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Unpublished Opinion No. 2005-UP-053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.