Kelly v. Logan, Jolley, & Smith, L.L.P.

Decision Date18 May 2009
Docket NumberNo. 4547.,4547.
CourtSouth Carolina Court of Appeals
PartiesGladys KELLY, Appellant, v. LOGAN, JOLLEY, & SMITH, L.L.P., James D. Jolley, Jr., Luther McDaniel, and David Sumner, jointly and severally, Defendants, of whom Logan, Jolley, & Smith, L.L.P., James D. Jolley, Jr., and David Sumner are, Respondents.

Gloria Y. Leevy, of Greenville, for Appellant.

Samuel W. Outten, William J. Watkins, and Michael J. Bogle, of Greenville and Susan Taylor Wall and Kristina Y. Cook, of Charleston, for Respondents.

GEATHERS, J.:

This legal malpractice matter comes before this Court after the circuit court granted summary judgment in favor of the law firm of Logan, Jolley, & Smith, LLP, James Jolley, Jr., and David Sumner (collectively Respondents) based on the expiration of the statute of limitations. On appeal, Gladys Kelly (Kelly) argues that she timely discovered her cause of action for legal malpractice less than three years prior to the filing of her complaint against Respondents. Alternatively, Kelly contends that Respondents should be equitably estopped from asserting the statute of limitations as a bar to her legal malpractice claims. We affirm.

FACTS

On May 1, 1997, Kelly gave birth to a son, Watavious Barker (Watavious). At birth, Watavious suffered severe and permanent injuries, including irreversible brain damage, due to certain improper delivery procedures employed by his health care providers. Watavious spent the first two years of his life in the hospital and was then placed with a foster family who currently cares for him. Neither Kelly nor Watavious' natural father, Wiley Barker (Barker), have made significant efforts since his birth to financially support, care for, or obtain custody of Watavious.

In 1999, Kelly contacted Luther McDaniel (McDaniel), a Georgia attorney, to pursue an action on Watavious' behalf. McDaniel associated James Jolley, Jr., and David Sumner as South Carolina counsel. On April 12, 1999, Respondents filed a medical malpractice suit against the hospital, the delivering doctors, and the doctors' practice. Respondents sought damages for Barker in his individual capacity as well as in his capacity as natural father and guardian ad litem for Watavious. Kelly was not named as an individual party-plaintiff. On April 19, 1999, a week after Respondents filed the medical malpractice action, Kelly signed a letter drafted by McDaniel, in which she stated, "I do not wish to participate in the lawsuit as a party to the action.... I do not believe the chances of success in the case for my son will be improved by joining the lawsuit as a separate party-plaintiff."

On August 8, 2000, Respondents filed a motion to substitute Kelly for Barker as Watavious' guardian ad litem. The circuit court granted this motion on January 3, 2001. On that date, the circuit court also denied Respondents' request to amend the complaint to include Kelly as an individual party-plaintiff in the medical malpractice action. In so doing, the court specifically stated, "Gladys Kelly [is] not an individual party-plaintiff." (emphasis in original). By this time, the statute of limitations on any of Kelly's potential medical malpractice claims had expired. On March 1, 2001, the claims against the hospital were settled for $450,000. Both Kelly and Barker received $7,500 of this settlement. The caption on the settlement indicated that Kelly was representing Watavious' interests as his natural mother and guardian ad litem but not as an individual party-plaintiff.

Subsequently, on October 1, 2002, Jolley and Sumner moved to be relieved as counsel in the remaining medical malpractice case against the doctors and their practice based upon a conflict of interest, which was not divulged in open court due to its confidential nature stemming from the attorney-client relationship. Kelly and Barker were present at this hearing. The court specifically questioned Kelly on whether anyone had coerced, forced, or threatened her into consenting to relieve Respondents, and Kelly replied, "No, sir." In addition, Kelly testified under oath that she understood the basis for Respondents' motion and that she agreed with their decision to be relieved. In its November 12, 2002 order granting Respondents' motion, the circuit court stated that Respondents "ha[d] done everything necessary to adequately protect the legal interests of [Barker, Kelly, and Watavious] in this matter."

After the settlement against the hospital, Watavious' foster parents petitioned the family court on May 20, 2002, to terminate Kelly and Barker's parental rights and to adopt Watavious. The family court continued the matter based on its inability to determine how the child came into the foster parents' care as well as whether the Department of Social Services ever had custody of Watavious. Then, on December 12, 2002, Watavious' foster parents moved to terminate Kelly as Watavious' guardian ad litem and to substitute themselves as party-plaintiffs in Watavious' medical malpractice suit. Kelly was in attendance at the January 9, 2003 hearing on this motion. The court reiterated at the outset that Respondents had been relieved of all obligations to represent Kelly in the remaining medical malpractice suit pursuant to its November 2002 order. In granting the foster parents' motion, the court also terminated Luther McDaniel's authorization to practice law pro hac vice in South Carolina for purposes of the medical malpractice case due to his repeated failure to respond to court requests as well as his failure to appear at the hearing. At the hearing and later in the court's order, the court made repeated serious admonitions to Kelly to obtain counsel immediately, and it granted Kelly a thirty-day stay of all legal proceedings to find substitute counsel. A copy of the court's January 29, 2003 order was mailed to Kelly by certified mail on February 8, 2003.

On September 17, 2003, the circuit court dismissed Kelly as mother and natural guardian from the medical malpractice action against the remaining defendant doctor and his practice. Shortly thereafter, the medical malpractice claims against the delivering doctor and his practice were settled for $350,000. Kelly did not receive any proceeds from this settlement.

