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.

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