THE STATE OF SOUTH CAROLINA
In The Supreme Court
Gayle H. Taylor,
deceased, by her
Thomas Calvin Taylor,
and Thomas C. Taylor, Respondents,
Rajko D. Medenica,
M.D., and Cancer-
Laboratory, Inc., Defendants,
of whom Cancer-
Laboratory, Inc., is Appellant.
Appeal From Hampton County
Gerald C. Smoak, Judge
Opinion No. 24808
Heard May 14, 1998 - Filed June 22, 1998
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
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.
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?
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
2 U.S. Const. amend. XIV; S.C. Const. art. 1, § 3.
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
objectives of the statute. Consequently, the attorney's fee provision does
not violate equal protection.
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.
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
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).
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
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
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
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
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
FINNEY, C.J., MOORE, WALLER, JJ., and Acting Associate Justice
Jasper M. Cureton, concur.
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
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.