321 S.E.2d 183 | S.C. Ct. App. | 1984
The appellants, S & W Corporation of Inman, Walter Stiehl and Emiel Piasecki, except to the circuit court’s order award
The appellants initiated four suits against the respondents which alleged that the respondent, acting as agent of the appellants, wrongfully or fraudulently converted money or transferred real property of the appellants to himself. Their complaints requested damages and reconveyance of two tracts of lands: a 209-acre tract and a 15.8-acre tract.
The respondent brought an action against the appellants for partition, claiming an interest in several tracts of land including the 209-acre tract and two others: a 6-acre and a 32-acre tract. The complaint also requested reasonable attorney’s fees.
The circuit court judge consolidated the five cases and referred them to a special referee. Upon exception to the special referee’s report by both parties and after a hearing, the cases were returned to the special referee for the taking of additional testimony.
The circuit court confirmed the special referee’s report and the suits were ultimately resolved by requiring the property to be sold at public sale. The referee found that respondent had no interest in any of the property but was merely entitled to a one-third share in any profits resulting from the sale of the property. The property realized gross profits of $5,378 from the public sale. The court ordered the respondent’s share be credited against a debt which it found the respondent owed the appellants.
Thereafter, the respondent’s attorney petitioned the court to set attorneys’ fees for the attorneys who had represented the respondent. After a hearing and the submission of briefs, the court found reasonable attorneys’ fees to be $11,136.66 and ordered the appellants to pay seventy-five percent of that amount. The court’s order commented on the enormous amount of work the respondent’s attorneys had done in attempting to reconstruct poorly documented business transactions between the parties.
The appellants argue several contentions. First, they argue that since the respondent held no interest in the property in issue, his action was not a true partition action and attorneys’ fees could not be awarded pursuant to
The court of common pleas may fix attorney’s fees in all partition proceedings and, as may be equitable, assess such fees against any or all of the parties in interest.
The statute clearly states that the fixing and assessing of attorney’s fees is a matter within the circuit court’s discretion, the exercise of which will not be disturbed absent a showing of abuse thereof. Watson v. Little, 229 S. C. 486, 93 S. E. (2d) 645 (1956).
In several cases, our Supreme Court has held that the attorney of a losing party in a partition may be awarded attorney’s fees upon a determination that the attorney’s work benefited the true owners of the property. Kelly v. McCray, 278 S. C. 88, 292 S. E. (2d) 587 (1982); Briggs v. Jackson, 275 S. C. 523, 273 S. E. (2d) 532 (1981); Daniel v. White, 272 S. C. 477, 252 S. E. (2d) 912 (1979); Watson v. Little, supra. The amount of the award to be borne by the prevailing party is limited to an amount which compensates the attorney for the work which was helpful to the prevailing party. Daniel v. White, 272 S. C. at 482, 252 S. E. (2d) 912.
The court did not determine first that the respondent’s attorneys’ efforts benefited the appellants. This determination should be a factual one which is readily reviewable by an appellate court. We are also unable to determine that the assessment of seventy-five percent of the fees awarded represents the extent to which the respondent’s attorneys’ effort benefited the appellants.
Remanded.