Sloan v. Friends of The Hunley Inc.

• Decision Date: 13 June 2011
• Docket Number: No. 26986.,26986.
• Citation: 711 S.E.2d 895,393 S.C. 152
• Court: South Carolina Supreme Court
• Parties: Edward D. SLOAN, Jr., individually and as a citizen, resident, taxpayer and registered elector of the State of South Carolina, and on behalf of all others similarly situated, Respondent,v.FRIENDS OF the HUNLEY, INC., and Warren F. Lasch, its Chairman,Of Whom Friends of the Hunley, Inc., is, Appellant.

393 S.C. 152

711 S.E.2d 895

Edward D. SLOAN, Jr., individually and as a citizen, resident, taxpayer and registered elector of the State of South Carolina, and on behalf of all others similarly situated, Respondent,

v.FRIENDS OF the HUNLEY, INC., and Warren F. Lasch, its Chairman,Of Whom Friends of the Hunley, Inc., is, Appellant.

No. 26986.

Supreme Court of South Carolina.

Heard April 6, 2011.Decided June 13, 2011.

Thornwell F. Sowell, Roland M. Franklin, Jr., and Bess J. DuRant, all of Sowell Gray Stepp & Laffitte, of Columbia, for Appellant.James G. Carpenter, Jennifer J. Miller, and L. Warren Clayton, III, all of Carpenter Law Firm, of Greenville, for Respondent.Justice KITTREDGE.

This is an appeal from an award of attorney's fees pursuant to the Freedom of Information Act. We conclude that Respondent Edward D. Sloan, Jr., was a “prevailing party” and the trial court properly awarded Sloan attorney's fees. However, in view of the law of this case in Sloan v. Friends of the Hunley, Inc. (Sloan I), 369 S.C. 20, 630 S.E.2d 474 (2006), we find the trial court erred in awarding fees beyond the time that Appellant Friends of the Hunley, Inc., provided the requested information to Sloan. We affirm in part and reverse in part.

I.

Friends of the Hunley, Inc., (Friends) is a non-profit corporation dedicated to the recovery and conservation of the H.L. Hunley Confederate submarine. Sloan is a citizen of Greenville County, South Carolina. In June 2001, Sloan submitted a Freedom of Information Act (FOIA) request to Friends seeking a list of documents ¹ pertaining to Friends' corporate structure and legal relationship with the Hunley Commission, a state agency. S.C.Code Ann. §§ 30–4–10 to –165 (2007 & Supp.2010) (FOIA). Friends denied that it was subject to FOIA and declined to produce the documents for Sloan.

Sloan filed a complaint on July 18, 2001, seeking production of the documents based on Friends' status either as a public body under FOIA or as an alter ego of the Hunley Commission. On August 16, 2001, approximately one month later, Friends fully complied with Sloan's document request, but stated that it was not tendering the documents “due to any concession that [Friends] is subject to the Freedom of Information Act,” but “in the spirit of cooperation.” Following a series of cross-motions, the trial court granted Friends' motion for summary judgment, finding Sloan lacked standing to maintain the action and that no justiciable controversy existed since Friends had produced the very documents sought in the complaint.

Sloan appealed that order, which was heard by this Court. Prior to oral argument, Friends conceded it was a public body for purposes of this action. In Sloan I, we affirmed the trial court's grant of summary judgment on the basis that the action was moot and non-justiciable in light of Friends' production of the documents.² 369 S.C. at 25–28, 630 S.E.2d at 477–478.

Following our decision, Sloan moved in the trial court for an award of attorney's fees under FOIA. In 2009, the trial court granted Sloan's motion and awarded attorney's fees to include those incurred from the beginning of the litigation up to the granting of the motion. Friends appealed, which we certified pursuant to Rule 204, SCACR.

II.

Friends challenges the FOIA-based attorney's fee award to Sloan. Specifically, Friends argues Sloan was not a prevailing party and, in any event, was not entitled to relief beyond the date the requested documents were produced.

“The decision to award or deny attorneys' fees under a state statute will not be disturbed on appeal absent an abuse of discretion.” Kiriakides v. Sch. Dist. of Greenville County, 382 S.C. 8, 20, 675 S.E.2d 439, 445 (2009) (citing Layman v. State, 376 S.C. 434, 444, 658 S.E.2d 320, 325 (2008)). “An abuse of discretion occurs when the conclusions of the trial court are either controlled by an error of law or are based on unsupported factual conclusions.” Id., 675 S.E.2d at 445 (quoting Layman, 376 S.C. at 444, 658 S.E.2d at 325). The issue before the Court presents a series of legal questions in terms of determining (1) whether Sloan may be considered a prevailing party under the FOIA statute; (2) if Sloan is a prevailing party, whether his entitlement to fees may extend beyond the production of the requested documents; and (3) whether the law of the case from Sloan I affects the time period for the attorney fee award.

Section 30–4–100(b) of our FOIA statute provides for an award of attorney's fees in a FOIA dispute:

If a person or entity seeking such [declaratory or injunctive] relief prevails, he or it may be awarded reasonable attorney fees and other costs of litigation. If such person or entity prevails in part, the court may in its discretion award him or it reasonable attorney fees or an appropriate portion thereof.

The initial question turns on whether Sloan was a prevailing party under the statute. While the statute does not define prevailing party, this Court has previously stated that a prevailing party is “one who successfully prosecutes an action or successfully defends against it, prevailing on the main issue, even though not to the extent of the original contention [and] is the one in whose favor the decision or verdict is rendered and judgment entered.” Heath v. County of Aiken, 302 S.C. 178, 182–83, 394 S.E.2d 709, 711 (1990) (alteration in original) (quoting Buza v. Columbia Lumber Co., 395 P.2d 511, 514 (Alaska 1964)).

Friends argues that Sloan was not a prevailing party under this definition “because Sloan did not receive any of the relief he requested in his complaint....” We reject Friends' position and agree with the trial court that Sloan was a prevailing party for purposes of the FOIA attorney's fees provision. We find persuasive the decision of the Montana Supreme Court in Havre Daily News, LLC v. City of Havre, 333 Mont. 331, 142 P.3d 864 (2006). The Havre court addressed whether the post-complaint voluntary production of disputed documents precludes prevailing party status to a plaintiff:

Although Havre correctly observes that the Newspaper did not technically “prevail” in its action in the District Court, the court granted summary judgment in favor of Havre precisely because Havre mooted the case by providing the Newspaper with unredacted copies of the Reports. Absent Havre's conduct, the case would not have become moot. In mooting the case, Havre provided the Newspaper with the very relief it sought to procure through litigation; thus, the Newspaper has prevailed in substance, albeit without court intervention. Given these circumstances, we will consider the Newspaper to be the prevailing party with respect to its request for unredacted copies of the Reports. Otherwise, a similarly situated party could, after extensive litigation, at the eleventh hour, and facing imminent defeat, simply moot a case in order to dodge this fee-shifting statute.

Id. at 878 (emphasis added). Similarly, under the facts of this case, we find that Sloan is the prevailing party under section 30–4–100(b). When a public body frustrates a citizen's FOIA request to the extent that the citizen must seek relief in the courts and incur litigation costs, the public body should not be able to preclude prevailing party status to the citizen by producing the documents after litigation is filed. SeeLitchfield Plantation Co. v. Georgetown County Water & Sewer Dist., 314 S.C. 30, 34, 443 S.E.2d 574, 576 (1994) (Toal, J., concurring in part, dissenting in part) (“A governmental agency should not be allowed to stonewall an FOIA request without some penalty for its actions.”); see also Wildlands CPR v. U.S. Forest Serv., ...