Amerson v. Ervin
| Decision Date | 18 January 2006 |
| Docket Number | 2006-UP-044 |
| Parties | Kenneth L. Amerson, Personal Representative of the Estate of Sallie Louise A. Newsome, Appellant, v. Gena Phillips Ervin, as Personal Representative of the Estate of Harley A. Newsome; Christine N. Tolson, Individually and as Conservator for Sallie Louise A. Newsome, deceased; Cely Baker Reynolds, as Guardian ad Litem for Sallie Louise A. Newsome, deceased; John H. Newsome, Sr.; and John H. Newsome Jr., Defendants, Of Whom Christine N. Tolson, John H. Newsome, Sr., and John H. Newsome Jr. are the Respondents. |
| Court | South Carolina Court of Appeals |
THIS OPINION HAS NO PRECEDENTIAL VALUE. IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 239(d)(2), SCACR.
Submitted December 1, 2005
Appeal From Darlington County J. Michael Baxley, Circuit Court Judge
Walter B. Todd, Jr. and J. Derrick Jackson, both of Columbia, for Appellant.
David Craig Brown, R. Wayne Byrd, and Julie J. Moose, all of Florence, for Respondents.
Kenneth Amerson, personal representative of Sallie Louise A Newsome's estate, contends the trial court erred in granting summary judgment on his claims for constructive trust and civil conspiracy as well as on his claim to set aside deeds against John H. Newsome, Sr. and John H. Newsome Jr. In addition, Amerson appeals the dismissal with prejudice of his claims against the remaining defendants for a constructive trust and to set aside the deeds. We affirm. [1]
On September 1, 1998, Harley Newsome (Harley) died testate. Harley was survived by his wife Sallie Newsome (Sallie). Harley's will named Sallie as his sole beneficiary and the executrix of his estate. However, Sallie was suffering from Alzheimer's disease and was placed in a nursing home immediately following Harley's death. Gena Phillips Ervin, an attorney, was appointed personal representative of the estate. Christine Tolson, Harley's sister, was appointed as conservator for Sallie. Cely Baker Reynolds also an attorney, was appointed as attorney and guardian ad litem for Sallie.
On January 12, 1999, Ervin filed a petition for the sale of three parcels of real property to John H. Newsome, Sr. and John H. Newsome, Jr. (the Newsomes) and Tolson. The petition stated Sallie was in a nursing home, and she would need the proceeds from the sale to provide for her continuing welfare and needs. The petition was supported by an appraisal by Everett Johnson Realty valuing the property as farmland for a value of $88, 800. Sallie, through Tolson and Reynolds, was served with notice of the petition and filed answers making no objections to the sale of the property. On January 14 1999, the Honorable Marvin I. Lawson issued an order for the sale of real property (the January 14, 1999 Order) stating it is in the best interests of the Estate of Harley and Sallie Newsome to sell the real property.”
On March 8, 1999, Sallie died without a will, leaving one sister, nieces, and nephews as her intestate heirs. Kenneth L. Amerson, the spouse of one of Sallie's nieces, was appointed as personal representative of Sallie's estate. Upon learning of the previous sale of the property, Amerson had the property reappraised by Robert Christopher who valued the property as commercial land for a value of $263, 200. On September 30, 1999, Amerson filed a Rule 60(b) motion seeking to set aside the January 14, 1999 Order on the grounds the final judgment of the probate court was based on mistake and misrepresentation. The Newsomes then filed a motion to intervene, which was subsequently granted.
On August 16, 2000, a hearing was held, and Judge Lawson entered an order (the October 4, 2000 Order) denying the Rule 60(b) motion on the ground that no mistake or misrepresentation existed which would warrant setting aside the January 14, 1999 Order. Amerson appealed this order to the circuit court stating the following grounds:
On August 20, 2001 the Honorable Ernest Kinard entered an order (the August 20, 2001 Order), affirming the probate court's order. This court subsequently affirmed the circuit court's order. In the Matter of the Estate of Newsome v. Amerson, Op. No. 2003-UP-475 (S.C. Ct. App. filed July 30, 2003).
Amerson commenced this action on April 22, 2002 against the various defendants. The causes of action alleged against the Newsomes included constructive trust, civil conspiracy, and an equitable action to set aside the deeds. The Newsomes filed a motion to dismiss pursuant to Rule 12(b)(6), SCRCP, or in the alternative for summary judgment pursuant to Rule 56, SCRCP.
