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2009-UP-414 - Deumling v. Etminan

THIS OPINION HAS NO PRECEDENTIAL VALUE.  IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 268(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

Alan Deumling, Respondent,

v.

Paiam Etminan as Personal Representative, Appellant.


Appeal From Charleston County
Deadra L. Jefferson, Circuit Court Judge


Unpublished Opinion No.  2009-UP-414
Submitted September 1, 2009 – Filed September 2, 2009


REVERSED


Charles Mac Gibson, Jr., of Charleston, and Dennis E. O'Neill, of Mt. Pleasant, for Appellant.

Nelson S. Chase, of Mt. Pleasant, for Respondent.

PER CURIAM: Paiam Etminan appeals the circuit court's order affirming the probate court's award of attorney's fees.  We reverse.[1]   

Following Souri Maranto's (Decedent's) death, Paiam Etminan (Personal Representative) was appointed personal representative of Decedent's estate.  Thereafter, Alan Deumling requested Personal Representative return personal property belonging to him.  Following Personal Representative's failure to do so, Deumling filed a motion with the probate court requesting the court order Personal Representative to return specific items and award attorney's fees associated with the action.  This appeal is from the circuit court's order affirming the probate court's award of attorney's fees to Deumling. 

Personal Representative argues attorney's fees may only be imposed if authorized by statute, contract, contempt, or the South Carolina Rules of Civil Procedure.  According to Personal Representative, he is not liable for attorney's fees because no court order ever found him in contempt.   We agree.

Generally, attorney's fees are not recoverable unless authorized by contract or statute.  Jackson v. Speed, 326 S.C. 289, 307, 486 S.E.2d 750, 759 (1997).  Additionally, courts, by exercising their contempt power, can award attorney's fees under a compensatory contempt theory. Harris-Jenkins v. Nissan Car Mart, Inc., 348 S.C. 171, 178, 557 S.E.2d 708, 711-12 (Ct. App. 2001).  Compensatory contempt seeks to reimburse the party for the costs it incurs in forcing the non-complying party to obey the court's orders.  Id. 

Here, no contract or statute authorized the award of attorney's fees.  Additionally, no previous court order required Personal Representative to return Deumling's property, and therefore the probate court could not hold Personal Representative in contempt.  As a result, the circuit court erred in affirming the probate court's award of attorney's fees. 

REVERSED.

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


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