Meetze v. Saylors

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

James A. Meetze, Appellant,

v.

Freda Saylors and Toby O. Saylors, Respondents.

Appeal From Charleston County

 B. Hicks Harwell, Jr., Circuit Court
Judge

Unpublished Opinion No. 2005-UP-049

Submitted January 1, 2005 – Filed January
19, 2005

REVERSED IN PART AND REMANDED

Christopher B. Staubes, III, of Charleston, for Appellant.

Freda Saylors and Toby Saylors, pro se Respondents.

PER CURIAM:  James A. Meetze appeals from a circuit court order that
granted him summary judgment in his action to enforce restrictive covenants
in a residential neighborhood, but denied his request for attorney’s fees and
costs.  Meetze argues the circuit court erred in denying his request for attorney’s
fees and costs because the restrictive covenants provide for an award of both
to a prevailing party.  We reverse in part and remand.
[1]

FACTS

Meetze filed this action in 2002 against Freda Saylors and Toby Saylors
to enforce restrictive covenants in the Pirates Cove subdivision of Mount Pleasant,
South Carolina.  Meetze alleged in his complaint that the Saylors were in violation
of paragraph fourteen of the covenants, which prohibits parking house trailers,
mobile homes, campers, or other habitable vehicles, as well as commercial vehicles,
on lots within the subdivision. 

Meetze included in his complaint a request for attorney’s fees and costs as
provided for by paragraph twenty-two of the covenants, entitled “Enforcement
of Restrictions.”  This paragraph states in relevant part: 

Any owner found by a court of law or equity to be in violation of these covenants
and restrictions shall pay a reasonable attorney’s fee to the Plaintiff, together
with all costs of litigation. 

In 2003, Meetze moved for summary judgment.  The circuit court granted
Meetze’s motion and ordered the Saylors to remove any prohibited vehicles parked
or stored on their lots.  The court noted that Meetze had “presented an affidavit
of reasonable attorney’s fees and costs in the amount of $1,977.50 for fees[]
and $161.30 in actual costs” for which he requested recovery pursuant to paragraph
twenty-two of the restrictive covenants.  The court denied the request, however,
and this appeal followed. 

LAW/ANALYSIS

On appeal, Meetze contends the circuit court abused its discretion
in denying his request for attorney’s fees and costs. [2]   We agree.

Under South Carolina common law, a prevailing party generally has
no right to recover attorney’s fees unless they are provided for by contract
or authorized by statute.  Jackson v. Speed, 326 S.C. 289, 486 S.E.2d
750 (1997); Harris-Jenkins v. Nissan Car Mart, Inc., 348 S.C. 171, 557
S.E.2d 708 (Ct. App. 2001).

In this case, there is a contractual basis for an award of attorney’s
fees.  As noted above, paragraph twenty-two of the restrictive covenants expressly
provides that any owner found in violation of the covenants by a court “shall
pay a reasonable attorney’s fee to the Plaintiff, together with all costs
of litigation.”  [Emphasis added.] 

In Prevatte v. Asbury Arms, 302 S.C. 413, 396 S.E.2d 642 (Ct. App. 1990),
this Court considered a provision of the Landlord-Tenant Act that stated a tenant
“may” recover “reasonable attorney’s fees” and determined that, to the extent
the word “may” connoted discretion, it referred to the tenant’s right to elect
a statutory remedy and it did not mean the trial judge could deny a remedy clearly
provided for by the statute.  Id. at 415, 396 S.E.2d at 643.  We concluded
“[t]he appellate courts of this state have never construed this language as
giving the trial judge discretion to award or deny attorney’s fees.”  Id.
at 416, 396 S.E.2d at 644.  Rather, although a fee is recoverable as a matter
of right, the amount must be “reasonable,” and “[w]hat constitutes a reasonable
fee is a matter for the court to determine as a matter of informed judicial
discretion.”  Id.  We observed that, in exercising his or her discretion
in deciding the amount of a reasonable fee, the trial judge should be guided
by the following factors: 

(1)  
the nature, extent, and difficulty of the services rendered;

(2) 
the time and labor necessarily devoted to the
case;

(3)
the professional standing of counsel;

(4)
the contingency of compensation;

(5) 
the fee customarily charged in the locality for similar services; and

(6) 
the beneficial results accomplished. 

Id. at 416-17, 396 S.E.2d at 644.

Although Prevatte dealt with a statutory, rather than a contractual,
provision for attorney’s fees, we find it is sufficiently analogous so that
its reasoning is applicable in the current appeal.  Here, the restrictive covenants
expressly provide that reasonable attorney’s fees and costs “shall” be recoverable
by a prevailing party in the event a court finds a homeowner in violation of
the covenants. 

During the hearing in this matter, when Meetze’s attorney presented his affidavit
for attorney’s fees, the court stated:  “Even if I rule in your favor, I --
you can send it up here but I’m not going to do it, I am not even going to
consider your attorney’s fees even if I rule with you.  I think both sides
have got a legitimate gripe, problem.”  [Emphasis added.]  The court thereafter
encouraged the parties to attempt to negotiate a resolution.  When that effort
failed, the court granted summary judgment to Meetze.  The circuit court summarily
denied the request for fees and costs in its final order. 

We hold the circuit court erred in denying attorney’s fees and costs to Meetze
after finding the Saylors were in violation of the covenants and granting summary
judgment to Meetze on this basis.  Since the covenants contractually provide
a prevailing party with the right to recover attorney’s fees and costs, the
court should have determined what constitutes a reasonable fee in light of the
six guidelines listed above.  Accordingly, we reverse the circuit court’s order
to the extent it denied Meetze’s request for attorney’s fees and costs and remand
the matter to the circuit court for determination of an appropriate award using
the factors outlined above.

REVERSED IN PART AND REMANDED.

HEARN, C.J., and GOOLSBY and WILLIAMS, JJ., concur.

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

[2]   The Saylors have not filed a Respondents’ Brief.  The South Carolina
Appellate Court Rules provide that “[u]pon the failure of respondent to timely
file a brief, the appellate court may take such action as it deems proper.” 
Rule 208(a)(4), SCACR.  Such action may include reversal.  Turner v. Santee
Cement Carriers, Inc., 277 S.C. 91, 282 S.E.2d 858 (1981).