S 0193 General Bill, By Martin, Elliott, Giese 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 AS 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.

   01/16/97  Senate Introduced and read first time SJ-6
   01/16/97  Senate Referred to Committee on Judiciary SJ-6

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.