Ellis v. Davidson, No. 3748.

CourtCourt of Appeals of South Carolina
Writing for the CourtANDERSON, J.
Citation595 S.E.2d 817,358 S.C. 509
Docket NumberNo. 3748.
Decision Date01 March 2004
PartiesMark W. ELLIS, individually, and in the right of American Survey, Inc., Appellant, v. Eric J. DAVIDSON, L. Russell Bennett, Jarrel L. Wigger, Mark W. Weeks, Kelly Davis, American Survey, Inc., Davidson and Bennett, Absolute Survey, Inc., jointly and severally, Respondents.

358 S.C. 509
595 S.E.2d 817

Mark W. ELLIS, individually, and in the right of American Survey, Inc., Appellant,
v.
Eric J. DAVIDSON, L. Russell Bennett, Jarrel L. Wigger, Mark W. Weeks, Kelly Davis, American Survey, Inc., Davidson and Bennett, Absolute Survey, Inc., jointly and severally, Respondents

No. 3748.

Court of Appeals of South Carolina.

Heard February 11, 2004.

Decided March 1, 2004.

Rehearing Denied May 20, 2004.


358 S.C. 514
Cynthia B. Castengera, of Newland, NC and D. Dusty Rhoades, of Charleston, for appellant

M. Dawes Cooke, Jr. and K. Michael Barfield, both of Charleston, for respondents.

ANDERSON, J.:

Mark W. Ellis, individually and on behalf of American Survey, Inc., appeals from the trial judge's grant of partial summary judgment to Respondents. We affirm in part, reverse in part, and remand.

FACTS/PROCEDURAL BACKGROUND

In the spring of 1998, Ellis, a licensed surveyor, decided to start his own residential surveying company. Ellis contacted Rusty Bennett, a partner at the law firm of Davidson & Bennett (the Firm) because he needed an investor. Ellis had performed prior survey work for the Firm. According to Ellis, Bennett agreed to invest in the company and stated:

358 S.C. 515
That he would handle all of the legal paperwork and make sure that the company was set up properly and that [Ellis's] rights were protected.... [Bennett] said he would cover all legal advice involving [Ellis] and the company, for [Ellis] not to worry about anything other than producing surveys.

Ellis believed that, in having the Firm invest in the business, he would be able to perform work for the Firm and have the Firm set up the surveying company in such a way that he was protected from liability. After Bennett invested, the business ownership was: Bennett—60%; Ellis—40%; the 1000 shares of common stock would be divided proportionally, with no restrictions placed upon them; Bennett would "set up" the surveying company; and Ellis would be employed by the surveying company. Other than proposed business plans, no written contracts or documents memorialize the agreement between Ellis and Bennett. The parties created American Survey, Inc. (American). Bennett set up the company and arranged for American to lease space in a building he owned. At some point, Bennett's law partner in the Firm, Eric Davidson, became a shareholder in American. Ellis claimed that, in January of 1999, he "was told [the new percentage of ownership] was one-third, one-third, one-third." Bennett professed he "believe[d] ... the agreement ... was that [he and Davidson] would hold 65 percent of the shares and [Ellis] would have 35 percent of the shares."1

Several months later, Bennett retired from the practice of law and sold his interest in the Firm and the Firm's businesses (including American) to his three partners: Davidson, Jarrell Wigger, and Mark Weeks (hereinafter, "the Firm"). After Bennett's retirement, the Firm instructed Ellis not to sign a new lease with Bennett. The Firm met with Ellis after discovering Bennett never filed American's corporate papers. In fact, Bennett never kept corporate minutes, records, or by-laws for American. Ellis testified the members of the Firm told him they were acting as attorneys for the corporation, and that he should sign the papers as instructed.

358 S.C. 516
Ellis and the Firm soon disagreed over the way Ellis operated American. At a meeting in March of 1999, Ellis told the Firm he wanted to buy out their interest in American. After offers and counteroffers were made and rejected, the parties came to a verbal agreement about the buyout. The agreement was put into writing, and Ellis and Davidson faxed revisions back and forth. While admitting the buyout negotiations were "a matter strictly of business," Ellis stated the Firm did not advise him to obtain separate counsel, and that he thought the Firm acted as attorneys on behalf of both American and himself. The agreement was not finalized, as Ellis wanted a written commitment from the Firm that American would still continue to be used as the Firm's chief surveying company. In order to force a decision, Ellis informed the Firm that he would close American's doors and terminate its employees if the Firm did not agree to his terms. The Firm then decided to close American themselves. They arrived at American with deputy sheriffs, terminated the employees, and changed the locks

At approximately the same time Ellis and the Firm were in the midst of buyout discussions, the Firm decided to form a new surveying company. Members of the Firm testified the new company, Absolute Survey Inc. (Absolute), would be run by Kelly Davis and would perform surveying for the Firm after Ellis bought their interests in American. Ellis declared that, while he was aware of Absolute's formation, he did not realize it would be a competing surveying company.

