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Fisher v. Huckabee

Supreme Court of South Carolina

February 28, 2018

Betty Fisher, on behalf of the estate of Alice Shaw-Baker, Petitioner,
v.
Bessie Huckabee, Kay Passailaigue Slade, Sandra Byrd, and Peter Kouten, Respondents. Appellate Case No. 2016-000320

          Heard October 19, 2017

         ON WRIT OF CERTIORARI TO THE COURT OF APPEALS

         Appeal from Charleston County J. C. Nicholson Jr., Circuit Court Judge

          John Hughes Cooper, of the John Hughes Cooper, P.C., of Mount Pleasant, Lisa Fisher, of the Law Offices of Lisa Fisher, of Long Beach, California, pro hac vice, both for Petitioner.

          Evan Smith, of the Evan Smith Law Firm, LLC, of Charleston, and Warren W. Wills III, of the Law Office of W. Westbrook Wills III, of Folly Beach, both for Respondents.

          FEW, JUSTICE

         The question we address in this appeal is who may bring a civil action on behalf of the estate of a deceased person when the personal representative of the estate is also a potential defendant in the action. The answer is found in section 62-3-614 of our Probate Code, which provides, "A special administrator may be appointed . . . in circumstances where a general personal representative cannot or should not act."

         I. Facts and Procedural History

         Alice Shaw-Baker lived in Charleston and had no immediate family. She allegedly reached an agreement with Bessie Huckabee, Kay Passailaigue Slade, and Sandra Byrd that if they would care for her in her final years, she would leave them the assets of her estate. In her last will-executed in 2001-she left her entire estate to Huckabee, Slade, and Byrd, and named Huckabee the personal representative. Shaw-Baker died in February 2009 at the age of seventy-nine.

         Betty Fisher is Shaw-Baker's niece and closest living relative. Shortly after Shaw-Baker's death, Fisher filed an action in probate court challenging the 2001 will and the appointment of Huckabee as personal representative. Fisher removed the probate action to circuit court. On May 14, 2009, Fisher filed what she called a "Motion for Temporary Injunction" in the probate action in which she requested to remove Huckabee as the personal representative. Fisher specifically alleged in the motion "Shaw-Baker's estate has a survival action against Huckabee" as one of the reasons Huckabee should be removed. As an alternative to the removal of Huckabee, Fisher requested that attorney Frank Barnwell be appointed special administrator pursuant to section 62-3-614 of the South Carolina Code (Supp. 2017). Fisher made no suggestion, however, that the special administrator might bring a survival action.

         On February 24, 2012, purporting to act as Shaw-Baker's "real representative, " Fisher brought this action in circuit court against Huckabee, Slade, and Byrd, and against Peter Kouten-a lawyer who represented the first three. Her primary allegation in this action is that Huckabee, Slade, and Byrd breached their duty to take suitable care of Shaw-Baker, causing Shaw-Baker to incur damages during her lifetime. Fisher brought the action under the survival statute-section 15-5-90 of the South Carolina Code (2005).

         The defendants moved for summary judgment under Rule 56 of the South Carolina Rules of Civil Procedure, claiming Fisher did not have standing to bring the survival action. The record indicates the Motion for Temporary Injunction Fisher filed almost three years earlier was still pending in the probate action at the time the summary judgment motion was filed. However, Fisher never asked the circuit court-in the probate action or the survival action-to appoint a special administrator for the purpose of bringing the survival action. The circuit court dismissed the action. The court of appeals affirmed. Fisher v. Huckabee, 415 S.C. 171, 781 S.E.2d 156 (Ct. App. 2015). We granted Fisher's petition for a writ of certiorari to review the dismissal of the action.

         II. Analysis

         The question of who may bring a civil action arises under Rule 17(a) of the South Carolina Rules of Civil Procedure, which provides, "Every action shall be prosecuted in the name of the real party in interest." As the court of appeals has recognized, the real party in interest is "'the party who, by the substantive law, has the right sought to be enforced.' It is ownership of the right sought to be enforced which qualifies one as a real party in interest." Bank of Am., N.A. v. Draper, 405 S.C. 214, 220, 746 S.E.2d 478, 481 (Ct. App. 2013). The substantive law governing the estates of deceased persons is the South Carolina Probate Code. See generally S.C. Code Ann. ยง 62-1-100(b)(1) (Supp. 2017) (providing "the [Probate] Code applies to ...


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