Williamson v. Middleton, Opinion No. 4135 (S.C. App. 7/10/2006)
| Decision Date | 10 July 2006 |
| Docket Number | Opinion No. 4135. |
| Parties | Dan F. Williamson and Dan F. Williamson and Company, Appellants, v. Middleton, Alfred C., Respondent. |
| Court | South Carolina Court of Appeals |
Appeal From Greenville County, C. Victor Pyle, Jr., Circuit Court Judge.
REVERSED.
Desa A. Ballard, of W. Columbia, for Appellants.
James C. Parham, Jr. and Patricia S. Ravenhorst, both of Greenville, for Respondent.
Dan F. Williamson and Dan F. Williamson and Company (collectively, "Williamson") appeal from the trial court's award of attorney's fees to Alfred C. Middleton. Williamson argues that Middleton is not entitled to attorney's fees, or in the alternative, that the criteria for awarding attorney's fees were not met in this case. We reverse.
For several years, Middleton worked for Williamson as a commissioned salesman. When Middleton quit working for Williamson, he was due a commission for having sold yarn pallets to one of Williamson's customers. Middleton and Williamson disagreed as to the amount of commission due, and Williamson never paid Middleton any commission, even though it acknowledged owing him $906.62.
After leaving his employment with Williamson, Middleton began working for Peninsula Plastics, Inc., one of Williamson's pallet suppliers. Middleton continued to seek the commission Williamson owed him, and sought assistance from his present attorney. Middleton and his counsel are personal friends, and counsel previously had represented Middleton in less-complicated matters without charge. Middleton's attorney agreed to help with the claim for commission, and the two were to discuss a fee at the end of the case.
Williamson initially was represented by Jordan & Clardy, LLC. Middleton's attorneys informed Williamson that they had a complaint drafted and were ready to sue in order to recover the unpaid commission. Williamson's attorney requested that Middleton refrain from acting on the drafted complaint until he could speak with his client. Middleton agreed, and two days later, Williamson filed a complaint against Middleton, alleging causes of action for fraud, constructive fraud, breach of fiduciary duty, and violation of the South Carolina Unfair Trade Practices Act. Middleton filed an answer, denying the allegations and counterclaiming for commissions owed and sanctions under the South Carolina Frivolous Proceedings Act. Approximately one month prior to trial, Williamson hired its current counsel.
Of Williamson's claims against Middleton, only the cause of action for breach of fiduciary duty went to the jury. The jury returned a verdict in favor of Middleton on that cause of action and found in favor of Middleton on his counterclaim for unpaid commission, awarding him $906.62 in actual damages.
The trial judge, Judge Pyle, ruled Middleton was entitled to attorney's fees, but asked the parties to attempt to determine the amount of attorney's fees themselves. In the event they could not agree to an amount, Judge Pyle explained he would set the amount for them. The parties could not come to a consensus on the amount of attorney's fees, and Middleton petitioned the court for assistance. Judge Miller awarded Middleton $35,000 in attorney's fees. In an unpublished opinion, Williamson v. Middleton, 2005-UP-011 (S.C. Ct. App. filed January 11, 2005), this Court found that Judge Pyle had retained exclusive jurisdiction over the matter. We therefore reversed Judge Miller's award and remanded the issue of attorney's fees for Judge Pyle's consideration.
At the hearing before Judge Pyle, Williamson argued Middleton was not entitled to attorney's fees because (1) he was not the prevailing party; (2) the bill Middleton's counsel presented documenting over $100,000 worth of work listed hours spent on claims other than the unpaid commission claim for which attorney's fees are allowed; and (3) the amount of fees Middleton's counsel requested, $35,000, far exceeded the $906.62 verdict. Williamson further maintained Middleton did not incur any fees because when Middleton's counsel was deposed, he admitted there was no fee agreement between him and Middleton.
Judge Pyle acknowledged that Middleton and his attorney had not entered into a formal, written fee agreement, but relied instead "on their long-standing personal relationship and mutual agreement to determine an appropriate fee for services at the conclusion of this matter." The judge found such an agreement did not preclude attorney's fees. Accordingly, Judge Pyle awarded Middleton $35,000 in attorney's fees. Williamson filed a Rule 59(e), SCRCP, motion, which was denied.
