Ron Orlosky in His Capacity Representative of the Estate of Orlosky v. Law Office of Jay A. Mullinax, LLC, Appellate Case No. 2012-212331

CourtCourt of Appeals of South Carolina
Writing for the CourtPER CURIAM
Docket NumberUnpublished Opinion No. 2015-UP-376,Appellate Case No. 2012-212331
PartiesRon Orlosky in his capacity as Personal Representative of The Estate of Debora L. Orlosky, and in his capacity as trustee of the Debora Laura Orlosky Revocable Trust, Respondent, v. The Law Office of Jay A. Mullinax, LLC, Appellant.
Decision Date29 July 2015

Ron Orlosky in his capacity as Personal Representative of The Estate of Debora L. Orlosky,
and in his capacity as trustee of the Debora Laura Orlosky Revocable Trust, Respondent,
v.
The Law Office of Jay A. Mullinax, LLC, Appellant.

Appellate Case No. 2012-212331
Unpublished Opinion No. 2015-UP-376

STATE OF SOUTH CAROLINA In The Court of Appeals

Heard December 8, 2014
July 29, 2015


THIS OPINION HAS NO PRECEDENTIAL VALUE. IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 268(d)(2), SCACR.

Appeal From Beaufort County
Roger M. Young, Sr., Circuit Court Judge

AFFIRMED

Jay Anthony Mullinax, of Law Office of Jay A. Mullinax, LLC, of Hilton Head Island, for Appellant.

John R.C. Bowen, of Laughlin & Bowen, PC, of Hilton Head Island, and Stephen A. Spitz, of Charleston, for Respondent.

Page 2

PER CURIAM: The Law Office of Jay Mullinax (Mullinax) appeals a jury verdict in favor of client Ron Orlosky, in his capacity as Personal Representative of the Estate of Debora L. Orlosky and in his capacity as trustee of the Debora Laura Orlosky Revocable Trust, on Orlosky's breach of contract claim and Mullinax's counterclaim.

1. We find the trial court did not err when it denied Mullinax's motion for a directed verdict on equitable estoppel. See Zabinski v. Bright Acres Assocs., 346 S.C. 580, 589, 553 S.E.2d 110, 114 (2001) (listing the elements of equitable estoppel as to the party being estopped as: (1) conduct by the estopped party amounting to a false representation or a concealment of material facts; (2) an intention that such conduct be acted upon by the other party; and (3) actual or constructive knowledge of the true facts); id. (listing the elements for the party asserting the estoppel as: (1) a lack of knowledge and of a means of knowing the truth as to the facts in question; (2) a reliance upon the conduct of the estopped party; and (3) a prejudicial change in position); Janasik v. Fairway Oaks Villas Horizontal Prop. Regime, 307 S.C. 339, 344, 415 S.E.2d 384, 387 (1992) ("Prejudice to the other party is an essential element of equitable estoppel."); Blue Ridge Realty Co. v. Williamson, 247 S.C. 112, 122, 145 S.E.2d 922, 927 (1965) (stating the party asserting estoppel bears the burden of proof). The Manor Development Company Shareholder's Agreement, which Orlosky provided to Mullinax, clearly contained a provision setting forth the formula for calculating the sales price of the shares. In addition, in its brief Mullinax claims it was enticed into entering into the contract to provide legal services (Contract) by the representation by Orlosky and his wife Debora Orlosky (Wife) during their estate planning that Wife's estate was valued at approximately $4.4 million. However, the record shows when Mullinax began its representation of the estate, it valued the estate at $3 million and did not value it at $4.4 million until the December 11, 2009 bill when it demanded additional fees based on the increased valuation. Thus, the record contains evidence Mullinax had knowledge of a lower valuation of the stock and did not rely on a higher valuation of the estate in entering into the Contract to represent the estate.

2. We find no merit to Mullinax's argument the trial court erred when it allowed Orlosky to testify extensively about alleged communications with Wife that impacted his interest in alleged violation of the Dead Man's Statute as this testimony was offered by Orlosky, the personal representative, on behalf of the estate. See S.C. Code Ann. § 19-11-20 (2014) ("[N]o party to an action or proceeding . . . shall be examined in regard to any transaction or communication

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