The trial court granted summary judgment to the Newsomes as to all causes of action. Further, it dismissed with prejudice the causes of action for constructive trust and to set aside deeds as to all defendants. Amerson's first three causes of action against the other defendants were unaffected by the order. The trial court gave numerous reasons for its conclusion, including the following: the case is barred due to a previous Rule 60(b) motion which was denied; barred as Amerson cannot establish the elements of an independent action; barred as a collateral attack of the probate order; barred by the doctrines of res judicata and collateral estoppel; barred as extrinsic fraud cannot be alleged; and finally, barred as untimely. This appeal followed.
When reviewing the grant of a summary judgment motion, appellate courts apply the same standard which governs the trial court under Rule 56(c), SCRCP, which states that summary judgment is proper when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Rule 56(c), SCRCP; Helms Realty, Inc. v. Gibson-Wall Co., 363 S.C. 334, 340, 611 S.E.2d 485, 488 (2005). On appeal from an order granting summary judgment, the appellate court will review all ambiguities, conclusions, and inferences arising in and from the evidence in a light most favorable to the non-moving party below. Willis v. Wu, 362 S.C. 146, 150-51, 607 S.E.2d 63, 65 (2004); see also Schmidt v. Courtney, 357 S.C. 310, 317, 592 S.E.2d 326, 330 (Ct. App. 2003) ().
Additionally, under Rule 12(b)(6), SCRCP, a defendant may make a motion to dismiss based upon the plaintiff's failure to state a claim constituting a cause of action. Baird v. Charleston County, 333 S.C. 519, 527, 511 S.E.2d 69, 73 (1999). The trial judge may dismiss the claim if the defendant demonstrates the plaintiff has failed to state facts sufficient to constitute a cause of action” in the pleadings filed with the court. Williams v. Condon, 347 S.C. 227, 232-33, 553 S.E.2d 496, 499 (Ct. App. 2001) (quoting Rule 12(b)(6), SCRCP). When considering the motion to dismiss for failure to state a claim, the trial court must base its ruling solely upon the allegations made on the face of the complaint. Baird, at 527, 511 S.E.2d at 73; Stiles v. Onorato, 318 S.C. 297, 300, 457 S.E.2d 601, 602-03 (1995). If inferences drawn from the facts alleged on the complaint would entitle the plaintiff to relief on any theory, then the grant of a motion to dismiss for failure to state a claim is improper. Brown v. Leverette, 291 S.C. 364, 366, 353 S.E.2d 697, 698 (1987); McCormick v. England, 328 S.C. 627, 632-33, 494 S.E.2d 431, 433 (Ct. App. 1997). The facts and inferences alleged in the complaint are viewed in the light most favorable to the plaintiff. Toussaint v. Ham, 292 S.C. 415, 416, 357 S.E.2d 8, 9 (1987); Cowart v. Poore, 337 S.C. 359, 364, 523 S.E.2d 182, 184-85 (Ct. App. 1999).
Amerson contends the trial court erred in granting summary judgment to the Newsomes and in dismissing with prejudice the causes of action for constructive trust and to set aside deeds as to all defendants. We disagree.
The doctrine of res adjudicata (or res judicata) in the strict sense of that time-honored Latin phrase had its origin in the principle that it is in the public interest that there should be an end of litigation and that no one should be twice sued for the same cause of action.” First Nat'l Bank v. United States Fid. & Guar. Co., 207 S.C. 15, 24, 35 S.E.2d 47, 56 (1945). Under this doctrine, a final judgment on the merits in a prior action will conclude the parties and their privies in a second action based on the same claim as to the issues actually litigated and as to issues that might have been litigated in the first action. Sub-Zero Freezer Co. v. R.J. Clarkson Co., 308 S.C. 188, 190-91, 417 S.E.2d 569, 571 (1992); Foran v. USAA Cas. Ins. Co., 311 S.C. 189, 190-91, 427 S.E.2d 918, 919 (Ct. App. 1993).
The doctrine provides that an existing final judgment rendered upon the merits, without fraud or collusion, by a court of competent jurisdiction, is conclusive of the rights questions, and facts in issue as to the parties and their privies. Griggs v....
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