Petition for Writ of Certiorari — Lisa Fisher, Petitioner v. Bessie Huckabee
Supreme Court briefJun 17, 2019
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APPENDIX TABLE OF CONTENTS
FISHER ET AL. V. HUCKABEE ET AL.
APPELLATE CASE 2018-000566
Opinion of the Supreme Court of South Carolina
(December 12, 2018) ........................................... 1a
Opinion of the Supreme Court of South Carolina
(Reissued) (January 16, 2019) ........................... 6a
Order of the Supreme Court of South Carolina
Granting Petition for Rehearing
(January 16, 2019)............................................ 12a
IN THE MATTER OF ALICE SHAW-BAKER
COURT OF COMMON PLEAS
Order of the Court of Common Pleas
(July 23, 2018) .................................................. 14a
Order of the Court of Common Pleas
(July 9, 2018) .................................................... 18a
Order of the Court of Common Pleas
(April 3, 2018) ................................................... 28a
Entry of Judgment in a Civil Case
(March 21, 2018) ............................................... 31a
APPENDIX TABLE OF CONTENTS (Cont.)
FISHER V. HUCKABEE
APPELLATE CASE 2017-000743
Per Curiam Order of the Supreme Court of South
Carolina (December 12, 2018).......................... 48a
Opinion of the Court of Appeals of South Carolina
(December 21, 2016) ......................................... 50a
Order of the Supreme Court of South Carolina
Denying Petition for Rehearing
(January 16, 2019)............................................ 72a
IN RE CONSERVATORSHIP OF ALICE SHAW-BAKER
PROBATE COURT
Order Freezing Assets
(October 14, 2011) ............................................ 74a
Order Appointing Special Fiduciary
(September 28, 2011)........................................ 76a
Order Appointing Lisa Fisher as Guardian and
Conservator (November 19, 2008) ................... 80a
Order Denying Motions for Reconsideration and
Opposition of Probate Court Order Appointing Special Fiduciary, Motion to Strike, and
Renewed Motion for Approval of Expenses of
Guardian and Conservator
(October 14, 2011) ............................................ 93a
APPENDIX TABLE OF CONTENTS (Cont.)
STATUTORY TEXT
State Court Constitutional Provisions,
Statutes and Rules ........................................... 97a
OTHER ITEMS
Remittitur in Ex Parte Cooper in Appellate Case
No. 2018-000662 (December 12, 2018) .......... 105a
Letter to Office of South Carolina Disciplinary
Counsel (September 27, 2018) ....................... 107a
App.1a
OPINION OF THE SUPREME COURT
OF SOUTH CAROLINA
(DECEMBER 12, 2018)
THE STATE OF SOUTH CAROLINA
IN THE SUPREME COURT
________________________
BETTY FISHER AND LISA FISHER,
Appellants,
v.
BESSIE HUCKABEE, KAY PASSAILAIGUE
SLADE AND SANDRA BYRD,
Respondents.
IN THE MATTER OF THE
ESTATE OF ALICE SHAW-BAKER.
________________________
Appellate Case No. 2018-000566
Appeal From Charleston County
Thomas L. Hughston, Jr., Circuit Court Judge
Memorandum Opinion No. 2018-MO-039
PER CURIAM
Having carefully reviewed the record, and pursuant to Rule 220(b)(1), SCACR:
1. We affirm the jury verdict upholding the validity
of Alice Shaw-Baker’s last will pursuant to the following
authorities: In re Estate of Pallister, 363 S.C. 437,
App.2a
447, 611 S.E.2d 250, 256 (2005) (explaining an action
to determine the validity of a will or to contest a will
is an action at law); York v. Conway Ford, Inc., 325
S.C. 170, 174, 480 S.E.2d 726, 728 (1997) (“In an
action at law, on appeal of a case tried by a jury, our
scope of review extends merely to the correction of
errors of law; a factual finding of the jury will not be
disturbed on appeal unless a review of the record discloses that there is no evidence which reasonably
supports the jury’s finding.”); First Sav. Bank v.
McLean, 314 S.C. 361, 363, 444 S.E.2d 513, 514 (1994)
(noting when a party fails to cite authority or when
the argument is simply a conclusory statement, the
party is deemed to have abandoned the issue on appeal).
Moreover, we find that the purported erroneous exclusion of evidence in no manner affected the jury
verdict upholding Shaw-Baker’s last will. See Jenkins
v. Waterfront Emp’rs-Int’l Longshoremen Ass’n Pension Welfare & Vacation Fund, 260 S.C. 277, 282,
195 S.E.2d 598, 600 (1973) (“It is, of course, well
settled that the admission or rejection of proffered
testimony is largely within the sound discretion of
the trial judge and that his exercise of such discretion will not be disturbed on appeal unless it can be
shown that there was an abuse of discretion amounting
to an error of law and that an appellant has been
prejudiced thereby.”).
2. We have independently reviewed the evidence
concerning Appellants’ request to impose a constructive trust over the probate and non-probate assets in
favor of animal charities. Our review of the evidence is
in accord with that of the trial court. Appellants have
no standing to assert the imposition of a constructive
trust; Lisa Fisher’s argument in support of standing
App.3a
borders on frivolity. We affirm pursuant to the
following authorities: Sea Pines Ass’n for Prot. of
Wildlife, Inc. v. S.C. Dep’t of Nat. Res., 345 S.C. 594,
600, 550 S.E.2d 287, 291 (2001) (“To have standing,
one must have a personal stake in the subject matter
of the lawsuit. In other words, one must be a real
party in interest. A real party in interest is one who
has a real, material, or substantial interest in the
subject matter of the action, as opposed to one who
has only a nominal or technical interest in the action.
A [] person does not have standing unless he has
sustained, or is in immediate danger of sustaining,
prejudice from an . . . action.” (emphasis added)
(internal citations omitted) (internal quotation marks
omitted)); S.C. Code Ann. § 62-7-405(c) (Supp. 2018)
(“The settlor of a charitable trust, the trustee, and
the Attorney General, among others may maintain a
proceeding to enforce the trust.”).
3. We reverse the trial court’s award of sanctions against Betty Fisher, in its entirety, for three
reasons. See Pee Dee Health Care, P.A. v. Estate of
Thompson, 424 S.C. 520, 538 n.11, 818 S.E.2d 758,
768 n.11 (2018) (“The decision to impose sanctions is
one in equity, and thus the appellate court reviews
the circuit court’s factual findings de novo. If the
appellate court agrees with the factual findings, then
it reviews the circuit court’s decision to impose sanctions and the amount of sanctions for an abuse of discretion.” (internal citation omitted)); Patel v. Patel,
359 S.C. 515, 529, 599 S.E.2d 114, 121 (2004) (“An
abuse of discretion occurs either when a court is controlled by some error of law, or where the order is
based upon findings of fact lacking evidentiary support.”). First, the sanctions awarded against Betty
App.4a
Fisher do not mathematically add up to the claimed
total in the trial court’s final order and, at times, lack
factual support in the record. See Patel, 359 S.C. at
529, 599 S.E.2d at 121 (stating a decision that lacks
factual support in the record amounts to an abuse of
discretion). Second, the trial court imposed $78,596.02
in sanctions against Betty Fisher for improper expenditure of estate assets when it is uncontroverted
Betty Fisher had no control over those assets and
nothing to do with any allegedly improper expenditures. Third, and perhaps most importantly, although
Betty Fisher was a named party in all of the numerous
actions involving Shaw-Baker’s estate, she was not in
charge of the actions and merely went along with
what her daughter—Lisa Fisher, an attorney in
California—advised her. From our review of the record,
it does not appear Betty Fisher individually engaged
in egregious, sanctionable conduct. As a result, we
find the decision to impose sanctions against Betty
Fisher was an abuse of discretion and vacate all
judgments against her.
4. We affirm in part and reverse in part the trial
court’s award of sanctions against Lisa Fisher. Lisa
Fisher has certainly engaged in abusive litigation
tactics that amount to sanctionable conduct. However,
regarding the specific sanctions amount imposed on
her, we find the trial court’s orders contain addition
and subtraction errors, double-counting of certain
portions of the award, a lack of evidence as to other
portions of the award, and a number of other errors,
mathematical and otherwise.1 Nonetheless, we are
1 We recognize the trial court drafted the orders, which Respondents’ counsel lamented at oral argument. The errors in terms
of the sanctions award are numerous. For example, although
App.5a
able to affirm a sanctions award of $16,680.28
against Lisa Fisher, but only to that extent. We have
endeavored to further reconcile the various numbers
cited in the sanctions orders, yet despite our best
efforts, are unable to do so. Accordingly, we reverse
the balance of the sanctions award, including the
award of attorneys’ fees to Respondents’ counsel. See
Patel, 359 S.C. at 529, 599 S.E.2d at 121.
In sum, we: (1) affirm the jury verdict; (2) affirm
the refusal to impose a constructive trust on probate
and non-probate assets; (3) reverse all judgments
against Betty Fisher; (4) reverse all judgments against
Lisa Fisher in favor of Respondents’ counsel; and (5)
affirm as modified the award of sanctions against
Lisa Fisher in favor of Shaw-Baker’s estate in the
amount of $16,680.28. Given the protracted litigation
in this and related suits and the desperate need to
finish the seemingly endless fighting over ShawBaker’s estate, we decline to remand any of these
matters to the circuit court for further consideration.
This case is concluded.
AFFIRMED IN PART, REVERSED IN PART.
BEATTY, C.J., KITTREDGE, HEARN, FEW
and JAMES, JJ., concur.
this is by no means the exclusive error, in the 2018 orders dated
June 29, July 9, and July 23, the trial court stated it was
crediting Lisa Fisher with $11,462.85 in proper expenditures of
estate assets for certain categories of expenses, including
paying the property taxes and insurance on Shaw-Baker’s real
property in the years following her death. However, the trial
court did not actually credit her with that, or any, amount from
the remaining total of improper estate expenditures it listed.
App.6a
OPINION OF THE SUPREME COURT
OF SOUTH CAROLINA (REISSUED)
(JANUARY 16, 2019)
THE STATE OF SOUTH CAROLINA
IN THE SUPREME COURT
________________________
BETTY FISHER AND LISA FISHER,
Appellants,
v.
BESSIE HUCKABEE, KAY PASSAILAIGUE
SLADE AND SANDRA BYRD,
Respondents.
IN THE MATTER OF THE
ESTATE OF ALICE SHAW-BAKER.
________________________
Appellate Case No. 2018-000566
Appeal From Charleston County
Thomas L. Hughston, Jr., Circuit Court Judge
Memorandum Opinion No. 2018-MO-039
PER CURIAM
Having carefully reviewed the record, and pursuant to Rule 220(b)(1), SCACR:
1. We affirm the jury verdict upholding the validity
of Alice Shaw-Baker’s last will pursuant to the following
authorities: In re Estate of Pallister, 363 S.C. 437,
App.7a
437, 447, 611 S.E.2d 250, 256 (2005) (explaining an
action to determine the validity of a will or to contest
a will is an action at law); York v. Conway Ford, Inc.,
325 S.C. 170, 174, 480 S.E.2d 726, 728 (1997) (“In an
action at law, on appeal of a case tried by a jury, our
scope of review extends merely to the correction of
errors of law; a factual finding of the jury will not be
disturbed on appeal unless a review of the record discloses that there is no evidence which reasonably
supports the jury’s finding.”); First Sav. Bank v.
McLean, 314 S.C. 361, 363, 444 S.E.2d 513, 514 (1994)
(noting when a party fails to cite authority or when
the argument is simply a conclusory statement, the
party is deemed to have abandoned the issue on appeal).
Moreover, we find that the purported erroneous exclusion of evidence in no manner affected the jury
verdict upholding Shaw-Baker’s last will. See Jenkins
v. Waterfront Emp’rs-Int’l Longshoremen Ass’n Pension Welfare & Vacation Fund, 260 S.C. 277, 282,
195 S.E.2d 598, 600 (1973) (“It is, of course, well
settled that the admission or rejection of proffered
testimony is largely within the sound discretion of
the trial judge and that his exercise of such discretion will not be disturbed on appeal unless it can be
shown that there was an abuse of discretion amounting
to an error of law and that an appellant has been
prejudiced thereby.”).
2. We have independently reviewed the evidence
concerning Appellants’ request to impose a constructive trust over the probate and non-probate assets in
favor of animal charities. Our review of the evidence is
in accord with that of the trial court. Appellants have
no standing to assert the imposition of a constructive
trust; Lisa Fisher’s argument in support of standing
App.8a
borders on frivolity. We affirm pursuant to the
following authorities: Sea Pines Ass’n for Prot. of
Wildlife, Inc. v. S.C. Dep’t of Nat. Res., 345 S.C. 594,
600, 550 S.E.2d 287, 291 (2001) (“To have standing,
one must have a personal stake in the subject matter
of the lawsuit. In other words, one must be a real
party in interest. A real party in interest is one who
has a real, material, or substantial interest in the
subject matter of the action, as opposed to one who
has only a nominal or technical interest in the action.
A [ ] person does not have standing unless he has sustained, or is in immediate danger of sustaining, prejudice from an . . . action.” (emphasis added) (internal
citations omitted) (internal quotation marks omitted));
S.C. Code Ann. § 62-7-405(c) (Supp. 2018) (“The settlor
of a charitable trust, the trustee, and the Attorney
General, among others may maintain a proceeding to
enforce the trust.”).
3. We reverse the trial court’s award of sanctions
against Betty Fisher, in its entirety, for three reasons.
See Pee Dee Health Care, P.A. v. Estate of Thompson,
424 S.C. 520, 538 n.11, 818 S.E.2d 758, 768 n.11
(2018) (“The decision to impose sanctions is one in
equity, and thus the appellate court reviews the circuit
court’s factual findings de novo. If the appellate court
agrees with the factual findings, then it reviews the
circuit court’s decision to impose sanctions and the
amount of sanctions for an abuse of discretion.” (internal
citation omitted)); Patel v. Patel, 359 S.C. 515, 529,
599 S.E.2d 114, 121 (2004) (“An abuse of discretion
occurs either when a court is controlled by some error
of law, or where the order is based upon findings of
fact lacking evidentiary support.”). First, the sanctions
awarded against Betty Fisher do not mathematically
App.9a
add up to the claimed total in the trial court’s final
order and, at times, lack factual support in the
record. See Patel, 359 S.C. at 529, 599 S.E.2d at 121
(stating a decision that lacks factual support in the
record amounts to an abuse of discretion). Second, the
trial court imposed $78,596.02 in sanctions against
Betty Fisher for improper expenditure of estate assets
when it is uncontroverted Betty Fisher had no control over those assets and nothing to do with any
allegedly improper expenditures. Third, and perhaps
most importantly, although Betty Fisher was a named
party in all of the numerous actions involving ShawBaker’s estate, she was not in charge of the actions
and merely went along with what her daughter—
Lisa Fisher, an attorney in California—advised her.
From our review of the record, it does not appear Betty
Fisher individually engaged in egregious, sanctionable
conduct. As a result, we find the decision to impose
sanctions against Betty Fisher was an abuse of discretion and vacate all judgments against her.
4. We affirm in part and reverse in part the trial
court’s award of sanctions against Lisa Fisher. Lisa
Fisher has certainly engaged in abusive litigation tactics
that amount to sanctionable conduct. However, regarding the specific sanctions amount imposed on her, we
find the trial court’s orders contain addition and subtraction errors, double-counting of certain portions of
the award, a lack of evidence as to other portions of
the award, and a number of other errors, mathematical and otherwise.1 Nonetheless, Nonetheless, pursu1 We recognize the trial court drafted the orders, which Respondents’ counsel lamented at oral argument. The errors in terms
of the sanctions award are numerous. For example, although
this is by no means the exclusive error, in the 2018 orders dated
App.10a
ant to Rule 11, SCRCP, we are able to affirm a sanctions award of $16,680.28 against Lisa Fisher, but only
to that extent.2 We have endeavored to further reconcile
the various numbers cited in the sanctions orders, yet
despite our best efforts, are unable to do so. Accordingly, we reverse the balance of the sanctions award,
including the award of attorneys’ fees to Respondents’
counsel. See Patel, 359 S.C. at 529, 599 S.E.2d at 121.
In sum, we: (1) affirm the jury verdict; (2) affirm
the refusal to impose a constructive trust on probate
and non-probate assets; (3) reverse all judgments
against Betty Fisher; (4) reverse all judgments against
Lisa Fisher in favor of Respondents’ counsel; and (5)
affirm as modified the award of sanctions against Lisa
Fisher in favor of Shaw-Baker’s estate in the amount
of $16,680.28. Given the protracted litigation in this
and related suits and the desperate need to finish the
seemingly endless fighting over Shaw-Baker’s estate,
we decline to remand any of these matters to the circuit
court for further consideration. This case is concluded.
