H 4738 General Bill, By Barrett, Allison, Bailey, Barfield, Battle, Bauer, Boan, 
H. Brown, Cato, Chellis, Cooper, Cotty, Dantzler, Edge, Hamilton, Harrell, 
Hinson, B.L. Jordan, Keegan, Kirsh, Knotts, Koon, Lanford, Law, Leach, 
Limehouse, Littlejohn, Loftis, Martin, Mason, McCraw, McKay, J.D. McMaster, 
Miller, V.T. Mullen, Phillips, Quinn, Rice, Meacham, Riser, Robinson, Rodgers, 
Sandifer, Sharpe, Simrill, R. Smith, Spearman, Stille, E.C. Stoddard, Stuart, 
Townsend, Tripp, Trotter, Walker, Webb, Witherspoon, Woodrum and Young-Brickell
 A BILL TO AMEND SECTION 15-36-10, CODE OF LAWS OF SOUTH CAROLINA, 1976,
 RELATING TO ATTORNEY'S FEES AND COSTS OF FRIVOLOUS SUITS, SO AS TO FURTHER
 PROVIDE FOR LIABILITY FOR ATTORNEY'S FEES AND COSTS OF FRIVOLOUS SUITS; TO
 AMEND SECTION 15-36-20, RELATING TO FINDINGS OF A PROPER PURPOSE FOR ACTION,
 SO AS TO PROVIDE WHEN A PROPER PURPOSE MAY NOT BE FOUND; TO AMEND SECTION
 15-36-40, RELATING TO AN AGGRIEVED PERSON'S BURDEN OF PROOF AFTER A FRIVOLOUS
 SUIT, SO AS TO PROVIDE WHEN THE BURDEN OF PROOF HAS BEEN MET; AND TO AMEND
 SECTION 15-37-20, RELATING TO COSTS ALLOWED TO A SUCCESSFUL PARTY, SO AS TO
 PROVIDE THAT ANY PERSON BRINGING OR DEFENDING A CIVIL ACTION IN THE COURT OF
 COMMON PLEAS MUST PAY THE ATTORNEY'S FEES AND COSTS OF THE PREVAILING PARTY.

   02/26/98  House  Introduced and read first time HJ-66
   02/26/98  House  Referred to Committee on Judiciary HJ-67

A BILL

TO AMEND SECTION 15-36-10, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO ATTORNEY'S FEES AND COSTS OF FRIVOLOUS SUITS, SO AS TO FURTHER PROVIDE FOR LIABILITY FOR ATTORNEY'S FEES AND COSTS OF FRIVOLOUS SUITS; TO AMEND SECTION 15-36-20, RELATING TO FINDINGS OF A PROPER PURPOSE FOR ACTION, SO AS TO PROVIDE WHEN A PROPER PURPOSE MAY NOT BE FOUND; TO AMEND SECTION 15-36-40, RELATING TO AN AGGRIEVED PERSON'S BURDEN OF PROOF AFTER A FRIVOLOUS SUIT, SO AS TO PROVIDE WHEN THE BURDEN OF PROOF HAS BEEN MET; AND TO AMEND SECTION 15-37-20, RELATING TO COSTS ALLOWED TO A SUCCESSFUL PARTY, SO AS TO PROVIDE THAT ANY PERSON BRINGING OR DEFENDING A CIVIL ACTION IN THE COURT OF COMMON PLEAS MUST PAY THE ATTORNEY'S FEES AND COSTS OF THE PREVAILING PARTY.

Be it enacted by the General Assembly of the State of South Carolina:

SECTION 1. Section 15-36-10 of the 1976 Code, as added by Act 432 of 1988, is further amended to read:

"Section 15-36-10. (A) Any person who takes part in the procurement, initiation, continuation, or defense of any civil proceeding is subject to being assessed for payment of all or a portion of the attorney's fees and court costs of the other party if:

(1) he does so primarily for a purpose other than that of securing the proper discovery, joinder of parties, or adjudication of the claim upon which the proceedings are based; and

(2) the proceedings have terminated in favor of the person seeking an assessment of the fees and costs.

As used in this chapter, 'person' is defined to mean any individual, corporation, company, association, firm, partnership, society, joint stock company, and any other entity, including any governmental entity or unincorporated association of persons.

(B) Attorney's fees and costs shall be assessed under this chapter wherever a motion to dismiss for failure to state facts sufficient to constitute a cause of action, a motion for a summary judgment, a motion for a directed verdict, or a motion for an involuntary nonsuit is granted in favor of the person seeking an assessment of the fees and costs."

SECTION 2. Section 15-36-20 of the 1976 Code, as added by Act 432 of 1988, is further amended to read:

"Section 15-36-20. (A) Any person who takes part in the procurement, initiation, continuation, or defense of civil proceedings must be considered to have acted to secure a proper purpose as stated in item (1) of Section 15-36-10 if he reasonably believes in the existence of the facts upon which his claim is based and

(1) reasonably believes that under those facts his claim may be valid under the existing or developing law; or

(2) relies upon the advice of counsel, sought in good faith and given after full disclosure of all facts within his knowledge and information which may be relevant to the cause of action; or

(3) believes, as an attorney of record, in good faith that his procurement, initiation, continuation, or defense of a civil cause is not intended to merely harass or injure the other party.

(B) A proper purpose shall not be found under subsection (A) if a motion to dismiss for failure to state facts sufficient to constitute a cause of action, a motion for summary judgment, a motion for a directed verdict, or a motion for an involuntary nonsuit is granted in favor of the person seeking an assessment of the fees and costs."

SECTION 3. Section 15-36-40 of the 1976 Coded, as added by Act 432 of 1988, is further amended to read:

"Section 15-36-40. (A) In a motion filed pursuant to this chapter the aggrieved person has the burden of proving:

(1) the other party has procured, initiated, continued, or defended the civil proceedings against him;

(2) the proceedings were terminated in his favor;

(3) the primary purpose for which the proceedings were procured, initiated, continued, or defended was not that of securing the proper discovery, joinder of parties, or adjudication of the civil proceedings;

(4) the aggrieved person has incurred attorney's fees and court costs; and

(5) the amount of the fees and costs set forth in item (4).

(B) The granting of a motion to dismiss for failure to state facts sufficient to constitute a cause of action, a motion for summary judgment, a motion for a directed verdict, or a motion for an involuntary nonsuit in favor of the person seeking an assessment of the fees and costs shall satisfy the burden provided for in subsection (A)."

SECTION 4. Section 15-37-20 of the 1976 Code is amended to read:

"Section 15-37-20. (A) No costs shall be allowed to any party unless he succeed, in whole or in part, in his claim or defense, unless otherwise directed by the judge hearing the cause.

(B) Any person bringing or defending a civil action in the court of common pleas must pay the attorney's fees and costs of the prevailing party in an amount to be determined by the court."

SECTION 5. This act takes effect upon approval by the Governor.