S 0762  General Bill, By Kimbrell, Rice, Adams, Turner, Climer and Loftis
 A BILL TO AMEND SECTION 15-36-10 OF THE 1976 CODE, RELATING TO FRIVOLOUS
 LAWSUITS, TO PROVIDE THAT SANCTIONS MUST BE IMPOSED UNDER CERTAIN CONDITIONS,
 TO PROVIDE THAT A COURT OR PARTY PROPOSING A SANCTION MUST EXPEDITIOUSLY
 NOTIFY THE COURT AND ALL PARTIES OF THE CONDUCT CONSTITUTING A VIOLATION, TO
 PROVIDE THAT THE ATTORNEY, PARTY, OR PRO SE LITIGANT WHO ALLEGEDLY COMMITTED
 THE VIOLATION HAS FIFTEEN DAYS TO RESPOND TO THE ALLEGATIONS, AND TO INCLUDE
 THE COSTS OF DEPOSITIONS AND REASONABLE FEES FOR TESTIFYING EXPERT WITNESSES
 AS REASONABLE COSTS,

   04/22/21  Senate Introduced and read first time (Senate Journal-page 6)
   04/22/21  Senate Referred to Committee on Judiciary
                     (Senate Journal-page 6)

TO AMEND SECTION 15-36-10 OF THE 1976 CODE, RELATING TO FRIVOLOUS LAWSUITS, TO PROVIDE THAT SANCTIONS MUST BE IMPOSED UNDER CERTAIN CONDITIONS, TO PROVIDE THAT A COURT OR PARTY PROPOSING A SANCTION MUST EXPEDITIOUSLY NOTIFY THE COURT AND ALL PARTIES OF THE CONDUCT CONSTITUTING A VIOLATION, TO PROVIDE THAT THE ATTORNEY, PARTY, OR PRO SE LITIGANT WHO ALLEGEDLY COMMITTED THE VIOLATION HAS FIFTEEN DAYS TO RESPOND TO THE ALLEGATIONS, AND TO INCLUDE THE COSTS OF DEPOSITIONS AND REASONABLE FEES FOR TESTIFYING EXPERT WITNESSES AS REASONABLE COSTS,

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

SECTION    1.    Section 15-36-10 of the 1976 Code is amended to read:

    "Section 15-36-10.    (A)(1)    A pleading filed in a civil or administrative action on behalf of a party who is represented by an attorney must be signed by at least one attorney of record who is an active member of the South Carolina Bar or who is admitted to practice in the courts of this State and must include the address and telephone number of the attorney signing the document.

        (2)    A document filed in a civil or administrative action by a party who is not represented by an attorney must be signed by the party and must include the address and telephone number of the party.

        (3)    The signature of an attorney or a pro se litigant constitutes a certificate to the court that:

            (a)    the person has read the document;

            (b)    a reasonable attorney in the same circumstances would believe that under the facts his claim or defense may be warranted under the existing law or, if his claim or defense is not warranted under the existing law, a good faith argument exists for the extension, modification, or reversal of existing law;

            (c)    a reasonable attorney in the same circumstances would believe that his procurement, initiation, continuation, or defense of a civil cause is not intended merely to harass or injure the other party; and

            (d)    a reasonable attorney in the same circumstances would believe his claim or defense is not frivolous, interposed for delay, or brought for any purpose other than securing proper discovery, joinder of parties, or adjudication of the claim or defense upon which the proceedings are based.

        (4)    An attorney or pro se litigant participating in a civil or administrative action or defense may must be sanctioned for:

            (a)    filing a frivolous pleading, motion, or document if:

                (i)    the person has not read the frivolous pleading, motion, or document;

                (ii)    a reasonable attorney in the same circumstances would believe that under the facts, his claim or defense was clearly not warranted under existing law and that a good faith or reasonable argument did not exist for the extension, modification, or reversal of existing law;

                (iii)    a reasonable attorney presented with the same circumstances would believe that the procurement, initiation, continuation, or defense of a civil cause was intended merely to harass or injure the other party; or

                (iv)    a reasonable attorney presented with the same circumstances would believe the pleading, motion, or document is frivolous, interposed for merely delay, or merely brought for any purpose other than securing proper discovery, joinder of parties, or adjudication of the claim or defense upon which the proceedings are based;

            (b)    making frivolous arguments a reasonable attorney would believe were not reasonably supported by the facts; or

            (c)    making frivolous arguments that a reasonable attorney would believe were not warranted under the existing law or if there is no good faith argument that exists for the extension, modification, or reversal of existing law.

    (B)(1)    If a document is not signed or does not otherwise comply with this section, it must be stricken unless it is signed promptly or amended to comply with this section after the omission is called to the attention of the attorney or the party.

