THIS OPINION HAS NO PRECEDENTIAL VALUE. IT SHOULD NOT BE
CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE
239(d)(2), SCACR.
THE STATE OF SOUTH CAROLINA
In The Court of Appeals
Joseph R. Allsbrook, Jr. and Russell
Allsbrook, Appellants,
v.
Horry County, A Body Politic, Billy V. Roberts and Roy C. Roberts,
Respondents.
Appeal From Horry County
Steven H. John, Circuit Court Judge
Unpublished Opinion No. 2004-UP-285
Submitted April 6, 2004 Filed April
30, 2004
AFFIRMED
John R. Clarke, of North Myrtle Beach, for Appellants.
Mark Andrew Brunty and Thomas C. Brittain, both of Myrtle
Beach, for Respondents.
PER CURIAM: Appellants Joseph R. Allsbrook,
Jr., and Russell Allsbrook (Allsbrooks) brought this action against Horry County
to set aside a tax sale of real property located in Garden City, South Carolina.
The Allsbrooks also asserted claims against Billy V. Roberts and Roy C. Roberts
for equitable avoidance and breach of fiduciary duty related to the tax sale.
The circuit court granted the respondents motion for summary judgment, finding
the Allsbrooks claims were barred by the applicable two-year statute of limitations.
This appeal followed. We affirm.
FACTUAL/PROCEDURAL BACKGROUND
Carolyn A. Roberts died in July 1991, leaving a
holographic will disposing of her personal and real property, including her
half-interests in two Garden City lots. These lots are at the center of the
dispute in this case. The will devised Mrs. Roberts 50% interest in one of
the lots to her brother, Joseph Allsbrook, Jr., and her 50% interest in the
other lot to her nephew, Russell Allsbrook. Mrs. Roberts surviving husband,
Billy V. Roberts, was appointed personal representative of the estate.
As this appeal turns on the application of the
statute of limitations, the following timeline is critical: In April 1993,
nearly two years after Mrs. Roberts death, Horry County issued an official
Notice of Levy on the Garden City lots for failure to pay property taxes. Because
no one claiming an interest in the lots paid the taxes, a delinquent tax sale
was held on October 4, 1993. Respondent Roy C. Roberts was the successful bidder.
In December 1994, Roy Roberts filed the tax deed to the lots in his name.
The probate hearing for Carolyn Roberts
estate was held on June 8, 1995. At the hearing, Joseph Allsbrook challenged
Billy Roberts distribution of several items of Mrs. Roberts personal and real
property. Joseph also argued before the probate judge that Billy Roberts allowed
the property in question to be sold for delinquent taxes without notifying the
beneficiaries. Billys attorney noted the probate matter was one to determine
the assets of the estate, and if Joseph sought some additional remedy he would
need to bring a separate action against Billy. Josephs attorney agreed that
the lots were assets of the estate, and the probate judge then stated, So everyone
understands it is clearly an asset of the estate, and there is nothing for me
to determine under this [provision]. In its order, the probate court found
with respect to the provision on the property in question, the matter is agreed
between the parties and the property contained in paragraph 9 is an asset of
the estate. Joseph appealed the probate courts distribution to the circuit
court, and later to the Court of Appeals. This courts final opinion was filed
November 8, 2000. Allsbrook v. Estate of Roberts, Op. No. 2000-UP-509
(S.C. Ct. App. Filed Nov. 8, 2000).In regard to the Garden City lots, this court
held as follows:
Allsbrook asserts the probate court erred in holding the lots
in Garden City, devised in paragraph nine of the will, were assets of the estate.
At the hearing, the parties agreed the lots were estate assets. . . . Allsbrook
is not aggrieved by this ruling. See Rule 201(b), SCACR (Only a party
aggrieved by an order, judgment or sentence may appeal.). Therefore we affirm
the probate courts disposition of this issue.
Id.
On February 6, 2001, the Allsbrooks filed
the present action seeking to set aside the 1993 tax sale of the Garden City
lots. The Allsbrooks alleged Horry County failed to conform to the strict and
specific requirements of the statutes governing notice and sale of property
to satisfy delinquent taxes. They further alleged causes of action against
Billy Roberts, as personal representative, for breach of fiduciary duty and
equitable avoidance stemming from his failure to pay the delinquent taxes on
the lots or properly notify the Allsbrooks of the impending tax sale. On Respondents
motions for summary judgment, the circuit court dismissed the Allsbrooks claims,
finding they were barred by the two-year statute of limitations prescribed by
South Carolina Code § 12-51-160.
STANDARD OF REVIEW
When reviewing the grant of a summary judgment
motion, the appellate court applies the same standard which governs the trial
court: Summary judgment is proper when there is no genuine issue as to any
material fact and the moving party is entitled to judgment as a matter of law.
Laurens Emergency Med. Specialists v. M.S. Bailey & Sons Bankers,
355 S.C. 104, 108-09, 584 S.E.2d 375, 377 (2003); see also McDonnell
v. Consol. Sch. Dist. of Aiken, 315 S.C. 487, 489, 445 S.E.2d 638, 639 (1994)
(holding a motion for summary judgment can be used to raise the defense of statute
of limitations).
LAW/ANALYSIS
I. Allsbrooks Claim Against Horry County
The Allsbrooks first argue the circuit
court erred in granting summary judgment in favor of Horry County on their claim
seeking to set aside the tax sale. We find the circuit court properly ruled
this cause of action was barred by the statute of limitations.
South Carolina Code Ann. §§ 12-51-40 and
12-51-50 (Supp. 2003) authorize counties to sell the property of taxpayers delinquent
in paying their property taxes. In granting this authority, the Code prescribes
the requirements for notice and conduct of the salerequirements that are strictly
enforced. See § 12-51-40 (a)-(f) (notice requirements); § 12-51-50 (conduct
of sale requirements); see also Rives v. Bulsa, 325 S.C.
287, 292-93, 478 S.E.2d 878, 881 (Ct. App. 1996) (holding all requirements of
law leading up to tax sales which are intended for the protection of the taxpayer
against surprise or the sacrifice of his property are to be regarded as mandatory
and are to be strictly enforced). If a taxpayer or other interested party desires
to challenge the propriety of a county tax sale, suit must be filed within the
limitations period prescribed by § 12-51-160 which provides in part: No action
for the recovery of land sold under the provisions of this chapter or for the
recovery of the possession may be maintained unless brought within two years
from the date of sale. S.C. Code Ann. § 12-51-160 (2000).
In the present case, the Allsbrooks do
not dispute the fact they brought their action to set aside the tax sale over
seven years after the date of sale. Rather, they contend the two-year limitations
period of § 12-51-160 was tolled during the pendency of their appeal from the
probate courts order on the distribution of the estate. We disagree.
Though our states courts have not had
occasion to consider the narrow question presented, it is well settled in our
nations jurisprudence that the pendency of other legal proceedings may toll
the statute of limitations on a cause of action where such proceedings prevent
enforcement of the remedy by action. See 54 C.J.S. Limitations of
Actions § 121 (1987) (noting that [w]here a person is prevented from exercising
his legal remedy by the pendency of legal proceedings, the time during which
he is thus prevented should not be counted against him in determining whether
limitations have barred his right); 51 Am. Jur. 2d Limitations of Actions
§ 207 (2000) (noting that [d]uring the period of the restraint incident to
other legal proceedings that are of such a character that the law forbids one
of the parties to exercise a legal remedy against another, the running of the
statute of limitations is postponed, or, if it has commenced to run, is suspended).
In the main, the courts have found that
limitations periods are tolled by other pending actions where the pursuit of
additional or alternative legal remedies is expressly prohibited by statute.
Typically, this situation arises under statutory schemes that require the exhaustion
of all administrative remedies before common-law claims seeking redress for
the injury are permitted. See, e.g., Trent v. Bolger,
837 F.2d 657, 659-60 (4th Cir. 1988) (holding that when an employee is required
to exhaust administrative remedies, applicable limitations period for filing
action is tolled pending exhaustion of the administrative channels); Butler
v. Glen Oaks Turf, Inc., 196 Ga. App. 98, 101, 395 S.E.2d 277, 280 (1990)
(holding that the statute of limitations was tolled on an employees common-law
tort claim because she was legally barred from pursuing that claim during the
pendency of her workers compensation case).
In the present case, the ongoing probate
action involving the disposition of Mrs. Roberts estate posed no obstacle to
the Allsbrooks ability to pursue their remedy under the statute governing county
tax sales. As devisees under the will, their interests in the Garden City lots
vested immediately upon her death. S.C. Code Ann. § 62-3-101 (Supp. 2003); see
also In re Will of Hall, 318 S.C. 188, 192, 456 S.E.2d 439, 441
(Ct. App. 1995) (holding that devisee of life estate under will received her
interest in the property the day the testatrix died). The fact of pending collateral
litigation with respect to the distribution of property under the will did not
affect the devisees right to pursue their remedies under the tax sale provisions
of the Code. Thus, the two-year limitations period was not tolled during the
pendency of the probate action. Accordingly, we affirm the circuit courts
finding that the Allsbrooks action to set aside the tax sale was barred by
the statute of limitations.
II. Allsbrooks Claims Against Billy Roberts
and Roy Roberts
The Allsbrooks also appeal the circuit
courts dismissal of their causes of action against Billy Roberts and Roy Roberts
for equitable avoidance [1] and breach of fiduciary duty. Under these
claims, the Allsbrooks essentially alleged Billy Roberts breached his duty of
care as personal representative of the estate by failing to ensure the taxes
on the Garden City lots were timely paid, failing to notify the Allsbrooks of
the tax arrears and impending tax sale, and failing to inform the Allsbrooks
of their right to redeem the property. These causes of action were dismissed
by the circuit court as barred by the statute of limitations under S.C. Code
Ann. § 12-51-160.
The Allsbrooks argue it was error for
the circuit court to apply the limitations period prescribed under the statutory
provisions governing tax sales to their claims for breach of fiduciary duty
against Billy Roberts. Under the undisputed facts of the present case, however,
we consider this question to be purely academic as it would have no impact on
the result reached by the lower court.
Even if the court applied the maximum three-year
statute of limitations generally applied to breach of fiduciary duty claims,
the Allsbrooks claims would still be barred. A cause of action for breach
of fiduciary duty is governed by the discovery rule and must be brought within
three years of the time the person knew or should have known by exercise of
reasonable diligence that he had a cause of action. See S.C. Code Ann.
§§ 15-3-530(5) and 15-3-535 (Supp. 2003); Rumpf v. Massachusetts Mut. Life
Ins. Co., 357 S.C. 386, 394, 593 S.E.2d 183, 187 (Ct. App. 2004).
In this case, the Allsbrooks knew by June 1995
that Billy Roberts allowed the property in question to be sold for delinquent
taxes and that Roy Roberts had purchased the property at the tax sale. Indeed,
counsel for Joseph clearly admitted at the June 8, 1995, probate hearing that
the Allsbrooks were fully aware of the tax sale and its implications, stating:
[W]e will submit to the Court
documents that one of the parcels of land that is in the Will, was allowed to
be sold for taxes through the Horry County Delinquent Tax Collectors office
. . . As fiduciary, [Billy Roberts] has the responsibility to protect those
assets of the estate during the administration. . . . I think it is admitted
that the property was sold through the delinquent tax office, and was purchased
by Roy Roberts . . . [Billy] Roberts as fiduciary personal representative,
never notified any of the beneficiaries of the delinquent tax notice or anything,
and they did not have the opportunity to purchase that property at the tax sale
or her interest in it, at the tax sale.
Therefore, actual knowledge of the tax sale can
be imputed to the Allsbrooks no later than the date of the probate hearing,
nearly six years before they brought the present action in February 2001. The
three-year maximum limitations period of § 15-3-530 was unquestionably exceeded.
We conclude, therefore, that if the circuit
court erred by lumping together all of the Allsbrooks claims under the umbrella
of § 12-51-160s limitations period, the error is a harmless one.
CONCLUSION
For these reasons, we find no error with
the trial courts finding that all claims of the Allsbrooks were barred by the
applicable statute of limitations. The order granting summary judgment in favor
of Respondents is therefore
AFFIRMED.
HUFF, STILWELL, JJ., and CURETON, A.J.,
concur.
[1] Our research reveals no cases in South Carolina that recognize a cause
of action for equitable avoidance. The allegations under this claim in
the Allsbrooks complaint mirror those listed under the breach of fiduciary
duty cause of action in all material respects.