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Personal Care, Inc. v. Theos

Court of Appeals of South Carolina

February 20, 2019

Personal Care, Inc., Appellant,
Jerry N. Theos; Uricchio, Howe, Krell, Johnson, Toporek, Theos & Keith, PA; Cheryl D. Shoun; and Taylor, Shoun, Bowely & Byrd, LLC, Respondents. Appellate Case No. 2016-001266

          Heard November 7, 2018

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

          Thomas A. Pendarvis and Christopher W. Lempesis, Jr., both of Pendarvis Law Offices, PC, of Beaufort; Christian Stegmaier and Kelsey Jan Brudvig, both of Collins & Lacy, PC, of Columbia; and John Keith Blincow, Jr., of Blincow Griffin Law, PC, of Charleston; all for Appellant.

          M. Dawes Cooke, Jr. and Phillip S. Ferderigos, both of Barnwell Whaley Patterson & Helms, LLC, of Charleston, for Respondent Jerry N. Theos and Respondent Theos & Keith, PA; Karen Elizabeth Spain and Jennifer Hess Thiem, both of K&L Gates, LLP, of Charleston, for Respondent Cheryl D. Shoun; Oana Dobrescu Johnson, of Oana D. Johnson, Attorney at Law, of Charleston, for Respondent Taylor Bowley & Byrd, LLC.

          LOCKEMY, C.J.

         In this appeal, Personal Care, Inc., argues the circuit court erred in denying its motion to restore a legal malpractice action against its former attorneys based upon a finding the statute of limitations had expired. Personal Care also contends the circuit court applied an incorrect standard when failing to find the statute of limitations begins to run in a legal malpractice context when the underlying case is resolved against the client. We affirm.


         Personal Care is a medical transport company operating in the Lowcountry. In September 2009, the company retained attorneys Jerry Theos of Uricchio, Howe, Krell, Jacobson, Toporek, Theos, and Kieth, PA, and Cheryl D. Shoun of Taylor, Shoun, Bowley & Byrd (collectively, Respondents) to investigate claims against a former employee, Hattie Askew. According to Personal Care, Askew was using its propriety information to set up a competing company, Low Country Medical Transport, Inc. On September 14, 2009, Personal Care directed Theos to send a letter to Askew demanding she refrain from alleged wrongful activity, including soliciting Personal Care clients and defrauding insurers with illegitimate billing practices. The letter was simultaneously sent to Low Country Dialysis, a third-party medical services provider that frequently employed private medical transport.

         On December 10, 2009, Theos filed the underlying action against Askew in Charleston County on behalf of Personal Care (the Askew lawsuit), asserting claims related to Askew's alleged use of Personal Care's propriety and confidential information. Askew filed her answer on March 9, 2010, asserting various defenses as well as a claim of improper venue. In addition, Askew asserted a counterclaim for defamation stemming directly from the publication of Theos's September 14, 2009 letter to Low Country Dialysis.

         On March 19, 2010, Shoun sent an email to Bernie Cignavitch, a principal at Personal Care, notifying him they had "received an Answer and Counterclaim on behalf of [Askew] in this action" and requesting Personal Care's insurance information for defense and indemnification purposes. Later that day, Shoun's paralegal sent a copy of the pleadings to Cignavitch by email. Thereafter, between March 26, 2010, and June 7, 2010, Shoun sent five separate emails to Cignavitch referencing Askew's answer and counterclaim. In a June 7, 2010 email, Shoun attached a copy of a discovery request she had sent to Askew's attorney that sought information regarding damages "as a result of the letter sent September 14, 2009, as alleged in the Defendant's Counterclaim." [1] That same month, Shoun sent an invoice to Personal Care for fees associated with defending the counterclaim, which Personal Care paid in full.

         In July 2010, the circuit court ordered a change of venue from Charleston to Hampton County. On July 12, 2012, following a mediation session, Cignavitch sent an email to Shoun and Theos asking, "Why are they suing me? What did I do wrong? What slander did I commit?? I don't understand?" Theos replied:

As we previously indicated to you and as we have discussed in the past, in particular during Mediation, [Askew] asserts . . . a cause of action for "defamation." The basis for the claim is the letter sent on Personal Care's behalf on September 14, 2009. . . . As we have previously advised you, we believe and contend that their counterclaim is meritless, as truth is an absolute defense to such a claim.

         In August 2012, Theos moved to be relieved as Personal Care's counsel, citing a conflict of interest under Rules 1.7 and 3.7, SCRCP. The motion was based on the belief that Theos could no longer represent Personal Care in the Askew lawsuit given the likelihood he would have to testify regarding the defamation claim precipitated by the September 14, 2009 letter. The circuit court granted the motion in November 2012 but allowed Personal Care sixty days to find new counsel, which they did.

         On March 8, 2013, Personal Care commenced a legal malpractice action against Respondents over the handling of the Askew lawsuit. Personal Care did not contemporaneously file an expert affidavit, however, instead claiming it had a "good faith basis to believe the expiration of the statute of limitations is imminent."[2] Personal Care then filed an amended, verified complaint on April 19, 2013, containing the affidavit. In its amended complaint, Personal Care alleged professional negligence premised on the claims that Theos's 2009 letter exposed the company to liability and forced it to incur additional legal costs in defending the counterclaim; Shoun and Theos failed to notify the company of the counterclaim until more than two years after it was filed; Theos's late withdrawal from the case jeopardized Personal ...

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