Williamson v. Middleton

ANDERSON, J.,

dissenting in a separate opinion:

I disagree with the majority’s reasoning and analysis and VOTE to REVERSE the award of fees.

FACTUAL/PROCEDURAL BACKGROUND

For several years, Middleton worked for Williamson as a commissioned salesman. When Middleton quit working for Williamson, he was due a commission for having sold yarn pallets to one of Williamson’s customers. Middleton and Williamson disagreed as to the amount of commission due, and Williamson never paid Middleton any commission, even though it acknowledged owing him $906.62.

*433After leaving his employment with Williamson, Middleton began working for Peninsula Plastics, Inc., one of Williamson’s pallet suppliers. Middleton continued to seek the commission Williamson owed him, and sought assistance from his present attorney. Middleton and his counsel are personal friends, and counsel previously had represented Middleton in less-complicated matters without charge. Middleton’s attorney agreed to help with the claim for commission, and the two were to discuss a fee at the end of the case.

Williamson initially was represented by Jordan & Clardy, LLC. Middleton’s attorneys informed Williamson that they had a complaint drafted and were ready to sue in order to recover the unpaid commission. Williamson’s attorney requested that Middleton refrain from acting on the drafted complaint until he could speak with his client. Middleton agreed, and two days later, Williamson filed a complaint against Middleton, alleging causes of action for fraud, constructive fraud, breach of fiduciary duty, and violation of the South Carolina Unfair Trade Practices Act. Middleton filed an answer, denying the allegations and counterclaiming for commissions owed and sanctions under the South Carolina Frivolous Proceedings Act. Approximately one month prior to trial, Williamson hired its current counsel.

Of Williamson’s claims against Middleton, only the cause of action for breach of fiduciary duty went to the jury. The jury returned a verdict in favor of Middleton on that cause of action and found in favor of Middleton on his counterclaim for unpaid commission, awarding him $906.62 in actual damages.

The trial judge, Judge Pyle, ruled Middleton was entitled to attorney’s fees, but asked the parties to attempt to determine the amount of attorney’s fees themselves. In the event they could not agree to an amount, Judge Pyle explained he would set the amount for them. The parties could not come to a consensus on the amount of attorney’s fees, and Middleton petitioned the court for assistance. Judge Miller awarded Middleton $35,000 in attorney’s fees. In an unpublished opinion, Williamson v. Middleton, 2005-UP-011 (S.C. Ct.App. filed January 11, 2005), this Court found that Judge Pyle had retained exclusive jurisdiction over the matter. We therefore *434reversed Judge Miller’s award and remanded the issue of attorney’s fees for Judge Pyle’s consideration.

At the hearing before Judge Pyle, Williamson argued Middleton was not entitled to attorney’s fees because (1) he was not the prevailing party; (2) the bill Middleton’s counsel presented documenting over $100,000 worth of work listed hours spent on claims other than the unpaid commission claim for which attorney’s fees are allowed; and (3) the amount of fees Middleton’s counsel requested, $35,000, far exceeded the $906.62 verdict. Williamson further maintained Middleton did not incur any fees because when Middleton’s counsel was deposed, he admitted there was no fee agreement between him and Middleton.

Judge Pyle acknowledged that Middleton and his attorney had not entered into a formal, written fee agreement, but relied instead “on their long-standing personal relationship and mutual agreement to determine an appropriate fee for services at the conclusion of this matter.” The judge found such an agreement did not preclude attorney’s fees. Accordingly, Judge Pyle awarded Middleton $35,000 in attorney’s fees. Williamson filed a Rule 59(e), SCRCP, motion, which was denied.

STANDARD OF REVIEW

There must be sufficient evidence in the record to support each of the six factors analyzed for an award of attorney’s fees. See Taylor v. Medenica, 331 S.C. 575, 580, 503 S.E.2d 458, 461 (1998). “On appeal, absent sufficient evidentiary support on the record for each factor, the award should be reversed and the issue remanded for the trial court to make specific findings of fact.” Blumberg v. Nealco, 310 S.C. 492, 494, 427 S.E.2d 659, 661 (1993).

