Clegg v. Lambrecht

THIS OPINION HAS NO
PRECEDENTIAL VALUE.  IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY
PROCEEDING EXCEPT AS PROVIDED BY RULE 268(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA

In The Court of Appeals

Deborah J.
Clegg, as Personal Representative of the Estate of Allison T. Clegg, Respondent,

v.

Elliott M. Lambrecht, Douglas A. Lambrecht, Rhett Barker, Jan Horan, and Anna C. Lambrecht, Defendants,

Of whom Douglas
A. Lambrecht is the Appellant.

Appeal From Beaufort County

 Roger M. Young, Circuit Court Judge

Unpublished Opinion No. 2012-UP-293

Heard April 9, 2012 – Filed May 16, 2012

AFFIRMED

John E. North, Jr., and Pamela K. Black, both of Beaufort, for
Appellant.

H. Fred Kuhn, Jr., of Beaufort, and G. Richardson Wieters, of
Charleston, for Respondent.

FEW, C.J.: Douglas
Lambrecht appeals the circuit court's decision to deny his motion for sanctions
under Rule 11, SCRCP, and sections 15-36-10(C)(1)(a) and -10(C)(1)(c) of the
South Carolina Code (Supp. 2011).[1] 
Lambrecht alleged Deborah Clegg's pursuit of a negligent entrustment action
against him was frivolous and unwarranted under South Carolina law.  Pursuant
to Rule 220(b)(1), SCACR, we affirm the circuit court's decision to deny the
motions.

A motion for sanctions under Rule 11 or the amended Frivolous
Proceedings Act is an equitable action and therefore, on appeal, this court
finds facts in accordance with its own view of the preponderance of the
evidence.  Se. Site Prep, LLC v. Atl. Coast Builders & Contractors, LLC,
394 S.C. 97, 104, 713 S.E.2d 650, 653 (Ct. App. 2011).  The circuit court made
detailed findings of fact in its order denying Lambrecht's motions.  After a
complete review of the record and taking our own view of the preponderance of
the evidence, we make the same findings of fact.[2]

A party seeking sanctions under the Frivolous Proceedings Act must
prove "a reasonable attorney in the same circumstances would believe
that": (1) "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"; or (2) "the case or defense was frivolous as not reasonably
founded in fact."  S.C. Code Ann. §§ 15-36-10(C)(1)(a), (c) (emphases
added). 

A party seeking sanctions under Rule 11 must prove an attorney
signed a pleading or motion "to cause delay or when no good grounds exist
to support the filing."  Ex parte Bon Secours-St. Francis Xavier Hosp.,
Inc., 393 S.C. 590, 597, 713 S.E.2d 624, 628 (2011); Rule 11, SCRCP
(stating an attorney's signature on a pleading or motion certifies "that he
has read the pleading, motion or other paper; that to the best of his
knowledge, information and belief there is good ground to support it; and that
it is not interposed for delay").

Applying our findings of fact to these standards of proof, we hold
Lambrecht is not entitled to sanctions.[3] 
Accordingly, the decision of the circuit court is

AFFIRMED.

HUFF and SHORT, JJ., concur. 

[1] We apply the amended version of the Frivolous
Proceedings Act rather than the 2002 version in effect at the time the cause of
action arose because in a prior unpublished opinion remanding this case, this
court court found "neither party asserted the prior version applied; thus the
trial court applied the 2005 version," and "it has become the law of
the case."  Clegg v. Lambrecht, Op. No. 4498 (S.C. Ct. App. filed
Feb. 5, 2009) (Shearouse Adv. Sh. No. 8 at 68 n.1), withdrawn, substituted,
and refiled Op. No. 2009-UP-376 (Ct. App. filed June 30, 2009); see also 2005 Act No. 27, §§ 5, 16 (stating the amended version of § 15-36-10 "take[s]
effect July 1, 2005, and shall only apply to causes of action arising on or
after that date").

[2] The only factual finding made by the circuit court
which we do not make is that the record contains "evidence to support the
reasonableness (and the good faith) of the allegation that at[] the time of [the]
fatal wreck Elliott was acting pursuant to instructions from [Douglas] to
retrieve the Mazda."  However, our disagreement with the circuit court on
this point does not change our overall conclusion that Clegg's claim for
negligent entrustment does not violate the requirements of the Frivolous
Proceedings Act and Rule 11.

[3] For one example that refutes Lambrecht's argument
that a reasonable attorney in the same circumstances would believe that under the facts, his claim was clearly
not warranted, see Nationwide Mutual
Insurance Co. v. Smith, 376 S.C. 60, 67, 654 S.E.2d 837, 840 (Ct. App.
2007) ("An automobile insurance policy, like other forms of insurance,
must be supported by an insurable interest in the named insured.  The insurable
interest required does not depend upon the named insured having either a legal
or equitable interest in the property, but it is enough that the insured may
be held liable for damages to its operation and use." (internal
citations and quotation marks omitted) (emphasis added)).