SC Lawyer, November 2007, #5. Rules To Show Cause.

• Author: by Stephanie G. Borsanyi

South Carolina Lawyer

2007.

SC Lawyer, November 2007, #5.

Rules To Show Cause

South Carolina LawyerNovember 2007Rules To Show Causeby Stephanie G. BorsanyiRules to Show Cause (RTSC) are a common source of confusion. Indeed, the lack of uniformity with which the RTSC are employed around the state makes it appear that some lawyers may be a bit confused as to their use and application. This article provides insight into some of the most common issues.

What is a RTSC?

As any attorney knows, getting a favorable decision is only part of the legal battle. The enforcement of the decree, judgment, or order can present its own obstacles. A RTSC is now generally and most frequently used to enforce a prior court order. The RTSC is a process that can be used in place of a summons to establish jurisdiction over a party and to hale a party into court. See S.C. Dep't of Revenue v. Elliott, 350 S.C. 404, 407-08, 566 S.E.2d 196, 198 (Ct. App. 2002) (holding that a RTSC must have elements of a summons); see, e.g., In re Beckham, 365 S.C. 637, 645-46, 620 S.E.2d 69, 73 (2005) (showing that an attorney can use a RTSC to hale a party into court). For simplicity's sake, this article will be restricted to the use of the RTSC to initiate a contempt proceeding to enforce a prior court order.

RTSC Basics

A RTSC is an order directing a party to appear in court and explain why the party took (or filed to take) some action or why the court should or should not grant some relief. Black's Law Dictionary, 1124 (7th ed. 1999). A RTSC would generally be used when the court has ordered A to do X for the benefit of B. When A has not done X and B wants A to obey the order, B informs the court of A's failure and petitions the court to force A to do X. The court will enforce the order against A unless A can adequately explain why the court should not enforce the order. If A cannot sufficiently or convincingly explain why the order should not be enforced, or continues to willfully fail to do X, the court may find A in contempt of court and punish A with fines or imprisonment.

RTSC and Contempt of Court

A RTSC is an effective enforcement tool because it comes with the threat of being found in contempt of court and punitive action. It deals with constructive contempt, or conduct occurring outside the presence of the court. State v. Kennerly, 337 S.C. 617, 620, 524 S.E.2d 837, 838 (1999).

The power to punish for contempt is inherent in all courts. Its existence is essential to the preservation of order in judicial proceedings, and to the enforcement of the judgments, orders and writs of the courts, and consequently to the due administration of justice.

Cheap-O's Truck Stop, Inc. v. Cloyd, 350 S.C. 596, 606, 567 S.E.2d 514, 519 (Ct. App. 2002) (quoting Curlee v. Howle, 277 S.C. 377, 382, 287 S.E.2d 915, 917 (1982)). The Cloyd Court called the Curlee case "a paradigm of an academic and scholarly review of the law of contempt." Cloyd, at 606, 567 S.E.2d at 519.

Because the RTSC is the court's command, the court may find a party in contempt for willfully violating an earlier court order or for violating the RTSC itself. A finding of contempt always rests within the sound discretion of the trial judge. Henderson v. Henderson, 298 S.C. 190, 197, 379 S.E.2d 125, 129 (1989).

The Rule to Show Cause - What to do

When a party fails to comply with a court order, the enforcing party brings the violation to the court's attention by filing a RTSC. The RTSC is an actual order that must be executed by the court and then served upon the contemnor. Although the party or the party's counsel submits the rule to the court for execution, it is the court, not the complaining party, demanding compliance with its prior order.

The RTSC, used in place of a summons, hales a defendant into court and compels the appearance of the noncompliant party. See S.C. Dep't of Revenue v. Elliott, 350 S.C. 404, 407-08, 566 S.E.2d 196, 198 (Ct. App. 2002) (holding that a RTSC must have...