June 29, July 9, and July 23, the trial court stated it was crediting
Lisa Fisher with $11,462.85 in proper expenditures of estate
assets for certain categories of expenses, including paying the
property taxes and insurance on Shaw-Baker’s real property in
the years following her death. However, the trial court did not
actually credit her with that, or any, amount from the remaining total of improper estate expenditures it listed.
2 Although the trial court’s imposition of sanctions on Lisa Fisher
was initially based on violations of Rule 11 and the South Carolina
Frivolous Civil Proceedings Sanctions Act, S.C. Code Ann.§§ 1536-10 to -100 (Supp. 2018), we clarify our partial affirmance of the
sanctions award rests solely on Lisa Fisher’s violations of Rule 11.
App.11a
AFFIRMED IN PART, REVERSED IN PART.
BEATTY, C.J., KITTREDGE, HEARN, FEW
and JAMES, JJ., concur.
App.12a
ORDER OF THE SUPREME COURT
OF SOUTH CAROLINA GRANTING
PETITION FOR REHEARING
(JANUARY 16, 2019)
THE SUPREME COURT OF COURT CAROLINA
________________________
BETTY FISHER and LISA FISHER,
Appellants,
v.
BESSIE HUCKABEE,
KAY PASSAILAIGUE SLADE and SANDRA BYRD,
Respondents.
________________________
No. 2018-000566
Before: Donald Wayne BEATTY, Chief Justice, Kaye
Gorenflo HEARN, John Cannon FEW, John W.
KITTREDGE, George C. JAMES, JR., Judges.
After careful consideration of the cross petitions
for rehearing, the Court grants Appellants’ petition
for rehearing, dispenses with further briefing, and
substitutes the attached opinion for the opinion
previously filed in this matter. The Court denies
Respondents’ petition for rehearing.
/s/ Donald Wayne Beatty
C.J.
App.13a
/s/ John W. Kittredge
J.
/s/ Kaye Gorenflo Hearn
J.
/s/ John Cannon Few
J.
/s/ George C. James, Jr.
J.
Columbia, South Carolina
January 16, 2019
App.14a
ORDER OF THE COURT OF COMMON PLEAS
(JULY 23, 2018)
IN THE COURT OF COMMON PLEAS
FOR THE NINTH JUDICIAL CIRCUIT
STATE OF SOUTH CAROLINA
COUNTY OF CHARLESTON
________________________
BETTY FISHER and LISA FISHER,
Plaintiffs,
v.
BESSIE HUCKABEE,
KAY PASSAILAGUE SLADE, and SANDRA BYRD,
Defendants.
________________________
Case No.: 2009-CP-10-3010
Before: Thomas L. HUGHSTON, Jr., Presiding Judge.
Relevant Procedural History
THIS MATTER is currently before me on both
parties’ post-trial motions. I previously ruled on these
motions and imposed Judgments against Plaintiffs and
their attorneys by Order filed March 21, 2018. Thereafter, both parties filed motions to reconsider and
Plaintiffs filed for a writ of supersedeas. I ruled on
those motions and amended the Judgments against
Plaintiffs and their attorneys by Order filed May 29,
2018. Then on May 31, 2018, Defendants’ counsel filed
App.15a
a motion to reconsider the Judgments requesting a
combined additional $15,953.75 for services performed
after the March 21, 2018 Order. Plaintiffs filed an
objection to the current and any additional award of
attorney’s fees. However, unbeknownst to me, the
day before my May 29th Order the Supreme Court
issued a temporary stay on all Orders pending its
ruling on Plaintiffs’ writ of supersedeas. On June 13,
2018, the Supreme Court denied Plaintiffs’ writ and
vacated my May 29, 2018 Order. As a result, I revisited the parties’ motions to reconsider and issued my
Order on June 29, 2018. I then discovered a scrivener’s error—Betty Fisher was omitted from the judgments I imposed—and corrected that in my July 9,
2018 Order. Subsequently, Defendants filed a Motion
to Reconsider the issue of attorney’s fees and counsel
for attorney John Hughes Cooper requested clarification as to the judgments against him. I now clarify the
judgments below and, for the reasons stated herein,
Grant Defendants’ motion.
Defendants’ Motion to Reconsider
Award of Attorney’s Fees
I initially awarded Defendants their attorneys’
fees in the amount of $157,539.93. After consideration
of Plaintiffs’ objections and further review of Defendants’ attorneys’ affidavits, I subtracted amounts that
appeared to be attributable to other related actions.
After review of Defendants’ motion to reconsider and
upon further consideration of this issue, I realize that
I incorrectly evaluated Defendants’ affidavits. I was
under the impression that Attorney Wills substituted
attorney Kouten as counsel for both the Estate and
the individual Defendants. As it turns out, attorney
App.16a
Kouten maintained his representation of the Personal
Representative until his appointment to Probate Judge
in 2017. As for the reduction of attorney Crowley’s
fees, I incorrectly reduced her fees for actions regarding
the ejectment of the tenant at Alice Shaw-Baker’s
home. The actions reflected in her affidavit were in
furtherance of my April 3, 2018 Order requiring the
unauthorized occupant to vacate the home. The motion
also maintains that she segregates and itemizes her
hours related to other actions in a separate invoice
and her affidavit reduces her totals fees for misattributed hours.
For these reasons, I Grant Defendants’ motion and
amend my award of attorney’s fees for attorneys Peter
Kouten and Jessica Crowley. I award attorney Peter
Kouten his reasonable attorney’s fees in the amount
of $78,872.43 and attorney Jessica Crowley her reasonable attorney’s fees in the amount of $32,461.75.
Clarification of Judgments
As it currently stands, the record of judgments
on the Public Index page reflects two Judgments against
John Hughes Cooper—$253,969.31 and $65,151.34.
However, I intended to amend my Judgment against
attorney Cooper to reflect only those Judgments listed
in my July 9, 2018 Order. To clarify this, I now vacate
the Judgments listed in my March 21, 2018, Order.
The remainder of that Order remains effective. Likewise, my July 9, 2018 Order is also affirmed except
as modified herein. To add further clarity and avoid
ambiguities, the following is a current summary of
the Judgments imposed by me: $78,596.02 against
Betty Fisher and Lisa Fisher, jointly and severally,
in favor of The Estate of Alice Shaw-Baker; $78,872.43
App.17a
against Betty Fisher, Lisa Fisher, and John Hughes
Cooper, jointly and severally, in favor of Peter A.
Kouten; $59,289.50 against Betty Fisher, Lisa Fisher,
and John Hughes Cooper, jointly and severally, in
favor of W. Westbrook Wills, III; and $32,461.75 against
Betty Fisher, Lisa Fisher, and John Hughes Cooper,
jointly and severally, in favor of Jessica L. Crowley.
This brings the total Judgment for improper expenditures to $78,596.02 and the total Judgment for
attorney’s fees to $170,623.68, which combines for a
total Judgment of $249,219.70.
AND IT IS SO ORDERED.
/s/ Thomas L. Hughston, Jr.
Presiding Judge
July 23, 2018
Charleston, South Carolina
App.18a
ORDER OF THE COURT OF COMMON PLEAS
(JULY 9, 2018)
IN THE COURT OF COMMON PLEAS
STATE OF SOUTH CAROLINA
COUNTY OF CHARLESTON
________________________
BETTY FISHER and LISA FISHER,
As Conservator for ALICE SHAW- BAKER,
Plaintiffs,
v.
BESSIE HUCKABEE, ET AL.,
Defendants.
________________________
Case No. 2009-CP-10-3010
Before: Thomas L. HUGHSTON, JR., Presiding Judge
This case is before me following a jury verdict
upholding the Will of Alice Shaw-Baker, and my
verdicts against the equitable claims of the Plaintiffs.
I wrote my Order affirming the jury’s decision and
ruling against Plaintiffs’ claims and filed it on March
21, 2018, and it was available online on March 22,
2018. I issued my next Order more than 10 days later
on April 3, 2018, without Plaintiffs filing any posttrial motions. The Supreme Court issued its Order on
April 10, 2018, and I conducted a hearing pursuant
to it on May 21, 2018. I took additional testimony
following another review by me of the entire record
App.19a
pertaining to this dispute beginning with the filing
for a Conservator/Guardian on July 31, 2008. One
cannot fully comprehend the total waste of time and
expense in this case without reading everything
including all the discovery of each side. It takes me
two days to read these voluminous files, and I have
read them two times trying to fully understand this
case, and particularly, the claims of the Plaintiffs. The
bottom line of it all is that there are no facts supporting
these claims made up by essentially strangers to
Alice Shaw-Baker and her friends.
Prior to the non-jury trial, Defendants moved to
dismiss this case following the Supreme Court’s decision
in the companion case involving these parties filed
2/28/18. I should have granted this. However, out of
an abundance of caution, and my own preference for
a full factual development, and since the parties were
present and ready to proceed, I reserved ruling and
took testimony. I now grant Defendants’ Motion to
Dismiss these equitable claims for lack of standing.
Plaintiffs do not own these claims for “animal welfare”
interests. One can only imagine the scope of additional
litigation and attorney’s fees if I should mandate a
constructive trust to benefit “animal welfare and rescue
organizations.” Plaintiffs do not represent such groups.
They have no standing to bring these claims.
I have also considered the equitable principles
that relate to a constructive trust and find by the
overwhelming weight of the evidence that Plaintiffs
have failed to prove the need for a constructive trust.
See Cases from S.C., re: constructive trust. Alice
Shaw-Baker’s property will go exactly as she intended
for it to go, both by her Will and by contract.
App.20a
Alice Shaw-Baker was a 79 year old lady suffering
from undisputed physical and mental problems. Friends
became concerned about her welfare and contacted an
elder support hotline through the City of Charleston.
Plaintiffs were notified in writing and this nightmare
began. Plaintiffs had practically no contacts with Alice
Shaw-Baker prior to this. Lisa Fisher successfully
maneuvered the professional elder care Co-Conservator/
Guardian, Jane Orenstein out, and her actions as
sole Conservator/Guardian begin and continue to this
day, according to her. It is important to read Judge
Curry’s November 19, 2008 Order for it is dispositive
of Plaintiffs’ contention that Alice Shaw-Baker revoked
her Will. She was an “Incapacitated Person”. Section
62-5-101 (1) S.C. Code of Laws. Among other things,
Judge Curry Ordered, “neither Alice Shaw-Baker nor
anyone on her behalf may revise or revoke her Will or
execute a new Will, unless specifically ordered by
this Court.” No one sought to change this Order. This
alone should have told Plaintiffs not to claim the Will
was revoked under extremely suspicious and questionable circumstances shown in the record and recited
in my prior Order. This Order is in addition to the
settled law that a mentally incompetent person lacks
capacity to revoke a Will. Without question, Alice
Shaw-Baker lacked capacity to revoke her Will.
“The one who first states a case seems right,
until the other comes and cross-examines.” Proverbs
18:17. Or as C. Tolbert Goolsby, Jr. says in Sweet
Potato Biscuits and Other Stories, p.113, “A man’s
story seems right, until you look into it.”
In Plaintiffs twenty six page Verified Complaint
they allege eleven causes of action in one hundred
and forty six paragraphs. However, at the non-jury
App.21a
trial Plaintiffs only claimed and presented evidence
in an attempt to support a constructive trust over her
entire estate. Since the Will has been upheld, this
claim relates to the non-probate assets being Alice
Shaw-Baker’s deferred compensation, pension and life
insurance. Plaintiffs claim a constructive trust to “go
to animal welfare and rescue projects only.” It is true
that Alice Shaw-Baker had dogs as her family, and
wanted to ensure that any that survived her were
taken care of by Kay Passailaigue Slade. None survived
her, the last pre-deceasing her in 2008. This was very
upsetting to her, and is reflected in various ways in
the record. However, she never changed her Will
leaving the residue of her estate (after specific bequests)
to Kay Passailaigue “to be hers in fee simple absolute,
to include the care of my dogs . . . .” It is hard to
imagine anything more clear than that. Further, it is
clear that Alice Shaw-Baker through notes and records
regarding her deferred compensation, retirement and
insurance, discussed leaving these to various “animal
welfare” organizations by Will and/or by contract.
However, it is finally established clearly by the
memorandum of a call from her to her insurance
company: “I have received your letter dated March 6,
1996 and the beneficiary forms naming the John
Ancrum Society for the Prevention of Cruelty to
Animals and have discussed this with my attorney.
We have decided not to change the beneficiary and
name my estate as beneficiary. Ok. I will order the
file to make sure your estate is named as beneficiary
and if it isn’t, I will prepare beneficiary forms
accordingly.” Likewise, the beneficiary of her deferred
compensation was shown on a form of 2/14/01 to be
“Kay Passailaigue, Relationship Custodian of Pets
and Rescue—Governed by Will.” Also, a prior form of
App.22a
7/24/90 had her estate as beneficiary. The combination of her Will and these contracts are entirely contrary to Plaintiffs claims of a constructive trust to
benefit unnamed “animal welfare” organizations. The
course of these contracts might be somewhat confusing, but the final result is not. After consulting
with her attorney, she decided to leave these to her
estate as governed by her Will, that is, Kay Passailaigue. As much as Plaintiffs profess it should be
otherwise, it is not so by Alice Shaw-Baker’s own
words spoken prior to her dementia.
I again address the issue of sanctions for this
soon to be nine year old frivolous suit. The standard
for determining this is an objective one. Plaintiffs
may subjectively say, “We are just doing what Alice
Shaw-Baker wanted us to do.” Intent and result are
shown by their acts, not their words.
Frivolous determinations are governed by a reasonable attorney standard. Here, two questions arise.
One, would a reasonable attorney bring and maintain
a suit now in its ninth year claiming that an undoubtedly incompetent person had revoked her otherwise
valid will by tearing it on January 1, 2009, following
Judge Curry’s Order of November 19, 2008, when
only that attorney supposedly witnessed the tearing
and no proof of such an act exist other than that
attorneys say so, and that attorney’s mother is an
heir if the Will was revoked along with some other
heirs who are not parties, or notified of this suit, and
whose existence was just revealed? The answer is an
unqualified “No”. Two, would a reasonable attorney
bring and maintain a suit now in its ninth year claiming
an equitable constructive trust over the entire Estate
given all the clear facts and circumstances in the
App.23a
record contrary to such a claim? Again, the answer is
an unqualified “No”.
This should have been a simple guardian/conservator/personal representative case. Instead it has by
Plaintiffs’ frivolous acts gone on for nine years and
counting. This is unconscionable and an abuse of the
court system. Every avenue available to delay has
been used and abused by Plaintiffs for no good reason.
I have condensed the history of this case as follows:
Over the past nine years, in this and other related
cases, Plaintiffs have appealed and asked for reconsideration of almost every decision of every Court.
They have filed nine appeals, four Writs of Certiorari,
three petitions for rehearing, and seven motions for
reconsideration. To date, they have not prevailed on
any substantive matters with the exception of one
remand on the issue of conservator fees. It should be
noted that Plaintiffs’ first appeal was from what was
essentially a mutual restraining Order. Imagine that!
As I have previously written, I deeply regret signing
that Order.
I now tum to the monetary figures used in factoring my sanctions award. According to Family Services’
inventory and appraisement, The Estate of Alice ShawBaker was originally valued at $388,055.63. That
figure includes the value of real estate, investments,
life insurance, annuities, and anticipated annual
receipts. After subtracting anticipated receipts, the
Estate’s initial value was $353,746.81. According to
Lisa Fisher’s own accounting, $39,549.43 was spent
following Judge Curry’s May 11, 2009 Order terminating her conservatorship. She also unreasonably
spent $25,000 for an air ambulance on the day of Alice
Shaw-Baker’s death, after being told by a medical
App.24a
doctor that she would not survive the trip. She does,
however, claim that she obtained a partial refund but
such a refund is not reflected by her accounting.
