Trusts & Estates – Attorneys – Sanctions – Widow – Death Certificate & Obituary

Although § 15-36-10(C)(1) of the South Carolina Frivolous Civil Proceedings Sanctions Act delineates at what procedural stage a court will determine if a claim or defense is considered frivolous upon a motion of the prevailing party, this subsection does not prescribe a court’s sole method for imposing sanctions for filing or advancing frivolous claims. Subsection (B)(2) provides a court may “upon its own motion or motion of a party” impose sanctions upon an attorney or pro se litigant for violations of subsection (A)(4).

We affirm in part and reverse in part the circuit court’s sanctions order.

Facts

The plaintiff-widow and defendant’s decedent entered into a prenuptial agreement and were married in 2001. In 2015, they entered into a mediated settlement agreement, which waived each party’s rights in the estate of the other. Nevertheless, the widow filed a pro se claim against the decedent’s estate, seeking to enforce a claim against the estate pursuant to the prenuptial agreement.

The widow subsequently hired the appellant-attorney. The defendant-personal representative sought sanctions against the widow and her attorney. The circuit court entered a sanctions order, which the parties and the attorney appeal.

Analysis

The decedent’s death certificate did not name the widow as the decedent’s surviving spouse. In a petition seeking an adjudication of the widow as the decedent’s surviving spouse and an amendment to the decedent’s death certificate, the attorney asserted that the personal representative willfully and knowingly supplied false information to the Department of Health and Environmental Control in violation of S.C. Code Ann. § 44-63-161(A)(2), which was a felony under § 44-63-161(B). Although the attorney made assertions in the filing that were unnecessary to obtain the relief sought, the circuit court properly found the overall purpose of the claim was not frivolous, so sanctions were not warranted pursuant to Rule 11, SCRCP, and the South Carolina Frivolous Civil Proceedings Sanctions Act (FCPSA) for “continuing” the claim.

Given that the widow informed the attorney that she intended to challenge the family court separation decree (which incorporated the mediated settlement agreement), and given the time constraints she faced, the attorney acted reasonably when she relied on the information provided to her by the widow and filed a petition for allowance of a claim based on the prenuptial agreement. The merit of the prenuptial claim was contingent upon the success of the widow’s motion pursuant to Rule 60(b), SCRCP, in the family court, which the attorney could not have known during the timeframe she had for filing a petition for allowance. The circuit court properly found the attorney’s filing of the petition for allowance was not frivolous.

When the circuit court entered a $40,000 sanction against the widow, it reduced the sanction by “any sums which she may have already paid pursuant to the Family Court award of $25,000 in attorney’s fees as provided in the Contempt Order.” The circuit court explained that this was intended to prevent punishing the widow twice for the same conduct. The sanction fashioned by the circuit court was within the scope of its authority.

The widow was displeased with the obituary published by the estate because it failed to name her as the decedent’s surviving spouse. The widow published two obituaries and filed a pro se creditor’s claim against the estate for reimbursement for the cost of publishing the obituaries. After the personal representative notified the widow that the claim was disallowed, the attorney filed a petition for allowance of the claim.

Although § 15-36-10(C)(1) of the FCPSA delineates at what procedural stage a court will determine if a claim or defense is considered frivolous upon a motion of the prevailing party, this subsection does not prescribe a court’s sole method for imposing sanctions for filing or advancing frivolous claims. Subsection (B)(2) provides a court may “upon its own motion or motion of a party” impose sanctions upon an attorney or pro se litigant for violations of subsection (A)(4). Furthermore, the circuit court additionally found sanctions were warranted pursuant to Rule 11, which contains no such procedural prerequisite.

Nevertheless, the record is devoid of evidence that the attorney filed the petition for any other reason than to preserve the widow’s claim for judicial review. Moreover, after further involvement in the case, the attorney filed a stipulation of dismissal, voluntarily dismissing the obituary claim. Accordingly, we find the attorney’s intent in filing the petition was not malicious or for any improper purpose. Thus, we reverse the circuit court’s sanction of the attorney regarding the obituary claim.

Affirmed in part, reversed in part.

Harwell v. Harwell (Lawyers Weekly No. 011-084-20, 13 pp.) (Per curiam) Substituted opinion. Appealed from the Circuit Court in Florence County (Roger Couch, J.) M. Dawes Cooke and Barbara Wagner for appellant-attorney; Kevin Mitchell and Gena Phillips Ervin for appellant-personal representative; Deborah Harwell, pro se; John Harleston for DHEC. S.C. App. Unpub.