Lawson v. Sumter County Sheriff's Office, 3113.

• Citation: 528 S.E.2d 86,339 S.C. 133
• Decision Date: 07 February 2000
• Docket Number: No. 3113.,3113.
• Court: Court of Appeals of South Carolina
• Parties: Barbara LAWSON, as Personal Representative of the Estate of William Randolph Lawson, Appellant/Respondent, v. SUMTER COUNTY SHERIFF'S OFFICE, Respondent/Appellant. Harold V.Thames, Respondent/Appellant, v. Barbara Lawson, as Personal Representative of the Estate of William Randolph Lawson, Appellant/Respondent.

339 S.C. 133

528 S.E.2d 86

Barbara LAWSON, as Personal Representative of the Estate of William Randolph Lawson, Appellant/Respondent, v. SUMTER COUNTY SHERIFF'S OFFICE, Respondent/Appellant.

Harold V.Thames, Respondent/Appellant, v. Barbara Lawson, as Personal Representative of the Estate of William Randolph Lawson, Appellant/Respondent.

No. 3113.

Court of Appeals of South Carolina.

Heard December 7, 1999.

Decided February 7, 2000.

Edward M. Brown, of Brown & Roache; and Russell Brown, both of Charleston, for Appellant/Respondent.

George C. James, Jr., and John E. James, both of Richardson & James, of Sumter, for Respondent/Appellant.

HUFF, Judge:

Barbara Lawson (Mrs. Lawson) brought this action under the South Carolina Tort Claims Act against the Sumter County Sheriffs Office for the death of her husband, William Randolph Lawson (Mr. Lawson). Mr. Lawson was shot by a Sumter County sheriffs deputy, who was injured trying to effect Mr. Lawson's arrest. The deputy, in turn, filed suit for his injuries against Mrs. Lawson as the personal representative of her husband's estate, and she counterclaimed for violations of 42 U.S.C. § 1983. The parties entered a settlement, which included a provision for attorney's fees equal to 40% of the settlement. Mrs. Lawson, on behalf of her attorney, subsequently petitioned for attorney's fees under 42 U.S.C. 1988. The Sheriffs Office and Thames in turn moved for attorney's fees and costs incurred in responding to the petition. The trial court denied the request for additional attorney's fees, finding the previous settlement conclusive of the matter. He further denied the Sheriffs Office's and Thames' request for fees and costs. Mrs. Lawson as well as the Sheriffs Office and Thames appeal. We affirm.

FACTUAL/PROCEDURAL BACKGROUND

On January 22, 1996, the decedent, Mr. Lawson, was stopped by a deputy with the Sumter County Sheriffs Office and charged with speeding, open container violation, threatening the life of an officer, and carrying a concealed weapon. Thereafter, Lawson applied for pretrial intervention on certain of the charges. Lawson was apparently tried in his absence on some of the charges and was found guilty.

Subsequently, on February 26, 1996, Mr. Lawson was stopped by Harold V. Thames, a deputy with the Sumter County Sheriffs Office, who attempted to serve a warrant on Lawson. When Officer Thames attempted an arrest, Mr. Lawson tried to escape in his vehicle. Officer Thames became entangled in the open window of Mr. Lawson's moving vehicle. When Mr. Lawson purportedly refused to stop the vehicle or allow Officer Thames to disembark, Thames shot him, resulting in his death. Mrs. Lawson, as personal representative of her husband's estate, filed an action on March 25, 1996, against the Sumter County Sheriffs Office, asserting claims under the South Carolina Tort Claims Act. Officer Thames subsequently sued Mr. Lawson's estate for the injuries he received in the accident. Mrs. Lawson counterclaimed, raising claims under 42 U.S.C. § 1983.

Mrs. Lawson reached a settlement on all claims with the Sumter County Sheriffs Office and Officer Thames for $125,000. Of this amount, $115,000 was allocated to a wrongful death cause of action, and $10,000 for a survival claim and "any and all other claims of this estate arising from this accident." The settlement was approved by circuit court order dated October 7, 1997. The order provided that in accordance with the agreement of the parties, Mrs, Lawson's attorney, Edward M. Brown, was to receive 40% of the settlement amount as payment of attorney's fees. That same day, Mrs. Lawson executed a "RELEASE" which released the Sumter County Sheriff's Office and Thames from "all claims made or that could be made by the undersigned" arising from the incident. Lawson received payment in accordance with the settlement and order approving the settlement.