Pursuant to § 62-5-424(C)(9), a conservator must
obtain court approval prior to making charitable donations from the Estate. Lisa Fisher failed to observe
this statute by making twenty unauthorized charitable
donations in the amount of $2,555—$105 coming
before the termination of the conservatorship—to
various animal charities
The Probate Court has approved fees amounting
to $67,185.92. An additional $20,621.34 was spent on
unapproved fees, $13,941.59 coming before the termination of the conservatorship, totaling $87,807.26 in
paid fees, which amounts to 25% of the Estate’s
value. However, there remains pending requests for
approval of fees totaling $74,422.00. If those requests
are approved, the total fees paid would amount to
$162,229.26 or 46% of the Estate. As it currently
stands, a total of $173,148.66 from the Estate has been
spent, which represents 49% of the Estate. Approval
of the outstanding fee request would almost completely deprive the Estate of its value. That comes
without any consideration of the amount of attorney’s
fees accumulated from Feb. 2009-Feb. 2018 which
totals $314,837.35 or 89.25% of the Estate. After
totaling all the paid, unpaid, requested, and accumulated fees, the total amounts to $564,873.87, which
represents 160% of the Estate.
Despite the many egregious acts that occurred in
this case, Lisa Fisher did care for Alice Shaw-Baker
and her home by employing caregivers, landscapers,
and by continuing to pay the taxes and insurance.
For this, I credit her $11,462.85 towards the sanc-
App.25a
tions award—$1,000 for the caregiver expenses after
the date of Alice Shaw-Baker’s death, $200 for hair
charge, $2,370 for lawn care, and $7,892.85 for taxes
and insurance. I have also decided to remove the
$7,000 loss of opportunity costs and treble damages
against Lisa Fisher. As a result, the new sanctions
award comes from $13,941.59 spent of unapproved
fees after the termination of the conservatorship,
$39,549.43 for monies spent after the termination of
the conservatorship, $25,000 for an air ambulance on
day of Alice Shaw-Baker’s death, and $105 for unauthorized charitable contributions before the Order terminating the conservatorship for a total of $78,596.02.
I impose this as a judgment against Betty and Lisa
Fisher, jointly and severally, in favor of Defendants.
I have also decided to award the Defendants’
attorneys their reasonable attorney’s fees in this action. Factors to be considered by the trial court in
making a determination as to attorney’s fees are: (1)
the nature, extent and difficulty of the legal services
rendered; (2) the time and labor necessarily devoted
to the case; (3) the professional standing of counsel;
(4) the contingency of compensation; (5) the fee customarily charged in the locality for similar legal services;
and (6) the beneficial results obtained.
According the Defendants’ three attorneys’ affidavits, they are requesting fees in the amount of
$173,493.68 for services performed through May 30,
2018. Lisa Fisher has objected to this amount on the
basis that some of the fees pertain to hours worked
for the separate, but related, actions. I have subtracted
the amount I believe is attributed to those actions.
As for attorney Peter A. Kouten, he has requested
$78,872.43 for services rendered from February 2009–
App.26a
October 2017. I have deducted those fees accumulated after the October 14, 2013 Order for Substitution of Counsel in addition to fees for services performed in relation to actions required for probating
the Estate, the Conservatorship (GC) action, and the
related circuit court actions. I therefore find his reasonable attorney’s fees to be $35,315.00. As for attorney
W. Westbrook Will, III, he has requested $59,289.50
in attorney’s fees. I find this amount to be reasonable.
As for attorney Jessica L. Crowley, she has requested
$35,331.75 in attorney’s fees. After subtracting those
fees related to the ejectment action and conservatorship action, I find her reasonable attorney’s fees to be
$25,512.50. Thus, after careful consideration of the
factors set forth above for assessing attorney’s fees, I
find Defendants’ total attorneys’ fees in the amount
of $120,117.00 are, unfortunately, justified under that
analysis. I impose this as a judgment against Lisa
Fisher, Betty Fisher, and John Hughes Cooper, jointly
and severally, in favor of Defendants’ attorneys—
$35,315.00 in favor of attorney Peter A. Kouten,
$59,289.50 in favor of attorney W. Westbrook Wills,
III, and $25,512.50 in favor of attorney Jessica L.
Crowley.
Again, I reference Bleak House. Jarndyce vs.
Jarndyce ended when the money in the estate was
consumed by attorneys’ fees, etc., after many years of
litigation. I now doubt if even that would stop Plaintiffs from pursuing this frivolous litigation given what
has now “boxed them in” . . . sanctions, damages, and
costs which they must pay unless somehow they are
successful on their appeals for the first time in nine
years.
App.27a
I cannot conclude without saying that I have sympathies for Lisa Fisher. It is painful for me to see and
hear her put herself and others through this. She is well
educated with a law degree and other degrees. She
can do much that is worthwhile and of benefit to her
clients and herself. Something has happened to throw
her off track, and to, I can only conclude, become
obsessed with this and other situations. This is indeed
unfortunate, and I can only hope that something will
happen to help her move on and away from this. She
needs help-legal and perhaps otherwise. I hope she
gets it.
Plaintiffs are in Contempt of Court for repeatedly
refusing to supply Ordered financial information. I
Order them confined in the Charleston County Detention Center and fined $100.00 per day starting today
until they comply. I have never in 33 years held an
attorney or party in Contempt of Court. I stay this
during the Plaintiffs’ appeal.
Plaintiffs’ post-trial motions are denied and my
previous Order affirmed except as modified herein.
IT IS SO ORDERED.
/s/ Thomas L. Hughston, Jr.
Presiding Judge
July 9, 2018
Charleston, South Carolina
App.28a
ORDER OF THE COURT OF COMMON PLEAS
(APRIL 3, 2018)
IN THE COURT OF COMMON PLEAS
FOR THE NINTH JUDICIAL CIRCUIT
STATE OF SOUTH CAROLINA
COUNTY OF CHARLESTON
________________________
BETTY FISHER and LISA FISHER,
Plaintiffs,
v.
BESSIE HUCKABEE,
KAY PASSAILAGUE SLADE, and SANDRA BYRD,
Defendants.
________________________
Case No.: 2009-CP-10-3010
In the Matter of the Estate of Alice Shaw-Baker.
Charleston County Probate No.: 2009-ES-10-0378
Before: Thomas L. HUGHSTON, Jr., Presiding Judge.
THIS MATTER is before me following a jury trial
that resulted in a Verdict upholding the Will of Alice
Shaw-Baker, and rejecting the Plaintiffs claim that
she had revoked the Will by her words and acts. I
denied Plaintiffs’ post-trial motions regarding this,
and confirmed the Verdict. Plaintiffs also made equitable claims regarding the Estate. I denied all these
claims based on my findings as to the credibility of
the witnesses, and totality of the evidence. In addi-
App.29a
tion, I imposed sanctions against John Hughes Cooper,
Lisa Fisher, and Betty Fisher. I now Order the
following:
1.
The Charleston County Clerk of Court, Julie
J. Armstrong, is to deliver all monies being
held by her in trust from National Life Insurance Company in the amount of $22,642.76,
S.C. Budget and Control Board in the amount
of $2,189.36 and $4,000.00, and South Carolina Deferred Compensation Program in the
amount of $75,246.24, including interest to
Defendant Kay Passailaigue Slade.
2.
Farmers and Merchants Bank of Long Beach
California is to make payable all monies held
in a savings account and a checking account,
both in the name of Alice Shaw-Baker Conservatorship, Lisa Fisher Conservator, to
Bessie Huckabee, Personal Representative
of the Estate of Alice Shaw-Baker. Additionally, Edward Jones on 1124 Sam Rittenberg
Boulevard in Charleston, SC, is to make
payable all monies held in the name of Alice
Shaw-Baker, Lisa Fisher Conservator, to
Bessie Huckabee, Personal Representative
of the Estate of Alice Shaw-Baker. The monies
shall be delivered to Bessie Huckabee’s attorney, W. Westbrook Wills, III at P.O. Box 822,
Folly Beach, SC 29439.
3.
Ejectment of the occupant of the house
located at 306 Cassina Road, Parkwood
Estates, Charleston, South Carolina, within
seven (7) days of the date of service of this
Order. The occupant must turn the keys over
to the Charleston County sheriff’s deputy, or
App.30a
deliver them to the attorney for the Defendants, W. Westbrook Wills, III.
4.
I grant the Motion of John Hughes Cooper,
his partner John Townsend Cooper, and his
law firm John Hughes Cooper, P.C. to withdrawal as counsel for Plaintiffs. Plaintiffs are
granted reasonable time to seek another South
Carolina attorney, but nothing herein enlarges
the time for Plaintiffs to file an appeal.
5.
As Additional sanctions for Plaintiffs and their
attorneys, they are enjoined and restrained
from filing any motions in the Circuit Court.
Any future filings in this case must be filed
with the Supreme Court of South Carolina.
AND IT IS SO ORDERED.
/s/ Thomas L. Hughston, Jr
Presiding Judge
April 3, 2018
Charleston, South Carolina
App.31a
ENTRY OF JUDGMENT IN A CIVIL CASE
(MARCH 21, 2018)
IN THE COURT OF COMMON PLEAS
STATE OF SOUTH CAROLINA
COUNTY OF CHARLESTON
________________________
BETTY FISHER, ET AL.,
Plaintiffs,
v.
BESSIE HUCKABEE, ET AL.,
Defendants.
________________________
Case No. 2009-CP-10-3010
Before: Thomas L. HUGHSTON, JR., Presiding Judge
Disposition Type
DECISION BY THE COURT. This action came
to trial or hearing before the court. The issues have
been tried or heard and a decision rendered.
IT IS ORDERED AND ADJUDGED: See attached
order (formal order to follow) by the Court:
Order Information
This order ends the case.
App.32a
INFORMATION FOR THE JUDGMENT INDEX
Complete this section below when the judgment
affects title to real or personal property or if any
amount should be enrolled. If there is no judgment
information, indicate “N/A” in one of the boxes
below.
Judgment in
Favor of
Judgment
Against
Judgment
Amount To be
Enrolled
Bessie
Huckabee, Kay
Passailague
Slade, and
Sandra Byrd
Lisa Fisher,
John Hughes
Cooper, & Betty
Fisher
$253,969.31
The Estate of
Alice-Shaw
Baker
Lisa Fisher
$229,599.51
The Estate of
Alice-Shaw
Baker
John Hughes
Cooper
$65,151.34
If applicable, describe the property, including tax map
information and address, referenced in the order:
N/A
The judgment information above has been provided by
the submitting party. Disputes concerning the amounts
contained in this form may be addressed by way of
motion pursuant to the SC Rules of Civil Procedure.
Amounts to be computed such as interest or additional taxable costs not available at the time the form
and final order are submitted to the judge may be
provided to the clerk.
App.33a
Note: Title abstractors and researchers should refer
to the official court order for judgment details.
E-Filing Note: In E-Filing counties the Court will electronically sign this form using a separate electronic
signature page.
/s/ Thomas L. Hughston, Jr.
Circuit Court Judge
Judge Code 2008
Date: March 21, 2018
App.34a
ORDER OF THE COURT OF COMMON PLEAS
(MARCH 21, 2018)
IN THE COURT OF COMMON PLEAS
STATE OF SOUTH CAROLINA
COUNTY OF CHARLESTON
________________________
BETTY FISHER and LISA FISHER,
Plaintiffs,
v.
BESSIE HUCKABEE,
KAY PASSAILAGUE SLADE, and SANDRA BYRD,
Defendants.
________________________
Case No. 2009-CP-10-3010
In the Matter of the Estate of Alice Shaw-Baker.
Charleston County Probate No.: 2009-ES-10-0378)
Before: Thomas L. HUGHSTON, JR., Presiding Judge
“In Hell there will be nothing but law . . .” (Grant
Gilmore). “Justice delayed is justice denied.” (William
E. Gladstone). Also, I reference Dickens’ Bleak House
and Kafka’s The Trial for what Defendants and their
attorneys must feel like after nine years of this
frivolous litigation.
This case is before me following a jury trial that
resulted in a Verdict upholding the Will of Alice
Shaw-Baker, and rejecting the claim of the Plaintiffs
App.35a
that she had revoked that Will by her words and
acts. I deny Plaintiffs’ post-trial motions regarding
this, and confirm this Verdict.
Plaintiffs made equitable claims regarding the
Estate. I deny all these claims based on my findings
as to the credibility of the witnesses, and totality of
the evidence. Essentially, I find no reason in believable
facts and equity to do any of the acts requested. I
make all these decisions by a standard of overwhelmingly clear and convincing evidence considering this case as a whole, and that is the only way one
can ever begin to understand this case—as a whole.
(See the Appendices, testimony and evidence.)
The facts of this case began when a concerned
neighbor and friends of Alice Shaw-Baker asked for
help since they thought she was mentally and physically
unable to care for herself, and as part of the process
to appoint a conservator, notice of this proceeding
was given to Plaintiffs. The actions of Plaintiffs and
their attorneys resulted in this nine year legal nightmare for Defendants.
Since I am confident there will be an immediate
appeal of my decisions, consistent with the prior acts
of the Plaintiffs and their attorneys, I decline to write
about the tortuous history and undisputed facts. I
leave that to the Justices of the Supreme Court of
South Carolina. They can find the facts in this equity
case. It is sufficient for me to say and I do find that
overwhelming facts, law and equities are against
Plaintiffs’ claims.
In addition to contesting the Will, Plaintiffs
claim that Shaw-Baker’s life insurance, S.C. Retirement
Account, and Deferred Compensation account should
App.36a
be given to “animal charities,” because she was an
“animal lover,” raised and showed Chihuahua dogs,
and had shown a longtime interest in doing something
like that. Plaintiffs ignore the fact that though she
often talked about doing this, she never signed the
documents that would have done so. She was an
intelligent, fiercely independent, and resourceful lady
who executed many Wills, had many communications
with her excellent attorneys and agents for her life
insurance and other non-probate assets. She never
changed where that money was to go and it will go as
she directed and not as Plaintiffs frivolously claim it
should go by their deviously concocted suit. The trust
involved in this case is the trust between genuine
friends established over many years, and not a halfbaked scheme by people and their attorneys who had
minimum contacts with her or her friends prior to
this lady’s demented condition. I trust the same people
she trusted to “Do right because it is right.” (W Clement Stone).
Remaining are issues of attorneys fees, sanctions, and other appropriate relief. Any Restraining
Order restraining Defendants from acting under the
Will is vacated. I deeply regret signing two Orders
almost nine years ago that were meant to be temporary
for Plaintiffs, except for the bond requirement. That
remains. All assets in Plaintiffs possession shall be
immediately delivered to the Charleston County Clerk
of Court, 100 Broad Street, Suite 106 Charleston,
South Carolina 29401-2258, and be held by her until
further Order. This is not stayed for any appeal.
Also, Plaintiffs are to deliver the keys for the house
at 306 Cassina Road, Charleston, South Carolina to
the Charleston County Clerk of Court. Non-rent paying
App.37a
occupant shall vacate this house within one week after
being notified to do so by Defendants attorney, and
shall commit no waste. These actions are not stayed
during an appeal under Rule 241, Rule 62, and S.C.
Code Section 18-9-150.
Sanctions are governed by S.C. Code Section 1536-10.
§ 15-36-10. Frivolous lawsuits; signing pleadings;
imposition of sanctions; notice and opportunity to
respond; reporting violations.
(A)
(1) A pleading filed in a civil or administrative
action on behalf of a party who is represented by
an attorney must be signed by at least one
attorney of record who is an active member of
the South Carolina Bar or who is admitted to
practice in the courts of this State and must
include the address and telephone number of the
attorney signing the document.
(2) A document filed in a civil or administrative
action by a party who is not represented by an
attorney must be signed by the party and must
include the address and telephone number of the
(3) The signature of an attorney or a pro se
litigant constitutes a certificate to the court that:
(a) the person has read the document;
(b) a reasonable attorney in the same circumstances would believe that under the facts
his claim or defense may be warranted under
the existing law or, if his claim or defense is
not warranted under the existing law, a
App.38a
good faith argument exists for the extension,
modification, or reversal of existing law;
(c) a reasonable attorney in the same circumstances would believe that his procurement,
initiation, continuation, or defense of a civil
cause is not intended merely to harass or
injure the other party; and
(d) a reasonable attorney in the same circumstances would believe his claim or defense is
not frivolous, interposed for delay, or brought
for any purpose other than securing proper
discovery, joinder of parties, or adjudication
of the claim or defense upon which the
proceedings are based.