There must be sufficient evidence in the record to support each of the six factors analyzed for an award of attorney's fees. See Taylor v. Medenica, 331 S.C. 575, 580, 503 S.E.2d 458, 461 (1998). "On appeal, absent sufficient evidentiary support on the record for each factor, the award should be reversed and the issue remanded for the trial court to make specific findings of fact." Blumberg v. Nealco, 310 S.C. 492, 494, 427 S.E.2d 659, 661 (1993).
The interpretation of a statute is not a finding of fact. Thompson v. Ford Motor Co., 200 S.C. 393, 21 S.E.2d 34 (1942). "The issue of interpretation of a statute is a question of law for the court." Jeter v. S.C. Dep't of Transp., Op. No. 26168 (S.C. Sup. Ct. filed June 19, 2006) (Shearouse Adv. Sh. No. 23 at 43) (citing Charleston County Parks & Recreation Comm'n v. Somers, 319 S.C. 65, 459 S.E.2d (1991); see also Liberty Mut. Ins. Co. v. S.C. Second Injury Fund, 363 S.C. 612, 621, 611 S.E.2d 297, 301 (Ct. App. 2005) () (citations omitted); Eldridge v. City of Greenwood, 331 S.C. 398, 417, 503 S.E.2d 191, 200 (Ct. App. 1998) (). See, e.g., Carolina Power & Light Co. v. Town of Pageland, 321 S.C. 538, 471 S.E.2d 137 (1996); Byrd v. Irmo High School, 321 S.C. 426, 468 S.E.2d 861 (1996); Rowe v. Hyatt, 321 S.C. 366, 468 S.E.2d 649 (1996).
Williamson first argues Middleton is not entitled to attorney's fees because he does not meet the requirements of section 39-65-30 of the South Carolina Code. Specifically, Williamson points out that this statute only applies to sales representatives who seek to recover commissions on "wholesale" sales, and the commission awarded to Middleton was from a sale made to the ultimate consumer. We find this issue is not preserved for our review.
Initially, we note that the arguments Williamson made to Judge Pyle on this issue are not reflected in the record on appeal. Williamson did not advance this argument at the hearing before Judge Pyle, and although Williamson's counsel refers to a memorandum she filed in opposition to Middleton's request for attorney's fees, that memorandum was not included in the record on appeal. See Taylor v. Taylor, 294 S.C. 296, 299, 363 S.E.2d 909, 911 (Ct. App. 1987) (). We acknowledge, however, that Judge Pyle addressed the argument in his order awarding attorney's fees, suggesting the argument was set forth in Williamson's memorandum. In the order, Judge Pyle found Williamson's argument that Middleton was not entitled to attorney's fees and costs pursuant to section 39-65-30 came too late because during trial, Williamson never objected to the jury instructions referencing section 39-65-30, nor did Williamson challenge Judge Pyle's initial ruling that Middleton was entitled to attorney's fees.
In its brief to our court, Williamson argues that "[e]ven though the jury returned a verdict . . . that awarded Middleton $906.62 for unpaid commissions, this recovery was sought on alternate grounds, both pursuant to § 39-65-30 and § 41-10-10." In so arguing, Williamson implies the jury's award was based on a statute other than section 39-65-30. Williamson further contends that its argument on this issue is timely because "the request for attorney fees is predicated on entirely different factors than was the request for commissions." From the record before us, there is no indication this specific argument was ever made to the trial court, either prior to the order awarding attorney's fees or in Williamson's motion for reconsideration. Thus, the issue is not preserved for review. See Staubes v. City of Folly Beach, 339 S.C. 406, 412, 529 S.E.2d 543, 546 (2000) (); see also Floyd v. Floyd, 365 S.C. 56, 73, 615 S.E.2d 465, 474 (Ct. App. 2005) () (quoting I'On, L.L.C v. Town of Mt. Pleasant, 338 S.C. 406, 422, 526 S.E.2d 716, 724 (2000)); Ellie, Inc. v. Miccichi, 358 S.C. 78, 103, 594 S.E.2d 485, 498 (Ct. App. 2004) ().
Next, Williamson argues Middleton failed to prove the elements necessary to recover fees. We agree.
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)); accord Seabrook Island Property Owners' Ass'n v. Berger, 365 S.C. 234, 238, 616 S.E.2d 431, 434 (Ct. App. 2005). ...
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