On behalf of American and in his individual capacity, Ellis filed an amended complaint against the Firm (including the lawyers in their individual capacities), American, Absolute, and Davis. Ellis alleged various causes of action, including breach of fiduciary duty, legal malpractice, conversion, and civil conspiracy. The Firm and the lawyers in their individual capacities answered, counterclaimed, and moved for summary judgment. Additionally, the Firm asked for summary judgment for Davis as to all claims against him.

The Circuit judge granted the Firm's summary judgment motion as to the causes of action for legal malpractice and breach of fiduciary duty. The judge denied the motion for summary judgment as to the remaining causes of action.

358 S.C. 517
Further, the judge granted summary judgment in Davis's favor as to all causes of action against him. The judge denied Ellis's subsequent motion for reconsideration

ISSUES

I. Did the trial judge err in classifying the relationship that existed between the parties?
II. Did the trial judge err in "discounting" the expert witness affidavit?
III. Did the trial judge err in dismissing Kelly Davis as a party?

STANDARD OF REVIEW

When reviewing the grant of a summary judgment motion, the appellate court applies the same standard which governs the trial court under Rule 56(c), SCRCP: 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. Laurens Emergency Med. Specialists v. M.S. Bailey & Sons Bankers, 355 S.C. 104, 584 S.E.2d 375 (2003); Fleming v. Rose, 350 S.C. 488, 567 S.E.2d 857 (2002); Regions Bank v. Schmauch, 354 S.C. 648, 582 S.E.2d 432 (Ct.App.2003); Redwend Ltd. P'ship v. Edwards, 354 S.C. 459, 581 S.E.2d 496 (Ct.App.2003). In determining whether any triable issue of fact exists, the evidence and all inferences which can reasonably be drawn therefrom must be viewed in the light most favorable to the nonmoving party. Sauner v. Public Serv. Auth., 354 S.C. 397, 581 S.E.2d 161 (2003); Hendricks v. Clemson Univ., 353 S.C. 449, 578 S.E.2d 711 (2003); McNair v. Rainsford, 330 S.C. 332, 499 S.E.2d 488 (Ct.App.1998); see also Laurens Emergency Med. Specialists, 355 S.C. at 108, 584 S.E.2d at 377 (stating that in reviewing summary judgment motion, facts and circumstances must be viewed in light most favorable to non-moving party). If triable issues exist, those issues must go to the jury. Baril v. Aiken Reg'l Med. Ctrs., 352 S.C. 271, 573 S.E.2d 830 (Ct.App.2002); Young v. South Carolina Dep't of Corrections, 333 S.C. 714, 511 S.E.2d 413 (Ct.App.1999).

Summary judgment is appropriate where the pleadings, depositions, answers to interrogatories, and admissions on file,

358 S.C. 518
together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Russell v. Wachovia Bank, N.A., 353 S.C. 208, 578 S.E.2d 329 (2003); Regions Bank, 354 S.C. at 659, 582 S.E.2d at 438; Hedgepath v. American Tel. & Tel. Co., 348 S.C. 340, 559 S.E.2d 327 (Ct.App.2001); Rule 56(c), SCRCP. All ambiguities, conclusions, and inferences arising from the evidence must be construed most strongly against the moving party. Schmidt v. Courtney, 357 S.C. 310, 592 S.E.2d 326 (Ct.App.2003); Bayle v. South Carolina Dep't of Transp., 344 S.C. 115, 542 S.E.2d 736 (Ct.App.2001); see also Ferguson v. Charleston Lincoln Mercury, Inc., 349 S.C. 558, 563, 564 S.E.2d 94, 96 (2002) ("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.").

Summary judgment is not appropriate where further inquiry into the facts of the case is desirable to clarify the application of the law. Brockbank v. Best Capital Corp., 341 S.C. 372, 534 S.E.2d 688 (2000); Bayle, 344 S.C. at 120, 542 S.E.2d at 738. Summary judgment should not be granted even when there is no dispute as to evidentiary facts if there is disagreement concerning the conclusion to be drawn from those facts. Moriarty v. Garden Sanctuary Church of God, 341 S.C. 320, 534 S.E.2d 672 (2000). However, when plain, palpable, and indisputable facts exist on which reasonable minds cannot differ, summary judgment should be granted. Hedgepath, 348 S.C. at 355, 559 S.E.2d at 336; Pye v. Aycock, 325 S.C. 426, 480 S.E.2d 455 (Ct.App.1997).

