
Inc., 118 N.C. App. 640, 644, 456 S.E.2d 352, 355 (1995). The movant bears the
burden of proving a violation by a preponderance of the evidence. Auto. Grp., LLC v.
A-1 Auto Charlotte, LLC, 230 N.C. App. 443, 447–48, 750 S.E.2d 562, 566–67 (2013).
If the trial court properly granted Rule 11 sanctions, we review “the appropriateness
of the imposed sanction . . . for abuse of discretion.” Turner, 325 N.C. at 165, 381
S.E.2d at 714.
A. Factual Sufficiency
To assess the factual sufficiency of a pleading, this Court must determine “(1)
whether the plaintiff undertook a reasonable inquiry into the facts and (2) whether
the plaintiff, after reviewing the results of his inquiry, reasonably believed that his
position was well grounded in fact.” In re Thompson, 232 N.C. App. 224, 230, 754
S.E.2d 168, 173 (2014). An inquiry is reasonable if, “given the knowledge and
information which can be imputed to a party, a reasonable person under the same or
similar circumstances would have terminated his or her inquiry and formed the belief
that the claim was warranted under existing law.” Bryson v. Sullivan, 330 N.C. 644,
661–62, 412 S.E.2d 327, 336 (1992). That inquiry is not confined to the face of the
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Opinion of the Court
pleading; this Court looks to the entire record to determine whether Plaintiff
undertook a reasonable investigation before filing. See Hill v. Hill, 173 N.C. App.
309, 314–15, 622 S.E.2d 503, 507–08 (2005) (reviewing “the entire record” and finding
the “plaintiff failed to undertake a reasonable inquiry” into the factual basis of his
claim).
Plaintiff’s complaint sought a civil no-contact order on the grounds that she
was the victim of stalking. Chapter 50C defines stalking as “following or otherwise
harassing,” “[o]n more than one occasion” and “without legal purpose,” with the intent
either to “[p]lace the person in reasonable fear . . . for the person’s safety or the safety
of the person’s immediate family or close personal associates[,]” or to “[c]ause that
person to suffer substantial emotional distress by placing that person in fear of death,
bodily injury, or continued harassment and that in fact causes that person
substantial emotional distress.” N.C. Gen. Stat. § 50C-1(6) (2025).
At the hearing, Plaintiff’s counsel conceded Plaintiff had failed to produce
telephone records, photographs, or other evidence to support the allegations.
Nonetheless, the trial court entered the following finding of fact addressing the
complaint’s factual sufficiency: “Plaintiff’s Complaint is not well grounded in law and
fact . . . .” Such a conclusory finding cannot enable this Court to determine “whether
the trial court’s conclusions of law support its judgment or determination” or
“whether the trial court’s conclusions of law are supported by its findings of fact . . . .”
Turner, 325 N.C. at 165, 381 S.E.2d at 714; see also Bossian v. Chica, 297 N.C. App.
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1, 19, 910 S.E.2d 682, 696 (2024) (remanding for the trial court to make additional
findings because it failed to make findings of fact and conclusions of law regarding
improper purpose, “although there was information or evidence before the trial court
upon which it could make findings of fact”); see also In re Anderson, 151 N.C. App. 94,
564 S.E.2d 599 (2002) (holding that findings of fact in the context of N.C. Gen.
Stat. § 1A-1, Rule 52 “must be more than a recitation of allegations” and must
establish “specific ultimate facts” that are “determinative of the questions involved
in the action and essential to support the conclusions of law reached”). Therefore, we
next look to whether the imposition of attorney’s fees was proper pursuant to the
remaining two permissible grounds, legal sufficiency or improper purpose. See
Yaramada, 273 N.C. App. at 109, 848 S.E.2d at 47 (“A violation of any one of these
prongs requires the imposition of sanctions.”).
B. Legal Sufficiency
We turn next to the legal sufficiency of the complaint. To determine the legal
sufficiency:
[T]he court must first determine the facial plausibility of
the paper. If the paper is not facially plausible, then the
second issue is (1) whether the alleged offender undertook
a reasonable inquiry into the law, and (2) whether, based
upon the results of the inquiry, formed a reasonable belief
that the paper was warranted by existing law, judged as of
the time the paper was signed. If the court answers either
prong of this second issue negatively, then Rule 11
sanctions are appropriate.
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Mack v. Moore, 107 N.C. App. 87, 91, 418 S.E.2d 685, 688 (1992). Unlike factual
sufficiency, the facial-plausibility inquiry is confined to the four corners of the
challenged pleading itself. See Bryson, 330 N.C. at 656–57, 412 S.E.2d at 333–34
(“[T]he court must look at the face of the pleading and must not read it in conjunction
with responsive pleadings.”). The reasonableness of the pleader’s position is judged
“as of the time the document was signed,” without regard to matters developed
afterward. Id. at 656, 412 S.E.2d at 333.