The interpretation of a statute is not a finding of fact. Thompson v. Ford Motor Co., 200 S.C. 393, 21 S.E.2d 34 (1942). “The issue of interpretation of a statute is a question of law for the court.” Jeter v. S.C. Dep’t of Transp., 369 S.C. 433, 633 S.E.2d 143 (2006) (Shearouse Adv. Sh. No. 23 at 43) citing Charleston County Parks & Recreation Comm’n v. Somers, 319 S.C. 65, 459 S.E.2d 841 (1995); see also Liberty Mut. Ins. Co. v. S.C. Second Injury Fund, 363 S.C. 612, 621, *435611 S.E.2d 297, 301 (Ct.App.2005) (“The determination of legislative intent is a matter of law.”) (citations omitted); Eldridge v. City of Greenwood, 331 S.C. 398, 417, 503 S.E.2d 191, 200 (Ct.App.1998) (“[T]he interpretation of a statute is a matter of law.”). See, e.g., Carolina Power & Light Co. v. Town of Pageland, 321 S.C. 538, 471 S.E.2d 137 (1996); Byrd v. Irmo High School, 321 S.C. 426, 468 S.E.2d 861 (1996); Rowe v. Hyatt, 321 S.C. 366, 468 S.E.2d 649 (1996).

LAWIANALYSIS

I. SECTION 39-65-30 OF THE SOUTH CAROLINA CODE

Williamson first argues Middleton is not entitled to attorney’s fees because he does not meet the requirements of section 39-65-30 of the South Carolina Code (Supp.2005). Specifically, Williamson points out that this statute only applies to sales representatives who seek to recover commissions on “wholesale” sales, and the commission awarded to Middleton was from a sale made to the ultimate consumer. I find this issue is not preserved for our review.

Initially, I note that the arguments Williamson made to Judge Pyle on this issue are not reflected in the record on appeal. Williamson did not advance this argument at the hearing before Judge Pyle, and although Williamson’s counsel refers to a memorandum she filed in opposition to Middleton’s request for attorney’s fees, that memorandum was not included in the record on appeal. See Taylor v. Taylor, 294 S.C. 296, 299, 363 S.E.2d 909, 911 (Ct.App.1987) (“The burden is on the appellant to furnish a sufficient record on appeal from which this court can make an intelligent review.”). I acknowledge, however, that Judge Pyle addressed the argument in his order awarding attorney’s fees, suggesting the argument was set forth in Williamson’s memorandum. In the order, Judge Pyle found Williamson’s argument that Middleton was not entitled to attorney’s fees and costs pursuant to section 39-65-30 came too late because during trial, Williamson never objected to the jury instructions referencing section 39-65-30, nor did Williamson challenge Judge Pyle’s initial ruling that Middleton was entitled to attorney’s fees.

*436In its brief to our court, Williamson argues that “[e]ven though the jury returned a verdict ... that awarded Middleton $906.62 for unpaid commissions, this recovery was sought on alternate grounds, both pursuant to § 39-65-30 and § 41-10-10.” In so arguing, Williamson implies the jury’s award was based on a statute other than section 39-65-30. Williamson further contends that its argument on this issue is timely because “the request for attorney fees is predicated on entirely different factors than was the request for commissions.” From the record before this court, there is no indication this specific argument was ever made to the trial court, either prior to the order awarding attorney’s fees or in Williamson’s motion for reconsideration. Thus, the issue is not preserved for review. See Staubes v. City of Folly Beach, 339 S.C. 406, 412, 529 S.E.2d 543, 546 (2000) (“It is well-settled that an issue cannot be raised for the first time on appeal, but must have been raised to and ruled upon by the trial court to be preserved for appellate review.”); see also Floyd v. Floyd, 365 S.C. 56, 73, 615 S.E.2d 465, 474 (Ct.App.2005) (“ ‘Imposing this preservation requirement on the appellant is meant to enable the lower court to rule properly after it has considered all relevant facts, law, and arguments.’ ”) (quoting I'On, L.L.C v. Town of Mt. Pleasant, 338 S.C. 406, 422, 526 S.E.2d 716, 724 (2000)); Ellie, Inc. v. Miccichi, 358 S.C. 78, 103, 594 S.E.2d 485, 498 (Ct.App.2004) (“Without an initial ruling by the trial court, a reviewing court simply would not be able to evaluate whether the trial court committed error.”).

