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THE STATE OF SOUTH CAROLINA
In The Supreme Court
First Union National
Bank of South Carolina
and First Union
Brokerage Services,
Inc., Petitioners/Respondents,
v.
FCVS Communications,
VCS Holdings, Inc.,
Walter K. Flynn,
Murray Michaels, and
Vodofsky Financial Co., Defendants,
Of whom
FCVS Communications
is Respondent/Petitioner.
ON WRIT OF CERTIORARI TO THE COURT OF
APPEALS
Appeal From Richland County
Costa M. Pleicones, Judge
Opinion No. 24726
Heard November 19, 1997 --Filed December 16, 1997
DISMISSED IN PART; REVERSED IN PART
James R. Allen, of Barnes, Alford, Stork &
p. 14
Johnson, L.L.P., of Columbia, for
petitioner/respondents.
Craig K. Davis and James F. Flanagan, both of
Columbia, for respondent/petitioner.
PER CURIAM: Petitioners/respondents (collectively Bank) is
the depository for funds owned by respondent/petitioner (FCVS). Bank
sought interpleader on the ground there were conflicting claims between
the majority and minority partners of FCVS regarding the funds. The
trial judge granted interpleader and ordered the funds be held by Bank
until further order of the court. He then discharged Bank from the suit,
effectively dismissing FCVS's counterclaims against Bank. The trial judge
also denied Bank's request for attorney's fees. The Court of Appeals
affirmed the grant of interpleader, reversed dismissal of FCVS's
counterclaims, and remanded to the trial court to determine attorney's
fees. __S.C. __, 469 S.E.2d 613 (Ct. App. 1996). This Court granted
the parties' petitions for a writ of certiorari to review all three issues.
FCVS recently filed a motion with this Court representing that the
partners of FCVS have now resolved their conflict regarding the funds.
FCVS seeks an order, with the consent of the minority partners, requiring
Bank to release the funds since there are no longer conflicting claims. We
grant the motion. Since the issue of interpleader is now moot, we dismiss
the writ as to this question. Jones v. Dillon-Marion Resources Dev.
Comm'n, 277 S.C. 533, 291 S.E.2d 195 (1982) (when an event occurs while
a case is pending on appeal so there remains no actual controversy
between the parties, the case is moot and the appeal will be dismissed).
Further, we reverse the Court of Appeals' decision reinstating
FCVS's counterclaims. These counterclaims allege liability arising from
Bank's failure to honor the majority partners' instructions regarding the
funds. In granting interpleader under Rule 22(a), SCRCP, however, the
trial judge necessarily found Bank was entitled to protection from the
conflicting claims of the majority and minority partners. Accordingly,
under Rule 22(b), SCRCP, Bank was entitled to be "discharged from
liability as to such claims." Since the Court of Appeals found interpleader
was appropriately granted, it erred in reversing Bank's discharge from the
suit.
p. 15
Finally, we reverse the Court of Appeals' ruling that Bank was
entitled to attorney's fees as an innocent stakeholder in this case.
Attorney's fees are not recoverable unless authorized by contract or
statute. Tharp v. S.C. Dept. of Soc. Servs., 312 S.C. 243, 439 S.E.2d 854
(1993).
DISMISSED IN PART; REVERSED IN PART.
C.J.
A.J.
A.J.
A.J.
A.A.J.
p. 16