H*3329(Rat #0151, Act #0083 of 1999)  General Bill, By Harrison
 A BILL TO AMEND SECTION 29-5-10 AND SECTION 29-5-20, AS AMENDED, CODE OF LAWS
 OF SOUTH CAROLINA, 1976, RELATING TO THE SETTLEMENT OF ACTIONS TO ENFORCE
 MECHANICS' LIENS AND THE AWARD OF ATTORNEY'S FEES TO THE PREVAILING PARTY, SO
 AS TO FURTHER DEFINE THE TERM "PREVAILING PARTY", TO PROVIDE THAT THE VALUE OF
 A DEFENDANT'S COUNTERCLAIM IS CONSIDERED A NEGATIVE OFFER OF SETTLEMENT IF THE
 DEFENDANT DOES NOT MAKE A WRITTEN OFFER OF SETTLEMENT, AND TO PROVIDE TIME
 FRAMES FOR MAKING OFFERS OF SETTLEMENT OR AMENDED OFFERS IF THE ACTION IS
 CARRIED OVER TO A SUBSEQUENT TERM OF COURT.-AMENDED TITLE

   01/21/99  House  Introduced and read first time HJ-4
   01/21/99  House  Referred to Committee on Judiciary HJ-4
   02/24/99  House  Committee report: Favorable Judiciary HJ-11
   03/02/99  House  Debate adjourned until Wednesday, March 3, 1999 HJ-29
   03/03/99  House  Read second time HJ-17
   03/04/99  House  Read third time and sent to Senate HJ-13
   03/04/99  Senate Introduced and read first time SJ-10
   03/04/99  Senate Referred to Committee on Banking and Insurance SJ-10
   05/12/99  Senate Recalled from Committee on Banking and Insurance SJ-6
   05/13/99  Senate Read second time SJ-34
   05/13/99  Senate Ordered to third reading with notice of
                     amendments SJ-34
   05/25/99  Senate Amended SJ-21
   05/25/99  Senate Read third time and returned to House with
                     amendments SJ-21
   05/27/99  House  Concurred in Senate amendment and enrolled HJ-130
   06/09/99         Ratified R 151
   06/11/99         Signed By Governor
   06/11/99         Effective date 06/11/99
   07/01/99         Copies available
   07/06/99         Act No. 83

AN ACT TO AMEND SECTION 29-5-10 AND SECTION 29-5-20, AS AMENDED, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO THE SETTLEMENT OF ACTIONS TO ENFORCE MECHANIC'S LIENS AND THE AWARD OF ATTORNEY'S FEES TO THE PREVAILING PARTY, SO AS TO FURTHER DEFINE THE TERM "PREVAILING PARTY", TO PROVIDE THAT THE VALUE OF A DEFENDANT'S COUNTERCLAIM IS CONSIDERED A NEGATIVE OFFER OF SETTLEMENT IF THE DEFENDANT DOES NOT MAKE A WRITTEN OFFER OF SETTLEMENT, AND TO PROVIDE TIME FRAMES FOR MAKING OFFERS OF SETTLEMENT OR AMENDED OFFERS IF THE ACTION IS CARRIED OVER TO A SUBSEQUENT TERM OF COURT.

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

Settlement of action to enforce mechanic's lien; time frame for subsequent term of court; attorney's fees; prevailing party; value of counterclaim

SECTION 1. Section 29-5-10(b) of the 1976 Code is amended to read:

"(b) Not less than fifteen days before the first term of court at which the trial is set, either party may file and serve on the other party an offer of settlement, and within ten days thereafter the party served may respond by filing and serving his offer of settlement. The offer shall state that it is made under this section and specify the amount, exclusive of interest and costs, which the party serving the offer is willing to agree constitutes a settlement of the lien. If the action is not reached for trial, then not less than fifteen days before the next term of court and subsequent terms of court at which the trial is set, either party may file and serve on the other party an offer of settlement or an amendment of a prior offer of settlement and, within ten days after that, the party served may respond by filing and serving his offer or amended offer of settlement. The offer or amended offer supersedes any offer previously made under this section by the same party.

An offer of settlement is considered rejected unless an acceptance in writing is filed and served on the party making the offer, five days before the commencement of the term.

If the offer is rejected, it may not be referred to for any purpose at the trial, but may be considered solely for the purpose of awarding costs and litigation expenses under this section.

For purposes of the award of attorney's fees, the determination of the prevailing party is based on one verdict in the action. One verdict assumes some entitlement to the mechanic's lien and the consideration of compulsory counterclaims. The party whose offer is closer to the verdict reached is considered the prevailing party in the action. If the difference between both offers and the verdict is equal, neither party is considered to be the prevailing party for purposes of determining the award of costs and attorney's fees.

If the plaintiff makes no written offer of settlement, the amount prayed for in his complaint is considered to be his final offer of settlement.

If the defendant makes no written offer of settlement, the value of his counterclaim is considered to be his negative offer of settlement. If the defendant has not asserted a counterclaim, his offer of settlement is considered to be zero."

Settlement of action to enforce mechanic's lien; time frame for subsequent term of court; attorney's fees; prevailing party; value of counterclaim

SECTION 2. Section 29-5-20(C) of the 1976 Code, as amended by Act 368 of 1992, is further amended to read:

"(C) Not less than fifteen days before the first term of court at which the trial is set, either party may file and serve on the other party an offer of settlement, and within ten days thereafter the party served may respond by filing and serving his offer of settlement. The offer shall state that it is made under this section and specify the amount, exclusive of interest and costs, which the party serving the offer is willing to agree constitutes a settlement of the lien. If the action is not reached for trial, then not less than fifteen days before the next term of court and subsequent terms of court at which the trial is set, either party may file and serve on the other party an offer of settlement or an amendment of a prior offer of settlement and, within ten days after that, the party served may respond by filing and serving his offer or amended offer of settlement. The offer supersedes any offer previously made under this section by the same party.

An offer of settlement is considered rejected unless an acceptance in writing is filed and served on the party making the offer five days before the commencement of the term.

If the offer or amended offer is rejected, it may not be referred to for any purpose at the trial but may be considered solely for the purpose of awarding costs and litigation expenses under this section.

For purposes of the award of attorney's fees, the determination of the prevailing party is based on one verdict in the action. One verdict assumes some entitlement to the mechanic's lien and the consideration of compulsory counterclaims. The party whose offer of settlement is closer to the verdict reached is considered the prevailing party in the action. If the difference between both offers and the verdict is equal, neither party is considered to be the prevailing party for purposes of determining the award of costs and attorney's fees. If the plaintiff makes no written offer of settlement, the amount prayed for in his complaint is considered to be his final offer of settlement.

If the defendant makes no written offer of settlement, the value of his counterclaim is considered to be his negative offer of settlement. If the defendant has not asserted a counterclaim, his offer of settlement is considered to be zero."

Time effective

SECTION 3. This act takes effect upon approval by the Governor.

Ratified the 9th day of June, 1999.

Approved the 11th day of June, 1999.