Next, Williamson argues Middleton failed to prove the elements necessary to recover fees. I agree.

The general rule is that attorney’s fees are not recoverable unless authorized by contract or statute. Blumberg v. Nealco, Inc., 310 S.C. 492, 493, 427 S.E.2d 659, 660 (1993) (citing Baron Data Sys., Inc. v. Loter, 297 S.C. 382, 383 377 S.E.2d 296, 297 (1989); Hegler v. Gulf Ins. Co., 270 S.C. 548, 548, 243 S.E.2d 443, 444 (1978)); accord Seabrook Island Property Owners’ Ass’n v. Berger, 365 S.C. 234, 238, 616 S.E.2d 431, 434 (Ct.App.2005). “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 common law right to recover attorney’s fees.” Harris-Jenkins v. Nissan Car Mart, Inc., 348 S.C. 171, 176, 557 S.E.2d 708, 710 (Ct.App.*4372001) (citing Jackson v. Speed, 326 S.C. 289, 486 S.E.2d 750 (1997); American Fed. Bank, FSB v. Number One Main Joint Venture, 321 S.C. 169, 175, 467 S.E.2d 439, 442 (1996); Blumberg, 310 S.C. at 493, 427 S.E.2d at 660; Baron Data, 297 S.C. at 383, 377 S.E.2d at 297; Dowaliby v. Chambless, 344 S.C. 558, 560, 544 S.E.2d 646, 647 (Ct.App.2001); Harvey v. South Carolina Dep’t of Corrections, 338 S.C. 500, 510, 527 S.E.2d 765, 770 (Ct.App.2000); Global Protection Corp. v. Halbersberg, 332 S.C. 149, 160, 503 S.E.2d 483, 489 (Ct.App.1998); Prevatte v. Asbury Arms, 302 S.C. 413, 415, 396 S.E.2d 642, 643 (Ct.App.1990)).

Section 39-65-30 provides:

A principal who fails to comply "with the provisions of Section 39-65-20 is liable to the sales representative in a civil action for:
(1) all amounts due the sales representative plus punitive damages in an amount not to exceed three times the amount of commissions due the sales representative; and
(2) attorney’s fees actually and reasonably incurred by the sales representative in the action and court costs.

S.C.Code Ann. § 39-65-30 (Supp.2005). The jury awarded Middleton the unpaid commission pursuant to section 39-65-20.

When awarding attorney’s fees, the trial court must consider the following six factors: (1) the nature, extent, and difficulty of the legal services rendered; (2) the time and labor necessarily devoted to the case; (3) the professional standing of counsel; (4) the contingency of compensation; (5) the fee customarily charged in the locality for similar legal services; and (6) the beneficial results obtained. Baron Data, 297 S.C. at 384-85, 377 S.E.2d at 297. When awarding attorney’s fees, “there is no requirement that [the fees] be less than or comparable to a party’s monetary judgment.” Taylor v. Medenica, 331 S.C. 575, 580, 503 S.E.2d 458, 461 (1998).

Here, Middleton incurred no attorney’s fees because no fee agreement existed between Middleton and his attorney. In his deposition, Middleton’s lead counsel stated:

[W]e don’t have a fee agreement with Mr. Middleton. We talked about this with Mr. Middleton to begin with and we decided that we would try to help him collect the monies *438due him and at the end of the case, we would talk about a fee. So we don’t have a fee agreement with him. But some day, he might pay us a fee. Right now, he has no obligation at this point if there is no agreement. He might feel a moral obligation. And when we talk at the end of the case, he will have the final say.