For Plaintiff’s verified complaint to be facially plausible, she needed to allege
that she was a victim of “unlawful conduct committed by the respondent.” N.C. Gen.
Stat. § 50C-5(a) (2025). A “[v]ictim” is “[a] person against whom an act of unlawful
conduct has been committed by another person not involved in a personal relationship
with the person as defined in G.S. 50B-1(b).” Id. § 50C-1(8). Unlawful conduct
includes “[s]talking,” which occurs when a person, “on more than one occasion,
follow[s] or otherwise harass[es] another person without legal purpose” with the
intent to place that person in reasonable fear for their safety or cause them
substantial emotional distress. Id. § 50C-1(6). “Harassment,” under that statute,
means knowing conduct directed at a specific person “that torments, terrorizes, or
terrifies that person and that serves no legitimate purpose.” Id. § 14-277.3A(b)(2)
(2025). To this end, the complaint alleged two categories of conduct: a series of
incidents occurring in the fall of 2024 and spring of 2025. The two categories fare
differently under the facial-plausibility test. Although the fall 2024 allegations could
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Opinion of the Court
be facially plausible, the spring 2025 allegations are facially implausible. In any
event, our analysis turns on the improper purpose prong of Rule 11.
C. Improper Purpose
Our Supreme Court has held that “[t]he improper purpose prong of Rule 11 is
separate and distinct from the factual and legal sufficiency requirements.” Id. at 663,
412 S.E.2d at 337. “Thus, even if a paper is well grounded in fact and law, it may
still violate Rule 11 if it is served or filed for an improper purpose.” Brooks v. Giesey,
334 N.C. 303, 315, 432 S.E.2d 339, 345–46 (1993). “An improper purpose is any
purpose other than one to vindicate rights or to put claims of right to a proper test.”
Mack, 107 N.C. App. at 93, 418 S.E.2d at 689 (citation modified). “An objective
standard is used to determine the existence of an improper purpose, with the burden
on the movant to prove such improper purpose.” Coventry Woods Neighborhood Ass’n
Inc. v. City of Charlotte, 213 N.C. App. 236, 241, 713 S.E.2d 162, 166 (2011). “In this
regard, the relevant inquiry is whether the existence of an improper purpose may be
inferred from the alleged offender’s objective behavior.” Mack, 107 N.C. App. at 93,
418 S.E.2d at 689.
Rule 11(a) identifies “unnecessary delay” and “needless increase in the cost of
litigation” as improper purposes. N.C. Gen. Stat. § 1A-1, Rule 11(a). Improper
purpose may be inferred from “the filing of meritless papers by counsel who have
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extensive experience in the pertinent area of law . . . filing suit with no factual basis
for the purpose of fishing for some evidence of liability . . . and continuing to press an
obviously meritless claim after being specifically advised of its meritlessness by a
judge or magistrate.” Mack, 107 N.C. App. at 93, 418 S.E.2d at 689 (citation
modified). Importantly, the improper purpose prong includes conduct after a
pleading is filed: “once responsive pleadings or other papers are filed and the case has
become meritless, failure to dismiss or further prosecution of the action may result in
sanctions . . . under the improper purpose prong. . . .” Bryson, 330 N.C. at 658, 412
S.E.2d at 334.
The record evidence, including the trial court’s findings of fact and conclusions
of law, support an award of attorney’s fees resulting from an improper purpose. At
the time of filing, Plaintiff was in a romantic relationship with Defendant’s former
husband, John Loftus, while he and Defendant were engaged in a contentious child
custody dispute. On 25 April 2025, when Plaintiff filed her complaint, John Loftus,
who paid Plaintiff’s attorney’s fees, sent an ominous email to Defendant, stating that
he was doing his part “to make sure that there will be more to come [to Defendant]
on all fronts.” Three days later, Defendant filed a verified motion to dismiss,
response, and motion for attorney’s fees setting out, among other things, that
Plaintiff’s nurse practitioner license had lapsed at the time she prescribed medication
for Defendant’s son. Rather than dismissing the verified complaint at that point, or
shortly thereafter, Plaintiff allowed the matter to proceed while Defendant’s counsel
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Opinion of the Court
issued subpoenas and prepared witnesses for the scheduled hearing, incurring
attorney’s fees in the process. Plaintiff did not file her notice of voluntary dismissal
until 5:17 p.m. on 1 May 2025, the evening before the hearing. And Plaintiff’s
voluntary dismissal was not accepted by the clerk or served on Defendant’s counsel
until minutes before the case was set to be called the next morning. The trial court
found that “Plaintiff could have dismissed her complaint in a reasonable amount of
time” before Defendant incurred the expense of preparing for the hearing, and that
her delay caused Defendant to incur “unnecessary and significant legal fees.” The
trial court further found that Plaintiff, by prescribing medication without prescriptive
authority, “violate[d] her Nurse Practice Act,” and that she dismissed her complaint
because “she might be brought up on disciplinary action by the Board of Nursing” and
“potentially face criminal conduct” for dispensing medication without a license.