        (2)    If a document is signed in violation of this section, or an attorney or pro se litigant has violated subsection (A)(4), the court, upon its own motion or motion of a party, may must impose upon the person in violation any sanction which the court considers just, equitable, and proper under the circumstances.

    (C)(1)    Within thirty days of At the conclusion of a trial and after a verdict for or a verdict against damages has been rendered or a case has been dismissed by a directed verdict, summary judgment, or judgment notwithstanding the verdict, upon motion of the prevailing party, the court shall proceed to determine if the claim or defense was frivolous. An attorney, party, or pro se litigant shall be sanctioned for a frivolous claim or defense if the court finds the attorney, party, or pro se litigant failed to comply with one of the following conditions:

            (a)    a reasonable attorney in the same circumstances would believe that under the facts, his claim or defense was clearly not warranted under existing law and that a good faith or reasonable argument did not exist for the extension, modification, or reversal of existing law;

            (b)    a reasonable attorney in the same circumstances would believe that his procurement, initiation, continuation, or defense of the civil suit was intended merely to harass or injure the other party; or

            (c)    a reasonable attorney in the same circumstances would believe that the case or defense was frivolous as not reasonably founded in fact or was interposed merely for delay, or was merely brought for a purpose other than securing proper discovery, joinder of proposed parties, or adjudication of the claim or defense upon which the proceedings are based.

        (2)    Unless the court finds by a preponderance of the evidence that an attorney, party, or pro se litigant engaged in advancing a frivolous claim or defense, the attorney, party, or pro se litigant shall not be sanctioned.

    (D)    A person is entitled to notice and an opportunity to respond before the imposition of sanctions pursuant to the provisions of this section. A court or party proposing a sanction pursuant to this section shall expeditiously notify the court and all parties of the conduct constituting a violation of the provisions of this section and explain the basis for the potential sanction imposed. Upon notification, the attorney, party, or pro se litigant who allegedly violated subsection (A)(4) has thirty fifteen days to respond to the allegations as that person considers appropriate including, but not limited to, by filing a motion to withdraw the pleading, motion, document, or argument or by offering an explanation of mitigation.

    (E)    In determining if an attorney, party, or a pro se litigant has violated the provisions of this section, the court shall take into account:

        (1)    the number of parties;

        (2)    the complexity of the claims and defenses;

        (3)    the length of time available to the attorney, party, or pro se litigant to investigate and conduct discovery for alleged violations of the provisions of subsection (A)(4);

        (4)    information disclosed or undisclosed to the attorney, party, or pro se litigant through discovery and adequate investigation;

        (5)    previous violations of the provisions of this section;

        (6)    the response, if any, of the attorney, party, or pro se litigant to the allegation that he violated the provisions of this section; and

        (7)    other factors the court considers just, equitable, or appropriate under the circumstances.

    (F)    In determining whether sanctions are appropriate or the severity of a sanction, the court shall consider previous violations of the provisions of this section.

    (G)    Sanctions may include:

        (1)    an order for the party represented by an attorney or pro se litigant to pay the reasonable costs and attorney's fees of the prevailing party under a motion pursuant to this section. Costs shall include, but not be limited to, the following: the time required of the prevailing party by the frivolous proceeding, and travel expenses, mileage, parking, costs of reports, costs of depositions, reasonable fees for testifying expert witnesses, and any additional reasonable consequential expenses of the prevailing party resulting from the frivolous proceeding;

        (2)    an order for the attorney to pay a reasonable fine to the court; or

        (3)    a directive of a nonmonetary nature, including injunctive relief, designed to deter a future frivolous action or an action in bad faith.

    (H)    If the court imposes a sanction on an attorney in violation of the provisions of this section, the court shall report its findings to the South Carolina Commission of Lawyer Conduct.

    (I)    This act shall not alter the South Carolina Rules of Civil Procedure or the South Carolina Appellate Court Rules.

    (J)    The provisions of this section shall not apply where an attorney or pro se litigant establishes a basis to proceed with litigation, or to assert or controvert an issue therein, that is not frivolous, which includes a good faith argument for an extension, modification, or reversal of the existing law.

    (K)    The provisions of this section apply in addition to all other remedies available at law or in equity.

    (L)    The amount requested for damages in a pleading may not be considered in a determination of a violation of the provisions of this section.

    (M)    All violations of the provisions of this section must be reported to the South Carolina Supreme Court and a public record must be maintained and reported annually to the Governor, Senate, and House of Representatives."

SECTION    2.    This act takes effect upon approval by the Governor and applies to a civil action commenced on or after the effective date of this act. A civil action commenced before the effective date is governed by the law in effect immediately before the effective date of the change in law, and that law is continued in effect for that purpose.