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24733 - Deborah Ann Pool v. William R. Pool

Davis Adv. Sh. No. 2
S.E. 2d


THE STATE OF SOUTH CAROLINA

In The Supreme Court

Deborah Ann Pool, Petitioner,

v.

William R. Pool, Respondent.

ON WRIT OF CERTIORARI TO THE COURT OF

APPEALS

Appeal From Union County

David N. Wilburn, Jr., Family Court Judge

Opinion No. 24733

Heard November 18, 1997 - Filed January 5, 1998

AFFIRMED AS MODIFIED

Maggie Fields Bailey and Richard H. Warder, of

Greenville, for petitioner.

Terry E. Haskins and Melanie G. McCulley, of

Haskins Law Firm, of Greenville, for respondent.

WALLER, A.J.: On appeal is a family court order requiring, in

pertinent part, Petitioner Deborah Ann Pool ("Wife") to pay certain attorney's

fees and costs to Respondent William R. Pool ("Husband"). The Court of

Appeals affirmed. Pool v. Pool, 321 S.C. 84, 467 S.E.2d 753 (Ct. App. 1996).

This Court granted certiorari. We affirm as modified.

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POOL v. POOL

DISCUSSION

Before the Court of Appeals, Wife argued error in the award of

attorney's fees and private investigator costs because husband failed to raise

them in his pleadings. The Court of Appeals, without specifically ruling on

this issue, affirmed pursuant to Rule 220(c), SCACR,1 finding the family court

was entitled to award the fees and costs as sanctions under the South

Carolina Frivolous Civil Proceedings Sanctions Act ("FCPSA").2 Pool, 321

S.C. at 91, 467 S.E.2d at 757-58. Wife argues the Court of Appeals erred in

affirming under the FCPSA because it was not a ground appearing in the

record on appeal. We agree.

Under the FCPSA, a person who procures, initiates, continues, or

defends any civil proceeding may be assessed attorney's fees and court costs

if she (1) does so "primarily for a purpose other than that of securing the

proper ... adjudication of the claim upon which the proceedings are based;"

and (2) the proceedings have terminated in favor of the person seeking the

sanction. § 15-36-10. The person "must be considered to have acted to

secure a proper purpose" under certain circumstances. § 15-36-20 .3 Most

pertinent to the issue here, the Act provides for the following procedure:

When the essential elements of this chapter have been
established as provided in Section 15-36-10, a person is entitled
to recover his attorney's fees and court costs reasonably incurred
in litigating the proceedings. The entitlement of the aggrieved
person must be determined by the trial judge at the conclusion
of a trial upon motion of the aggrieved party stating the
manner in which the other party is alleged to have acted in
violation of this statute. The court shall base its decision upon

1 "The appellate court may affirm any ruling, order or judgment upon

any ground(s) appearing in the Record on Appeal."

2S.C. Code Ann. §§ 15-36-10 to -50 (Supp. 1996) (unamended since

enactment in 1988). Specific sections are hereinafter cited as "§ 15-36-XX."

3These circumstances include "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 ...... § 15-36-20.

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POOL v. POOL
a review of the proceedings and affidavits submitted by each
person affected.

§ 15-36-30 (emphasis supplied).

The Act does not allow a judge to invoke its provisions sua sponte; it

clearly requires a proper motion to be made by the aggrieved party. Here,

the record contains no argument made by Husband that Wife's claim was

frivolous. Rather, the evidence indicates the frivolous issue was brought up

by the judge. Moreover, nowhere in the record, including the judge's order,

is there a mention of the FCPSA. Finally, regarding the award of private

investigator costs, the FCPSA only allows for the granting of "attomey's fees

and court costs" as sanctions, not other types of costs or fees. § 15-36-10; -30

(emphasis supplied). Therefore, because the evidence in this record would not

allow an appellate court to conclude the award was proper under the

provisions of the FCPSA, the Court of Appeals erred in affirming on this

ground.

While we find the Court of Appeals erred in affirming under the

FCPSA, we nonetheless affirm the award because the record supports a

finding the issue of attorney's fees and costs as sought by both parties was

properly before the family court. While Husband did not specifically request

attorney's fees and costs in his initial pleadings, he did file a motion to

amend his pleadings which was ultimately granted by the trial judge.

