United States District Court, D. South Carolina, Rock Hill Division
Desa Ballard, as Successor Trustee of the Trust of Chris Combis, u/a/d 10-15-2013, Plaintiff,
Diane Combis, Defendant. Desa Ballard, as Successor Trustee of the Trust of Chris Combis, Cross-claim/Third Party Plaintiff,
George Combis; Diane Combis, as former Trustee of the Trust of Chris Combis; Superior Tile, Marble, and Terrazzo Corporation; and Superior Stone of the Southeast, Inc., Cross-claim/Third Party Defendants. In the Matter of the Estate of Chris Combis: Desa Ballard, as Personal Representative of the Estate of Chris Combis, Petitioner,
George Combis; Chris A. Combis; Diane Combis; Superior Tile, Marble, and Terrazzo Corporation; and Superior Stone of the Southeast, Inc., Respondents. Linda Combis and Mary Combis, Plaintiffs,
George Combis and Diane Combis (Individually and as former Trustee of the Revocable Trust Agreement for Chris Combis), Defendants.
F. ANDERSON, JR. UNITED STATES DISTRICT JUDGE
matter is before the Court upon motions made by all parties.
Plaintiff and Petitioner Desa Ballard (“Ballard”)
and Plaintiffs Linda Combis and Mary Combis, each made a
“motion for reconsideration.” ECF Nos. 214 and
216. As motions to reconsider are not expressly contemplated
by the Federal Rules of Civil Procedure, the Court will treat
these motions as a motion to alter or amend the judgment
under Rule 59(e).
and Respondents George Combis, Diane Combis, Superior Tile,
Marble, and Terrazzo Corporation (“Superior
Tile”), and Superior Stone of the Southeast, Inc.
(“Superior Stone”) jointly made a motion to amend
the judgment and, in the alternative, for a new trial
pursuant to Rules 52(b) and 59(a).
under Rule 59 are not to be made lightly:
“[R]econsideration of a previous order is an
extraordinary remedy, to be used sparingly in the interests
of finality and conservation of judicial resources.” 12
James Wm. Moore et al., Moore's Federal Practice ¶
59.30 (3d ed.); see Doe v.
Spartanburg Cty. Sch. Dist. Three, 314 F.R.D. 174, 176
(D.S.C. 2016) (quoting Pac. Ins. Co. v. Am. Nat. Fire
Ins. Co., 148 F.3d 396, 403 (4th Cir. 1998)).
Fourth Circuit has stated a Rule 59(e) motion should be
granted for only three reasons: (1) to follow an intervening
change in controlling law; (2) account for new
evidence unavailable at trial; or (3) “to correct a
clear error of law or prevent manifest
injustice.” Sloas v. CSX Transp. Inc., 616
F.3d 380, 385 n.2 (4th Cir. 2010) (quoting Hutchinson v.
Staton, 994 F.2d 1076, 1081 (4th Cir. 1993)) (emphasis
added). “Rule 59(e) motions may not be used to make
arguments that could have been made before the judgment was
entered.” Hill v. Braxton, 277 F.3d 701, 708
(4th Cir. 2002). Nor are these motions opportunities to
rehash issues already ruled upon because a litigant is
displeased with the result. See Pac. Ins. Co., 148
F.3d at 403.
“a Rule 52(b) motion is intended to correct manifest
errors of law or fact or to present newly discovered
evidence.” United States v. Carolina E. Chem.
Co., 639 F.Supp. 1420, 1423 (D.S.C. 1986); see
G&P Trucking Co. v. Zurich Am. Ins. Co., No.
3:14-CV-501-MBS, 2015 WL 7783553, at *2 n. 3 (D.S.C. Dec. 3,
2015). A motion pursuant to Rule 52(b) may be made with a
motion for a new trial under Rule 59(a). Carolina E.
Chem. Co., 639 F.Supp. at 1423. A motion for a new trial
“should be based upon manifest error of law or mistake
of fact, and a judgment should not be set aside except for
substantial reasons.” United States v. Timms,
537 F. App'x 265, 267 (4th Cir. 2013) (internal citations
the various motions to reconsider, amend the judgment, or for
a new trial, none of the parties presented new controlling
law or new evidence nor pointed out a clear legal error or
manifest injustice of this Court.
motions made by Ballard, Linda, and Mary are basically an
attempt to re-argue issues already fully briefed and decided
by this Court or they are not supported by the
record. ECF Nos. 214, 216. First, the Court
explicitly found punitive damages were not appropriate in
this case. ECF No. 209. Second, the Court did not sua
sponte grant a setoff to George because this relief was
raised in his pleadings either directly or through his
request of “such other and further relief as this Court
may deem just and proper.” ECF Nos. 44, 88, 89, 173.
Third, other than a single calculation using compounded
interest, no evidence was presented at trial to support
compounded interest applied in this case. See
Pl.'s Ex. 234. Lastly, based upon the evidence, the Court
found both sisters lived at 9313 Horseshoe Circle in Fort
Mill, South Carolina for a period of time, and, thus, Mary
did benefit from George's payment toward the
mortgage. Therefore, their motions for
reconsideration or to alter or amend the judgment are denied.
addition, the motion made by George, Diane, Superior Tile,
and Superior Stone did not present new evidence nor pointed
out a clear legal error or manifest injustice of this
Court. In addition, a substantial reason to set
aside the judgment was not provided. First, George is
indebted because he was jointly responsible for the funds
being removed from the Trust, and he benefitted when the
funds were deposited into his joint account with Diane.
Therefore, he is jointly and severally responsible to return
the funds to the Trust. Second, whether the funds remaining
in the Trust are sufficient to cover its expenses is
uncertain, and, thus, it is not appropriate for George to
deduct his one-third interest from the funds owed to the
Trust prior to payment. Finally, with regard to the
calculation of prejudgment interest, the breach of fiduciary
duty claim is contract-based. See Tyson v. North Carolina
Nat. Bank, 286 S.E.2d 561, 565 ( N.C. 1982)
(“[A]ny failure to perform in compliance with the
duties as a fiduciary is tantamount to a breach of
contract.”); see also Bruce v. N Carolina Nat.
Bank, 303 S.E.2d 561, 563-64 ( N.C. Ct. App. 1983). The
Trust is an express trust and “[i]n such instances the
breach of the trust is in effect and, usually, in fact a
breach of contract, express or implied. Actions thereon are
necessarily based on the contract and the breach
thereof.” Teachey v. Gurley, 199 S.E. 83, 87 (
N.C. 1938). Therefore, prejudgment interest was properly
calculated from the date of breach, not the claim's
filing date. See N.C. Gen. Stat. § 24-5 (2003)
(stating interest accrues from the date of breach for
contract actions). Therefore, their motion to amend the
judgment and, in the alternative, for a new trial is denied.
above reasons, the motions to reconsider, alter or amend the