(4) An attorney or pro se litigant participating
in a civil or administrative action or defense may
be sanctioned for:
(a) filing a frivolous pleading, motion, or document if:
(i)
the person has not read the frivolous
pleading, motion, or document;
(ii) a reasonable attorney in the same circumstances would believe that under
the facts, his claim or defense was clearly
not warranted under existing law and
that a good faith or reasonable argument
did not exist for the extension, modification, or reversal of existing law;
(iii) a reasonable attorney presented with
the same circumstances would believe
that the procurement, initiation, continuation, or defense of a civil cause was
App.39a
intended merely to harass or injure the
other party; or
(iv) a reasonable attorney presented with the
same circumstances would believe the
pleading, motion, or document is frivolous, interposed for merely delay, or
merely brought for any purpose other
than securing proper discovery, joinder
of parties, or adjudication of the claim
or defense upon which the proceedings
are based;
(b) making frivolous arguments a reasonable
attorney would believe were not reasonably
supported by the facts; or
(c) making frivolous arguments that a reasonable attorney would believe were not warranted under the existing law or if there is
no good faith argument that exists for the
extension, modification, or reversal of existing
law.
(B)
(1) If a document is not signed or does not
otherwise comply with this section, it must be
stricken unless it is signed promptly or amended
to comply with this section after the omission is
called to the attention of the attorney or the
party.
(2) If a document is signed in violation of this
section, or an attorney or pro se litigant has
violated subsection (A)(4), the court, upon its
own motion or motion of a party, may impose
upon the person in violation any sanction which
App.40a
the court considers just, equitable, and proper
under the circumstances.
(C)
(1) At the conclusion of a trial and after a
verdict for or a verdict against damages has
been rendered or a case has been dismissed by a
directed verdict, summary judgment, or judgment notwithstanding the verdict, upon motion
of the prevailing party, the court shall proceed to
determine if the claim or defense was frivolous.
An attorney, party, or pro se litigant shall be
sanctioned for a frivolous claim or defense if the
court finds the attorney, party, or pro se litigant
failed to comply with one of the following conditions:
(a) a reasonable attorney in the same circumstances would believe that under the facts,
his claim or defense was clearly not warranted
under existing law and that a good faith or
reasonable argument did not exist for the
extension, modification, or reversal of existing
law;
(b) a reasonable attorney in the same circumstances would believe that his procurement,
initiation, continuation, or defense of the
civil suit was intended merely to harass or
injure the other party; or
(c) a reasonable attorney in the same circumstances would believe that the case or
defense was frivolous as not reasonably
founded in fact or was interposed merely for
delay, or was merely brought for a purpose
other than securing proper discovery, joinder
App.41a
of proposed parties, or adjudication of the
claim or defense upon which the proceedings are based.
(2) Unless the court finds by a preponderance
of the evidence that an attorney, party, or pro se
litigant engaged in advancing a frivolous claim
or defense, the attorney, party, or pro se litigant
shall not be sanctioned.
(D) A person is entitled to notice and an opportunity to respond before the imposition of sanctions
pursuant to the provisions of this section. A court or
party proposing a sanction pursuant to this section
shall notify the court and all parties of the conduct
constituting a violation of the provisions of this section
and explain the basis for the potential sanction imposed.
Upon notification, the attorney, party, or pro se litigant
who allegedly violated subsection (A)(4) has thirty
days to respond to the allegations as that person considers appropriate including, but not limited to, by
filing a motion to withdraw the pleading, motion, document, or argument or by offering an explanation of
mitigation.
(E) In determining if an attorney, party, or a pro
se litigant has violated the provisions of this section,
the court shall take into account:
(1) the number of parties;
(2) the complexity of the claims and defenses;
(3) the length of time available to the attorney,
party, or pro se litigant to investigate and conduct
discovery for alleged violations of the provisions
of subsection (A)(4);
App.42a
(4) information disclosed or undisclosed to the
attorney, party, or pro se litigant through discovery and adequate investigation;
(5) previous violations of the provisions of this
section;
(6) the response, if any, of the attorney, party,
or pro se litigant to the allegation that he violated
the provisions of this section; and
(7) other factors the court considers just, equitable, or appropriate under the circumstances.
(F) In determining whether sanctions are appropriate or the severity of a sanction, the court shall
consider previous violations of the provisions of this
section.
(G) Sanctions may include:
(1) an order for the party represented by an
attorney or pro se litigant to pay the reasonable
costs and attorney’s fees of the prevailing party
under a motion pursuant to this section. Costs
shall include, but not be limited to, the following:
the time required of the prevailing party by the
frivolous proceeding, and travel expenses, mileage,
parking, costs of reports, and any additional reasonable consequential expenses of the prevailing
party resulting from the frivolous proceeding;
(2) an order for the attorney to pay a reasonable fine to the court; or
(3) a directive of a nonmonetary nature, including injunctive relief, designed to deter a future
frivolous action or an action in bad faith.
App.43a
(H) If the court imposes a sanction on an attorney
in violation of the provisions of this section, the court
shall report its findings to the South Carolina Commission of Lawyer Conduct.
(I) This act shall not alter the South Carolina
Rules of Civil Procedure or the South Carolina Appellate Court Rules.
(J) The provisions of this section shall not
apply where an attorney or pro se litigant establishes
a basis to proceed with litigation, or to assert or controvert an issue therein, that is not frivolous, which
includes a good faith argument for an extension, modification, or reversal of the existing law.
(K) The provisions of this section apply in addition to all other remedies available at law or in equity.
(L) The amount requested for damages in a
pleading may not be considered in a determination of
a violation of the provisions of this section.
(M) All violations of the provisions of this section
must be reported to the South Carolina Supreme Court
and a public record must be maintained and reported
annually to the Governor, Senate, and House of Representatives.
Plaintiffs’ commencement and continuation of this
action is sanctionable under Rule 11. As is set forth
herein, it is clear to me that Plaintiffs’ claims were
entirely frivolous and, for that reason, I find Plaintiffs
and their attorneys are subject to sanction under Rule
11, and the South Carolina Frivolous Proceedings Act.
Plaintiffs and their attorneys are subject to sanctions under the Court’s inherent authority. As the
United States Supreme Court held, Courts have an
App.44a
inherent authority to award attorney’s fees where
the losing party has “acted in bad faith, vexatiously,
or for oppressive reasons.” Plaintiffs’ conduct through
the case appears to have been nothing but vexatious,
that is, brought without sufficient grounds, and the
maintenance of this completely frivolous claim can
only be characterized as unreasonable. Plaintiffs’
claims were completely baseless and subject to sanctions
based upon the inherent authority of courts to sanction
litigants who act in bad faith, vexatiously, that is,
without :roper grounds, or for oppressive and improper
purposes. It is not their actual intent to harm, but
harm is the reasonable foreseeable outcome.
Some equate the judge’s job to that of an umpire
to call balls and strikes, and of referees to call
offsides and out of bounds—a judge of physical facts.
This ignores the elements of judgment and intent.
These are part of calling a bean ball in baseball, a
technical foul in basketball and un-sportsman like
conduct in football. A judge, like these officials, must
sometimes determine intent. This is at the heart of
finding a frivolous suit.
I start with a procedural timeline found in Appendix I. Plaintiffs have done nothing but delay justice
and harass Defendants. As Justice Few recently
wrote in a companion case: “This case was litigated
in confusion from the beginning.” Appellate case No.
2016-000320, filed February 28, 2018.
The jury trial and non-jury trials are perhaps
the best evidence of their frivolous actions. The claim
that the Will was revoked should have never been filed.
The only testimony on this came from Lisa Fisher.
She and only she claims to have seen Ms. Shaw-Baker
destroy a copy of her Will. Nothing corroborates this.
App.45a
If it did happen, I am sure Lisa Fisher would have
saved every scrap, put these in an envelope, made a
contemporary written summary of the events, and
presented this at trial. To me, her testimony is not
believable and I count it as nothing. The only reason
I do not call it perjury is that Alice Shaw-Baker is
now deceased and unavailable, and I am aware of the
standard for proof in a criminal trial. Even if it did
happen as described, this was an act of an incompetent
person with no legal effect. Also, Judge Curry’s Order
said she could not revoke her Will due to her incapacity.
These two facts alone should have been enough to tell
any reasonably competent lawyer not to file this suit.
These were two huge legal stop signs with bright
flashing red danger lights and said to any reasonably
competent attorney, “Go no further and if you do, you
travel at your own peril.”
I tum to the difficult issue of sanctions. This
involves calculations of Defendants’ losses for which
Plaintiffs and their attorneys should pay, and some
amount of money to tell them and persons who learn
about this to not engage in similar conduct. Defendants’
reasonable attorneys’ fees are $157,539.93. I Order
Plaintiffs and their attorneys to pay these reasonable
fees. In addition, Defendants have loss of opportunity
costs of $76,533.17 associated with all the assets they
should have received almost nine years ago. Attorney’s
fees plus lost opportunity cost equal $234,073.10. I
Order a Judgment in favor of Defendants and against
Plaintiffs and their attorneys, jointly and severally,
for $253,969.31, which includes prejudgment interest.
(See Appendix, Court’s Summary of Fees).
Sanctions for Lisa Fisher in addition to the
foregoing are in the nature of punishment. The several
App.46a
Unfair Trade Practices statutes and the Constitution
of the United States of America provide some guidance
and limits. This is the worst case of frivolous acts
that I have experienced. A deterrent is necessary to
warn her and others. Therefore, I award three times
actual damages to the Estate from Lisa Fisher being
$229,599.51, and Order a Judgment against her for
this. These calculations have had to be made despite
repeated efforts to get financial information from
Plaintiffs including threats of contempt of court. John
Hughes Cooper complied almost immediately. Also,
John Hughes Cooper is denied his requested attorney’s
fees and costs. Additionally, he should repay to the
Estate a sum of $65,151.34 he was paid for work he
says he did during the short period of time he was
involved with the conservatorship. I cannot imagine
what he did to earn this in what should have been a
simple matter of filling out forms if anything. Additionally, Lisa Fisher’s requested fees for alleged work
that she did as conservator/attorney of $67,814.50 is
denied. Also, she should repay any money she
received by her involvement in this frivolous case.
Summary of monetary sanctions and Judgments:
$253,969.31 against Lisa Fisher, John Hughes Cooper,
and Betty Fisher and in favor of Bessie Huckabee, Kay
Passailague, and Sandra Byrd; $229,599.51 against
Lisa Fisher and in favor of The Estate of Alice ShawBaker; $65,151.34 against John Hughes Cooper and in
favor of the Estate of Alice Shaw Baker.
I turn to additional sanctions. Lisa Fisher and
Betty Fisher are enjoined and restrained from spending
any money directly or indirectly controlled by them
personally or through any corporation of which she is
a part, with the exception of what I have Ordered her
App.47a
to immediately pay herein to the Clerk of Court. Of
course, an exception is made for reasonable costs
associated with their appeal, law practice, and ordinary
living expenses.
The frivolous actions of the attorneys will be
reported to the South Carolina Commission on Lawyer
Conduct.
I cannot conclude without mentioning the most
egregious waste of Alice Shaw-Baker’s money. On
February 24, 2009, Lisa Fisher spent $25,000 of her
own money (later reimbursed from the Estate) in an
attempt to fly Alice Shaw-Baker to California from
the Medical University of South Carolina from her
death bed supposedly for a beneficial visit. The real
purpose undoubtedly was to have her die in California,
ultimately avoid the jurisdiction of South Carolina
Courts, control the Estate, defeat the Will, and benefit
her mother and herself.
I hope that I have ruled on everything that is
before me. I give up everything to the Supreme Court
of South Carolina for their greater consideration and
ultimate decisions.
IT IS SO ORDERED.
/s/ Thomas L. Hughston, Jr.
Presiding Judge
March 21, 2018
Charleston, South Carolina
App.48a
PER CURIAM ORDER OF THE
SUPREME COURT OF SOUTH CAROLINA
(DECEMBER 12, 2018)
THE STATE OF SOUTH CAROLINA
IN THE SUPREME COURT
________________________
BETTY FISHER,
Petitioners,
v.
BESSIE HUCKABEE,
Respondent.
________________________
LISA FISHER,
Petitioners,
v.
BESSIE HUCKABEE,
Respondent.
________________________
Appellate Case No. 2017-000743
Memorandum Opinion No. 2018-MO-041
Appeal from Charleston County
J. C. Nicholson, Jr., Circuit Court Judge
Before: BEATTY, C.J., KITTREDGE,
HEARN, FEW and JAMES, JJ.
App.49a
PER CURIAM:
We granted Petitioners’ petition for a writ of
certiorari to review the court of appeals’ decision in
Fisher v. Huckabee, Op. No. 2016-UP-528 (S.C. Ct. App.
filed Dec. 21, 2016). In an opinion filed contemporaneously with this one, the Court affirmed the jury’s
verdict upholding the validity of Alice Shaw-Baker’s
last will, which renders moot Petitioners’ challenge
to the appointment of Respondent Bessie Huckabee
to serve as her personal representative. See Fisher v.
Huckabee, Appellate Case No. 2018-000566 (the will
contest). The gravamen of this case was whether Lisa
Fisher or a court-appointed special fiduciary should
retain the estate assets until the propriety of Huckabee’s appointment could be finally determined in the
will contest. Because Respondent Huckabee’s status as
personal representative has been finally determined,
we affirm that part of the court of appeals’ decision
which would require all estate assets to be delivered
to Huckabee, in her capacity as Shaw-Baker’s personal representative.
We affirm the lower courts’ determination that
Lisa Fisher is not entitled to any additional conservator
fees. We therefore reverse the court of appeals as to
this issue, removing the need for a remand.
As a result of our decision here, this matter does
not require any additional proceedings. This case is
concluded.
AFFIRMED IN PART, REVERSED IN PART.
BEATTY, C.J., KITTREDGE, HEARN, FEW and
JAMES, JJ., Concur.
App.50a
OPINION OF THE COURT OF APPEALS
OF SOUTH CAROLINA
(DECEMBER 21, 2016)
THE STATE OF SOUTH CAROLINA
IN THE COURT OF APPEALS
________________________
BETTY FISHER,
Appellant,
v.
BESSIE HUCKABEE,
Respondent.
BETTY FISHER,
Appellant,
v.
BESSIE HUCKABEE,
Respondent.
________________________
No. 2014-0020201
Appeal From Charleston County
J. C. Nicholson, Jr., Circuit Court Judge
Opinion No. 2016-UP-528
1 Consolidated with Appellate Case No. 2014-002028 and Appellate
Case No. 2014-002034.
App.51a
PER CURIAM
In this consolidated probate case, Appellants
Betty Fisher and Lisa Fisher separately appeal from
the circuit court’s affirmance of the probate court’s
orders appointing a special fiduciary, freezing assets,
and denying the Fishers’ motions for reconsideration,
arguing twenty-two issues summarized as the following:
(1) the circuit court erred in failing to consider the
Fishers’ Statement of Grounds or allow oral argument; (2) the probate court did not have jurisdiction
because the matter was on appeal; (3) Respondent
Bessie Huckabee did not have standing in the matter;
(4) the probate court’s order was void because Huckabee
failed to provide the required notice and violated
Rule 11, SCRCP; (5) the probate court erred in denying Lisa Fisher reasonable compensation; (6) the
probate court erred in freezing decedent’s accounts;
(7) the probate court erred in appointing a special
fiduciary; (8) the probate court erred in failing to
grant Lisa Fisher an extension; and (9) the probate
court erred in hearing the motion to appoint a special
fiduciary when statutory notice was not given. We
affirm in part and remand in part.
II.
Background Facts2
Lisa Fisher was appointed as Alice Shaw-Baker’s
guardian and conservator by order dated November
19, 2008. Peter A. Kouten was appointed as Shaw2 Additional background facts may be found in Fisher v. Huckabee,
415 S.C. 171, 173-75, 781 S.E.2d 156, 157-58 (Ct. App. 2015),
reh’g denied (Jan. 21, 2016), petition for cert. filed (Feb. 22,
2016) and In re Estate of Alice Shaw Baker, Op. No. 2015-UP359 (S.C. Ct. App. filed July 15, 2015), reh’g denied (Sept. 15, 2015).
App.52a
Baker’s guardian ad litem. After Shaw-Baker died on
February 25, 2009, and Huckabee was appointed personal representative based on her nomination in the
will, Lisa Fisher was discharged as the conservator
by order dated May 11, 2009. The order required Fisher
to provide an estate accounting and turn over all
estate assets within fifteen days of the date of the
order.
In May 2011, Huckabee filed a motion entitled,
“Motion to Appoint Special Fiduciary for Conservatorship Assets.” Huckabee alleged Lisa Fisher was
discharged as the conservator of Shaw-Baker by the
May 11, 2009 order, had been granted at least six
extensions to turn over the estate assets, and had not
filed annual accountings since 2008. Huckabee requested the court deny any further continuances, require
Lisa Fisher to file the delinquent accountings for
2009 and 2010, require her to release estate funds,
and to appoint a third-party special fiduciary to
accept all assets of the estate. At a hearing on the
motion, Huckabee argued Fisher did not appeal the
order discharging her as conservator, but it had been
two years and she had not turned over the estate assets.
