Bill Text: MS HB1245 | 2018 | Regular Session | Introduced
Bill Title: Dismissed civil cases; authorize judge to assess costs against the dismissed party.
Spectrum: Partisan Bill (Republican 1-0)
Status: (Failed) 2018-01-30 - Died In Committee [HB1245 Detail]
Download: Mississippi-2018-HB1245-Introduced.html
MISSISSIPPI LEGISLATURE
2018 Regular Session
To: Judiciary A
By: Representative Brown
House Bill 1245
AN ACT TO AUTHORIZE A PRESIDING JUDGE TO ASSESS COSTS BETWEEN ALL LITIGANTS AND APPORTION COSTS AS THE JUDGE DEEMS NECESSARY; TO REQUIRE THE COURT TO AWARD THE PARTY OR PARTIES AGAINST WHOM THE DISMISSED CLAIMS WERE PENDING AT THE TIME THE SUCCESSFUL MOTION TO DISMISS WAS GRANTED THE COSTS AND REASONABLE AND NECESSARY ATTORNEY'S FEES INCURRED IN THE PROCEEDINGS AS A CONSEQUENCE OF THE DISMISSED CLAIMS BY THAT PARTY OR PARTIES; TO REQUIRE THE AWARDED COSTS AND FEES TO BE PAID BY THE PARTY OR PARTIES WHOSE CLAIM OR CLAIMS WERE DISMISSED AS A RESULT OF THE GRANTED MOTION TO DISMISS; TO AMEND SECTIONS 11-55-5 AND 11-55-7, MISSISSIPPI CODE OF 1972, TO CONFORM TO THE PRECEDING SECTION; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. (1) In all civil cases, whether tried by a jury or before the court without a jury, the presiding judge shall have a right to adjudge the cost.
(2) In doing so, the presiding judge shall be authorized, in the presiding judge's discretion, to apportion the cost between the litigants, as in the presiding judge's opinion the equities of the case demand.
(3) (a) Notwithstanding subsection (1) or (2), in a civil proceeding, where a trial court grants a motion to dismiss pursuant to the Mississippi Rules of Civil Procedure for failure to state a claim upon which relief may be granted, the court shall award the party or parties against whom the dismissed claims were pending at the time the successful motion to dismiss was granted the costs and reasonable and necessary attorney's fees incurred in the proceedings as a consequence of the dismissed claims by that party or parties.
The awarded costs and fees shall be paid by the party or parties whose claim or claims were dismissed as a result of the granted motion to dismiss.
(b) Costs shall include all reasonable and necessary litigation costs actually incurred due to the proceedings that resulted from the filing of the dismissed claims, including, but not limited to:
(i) Court costs;
(ii) Attorney's fees;
(iii) Court reporter fees;
(iv) Interpreter fees; and
(v) Guardian ad litem fees.
(c) An award of costs pursuant to this subsection (c) shall be made only after all appeals of the issue of the granting of the motion to dismiss have been exhausted and if the final outcome is the granting of the motion to dismiss. The award of costs and attorney's fees pursuant to this section shall be stayed until a final decision which is not subject to appeal is rendered.
(d) Notwithstanding any other provision of this act, the court shall not require a party to pay costs under this section in excess of a combined total of Ten Thousand Dollars ($10,000.00) in any single lawsuit. Where multiple parties are entitled to recover their costs from a single party under this section and those parties' combined actual costs under this section exceed Ten Thousand Dollars ($10,000.00), then the court shall apportion the awarded costs to the moving parties in proportion to the amount of each moving party's incurred costs unless agreed otherwise by the moving parties. Nothing in this section shall be construed to limit the award of costs as provided for in other sections of the code or at common law.