Although Brown was paid the $50,000 in fees pursuant to the settlement, in November 1997 he filed a petition for attorney's fees in connection with this action. In the petition, Brown asked for attorney's fees pursuant to 42 U.S.C. § 1988 in the amount of $120,006.25, for 685.75 hours at $175 per hour. Officer Thames and the Sheriffs Office opposed the petition and moved for attorney's fees and sanctions under Rule 11, SCRCP on the basis Brown's petition was "frivolous."

Subsequent to the hearing on the petition, Brown submitted a document dated November 19, 1996 signed by Mrs. Lawson which purportedly assigned to him any right to attorney's fees under § 1988. On December 10, 1997, the trial court issued its order denying the petition for additional attorney's fees, finding the issue was disposed of in the October 7, 1997 order putting into effect the settlement of the parties. The court noted the settlement disposed of all claims between the parties and authorized Mrs. Lawson to pay Brown from the gross proceeds of the settlement. The court stated if the parties had intended to reserve the issue of additional attorney's fees, "such intention should have been disclosed at the hearing [on the petition for settlement]."

The trial court subsequently granted the Rule 59(e), SCRCP motion of the Sheriffs Office and Thames to amend the order denying additional attorney's fees so as to clarify that the "denial is as to both [Mrs. Lawson and her] attorney, Edward M. Brown, Esq., in his capacity as attorney for the Estate in this matter and individually under any note or assignment executed by the Personal Representative for the Estate for said fees."¹ The court also denied the request by Thames and the Sheriffs Office for Rule 11 sanctions and attorney's fees to be assessed against Brown. Mrs. Lawson appeals the denial of attorney's fees. The Sheriff's Office and Thames also appeal, asserting the trial court should have granted their motion for attorney's fees and sanctions under Rule 11, SCRCP on the basis the petition for attorney's fees above and beyond the amount provided in the settlement was frivolous.

A. Appeal of Mrs. Lawson

Mrs. Lawson asserts the trial court erred in denying the petition for attorneys fees under 42 U.S.C. § 1988. We disagree.

Section 1983 allows recovery for the deprivation of civil rights as follows:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress....

42 U.S.C. § 1983.

Section 1988 provides for the recovery of attorney's fees to the prevailing party in a § 1983 action. It states in pertinent part:

In any action or proceeding to enforce a provision of sections 1981, 1981a, 1982, 1983, 1985, and 1986 of this title ... the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney's fee as part of the costs....

42 U.S.C. § 1988(b).

A "prevailing party" includes a party who has obtained a settlement of claims under § 1983. Maher v. Gagne, 448

U.S. 122, 100 S.Ct. 2570, 65 L.Ed.2d 653 (1980). Thames and the Sheriff's Office do not dispute that Mrs. Lawson qualifies as the prevailing party under § 1988. Thus, her settlement does not preclude recovery under § 1988. However, in this case, Mrs. Lawson executed a settlement and Release which purported to settle all claims arising out of the death of her husband, and it specifically directed that 40% of the proceeds be paid as compensation for attorney's fees. In her Petition dated October 7, 1997, Mrs. Lawson asked the court to approve the settlement. In paragraph 13, she "represent[ed] to the court that she has an agreement with her counsel for the payment of attorney[`]s fees for counsel's representation of the petitioner and the estate in this matter and that pursuant to such agreement, the total sum of forty (40) percent of the gross settlement should be authorized for payment to her counsel from the proceeds of this settlement as attorneys fees." (emphasis added).

The settlement order of the same date included the following provision as to attorney's fees:

The petitioner has agreed with her attorney that he should be paid forty (40) percent of the gross proceeds of this settlement; the court has reviewed the matter and under these circumstances, concludes that such is reasonable, and from the proceeds of settlement, the sum of forty (40) percent of the gross settlement is authorized as payment of attorney's fees.

The order further provided the amount paid by the defendants was "in full settlement of all claims arising from the death of the petitioner's decedent."²

In its December 10, 1997 order denying attorney's fees, the trial judge found the issue of attorney's fees was "completely and fairly disposed of in [the October 7 order] putting into effect the Settlement Agreement between the parties," noting Mrs. Lawson was authorized by the agreement to pay her attorney from the gross proceeds of the settlement. He further cited the United States Court of Appeals' commentary in the case of Bell v. Schexnayder, 36 F.3d 447, 450 (5th Cir.1994) as follows:

To the extent that plaintiffs counsel harbored a secret intent to seek attorney's fees—after

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