S 1076 Session 111 (1995-1996)
S 1076 General Bill, By Martin, Alexander, Cork, Courson, Drummond, Ford,
Gregory, Lander, Leatherman, Leventis, McGill, Mescher, O'Dell, Peeler, Reese,
Russell and Ryberg
A Bill to amend Section 15-36-10 of the Code of Laws of South Carolina, 1976,
relating to liability for attorney's fees and costs of frivolous suits, so as
to provide that a person is liable under this Section whenever 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 a person seeking an
assessment of the fees and costs; to amend Section 15-36-20, relating to
factors supporting a finding that an action was pursued for a proper purpose,
to provide a purpose shall not be found 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; and to amend Section 15-36-40, relating to the burden of proving
that an action is frivolous, to provide that 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 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 this section.
01/30/96 Senate Introduced and read first time SJ-10
01/30/96 Senate Referred to Committee on Judiciary SJ-10
A BILL
TO AMEND SECTION 15-36-10 OF THE CODE OF LAWS OF
SOUTH CAROLINA, 1976, RELATING TO LIABILITY FOR
ATTORNEY'S FEES AND COSTS OF FRIVOLOUS SUITS, SO
AS TO PROVIDE THAT A PERSON IS LIABLE UNDER THIS
SECTION WHENEVER 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 A PERSON SEEKING AN ASSESSMENT OF THE
FEES AND COSTS; TO AMEND SECTION 15-36-20,
RELATING TO FACTORS SUPPORTING A FINDING THAT
AN ACTION WAS PURSUED FOR A PROPER PURPOSE, TO
PROVIDE A PURPOSE SHALL NOT BE FOUND 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; AND TO AMEND
SECTION 15-36-40, RELATING TO THE BURDEN OF
PROVING THAT AN ACTION IS FRIVOLOUS, TO PROVIDE
THAT 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 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 THIS SECTION.
Be it enacted by the General Assembly of the State of South
Carolina:
SECTION 1. Sections 15-36-10 and 15-36-20 of the 1976 Code
are 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; or
(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 whenever 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 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 2. Section 15-36-40 of the 1976 Code is 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 3. This act takes effect upon approval by the
Governor.
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