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
Robert Hoisington,
Appellant,
v.
Douglas W. MacNeille, Keri A. Jordan, Ruth &
MacNeille, P.A., William
A. Ruth, and Michael G. Olivetti,
Respondents.
Appeal From Beaufort County
L. Henry McKellar, Circuit Court Judge
Unpublished Opinion No. 2004-UP-274
Submitted April 6, 2004 Filed April
21, 2004
AFFIRMED
Robert Hoisington, pro se, for Appellant.
Charles J. Baker, III, Martha H. Rhodes, Susan Taylor Wall
and Jenny Anderson Horne, all of Charleston; and Solicitor Warren C. Powell,
Jr., of Columbia, for Respondents.
PER CURIAM: Robert Hoisington appeals an
order granting summary judgment to Douglas W. MacNeille, Keri A. Jordan, Ruth
& MacNeille, P.A., William A. Ruth and Michael G. Olivetti (collectively,
Respondents). Robert argues error by the trial judge in finding that the statute
of limitations had run prior to the service and filing of his complaint. He
also contends error in the judges failure to find civil liability on the part
of respondents and his finding that Jordan and the other respondents had no
duty to Robert. We affirm.
FACTUAL/PROCEDURAL BACKGROUND
Robert and Carol Hoisington, although
never formally married, were deemed in a previous action to have a common law
marriage. They have three children, all boys, currently ages 12, 11,
and 8. Carol filed for a divorce from Robert in April, 1997.
Jordan was an associate in the
Hilton Head law firm of Ruth & MacNeille, P.A., while Ruth, Olivetti, and
MacNeille were shareholders of this firm. Jordan was asked by Roberts and
Carols attorneys to be guardian ad litem (GAL) for their children in their
divorce action. She was officially appointed to this position on June 13, 1997,
although she visited the parties in May, and participated at a hearing held
on June 2 in this capacity. At the June 2 hearing, Robert and Carol reached
an agreement and consented to Jordans recommendation that Carol be granted
temporary custody, with an obligation on Carols part to get substance abuse
counseling and both parties to undergo drug testing.
In January 1998, Robert met with Jordan and indicated
he was concerned about her performance as GAL and the amount of fees she had
been charging. Robert indicated he had no confidence in Jordan as the GAL,
and he believed she was not competent to represent his children and she was
extremely biased. Jordan informed Robert and his attorney that she would consent
to a motion to have her relieved as GAL.
On February 5, 1998 Robert received
an anonymous letter stating the following:
To Robert,
Carol is having an affair with Doug McNeille (sic),
a married lawyer, for the past four or five months. They have sex at your house
while your children are there. Prove they are having an affair, and it should
save you a lot of money in your divorce. Ask your lawyer.
-An anonymous friend who doesnt think Carol deserves alimony.
Robert read the letter and asked someone at work to look at it. That person
told Robert he had been writing checks to Ruth & MacNeille. Within five
minutes of reading the letter, Robert realized that the attorney referred to
in the letter was Jordans boss. On February 5, Robert spoke with his attorney
about the letter and asked him to get a private investigator to look into the
matter.
On February 23 or 24, 1998, Roberts attorney contacted
Jordan and informed her there was an allegation that MacNeille was having an
affair with Carol. Subsequent to that conversation, Jordan saw Roberts attorney
at the courthouse, at which time he informed her about the anonymous letter.
Jordan testified, although she knew that MacNeille and Carol were acquainted
and that Carol visited the law firm office, she thought the visits were part
of Carols association with Dixie Youth baseball. Jordan denied any knowledge
of the affair prior to the call from Roberts attorney. Upon learning of the
allegations, Jordan immediately prepared a notice of motion to be relieved as
GAL. The motion was dated February 24, 1998, and was filed on February 26,
1998. A hearing was held on March 17, 1998, at which time both Roberts and
Carols attorneys consented to the motion. Jordan was thereafter relieved of
her duties as GAL.
At a hearing on April 30, 1998
a successor GAL was appointed. When asked by the trial judge at the pre-hearing
conference why she had asked to be relieved, Jordan stated that there had been
an allegation made against a shareholder in my firm of some type of a relationship
with one of the parties.
Both Robert and Carol sought custody of
their children. In November 1998, the family court determined that Robert and
Carol had a common law marriage and the divorce action proceeded. In July 1999,
Robert took Carol and MacNeilles depositions. Carol admitted to the affair
with MacNeille as well as another with her sons baseball coach. MacNeille
invoked the protection of the Fifth Amendment when asked if he had a sexual
relationship with Carol. The successor GALs report recommended Robert be given
custody of the children. In November 2000, the court granted custody of the
children to Robert. In March 2001, Robert was granted a divorce from Carol
on the grounds of adultery.