These findings are supported by the record and by the trial court’s own stated
reasoning at the hearing. Responding to Defendant’s counsel’s argument that
Plaintiff’s dismissal came only after Defendant had “accumulated all these fees,” the
trial court identified that timing, not the underlying merits, as “the point.” The trial
court’s ultimate ruling rested on the same ground: “To call at 5:30 in the evening after
she has had to go through all this, got witnesses – she could have dismissed it earlier
than that.”
The trial court found that Plaintiff’s filing of the complaint was “for an
improper purpose” and the unreasonable delay in dismissing the action was “in bad
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faith.” Given this, the trial court was permitted to impose sanctions. See Jonna, 273
N.C. App. at 109, 848 S.E.2d at 47 (“A violation of any one of these prongs requires
the imposition of sanctions.”). We therefore conclude that findings of fact nos. 6, 8, 9,
10, 11, 12, 13, 14, and 15 support the trial court’s conclusion of law that “Plaintiff’s
filing of the Complaint and the unreasonable delay in dismissing the action were in
bad faith,” and that, “[p]ursuant to N.C.G.S. Chapter 50C-2 and G.S. 1A-1, Rule 11,
an award of attorney’s fees is proper.”
For the reasons discussed above, the trial court’s findings pertaining to its
award of attorney’s fees are supported by sufficient evidence. See Turner, 325 N.C.
at 165, 381 S.E.2d at 714.
D. Challenged Findings
The trial court’s findings of fact “are binding on appeal as long as competent
evidence supports them, despite the existence of evidence to the contrary.” Asare v.
Asare, 281 N.C. App. 217, 236, 869 S.E.2d 6, 20 (2022) (citation omitted); see also
Turner, 325 N.C. at 165, 381 S.E.2d at 714 (stating, “whether the findings of fact are
supported by a sufficiency of the evidence”). “Competent evidence is evidence that a
reasonable mind might accept as adequate to support the finding.” MacDonald v.
MacDonald, ___ N.C. App. ___, 932 S.E.2d 254 (2026).
Specifically, Plaintiff argues the following findings of fact are not supported by
the evidence:
6. Defendant had to expend attorney’s fees in preparing a
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defense to Plaintiff’s Complaint, including issuing several
subpoenas and arranging for witnesses, including
professional witnesses, to refute Plaintiff’s claims.
8. Plaintiff’s Nurse Practitioner license in North Carolina
was not active at the time she prescribed a medication for
Defendant’s minor son, and Plaintiff knew or had reason to
believe that her license was suspended when she dispensed
the medication and at the time she filed her Complaint.
9. Defendant argues that Plaintiff dismissed her
Complaint because she was concerned that if she continued
with her Complaint she might be brought up on
disciplinary action by the Board of Nursing and possibly
face criminal charges for dispensing medication without a
license.
10. The Court finds that Plaintiff could have dismissed her
Complaint in a reasonable amount of time prior to the
hearing, before Defendant was forced to spend money on
attorney’s fees and arranging for witnesses to be present in
court rather than waiting until after-hours the evening
before the hearing.
11. Due to Plaintiff’s . . . actions in waiting until afterhours the evening before the hearing of her Complaint
Defendant incurred unnecessary and significant legal fees.
12. The Plaintiff did not appear for the attorney fee hearing
and did not give her attorney any evidence to offer to the
Court to contradict the Defendant’s evidence that she
dismissed her actions due to the possibility of being
disciplined by the Board of Nursing for dispensing
medication without a license.
13. The Court finds that Plaintiff dispensed medication to
Defendant’s minor child during a time when her Nurse
Practitioner License had expired and therefore subjected
her to disciplinary actions by the Board of Nursing in
addition to possibly criminal charges.
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14. The Plaintiff’s Complaint is not well grounded in law
and fact and is not warranted by existing Law. It was filed
in bad faith, and this Court finds that it was for an
improper purpose.
15. The Defendant has incurred reasonable attorney’s fees
in defense of this action.
Findings of fact nos. 6, 10, and 11 concern the expenses Defendant incurred in
preparing for the 2 May 2025 hearing and the effect of Plaintiff’s delayed dismissal.
