Heard October 9, 2014
Appeal From Marion County, The Honorable Michael G. Nettles, Circuit Court Judge. Appellate Case No. 2012-213378.
Gene McCain Connell, Jr., of Kelaher Connell & Connor, PC, of Surfside Beach, for Petitioners.
Beacham O. Brooker, Jr., of Columbia, for Respondent.
[411 S.C. 4] ON WRIT OF CERTIORARI TO THE COURT OF APPEALS
After prevailing in a condemnation action, landowners (" Petitioners" ) moved for an award of attorneys' fees pursuant to section 28-2-510(B)(1) of the Eminent Domain Procedure Act (the " Act" ). Contrary to Petitioners'
view, the circuit court determined attorneys' fees should be awarded based on an hourly rate via a lodestar calculation rather than the contingency [411 S.C. 5] fee agreement between Petitioners and their attorney. The Court of Appeals affirmed. S.C. Dep't of Transp. v. Revels, 399 S.C. 423, 731 S.E.2d 897 (Ct. App. 2012). This Court granted Petitioners' request for a writ of certiorari to review the decision of the Court of Appeals. We affirm in part, reverse in part, and remand this matter to the circuit court for further proceedings consistent with this opinion.
I. Factual / Procedural History
On August 6, 2007, the South Carolina Department of Transportation (the " SCDOT" ) filed a Notice of Condemnation against Petitioners in which it sought to acquire .314 acres of Petitioners' Marion County property for the construction of the U.S. Highway 378 relocation. Following a two-day trial, a jury returned a verdict in favor of Petitioners in the amount of $125,000.
Subsequently, Petitioners timely filed an application for attorneys' fees and costs pursuant to section 28-2-510(B)(1) in which they sought $28,233.33 in attorneys' fees based on a contingency fee agreement with their counsel. The agreement provided that counsel would represent Petitioners on a contingency fee basis of one-third of the gross amount recovered, less the original $40,300 offered by SCDOT. In order to determine a reasonable attorney's fee, the circuit court requested that Petitioners provide an affidavit outlining the factors identified in Jackson v. Speed, 326 S.C. 289, 486 S.E.2d 750 (1997).
During a hearing before the circuit court, Petitioners asserted the attorney's fee set by their contingency fee agreement was a reasonable award as it complied with the Act and [411 S.C. 6] Jackson . Therefore, Petitioners claimed the court must first determine whether or not the contingency fee agreement was reasonable before requiring them to provide anything more. In response, SCDOT maintained that attorneys' fees should not be calculated based on a percentage of the jury verdict but, rather, a lodestar analysis as required by Layman v. State, 376 S.C. 434, 658 S.E.2d 320 (2008), wherein this Court analyzed an award of attorneys' fees under the state action statute as codified in section 15-77-300 of the South Carolina Code.
Based on the lodestar doctrine, SCDOT moved for [411 S.C. 7] Petitioners' counsel to provide the court with an itemized statement that identified an hourly rate and the actual number of hours counsel worked on the case.
Citing Layman, the circuit court found Petitioners were entitled to an award of attorneys' fees based on an hourly rate rather than the contingency fee agreement. The court awarded Petitioners attorneys' fees in the amount of $16,290, which was based on an hourly rate of $300 per hour for 54.3 hours.
In their motion for reconsideration, Petitioners asserted the court failed to: (1) rule on whether the requested attorneys' fees were reasonable under section 28-2-510(B); (2) consider the case of Vick v. South Carolina Department of Transportation, 347 S.C. 470, 556 S.E.2d 693 (Ct. App. 2001), wherein the Court of Appeals approved the use of a contingency fee agreement in a condemnation action; (3) address any of the factors identified in Jackson ; and (4) apply a lodestar analysis as it " simply ordered a flat rate of $300.00 per hour." The court denied the motion, ruling that: (1) Petitioners' request for a reasonableness determination regarding contingency fees was not applicable in light of Layman ; (2) Vick was not ...