Williamson v. Middleton, No. 26689.

• Court: United States State Supreme Court of South Carolina
• Writing for the Court: Per Curiam
• Citation: 383 S.C. 490,681 S.E.2d 867
• Parties: WILLIAMSON and Company, Petitioners, v. Alfred C. MIDDLETON, Respondent.
• Decision Date: 27 July 2009
• Docket Number: No. 26689.

681 S.E.2d 867 383 S.C. 490 WILLIAMSON and Company, Petitioners,
v.
Alfred C. MIDDLETON, Respondent. No. 26689. Supreme Court of South Carolina. Heard April 9, 2009. Decided July 27, 2009. Rehearing Denied August 20, 2009.

[681 S.E.2d 868]

Desa Ballard, of West Columbia, for Petitioners.

James C. Parham, Jr., Wallace K. Lightsey, and Patricia S. Ravenhorst, all of Wyche, Burgess, Freeman & Parham, of Greenville, for Respondent.

PER CURIAM.

Following litigation between Petitioners Dan F. Williamson and Dan F. Williamson and Company (collectively "Williamson") and Respondent Alfred C. Middleton ("Middleton"), a former employee, the trial court awarded Middleton $35,000 in attorney's fees. The Court of Appeals upheld the award after en banc rehearing. Williamson v. Middleton, 374 S.C. 419, 649 S.E.2d 57 (Ct.App.2007). We granted certiorari. Williamson argues that the Court of Appeals committed various errors in hearing the case en banc, that there is no evidence on which to affirm the finding that Middleton would pay his attorneys, and that the attorney's fees are unreasonable. We reverse.

FACTS

Middleton worked for a number of years for Williamson as a salesman. Middleton received both an annual salary and commissions on sales contracts. During his employment, there was a dispute as to the amount of salary and commissions owed Middleton and he eventually resigned.

Middleton went to work with one of Williamson's suppliers. He continued to seek commissions he was due but Williamson refused his requests. Middleton then consulted with James C. Parham of the Wyche Burgess law firm, who was a personal friend of Middleton. On behalf of Middleton, Parham attempted to secure the payment of the commissions. Ultimately, Williamson filed suit against Middleton alleging breach of fiduciary duty, among other things. Middleton timely filed an Answer denying the allegations contained in the Complaint and asserting counterclaims

681 S.E.2d 869

based on the alleged non-payment of the commissions and wages owed him.

From the beginning, Williamson hindered the progress of the case by making vague and incomplete responses to interrogatories, cancelling multiple depositions and mediation at the last-minute, and attempting to add new parties and causes of action to the lawsuit despite the trial court's denial of a motion to amend the pleadings. Williamson's actions required Middleton's counsel to devote additional time to the case.

At trial, only Williamson's cause of action for breach of fiduciary duty went to the jury, which returned a verdict in favor of Middleton. The jury also considered Middleton's counterclaim for unpaid commissions and awarded him $906.62 in actual damages. The trial judge found Middleton was entitled to attorneys' fees. After Middleton presented records showing attorneys' fees totaling approximately $106,000, the trial judge awarded $35,000 in attorneys' fees. Williamson appealed to the Court of Appeals which reversed the award. Middleton petitioned for rehearing and the Court of Appeals granted rehearing en banc. The Court of Appeals en banc voted 5-4 to affirm the trial court's decision. Williamson, supra.

ISSUES

I. Did the Court of Appeals err in granting and conducting rehearing en banc?

II. Did the Court of Appeals err in concluding that there was competent evidence to support the trial court's finding that there was a fee agreement?

DISCUSSION

I. Court of Appeals Procedural Issues

Williamson argues on appeal that the Court of Appeals committed a number of procedural errors in granting and conducting rehearing en banc. We find no error.

Following the decision by the three-judge panel, Middleton petitioned for rehearing of the case and the Court of Appeals granted rehearing en banc. Though the endorsement letter showing that the Court of Appeals granted rehearing en banc shows the signatures of only five judges, six judges actually voted for rehearing.¹ After rehearing, the Court of Appeals en banc voted 5-4 to affirm the trial court's decision.

Williamson first argues that the Court of Appeals erred in granting rehearing en banc on the votes of only five judges because S.C.Code Ann. § 14-8-90(a)(1) requires six votes to hear a case en banc. S.C.Code Ann. 14-8-90(a)(1) (2008). As referenced above, a letter from the Clerk of the Court of Appeals explained that the signature of Judge Williams was mistakenly omitted from the endorsement letter. In fact, the Clerk explained that six judges voted to hear the case en banc. Consequently, Williamson's argument is without merit. Next, Williamson contends that even if six judges voted to hear the case en banc, sufficient grounds did not exist to support rehearing under Rule 219 of the South Carolina Appellate Court Rules (SCACR). We note that while Rule...