Huckabee also argued that when Fisher finally
turned in the annual accountings, “it became clear
that the discharged conservator did not cease in her
actions as conservator” and had disbursed $80,500
from the estate after her authority ceased. Huckabee
requested the court appoint a special fiduciary to
accept the estate assets and that no further extensions
be granted to Fisher.
Fisher argued she had motions pending, including
a motion for a ninety-day extension and a motion to
strike Huckabee’s motion. Fisher also argued the
App.53a
court should strike the motion to appoint a special
fiduciary. Fisher’s motion to strike alleged the issue
was moot because she filed the missing accountings
with her motion; Kouten could not represent Huckabee
because he had been Shaw-Baker’s guardian ad litem;
and Kouten had not satisfied the Rule 11(a), SCRCP
requirement that a movant attempted in good faith
to resolve an issue prior to filing a motion unless the
movant certified that consultation would have served
no useful purpose. Fisher argued she had been
granted six extensions and was waiting for the appeals
in circuit court and the supreme court to be decided
prior to complying with the order to turn over the
estate assets. By order dated September 28, 2011,
the probate court denied Fisher’s motions to strike
and for an extension, granted the motion to appoint a
special fiduciary, and appointed Heyward Harvey,
Esq. to serve as the special fiduciary. The order
required Fisher to turn over the estate assets within
fifteen days.
Fisher moved for reconsideration, arguing the
probate court did not have jurisdiction over the
matter because an appeal was pending in the supreme
court; no evidence of her wrongdoing was produced at
the hearing; the probate court lacked statutory authority; Fisher had no ability to transfer the estate
because a motion to appoint Betty Fisher as special
administrator was pending in circuit court; and the
probate court order was void. Betty Fisher also filed
a motion as an “Interested Party” to void the September 28, 2011 order based on lack of notice and
Huckabee’s lack of standing. By order dated October
14, 2011, the probate court denied the motions. The
order also denied a pending “Renewed Motion for
App.54a
Approval of Fees and Expenses of Guardian and Conservator.” In a separate order dated October 14, 2011,
the probate court froze the assets in all of decedent’s
accounts.
Lisa Fisher moved to reconsider the denial of the
renewed motion for fees. Fisher argued her motion
was originally filed in July 2009 and the probate code
provided for fees. Fisher also moved to reconsider the
freezing of the assets, arguing the following: (1) the
probate court requires a conservator to deliver estate
assets to a “Duly Appointed” personal representative;
(2) she is entitled by the doctrine of laches to continue protecting the estate; (3) the probate court
lacked jurisdiction; (4) no party sought an order
freezing the assets; and (5) the orders violated due
process. On November 9, 2011, the probate court
denied the motions for reconsideration. Fisher and
Betty Fisher appealed to the circuit court.
At a hearing in the circuit court, the Fishers
argued Lisa Fisher had a statutory duty to turn over
the estate assets to a duly appointed personal representative and the order appointing Huckabee the personal representative was on appeal; thus, Fisher could
not turn over the assets. The Fishers also argued the
probate court did not have jurisdiction to appoint a
special fiduciary because an appeal was pending. Betty
Fisher next argued that as an interested party, she
was entitled to the statutorily-required notice of
twenty days before the probate court could consider a
motion to appoint a special fiduciary. Betty Fisher
further argued the Attorney General was entitled to
notice as an interested party (as a protector of
animal charities named in a prior will). Lisa Fisher
next argued the probate court refused to take any
App.55a
testimony and made factual findings without any
evidentiary support. Finally, Lisa Fisher argued the
probate court erred in denying her motion to be paid
fees as the conservator and in issuing orders freezing
the assets.
Huckabee argued the issues in the current matter
were unrelated to the pending appeals because they
were related to conservatorship of the assets rather
than personal representative matters. Huckabee also
argued that although there were no affidavits or testimony before the probate court, Lisa Fisher’s accountings
indicated she was spending money from the estate after
she was discharged, which was sufficient for the
probate court to appoint a special fiduciary. In Form
4 orders, the circuit court affirmed the probate court’s
orders. This appeal followed.
III. Standard of Review
On appeal from a final order of the probate court,
the circuit court must apply the same standard of
review that an appellate court would apply on appeal.
In re Howard, 315 S.C. 356, 361, 434 S.E.2d 254, 257
(1993). “The standard of review applicable to cases
originating in the probate court depends upon whether
the underlying cause of action is at law or in equity.”
In re Estate of Hyman, 362 S.C. 20, 25, 606 S.E.2d
205, 207 (Ct. App. 2004). The underlying nature of
the matter before the probate court was the appointment of a special fiduciary to manage the estate assets,
which we find akin to the removal of a personal
representative; thus, the action is in equity. See
Dean v. Kilgore, 313 S.C. 257, 259, 437 S.E.2d 154,
155 (Ct. App. 1993) (holding an action to remove a
personal representative appointed pursuant to the
App.56a
terms of a will is equitable in nature). If probate
proceedings are equitable in nature, then the circuit
court on appeal may make factual findings according
to its own view of the preponderance of the evidence.
Howard, 315 S.C. at 361-62, 434 S.E.2d 254, 257-58.
IV. Issues on Appeal3
1. Did the circuit court err in failing to consider
the Fishers’ statement of grounds for appeal and
failing to permit oral argument?4
2. Did the probate court lack jurisdiction because
the matter was on appeal?5
3. Did Huckabee lack standing?6
4. Was the probate court order void because
Huckabee failed to provide notice in violation of Rule
11, SCRCP?7
5. Did the probate court err in denying Lisa Fisher
reasonable compensation?8
3 We have combined the Fishers’ twenty-two issues on appeal
into nine issues as noted. As to Lisa Fisher’s brief in Appellate
Case No. 2014-002034, we have listed her issues as they appear
in the Statement of Issues on Appeal.
4 Betty Fisher v. Huckabee, Appellate Case No. 2014-002020
(“2020”)-issue 1; Lisa Fisher v. Huckabee, Appellate Case No.
2014-002028 (“2028”)-issue 1; Lisa Fisher v. Huckabee, Appellate
Case No. 2014-002034 (“2034”)-issue 1.
5 2020-issue 2; 2028-issues 2, 3, 4, 6.
6 2020-issue 4; 2028-issue 5.
7 2028-issue 10.
8 2034-issues 2, 3, 4.
App.57a
6. Did the probate court err in issuing orders
freezing assets?9
7. Did the probate court err in appointing a special
fiduciary?10
8. Did the probate court err in failing to grant
Lisa Fisher an extension?11
9. Did the probate court err in hearing the motion
to appoint a special fiduciary when statutory notice
was not given?12
V.
Law/Analysis
1. Failure to Consider Statement of Grounds or
Permit Oral Argument
The Fishers argue the circuit court erred in failing
to read the briefs prior to the hearing, depriving
them of further argument on the record, and failing
to make findings of fact. We disagree.
At the beginning of the hearing, the circuit court
noted on the record that it remembered the parties
from one of the previous cases. The Fishers’ attorney
began arguments, stating, “[W]e’ve briefed this extensively and we assume the Court has those briefs
and I’m not going to go into it.” The circuit court
judge stated, “Yes, I’ve got the briefs. I have not
looked at them but I have got them here. I will
probably have to look at them before I make a deci9 2034-issues 5, 6.
10 2028-issues 7, 8, 9.
11 2028-issue 11.
12 2020-issue 3; 2028-issue 12.
App.58a
sion. But go ahead. . . . If you can summarize the briefs,
that would be very helpful.” The Fishers’ attorney
responded, “That’s what I’m going to attempt to do,
Your Honor.” The judge stated, “You don’t have to
reiterate everything that’s in there . . . because I will
read them . . . [o]r my law clerk and-we both will
probably read them.” The court heard extensive arguments from counsel.
The hearing lasted from 10:22 a.m. until 11:13
a.m. The Fishers were permitted to fully argue the
issues. At the conclusion of the hearing, the Fishers
argued, “Your Honor, one thing for the record?” The
judge stated, “Thank you very much. I’ve heard
enough.” However, as the Fishers concede, the judge
next stated, “I’ll review it. I’ll review your memorand[a].
I’ll make them a part of the record. Okay? Thank y’all
very much.” The Fishers’ counsel replied, “Thank you.”
We find no error by the circuit court. Although the
circuit court sitting in an appellate capacity in an
equity action may make factual findings according to
its own view of the preponderance of the evidence,
deference to the probate court’s findings is appropriate
in circumstances where it is apparent from the record
that the credibility of the witnesses was a consideration. Macaulay v. Wachovia Bank of S.C., 351 S.C.
287, 293-94, 569 S.E.2d 371, 375 (Ct. App. 2002). In
this case, the accounting provided by Lisa Fisher
established unauthorized depletion of the estate assets
after Fisher was discharged as the conservator of the
estate by order filed May 11, 2009. Further, the
circuit court heard the Fishers’ arguments at the
hearing. We find no error. See Porter v. Labor Depot,
372 S.C. 560, 568, 643 S.E.2d 96, 100 (Ct. App. 2007)
(stating “not all situations require a detailed order,
App.59a
and the trial court’s form order may be sufficient if
the appellate court can ascertain the basis for the
trial court’s ruling from the record on appeal”).
2. Jurisdiction of the Probate Court
The Fishers next argue the probate court did not
have jurisdiction to hear the motion to appoint a
special fiduciary because related matters were pending
on appeal and a personal representative had already
been appointed. We disagree.13
The jurisdiction of the probate court is governed
by the Probate Code and extends to subject matter
related to estates of decedents. S.C. Code Ann. § 621-302(a) (Supp. 2015) (“To the full extent permitted
by the Constitution, and except as otherwise specifically provided, the probate court has exclusive original
jurisdiction over all subject matter related to: (1)
estates of decedents. . . . ”). The probate court may
appoint a special administrator informally prior to
the appointment of a personal representative and in
a formal proceeding “on the petition of any interested
person and finding . . . that appointment is necessary
to preserve the estate. . . . ” S.C. Code Ann. § 62-3614 (Supp. 2015). The probate court has exclusive
jurisdiction to determine the need for a conservator.
S.C. Code Ann. § 62-5-402(1) (Supp. 2015).
The question of whether the probate court may
proceed with a case after one of its orders has been
13 Huckabee argues the order appointing a special fiduciary is
interlocutory and not immediately appealable. We disagree. See
Ex parte Small, 69 S.C. 43, 46, 48 S.E. 40, 41 (1904) (finding an
order appointing an administrator was a final order and was
immediately appealable).
App.60a
appealed is also governed by the Probate Code.
Section 62-1-308(h) (Supp. 2015) of the Probate Code
provides the following:
When an appeal according to law is taken
from any sentence or decree of the probate
court, all proceedings in pursuance of the
order, sentence, or decree appealed from
shall cease until the judgment of the circuit
court, court of appeals or Supreme Court is
had. If the appellant, in writing, waives his
appeal before the entry of the judgment,
proceedings may be had in the probate court
as if no appeal had been taken.
In Ulmer v. Ulmer, our supreme court explained that
this section14 “does not apply to all orders of the
probate court concerning the parties. The only proceedings required to cease are those proceedings
addressed in the orders from which an appeal was
taken.” 369 S.C. 486, 491-92, 632 S.E.2d 858, 861
(2006).
In this case, the order on appeal at the time of
the probate court hearing related to the appointment
of Huckabee as the personal representative under the
will. The Fishers’ cause of action challenging the will
remains pending in the probate court. We find Huckabee’s status under the will is not related to the
discharge of Lisa Fisher as the conservator and the
appointment of an unrelated, special fiduciary to
marshal the estate assets and maintain authority and
control of the estate pending the final distribution of
the estate. Further, we find the probate court had
14 Formerly section 62-1-308(c).
App.61a
jurisdiction to appoint a special fiduciary under
sections 62-1-302(a) and 62-3-614.
3. Huckabee’s Standing
The Fishers argue Huckabee lacked standing to
file the motion to appoint a special fiduciary. We
disagree.
The Probate Code defines interested persons to
include the following:
heirs, devisees, children, spouses, creditors,
beneficiaries, and any others having a
property right in or claim against a trust
estate or the estate of a decedent, ward, or
protected person which may be affected by
the proceeding. It also includes persons
having priority for appointment as personal
representative and other fiduciaries representing interested persons. The meaning as
it relates to particular persons may vary
from time to time and must be determined
according to the particular purposes of, and
matter involved in, any proceeding.
S.C. Code Ann. § 62-1-201(23) (Supp. 2015). “[A]ll
persons having any interest [in the probate of a will]
are deemed parties and concluded by the decision
therein.” Davis v. Davis, 214 S.C. 247, 258, 52 S.E.2d
192, 197 (1949). Because Huckabee is the personal
representative named in the will and is defined as an
interested person, we find no merit to the Fishers’
challenge to Huckabee’s standing. As to the Fishers’
challenge to Huckabee’s standing based on the pending
appeal of the order appointing her as the personal
App.62a
representative, we affirm for the reasons discussed in
part 2 of this opinion.
4. Rule 11, SCRCP
Lisa Fisher argues the probate court’s order was
void because Huckabee failed to comply with the notice
provisions of Rule 11, SCRCP. We disagree.
Rule 11 of the South Carolina Rules of Civil Procedure provides that “[a]ll motions filed shall contain
an affirmation that the movant’s counsel . . . has
communicated . . . with opposing counsel and has
attempted in good faith to resolve the matter . . . unless
the movant’s counsel certifies that consultation would
serve no useful purpose. . . . ” Rule 11, SCRCP. Rule
11 provides a motion not in compliance with the rule
“shall be stricken unless it is signed promptly after
the omission is called to the attention of the pleader
or movant.” Id. Finally, the rule provides the court
“may impose upon the person who signed it, a
represented party, or both, an appropriate sanction.
. . . ” Id.
In Jackson v. Speed, our supreme court affirmed
the trial judge’s refusal to strike a motion based on a
similar Rule 11(a) violation, finding the trial judge
did not abuse his discretion in refusing to strike the
motion because an attempt to consult with opposing
counsel about the matter would have been pointless.
326 S.C. 289, 31011, 486 S.E.2d 750, 761 (1997). The
court noted “[t]his finding by the trial judge is
adequate to cure the deficiency under the facts of this
case.” Id. at 311, 486 S.E.2d at 761.
In this case, the Fishers argued the motion to
appoint a fiduciary should have been stricken based
App.63a
on the Rule 11 violation. Huckabee argued the motion
was in response to Lisa Fisher’s motion for an extension. In her brief, Huckabee also notes counsel had
discussed the matter of the appointment of a special
administrator on several occasions and the Fishers’
motions for extensions likewise failed to comply with
the Rule 11 affirmation requirements. The probate
court did not make a specific finding on the record.
However, the issue of the violation was argued to the
probate court, and the court ruled at the hearing that
Huckabee had “a right to file that motion with the
Court.” Although a specific ruling excusing the Rule
11 violation is preferable, we affirm, finding the
probate court’s ruling implicitly found consultation
with opposing counsel would have been pointless. See
Runyon v. Wright, 322 S.C. 15, 19, 471 S.E.2d 160,
162 (1996) (stating the imposition of sanctions under
Rule 11 is subjected to an abuse of discretion standard
of review).
5. Denial of Lisa Fisher’s Request for Fees
Fisher argues the probate court erred in denying
her request for fees. We remand this issue.
Fisher was appointed as the guardian and conservator by order dated November 19, 2008. After
Shaw-Baker died on February 25, 2009, Huckabee was
appointed personal representative based on her nomination in the will. Fisher was discharged as the conservator of the estate by order dated May 11, 2009.
Fisher moved for fees and expenses of $67,814.50 for
services rendered between August 2008 and July 2009,
which is approximately 17% of the estimated value of
the estate of $395,935.39. Fisher argued entitlement
to fees under the probate code. By order dated Octo-
App.64a
ber 14, 2011, the probate court summarily denied the
motion.15 Fisher moved to reconsider the order, arguing
(1) all other guardians and attorneys had been paid
their fees; thus, she was entitled to fees under the
equal protection clause of the United States and
South Carolina constitutions; (2) the probate code
provides for reasonable compensation to guardians
and conservators; and (3) the takings clauses of the
constitutions require compensation.
