Seabrook Island Property v. Berger

Decision Date05 July 2005
Docket NumberNo. 4012.,4012.
Citation616 S.E.2d 431
CourtSouth Carolina Supreme Court
PartiesSEABROOK ISLAND PROPERTY OWNERS' ASSOCIATION, Respondent, v. Joseph A. BERGER, Appellant.

Paul A. James, of Mt. Pleasant, for Appellant.

David B. Wheeler and Edward T. Fenno, of Charleston, for Respondent.

ANDERSON, J.:

Joseph A. Berger appeals the trial court's order assessing attorney's fees in the amount of $39,194.08 in favor of Seabrook Island Property Owners' Association (Seabrook). Berger argues the award is excessive and the trial court abused its discretion by refusing to allow him to testify in person at trial. We affirm.

FACTUAL/PROCEDURAL BACKGROUND

This case arises out of a dispute between Berger, who is a resident of Seabrook Island, and Seabrook. The dispute began in 1997 when Seabrook notified Berger that his floating dock and unkempt yard violated Seabrook's covenants. Seabrook alerted Berger to the violations on numerous occasions and informed him of assessments he was incurring for failing to remedy the problems. After Berger neglected to correct the violations, Seabrook referred the matter to its attorney, David Wheeler, for enforcement and collection.

Over the course of the next couple of years, Wheeler and his associates sent many letters to Berger and his attorneys. Wheeler followed up with numerous attempts to resolve the matter. After these attempts failed, Seabrook filed suit against Berger seeking injunctive relief and recovery of assessments levied for violations of the covenants. The case was tried before Judge Roger M. Young who granted Seabrook injunctive relief, $43,945, and attorney's fees and costs in an amount to be determined.

Berger appealed Judge Young's order. The attorney's fees determination was stayed pending the outcome of the appeal. We affirmed Judge Young's order in an unpublished opinion. Seabrook Prop. Owners Ass'n Berger, Op. No. 2003-UP-417 (Ct.App. filed June 19, 2003).

On December 10, 2003, Seabrook petitioned the trial court to render an award of attorney's fees and costs, and included itemized invoices detailing the costs it incurred. Thereafter, Berger requested a hearing, and the matter was set for February 23, 2004 before Judge Mikell R. Scarborough. At the hearing, Berger's attorney requested that Berger be permitted to testify to contest specific items in the bills. The judge declined the request due to time considerations, but allowed Berger to submit a post-hearing affidavit setting forth his testimony. The trial judge further requested that Berger provide information about his own attorney's fees and asked him to outline why he thought Seabrook's attorney's fees were excessive.

After reviewing Berger's affidavit, the trial judge ruled that Seabrook had established the reasonableness of its attorney's fees and awarded Seabrook attorney's fees in the amount of $39,194.08. Berger filed a motion to vacate, alter, or amend the judgment and requested an opportunity to testify in person. The trial judge denied the motion.

LAW/ANALYSIS
I. Reasonableness of Attorney's Fees

Berger argues the trial court's award of attorney's fees should be vacated or reduced because it was excessive and punitive in nature. We disagree.

The general rule is that attorney's fees are not recoverable unless authorized by contract or statute. Blumberg v. Nealco, Inc., 310 S.C. 492, 493, 427 S.E.2d 659, 660 (1993) (citing Baron Data Sys., Inc. v. Loter, 297 S.C. 382, 377 S.E.2d 296 (1989); Hegler v. Gulf Ins. Co., 270 S.C. 548, 243 S.E.2d 443 (1978); Collins v. Collins, 239 S.C. 170, 122 S.E.2d 1 (1961)). "In South Carolina, the authority to award attorney's fees can come only from a statute or be provided for in the language of a contract. There is no common law right to recover attorney's fees." Harris-Jenkins v. Nissan Car Mart, Inc., 348 S.C. 171, 176, 557 S.E.2d 708, 710 (Ct.App.2001) (citing Jackson v. Speed, 326 S.C. 289, 486 S.E.2d 750 (1997); American Fed. Bank, FSB v. Number One Main Joint Venture, 321 S.C. 169, 467 S.E.2d 439 (1996); Blumberg v. Nealco, Inc., 310 S.C. 492, 427 S.E.2d 659 (1993); Baron Data Sys., Inc. v. Loter, 297 S.C. 382, 377 S.E.2d 296 (1989); Dowaliby v. Chambless, 344 S.C. 558, 544 S.E.2d 646 (Ct.App.2001); Harvey v. South Carolina Dep't of Corrections, 338 S.C. 500, 527 S.E.2d 765 (Ct.App.2000); Global Protection Corp. v. Halbersberg, 332 S.C. 149, 503 S.E.2d 483 (Ct.App.1998); Prevatte v. Asbury Arms, 302 S.C. 413, 396 S.E.2d 642 (Ct.App.1990)).

