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Gary v. Lowcountry Medical Transport, Inc.

Court of Appeals of South Carolina

May 23, 2018

Angel Y. Gary as Personal Representative of the Estate of Blondell M. Gary, Respondent,
v.
Lowcountry Medical Transport, Inc., American Medical Response, Inc., d/b/a Access2Care, and Eugene A. Kirkland, In re: Charles Gary, Purported Surviving Spouse, Defendants, Of whom Charles Gary, Purported Surviving Spouse, is the Appellant. Appellate Case No. 2016-000222

          Heard September 19, 2017

          Appeal From Hampton County Perry M. Buckner, III, Circuit Court Judge

          Joseph Dawson, III, of North Charleston, for Appellant.

          Richard Alexander Murdaugh, Bert Glenn Utsey, III, and Austin Howell Crosby, all of Peters Murdaugh Parker Eltzroth & Detrick, PA, of Hampton, for Respondent.

          LOCKEMY, C.J.

         In this action Charles Gary asserts the circuit court erred by determining he was not Blondell Gary's husband at the time of her death and not an heir to her estate. Charles asserts the estate should be estopped from taking a position contradictory to its pleadings in previous cases. We affirm.

         FACTS

         Though the record is not clear as to dates, it is clear Charles and Blondell were married and that marriage produced two children. Subsequently, Charles married Doretha Chisolm on July 31, 1982. Charles and Doretha finalized their divorce on January 21, 2001. Prior to finalizing their divorce, Charles remarried Blondell on November 30, 1999, and they lived together as husband and wife until Blondell's death.

         On February 16, 2012, Blondell and Charles were traveling in an ambulance operated by Lowcountry Medical Transport when the driver "recklessly and negligently lost control of the vehicle, left the roadway, and collided with a tree." Blondell died as a result of her injuries.

         Subsequently, Angel Gary, the natural daughter of Charles and Blondell, filed a petition to be appointed the personal representative of her mother's estate. The application requested the "[n]ames and addresses of intestate heirs who are not devisees." Angel indicated Charles Gary was Blondell's spouse and that Blondell had two daughters and two sons. The probate court appointed Angel as the personal representative of her mother's estate.

         On November 8, 2012, Angel filed suit on her mother's behalf against Lowcountry Medical Transport. Angel alleged a single cause of action for negligence and requested actual and punitive damages. In her complaint, Angel alleged, "Blondell Gary (hereinafter Blondell), on behalf of her husband, Charles Gary, contracted with [Lowcountry Medical Transport] to provide non-emergency medical transport on the day in question."

         The parties entered into a settlement agreement on September 14, 2015, wherein Angel agreed to dismiss the estate's lawsuit against Lowcountry Medical in exchange for $2, 250, 000.

         On December 14, 2015, Angel Gary filed a petition to determine heirship of her mother's estate. Angel asserted, "Since the time of her initial appointment as Personal Representative, [she] has become aware of certain facts that call into question whether Charles Gary was married to [Blondell]." Specifically, Angel asserted, "(1) Charles Gary was married to another woman when he unlawfully attempted to marry Blondell Gary, (2) Blondell Gary did not possess the requisite intent to marry Charles Gary, (3) no marriage ceremony ever took place, and (4) that any alleged marriage is void." Angel asserted Charles married Doretha Chisholm on July 31, 1982, and the couple divorced between December 13, 2000, and January 22, 2001. Charles and Blondell's marriage certificate stated the couple was married on November 30, 1999. Accordingly, Angel alleged any marriage was void and Charles was therefore not an heir to Blondell's estate.

         Charles denied he was already married when he married Blondell. [1] He also alleged "[t]he Estate is judicially bound by the admissions in its pleadings that Mr. Gary is the surviving spouse and a beneficiary of the Estate of Blondell M. Gary." Charles also asserted "[t]he Estate's challenge to Mr. Gary['s] status as a beneficiary is barred[] because Judge Buckner's November 13, 2015, Consent Order of Dismissal with Prejudice [of the wrongful death suit] acts as an adjudication on ...


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