The record tends to show Plaintiff did not dismiss her complaint until 5:17 p.m. on 1
May 2025, the evening before the hearing scheduled at 9:00 a.m. Defendant’s
attorney appeared in trial court the day of the hearing, having just learned of the
dismissal. Additionally, in anticipation of the hearing, Defendant’s attorney had to
prepare. In so doing, Defendant’s affidavits noted her service of subpoenas on Atrium
Health Wake Forest Urgent Care, CVS Pharmacy, and Plaintiff’s human resources
director. Sufficient evidence from the record supports findings 6, 10, and 11.
With respect to finding of fact no. 15, Plaintiff contends that the “significant
attorney’s fees incurred with respect to the status of Plaintiff’s nursing license” are
unreasonable, and “no evidence in the record supports” the trial court’s finding that
Defendant incurred reasonable attorney’s fees. Plaintiff, however, cites no legal
authority and offers no explanation why the trial court abused its discretion in
determining that the $3,640.00 fee award was reasonable. This argument is therefore
abandoned pursuant to Rule 28(b)(6) of the North Carolina Rules of Appellate
Procedure. See N.C. R. App. P. 28(b)(6). In any event, it is worth noting that
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Defendant’s counsel submitted an affidavit identifying $3,640.00 in attorney’s fees
incurred in defending the action. The affidavit reflects that counsel charged $390.00
per hour and the certified paralegal charged $260.00 per hour, for a total of $3,640.00.
The affidavit provides evidence of the hours expended, the rates charged, the work
delegated to the paralegal, and the total fee requested. Plaintiff offered no evidence
contesting the hours, the rates charged, or total amount at the hearing. Again,
sufficient evidence from the record supports this finding. Redevelopment Com. of
Hendersonville v. Hyder, 20 N.C. App. 241, 246, 201 S.E.2d 236, 239 (1973) (“There
are numerous factors for consideration in fixing reasonable attorney fees -- the kind
of case, the value . . . in question, the complexity of the legal issues, the time and
amount involved, fees customarily charged for similar services, the skill and
experience of the attorney, the results obtained, whether the fee is fixed or contingent,
all afford guidance in reaching the amount of a reasonable fee.”).
The evidence further supports the relevant portion of finding of fact no. 8: that
Plaintiff’s nurse practitioner approval was inactive when she prescribed Albuterol for
Defendant’s minor child. Defendant attached to her verified response: a pharmacy
printout identifying Plaintiff as the prescribing provider; materials from the Board of
Nursing; and correspondence from a licensure specialist stating that Plaintiff’s nurse
practitioner approval became inactive on 22 January 2025. Plaintiff’s counsel
acknowledged that Plaintiff had written the prescription for Defendant’s child. This
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Opinion of the Court
evidence supports the trial court’s finding that Plaintiff lacked active nurse
practitioner approval when she prescribed the medication.
Findings of fact nos. 9, 12, and 13 concern the circumstances surrounding
Plaintiff’s dismissal and the evidentiary posture of the fee hearing. The record
establishes that Plaintiff did not attend that hearing. Her counsel offered no evidence
to rebut Defendant’s evidence about the prescription, Plaintiff’s licensure status, or
Defendant’s investigation. Finding of fact no. 9, by its terms, recites Defendant’s
argument concerning Plaintiff’s motive for dismissal; it does not independently
establish that motive as an ultimate fact. In any event, the findings necessary to
support the Rule 11 award do not turn on a definitive determination that Plaintiff
dismissed the complaint to avoid potential professional discipline or criminal liability.
Similarly, to the extent the references in Findings of Fact 8 and 13 to a
“suspended” or “expired” license are imprecise, they do not affect the validity of the
fee award. The record tends to show that Plaintiff’s nurse practitioner approval was
inactive and that Defendant raised the prescription issue in her verified response
before the scheduled merits hearing. The determinative issue for the improper
purpose determination is that Plaintiff allowed Defendant to undertake trial
preparation and incur fees, then dismissed the complaint after business hours on the
evening before the scheduled hearing.
Finally, finding of fact no. 14 is a legal conclusion: that the complaint was not
well-grounded in fact or law and was filed in bad faith for an improper purpose. We
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Opinion of the Court
review those conclusions de novo. See Turner, 325 N.C. at 165, 381 S.E.2d at 714. As
discussed above, the supported findings concerning Plaintiff’s delay in dismissing the
action after Defendant incurred the expense of preparing for the hearing establish an
unnecessary delay and needless increase in the cost of litigation. Those facts support
the conclusion that Plaintiff acted for an improper purpose under Rule 11(a). The
trial court’s findings thus support its award of $3,640.00 attorney’s fees.
III. Conclusion
For the reasons above, we affirm the trial court’s order.
AFFIRMED.
Judges CARPENTER and GRIFFIN concur.
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