(Emphasis added.)

Counsel’s testimony admits there was no fee agreement with Middleton. Consequently, there is no obligation to pay, and no fees have been incurred.

Hopkins v. Hopkins, 343 S.C. 301, 540 S.E.2d 454 (2000), involved Father’s action to recover overpayment of child support and attorney’s fees. The court found Father was entitled to reimbursement of child support overpayments but held he could not recover attorney’s fees because his current wife represented him and they did not have a fee agreement. The court began its analysis by noting that Calhoun v. Calhoun, 339 S.C. 96, 100, 529 S.E.2d 14, 17 (2000), held a pro se litigant could not recover attorney’s fees because “a pro se litigant, whether an attorney or layperson, does hot become ‘liable for or subject to fees charged by an attorney.’ ” 343 S.C. at 306, 540 S.E.2d at 457. The Hopkins court declared:

[H]ere, we find no evidence Father actually became “liable for or subject to” attorneys’ fees for his attorney/wife’s service. There is no contract or fee agreement in the record, nor is there any indication or testimony that Father’s wife/attorney has attempted or intends to collect the fees from Father. Accordingly, Father did not prove that he became liable for the fees, such that the family court properly denied Father’s request.

343 S.C. at 307, 540 S.E.2d at 457.

The rationale of Hopkins is equally applicable in the instant case. Both Calhoun and Hopkins focused on the litigants’ lack of liability for attorney’s fees. Here, Middleton’s counsel admits Middleton “has no obligation at this point if there is no agreement.” There is no agreement; therefore, Middleton owes no obligation to pay, and no fees were incurred. Under these facts the trial judge erred in awarding attorney’s fees. I DO NOT HOLD OR RULE THAT A FORMAL FEE AGREEMENT INTER SESE CLIENT-ATTORNEY IS *439NECESSARY AS A PREDICATE FOR AN AWARD OF ATTORNEY’S FEES IN SOUTH CAROLINA. I DO, HOWEVER, HOLD THAT THE SERVICES RENDERED BY THE ATTORNEY MUST HAVE BEEN RENDERED UNDER CIRCUMSTANCES WHEREBY THE PARTIES UNDERSTOOD THAT THE CLIENT WAS REQUIRED TO PAY THE ATTORNEY FOR THE SERVICES RENDERED, ALBEIT, THE AMOUNT WAS NOT AGREED UPON AND A REASONABLE FEE NECESSARILY MUST BE IMPLIED. THAT WAS NOT THE SITUATION IN THIS CASE. THE CONTROLLING STATUTE IN THIS CASE MANDATES THAT AN ATTORNEY FEE BE ACTUALLY INCURRED BEFORE THE COURT IS ENTITLED TO AWARD ATTORNEYS FEES.

II. REASONABLENESS OF ATTORNEY’S FEES

Assumptively concluding that an award for an attorney’s fee in this case should be given, I address the reasonableness of the attorney’s fee awarded.

A. Initial Analysis by the Trial Court: Determining Whether Attorney’s Fees Should Be Awarded

When presented with a request for attorney’s fees, the trial court must first determine whether such an award is warranted. In making this determination, the following factors should be considered:

(1) each party’s respective ability to pay his/her own attorney’s fee;
(2) beneficial results obtained by the requesting party’s attorney;
(3) the parties’ respective financial conditions; and
(4) effect of the attorney’s fee on each party’s standard of living.

Lanier v. Lanier, 364 S.C. 211, 220, 612 S.E.2d 456, 461 (Ct.App.2005); Lacke v. Lacke, 362 S.C. 302, 317, 608 S.E.2d 147, 155 (Ct.App.2005); Doe v. Doe, 324 S.C. 492, 505, 478 S.E.2d 854, 861 (Ct.App.1996); E.D.M. v. T.A.M., 307 S.C. 471, 476-77, 415 S.E.2d 812, 816 (1992); Glasscock v. Glasscock, 304 S.C. 158, 160, 403 S.E.2d 313, 315 (1991).

