Supreme Court Seal
South Carolina
JUDICIAL DEPARTMENT
Site Map | Feedback
2005-UP-053 - SCE&G v. Sanders
PER CURIAM: This is an appeal of the trial court’s refusal to award

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

South Carolina Electric & Gas Company and Commissioners of Public Works for the City of Charleston, Condemnors, Respondents/Appellants,

v.

John S. Sanders, Landowner, Appellant/Respondent,

and

South Carolina Department of Transportation, Other Condemnee.


Appeal From Berkeley County
 R. Markley Dennis, Jr., Circuit Court Judge


Unpublished Opinion No. 2005-UP-053
Heard December 8, 2004 – Filed January 21, 2005  


REVERSED AND REMANDED


Christopher L. Murphy, of Charleston, and John B. Williams, of Moncks Corner, for Appellant-Respondent.

Phyllis W. Ewing and Wm. Howell Morrison, both of Charleston, for Respondents-Appellants.

PER CURIAM: This is an appeal of the trial court’s refusal to award attorney fees to a landowner in a condemnation action after a jury awarded the landowner $21,000 as just compensation for the condemnation.  We reverse and remand.

FACTS

In 1999, South Carolina Electric and Gas Company (SCE&G) and the Commissioners of Public Works for the City of Charleston (CPW and SCE&G hereinafter known as “the Utilities”) filed a joint condemnation action to install utility lines on a thirty foot permanent easement and a fifteen foot temporary construction easement on property owned by John Sanders.  Sanders did not contest the Utilities’ right to condemn and the lower court held proceedings on the issue of just compensation.  Midway through the trial, the Utilities amended their pleadings to abandon the temporary construction easement, which had no set time limit on its use.  Sanders requested $81,000 in damages for the value of the actual easements and the construction of an underground pond.  The Utilities presented an appraiser, who testified that the total value of the taking was $7,500.  The jury awarded Sanders $21,000 as just compensation. 

Sanders then made a motion for attorney fees of $15,101.85 for that portion of work done in litigating the just compensation for the temporary easement.  Though the trial court found the attorney fees to be reasonable, it denied this motion because the Utilities prevailed at trial.  Sanders now appeals the denial of attorney fees, and the Utilities appeal the trial court’s finding that the fees were reasonable.              

STANDARD OF REVIEW

In an action at law tried without a jury, an appellate court’s scope of review extends only to the corrections of errors of law.  Okatie River, L.L.C. v. Southeastern Site Prep, L.L.C., 353 S.C. 327, 334, 577 S.E.2d 468, 472 (Ct. App. 2003).  Thus, the factual findings of the trial judge will not be disturbed on appeal unless a review of the record discloses that there is no evidence that reasonably supports the judge’s findings, or the findings are controlled by an erroneous conception or application of the law.  Gordon v. Colonial Ins. Co., 342 S.C. 152, 155, 536 S.E.2d 376, 378 (Ct. App. 2000).   

LAW/ANALYSIS

I.  Sanders’ appeal

Sanders claims that the trial court erred in denying him fees and costs where the Utilities abandoned condemnation by releasing the temporary construction easement.  We agree.

The Eminent Domain Procedure Act (the Act), specifically section 28-2-510(C), lies at the heart of this action.  S. C. Code Ann. § 28-2-510 (1991). The Act provides that “[i]f the condemnor abandons or withdraws the condemnation action in the manner authorized by this chapter, the condemnee is entitled to reasonable attorney fees, litigation expenses, and costs as determined by the court.”  Id. The condemnor is not obligated to construct a public improvement on condemned property.  22 Am. Jur. Trials §743 (2004).  Therefore, it may decide to abandon the condemnation rather than pay the just compensation assessed by a jury.  Id. 

The Utilities concede that they use “abandon” as the term for their action, but argue they technically released the temporary construction easement without ever using the condemned property.  They contend that they had the right to abandon the temporary construction easement at any time as long as they paid the just compensation awarded to Sanders by the jury for the condemned land.   The Utilities also assert that they would have had to abandon the entire condemnation before the Act would have given any relief to Sanders.  We do not read the statute so narrowly.  A plain reading of the section indicates that the legislature intended to compensate a landowner who incurred monetary loss from preparation for litigating a condemnation action, only to have the condemnor withdraw at a point prior to disposition, leaving the landowner with no avenue to recover expenses.  Sanders and his attorney spent time and effort planning litigation strategy that contemplated the abandoned easement as a portion of the case and but for the statute, this work would be time wasted.          

II.  Utilities’ Appeal

The Utilities claim that the trial court erred in determining the attorney fees were reasonable.  We agree.        

The Utilities argue that the requested attorney fees are not reasonable because of a lack of evidentiary support, and the trial court did not make specific findings of fact on the record as required by Blumberg v. Nealco, Inc., 310 S.C. 492, 494, 427 S.E.2d 659, 661 (1993).

Six factors should be considered when determining the appropriate amount of an award for attorney fees: “(1) nature, extent, and difficulty of the legal services rendered; (2) time and labor devoted to the case; (3) professional standing of counsel; (4) contingency of compensation; (5) fee customarily charged in the locality for similar services; and (6) beneficial results obtained.”  Id. at 494, 427 S.E.2d at 660.  “Where an attorney’s services and their value are determined by the trier of fact, an appeal will not prevail if the findings of fact are supported by any competent evidence.” Baron Data Sys., Inc. v. Loter, 297 S.C. 382, 384, 377 S.E.2d 296, 297 (1989).  However, “[w]hen an award of attorney’s fees is requested and authorized by contract or statute, the court should make specific findings of fact on the record for each factor . . . .”  Blumberg at 494, 427 S.E.2d at 661.  If the evidentiary support is insufficient as to reasonableness of the amount of the award, the appellate court should reverse and remand for the trial court to make specific findings of fact.  Id.     

Sanders submitted a memorandum, attorney affidavits, receipts, and invoices in support of his motion for attorney fees.  However, the trial court failed to address specific findings of fact for each factor; it simply found the amount “to be reasonable.”  Therefore, the trial court erred, and the issue is remanded to the trial court to make specific findings of fact. 

REVERSED and REMANDED.

ANDERSON, STILWELL, and SHORT JJ., concur.