Betty Fisher, on behalf of the estate of Alice Shaw-Baker, Petitioner,
Bessie Huckabee, Kay Passailaigue Slade, Sandra Byrd, and Peter Kouten, Respondents. Appellate Case No. 2016-000320
October 19, 2017
OF CERTIORARI TO THE COURT OF APPEALS
from Charleston County J. C. Nicholson Jr., Circuit Court
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.
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.
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
Facts and Procedural History
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.
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.
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
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
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. § 62-1-100(b)(1) (Supp. 2017) (providing
"the [Probate] Code applies to ...