The Probate Code provides, “[i]f not otherwise
compensated for services rendered, any visitor, lawyer,
physician, conservator, or special conservator appointed
in a protective proceeding is entitled to reasonable
compensation from the estate, as determined by the
court.” S.C. Code Ann. § 62-5-414 (2009) (emphasis
added). The Probate Code also provides as follows:
Any guardian of one for whom a conservator
also has been appointed shall control the
custody and care of the ward and is entitled
to receive reasonable sums for his services
and for room and board furnished to the
ward as agreed upon between him and the
conservator, provided the amounts agreed
upon are reasonable under the circumstances.
S.C. Code Ann. § 62-5-312(b) (2009) (emphasis added).
In addition, the Probate Code requires a conservator
to “retain the estate for delivery to a duly appointed
personal representative of the decedent or other
persons entitled thereto” if a protected person dies.
S.C. Code Ann. § 62-5-425(d) (2009).
15 Fisher filed her motion in July 2009 and filed a renewed
motion in October 2011.
App.65a
In this case, Lisa Fisher was the appointed
guardian and conservator until Shaw-Baker died on
February 25, 2009. Some of the expenses Fisher
requested reimbursement for were incurred after her
conservatorship ended. However, the accountings filed
by Fisher include disbursements of $68,523.79 in
“Administrative/Legal Fees” incurred between December 23, 2008 and December 31, 2009 alone. Furthermore, Huckabee alleged the accountings indicate the
estate has been depleted by more than $80,000, but
the accountings in the record indicate depletion of
more than $250,000. Because the probate court’s
order and the circuit court’s order only summarily
address the issue, we remand to the probate court.16
6. Freezing of Assets
Lisa Fisher argues the probate court erred in
freezing assets. We disagree.
Fisher argues the order(s) freezing assets were
issued without notice because this relief was not
requested or raised; she was required to retain the
estate property until a “duly appointed” personal
representative was appointed and the issue of the
propriety of Huckabee’s appointment is on appeal;
the doctrine of laches supports her continued protection of the estate; and the freezing of the estate
assets and Fisher’s personal assets violated Fisher’s
constitutional rights.
Section 62-1-302 of the Probate Code generally
defines the probate court’s jurisdiction and provides
in pertinent part: “(a) To the full extent permitted by
16 We make no determination of the entitlement to, or the
reasonableness of, the fees claimed.
App.66a
the Constitution, and except as otherwise specifically
provided, the probate court has exclusive original
jurisdiction over all subject matter related to: (1)
estates of decedents. . . . ” S.C. Code Ann. § 62-1-302
(a)(1) (Supp. 2015). The probate court has the authority to issue orders in the nature of injunctions. See
Greenfield v. Greenfield, 245 S.C. 604, 611, 141
S.E.2d 920, 924 (1965) (finding the probate court had
the authority to issue an order requiring relatives of
a decedent to surrender the records of the decedent,
and stating “[t]his power, we think, is one which is of
necessity incident to the jurisdiction expressly granted
the probate court over all matters of administration”).
We find no merit to Fisher’s arguments. As to
her personal assets, Fisher admitted at the hearing
before the circuit court that the order(s) freezing
assets “didn’t have any real effect because Lisa Fisher
didn’t have any accounts here in South Carolina personally.” Thus, Fisher suffered no prejudice and there
is no basis for reversal. See In re Estate of Patterson
v. Palmetto Bank, 374 S.C. 116, 120, 646 S.E.2d 885,
887 (Ct. App. 2007) (holding a probate court’s error
that did not prejudice either party formed no basis
for reversal). As to the estate assets, we find the
probate court had the authority to freeze assets to
protect the estate.
7. Appointing Special Fiduciary
Lisa Fisher next argues the probate court erred
in appointing a special fiduciary. We disagree.
First, Fisher argues the probate court did not rule
on her objections to the procedure and the accusations of her mismanagement of the estate. Second,
she argues the probate court’s rulings are not supported
App.67a
by the record. Third, relying on trust law, Fisher
argues the probate court’s finding that she did not
have authority to pay expenses on behalf of the
estate was erroneous and demonstrates no emergent
need for a special fiduciary. Finally, Fisher argues
Huckabee is barred from moving for the appointment
of a special fiduciary under the doctrine of laches.
As to the first three issues, we find no merit.
Initially, the probate court noted Fisher’s continued
objections to its jurisdiction. In addition, neither the
probate court nor the circuit court found misconduct
by Fisher in their written orders. Rather, the probate
court found Fisher had been discharged in 2009; the
estate contained real property assets requiring upkeep
and repair; and the accounting indicated a need for
authority to deal with third parties. To the extent the
court’s findings regarding Fisher’s objections were
deficient, we find adequate support in the record. See
Holcombe v. Hardee, 304 S.C. 522, 524, 405 S.E.2d
821, 822 (1991) (allowing the appellate court to make
its own findings of fact if the record is sufficient even
though the family court may have failed to set forth
specific findings of fact and conclusions of law to
support its decision). Further, the accounting provided
by Lisa Fisher established unauthorized depletion of
the estate assets after Fisher was discharged as the
conservator of the estate by order dated May 11,
2009. This is sufficient evidence in the record to constitute the emergent need found by the probate court.
See S.C. Code Ann. § 62-7-704(e) (Supp. 2015) (providing the probate court with authority to appoint a
special fiduciary to administer a trust whenever the
court considers the appointment necessary for the
administration of a trust); § 62-5-402(1) (Supp. 2015)
App.68a
(providing the probate court with exclusive jurisdiction to determine the need for a conservator or other
protective order). To the extent Fisher argues trust
law does not apply, the probate court has jurisdiction
over the estate of decedents outside of the trust provisions of the Probate Code. See § 62-1-302(a) (“To
the full extent permitted by the Constitution, and except as otherwise specifically provided, the probate
court has exclusive original jurisdiction over all subject matter related to: (1) estates of decedents. . . . ”).
Thus, any erroneous reliance by the probate court on
trust law is insignificant because the probate court
had authority under estate law.
As to Fisher’s final issue, we find laches does not
apply to bar Huckabee’s request for the appointment
of a special fiduciary. “The party seeking to establish
laches must show: (1) a delay, (2) that was unreasonable
under the circumstances, and (3) prejudice.” Robinson
v. Estate of Harris, 388 S.C. 616, 627, 698 S.E.2d
214, 220 (2010). In this case, even if Fisher can show
Huckabee caused any delay, it would not be unreasonable delay. The issue of Huckabee’s appointment as the personal representative was not affirmed
by this court until April 2011. Huckabee filed the
Motion to Appoint Special Fiduciary for Conservatorship Assets in May 2011.
8. Denial of Lisa Fisher’s Request for Extension
Lisa Fisher argues the probate court erred in
failing to grant her another extension to deliver the
assets, averring the court erred in finding she did not
have the duty to act once she had been discharged
because she was required to protect the property until
delivery. We find no reversible error.
App.69a
The South Carolina Rules of Probate Court govern
procedure in the probate court. See Rules 1-5, SCRPC.
These rules address only a limited number of issues,
and there is no procedural rule governing motions in
probate court. However, the Probate Code provides
the rules of civil procedure shall be applied in formal
proceedings in the probate court. S.C. Code Ann. § 621-304 (Supp. 2015). “The manner of service, time for
answering and other proceedings relating to the trial,
except trial by jury, shall conform as nearly as may
be to the practice in the courts of common pleas as
provided in this Code.” In re Estate of Weeks, 329
S.C. 251, 258, 495 S.E.2d 454, 458 (Ct. App. 1997)
(quoting S.C. Code Ann. § 14-23-280 (1976)). We find
the probate court’s ruling on Fisher’s motion for an
extension to turn over the estate assets was within
the sound discretion of the probate court. See generally
Beckham v. Durant, 300 S.C. 329, 332, 387 S.E.2d 701,
703 (Ct. App. 1989) (finding the probate court’s consideration of an enlargement of time to file an
answer was within the discretion of the probate
court). As to Fisher’s argument the probate court
erred in finding she did not have the duty to act once
she had been discharged, we note this was a statement made by the probate court during the hearing,
and the probate court did not make this finding in its
final order. We find no merit to this argument. See
Ford v. State Ethics Comm’n, 344 S.C. 642, 646, 545
S.E.2d 821, 823 (2001) (“Until written and entered,
the trial judge retains discretion to change his mind
and amend his oral ruling accordingly.); id. (“The
written order is the trial judge’s final order and as
such constitutes the final judgment of the court.”).
App.70a
9. Statutory Notice of the Hearing
The Fishers argue the probate court’s order
appointing a special fiduciary is void because neither
Betty Fisher nor the Attorney General’s office were
provided notice of the Motion to Appoint Special
Fiduciary for Conservatorship Assets. We disagree.
Betty Fisher again argues the probate court erred
in relying on trust law to appoint a special fiduciary,
which we considered above and found no reversible
error. As to notice, we likewise find no reversible
error. Under the Probate Code, “[a] special administrator may be appointed: (1) informally by the court
on the application of an interested person when
necessary . . . (c) to take appropriate actions involving
estate assets; (2) in a formal proceeding by order of
the court on the petition of any interested person.
. . . If it appears to the court that an emergency
exists, appointment may be ordered without notice.”
S.C. Code Ann. § 62-3-614 (Supp. 2015). In this case,
the issue before the court was the protection of the
estate. Although the disposition of the estate would
require notice to an “interested person,” the Probate
Code provided authority for the probate court to
conduct this hearing without notice to Betty Fisher
or the Attorney General. See S.C. Code Ann. § 62-1201(23) (Supp. 2015) (defining an “interested person”
as including “heirs, devisees, children, spouses, creditors, beneficiaries, and any others having a property
right in or claim against a trust estate or the estate
of a decedent . . . ”). Neither Betty Fisher nor the animal
charities are named in the last will.
App.71a
V.
Conclusion
For the foregoing reasons, we affirm in part and
remand in part.
AFFIRMED IN PART and REMANDED IN PART.
HUFF and SHORT, JJ., and MOORE, A.J., concur.
App.72a
ORDER OF THE SUPREME COURT OF
SOUTH CAROLINA DENYING
PETITION FOR REHEARING
(JANUARY 16, 2019)
THE SUPREME COURT OF COURT CAROLINA
________________________
BETTY FISHER,
Petitioner,
v.
BESSIE HUCKABEE,
Respondent.
LISA FISHER,
Petitioner,
v.
BESSIE HUCKABEE,
Respondent.
________________________
No. 2017-000743
Before: Donald Wayne BEATTY, Chief Justice, Kaye
Gorenflo HEARN, John Cannon FEW, John W.
KITTREDGE, George C. JAMES, Judges.
After careful consideration of the petition for
rehearing, the Court is unable to discover that any
App.73a
material fact or principle of law has been either
overlooked or disregarded. The petition for rehearing
is denied.
/s/ Donald Wayne Beatty
C.J.
/s/ Kaye Gorenflo Hearn
J.
/s/ John Cannon Few
J.
/s/ John W. Kittredge
J.
/s/ George C. James
J.
Columbia, South Carolina
January 16, 2019
cc:
Jessica Lynn Crowley, Esquire
Betty Fisher
Lisa Fisher, Esquire
The Honorable Julie J. Armstrong
App.74a
ORDER FREEZING ASSETS
(OCTOBER 14, 2011)
STATE OF SOUTH CAROLINA
COUNTY OF CHARLESTON
IN THE PROBATE COURT
________________________
LISA FISHER,
Conservator,
and
ALICE SHAW-BAKER,
Incapacitated
Person, now
Deceased.
________________________
Case No.: 2008-GC-10-088
Before: Tamara C. CURRY, Associate Probate Judge
Lisa Fisher was appointed as Conservator or Alice
Shaw-Baker, an incapacitated adult, on November 19,
2008.
Lisa Fisher was terminated as Conservator for
Alice Shaw-Baker on May 11, 2009. Alice Shaw-Baker
died on February 25, 2009 and her estate was opened
with the Charleston County Probate Court, Estate File
#2009ES10-0378. There is current ongoing litigation
in Alice Shaw-Baker’s estate.
App.75a
The Estate of Alice Shaw-Baker currently has
funds held in an account(s) with Wachovia under the
name of Alice Shaw-Baker and/or Lisa Fisher or Alice
Shaw-Baker individually.
The Court has received information that funds
are being withdrawn without authorization from the
Probate Court.
The Court has appointed J. Heyward Harvey, Jr.,
Esquire to serve as Special Fiduciary and he shall be
the only party who is alloyed to make any transactions;
therefore,
IT IS ORDERED that the assets in any and all
accounts under the name of Alice Shaw-Baker and/or
Lisa Fisher or Alice Shaw-Baker individually being
held with Wachovia shall be frozen until J. Heyward
Harvey, Jr., Esquire as Special Fiduciary takes control
of the account.
AND IT IS SO ORDERED.
/s/ Tamara C. Curry
Associate Probate Judge of
Probate and for the County
of Charleston,
State of Carolina
Charleston, South Carolina
October 14, 2011
App.76a
ORDER APPOINTING SPECIAL FIDUCIARY
(SEPTEMBER 28, 2011)
STATE OF SOUTH CAROLINA
COUNTY OF CHARLESTON
IN THE PROBATE COURT COMMITMENT
DIVISION COUNTY OF CHARLESTON
________________________
In the Conservatorship of
ALICE SHAW-BAKER,
Deceased.
Lisa Fisher,
Conservator,
Respondent.
________________________
Case No.: 2008-GC-10-088
Before: Tamara C. CURRY, Associate Probate Judge
This matter comes before the Court on Motion of
Personal Representative for Appointment of Special
Fiduciary in the Estate of Alice Shaw-Baker who died
testate on February 25, 2009 in Charleston County,
South Carolina. Respondent has moved this Court for
Extension to turn over estate assets and has filed a
Motion to Strike movant Bessie Huckabee’s Motion to
Appoint Special Fiduciary. Present at the hearing
were Bessie Huckabee, Petitioner, and Peter A. Kouten,
Esquire, Lisa Fisher, Respondent, and John Hughes
Cooper, Esquire.
App.77a
DISCUSSION
Decedent Alice Shaw-Baker came under the jurisdiction of this Court upon appointment of guardian
and conservator on her behalf. Lisa Fisher was the
court-appointed guardian and conservator. Ms. Fisher
filed her Petition for Discharge to terminate the
guardianship and conservatorship of Alice ShawBaker and requested that the Court consider and
approve final accounting covering the period January
1, 2009 through May 26, 2009. Lisa Fisher was discharged as the Guardian and Conservator by Order
dated May 11, 2009. Ms. Fisher has held estate assets
since her discharge and was granted extensions to
turn over the estate assets until “resolution of the
issue of who can accept the assets of the estate.” The
decedent’s estate is seized and possessed with real
estate.
FINDINGS OF FACT
AND CONCLUSIONS OF LAW
This court has jurisdiction over this matter and
venue is proper. Respondent Lisa Fisher was discharged as Conservator by Order of this Court on
May 11, 2009. Movant Bessie Huckabee has argued
that requests for account of estate assets have been
made on several occasions and these accountings had
been denied. Lisa Fisher continues to object to the
jurisdiction of this Court with regard to the Estate of
Alice Shaw Baker, in part due to the fact that any
ruling by this Court would intrude on decisions properly
to be made in the Supreme Court and/or the Circuit
Court. Respondent filed a final accounting on May
26, 2009. Respondent has sought and been granted extensions of time to turn over the estate and has held
App.78a
these estate assets in trust. Respondent has, on June
1, 2011, filed with the Court annual accountings for
the estate assets for the years 2009 or 2010.
In reviewing the 2009 and 2010 accountings, it
is determined that there are real property assets in
the estate of decedent Alice Shaw-Baker and there
are containing requirements for upkeep and repair
on this property. Further, review of the filed accountings
indicate that there are needs for authority to deal
with third parties with regard to this estate. Bessie
Huckabee, as personal representative of the estate
of decedent Alice Shaw-Baker (2009-ES-10-0378) is
currently respondent to pending probate actions including action to appoint a special administrator. The
Court finds an emergent need for authority as to
these estate assets.
