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Unpublished Opinion No.  2009-UP-414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.