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Unpublished Opinion No. 2012-UP-293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)).