Whether or not a vacancy exists as to administration of these assets held in trust, the Court has
the authority to appoint a special fiduciary. (South
Carolina Probate Code 62-7-704(e))
THEREFORE, based on the forgoing, it is hereby
ORDERED, ADJUDGED AND DECREED that
Respondent’s motion to strike and motion for extension
to turn over estate assets be DENIED and that a special
fiduciary be appointed, and itis further
ORDERED, ADJUDGED AND DECREED that
Heyward Harvey, Esquire, be appointed Special Fiduciary for the estate assets of Alice Shaw-Baker, and it
is further
ORDERED, ADJUDGED AND DECREED that
Heyward Harvey receive all assets held by Lisa Fisher
App.79a
within fifteen days of execution of this Order. That
Mr. Harvey:
a.
marshal all assets, review accounts and
2009 and 2010 accountings with all the
powers and discretions as authorized by law
with regard to same.
b.
seek formal approval of the final accounting
and 2009 and 2010 accountings with authority to amend same, if necessary, and further,
seek to close the conservatorship estate.
c.
review needs for maintenance, taxes and
insurance on real property with authority
as fiduciary over same.
d.
maintain authority and control over all
estate assets.
e.
keep records of his time devoted to this file
and seek approval of his fees through separate
order of this Court, and it is further
ORDERED, ADJUDGED AND DECREED that
Mr. Harvey’s appointment shall terminate upon final
determination of proper authority over administration
of the estate of Alice Shaw-Baker.
IT IS SO ORDERED!
/s/ Honorable Tamara C. Curry
Associate Probate Judge
County of Charleston
This 28th day of September, 2011
Charleston, South Carolina
App.80a
ORDER APPOINTING LISA FISHER AS
GUARDIAN AND CONSERVATOR
(NOVEMBER 19, 2008)
STATE OF SOUTH CAROLINA
COUNTY OF CHARLESTON
IN THE PROBATE COURT COMMITMENT
DIVISION COUNTY OF CHARLESTON
________________________
ELISABETH SPENCER,
v.
Petitioner,
ALICE SHAW-BAKER, an alleged Incapacitated
person, and LISA FISHER, her next of kin,
Respondents.
________________________
Case No.: 2008-GC-10-088
Before: Tamara C. CURRY, Associate Probate Judge
This matter came before this Court for a hearing
on appointment of Guardian and Conservator.
PROCEDURAL HISTORY
1. On July 31, 2008, Elizabeth Spencer filed Petitions for a Finding of Incapacity and for Appointment
of Walter R. Kaufman, Esquire, as Guardian and for
Appointment of· Family Services, Inc. as Conservator.
2. On August 4, 2008 the Court appointed
Walter Kaufman as Temporary Guardian.
App.81a
3. After hearing on August 14, 2008 the Court
appointed Walter Kaufman and Jane Orenstein as
Temporary Co-Guardians and Family Services, Inc. as
Conservator of Alice Shaw-Baker.
4. On August 19, 2008, Respondents filed Petitions
for appointment of Alice Shaw-Baker’s great-niece,
Lisa Fisher, Esquire, as both Guardian and Conservator.
5. On September 4, 2008, Lisa Fisher filed a
Motion for Temporary Restraining Order and a Preliminary Injunction against Removal of Alice ShawBaker from her home. On September 9, 2008, this Court
heard Ms. Fisher’s Motions.
6. By Order issued September 16, 2008, this Court:
a.
granted Lisa Fisher’s Motion for a
Temporary Restraining Order against
Removal of Alice Shaw-Baker from her
home;
b.
appointed Lisa Fisher and Jane Orenstein
as Temporary Co-Guardians; and
c.
granted a request by Mr. Kaufman to be
relieved as Co-Guardian.
7. By the same Order, this Court required that
within two weeks Temporary Co-Guardians Lisa Fisher
and Jane Orenstein:
a.
have the carpet replaced in Ms. ShawBaker’s house;
b.
have Ms. Shaw-Baker house cleaned and
organized;
App.82a
c.
contact Family Services. Inc. to inventory
and take possession of Ms. Shaw-Baker’s
financial records;
d.
make arrangements for caretakers to supervise Ms. Shaw-Baker’s daily meals, hygiene,
and medical needs;
e.
inform Ms. Shaw-Baker that she is not
permitted to smoke cigarettes inside the
house but is permitted to smoke cigarettes
on the porch or the exterior of the house.
8. By various orders issued September 30, 2008
this Court:
a.
appointed Peter A. Kouten, Esquire, as
Guardian ad Litem and as counsel for Alice
Shaw-Baker;
b.
ordered that Mr. Kouten be sent as a visitor
to Alice Shaw-Baker’s residence;
c.
appointed L. William Mulbry, M.D. as a
physician Examiner; and
d.
appointed. Rebecca McCrudden, M.A., L.P.C.,
as an Examiner.
REPORTS
1. Alice Shaw-Baker was interviewed in her home
by the following, who each issued a report:
a.
court-appointed·Examiner Leonard
W. Mulbry, Jr., M.D. on October 7, 2008;
b.
court-appointed Visitor Peter A.
Kouten, Esquire, on October 8, 2006; and
App.83a
c.
court-appointed Examiner Rebecca S. McCrudden, M.A., L.P.C., on October 16, 2008.
On October 29, 2008, this Court heard the Petitions for Appointment of Guardian and Conservator.
Based on the testimony of the witnesses, the reports
submitted by the Examiners, the Visitor, and Ms.
Shaw-Baker’s physician, the Court makes the following findings of fact:
FINDINGS OF FACT
Background
1. Alice Shaw-Baker was born August 14, 1929 in
San Francisco, California and is currently 79.
2. Her most closely related family members are
Betty Fisher, her niece, and her great-niece, Lisa
Fisher (Betty Fisher’s daughter), who live in California.
Medical History
3. Ms. Shaw-Baker has diabetes, which she
controls by diet.
4. She has no history of hospitalizations and
only one surgery. The surgery was on her mastoid at
age seven.
5. Ms. Shaw-Baker takes Boniva for her bones.
6. There is no evidence that Ms. Shaw-Baker has
any history of psychiatric treatment.
7. There is no evidence that she has ever been
diagnosed with depression, anxiety, or sleep disorders;
however, per family members, she suffered mood
deterioration after the death of her dog about· a year
ago.
App.84a
8. She smokes approximately two packs of cigarettes a day.
9. Dr. Mulbry has diagnosed Ms. Shaw-Baker with
Nicotine Dependence.
Recent Circumstances
10. Ms. Shaw-Baker resides at 306 Cassina Drive,
Charleston, S.C. 29407, a single-story house which
she owns with no mortgage.
11. In late December 2007, a neighbor reported
that Ms. Shaw-Baker’s house was becoming cluttered
and unkempt.
12. She was hording junk mail and small items
associated with Chihuahua dogs, neglecting daily
hygiene, and it was not clear that she was maintaining
adequate nutrition.
13. The Court intervened through this action
and appointed as Temporary Co-Guardians Lisa Fisher
and Jane Orenstein.
Current Circumstances
14. Ms. Shaw-Baker’s house has been de-cluttered, cleaned, and repaired.
15. New fire-resistant carpeting has been installed
and the home has been freshly painted.
16. A fire sprinkler system and hard-wired smoke
detectors have been installed in the House.
17. A fire extinguisher is installed in the kitchen.
18. During ·various visits by the Court-appointed
Examiners and Visitor, Ms. Shaw-Baker presented well,
was well-groomed, and was properly dressed.
App.85a
19. Currently she has around-the-clock caregivers
who cook and clean.
20. Per the Court Order in place during the
cleaning and repair of her home, she has been smoking
on her back porch.
21. Ms. Shaw-Baker accepts the presence of her
caregivers.
22. Ms. Shaw-Baker desires to live at home and
is very opposed to moving to assisted living.
23. If at this time or in the future she must
move into an assisted living or other facility, she
would prefer to do so in California.
24. Dr. Mulbry has given Ms. Shaw-Baker the
following diagnoses:
AXIS I: Cognitive impairment Not Otherwise
Specified versus Early Dementia Nicotine
Dependence
AXIS II: Deferred
AXIS III: Diet controlled by Onset Diabetes
Mellitus.
25. Dr. Mulbry recommends that Ms. Shaw-Baker
not drive until she successfully undergoes a formal
driving evaluation.
Impairment
26. Based primarily upon the report and testimony of Leonard W. Mulbry, Jr., M.D., which contain
cognitive evaluations and diagnoses, the Court finds
that Alice Shaw-Baker is impaired by reason of mental
deficiency due to limited problems with her memory
and executive functions.
App.86a
27. Presently, Ms. Shaw-Baker does require routine in-home assistance, but whether she requires
around-the-clock assistance is unclear. She does not
require placement outside her home at this time.
28. A full neuropsychological evaluation and a
full medical evaluation of Alice Shaw-Baker would be
helpful in determining how much care and supervision
is presently necessary.
Finances
29. An inventory and appraisement of Ms. ShawBaker’s assets has been filed by Family Services, Inc.
30. According to the sworn testimony of Mr. Ed
Jellison of Family Services, Inc., Ms. Shaw-Baker has
liquid assets of $233,000, a home with no mortgage,
and total monthly income of $2,900 per month.
Nomination
31. Ms. Shaw-Baker has the mental capacity to
nominate a Guardian and a Conservator. She has
nominated and consents to appointment of her grandniece, Lisa Fisher, as her sole Guardian and Conservator.
32. Lisa Fisher, Esquire, is qualified to serve as
Alice Shaw-Baker’s Guardian and Conservator.
ANALYSIS
1. This Court must exercise its authority so as to
encourage the development of maximum self-reliance
and independence of the incapacitated person and
make appointive and other orders only to the extent
necessitated by the incapacitated person’s mental
App.87a
and adaptive limitations or other conditions warranting
the procedure. S.C. Code Ann. § 62-5-304(A) (2007).
2. Subject to a finding of good cause by the courts,
persons who are not disqualified have priority for
appointment as guardian in the following order. “ . . . (1)
a person nominated to serve as guardian by the
incapacitated person; . . . (6) another relative of the
incapacitated person; . . . ” S.C. Code Ann. § 62-5-311
(2007).
3. As a general rule, close relatives are preferred
as guardians or conservators of incompetent persons
since they are regarded as the ones most solicitous of
the ward’s welfare and the ones most likely to
rehabilitate the ward. 39 Am. Jur. 2d Guardian and
Ward § 41 (2008).
4. In this present case, Ms. Shaw-Baker has
nominated Lisa Fisher, Esquire, to serve as guardian,
and Ms. Fisher is a relative of Ms. Shaw-Baker. Ms.
Fisher is not disqualified to serve. For these reasons,
Ms. Fisher has priority for appointment as guardian.
CONCLUSIONS OF LAW
1. “Incapacitated person” means any person who is
impaired by reason of mental illness, mental deficiency,
physical illness or disability, advanced age, chronic
use of drugs, chronic intoxication, or other cause to
the extent that he lacks sufficient understanding or
capacity to make or communicate responsible decisions concerning his person or property. S.C. Code
Ann. § 62-5-101(1) (2007).
2. Alice Shaw-Baker is an incapacitated person
as defined by S.C. Code Ann. § 62-5-101(1) (2007) due
App.88a
to limited problems with her executive functions and
memory.
3. Appointment of a guardian pursuant to S.C.
Code Ann. § 62-5-304(B) (2007) is desirable as a means
of providing continuing care and supervision of Alice
Shaw-Baker.
4. At the present time the evidence currently
before the Court indicates that Ms. Shaw-Baker lacks
capacity to:
a.
Dispose of real or personal property, except
that she may make purchases up to $50;
b.
Enter into contracts;
c.
Execute instruments;
d.
Execute a valid power of attorney;
e.
Manage her financial affairs;
f.
Marry or divorce; and
g.
Drive an automobile.
5. At the present time, Alice Shaw-Baker has the
capacity make purchases up to $50 and has the capacity
to vote.
6. The Court grants Alice Shaw-Baker’s Petitions
for Appointment of her great-niece, Lisa Fisher as
Guardian and Conservator.
ORDER
WHEREFORE, IT IS HEREBY ORDERED,
ADJUDGED AND DECREED that Lisa Fisher, is
appointed as sole Guardian and as Conservator for
Alice Shaw-Baker; and it is
App.89a
FURTHER ORDERED that the contents of Alice
Shaw-Baker’s safety deposit box at Bank of America
be turned over to Temporary Conservator, Family
Services, Inc. Upon receipt of the contents of said
safety deposit box Family Services shall promptly file
a copy of Alice Shaw-Baker’s last will and testament
with this Court. Neither Alice Shaw-Baker nor anyone on her behalf may revise or revoke her will or execute a new will, unless specifically ordered by this
Court; and it is
FURTHER ORDERED that Alice Shaw-Baker’s
Power of Attorney and Health Care Power of Attorney
are hereby revoked; and it is
FURTHER ORDERED that, as soon as can be
arranged, Alice Shaw-Baker shall have a full neuropsychological evaluation by Randolph Waid, Ph.D.,
who shall report to this Court on Alice Shaw-Baker’s
mental condition. This report should summarize diagnosis, treatment options and prognosis, and should
address whether or not Alice Shaw-Baker has dementia
or one or more other condition(s) which may affect
her cognitive function, whether or not medication
may be helpful, whether or not Alice Shaw-Baker
should be allowed to drive an automobile, whether or
not Alice Shaw-Baker requires 24 hour daily care/
supervision, whether or not less care/supervision
may be sufficient. If less care/supervision may be
sufficient, this report should contain a recommendation
on the appropriate level of care/supervision or the
proper procedure to determine same; and it is
FURTHER ORDERED that, as soon as can be
arranged, Alice Shaw-Baker shall have a full medical
evaluation by a medical doctor, who shall report to
this Court on Alice Shaw-Baker’s medical condition.
App.90a
This report should summarize diagnosis, treatment
options, and prognosis, and should address whether
or not Alice Shaw-Baker has diabetes, hypertension,
elevated cholesterol, or one or more other medical
condition(s) which may affect her cognitive function,
whether or not medication may be helpful, whether
or not her 1,200 calorie diet should be modified,
whether or not Alice Shaw-Baker should be allowed
to drive an automobile, the extent of Alice ShawBaker’s limitations, whether or not Alice Shaw-Baker
requires 24 hour daily care/supervision, and whether
or not less care/supervision may be sufficient. If less
care/supervision may be sufficient, this report should
provide a recommendation on the appropriate level of
care/supervision or the proper procedure to determine same; and it is
FURTHER ORDERED that upon receipt of the
neuropsychological and medical reports in this matter,
the Guardian shall file a copy of same with this Court
and serve copies upon counsel for all parties; a status
conference or hearing will be set upon receipt of the
neuropsychological and medical reports in this matter;
and it is
FURTHER ORDERED that until receipt of the
said reports and until further order of this Court,
Alice Shaw-Baker shall have 24 hour daily care/
supervision in her home or in a day program; and it
is
FURTHER ORDERED that Alice Shaw-Baker
shall not smoke cigarettes inside her home, but she
may smoke outside. In inclement weather only, Alice
Shaw-Baker may smoke inside her home only in the
pantry (with a cement floor) or in the kitchen (with a
tile floor); and it is
App.91a
FURTHER ORDERED that Temporary Conservator Family Services shall ensure that Alice ShawBaker’s home is covered by appropriate homeowners
insurance; and it is
FURTHER ORDERED that Alice Shaw-Baker
shall not be removed from her home for placement
elsewhere without further order of this Court; and it
is
FURTHER ORDERED that the Guardian shall
consult with Alice Shaw-Baker regarding her placement, medical care, and other major life decisions,
but the Guardian shall have final decision making
authority with regard to all such decisions; and it is
FURTHER ORDERED that Alice Shaw-Baker
may make purchases up to $50.00. Other than making
purchases up to $50.00, Alice Shaw-Baker may not sell
personal or real property. Alice Shaw-Baker may not
enter into contracts, execute instruments, execute
powers of attorney, manage her financial affairs,
marry, divorce, drive an automobile, or hold a driver’s
license. Alice Shaw-Baker can vote; and it is
FURTHER ORDERED that until receipt of the
neuropsychological and medical reports, the Guardian
ad Litem Peter A. Kouten shall visit Alice Shaw-Baker
on a weekly basis and shall submit to this Court a
brief written report on the condition of Alice ShawBaker on a monthly basis; and it is
FURTHER ORDERED that Lisa Fisher shall
report the condition of Alice Shaw-Baker and her estate
annually on or before the 1st of November of each
year starting November 1, 2009; and it is
App.92a
FURTHER ORDERED that the Conservator shall
be bonded by an amount and in such form as may be
approved by the Court. Upon approval and filing of
said bond, the Conservator shall take possession and
control of the financial affairs of Ms. Shaw-Baker;
and it is
FURTHER ORDERED that Family Services, Inc.
