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2005-UP-049 - Meetze v. Saylors

THIS OPINION HAS NO PRECEDENTIAL VALUE.  IT SHOULD NOT BE CITED OR RELIED ON AS
PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 239(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

James A. Meetze, Appellant,

v.

Freda Saylors and Toby O. Saylors, Respondents.


Appeal From Charleston County
 B. Hicks Harwell, Jr., Circuit Court Judge


Unpublished Opinion No. 2005-UP-049
Submitted January 1, 2005 – Filed January 19, 2005


REVERSED IN PART AND REMANDED


Christopher B. Staubes, III, of Charleston, for Appellant.

Freda Saylors and Toby Saylors, pro se Respondents.

PER CURIAM:  James A. Meetze appeals from a circuit court order that granted him summary judgment in his action to enforce restrictive covenants in a residential neighborhood, but denied his request for attorney’s fees and costs.  Meetze argues the circuit court erred in denying his request for attorney’s fees and costs because the restrictive covenants provide for an award of both to a prevailing party.  We reverse in part and remand. [1]

FACTS

Meetze filed this action in 2002 against Freda Saylors and Toby Saylors to enforce restrictive covenants in the Pirates Cove subdivision of Mount Pleasant, South Carolina.  Meetze alleged in his complaint that the Saylors were in violation of paragraph fourteen of the covenants, which prohibits parking house trailers, mobile homes, campers, or other habitable vehicles, as well as commercial vehicles, on lots within the subdivision. 

Meetze included in his complaint a request for attorney’s fees and costs as provided for by paragraph twenty-two of the covenants, entitled “Enforcement of Restrictions.”  This paragraph states in relevant part: 

Any owner found by a court of law or equity to be in violation of these covenants and restrictions shall pay a reasonable attorney’s fee to the Plaintiff, together with all costs of litigation. 

In 2003, Meetze moved for summary judgment.  The circuit court granted Meetze’s motion and ordered the Saylors to remove any prohibited vehicles parked or stored on their lots.  The court noted that Meetze had “presented an affidavit of reasonable attorney’s fees and costs in the amount of $1,977.50 for fees[] and $161.30 in actual costs” for which he requested recovery pursuant to paragraph twenty-two of the restrictive covenants.  The court denied the request, however, and this appeal followed. 

LAW/ANALYSIS

On appeal, Meetze contends the circuit court abused its discretion in denying his request for attorney’s fees and costs. [2]   We agree.

Under South Carolina common law, a prevailing party generally has no right to recover attorney’s fees unless they are provided for by contract or authorized by statute.  Jackson v. Speed, 326 S.C. 289, 486 S.E.2d 750 (1997); Harris-Jenkins v. Nissan Car Mart, Inc., 348 S.C. 171, 557 S.E.2d 708 (Ct. App. 2001).

In this case, there is a contractual basis for an award of attorney’s fees.  As noted above, paragraph twenty-two of the restrictive covenants expressly provides that any owner found in violation of the covenants by a court “shall pay a reasonable attorney’s fee to the Plaintiff, together with all costs of litigation.”  [Emphasis added.] 

In Prevatte v. Asbury Arms, 302 S.C. 413, 396 S.E.2d 642 (Ct. App. 1990), this Court considered a provision of the Landlord-Tenant Act that stated a tenant “may” recover “reasonable attorney’s fees” and determined that, to the extent the word “may” connoted discretion, it referred to the tenant’s right to elect a statutory remedy and it did not mean the trial judge could deny a remedy clearly provided for by the statute.  Id. at 415, 396 S.E.2d at 643.  We concluded “[t]he appellate courts of this state have never construed this language as giving the trial judge discretion to award or deny attorney’s fees.”  Id. at 416, 396 S.E.2d at 644.  Rather, although a fee is recoverable as a matter of right, the amount must be “reasonable,” and “[w]hat constitutes a reasonable fee is a matter for the court to determine as a matter of informed judicial discretion.”  Id.  We observed that, in exercising his or her discretion in deciding the amount of a reasonable fee, the trial judge should be guided by the following factors: 

(1)   the nature, extent, and difficulty of the services rendered;
(2)  the time and labor necessarily devoted to the case;
(3) the professional standing of counsel;
(4) the contingency of compensation;
(5)  the fee customarily charged in the locality for similar services; and
(6)  the beneficial results accomplished. 

Id. at 416-17, 396 S.E.2d at 644.

Although Prevatte dealt with a statutory, rather than a contractual, provision for attorney’s fees, we find it is sufficiently analogous so that its reasoning is applicable in the current appeal.  Here, the restrictive covenants expressly provide that reasonable attorney’s fees and costs “shall” be recoverable by a prevailing party in the event a court finds a homeowner in violation of the covenants. 

During the hearing in this matter, when Meetze’s attorney presented his affidavit for attorney’s fees, the court stated:  “Even if I rule in your favor, I -- you can send it up here but I’m not going to do it, I am not even going to consider your attorney’s fees even if I rule with you.  I think both sides have got a legitimate gripe, problem.”  [Emphasis added.]  The court thereafter encouraged the parties to attempt to negotiate a resolution.  When that effort failed, the court granted summary judgment to Meetze.  The circuit court summarily denied the request for fees and costs in its final order. 

We hold the circuit court erred in denying attorney’s fees and costs to Meetze after finding the Saylors were in violation of the covenants and granting summary judgment to Meetze on this basis.  Since the covenants contractually provide a prevailing party with the right to recover attorney’s fees and costs, the court should have determined what constitutes a reasonable fee in light of the six guidelines listed above.  Accordingly, we reverse the circuit court’s order to the extent it denied Meetze’s request for attorney’s fees and costs and remand the matter to the circuit court for determination of an appropriate award using the factors outlined above.

REVERSED IN PART AND REMANDED.

HEARN, C.J., and GOOLSBY and WILLIAMS, JJ., concur.


[1]   We decide this case without oral argument pursuant to Rule 215, SCACR.

[2]   The Saylors have not filed a Respondents’ Brief.  The South Carolina Appellate Court Rules provide that “[u]pon the failure of respondent to timely file a brief, the appellate court may take such action as it deems proper.”  Rule 208(a)(4), SCACR.  Such action may include reversal.  Turner v. Santee Cement Carriers, Inc., 277 S.C. 91, 282 S.E.2d 858 (1981).