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2008-UP-329 - First South Bank v. Selective Project Management

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

First South Bank, Appellant,

v.

Selective Project Management, Inc. d/b/a Selective Project Management, LLC, J. Michael Leath, and Ann K. Leath, Defendants,

Of whom

Ann K. Leath is Respondent.


Appeal From Richland County
 James R. Barber, III, Circuit Court Judge


Unpublished Opinion No. 2008-UP-329
Submitted May 1, 2008 – Filed June 30, 2008   


AFFIRMED IN PART, REVERSED IN PART,
AND REMANDED


Donald W. Tyler and Donald W. Tyler, Jr., of Columbia, for Appellant.

Todd R. Ellis and R. Trippett Boineau, III, of Columbia, for Respondent.

PER CURIAM:  First South Bank (First South) appeals the trial court’s order granting attorneys’ fees, arguing the order failed to award First South legal costs and attorneys’ fees incurred in bringing an action to set aside a fraudulent conveyance of property.  We affirm in part, reverse in part, and remand.[1]

FACTS

In 2002, First South loaned $80,000 to Selective Project Management, Inc. (Selective Project), and as a condition of the loan, First South required Ann Leath to sign and execute a guaranty for all present and future obligations of Selective Project.[2]  The guaranty provided Leath’s liability was “unlimited” and First South may “at any time or from time to time [] make loans or extend other accommodations to or for the account of Selective Project.”  The guaranty further provided Leath was “liable for all indebtedness, without any limitation as to amount [], plus accrued interest thereon and all attorneys’ fees, collection costs and enforcement expenses referable thereto.”  Selective Project failed to make the required principal and interest payments due under the Note on March 5, 2003.  Therefore, on May 19, 2003, First South filed a complaint in Richland County to collect payment on the delinquent Note. 

On April 26, 2006, the trial court granted summary judgment to First South and required Leath to pay First South $104,065.91, “plus attorneys’ fees and costs (to be awarded by subsequent order).”  The next month, Leath filed a motion to reconsider pursuant to Rules 52 and 59(e), SCRCP; however, the motion was denied.

After Leath was ordered to pay First South for the debt on the Note, on July 3, 2006, Leath transferred real property she owned to her son, Joseph Leath, for “the sum of One and 00/100 ($1.00) Dollar and Love and Affection.”  As a result, First South filed a complaint in Lexington County against Leath for fraudulently conveying her property to her son, and seeking an injunction to prevent the committing of waste to the property and litigation costs.

After a hearing on November 21, 2006, the trial court issued an order dated December 19, 2006, awarding First South attorneys’ fees in the amount of $12,000.  However, the order did not specifically mention an amount for legal costs, which the April 26, 2006 order had awarded First South.  Thus, First South filed a motion to alter or amend the court’s December order, arguing the court failed to set an amount for legal costs to be awarded to First South.  First South also argued the court failed to address whether the award includes attorneys’ fees incurred in bringing the related action in Lexington County to set aside Leath’s fraudulent conveyance.  The court denied First South’s motion on March 9, 2007.  This appeal followed.        

STANDARD OF REVIEW

In an action at law to recover on a guaranty, our scope of review extends only to the correction of errors at law and does not permit an entry of an original judgment.  S. Bank & Trust Co. v. Harley, 295 S.C. 423, 424, 368 S.E.2d 908, 909 (1988).

LAW / ANALYSIS

I.  Attorneys’ Fees

First South argues the trial court erred by failing to award attorneys’ fees incurred in bringing the related action in Lexington County to set aside Leath’s fraudulent conveyance of her property to her son.  We disagree.

“The decision to award attorney’s fees is a matter within the sound discretion of the trial judge and the award will not be reversed on appeal absent an abuse of discretion.”  Marquez v. Caudill, 376 S.C. 229, 246, 656 S.E.2d 737, 745 (2008); see Keeney’s Metal Roofing, Inc. v. Palmieri, 345 S.C. 550, 553, 548 S.E.2d 900, 901 (Ct. App. 2001).  The factors used to determine a reasonable attorney’s fee are: (1) the nature, extent, and difficulty of the case; (2) the time necessarily devoted to the case; (3) professional standing of counsel; (4) contingency of compensation; (5) beneficial results obtained; and (6) customary legal fees for similar services.  EFCO Corp. v. Renaissance on Charleston Harbor, LLC, 370 S.C. 612, 621, 635 S.E.2d 922, 926 (Ct. App. 2006).  “[O]n appeal, an award for attorney’s fees will be affirmed so long as sufficient evidence in the record supports each factor.”  Jackson v. Speed, 326 S.C. 289, 308, 486 S.E.2d 750, 760 (1997).

In the December 19, 2006 order, the court awarded First South $12,000 in attorneys’ fees, which was less than the $31,449.75 First South requested.  The court stated, “[a]fter listening to the testimony given as well as reviewing the affidavits and invoices, it is the Court’s conclusion that the proposed attorney’s fees in the case are not reasonable and as such must be reduced.”  The court further found the case was simple, “the billing procedure [did] not accurately reflect the time spent on every matter and [was] unreasonable” due to the fact the attorneys were well-qualified and experienced, and “customary legal fees for [this type of case] are a small percentage of the total amount owed.”  The court also was aware of the existence of the fraudulent conveyance action when the court awarded the attorneys’ fees because the court dissolved the temporary injunction issued in that action.  Additionally, First South raised the issue of attorneys’ fees for the fraudulent conveyance action in its motion to reconsider and First South previously argued the issue before the court during a November 21, 2006 hearing.

The trial court considered the appropriate factors in awarding attorneys’ fees.  Also, the court considered the attorneys’ fees for the fraudulent conveyance action.  Accordingly, we affirm on this issue.

II.  Litigation Costs

First South argues the trial court erred by failing to award costs as provided for in the order granting summary judgment to First South.  We agree.

“An appellate court will not overturn a trial court’s decision to award costs unless there has been an abuse of discretion.”  Peterson v. Nat’l R.R. Passenger Corp., 365 S.C. 391, 402, 618 S.E.2d 903, 908 (2005).

 The guaranty Leath signed provided she was “liable for all indebtedness, without any limitation as to amount [], plus accrued interest thereon and all attorneys’ fees, collection costs and enforcement expenses referable thereto.”  Additionally, the April 26, 2006 order states, “First South is awarded judgment, in an amount to be determined at a future date, for its attorneys’ fees, collection costs and enforcement expenses.”  See Order, p. 5.  The order further states First South is awarded “a total of [$104,065.91], plus attorneys’ fees and costs (to be awarded by subsequent order).”  First South requested $2,985.47 in costs; however, the trial court did not award any costs in its December 19, 2006 order.  Additionally, First South raised the issue of costs in its motion to reconsider.  Therefore, we find the trial court erred by failing to award costs to First South and remand this issue for a determination on costs.       

CONCLUSION

Accordingly, the judgment of the trial court is

AFFIRMED IN PART, REVERSED IN PART, and REMANDED.

HEARN, C.J., and SHORT and KONDUROS, JJ., concur.


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

[2] Michael Leath, Leath’s ex-husband, also signed a guaranty, but it is not at issue in this case because First South determined Selective Project and Michael Leath had no assets and a default judgment against them would be uncollectible.