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24808 - Taylor v. Medenica

Davis Adv. Sh. No. 23
S.E. 2d

THE STATE OF SOUTH CAROLINA

In The Supreme Court





Gayle H. Taylor,

deceased, by her

personal representative

Thomas Calvin Taylor,

and Thomas C. Taylor, Respondents,





Rajko D. Medenica,

M.D., and Cancer-

Immuno Biology

Laboratory, Inc., Defendants,





of whom Cancer-

Immuno Biology

Laboratory, Inc., is Appellant.







Appeal From Hampton County

Gerald C. Smoak, Judge





Opinion No. 24808

Heard May 14, 1998 - Filed June 22, 1998





AFFIRMED





M. Dawes Cooke, Jr., and Matthew H. Henrikson,

of Barnwell, Whaley, Patterson & Helms, LLC, of

Charleston, for appellant.





Terry A. Finger, of Finger & Taylor, P.A., of Hilton

Head; Andrew M. Scherffius, of Atlanta, Georgia;

and John E. Parker and Ronnie L. Crosby, of



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TAYLOR v. MEDENICA



Peters, Murdaugh, Parker, Eltzroth & Detrick, P.A.,

of Hampton, for respondents.





BURNETT, A.J.: Appellant Cancer-Immuno Biology

Laboratory, Inc. (CIBL) appeals the trial court's order awarding respondent

Gayle H. Taylor (Mrs. Taylor) attorney's fees and costs under the South

Carolina Unfair Trade Practices Act (the UTPA).1 S.C. Code Ann. § 39-5-

140(a) (1985). We affirm.



ISSUES



I. Does S.C. Code Ann. § 39-5-140(a) violate equal protection

because it allows recovery of attorney's fees for successful

plaintiffs but not for successful defendants?



II. Did the trial court abuse its discretion in awarding $500,000

in attorney's fees and $24,068 in costs?





I.

CIBL argues § 39-5-140 violates the United States and South

Carolina Constitutions' equal protection provisions2 because it provides for

recovery of attorney's fees to prevailing plaintiffs but not to prevailing

defendants. CIBL relies on Southeastern Home Building & Refurbishing v.

Platt, 283 S.C. 602, 325 S.E.2d 328 (1985).





Both the United States and South Carolina Constitutions forbid

denial by the State of the equal protection of the laws. A court will

declare a statute unconstitutional if its repugnance to the Constitution is

clear beyond a reasonable doubt. "When the constitutionality of a statute

awarding attorney's fees is questioned as a violation of equal protection, a

court must determine whether the legislative classification is rationally

related to the object of the statute." Id., S.C. at 603, S.E.2d at 329.



In Southeastern Home Building, id., the Court held an award

of attorney's fees to prevailing plaintiffs but not prevailing defendants


1 S.C. Code Ann. §§ 39-5-10 to -160 (1985).

2 U.S. Const. amend. XIV; S.C. Const. art. 1, § 3.

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TAYLOR v. MEDENICA

under the mechanics' lien statute violated equal protection. The Court

determined giving priority to claims regarding work performed and

materials furnished did not justify the classification. The Court noted,

"[i]ndeed, authorizing fee awards to prevailing defendants, as well as

plaintiffs, would not chill the laborer's right to seek relief in court." Id.

S.C. at 604, S.E.2d at 329.





On other occasions, however, the Court has upheld the

statutory allowance of attorney's fees to prevailing plaintiffs but not to

prevailing defendants. See Bradley v. Hullander 277 S.C. 327, 287 S.E.2d

140 (1982)(securities fraud cases); Coker v. Pilot Life Ins. Co., 265 S.C.

260, 217 S.E.2d 784 (1975)(bad faith denial of insurance claims); see also

Missouri, Kansas & Texas Railroad Co. of Texas v. Cade, 233 U.S. 642, 34

S.Ct. 678, 58 L.Ed.2d 1135 (1914)(statute designed to promote prompt

payment of small claims providing recovery of attorney's fees to plaintiffs

but not defendants did not violate 14th Amendment). In Bradley v.

