Harold Raynor a/k/a Harold Reynor, and Michael Caldwell, Respondents,
Charles C. Byers, John T. Bakhaus, Kurt Kasler, and Kenneth Smith, Defendants, Of whom Charles C. Byers, John T. Bakhaus, and Kenneth Smith are the Appellants. Appellate Case No. 2016-000106
October 3, 2017
From Aiken County Doyet A. Early, III, Circuit Court Judge
Herbert W. Hamilton, of Hamilton Martens, LLC, of Rock Hill,
for Appellant Kenneth Smith.
Spencer Andrew Syrett, of Columbia, for Appellants John T.
Bakhaus and Charles C. Byers.
Nicklaus Molony, of Thurmond Kirchner & Timbes, P.A., and
Robert J. Harte, of Robert J. Harte, P.C., both of Aiken, for
C. Byers, John T. Bakhaus, and Kenneth Smith (Appellants)
appeal the circuit court's order granting attorney's
fees to Harold Raynor and Michael Caldwell (Respondents).
Appellants argue the circuit court erred because (1) no
statute provided for attorney's fees and (2) there was no
longer a contractual provision allowing for attorney's
fees. We affirm.
March 14, 2008, Appellants and Kurt Kasler executed a
promissory note to Respondents. Appellants and Kasler agreed
to pay the principal amount of $250, 000 by March 1, 2009,
and to pay eight percent interest in the event of default.
The note further provided: "In the event of default in
the payment of this note, and if it is placed in the hands of
an attorney for collection, the undersigned hereby agrees to
pay all costs of collection, including a reasonable
April 3, 2009, Respondents filed a breach of contract action
seeking repayment of the $250, 000 note, interest,
attorney's fees, and costs. Appellants and Kasler did not
answer the complaint and the circuit court entered a default
judgment against them on August 4, 2009. The judgment
provided Appellants and Kasler were required to pay $258,
768.15, which included the principal amount, interest, costs,
and attorney's fees. On October 14, 2015, Respondents
filed a motion for attorney's fees and costs seeking $82,
433.68 in fees and costs associated with attempting to
collect the judgment from Appellants and Kasler in
hearing on Respondents' motion for attorney's fees,
Appellants argued Respondents were not entitled to
post-judgment attorney's fees because attorney's fees
were not warranted by a statute or contract. Appellants
argued "the purpose of entering a judgment is to
liquidate that amount of debt that is owed" such that
"the instrument upon which the debt is based merges into
the judgment and the judgment becomes the document that's
being enforced." According to Appellants, "the
supplemental proceedings [were] not to collect the note,
they[ were] to collect the judgment." In contrast,
Respondents argued the note provided for attorney's fees
in the event of default and the supplemental proceedings were
part of the collections process agreed to by both parties in
the contract. The circuit court granted Respondents'
motion for attorney's fees, finding: (1) South Carolina
courts had not adopted the merger doctrine, (2) "[t]he
parties contracted for the award of attorney['s] fees
should any 'litigation' or 'collections' be
necessary, " and (3) the amount of the requested
attorney's fees was reasonable. This appeal followed.
argue the circuit court erred in awarding post-judgment
attorney's fees to Respondents because attorney's
fees were not warranted by a statute or contract. Appellants
urge this court to follow the Maryland court in Monarc
Construction, Inc. v. Aris Corp. in applying the merger
doctrine from the Restatement of Judgments. Appellants
contend "once the judgment was issued, the contractual
provisions of the note merged into the judgment" so
there was no longer a contract providing for attorney's
fees. We disagree.
review of attorney fees awarded pursuant to a contract is
governed by an abuse of discretion standard." Laser
Supply & Servs., Inc. v. Orchard Park Assocs., 382
S.C. 326, 340, 676 S.E.2d 139, 147 (Ct. App. 2009). "An
abuse of discretion occurs when the [circuit] court's
ruling is based on an error of law or, when grounded in
factual conclusions, is without evidentiary support."
Clark v. Cantrell, 339 S.C. 369, 389, 529 S.E.2d
528, 539 (2000). "In South Carolina, the authority to
award attorney's fees can come only from a statute or be
provided for in the language of a contract. There is no