Almost three years later, Kelly filed the instant legal malpractice suit against Respondents on September 11, 2006. Kelly alleged in her complaint that she retained Respondents to represent her individual interests in the medical malpractice suits and that they failed to sue on her behalf for alleged personal injuries suffered during Watavious' birth. Respondents then filed a motion for summary judgment, claiming the three-year statute of limitations had expired on Kelly's claim for legal malpractice. On March 27, 2007, the circuit court granted summary judgment in favor of Respondents. The circuit court held that Kelly was on inquiry notice, if not actual notice, that a cause of action might exist against Respondents on at least five instances between April 12, 1999, and January 29, 2003; thus, Kelly failed to timely file her complaint within the three-year statute of limitations. This appeal followed.

STANDARD OF REVIEW

Upon review of the circuit court's grant of summary judgment, the appellate court applies the same standard applied by the circuit court pursuant to Rule 56(c), SCRCP. George v. Fabri, 345 S.C. 440, 451, 548 S.E.2d 868, 873 (2001). The circuit court should grant summary judgment "if the pleadings, depositions, answers to interrogatories, and admissions on file, 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 a judgment as a matter of law." Rule 56(c), SCRCP; Russell v. Wachovia Bank, N.A., 353 S.C. 208, 217, 578 S.E.2d 329, 334(2003). In determining whether any triable issues of fact exist, the evidence and all reasonable inferences must be viewed in the light most favorable to the non-moving party. Sauner v. Pub. Serv. Auth. of S.C., 354 S.C. 397, 404, 581 S.E.2d 161, 165 (2003).

LAW/ANALYSIS
I. Running of the Statute of Limitations

Kelly argues the circuit court erred in granting Respondents' motion for summary judgment based on the expiration of the statute of limitations. We disagree.

Statutes of limitations are not simply technicalities. Moates v. Bobb, 322 S.C. 172, 176, 470 S.E.2d 402, 404 (Ct.App.1996). On the contrary, they have long been respected as fundamental to a well-ordered judicial system. Hooper v. Ebenezer Senior Serv. & Rehab., Ctr., 377 S.C. 217, 227, 659 S.E.2d 213, 218 (Ct.App.2008). Statutes of limitations embody important public policy concerns as they stimulate activity, punish negligence, and promote repose by giving security and stability to human affairs. Moates, 322 S.C. at 172, 470 S.E.2d at 404. One purpose of a statute of limitations is "to relieve the courts of the burden of trying stale claims when a plaintiff has slept on his [or her] rights." McKinney v. CSX Transp., Inc., 298 S.C. 47, 49-50, 378 S.E.2d 69, 70 (Ct.App.1989) (internal quotations and citations omitted). Another purpose of a statute of limitations is to protect potential defendants from protracted fear of litigation. Pelzer v. State, 378 S.C. 516, 520, 662 S.E.2d 618, 620 (Ct.App.2008) (internal citation omitted). "Statutes of limitations are, indeed, fundamental to our judicial system." Hooper, 377 S.C. at 228, 659 S.E.2d at 219 (internal citation omitted).

The statute of limitations for a legal malpractice action is three years. S.C.Code Ann. § 15-3-530(5) (2005) (stating the statute of limitations for "an action for assault, battery, or any injury to the person or rights of another, not arising on contract and not enumerated by law" is three years); see also Berry v. McLeod, 328 S.C. 435, 444-45, 492 S.E.2d 794, 799 (Ct.App.1997) (finding § 15-3-530(5) provides a three-year statute of...

To continue reading

Request your trial
22 cases
  • Manios v. Nelson
    • United States
    • South Carolina Court of Appeals
    • 15 Junio 2010
    ...limitations applies to legal malpractice actions). The discovery rule applies in this action. See Kelly v. Logan, Jolley, & Smith, LLP, 383 S.C. 626, 632-33, 682 S.E.2d 1, 4 (Ct.App.2009) (applying discovery rule in legal malpractice Maher v. Tietex Corp., 331 S.C. 371, 376-77, 500 S.E.2d 2......
  • Kimmer v. Wright
    • United States
    • South Carolina Court of Appeals
    • 19 Diciembre 2011
    ...of limitations for legal malpractice actions). The discovery rule applies in this action. See Kelly v. Logan, Jolley, & Smith, L.L.P., 383 S.C. 626, 632–33, 682 S.E.2d 1, 4 (Ct.App.2009) (applying discovery rule in legal malpractice action). Under the discovery rule, “the three-year clock s......
  • Stokes-Craven Holding Corp. v. Scott L. Robinson & Johnson Mckenzie & Robinson, LLC
    • United States
    • South Carolina Supreme Court
    • 9 Septiembre 2015
    ...or of the facts giving rise thereto." Id. "Statutes of limitations are not simply technicalities." Kelly v. Logan, Jolley & Smith, L.L.P., 383 S.C. 626, 632, 682 S.E.2d 1, 4 (Ct. App. 2009). "On the contrary, they have long been respected as fundamental to a well-ordered judicial system." I......
  • Bellamy v. City of N. Myrtle Beach
    • United States
    • U.S. District Court — District of South Carolina
    • 4 Junio 2015
    ...theory of recovery; instead, reasonable diligence requires a plaintiff to act with some promptness." Kelley v. Logan, Jolley, & Smith, LLP, 682 S.E.2d 1, 4-5 (S.C. Ct. App. 2009) (internal citation and quotation marks omitted). As such, the relative sophistication of Plaintiff is of no mome......
  • 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