"Restrictive covenants are contractual in nature." Hoffman v. Cohen, 262 S.C. 71, 75, 202 S.E.2d 363, 365 (1974); see also Seabrook Island Property Owners Ass'n v. Pelzer, 292 S.C. 343, 347, 356 S.E.2d 411, 414 (Ct.App.1987) ("Restrictive covenants are contractual in nature and bind the parties thereto in the same manner as any other contract.") (citation omitted).

The trial judge's order analyzes Seabrook's contractual basis for recovery of attorney's fees as follows:

Section 2 of The Protective Covenants for the Seabrook Island Development, as amended (the "Covenants"), binds all property owners in the Development to the obligations set forth in the Covenants and derivative regulations; Paragraph 2(e) addresses the adoption, distribution, and enforcement of the regulations for the common good, including regulations for the design and construction of improvements on and for the maintenance of property, as well as sanctions for violations. Section 3 of the Covenants provides that the Board of Directors of the SIPOA has the right to bill for fees, charges, costs and assessments contemplated by the Covenants and/or imposed pursuant to the SIPOA's Bylaws, as amended from time to time, and to institute legal proceedings to collect such sums, "including the right to charge and collect all necessary attorneys' fees, court costs and other collection expenses." Section 7.3 of the Bylaws of the SIPOA, as amended, provides for Plaintiff to recover its attorneys' fees and costs incurred in actions to collect amounts due and owing. Section 8.5 of the Bylaws provides that in any action to enforce the covenants, the Bylaws or rules and regulations of the SIPOA, "the Property Owner, tenant, guest, invitee or other person responsible for the violation of which abatement is sought shall pay all costs, including reasonable attorneys' fees actually incurred."

We are, accordingly, dealing with a contract-based attorney's fee award.

"Where there is a contract, the award of attorney's fees is left to the discretion of the trial judge and will not be disturbed unless an abuse of discretion is shown." Baron Data Sys., Inc. v. Loter, 297 S.C. 382, 384, 377 S.E.2d 296, 297 (1989) (citing Smith v. Smith, 264 S.C. 624, 216 S.E.2d 541 (1975); Nelson v. Merritt, 281 S.C. 126, 314 S.E.2d 840 (Ct.App.1984)); accord Blumberg, 310 S.C. at 493, 427 S.E.2d at 660. "Where an attorney's services and their value are determined by the trier of fact, an appeal will not prevail if the findings of fact are supported by any competent evidence." Baron Data Sys., 297 S.C. at 384, 377 S.E.2d at 297 (citing Singleton v. Collins, 251 S.C. 208, 161 S.E.2d 246 (1968)).

There are six factors to consider in determining an award of attorney's fees: 1) nature, extent, and difficulty of the legal services rendered; 2) time and labor devoted to the case; 3) professional standing of counsel; 4) contingency of compensation; 5) fee customarily charged in the locality for similar services; and 6) beneficial results obtained. Blumberg, 310 S.C. at 494, 427 S.E.2d at 660 (citing Collins v. Collins, 239 S.C. 170, 122 S.E.2d 1 (1961)); Jackson v. Speed, 326 S.C. 289, 308, 486 S.E.2d 750, 760 (1997); Burton v. York County Sheriff's Dept., 358 S.C. 339, 358, 594 S.E.2d 888, 898 (Ct.App.2004); Weatherford v. Price, 340 S.C. 572, 580, 532 S.E.2d 310, 314 (Ct.App.2000). On appeal an award of attorney's fees will be affirmed so long as sufficient evidence in the record supports each factor. Blumberg, 310 S.C. at 494, 427 S.E.2d at 660.

In the case sub judice, the trial judge made detailed findings of fact and considered the six factors enumerated in Blumberg in concluding the attorney's fees were reasonable and customary. The judge noted the case took more than six years to resolve, included an appeal, and constituted 250 hours of attorney time. The rates outlined in the itemized billing records reflected Wheeler's normal rates for similar litigation, were customary for the community, and showed Wheeler made numerous attempts to resolve the matter short of trial. Additionally, Wheeler is a respected practitioner in the area of homeowners' association law and achieved a beneficial result in this case.

Berger's arguments that he spent less money than Seabrook on attorney's fees and that the case was "not complicated" enough to warrant the award do not persuade us that the trial judge abused his discretion. Berger represented himself at various stages in the dispute. The judge found the issues presented were "complex" and cited Judge Young's order noting the "lengthy litigation process." Based upon the trial court's written findings and our review of the record, we find the trial court did not abuse its discretion in determining the amount of attorney's fees.

Additionally, Berger's argument the award of attorney's fees was punitive in nature is without merit. The only issue before the trial court was the assessment of attorney's fees and costs to Seabrook. There is no evidence the award was excessive or punitive in nature. Seabrook presented ample evidence indicating it actually incurred the fees awarded.

II. No Right to Testify

Berger argues the trial court erred by requiring that he submit an affidavit contesting the reasonableness of Seabrook's attorney's fees, rather than allowing him to testify live at the hearing. Berger further contends his live testimony would have better enabled him to address his objections to...

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