Davis Adv. Sh. No. 2
THE STATE OF SOUTH CAROLINA
In The Supreme Court
Deborah Ann Pool, Petitioner,
William R. Pool, Respondent.
ON WRIT OF CERTIORARI TO THE COURT OF
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.
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:
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.
§ 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
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
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.
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
"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."
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
For the foregoing reasons, the decision of the Court of Appeals is
AFFIRMED AS MODIFIED.
FINNEY, C.J., TOAL, MOORE and BURNETT, A.J., concur.
S.E.2d 156, 158 (Ct. App. 1988) (internal quotations omitted).