Vol. 6, No. 3, Pg. 36. Righting a Wrong The South Carolina Frivilous Proceedings Sanctions Art.

• Author: By Susan Taylor Wall

South Carolina Lawyer

1994.

Vol. 6, No. 3, Pg. 36.

Righting a Wrong The South Carolina Frivilous Proceedings Sanctions Art

36Righting a Wrong The South Carolina Frivilous Proceedings Sanctions ArtBy Susan Taylor WallEmotional stress and financial loss await a defendant in a civil lawsuit, even when the case has no merit. This is particularly true with a complaint alleging negligence or intentional wrongdoing against an individual in his or her professional capacity. The complaint calls into question the professional's expertise and perhaps ethics; the professional's self-confidence will be shaken, and colleagues will speculate on whether there is a factual basis for even the most outrageous allegations. The mere existence of the lawsuit will diminish a professional's ability to earn a living, requiring time away from work to defend against the claims and may negatively affect his or her present and prospective client base. Defense costs and fees can be ruinous. Even where insurance is present, a sizeable deductible can present a severe strain.

What legal recourse does a defendant have to help balance the economic and emotional injustice of defending against a meritless lawsuit? The traditional avenue of filing an action for malicious prosecution or for abuse of process is of limited practical value. Such claims are difficult to prove and are time consuming. Indeed, an action for malicious prosecution requires a separate lawsuit after the prior proceeding terminates in the aggrieved party's favor. In contrast, the South Carolina Frivilous Civil Proceedings Sanctions Act presents an opportunity for swift relief.

The South Carolina Frivolous Proceedings Act (the South Carolina Act), passed by the legislature in 1988, created a statutory claim that combines elements found in abuse of process and malicious prosecution actions with concepts found under Rule 11 of the Federal Rules of Civil Procedure and the South Carolina Rules of Civil Procedure. The South Carolina Act, found at §15-36-10 through 15-36-50, provides in pertinent part:

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; and

2) the proceedings have terminated in favor of the person

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seeking an assessment of the fees and costs.

The South Carolina Act places the burden on the aggrieved...