*440B. Where Statute or Contract Permits Award of “Reasonable” Attorney’s Fees: Six Factors for Consideration by Trial Courts Regarding the Amount of Attorney’s Fees Awarded

1. What Constitutes a “Reasonable” Attorney’s Fee: Six Factors

When determining what constitutes a “reasonable” attorney’s fee, the trial court must consider the following six factors: (1) the nature, extent, and difficulty of the case; (2) the time necessarily devoted to the case; (3) professional standing of counsel; (4) contingency of compensation; (5) beneficial results obtained; and (6) customary legal fees for similar services. Seabrook Island Prop. Owners’ Ass’n v. Berger, 365 S.C. 234, 616 S.E.2d 431 (Ct.App.2005); Lanier, 364 S.C. at 220, 612 S.E.2d at 461; Rowell v. Whisnant, 360 S.C. 181, 185, 600 S.E.2d 96, 99 (Ct.App.2004); Gordon v. Drews, 358 S.C. 598, 613, 595 S.E.2d 864, 872 (Ct.App.2004); Burton v. York County Sheriff's Dep’t, 358 S.C. 339, 358, 594 S.E.2d 888, 898 (Ct.App.2004); Vick v. South Carolina Dep’t of Transp., 347 S.C. 470, 484, 556 S.E.2d 693, 700 (Ct.App.2001); Global Protection Corp. v. Halbersberg, 332 S.C. 149, 503 S.E.2d 483 (Ct.App.1998); Taylor v. Medenica, 331 S.C. 575, 580, 503 S.E.2d 458, 461 (1998); Jackson v. Speed, 326 S.C. 289, 308, 486 S.E.2d 750, 760 (1997); Prevatte v. Asbury Arms, 302 S.C. 413, 416, 396 S.E.2d 642, 644 (Ct.App.1990); Dedes v. Strickland, 307 S.C. 155, 160, 414 S.E.2d 134, 137 (1992); Baron Data Sys., Inc. v. Loter, 297 S.C. 382, 384, 377 S.E.2d 296, 297 (1989).

2. No One Factor is Controlling

Consideration should be given by the trial court to all six factors; none of the factors is controlling. Taylor v. Medenica, 331 S.C. at 580, 503 S.E.2d at 461; Baron Data Sys., 297 S.C. at 384, 377 S.E.2d at 297.

3. Explanation of Factors/Examples of Application of Facts to Six Factors

• Baron Data Systems, Inc. v. Loter, 297 S.C. 382, 384-85, 377 S.E.2d 296, 297-98 (1989):

In awarding reasonable attorney’s fees, there are six factors to be considered. See, e.g., Wood v. Wood, 269 S.C. *441600, 239 S.E.2d 315 (1977); Bentrim v. Bentrim, 282 S.C. 333, 318 S.E.2d 131 (Ct.App.1984). Consideration should be given to all six criteria in establishing reasonable attorney’s fees; none of these six factors is controlling. Darden v. Witham, 263 S.C. 183, 209 S.E.2d 42 (1974).
In making its determination, the trial court articulated each of the six factors.
(1) The Nature, Extent and Difficulty of the Legal Services Rendered.
Upon its evaluation of the nature, extent and difficulty of the legal services, the trial court determined that Baron had to expend considerably more time and effort on the case because the defendants had transformed a simple collection action into complex litigation.
(2) The Time and Labor Necessarily Devoted to the Case.
The trial court concluded that “a review of the statements and affidavits of Baron’s trial attorney indicate clearly that the time and labor spent were reasonable and not duplicative.” The respondents did not dispute this conclusion.
(3) The Professional Standing of Counsel.
The circuit court’s determination that Baron’s trial attorney is an experienced, skilled attorney, of high professional standing in the community was based upon a careful review of the affidavits of Baron’s expert and its trial attorney, which included the attorney’s resume. Respondents did not contest the trial court’s determination.
(4) The Contingency of Compensation.
Not applicable since this was not a contingency case.
(5) The Fee Customarily Charged in the Locality for Similar Legal Services.
Based upon a review of the attorney’s resume, affidavits and its familiarity with attorney fees customarily charged in this legal community, the trial court found that the rate of $100 per hour was appropriate.
(6) The Beneficial Results Obtained.
The trial court decided that the total benefits obtained by Baron include a sizeable judgment ($16,151) and the avoidance of nearly half a million dollars in liability on the *442counterclaims. The Court of Appeals concluded that Baron sought over $70,000 and recovered only $16,151, thus the beneficial result was not significant.
I conclude that the trial court properly applied the relevant factors and that its order is supported by the record.

Glasscock v. Glasscock, 304 S.C. 158, 161, 403 S.E.2d 313, 315 (1991):

[W]e clarify the.six factors cited by this Court in determining a reasonable attorney’s fee include:
(1) the nature, extent, and difficulty of the case;
(2) the time necessarily devoted to the case;
(3) professional standing of counsel;
(4) contingency of compensation;
(5) beneficial results obtained;
(6) customary legal fees for similar services.
Donahue v. Donahue, 299 S.C. 353, 384 S.E.2d 741 (1989). While “contingency of compensation” is an appropriate factor considered in awarding attorney’s fees, the contingency to be considered is whether the party on whose behalf the services were rendered will be able to pay the attorney’s fee if an award is not made. Further, the factor “beneficial results obtained” merely aids in determining whether an award is appropriate when considering whether the services of a lawyer facilitated a favorable result. Neither of these factors endorses use of a percentage fee.....
Further, we hold that a fee award must be based upon a reasonable hourly fee. Applying the above six factors to determine an appropriate fee award, the reasonableness of the hourly rate shall be determined according to: (1) the professional standing of counsel; and (2) the customary legal fees for similar services. The reasonableness of the number of hours billed shall be determined according to: (1) the nature, extent, and difficulty of the case; and (2) the time necessarily devoted to the case.[FNl]
[FN1] As discussed above, the remaining factors, “contingency of compensation” and “beneficial results obtained” are to be considered in determining whether an award *443should be made. In making this determination, the abilities of the parties to pay, their respective financial conditions, and the effect of the attorney’s fees on each party’s standard of living are also to be considered. Mitchell v. Mitchell, 283 S.C. 87, 320 S.E.2d 706 (1984).
Applying these factors here, we find the total hourly fee of $51,998.75 reasonable and affirm the award of attorney’s fees in this amount.

Taylor v. Medenica, 331 S.C. 575, 580-81, 503 S.E.2d 458, 461-62 (1998):

The trial court considered each of the above factors in setting the attorney’s fee award. The trial judge based his award on the affidavits submitted by Mrs. Taylor’s three attorneys and the affidavit of an attorney who did not participate in this matter but attested the hourly rates and hours submitted were appropriate. The trial judge noted he had presided over a number of the discovery motions in this case, all of the pretrial motions, and the two and one-half week trial. The court determined the amount of time estimated by Mrs. Taylor’s attorneys, approximately 1500 hours, was appropriate, if not conservative. The court recognized all of Mrs. Taylor’s attorneys were experienced and capable trial attorneys and agreed the hourly rates for each were appropriate. The court noted the attorneys had accepted this case on a contingency fee basis and opined it thought UTPA actions were one of the most difficult types of cases to try. The trial court recognized the beneficial results obtained by the attorneys, both in terms of the $108,726 recovered under the UTPA by Mrs. Taylor from CIBL and in terms of the public benefit in deterring CIBL from similar conduct.
In addition, the trial court took judicial notice that CIBL vigorously contested Mrs. Taylor’s claims it had violated the UTPA, thereby requiring Mrs. Taylor to present witnesses in response. Mrs. Taylor’s experts testified CIBL’s laboratory tests were excessive, “absolutely bizarre,” and the results were questionable. One expert testified he believed the tests were conducted for the purpose of generating income. One witness testified there was no medical reason *444for any of the tests. Another witness testified the tests were painful to Mrs. Taylor yet medically worthless.
We have reviewed the affidavits submitted by counsel and agree they are somewhat deficient. One affidavit includes approximately 78 hours of time for work performed prior to the filing of Mrs. Taylor’s second amended complaint. Moreover, the affidavits do not specifically state the time spent on the UTPA claim against CIBL.
In spite of these deficiencies, we conclude there is evidence which supports the approximately 1500 hours of time spent by Mrs. Taylor’s attorneys on this matter. The affidavits note the time spent by other attorneys and some legal professionals was not submitted for reimbursement. The judge who presided over the majority of this matter stated the submitted time was, in his view, conservative. Furthermore, time spent is but one factor to consider in setting a reasonable attorney’s fee. Baron Data Systems, Inc. v. Loter, supra.
With regard to the issue of estimates, two of the three affidavits state the attorneys did not keep records of the time spent on this case. Nonetheless, the accompanying time sheets do list specific services rendered and the time spent performing each service. We conclude the affidavits and accompanying time sheets fairly reflect the time spent by the attorneys on this matter.
Finally, there is no requirement that an attorney’s fee be less than or comparable to a party’s monetary judgment. This Court has approved an award of attorney’s fees where the fee substantially exceeded the actual recovery. Baron Data Systems, Inc. v. Loter.
We conclude the trial judge properly considered all six factors in determining the appropriate attorney’s fee and find his decision awarding $500,000 in attorney’s fees and $24,068 in costs is supported by the record. Jackson v. Speed, supra. (Footnotes omitted).

C. Court is Required to make Findings of Fact for Each of the Six Factors

“When an award of attorney’s fees is requested and authorized by contract or statute, the court should make specific *445findings of fact on the record for each factor set forth in Collins v. Collins, [239 S.C. 170, 122 S.E.2d 1 (1961)].” Blumberg v. Nealco, Inc., 310 S.C. 492, 494, 427 S.E.2d 659, 661 (1993).

“On appeal, absent sufficient evidentiary support on the record for each factor, the award should be reversed and the issue remanded for the trial court to make specific findings of fact.” Id. This proposition has been interpreted by our courts to mean that an award for attorney’s fees will not be reversed due to a lack of findings in the order when the record supports the judge’s determination. See Jackson v. Speed, 326 S.C. 289, 308, 486 S.E.2d 750, 760 (1997) (“[A]n award for attorney’s fees will be affirmed so long as sufficient evidence in the record supports each factor.”); McMaster v. Strickland, 322 S.C. 451, 455, 472 S.E.2d 623, 626 (1996) (affirming special referee’s award of attorney’s fees notwithstanding his failure to make specific findings about each of the six Blumberg factors because the record contained ample support for each of the six factors).

Encapsulating the facts of this case and the law, I conclude that the amount of the award of the attorney’s fee is NOT supported by the evidentiary record. Further, the amount of the award is unreasonable and unjustified. In reviewing the Baron Data factors and juxtaposing the evidentiary record to the law extant, I come to the ineluctable conclusion that the amount of the award of attorney’s fees far exceeds any notion of reasonableness.

CONCLUSION

I hold that in South Carolina under section 39-65-30 of the South Carolina Code an attorney’s fee must be actually incurred before the court can award an. attorney’s fee. Additionally, I determine that the amount of the award of the attorney’s fee in the case sub judice is unreasonable under the facts and law. Accordingly, I VOTE to REVERSE the award of fees because no attorney’s fee was incurred in this case. Alternatively, even if an award of an attorney’s fee is appropriate under the statute, I VOTE to REMAND for further consideration as to a reasonable amount.