In August 2001, after Robert filed the current
action and Carol filed her own, separate action against the respondents, Carol
testified by way of deposition that her affair with MacNeille usually involved
MacNeilles use of cocaine and marijuana, and that she used cocaine with him
on one occasion. She further claimed that, during their affair, MacNeille acted
in many ways like her attorney and spoke about the case to Jordan on at least
one occasion.
On February 16, 2001, this action was filed and
given to the Sheriffs Office for service on Respondents. The complaint alleged
malpractice on the part of Jordan arising from the conflict of interest and
her failure to investigate the allegations or inform the court. It alleged
negligence on the part of MacNeille for endangering the children and ending
any chance of reconciliation between Robert and Carol. It also accused the law
firm of negligent inaction for failing to make efforts to police their members
and in not reporting MacNeille to the proper authorities. Robert asserted,
as a direct and proximate result of the respondents negligence, his childrens
normal development was endangered, his children were put under physical risk
because their mothers drug addiction was being fostered, and any possibility
of reunion between [Robert and Carol] were (sic) diminished. He further alleged
he was required to pay considerable sums in GAL fees [1] and child support, and was deprived
of custody of his children while they were put at risk. The trial judge found
that the action was time barred by the statute of limitations because more than
three years had passed from Roberts receipt of the letter alleging the affair
to the date of filing and service. Alternatively, he found that Jordans status
as GAL made her immune from civil suits relating to the performance of those
duties, Jordan owed no duty to Robert as the childrens father, and that MacNielle
was not civilly liable because South Carolina no longer recognizes the torts
of criminal conversation and alienation of affection. This appeal follows.
STANDARD OF REVIEW
The purpose of summary judgment is to expedite disposition
of cases which do not require the services of a fact finder. George v.
Fabri, 345 S.C. 440, 452, 548 S.E.2d 868, 874 (2001). When reviewing the
grant of a summary judgment motion, the appellate court applies the same standard
which governs the trial court under Rule 56(c), SCRCP: 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. Ferguson v. Charleston
Lincoln Mercury, Inc., 349 S.C. 558, 562, 564 S.E.2d 94, 96 (2002). In
determining whether any triable issue of fact exists, the evidence and all reasonable
inferences drawn therefrom must be viewed in a light most favorable to the nonmoving
party. Hendricks v. Clemson University, 353 S.C. 449, 455-56, 578 S.E.2d
711, 714 (2003).
LAW / ANALYSIS
On appeal, Robert does not dispute that the applicable
limitations period for his claim against respondents is three years. Rather,
he contends the trial judge erred in finding the statute of limitations barred
this action because the action was commenced within three years. We disagree.
South Carolina Code Ann. § 15-3-530 (Supp. 2003) provides
a three-year statute of limitations for legal malpractice suits or any injury
to the person or rights of another, not arising on contract and not enumerated
by law. S.C. Code Ann. § 15-3-530(5) (Supp. 2003); Peterson v. Richland
County, 335 S.C. 135, 138, 515 S.E.2d 553, 555 (Ct. App. 1999); Berry
v. McLeod, 328 S.C. 435, 444, 492 S.E.2d 794, 799 (Ct. App. 1997). With
respect to injuries to the person, the discovery rule provides: Except as to
actions initiated under Section 15-3-545 [actions for medical malpractice],
all actions initiated under Section 15-3-530(5) must be commenced within three
years after the person knew or by the exercise of reasonable diligence should
have known that he had a cause of action. S.C. Code Ann. § 15-3-535 (Supp.
2003).
According to the discovery rule, the statute of
limitations begins to run when a cause of action reasonably ought to have been
discovered. The statute runs from the date the injured party either knows or
should have known by the exercise of reasonable diligence that a cause of action
arises from the wrongful conduct. Dean v. Ruscon Corp., 321 S.C. 360,
363, 468 S.E.2d 645, 647 (1996).
The exercise of reasonable diligence means simply that an
injured party must act with some promptness where the facts and circumstances
of an injury would put a person of common knowledge and experience on notice
that some right of his has been invaded or that some claim against another party
might exist. The statute of limitations begins to run from this point and not
when advice of counsel is sought or a full-blown theory of recovery developed.
Wiggins v. Edwards, 314 S.C. 126, 128, 442
S.E.2d 169, 170 (1994) (quoting Snell v. Columbia Gun Exchange, Inc.,
276 S.C. 301, 303, 278 S.E.2d 333, 334 (1981)). The focus date under the discovery
rule is the date of discovery of the injury and not the date of discovery of
the wrongdoer. Id. at 128, 442 S.E.2d at 170.