Hullander, supra, S.C. at 330, S.E.2d at 141, the Court noted "[r]equiring

the unsuccessful defendant to pay the plaintiff's attorney's fees is a

legitimate tool in enforcing the underlying public policy of the statute."

In relevant part, Section 39-5-140(a) provides:

Upon the finding by the Court of the violation of [the UTPA],

the Court shall award to the person bringing such action under

this section reasonable attorney's fees and costs.





The purpose of the UTPA is to discourage unfair methods of

competition and unfair or deceptive acts in the conduct of any trade or

commerce. § 39-5-20. To be actionable under the UTPA, the unfair or

deceptive act or practice must have an impact upon the public interest.

York v. Conway Ford, Inc., 325 S.C. 170, 480 S.E.2d 726 (1997); Daisy

Outdoor Advertising Co., Inc. v. Abbott, 322 S.C. 489, 473 S.E.2d 47 (1996).





The attorney's fee provision of § 39-5-140 is rationally related

to the policy objectives of the UTPA. Allowing plaintiffs who successfully

pursue an action under the UTPA to recover their attorney's fees

encourages individuals to pursue litigation to protect the public interest.

Similarly, requiring unsuccessful defendants to pay the plaintiff's attorney's

fee discourages tradesmen from engaging in unfair methods of competition

and unfair or deceptive acts in the conduct of trade or commerce, thereby

also enforcing the purpose of the UTPA. We find the attorney's fee

provision of the UTPA is a legitimate tool which supports the policy

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TAYLOR v. MEDENICA

objectives of the statute. Consequently, the attorney's fee provision does

not violate equal protection.

II.

CIBL argues the lower court's award of $500,000 in attorny's

fees and $24,068 in costs is excessive and not supported by the affidavits of

Mrs. Taylor's attorneys. Specifically, CIBL contends the attorny's fee

award is substantially more than Mrs. Taylor's trebled damages of

$108,726. Additionally, CIBL claims the affidavits are insufficient because

1) they include estimates of time spent, 2) include tim spent before the

filing of the second amended complaint, and 3) fail to apportion time spent

between claims against CIBL and claims against defendant Dr. Rajko D.

Medenica.3





In determining a reasonable attorney's fee, the court should

consider the following six factors: 1) the nature, extent, and difficulty of

the case; 2) the time necessarily devoted to the case; 3) the professional

standing of counsel; 4) the contingency of compensation; 5) the beneficial

results obtained; and 6) the customary legal fees for similar services.

Jackson v. Speed, 326 S.C. 289, 486 S.E.2d 750 (1997); Blumberg v. Nealco

Inc, 310 S.C. 492, 427 S.E.2d 659 (1993). Consideration should be given to

all six factors; none of the factors is controlling. Baron Data Systems, Inc.

v. Loter, 297 S.C. 382, 377 S.E.2d 296 (1989). On appeal, an award for

attorney's fees will be affirmed so long as sufficient evidence in the record

supports each factor. Jackson v. Speed, supra.





The trial court considered each of the above factors in setting

the attorney's fee award. The trial judge based his award on the affidavits

submitted by Mrs. Taylor's three attorneys and the affidavit of an attorney

who did not participate in this matter but attested the hourly rates and


3 Briefly, Mrs. Taylor brought this action against Dr. Medenica and

CIBL alleging negligence and violation of the UTPA. The jury returned a

verdict in Mrs. Taylor's favor. The trial court required Mrs. Taylor to elect

between recovery under negligence and the UTPA. Mrs. Taylor, CIBL, and

Dr. Medenica appealed. This Court affirmed in part, reversed in part, and

remanded the matter to the trial court to consider Mrs. Taylor's

application for attorney's fees and costs from the date on which she filed

her second amended complaint alleging a violation of the UTPA. Taylor v.

