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Civil Practice – Offer of Judgment – ‘All Claims Alleged’ – Labor & Employment – Wage Payment Act – Treble Damages & Attorney’s Fees 

By: S.C. Lawyers Weekly staff//September 6, 2022

Civil Practice – Offer of Judgment – ‘All Claims Alleged’ – Labor & Employment – Wage Payment Act – Treble Damages & Attorney’s Fees 

By: S.C. Lawyers Weekly staff//September 6, 2022

Pursuant to Rule 68, SCRCP, defendants offered judgment “for all claims alleged.” Plaintiff could not accept the offer and still hang on to his claims for treble damages and attorney’s fees. However, he is entitled to costs under Rule 68. 

We modify the circuit court’s order and affirm. 

Plaintiff sued defendants for unjust enrichment and violation of the Wage Payment Act, S.C. Code Ann. §§ 41-10-10 to -110 (the Act). Defendants filed a Rule 68 offer of judgment, offering for plaintiff to “take judgment for all claims alleged” in the “total amount” of $5,968.89. 

Plaintiff accepted the offer of judgment but then sought an award of treble damages and attorney’s fees. The circuit court denied the motion. 

Defendants offer did more than merely give plaintiff judgment for a sum stated; in the language of Rule 68, “the effect specified in the offer” was for plaintiff “to take judgment against [defendants] for all claims alleged in the above-captioned action in the total amount of $5,968.89.” We do not believe the language of the offer of judgment permitted plaintiff to rationally think he could accept the offer and still hang on to his claim for treble damages and attorney’s fees. To any reasonable reader, the phrase “all claims alleged” encompasses all claims for all available remedies under the Wage Payment Act, including plaintiff’s claims for attorney’s fees and treble damages. 

Our Supreme Court has likened Rule 68 offers of judgment to settlements and has held they may not be construed as a resolution of the merits. Belton v. State, 339 S.C. 71, 529 S.E.2d 4 (2000). As such, there is no basis enabling a court to declare defendants violated the Act, a necessary predicate for a discretionary award of attorney’s fees per § 41–10–80(c). 

Belton also answers the question of whether plaintiff can use the costs mechanism of Rule 54, SCRCP, to achieve what we hold Rule 68 does not permit: recovery of attorney’s fees after acceptance of an offer of judgment that states it is for “all claims alleged” yet does not mention attorney’s fees. It is true that statutory attorney’s fees can be “taxable costs.” But Belton tells us a judgment obtained by Rule 68 is not a merits resolution, which we hold is a necessary precursor to recovery of attorney’s fees under § 41–10–80(c) of the Act and, consequently, a precursor to recover them as Rule 54(e)(1) taxable costs in this case. 

We must discuss something further about Wells’ attorney’s fees request. Wells relies on Hueble v. Dept. of Nat. Res., 416 S.C. 220, 785 S.E.2d 441 (2016), for the principle that a party accepting an offer of judgment becomes a “prevailing party” entitled to attorney’s fees under any statute that permits them. This stretches Hueble too far; the decision there seems driven by the fact that the attorney’s fees derived from the unique fee-shifting mechanism of 42 U.S.C. § 1988, which generally requires a court to award attorney’s fees to the prevailing party unless special circumstances exist. 

Even if plaintiff’s avenue to seek treble damages and attorney’s fees was not closed by his acceptance of the offer of judgment, the trial court correctly declined to award them. A court may only award treble damages, attorney’s fees, and costs under the Act if it finds there was no bona fide dispute the wages were owed and the employer withheld them unreasonably and in bad faith. 

According to plaintiff, there is no bona fide dispute because the offer of judgment matched the precise amount he claimed was owed. The trial court was not persuaded by this argument, and neither are we. The fact that the offer of judgment mirrored plaintiff’s demand does not, without more, reflect that defendants withheld plaintiff’s wages in bad faith or without good reason, and it proves nothing related to recovery of fees under the Act. 

We do, though, agree with plaintiff that Rule 54 entitled him to recover his $198.73 in costs. We therefore modify the order of the trial court to tax these costs against defendants. 

Modified and affirmed. 

Wells v. Vetech, LLC (Lawyers Weekly No. 011-055-22, 4 pp.) (Garrison Hill, J.) Appealed from Greenville County Circuit Court (Perry Gravely, J.) John Reckenbeil for appellant; Hannah Rogers Metcalfe for respondents. S.C. App. 

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