City of Spartanburg v. Bull

222 S.E.2d 491, 266 S.C. 168, 1976 S.C. LEXIS 323

• Court: Supreme Court of South Carolina
• Decided: February 5, 1976
• Docket: 20166
• Status: Published

Opinions

Lewis, Chief Justice.

This is an appeal from an order of the trial court fixing an attorney’s fee pursuant to Act No. 330, page 460, 1967 Acts of the General Assembly (Section 36-652, Code Supplement). The question to be decided is whether the fee allowed by the court was so inadequate as to constitute an abuse of discretion.

The General Assembly enacted the foregoing statute, in order to implement Article 1, Section 17 of the Constitution of 1895, so as to confirm the authority of municipalities in Spartanburg County to acquire, through the exercise of eminent domain, private property for urban renewal and slum clearance projects and to resell or lease the property so acquired h> private persons. Section 6 of the foregoing statute provides for the allowance of an attorney’s fee to the landowner in such cases when an appeal from the award of the Board of Condemnation results in an increased payment to the landowner. This section provides:

“When any property acquired through condemnation is intended to be resold or leased for private purposes to private persons the landowner may be allowed a reasonable attorney’s fee in connection with any appeal which he may take from the Award of the Board of Condemnation as provided hereinafter. Such attorney’s fee, which shall be fixed by the judge of the court of common pleas, shall be measured by the amount of increase awarded above the amount of the Award of the Board of Condemnation, and shall be taxed as a part of the court costs to be paid by the municipality. No attorney’s fee shall be awarded unless the jury shall grant an increase over the award of the Board of Condemnation and such attorney’s fee shall not exceed the minimum fee prescribed by the Spartanburg County Bar Association fee schedule.”

After the institution of condemnation proceedings against the landowners-appellants for the acquisition of two adjacent parcels of their land, a Board of Condemnation made an award to the landowners in the amount of $107,500.00 which, upon appeal, was increased by a jury verdict tO' $128,000.00. No appeal was taken from this verdict.

After the jury verdict, the landowners petitioned the trial judge, pursuant to the above quoted section, for an allowance of $10,250.00 as an attorney’s fee, which was 50% of the increase awarded by the jury. The landowners contended that this amount accorded with their contract of employment with their attorney and the last fee schedule of the Spartanburg County Bar, and was a reasonable fee under the circumstances. The trial judge refused to set a fee in the requested amount, but did enter an order allowing the sum of $3,000.00, from which this appeal comes.

While the schedule of minimum fees prescribed by the Spartanburg County Bar Association was abolished in 1972, the last schedule of minimum fees would have determined maximum fee allowable under the statute to be 50% of the increase allowed by- the jury verdict, or the sum of $10,-250.00. The only testimony offered from any member of the Spartanburg Bar was that a fee of $10,250.00 would be reasonable. In fact, it is uncontradicted in this record that a fee of $10,250.00 is in line with the fee customarily charged in Spartanburg County for similar services, and the landowners contracted with their attorney to pay that amount.

The fee of $3,000.00, awarded by the trial judge, was less than 15% of the increase obtained. While it may be conceded that the fee, in the amount requested, should not have been allowed, we find no basis upon which to sustain the discretionary conclusion that counsel’s services in this case were so far below the value of other similar services in the community.

The judgment is accordingly reversed and remanded for further determination of the fee to be allowed.

Littlejohn and Gregory, JJ., concur. Ness and Rhodes, JJ., dissent.