One very persistent plaintiff who sued her employer four times, raising the same claims even after having litigated and lost them before, will have to cough up over $50,000 in fees and costs after the South Carolina Supreme Court on March 26 upheld an award of sanctions against her personally under the state’s Frivolous Civil Proceedings Sanctions Act.
Cynthia Holmes—who is identified in other cases before the state Supreme Court as Cynthia Collie—is an ophthalmologist and an (currently suspended) attorney. In 1999, she filed the first of four lawsuits against East Cooper Community Hospital in Mount Pleasant, regarding its decisions to deny the credentials she requested. The first lawsuit was tossed out of federal court, and the second, in state court, resulted in a settlement to resolve credentialing decisions through 2004. (Holmes filed a pro se appeal of the federal decision all the way to the U.S. Supreme Court.)
In 2005, Holmes filed a third lawsuit against the hospital, alleging breaches of the settlement agreement and the covenant of good faith and fair dealing in reviewing her applications for medical staff privileges. Circuit Court Judge R. Markley Dennis granted the hospital summary judgment in 2007, finding that the court had no jurisdiction because the decision was not subject to judicial review. Dennis also found that Holmes had presented no evidence or reason to persuade the Court to depart from that longstanding principle and ordered that she be sanctioned under the FCPSA.
In 2010, Holmes sued the hospital a fourth time, making basically the same arguments she made in the 2005 lawsuit. The previous year, the state Supreme Court had ordered all clerks of court to refuse filings from Holmes, unless she was represented by another licensed attorney, due to her “vexatious and meritless filings,” and attorney Chalmers Carey Johnson of Tacoma, Wash., as the Supreme Court put it, “graciously agreed to represent” her. Holmes brought two legal malpractice claims against the attorneys who represented her in her first two lawsuits against the hospital.
The hospital moved for judgment on the pleadings in the most recent lawsuit. Dennis denied that motion, and a motion to reconsider his decision, saying it would be “safest for everybody” to consider the issue on a motion for summary judgment. In 2011, another judge, Kristi Lee Harrington granted the motion for summary judgment.
Harrington also granted the hospital’s request for more sanctions under the FCPSA, finding that Holmes had continued the litigation “despite this Court’s lack of subject matter jurisdiction, despite a prior ruling … that this Court lacks subject matter jurisdiction, and despite being sanctioned for arguing that this Court has subject matter jurisdiction in a previous case based on the very same allegations.” She ordered Holmes to pay the hospital $53,447 and enjoined her from filing any more lawsuits against the hospital unless she posted a bond to cover the hospital’s fees and costs.
Holmes appealed the decisions. By a 4-1 majority, the Supreme Court affirmed that ruling that sanctions against her personally were proper.
Attempts to reach Holmes before press time were unsuccessful.
One heck of a party
Holmes made several arguments why sanctions were improper, one being that she was competently represented by counsel. Under an older version of the FCPSA, parties were shielded from sanctions if they relied on the advice of counsel, sought in good faith. In 2005, however, the state legislature substantially re-wrote the law. The new version repeatedly speaks of sanctioning a “party,” besides an attorney or pro se litigant. Thus, the majority concluded that the legislature intended for a party, even one represented by counsel, could be sanctioned under the law.
Justice Costa Pleicones dissented, arguing that sanctions should not have been imposed against Holmes personally. In his view, the law permits sanctions against a litigant only if the evidence reveals factual misrepresentations or omissions on her part, unknown to her attorney, which establish that her position is frivolous. Pleicones argued that the fact that Holmes was herself and attorney was not relevant, and that the law did not authorize sanctions upon a party because her attorney’s argument against legal precedent was not made in good faith or the trial judge found no substantive discovery was undertaken.
“These alleged delicts should be laid at the feet of the attorney and not the party,” Pleicones wrote.
The court’s majority disagreed with that reasoning, pointing to the uniquely bizarre facts of the situation.
“[Holmes] drove this lawsuit (and many others) with the knowledge that she did not have a claim. As an attorney, she is familiar with the law and understands the court system, yet has continuously pursued frivolous proceedings. Thus, counsel, merely assisting her in filing papers with the court, should not also be penalized under these facts,” Chief Justice Jean Toal wrote for the majority.
Holmes was suspended by the Supreme Court in October 2013 for refusing to provide the court with a working email address.
No fun, but frivolity
The court also found that sanctions were proper on the merits of the case. Holmes had argued that because the hospital lost its first two “motions to dismiss” before one was granted by another judge, prior case law prohibited a finding that her lawsuit was frivolous. The Supreme Court disagreed, saying the first two motions were actually motions for judgment on the pleadings, and Dennis had not denied them on the merits, but simply deferred them on procedural grounds. The court also noted that the case law Holmes cited predated the 2005 revision of the law.
Holmes also argued that her position that the circuit court was wrong about whether it had jurisdiction to hear her case, and so the circuit court erred in finding that her pursuit of her claim was frivolous. But the Supreme Court found that Holmes had made the exact legal argument in the 2005 lawsuit and provided no reason why her argument was any different this time. As such, the court held that Holmes was precluded from trying to re-litigate the issue, and thus her lawsuit was without merit.
The court swiftly brushed aside arguments that the FCPSA was unconstitutional and conflicted with the state’s appellate court rules. In both cases, the court ruled that Holmes had failed to raise those arguments in circuit court. The court found that Holmes lacked the standing to bring an argument that the FCPSA is unfair to pro se litigants since she is herself a licensed attorney.
E. Douglas Pratt-Thomas, Lindsay Smith-Yancey and Chip McQueeney of Pratt-Thomas Walker in Charleston represented the hospital. Pratt-Thomas declined to comment on the case.
The 30-page decision is Holmes v. East Cooper Cmty. Hosp., Inc. (Lawyers Weekly No. 010-030-14). The full text of the opinion is at sclawyersweekly.com.