Bryson v. Bryson, No. 4400.

CourtCourt of Appeals of South Carolina
Writing for the CourtWilliams
Citation378 S.C. 502,662 S.E.2d 611
PartiesCarl N. BRYSON, as Personal Representative of the Estate of Conrad Ardell Bryson and its heirs, Respondent, v. Herman Billy BRYSON, Appellant.
Docket NumberNo. 4400.
Decision Date05 June 2008
662 S.E.2d 611
378 S.C. 502
Carl N. BRYSON, as Personal Representative of the Estate of Conrad Ardell Bryson and its heirs, Respondent,
v.
Herman Billy BRYSON, Appellant.
No. 4400.
Court of Appeals of South Carolina.
Submitted May 1, 2008.
Decided June 5, 2008.

[662 S.E.2d 612]

David R. Harrison, of Pickens, for Appellant.

William Douglas Richardson, of Easley, for Respondent.

WILLIAMS, J.


Carl N. Bryson (Carl), as personal representative (PR) of Conrad Ardell Bryson's (Ardell) estate, sued Herman Billy Bryson (Billy) for breach of fiduciary duty. The special referee awarded the estate $306,786.49 in damages and set aside a deed that Ardell transferred to Billy. We affirm.

FACTS

On December 8, 1997, Ardell appointed Billy, his half-brother, as his power of attorney. From 2001 until Ardell's death, Billy spent time with Ardell and took him to the doctor. In 1997, Dr. Thomas E. Parrish (Dr. Parrish) diagnosed Ardell with severe dementia, and later in 1998, Dr. Parrish diagnosed Ardell with Alzheimer's disease. Billy testified he was unaware of the diagnoses. However, several witnesses testified Ardell's symptoms and behavior stemming from Alzheimer's disease were apparent.

At trial, Dr. Parrish opined to a reasonable degree of medical certainty, Ardell was not capable of caring for himself. Furthermore, Dr. Parrish testified Ardell did not have the mental competency to make everyday decisions, transfer personal or real property, or handle his finances. Glenda Bryson Smith (Glenda) and Laura Jane Smith (Laura), Ardell's caretakers, testified Ardell displayed signs of his illness and acted in a childlike manner. Further, Glenda testified Billy hired her to care for Ardell and he knew about Ardell's condition.

After Billy's power of attorney appointment, he and Ardell opened a joint bank account, and several checks were written from that account. One check for $50,000 was written as a loan to an insurance company, which Billy testified was an investment in Hal Blackwell Insurance Company. Billy paid off his son's mortgage with another check from the joint account in the amount of $25,877. Billy also purchased a car, paid for home improvements, took out cash, and made several other purchases for his personal benefit with Ardell's funds while acting as Ardell's power of attorney. Additionally, Ardell deeded property to Billy without consideration on August 8, 2002.

Carl, as PR of Ardell's estate, filed a summons and complaint against Billy in Pickens County on August 18, 2004, alleging Billy breached his fiduciary duty as Ardell's power of attorney and committed fraud and conversion. Billy's answer sought dismissal of the action, but the case proceeded to trial in front of a special referee.1

At trial, Billy sought to have Ardell's neighbor, Brian Lloyd Smith (Smith), a witness whom Billy did not name in his answers to the interrogatories and whom Carl was not informed of until the morning of the trial, testify as to his observations of Ardell. The special referee allowed Billy to proffer Smith's testimony but ultimately excluded the evidence. Additionally, at the close of trial, Billy moved for an involuntary nonsuit, claiming Carl was not the real party in interest. The special referee denied this motion.

The special referee found Billy breached his fiduciary duty to Ardell and awarded the estate $306,786.49. Additionally, the special referee ordered the deed of real property, which Ardell transferred to Billy and executed on August 8, 2002, be set aside in its entirety except for the portion of the parcel Ardell transferred to Providence Christian Academy. The special referee ordered the property be included in Ardell's estate. This appeal follows.

STANDARD OF REVIEW

"[A] claim of breach of fiduciary duty is an action at law[,] and the trial [court's] findings will be upheld unless without evidentiary support." Jordan v. Holt, 362 S.C. 201, 205, 608 S.E.2d 129, 131 (2005). Accordingly, our standard of review extends only to the correction of errors of law, and "we will not disturb the referee's factual findings that have some evidentiary support."

662 S.E.2d 613

Jones v. Daley, 363 S.C. 310, 314, 609 S.E.2d 597, 599 (Ct.App.2005).

LAW/ANALYSIS

I. Exclusion of a Witness

Billy contends the special referee erred in excluding Smith's testimony. We disagree.

