Tags: Lawsuit Barratry

Let’s say you are getting sued and the causes of action have no merit, rhyme, basis, or reason. The lawsuit could be a way to embarrass you or even to harass you. It may be time to have an attorney analyze the situation to see if you have a claim for barratry. Keep note, however, that barratry claims fail and are dismissed more often than not in South Dakota because.

A claim of barratry is a substantive cause of action asserting that a claim or defense is frivolous or malicious. SDCL § 20-9-6.1. “A frivolous action exists when the proponent can present no rational argument based on the evidence or law in support of the claim. . . . To fall to the level of frivolousness there must be such a deficiency in fact or law that no reasonable person could expect a favorable judicial ruling. . . . [F]rivolousness ‘connotes an improper motive or [a] legal position so wholly without merit as to be ridiculous.” Citibank (S.D.), N.A., v. Hauff, 2003 SD 99, ¶ 31, 668 N.W.2d 528, 537 (citation and quotation marks omitted). A malicious action

is begun in malice, and without probable cause to believe it can succeed, and which finally ends in failure. . . .   Malice exists when the proceedings are instituted primarily for an improper purpose . . . [such as] where the plaintiff in the original action was actuated by any unjustifiable motive, as where he did not believe his claim would be held valid, or where his primary motive was hostility or ill will, or where his sole purpose was to deprive the defendant of a beneficial use of his property or to force a settlement having no relation to the merits of the claim.

Id. ¶¶ 31- 32, 688 N.W.2d at 537 (citation and quotation marks omitted). “Simply because a claim or defense is adjudged to be without merit does not mean it is frivolous.” Ridley v. Lawrence County Comm’n, 2000 SD 143, ¶ 14, 619 N.W.2d 254, 259.

                In Cotton v. Manning, a barratry counterclaim was dismissed and the dismissal was upheld on appeal. 1999 SD 128, ¶¶ 41-45, 600 N.W.2d 585, 590-91.

Manning’s counterclaim alleged that Cotton had “no reasonable basis to proceed with this lawsuit” and that her actions “raise to the level of barretry (sic) under South Dakota law.” However, we find that Manning could advance no facts that would support this claim and entitle her to relief. Therefore, we conclude that, because she is not entitled to judgment as a matter of law, her counterclaim was properly dismissed.

Id. ¶ 45.

                Barratry is an assertion of a frivolous or malicious claim or filing of any document. SDCL § 20-9-6.1. “A malicious action is one brought for improper motive.” Citibank (S.D.), N.A., 2003 SD 99, ¶ 32, 668 N.W.2d at 537.

Because lawsuits must only have a reasonable basis to be filed, it is likely that a barratry claim could be dismissed right away or later on. Some attorneys use barratry claims as strategical moves to put pressure on the other side to settle. As many attorneys state, whether you should file a barratry claim against another party “depends” on each individual situation.

If you have any concerns about a lawsuit or a potential for a barratry claim, call an experienced attorney at Goosmann Law Firm in Sioux Falls, Sioux City, or Omaha today.

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