THE STATE OF SOUTH CAROLINA
In The Supreme Court

W.J. Joey Douan, Respondent,

v.

Charleston County Council and Charleston County Election Commission, Defendants,

Of whom Charleston County Council is the, Petitioner.

ON WRIT OF CERTIORARI TO THE COURT OF APPEALS

Appeal From Charleston County
Thomas L. Hughston, Jr., Circuit Court Judge

Opinion No. 26326
Submitted May 1, 2007 - Filed May 7, 2007

REVERSED

Joseph Dawson, III, Bernard E. Ferrara, Jr., and Cantrell M. Frayer, of the Charleston County Attorneys Office, of North Charleston, for Petitioner.

Thomas R. Goldstein, of Belk, Cobb, Infinger & Goldstein, of Charleston, for Respondent.

PER CURIAM: Petitioner filed a petition for a writ of certiorari asking this Court to review the Court of Appeals opinion in Douan v. Charleston County Council, 369 S.C. 271, 631 S.E.2d 544 (Ct. App. 2006). We grant the petition, dispense with further briefing, and reverse the Court of Appeals.

FACTUAL/PROCEDURAL BACKGROUND

Respondent (Douan) brought this action against petitioner Charleston County Council (Council) alleging a proposed ordinance and subsequent referendum violated statutory election law. Following this Courts decision in the related case of Douan v. Charleston County Council, 357 S.C. 601, 594 S.E.2d 261 (2003), the circuit court judge dismissed the pending action as moot and denied Douans request for attorneys fees. On appeal, the Court of Appeals reversed and remanded, holding Douans claim for attorneys fees was not moot.

ISSUE

Did the Court of Appeals err in holding Douans request for attorneys fees was not moot?

DISCUSSION

Council contends the Court of Appeals erred in reversing the circuit court judges denial of attorneys fees.

S.C. Code Ann. 15-77-300 (1985) provides:

In any civil action brought by the State, any political subdivision of the State or any party who is contesting state action, unless the prevailing party is the State or any political subdivision of the State, the court may allow the prevailing party to recover reasonable attorneys fees to be taxed as court costs against the appropriate agency if:

(1) The court finds that the agency acted without substantial justification in pressing its claim against the party; and

(2) The court finds that there are no special circumstances that would make the award of attorneys fees unjust.

. . .

A prevailing party is a party who successfully prosecutes the action by prevailing on the main issue and in whose favor the decision or verdict is rendered and judgment entered. Heath v. County of Aiken, 302 S.C. 178, 394 S.E.2d 709 (1990) (citing Buza v. Columbia Lumber Co., 395 P.2d 511 (Alaska 1964)). The key factor in determining whether a party is a prevailing party is the degree of success obtained by the party seeking attorneys fees. Id.

The circuit court judge found the pending action was moot because this Court voided the election results of the 2002 Charleston County Sales and Use Tax Referendum in Douan v. Charleston County Council, supra. Additionally, the circuit court judge ruled that 15-77-300 does not create a separate cause of action for attorneys fees, but requires a party to be the prevailing party in an action. Accordingly, the circuit court judge denied the request for attorneys fees, finding Douan was not the prevailing party in the circuit court action because the action was moot. The Court of Appeals reversed, holding the circuit court judge erred in finding Douans claim for attorneys fees was moot.

We find the Court of Appeals erred in holding the circuit court judge dismissed Douans request for attorneys fees as moot. The circuit court judge did not dismiss Douans request as moot, but rather denied Douans request, finding he was not the prevailing party in the action.

Furthermore, in City of Charleston v. Masi, 362 S.C. 505, 609 S.E.2d 301 (2005), this Court held issues concerning public service district elections were moot due to the Courts intervening decision in Kizer v. Clark, 360 S.C. 86, 600 S.E.2d 529 (2004), and, because the issue was moot, declined to award attorneys fees under 15-77-300.

Accordingly, the circuit court judge properly found Douan was not the prevailing party in the action below due to this Courts superseding opinion in Douan v. Charleston County Council, supra, which rendered Douans current claim moot, and denied his request for attorneys fees. We therefore reverse the Court of Appeals opinion remanding the matter to the circuit court.

REVERSED.

TOAL, C.J., MOORE, BURNETT and PLEICONES, JJ., concur. WALLER, J., not participating.