"The decision of whether or not to allow a witness to testify who was not previously listed on answers to interrogatories rests within the sound discretion of the trial [court]." Jumper v. Hawkins, 348 S.C. 142, 150, 558 S.E.2d 911, 915 (Ct.App.2001) (citation omitted). "Exclusion of a witness is a sanction which should never be lightly invoked." Id. at 149, 558 S.E.2d at 915 (citation omitted). Before imposing the sanction of excluding a witness, a trial court is required to consider and evaluate several factors:

(1) the type of witness involved; (2) the content of the evidence emanating from the proffered witness; (3) the nature of the failure or neglect or refusal to furnish the witness' name; (4) the degree of surprise to the other party, including the prior knowledge of the name of the witness; and (5) the prejudice to the opposing party.

Id. at 152, 558 S.E.2d at 916.

In Barnette v. Adams Bros. Logging, Inc., the South Carolina Supreme Court found the trial court abused its discretion in excluding an expert witness when there was no disobedience of any court order and no prejudice to the opposing party other than necessity of further discovery. 355 S.C. 588, 593, 586 S.E.2d 572, 575 (2003). Additionally, our Supreme Court stated the exclusion rule is designed to promote decisions on the merits after a full and fair hearing, and the trial court's sanction should serve to protect the rights of discovery provided by the rules of civil...

To continue reading

Request your trial
60 practice notes
  • Keene v. CNA Holdings, LLC, Appellate Case No. 2016-000227
    • United States
    • Court of Appeals of South Carolina
    • 13 Febrero 2019
    ...S.E.2d 843, 847 n.6 (2017) ("A bald assertion, without supporting argument, does not preserve an issue for appeal."); Bryson v. Bryson , 378 S.C. 502, 510, 662 S.E.2d 611, 615 (Ct. App. 2008) ("An issue is deemed abandoned and will not be considered on appeal if the argument is raised in a ......
  • Mead v. Beaufort Cnty. Assessor, Appellate Case No. 2014-002355
    • United States
    • Court of Appeals of South Carolina
    • 21 Diciembre 2016
    ...abandoned and will not be considered on appeal if the argument is raised in a brief but not supported by authority." Bryson v. Bryson , 378 S.C. 502, 510, 662 S.E.2d 611, 615 (Ct. App. 2008). "[S]hort, conclusory statements made without supporting authority are deemed abandoned on appeal an......
  • Daily v. Daily, Appellate Case No. 2017-001199
    • United States
    • Court of Appeals of South Carolina
    • 10 Febrero 2021
    ...the family court's division of the GAL's fees. However, he does not cite any authority to support his argument. See Bryson v. Bryson , 378 S.C. 502, 510, 662 S.E.2d 611, 615 (Ct. App. 2008) ("An issue is deemed abandoned and will not be considered on appeal if the argument is raised in a br......
  • Snow v. Smith, Appellate Case No. 2013–002727.
    • United States
    • Court of Appeals of South Carolina
    • 2 Marzo 2016
    ...regarding a particular argument, the argument is abandoned and the court will not address the merits of the issue); Bryson v. Bryson, 378 S.C. 502, 510, 662 S.E.2d 611, 615 (Ct.App.2008) ("An issue is deemed abandoned and will not be considered on appeal if the argument is raised in a brief......
  • Request a trial to view additional results
60 cases
  • Keene v. CNA Holdings, LLC, Appellate Case No. 2016-000227
    • United States
    • Court of Appeals of South Carolina
    • 13 Febrero 2019
    ...S.E.2d 843, 847 n.6 (2017) ("A bald assertion, without supporting argument, does not preserve an issue for appeal."); Bryson v. Bryson , 378 S.C. 502, 510, 662 S.E.2d 611, 615 (Ct. App. 2008) ("An issue is deemed abandoned and will not be considered on appeal if the argument is raised in a ......
  • Mead v. Beaufort Cnty. Assessor, Appellate Case No. 2014-002355
    • United States
    • Court of Appeals of South Carolina
    • 21 Diciembre 2016
    ...abandoned and will not be considered on appeal if the argument is raised in a brief but not supported by authority." Bryson v. Bryson , 378 S.C. 502, 510, 662 S.E.2d 611, 615 (Ct. App. 2008). "[S]hort, conclusory statements made without supporting authority are deemed abandoned on appeal an......
  • Daily v. Daily, Appellate Case No. 2017-001199
    • United States
    • Court of Appeals of South Carolina
    • 10 Febrero 2021
    ...the family court's division of the GAL's fees. However, he does not cite any authority to support his argument. See Bryson v. Bryson , 378 S.C. 502, 510, 662 S.E.2d 611, 615 (Ct. App. 2008) ("An issue is deemed abandoned and will not be considered on appeal if the argument is raised in a br......
  • Snow v. Smith, Appellate Case No. 2013–002727.
    • United States
    • Court of Appeals of South Carolina
    • 2 Marzo 2016
    ...regarding a particular argument, the argument is abandoned and the court will not address the merits of the issue); Bryson v. Bryson, 378 S.C. 502, 510, 662 S.E.2d 611, 615 (Ct.App.2008) ("An issue is deemed abandoned and will not be considered on appeal if the argument is raised in a brief......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT