C. Attorney Fees and Costs
SCUTPA mandates the award of attorney fees to a successful plaintiff.16 SCUTPA provides that "upon the finding by the court of a violation of this article the court shall award to the person bringing such action under this section reasonable attorney's fees and costs."17 While it is necessary to demonstrate willfulness or knowledge that the act in question violated section 39-5-20 to recover treble damages, neither is necessary to receive attorney's fees.18 All that is needed for the court to award attorney's fees is a finding that section 39-5-20 has been violated.19
A determination of the amount and reasonableness of the attorney's fee award is a matter within the court's discretion.20 The party seeking a recovery of attorney's fees bears the burden of proving and "documenting the appropriate hours expended and hourly rates."21 In analyzing attorney's fees, the contract between the client and his counsel does not control the determination of a reasonable hourly rate. In Jackson v. Speed,22 the South Carolina Supreme Court upheld the trial judge's increase of the hourly rate for the attorney to $125.00 per hour from the $110.00 per hour that was agreed upon in the contract.23 Conversely, in Global Protection Corp. v. Helbersberg,24 the court approved a one-third recovery of attorneys fees when the contingency fee agreement provided for a fee based on forty percent of the recovery.25 Thus, the measure of appropriate attorney's fees to be assessed against a party is not always the time spent on the case.26
There is "no requirement that an attorney's fee be less than or comparable to the party's monetary judgment."27 The Supreme Court of South Carolina has approved an award of attorney's fees that exceeded the actual recovery. In Baron Data Systems, Inc. v. Loter,28 the court approved the recovery of $26,000 in attorney fees and $3252.51 in costs where the jury returned a verdict for $16,161 actual damages.29 The appellate courts will, however, disturb an attorney's fee award if there is an abuse of discretion by the trial judge.30 In Cantrell v. M&M Chevrolet, Inc.,31 the court determined that the case was not complex and noted that the attorney devoted approximately sixty hours to the case and spent one day in trial.32 The Fourth Circuit in Cantrell concluded that the magistrate judge may have abused his discretion in awarding attorney's fees more than four hundred times the amount of actual damages and ordered the magistrate judge to provide detailed findings to support any attorney's fees awarded.33
In upholding an award of $500,000 in attorney's fees, the court in Taylor v. Medenica considered six factors: (1) the nature, extent and difficulty of the case; (2) the time necessarily devoted to the case; (3) the professional standing of counsel; (4) the contingency of compensation; (5) the beneficial results obtained; and (6) the customary legal fees for similar services.34 No one factor is controlling and consideration should be given to all six factors.35 On appeal, the courts have upheld an award of attorney's fees as long as there is sufficient evidence in the record to support each factor.36
In Liberty Mutual Insurance Co. v. Employee Resource Management, Inc.,37 the South Carolina District Court utilized a twelve-factor test, first outlined in Johnson v. Georgia Highway Express, Inc. 38 to evaluate the reasonableness of attorney's fees:
(1) the time and labor expended; (2) the novelty and difficulty of the questions raised; (3) the skill required to properly perform the legal services rendered; (4) the attorney's opportunity costs in pressing the instant litigation; (5) the customary fee for like work; (6) the attorney's expectations at the outset of litigation; (7) the time limitations imposed by the client or circumstances; (8) the amount in controversy and the results obtained; (9) the experience, reputation and ability of the attorney; (10) the undesirability of the case within the legal community in which the suit arose; (11) the nature and length of the professional relationship between attorney and client; and (12) attorneys' fees awards in similar cases.39
In calculating the appropriate hourly rate, the court in Liberty Mutual Insurance Co. referred to Johnson factors 2, 3, 4, 5, 8, 9, and 10.40 The court further recognized that unfair trade practices issues were "unique and difficult."41
The fourth Johnson factor deals with the issue of counsel being forced to forego other legal work at the same billing rates in order to concentrate on the instant action. This factor can be met if participation in numerous court proceedings denies counsel the opportunity to work on other cases that will produce fees.42
In analyzing the fifth Johnson factor, which is the "customary fee for like work," a court should consider various information including affidavits, recent fee awards in comparable cases, and "specific evidence of counsel's actual billing practice or other evidence of actual rates which counsel can command in the market."43
The sixth Johnson factor, "attorney's expectations at the outset of litigation," is generally relevant to contingent fee arrangements. Although there was no contingency agreement in Liberty Mutual Insurance Co., the court did...
