South Carolina Public Service Authority v. Weeks

• Decision Date: 13 October 1942
• Docket Number: 15454.
• Parties: SOUTH CAROLINA PUBLIC SERVICE AUTHORITY v. WEEKS et al.
• Court: South Carolina Supreme Court

22 S.E.2d 249

201 S.C. 199

SOUTH CAROLINA PUBLIC SERVICE AUTHORITY v. WEEKS et al.

No. 15454.

Supreme Court of South Carolina

October 13, 1942

Wm M. Wilson and Ben Hill Brown, both of Charleston, for appellant.

Norval N. Newell and Marion F. Winter, both of Monck's Corner and Stoney, Crosland & Pritchard, of Charleston, for respondents.

STUKES Justice.

This appeal requires the construction and application to the facts of the case of Section 10 of the State Authorities Eminent Domain Act, approved May 31, 1939, 41 Stat. 265, which is as follows: "§ 10. Abandon or dismiss condemnation proceedings.--At any time prior to the final conclusion of the condemnation proceeding provided for in this Act and prior to entry into possession by such State Authority, it may abandon, withdraw or dismiss such condemnation proceedings upon payment by it to the owner of all costs and expenses incurred by the owner, and the amount of such costs and expenses shall constitute a lien, for the payment thereof, upon any award theretofore deposited in said proceeding by said Authority."

Appellant undertook to condemn a parcel of real estate belonging to respondents and a Board of Referees was appointed pursuant to the terms of the aforementioned Act, took testimony and made an award which was signed by two members of the Board. Thereafter appellant, which had not taken possession of the property, elected to, and did, abandon the condemnation. Then a reference was had to ascertain the "costs and expenses incurred by the owner," the words of the Act, and the condemnor appealed from the inclusion in the findings of an item of $30 paid to one Ira C. Cox for his services according to the testimony, in obtaining witnesses for the landowner, inspecting and appraising the property, etc before the hearing by the Board, and an allowance of the sum of $400 for the fees of the attorneys for the landowners.

Appellant's exceptions were overruled by the Circuit Court and the sums mentioned were ordered to be paid by the condemnor which now appeals to this Court upon appropriate exceptions.

We agree with the disposition of the item of $30 which appears to be a most reasonable expenditure by the landowners for the services mentioned and it undoubtedly comes within the broad term, "expenses," used in the Act. Appellant complains that the recipient served afterward upon the Board of Referees as the member appointed by the landowners, but its strong argument in that connection is aimed rather at his competency as a referee (a question not presented by the appeal) than at the alleged impropriety of the incurring and payment of this item of expense by the condemnees. The exception relating to its allowance is overruled.

The questioned allowance of attorneys' fees presents a more difficult question. Appellant argues that such do not come within the quoted clause of the Act under construction for the lack of express reference therein to attorney's or counsel fees. However, under the facts of this case we do not think that question necessarily arises and, therefore, it is not decided.

One of the condemnees' counsel testified that there was a contract between the landowners and their attorneys that the latter were to receive as compensation "one-half of the amount recovered over and above what the Authority offered ***." Thus the agreement was for a contingent fee, contingent upon recovery and, incidentally, recovery of more than the amount offered for the land by the condemnor. This contingency never occurred, the event of recovery did not transpire, because the condemnation was abandoned, and the right to that course by the condemnor is not challenged.

The lower Court sustained the allowance of attorneys' fees upon the basis of quantum meruit, that under that theory the landowners were liable to the attorneys and the condemnor was held, therefore, liable to the former upon the authority of the decisions which uphold the recovery of counsel fees for dissolution of injunctions where plaintiffs' bonds indemnify against damages flowing from the injunctions, which the learned Circuit Judge considered language less broad than that of the quoted Act. But appellant well argues that even if counsel or attorneys' fees are included in the expression "costs and expenses," none may be recovered in this case because of the contingent fee agreement and because the contingency never occurred; in short, that on that account the landowners incurred no liability and therefore no recovery can be made of the condemnor for such fees.

Undoubtedly, generally where an attorney is discharged without cause by his client after they have entered into a contingent fee agreement, he is entitled to compensation. 5 Am.Jur., 364. South Carolina cases touching the question are found in 4 West's S.E.Dig. 565 et seq., Attorney and Client, k134-149.

The latter, however, is not the case now presented. No action on the part of the landowners prevented the happening of the contingency; it failed because of the abandonment of the condemnation by the appellant. The inevitable result is that the attorneys by force of the terms of their contract, voluntarily entered into, are entitled to no compensation. The case is novel in this jurisdiction, but the issue has been squarely met and so decided by eminent courts elsewhere, whose reasoning is clear and convincing, and no contrary decisions have been cited. And it appears that in the cases to which we shall refer the statutes involved provided expressly for the recovery of attorneys' fees upon abandonment of the proceedings or no question was made of the failure to include them eo nomine in the statutes.

In City of Long Beach v. O'Donnell et al., 91 Cal.App. 760, 267 P. 585, 586, it appeared that the ...