Moore v. Benson, 4745.

• Court: Court of Appeals of South Carolina
• Writing for the Court: PER CURIAM.
• Citation: 390 S.C. 153,700 S.E.2d 273
• Parties: James MOORE, Respondent, v. Jeannette M. BENSON and Thomas Lee Benson, Jr., Appellants.
• Docket Number: No. 4745.,4745.
• Decision Date: 22 September 2010

390 S.C. 153
700 S.E.2d 273

James MOORE, Respondent,
v.
Jeannette M. BENSON and Thomas Lee Benson, Jr., Appellants.

No. 4745.

Court of Appeals of South Carolina.

Submitted May 3, 2010.
Decided Sept. 22, 2010.

700 S.E.2d 274

COPYRIGHT MATERIAL OMITTED.

700 S.E.2d 275

Jessica Ann Salvini, of Greenville, for appellants.

Edwin C. Haskell, III, and Chadwick Dean Pye, both of Spartanburg, for respondent.

PER CURIAM.

390 S.C. 157

James Moore filed this action against Jeannette M. Benson and Thomas Lee Benson seeking damages and equitable relief based on allegations of inter alia, fraud, conversion, and breach of fiduciary duty arising from the sale of real property from Moore to the Bensons. The master ordered the Bensons to reconvey the property to Moore, and awarded Moore actual and punitive damages. This appeal followed. We affirm in part, reverse in part, and remand. ¹

FACTS

Moore was eighty-eight years old at the time of the trial in 2008. Moore and Allean Moore were married in 1949. Throughout the marriage, Allean handled the bills and personal business. Moore and Allean lived on seventeen acres in Lyman, South Carolina, in the marital home.

Moore's daughter, Jeannette, testified she began the caretaking of her father as early as 1989. According to Jeannette, BB&T sent Moore a letter, dated January 14, 1999, stating that because Moore was to turn eighty, his retirement account needed to be closed and the money transferred to another account.

700 S.E.2d 276

The funds, $29,433.46, were transferred into account # 471, Jeannette's account. Jeannette testified Moore stated: “Jeannette, you have been taking care [of] me all of these years.... I am giving you all of this money.” According to

390 S.C. 158

her, she was to continue to take care of Moore and pay his bills. On February 16, 1999, Moore signed a durable power of attorney, appointing Jeannette as his attorney-in-fact.

Moore and Allean were divorced by family court orders filed on November 3, 2000, and January 8, 2001. The divorce decree awarded Moore the marital home, valued by the family court at $154,000, and further provided:

9. Husband is to inform wife, within forty-five (45) days of the date of this Order, relative to his election to buy her out; if he is able, or elects to do so, this is to be done within ninety (90) days of the date of this Order.

10. If husband is unable or unwilling to buy out wife's interest, then within forty-five (45) days of the date of this Order, the home is to be placed on the market for sale, under the control of the husband; upon the sale of the home, wife's interest in the marital estate is to be paid forthwith; if the home is not under contract for sale within six (6) months of being placed on the market, wife has the election to petition the Court for a judicial sale.

In the order addressing Allean's motion to reconsider, the family court ordered Moore to pay $52,851 to Allean to effectuate the order relative to equitable distribution.

On March 8, 2001, account # 471, with a balance of $30,338.35 was closed, withdrawing $30,215.82 and incurring a $122.53 early withdrawal penalty. The withdrawal check was made payable to Jeannette. On March 9, 2001, Moore signed a purchase contract and HUD settlement statement, selling the marital home to the Bensons. ² The price paid for the property, $56,294.41, was the amount necessary to pay costs, a small mortgage remaining on the property, and the equitable distribution amount due to Allean.

John H. Heckman, III, a real estate attorney, testified he knew many of the Moore family members, including Moore, from a previous family land dispute. Heckman testified Jeannette and her husband Thomas were purchasing Moore's house to enable Moore to pay Allean her equitable distribution award. Heckman stated he met with Jeannette and Moore in

390 S.C. 159

his conference room and explained each document to Moore. Moore appeared to understand he was selling his property. The proceeds check from the sale was made payable to Allean's attorney.