Evidence regarding these issues was admitted at the full merits hearing.4

See Rule 15(b), SCRCP5 ("If evidence is objected to at the trial on the ground

that it is not within the issue made by the pleadings, the court may allow

the pleadings to be amended and shall do so freely when the presentation of

the merits of the action will be subserved thereby and the objecting party

fails to satisfy the court that the admission of such evidence would prejudice

him in maintaining his action or defense on the merits.").

The focal inquiry in allowing amendment of pleadings is whether doing

so will prejudice the opposing party. See Soil & Material Eng'rs, Inc. v. Folly


4 While initially the trial judge sustained Wife's objection to the

introduction of evidence regarding private investigator's costs, at the end of

the hearing he requested a statement of these and other costs from both

parties. There is no evidence in the record showing Wife objected to this, or

that she argued she would be prejudiced by it.

5This rule is applicable to family court hearings. Rule 2(a), SCRFC.

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POOL v. POOL

Assocs., 293 S.C. 498, 501, 361 S.E.2d 779, 781 (Ct. App. 1987) ("Simply

because an amendment to conform to proof was made late in the trial affords

no basis for holding that the amendment comes too late. The question is one

of prejudice to the opposing party."). See also Foggle v. CSX Transp.. Inc.,

315 S.C. 17, 23, 431 S.E.2d 587, 590 (1993) ("It is well established that a

motion to amend is addressed to the sound discretion of the trial judge, and

that the party opposing the motion has the burden of establishing prejudice");

Ball v. Canadian Am. Express Co., 314 S.C. 272, 275, 442 S.E.2d 620, 622

(Ct. App. 1994) ("Motions to amend pleadings to conform to proof may be

made upon motion of any party at any time, even after judgment, and are

within the sound discretion of the trial Judge. Ordinarily, amendments to

conform to proof should be liberally allowed.").

In his order, the trial judge found Wife was not prejudiced by his

admitting the evidence or considering the issue. Indeed, Wife has not argued

or shown any prejudice resulting from the judge's allowing the evidence or

amendment.6 See Ball, 314 S.C. at 275, 442 S.E.2d at 622 ("Prejudice occurs

when the amendment states a new claim or defense which would require the

opposing party to introduce additional or different evidence to prevail in the

amended action"). See also 6A Charles A. Wright et al., Federal Practice &

Procedure § 1495 (2d ed. 1990) ("To justify the exclusion of the evidence, the

rule contemplates that the objecting party must be put to some serious

disadvantage"). The prejudice Rule 15 envisions is a lack of notice that the

new issue is going to be tried, and a lack of opportunity to refute it. Folly

Assocs., 293 S.C. at 501, 361,S.E.2d at 781 (Ct. App. 1987) ("In considering

potential prejudice to the opposing party, the court should consider whether

the opposing party has had the opportunity to prepare for the issue now

being raised formally.").

As the judge found, Wife knew well before trial that Husband was

seeking attorney's fees and costs.7 Therefore, because Wife cannot show

prejudice from the trial court's granting Husband's motion to amend, and in


6 Her brief to the Court of Appeals discusses prejudice in one sentence:

"Clearly, the Husband's last minute attempt to plead the fees and cost issue

was prejudicial to the Wife."

7The pre-trial order, filed more than a year before trial, specifically

stated, "The request for attorney's fees and costs sought by both parties will

be carefully considered by the Court at the full merits hearing of this case."

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POOL v. POOL

light of Rule 15's "bias in favor of granting amendments,"8 we affirm the

award of attorney's fees and costs in this case. See 6A Federal Practice &

Procedure § 1491 (Rule 15(b) "intended to promote the objective of deciding

cases on their merits rather than in terms of the relative pleading skills of

counsel").

For the foregoing reasons, the decision of the Court of Appeals is

hereby

AFFIRMED AS MODIFIED.

FINNEY, C.J., TOAL, MOORE and BURNETT, A.J., concur.


8 Forrester v. Smith & Steele Builders, Inc., 295 S.C. 504, 507, 369

S.E.2d 156, 158 (Ct. App. 1988) (internal quotations omitted).

p. 7