(and/or the Conservator upon posting a bond) shall
promptly pay out of Ms. Shaw-Baker’s funds all of
her just debts, including, without limitation, the
costs of home repair and improvements, food, clothing,
living expenses, medical care, elder care, the costs of
this action, reasonable fees and expenses of the Court
Appointed Examiners, Dr. Mulbry and Ms. McCrudden,
costs and premiums for the Conservator’s bond, and
all other reasonable expenses of the administration
of Ms. Shaw-Baker’s financial affairs; and it is
FURTHER ORDERED that the attorneys shall
submit affidavits and proposed orders for their attorneys’ fees; and it is
FURTHER ORDERED that this matter shall be
set for review in six months; and it is
FURTHER ORDERED that this Order is subject to
such further Orders of the Probate Court of Charleston
County as may be or shall become necessary for the
custody, control, conduct, and administration of the
person and estate of Alice-Shaw Baker.
IT IS SO ORDERED at Charleston, South Carolina
on November 19, 2008.
/s/ Tamara C. Curry
Associate Probate Judge
App.93a
ORDER DENYING MOTIONS FOR
RECONSIDERATION AND OPPOSITION OF
PROBATE COURT ORDER APPOINTING
SPECIAL FIDUCIARY, MOTION TO STRIKE,
AND RENEWED MOTION FOR APPROVAL OF
EXPENSES OF GUARDIAN AND CONSERVATOR
(OCTOBER 14, 2011)
STATE OF SOUTH CAROLINA
COUNTY OF CHARLESTON
IN THE PROBATE COURT
________________________
LISA FISHER,
Personal
Representative,
Petitioner,
v.
IN THE CONSERVATORSHIP of
ALICE SHAW-BAKER,
Deceased.
Lisa Fisher,
Conservator,
Respondent.
________________________
Case No.: 2008-GC-10-088
Before: Tamara C. CURRY, Associate Probate Judge
Here comes before the Court on Lisa Fisher’s Motions for Reconsideration of Probate Court Order
App.94a
dated September 28, 2011 Appointing Special Fiduciary
and Motion to Strike and Opposition to Motion to
Appoint Special Fiduciary, a Renewed Motion for
Approval of Fees and Expenses of Guardian and Conservator and Betty Fischer’s Motion to Set Aside Void
Probate Court Order dated September 28, 2011 by and
through their attorney, John Hughes Cooper, Esq.,
filed on October 7, 2011. Petitioner asks the Court to
reconsider the Court’s Order, dated September 28,
2011. This motion is based on the Court’s order concerning the Motion to Appoint a Special Fiduciary for
Conservatorship Assets filed by Bessie Huckabee
dated May 20, 2011 by and through her attorney, Peter
A. Kouten, Esq. in response to Lisa Fischer’s Motions
for Extension filed May 13, 2011, and her Motion to
Strike filed June 1, 2011 by and through her attorney,
John Hughes Cooper, Esq. This Court’s order denied
the Respondents Motion to Strike and Motion for Extension to turn over assets and further ordered that a
special fiduciary be appointed. The court further
ordered that J. Heyward Harvey, Esq. be appointed
Special Fiduciary for the estate assets of Alice ShawBaker and that Lisa Fischer within fifteen days turn
over these said assets to Heyward Harvey, Esq.
At this time, having reviewed the Motions and
the record, the Court hereby denies Respondents Motions. The probate court has jurisdiction of proceedings
initiated by interested parties concerning the internal affairs over protective proceedings and guardianship proceedings (South Carolina Probate Code 62-5102) This Court finds that Lisa Fischer’s fiduciary
role as Guardian and Conservator was terminated by
this Court’s Order dated May 11, 2009. Since Ms.
Fischer’s discharge she has held estate assets; has
App.95a
requested and been granted several extensions to
perform the same, due to the ongoing litigation in the
estate matter. The Court became aware at the August
17, 2011 hearing that Lisa Fischer has continued to
expend funds since Alice Shaw-Baker’s death from
the Conservator accounts of Alice Shaw-Baker.
The Court finds that Lisa Fischer has been
terminated as Conservator and no longer has the
authority to withdraw or pay expenses out of the
estate which is being withdrawn without authorization from the Probate Court. The decedent’s estate is
seized with real property. On the court’s own motion;
to preserve the estate of Alice Shaw-Baker, this
Court is freezing all money and assets in the name of
Alice Shaw-Baker.
THEREFORE, IT IS ORDERED ADJUDGED AND
DECREED THAT:
1.
The Motion for Reconsideration of Probate
Order Dated September 28, 2011 Appointing
a Special Fiduciary, the Motion to Strike
and Opposition to the Motion to Appoint A
Special Fiduciary, the Renewed Motion for
Approval of Fees and Expenses of Guardian
and Conservator and the Motion to Set
Aside Void Probate Court Order dated
September 28, 2011 Appointing A Special
Fiduciary is hereby Denied; it is further
ordered
2.
That Alice Shaw-Baker has funds currently
in a number of banking institutions under
the name of Alice Shaw-Baker Conservatorship and Lisa Fischer Conservatorship or
individually. It is ordered that the assets in
App.96a
any and all accounts in the name of Alice
Shaw-Baker Conservatorship and Lisa Fisher Conservatorship, or individually being
held with any banking institution shall be
frozen until J. Heyward Harvey, Jr., Esq.,
as Special Fiduciary takes control of said
accounts.
AND IT IS SO ORDERED.
/s/ Tamara C. Curry
Associate Probate Judge
This 14th day of October, 2011
Charleston, South Carolina
App.97a
SOUTH CAROLINA CONSTITUTIONAL
PROVISIONS, STATUTES AND JUDICIAL RULES
South Carolina Constitution, Article I, § 3 provides
as follows:
SECTION 3. Privileges and immunities; due
process; equal protection of laws.
The privileges and immunities of citizens of this
State and of the United States under this
Constitution shall not be abridged, nor shall any
person be deprived of life, liberty, or property
without due process of law, nor shall any person be
denied the equal protection of the laws. (1970 (56)
2684; 1971 (57) 315.)
South Carolina Constitution, Article I, § 13 (A)
provides as follows:
SECTION 13. Taking private property; economic
development; remedy of blight. (A) Except as
otherwise provided in this Constitution, private
property shall not be taken for private use without
the consent of the owner, nor for public use without
just compensation being first made for the property. Private property must not be condemned by
eminent domain for any purpose or benefit
including, but not limited to, the purpose or benefit
of economic development, unless the condemnation
is for public use. “Except as otherwise provided in
this Constitution, private property shall not be
taken . . . for public use without just compensation
being first made for the property.”).
App.98a
SC Code § 62-5-414 provides as follows:
If not otherwise compensated for services rendered,
any visitor, lawyer, physician, conservator, or
special conservator appointed in a protective
proceeding is entitled to reasonable compensation
from the estate, as determined by the court.
SC Code § 62-5-425 (d) provides as follows:
(d) If a protected person dies, the conservator
shall deliver to the court for safekeeping any will
of the deceased protected person which may have
come into his possession, inform the executor or a
beneficiary named therein that he has done so, and
retain the estate for delivery to a duly appointed
personal representative of the decedent or other
persons entitled thereto. If after thirty days from
the death of the protected person no other person
has been appointed personal representative and no
application or petition for appointment is before
the court, the conservator may apply to exercise the
powers and duties of a personal representative so
that he may proceed to administer and distribute
the decedent’s estate. Upon application for an order
granting the powers of a personal representative
to a conservator, after notice to any person
demanding notice under Section 62-3-204 and to
any person nominated executor in any will of which
the applicant is aware, the court may order the
conferral of the power upon determining that there
is no objection, and endorse the letters of the
conservator to note that the formerly protected
person is deceased and that the conservator has
acquired all of the powers and duties of a personal
representative. The making and entry of an order
App.99a
under this section shall have the effect of an order
of appointment of a personal representative as
provided in Section 62-3-308 and Parts 6 through
10 of Article 3 [Sections 62-3-601 et seq. through
Sections 62-3-1001 et seq.] except that estate in
the name of the conservator, after administration,
may be distributed to the decedent’s successors
without prior retransfer to the conservator as
personal representative.
SC Code § 62-7-707 provides as follows:
(a) Unless a cotrustee remains in office or the
court otherwise orders, and until the trust property
is delivered to a successor trustee or other person
entitled to it, a trustee who has resigned or been
removed has the duties of a trustee and the powers
necessary to protect the trust property.
(b) A trustee who has resigned or been removed
shall proceed expeditiously to deliver the trust
property within the trustee’s possession to the
cotrustee, successor trustee, or other person entitled to it.
South Carolina Rules of Civil Procedure, Rule 11
provides as follows:
Rule 11—Signing Of Pleadings; Attorneys
(a) Signature
Every pleading, motion or other paper of a party
represented by an attorney shall be signed in his
individual name by at least one attorney of record
who is admitted to practice law in South Carolina,
and whose address and telephone number shall be
stated. A party who is not represented by an
App.100a
attorney shall sign his pleading, motion or other
paper and state his address. Except when otherwise specifically provided by rule or statute,
pleadings need not be verified or accompanied by
affidavit. The written or electronic signature of
an attorney or party constitutes a certificate by
him that he has read the pleading, motion or other
paper; that to the best of his knowledge, information and belief there is good ground to support
it; and that it is not interposed for delay. An
attorney or party may only utilize an electronic
signature in pleadings, motions or other papers
that are E-Filed in the SCE-File electronic filing
system.
All motions filed shall contain an affirmation
that the movant’s counsel prior to filing the motion
has communicated, orally or in writing, with
opposing counsel and has attempted in good faith
to resolve the matter contained in the motion,
unless the movant’s counsel certifies that consultation would serve no useful purpose, or could not
be timely held. There is no duty of consultation
on motions to dismiss, for summary judgment,
for new trial, or judgment NOV, or on motions in
Family Court for temporary relief pursuant to
Family Court Rule 21, or in real estate foreclosure
cases, or with pro se litigants.
If a pleading, motion or other paper is not signed
or does not comply with this Rule, it shall be
stricken unless it is signed promptly after the
omission is called to the attention of the pleader
or movant. If a pleading, motion, or other paper is
signed in violation of this Rule, the court, upon
motion or upon its own initiative, may impose upon
App.101a
the person who signed it, a represented party, or
both, an appropriate sanction, which may include
an order to pay to the other party or parties the
amount of the reasonable expenses incurred
because of the filing of the pleading, motion or
other paper, including a reasonable attorney’s fee.
Note:
This Rule 11(a) is substantially the Federal Rule,
with one addition, that the pleadings must be
signed by the party or, if he has an attorney, by
an attorney who practices in the State. Important
as this change is, it is not as significant as the
Rule itself, which eliminates the verification of
pleadings and places on the lawyer who signs a
pleading the duty of good faith in preparing the
pleading. The lawyer may be disciplined if he
violates this duty. This version of Rule 11(a) is
not nearly so stringent as the latest version of the
Federal Rule which became effective August 1,
1983; but it represents a substantial forward step
in lawyer responsibility.
Note to 1986 Amendment:
The amendment to Rule 11(a) makes explicit that
the certification requirement applies to all motions
or papers filed by the attorney or party. The
requirement that an attorney of record must be a
resident or maintain an office in the State is
deleted. The conditions under which a person may
appear of record are more properly within the
exclusive power of the Supreme Court to govern the
admission to practice, rather than a matter of trial
court procedure.
App.102a
Note to 1989 Amendment:
The amendment to Rule 11(a) requires that a
movant make a “good faith” effort to resolve any
dispute before filing a motion and to so certify in
the motion unless the consultation would serve no
useful purpose or could not be timely held. This is
similar to the Local Federal Rule. As in the Local
Federal Rule, there is no duty to consult with pro
se litigants, or about certain motions. Consultation
may be oral or written.
The change makes clear that the court may impose
sanctions for violations of this Rule and replaces
the ambiguous language that “an attorney may be
subject to appropriate disciplinary action.” The
change is more consistent with the language on
sanctions for discovery abuse. The amendment
does not change the standard for imposing sanctions which remains that of the pre-1983 Federal
Rule.
Note to 1993 Amendment:
Rule 11(a) was amended to add a requirement that
the signer of pleadings include his telephone
number.
Note to 2016 Amendment:
This amendment clarifies that the electronic
signature of an attorney or party may only be used
in E-Filed pleadings, motions or other papers.
(b) Change of Attorney
An attorney may be changed by consent, or upon
cause shown, and upon such terms as shall be just,
upon application, by order of the Court, and not
App.103a
otherwise. Written notice of change of attorney
must be served as provided by Rule 5.
Note:
This Rule 11(b) retains the requirements of Circuit
Court Rule 7, and represents no change in State or
Federal practice.
(c) Affidavits and Verifications
Affidavits or verifications authorized or permitted
under these Rules shall be written statements or
declarations by a party or his attorney of record
or of a witness, sworn to or affirmed before an
officer authorized to administer oaths, that the
affiant knows the facts stated to be true of his own
knowledge, except as to those matters stated on
information and belief and as to those matters that
he believes them to be true. When a corporation is
a party the verifications may be made by any
officer or agent thereof. When a partnership or
other unincorporated association is the party under
a common name the verification may be made by a
member or officer thereof. When the State or any
officer thereof in its behalf is a party, verifications
may be made by any person acquainted with the
facts.
(d) Attorney as Surety
No attorney or other officer of the court shall
become surety upon any undertaking or bond filed
in any action.
Note:
Rules 11(c) and 11(d) are added to the Federal
Rule to preserve the requirements of Code §
App.104a
15-1-240, and Circuit Court Rule 9.
Note to 1986 Amendment:
Rule 11(c) is amended to permit an employee of
an attorney to probate affidavits or verifications
on pleadings or other papers, although a deposition
cannot be taken before such employee under Rule
28(c).
App.105a
REMITTITUR IN EX PARTE COOPER
(DECEMBER 12, 2018)
THE STATE OF SOUTH CAROLINA
IN THE SUPREME COURT
________________________
EX PARTE: JOHN HUGHES COOPER,
Appellant,
IN RE: BETTY FISHER and LISA FISHER,
Plaintiffs,
v.
BESSIE HUCKABEE,
KAY PASSAILAIGUE SLADE, and SANDRA BYRD,
Respondents.
________________________
Appellate Case No. 2018-000662
Memorandum Opinion No. 2018-M0-040
Appeal From Charleston County Thomas L.
Hughston, Jr., Circuit Court Judge
Before: BEATTY, C.J., KITTREDGE,
HEARN, FEW and JAMES, JJ.
PER CURIAM:
John Hughes Cooper was held jointly and severally liable for a sanctions award in the amount of
$170,623.68 in attorneys’ fees under the South
App.106a
Carolina Frivolous Civil Proceedings Sanctions Act
(FCPSA)1 and Rule 11, SCACR, in connection with his
representation of Lisa and Betty Fisher in cases
involving the estate of Alice Shaw-Baker. We have
painstakingly reviewed the record and find there is
no evidence to support an award of sanctions or a
finding of misconduct against Cooper. We therefore
reverse all judgments against Cooper pursuant to Rule
220(b)(1), SCACR. This case is concluded.
REVERSED.
BEATTY, C.J., KITTREDGE, HEARN, FEW and
JAMES, JJ., concur.
1 See S.C. Code Ann. §§ 15-36-10 to-100 (Supp. 2018).
App.107a
LETTER TO OFFICE OF SOUTH CAROLINA
DISCIPLINARY COUNSEL
(SEPTEMBER 27, 2018)
STATE OF SOUTH CAROLINA
________________________
Thomas L. Hughston, Jr.
Circuit Judge, Retired
100 Broad Street, Suite 368
Charleston, SC 29401-2285
Telephone: (843) 958-5100
Fax: (843) 958-5108
Email: thughstonj@sccourts.org
Ms. Kelly B. Arnold
Assistant Disciplinary Counsel
P.O. Box 12159
Columbia, SC 29211
Re: John Hughes Cooper 18-DE-L-0330
Lisa Fisher 18-DE-L-0331
Dear Ms. Arnold:
Since my last communication to you in the above
matters, I had to do several additional Orders that
are of course on file with the Clerk of Court, and these
Orders should also be considered.
Additionally, I believe you should consider other
cases involving these attorneys that show a pattern
of frivolous actions. See Fisher, et al. vs. Huckabee,
et al., Supreme Court of South Carolina, Appellate
Case No. 2016-000320. An examination of the pleadings
and facts again shows a frivolous suit. The claims of
App.108a
attorney negligence and abuse, neglect and wrongful
death are preposterous.
Also, there was an ejectment case involving these
parties that I believe has been ended by the Supreme
Court of South Carolina.
Further, I am enclosing copies of six cases reported
from California involving Lisa Fisher that I think again
support the conclusion that she has a pattern of frivolous suits.
Thank you for your attention to these matters.
Very truly yours,
/s/ Thomas L. Hughston, Jr.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.