Moore testified he has a fifth-grade education and cannot read. He also testified Jeannette took over paying his bills after his divorce. He stated Jeannette would have him sign papers from time to time, but she did not explain to him what he was signing. He denied gifting the funds from his retirement account to Jeannette. He claimed he did not know he had signed a power of attorney or closing documents to sell his property. Moore testified he did not intend to sell the property to the Bensons, and he did not talk to Heckman at the closing. He testified he was in the hall at Heckman's office and Jeannette brought papers out for him to sign.

Jeannette testified Moore could read, stating he read the newspaper, his driver's manual, and readings in church. She testified she used the money withdrawn from Moore's retirement account to pay his expenses, such as his divorce attorney's fees of approximately $15,000, and medical bills. She testified Moore asked her to obtain money to pay the equitable distribution award from her siblings. She testified she could not get any of them to provide financial help.

Jeannette took Moore to Heckman's office. According to her, Heckman explained “everything” to Moore and he understood. She agreed to pay all of the taxes and insurance on the house, and Moore could live there for the remainder of his life.

Thomas, Jeannette's husband, testified he cashed in a $20,000 certificate of deposit, a

700 S.E.2d 277

savings bond worth more than $5,000, and borrowed $20,000 to contribute to the purchase of the house. He stated Moore contributed the remaining $10,000 from the funds transferred to Jeannette's name. Thomas also testified he was at the closing, and Moore was present and “fine.”

The master found Jeannette breached her fiduciary duty to Moore and converted Moore's retirement account. He further found the Bensons paid for the property partially with funds belonging to Moore. He also found the Bensons intentionally concealed the truth from Moore and “were not only dishonest but in light of the facts of this case outrageous....” The

390 S.C. 160

master ordered the Bensons to reconvey the property to Moore, pay actual damages of $3,770.26, and pay punitive damages of $25,000. This appeal followed.

STANDARD OF REVIEW

“When legal and equitable actions are maintained in one suit, each retains its own identity as legal or equitable for purposes of the applicable standard of review on appeal.” Corley v. Ott, 326 S.C. 89, 92 n. 1, 485 S.E.2d 97, 99 n. 1 (1997). The reviewing court should “view the actions separately for the purpose of determining the appropriate standard of review.” Jordan v. Holt, 362 S.C. 201, 205, 608 S.E.2d 129, 131 (2005). In an action in equity, tried by the judge alone, without a reference, the appellate court has jurisdiction to find facts in accordance with its own view of the preponderance of the evidence. Townes Assocs., Ltd. v. City of Greenville, 266 S.C. 81, 86, 221 S.E.2d 773, 775 (1976). On the other hand, when reviewing an action at law, on appeal of a case tried without a jury, the appellate court's jurisdiction is limited to the correction of errors at law, and the appellate court will not disturb the judge's findings of fact as long as they are reasonably supported by the evidence. Epworth Children's Home v. Beasley, 365 S.C. 157, 164, 616 S.E.2d 710, 714 (2005).

LAW/ANALYSISI. Statute of Limitations

The Bensons argue the master erred in denying their motion to dismiss based on the statute of limitations. We disagree.

This action is governed by a three-year statute of limitations period. S.C.Code Ann. § 15-3-530 (2005); see Mazloom v. Mazloom, 382 S.C. 307, 323, 675 S.E.2d 746, 755 (Ct.App.2009) (citing three-year statute of limitations in breach of fiduciary duty action); Turner v. Milliman, 381 S.C. 101, 109-10, 671 S.E.2d 636, 640 (Ct.App.2009) (applying three-year statute of limitations in fraud action).

The discovery rule applies to this action. See S.C.Code Ann. § 15-3-535 (2005) (applying the discovery rule to causes of action arising under section 15-3-530(5));

390 S.C. 161

Rumpf v. Massachusetts Mut. Life Ins. Co., 357 S.C. 386, 394, 593 S.E.2d 183, 187 (Ct.App.2004) (stating “[i]n determining when a cause of action arose under section 15-3-530, we apply the ‘discovery rule’ ”). According to the discovery rule, the statute of limitations begins to run when a person could or should have known, through the exercise of...