Derrick v. Moore

          Submitted September 19, 2018

          Withdrawn, Substituted, and Refiled April 24, 2019

          Appeal From Kershaw County DeAndrea G. Benjamin, Circuit Court Judge,

          Robert Daniel Dodson, of Law Offices of Robert Dodson, PA, of Columbia, for Appellant.

          William S. Tetterton, of Tetterton Law Firm, LLC, of Camden, and Katherine Carruth Goode, of Winnsboro, for Respondent.

          LOCKEMY C.J.

         This is an appeal from a circuit court order compelling Lisa Moore (Client) to resolve a fee dispute through the Resolution of Fee Disputes Board of the South Carolina Bar (the Board). Client argues (1) Jean Derrick (Attorney) waived the right to compel her appearance before the Board by first filing an action in the circuit court, (2) the circuit court lacked authority to compel Client's appearance before the Board, and (3) Attorney's fee agreement is unenforceable under the South Carolina Uniform Arbitration Act.^[1] We affirm.^[2]

         I. FACTS

         Client retained Attorney in April 2011 to represent her in a family court matter in Kershaw County. At the onset of the representation, Client and Attorney signed a fee agreement, which provided: "ANY DISPUTE CONCERNING THE FEE DUE PURSUANT TO THIS AGREEMENT SHALL BE SUBMITTED BY THE DISSATISFIED PARTY FOR A FULL, FINAL RESOLUTION TO [THE BOARD], PURSUANT TO RULE 416 OF THE SOUTH CAROLINA APPELLATE COURT RULES."

         Attorney's representation of Client continued from April 2011 through April 2014. On March 6, 2014, the family court entered a final order largely favoring Client and awarding her attorney's fees.^[3] The family court found the litigation was "relatively complex," Attorney had "obtained beneficial results across the board for [Client]," the number of hours expended on the case was reasonable, and Attorney's hourly fee was reasonable for a practitioner with thirty-six years' experience. Based on these findings, the family court ordered the opposing party to pay $12, 000 in attorney's fees-or roughly sixty percent of Client's $20, 509.55 legal bill-directly to Client by July 4, 2014. This order was not appealed.

         Client's last payment to Attorney was in May 2014; however, there still remained an outstanding balance of $10, 484.40. Client did not object to the amount of the bill and repeatedly assured Attorney she would pay, although this evidently never happened. On October 6, 2014, Attorney commenced an action against Client in the circuit court to recover the unpaid fees.

         Client answered, and by way of an affirmative defense, asserted Attorney had failed to comply with the provision of the fee agreement that required all fee disputes to be resolved by the Board. Client also submitted counterclaims for breach of contract accompanied by a fraudulent act, violation of the South Carolina Unfair Trade Practices Act, abuse of process, and conversion. Attorney answered and moved for an order compelling Client to submit the fee dispute to the Board pursuant to the fee agreement and Rule 416, SCACR.

         At a hearing on Attorney's motion, Client contended the circuit court lacked the authority to send a fee dispute to the Board without her consent. Client also argued Attorney waived the right to have the fee dispute settled before the Board by electing instead to file a lawsuit in the circuit court.

         On December 4, 2015, the circuit court granted Attorney's motion, concluding the fee agreement bound Client to adjudicate any fee disputes before the Board. Client filed a motion to reconsider, arguing (1) the circuit court lacked the authority to compel Client to arbitrate fee disputes through the Board, (2) Client did not consent to the Board's jurisdiction, (3) the fee agreement was unlawful under the Uniform Arbitration Act, and (4) Attorney waived the ...