(e) This subsection (3) shall not apply to:
(i) Actions by or against the state, other governmental entities, or public officials acting in their official capacity or under color of law;
(ii) Any claim that is dismissed by the granting of a motion to dismiss that was filed more than sixty (60) days after the moving party received service of the latest complaint, counter-complaint or cross-complaint in which that dismissed claim was made;
(iii) Any claim that the party against whom the motion to dismiss was filed withdrew, or in good faith amended to state a claim upon which relief may be granted; however, this subparagraph (3)(e)(iii) shall not apply unless a pleading providing notice of the withdrawal or amendment was filed with the court and delivered to the opposing party or parties at least three (3) days before the date set for the hearing of the motion to dismiss or by the deadline for the filing of a response to the motion to dismiss, whichever is earlier. Nothing in this section shall be construed to prevent a party from striking its own motion to dismiss;
(iv) Actions by pro se litigants, except where the court also finds that the pro se party acted unreasonably in bringing, or refusing to voluntarily withdraw, the dismissed claim;
(v) Any claim which is a good faith, nonfrivolous claim filed for the express purpose of extending, modifying, or reversing existing precedent, law or regulation, or for the express purpose of establishing the meaning, lawfulness or constitutionality of a law, regulation or United States or Mississippi constitutional right where the meaning, lawfulness or constitutionality is a matter of first impression that has not been established by precedent in a published opinion by the Mississippi Supreme Court, court of appeals, court of criminal appeals, a United States district court in Mississippi, or by the United States Supreme Court. This subparagraph (3)(e)(v) shall not apply unless at the time the successful motion to dismiss was filed by the party that made the dismissed claim had specially pleaded in its latest complaint, counter-complaint or cross-complaint that the dismissed claim was made for one (1) of the express purposes listed above and cited the contrary precedent or interpretation the party seeks to distinguish or overcome, or whether the issue to be decided is a matter of first impression as described in this subparagraph (3)(e)(v); or
(vi) Any claim for which relief could be granted under a law, a court precedent published by a court described in subparagraph (3)(e)(v), or a regulation, that was in effect and applicable to the claim at the time the motion to dismiss was filed; where that law, precedent or regulation was cited in the pleading in which the dismissed claim was made or in the response to the motion to dismiss; and where the motion to dismiss the claim was granted due to the subsequent repeal, amendment, overruling or distinguishing of that law, regulation or published court precedent.
(f) This section shall not be construed to limit the ability of any court to dismiss a claim or assess costs against a party whose claim has been dismissed, where permitted or required by other law, court rule or at common law.
SECTION 2. Section 11-55-5, Mississippi Code of 1972, is amended as follows:
11-55-5. (1) Except as otherwise provided in this chapter, in any civil action commenced or appealed in any court of record in this state, the court shall award, as part of its judgment and in addition to any other costs otherwise assessed, reasonable attorney's fees and costs against any party or attorney if the court, upon the motion of any party or on its own motion, finds that an attorney or party brought an action, or asserted any claim or defense, that is without substantial justification, or that the action, or any claim or defense asserted, was interposed for delay or harassment, or if it finds that an attorney or party unnecessarily expanded the proceedings by other improper conduct including, but not limited to, abuse of discovery procedures available under the Mississippi Rules of Civil Procedure; or if the claim was dismissed as provided in Section 1 of this act.
(2) No attorney's fees or costs shall be assessed if a voluntary dismissal is filed as to any action, claim or defense within a reasonable time after the attorney or party filing the action, claim or defense knows or reasonably should have known that it would not prevail on the action, claim or defense.
(3) When a court determines reasonable attorney's fees or costs should be assessed, it shall assess the payment against the offending attorneys or parties, or both, and in its discretion may allocate the payment among them, as it determines most just, and may assess the full amount or any portion to any offending attorney or party.
(4) No party, except an attorney licensed to practice law in this state, who is appearing without an attorney shall be assessed attorney's fees unless the court finds that the party clearly knew or reasonably should have known that such party's action, claim or defense or any part of it was without substantial justification.
SECTION 3. Section 11-55-7, Mississippi Code of 1972, is amended as follows:
11-55-7. In determining the amount of an award of costs or attorney's fees, the court shall exercise its sound discretion. When granting an award of costs and attorney's fees, the court shall specifically set forth the reasons for such award and shall consider the following factors, among others, in determining whether to assess attorney's fees and costs and the amount to be assessed:
(a) The extent to which any effort was made to determine the validity of any action, claim or defense before it was asserted, and the time remaining within which the claim or defense could be filed;
(b) The extent of any effort made after the commencement of an action to reduce the number of claims being asserted or to dismiss claims that have been found not to be valid;
(c) The availability of facts to assist in determining the validity of an action, claim or defense;
(d) Whether or not the action was prosecuted or defended, in whole or in part, in bad faith or for improper purpose;
(e) Whether or not issues of fact, determinative of the validity of a party's claim or defense, were reasonably in conflict;
(f) The extent to which the party prevailed with respect to the amount of and number of claims or defenses in controversy;
(g) The extent to which any action, claim or defense was asserted by an attorney or party in a good faith attempt to establish a new theory of law in the state, which purpose was made known to the court at the time of filing;
(h) The amount or conditions of any offer of judgment or settlement in relation to the amount or conditions of the ultimate relief granted by the court;
(i) The extent to which a reasonable effort was made to determine prior to the time of filing of an action or claim that all parties sued or joined were proper parties owing a legally defined duty to any party or parties asserting the claim or action;
(j)
The extent of any effort made after the commencement of an action to reduce the
number of parties in the action; * * *
(k)
The period of time available to the attorney for the party asserting any
defense before such defense was interposed * * *; and
(l) Whether the case was dismissed as provided in Section 1 of this act.
SECTION 4. This act shall take effect and be in force from and after July 1, 2018.