Medenica, 324 S.C. 200, 479 S.E.2d 35 (1996).

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TAYLOR v. MEDENICA

hours submitted were appropriate.4 The trial judge noted he had presided

over a number of the discovery motions in this case, all of the pretrial

motions, and the two and one-half week trial. The court determined the

amount of time estimated by Mrs. Taylor's attorneys, approximately 1500

hours, was appropriate, if not conservative. The court recognized all of

Mrs. Taylor's attorneys were experienced and capable trial attorneys and

agreed the hourly rates for each were appropriate. The court noted the

attorneys had accepted this case on a contingency fee basis and opined it

thought UTPA actions were one of the most difficult types of cases to try.

The trial court recognized the beneficial results obtained by the attorneys,

both in terms of the $108,726 recovered under the UTPA by Mrs. Taylor

from CIBL and in terms of the public benefit in deterring CIBL from

similar conduct.





In addition, the trial court took judicial notice that CIBL

vigorously contested Mrs. Taylor's claims it had violated the UTPA, thereby

requiring Mrs. Taylor to present witnesses in response. Mrs. Taylor's

experts testified CIBL's laboratory tests were excessive, "absolutely

bizarre," and the results were questionable. One expert testified he

believed the tests were conducted for the purpose of generating income.

One witness testified there was no medical reason for any of the tests,

Another witness testified the tests were paid to Mrs. Taylor yet

medically worthless.





We have reviewed the affidavits submitted by counsel and

agree they are somewhat deficient. One affidavit includes approximately

78 hours of time for work performed prior to the filing of Mrs. Taylor's

second amended complaint. See footnote 3. Moreover, the affidavits do

not specifically state the time spent on the UTPA claim against CIBL.





In spite of these deficiencies, we conclude there is evidence

which supports the approximately 1500 hours of time spent by Mrs.

Taylor's attorneys on this matter. The affidavits note the time spent by

other attorneys and some legal professionals was not submitted for

reimbursement.5 The judge who presided over the majority of this matter


4 The trial court did not award attorney's fees for work performed by

attorney Thomas C. Taylor since he was also a party to the action.

5 One attorney noted, at times, three or four lawyers in his firm

performed work on Mrs. Taylor's case, however, he did not include their

p.14


TAYLOR v. MEDENICA



stated the submitted time was, in his view, conservative. Furthermore,

time spent is but one factor to consider in setting a reasonable attorney's

fee. Baron Data Systems, Inc. v. Loter, supra.





With regard to the issue of estimates, two of the three

affidavits state the attorneys did not keep records of the time spent on this

case.6 Nonetheless, the accompanying time sheets do list specific services

rendered and the time spent performing each service. We conclude the

affidavits and accompanying time sheets fairly reflect the time spent by the

attorneys on this matter.





Finally, there is no requirement that an attorney's fee be less

than or comparable to a party's monetary judgment. This Court has

approved an award of attorney's fees where the fee substantially exceeded

the actual recovery. Baron Data Systems, Inc. v. Loter, id.





We conclude the trial judge properly considered all six factors

in determining the appropriate attorney's fee and find his decision

awarding $500,000 in attorney's fees and $24,068 in costs7 is supported by

the record. Jackson v. Speed, supra.8





AFFIRMED.

FINNEY, C.J., MOORE, WALLER, JJ., and Acting Associate Justice

Jasper M. Cureton, concur.




time in his submission. Another attorney averred two paralegals expended

several hundred hours each on this matter, but he did not submit a record

of their time.



6 We assume the attorneys meant they did not keep contemporaneous

time records.



7 CIBL offers no argument in support of its claim the costs awarded

were inappropriate. Accordingly, we decline to address this issue. First

Savings Bank v. McLean, 314 S.C. 361, 444 S.E.2d 513 (1994)(an issue

which is not argued in the brief is deemed abandoned and precludes

consideration on appeal).





8 Any request for costs incurred for this appeal must be submitted

pursuant to Rule 222, SCACR.





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