Under Rule 56(c), SCRCP, the party seeking summary judgment has the initial burden of demonstrating the absence of a genuine issue of material fact. Regions Bank, 354 S.C. at 659, 582 S.E.2d at 438; Trivelas v. South Carolina Dep't of Transp., 348 S.C. 125, 558 S.E.2d 271 (Ct.App.2001). Once the party moving for summary judgment meets the initial burden of showing an absence of evidentiary support for the opponent's case, the opponent cannot simply rest on mere allegations or denials contained in the pleadings. Regions Bank, 354 S.C. at 660, 582 S.E.2d at 438. Rather, the nonmoving...

To continue reading

Request your trial
69 practice notes
  • Miller v. Blumenthal Mills, Inc., No. 4013.
    • United States
    • United States State Supreme Court of South Carolina
    • 5 Julio 2005
    ...and indisputable facts exist on which reasonable minds cannot differ, summary judgment should be granted. Ellis Page 730 v. Davidson, 358 S.C. 509, 595 S.E.2d 817 (Ct.App.2004). The party seeking summary judgment has the burden of clearly establishing the absence of a genuine issue of mater......
  • Bennett v. Investors Title Ins. Co., No. 4152.
    • United States
    • Court of Appeals of South Carolina
    • 25 Septiembre 2006
    ...should be granted. Rife v. Hitachi Const. Mach. Co., Ltd., 363 S.C. 209, 214, 609 S.E.2d 565, 568 (Ct.App.2005); Ellis v. Davidson, 358 S.C. 509, 518, 595 S.E.2d 817, 822 (Ct.App. The party seeking summary judgment has the burden of clearly establishing the absence of a genuine issue of mat......
  • Moore v. Weinberg, No. 4209.
    • United States
    • Court of Appeals of South Carolina
    • 20 Febrero 2007
    ...When reasonable minds cannot differ on plain, palpable, and indisputable facts, summary judgment should be granted. Ellis v. Davidson, 358 S.C. 509, 595 S.E.2d 817 (Ct.App.2004). The party seeking summary judgment has the burden of clearly establishing the absence of a genuine issue of mate......
  • Singleton v. Sherer, No. 4346.
    • United States
    • Court of Appeals of South Carolina
    • 25 Febrero 2008
    ...When reasonable minds cannot differ on plain, palpable, and indisputable facts, summary judgment should be granted. Ellis v. Davidson, 358 S.C. 509, 595 S.E.2d 817 (Ct.App.2004). The party seeking summary judgment has the burden of clearly establishing the absence of a genuine issue of mate......
  • Request a trial to view additional results
69 cases
  • Miller v. Blumenthal Mills, Inc., No. 4013.
    • United States
    • United States State Supreme Court of South Carolina
    • 5 Julio 2005
    ...and indisputable facts exist on which reasonable minds cannot differ, summary judgment should be granted. Ellis Page 730 v. Davidson, 358 S.C. 509, 595 S.E.2d 817 (Ct.App.2004). The party seeking summary judgment has the burden of clearly establishing the absence of a genuine issue of mater......
  • Bennett v. Investors Title Ins. Co., No. 4152.
    • United States
    • Court of Appeals of South Carolina
    • 25 Septiembre 2006
    ...should be granted. Rife v. Hitachi Const. Mach. Co., Ltd., 363 S.C. 209, 214, 609 S.E.2d 565, 568 (Ct.App.2005); Ellis v. Davidson, 358 S.C. 509, 518, 595 S.E.2d 817, 822 (Ct.App. The party seeking summary judgment has the burden of clearly establishing the absence of a genuine issue of mat......
  • Moore v. Weinberg, No. 4209.
    • United States
    • Court of Appeals of South Carolina
    • 20 Febrero 2007
    ...When reasonable minds cannot differ on plain, palpable, and indisputable facts, summary judgment should be granted. Ellis v. Davidson, 358 S.C. 509, 595 S.E.2d 817 (Ct.App.2004). The party seeking summary judgment has the burden of clearly establishing the absence of a genuine issue of mate......
  • Singleton v. Sherer, No. 4346.
    • United States
    • Court of Appeals of South Carolina
    • 25 Febrero 2008
    ...When reasonable minds cannot differ on plain, palpable, and indisputable facts, summary judgment should be granted. Ellis v. Davidson, 358 S.C. 509, 595 S.E.2d 817 (Ct.App.2004). The party seeking summary judgment has the burden of clearly establishing the absence of a genuine issue of mate......
  • 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