The important date under the discovery rule is the date
that a plaintiff discovers the injury, not the date of the discovery of the
identity of another alleged wrongdoer. If, on the date of injury, a plaintiff
knows or should know that [he] had some claim against someone else, the statute
of limitations begins to run for all claims based on that injury.
Id. (quoting Tollison v. B & J Machinery
Co., Inc., 812 F.Supp. 618, 620 (D.S.C. 1993)).
The test of whether or not a person should have
known the operative facts is objective rather than subjective. Bayle v.
South Carolina Dept of Transp., 344 S.C. 115, 123, 542 S.E.2d 736, 740
(Ct. App. 2001). The test is not whether a particular plaintiff actually knew
he or she had a claim against a party. Id. Rather, the discovery rule
focuses on whether the plaintiff acquired knowledge of any existing facts sufficient
to put the party on inquiry. Peterson, 335 S.C. at 139, 515 S.E.2d at
555.
Robert contends he had no cause of action against
respondents until Jordan and her firm failed to investigate or report MacNeilles
conduct to the authorities after they were given notice of the allegation of
the affair on the February 23 or 24, 1998. We disagree.
It is clear the injuries Robert alleges all stem
from the sexual relationship between Carol and MacNeille and the alleged conflict
of interest that arose therefrom during the time period that Jordan was acting
as GAL. Jordan denied any knowledge of the affair prior to being contacted
by Roberts attorney, and it is undisputed that, recognizing the potential conflict,
Jordan immediately took steps to have herself relieved as GAL to the children
once she was informed. Robert had the means of discovering his potential claim
against the respondents when he received the anonymous letter on February 5,
1998. On this date, the facts and circumstances put Robert on notice that some
right of his may have been invaded or that some claim against another party
might exist. It is irrelevant that Jordan and the law firm may have thereafter
failed to investigate the allegations, as Robert acquired knowledge of facts
sufficient to put him on inquiry prior to the time that Jordan received notice
of the potential conflict of interest. Indeed, Robert stated that at the time
he received the letter and discovered the connection between Jordan and MacNeille,
he felt it explained why all these . . . biased things [had] been happening
to [him] and it started making sense of what [had] transpired over the past
and why things had gone heavily toward Carol and heavily against [him]. Robert
further admitted, the machinery to inquire into the Doug MacNeille/Carol Hoisington
matter was underway on February 5, 1998. The fact that an injured party does
not initially comprehend the full extent of the damages does not prevent the
proverbial clock from starting at the moment that party is aware of the facts
that caused the injury. Barr v. City of Rock Hill, 330 S.C. 640, 645,
500 S.E.2d 157, 160 (Ct. App. 1998). Because Robert knew or should have known
that he had some claim against someone on February 5, 1998 for any injuries
accompanied by the affair between Carol and MacNeille, the statute of limitations
began to run at that point for all claims based on that injury. The statute
of limitations began to run at this time, and not when a full-blown theory of
recovery was developed by Robert.
Further, we find our decision in Burgess v. Am.
Cancer Socy, 300 S.C. 182, 386 S.E.2d 798 (Ct. App. 1989), remarkably similar
to the situation in the instant case. In Burgess, the plaintiff was
fired as executive director of the American Cancer Societys local office and
later sued the society for this termination. Her attorney in the action was
having an affair during the litigation with the woman who replaced her as the
director of the organization. The plaintiff learned of the alleged affair,
and several years later heard that the attorney had passed information regarding
plaintiffs lawsuit to the Cancer Society during the litigation. She subsequently
sued her attorney for malpractice. Stressing that the discovery rule focuses
upon whether the complaining party acquired knowledge of any existing facts
that would be sufficient to put the party on inquiry, such that if developed
would disclose the alleged wrong, the court held that the statute of limitations
began to accrue when the plaintiff learned of the affair, not when she learned
of the communications giving rise to the alleged malpractice. Burgess,
300 S.C. at 186-87, 386 S.E.2d at 800-01. Thus, the suit was barred pursuant
to the statute of limitations.
It is undisputed that on February 5, 1998 Robert learned
of the alleged affair which, as in Burgess, was very likely to lead to
some kind of conflict on the part of Respondents concerning the handling of
his legal matter. Per the discovery rule, the statute of limitations began
to accrue at this time. Because the current action was initiated more than
three years after this date, it is time barred by the statute of limitations
as a matter of law. [2]
For the forgoing reasons, the decision of the trial
court is
AFFIRMED.
HUFF and STILWELL, JJ. and CURETON, AJ., concur.
[1] Approximately
one month after Robert filed this action, Carol was ordered to reimburse Robert
for the $7,000 in GAL fees he paid to Jordan.
[2] In
light of our determination that this action is barred by the statute of limitations,
we need not reach Roberts remaining issues on appeal.