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2004-UP-274 - Hoisington v. MacNeille

THIS OPINION HAS NO PRECEDENTIAL VALUE.  IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 239(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals


Robert Hoisington,        Appellant,

v.

Douglas W. MacNeille, Keri A. Jordan, Ruth & MacNeille, P.A., William A. Ruth, and Michael G. Olivetti,        Respondents.


Appeal From Beaufort County
L. Henry McKellar, Circuit Court Judge


Unpublished Opinion No. 2004-UP-274
Submitted April 6, 2004 – Filed April 21, 2004


AFFIRMED


Robert Hoisington, pro se, for Appellant.

Charles J. Baker, III, Martha H. Rhodes, Susan Taylor Wall and Jenny Anderson Horne, all of Charleston; and Solicitor Warren C. Powell, Jr., of Columbia, for Respondents.

PER CURIAM: Robert Hoisington appeals an order granting summary judgment to Douglas W. MacNeille, Keri A. Jordan, Ruth & MacNeille, P.A., William A. Ruth and Michael G. Olivetti (collectively, Respondents). Robert argues error by the trial judge in finding that the statute of limitations had run prior to the service and filing of his complaint. He also contends error in the judge’s failure to find civil liability on the part of respondents and his finding that Jordan and the other respondents had no duty to Robert. We affirm.

FACTUAL/PROCEDURAL BACKGROUND

Robert and Carol Hoisington, although never formally married, were deemed in a previous action to have a common law marriage.  They have three children, all boys, currently ages 12, 11, and 8.  Carol filed for a divorce from Robert in April, 1997. 

Jordan was an associate in the Hilton Head law firm of Ruth & MacNeille, P.A., while Ruth, Olivetti, and MacNeille were shareholders of this firm.  Jordan was asked by Robert’s and Carol’s attorneys to be guardian ad litem (GAL) for their children in their divorce action. She was officially appointed to this position on June 13, 1997, although she visited the parties in May, and participated at a hearing held on June 2 in this capacity.  At the June 2 hearing, Robert and Carol reached an agreement and consented to Jordan’s recommendation that Carol be granted temporary custody, with an obligation on Carol’s part to get substance abuse counseling and both parties to undergo drug testing. 

In January 1998, Robert met with Jordan and indicated he was concerned about her performance as GAL and the amount of fees she had been charging.  Robert indicated he had no confidence in Jordan as the GAL, and he believed she was not competent to represent his children and she was extremely biased.  Jordan informed Robert and his attorney that she would consent to a motion to have her relieved as GAL. 

On February 5, 1998 Robert received an anonymous letter stating the following:

To Robert,

          Carol is having an affair with Doug McNeille (sic), a married lawyer, for the past four or five months.  They have sex at your house while your children are there.  Prove they are having an affair, and it should save you a lot of money in your divorce.  Ask your lawyer.

           -An anonymous friend who doesn’t think Carol deserves alimony.

Robert read the letter and asked someone at work to look at it.  That person told Robert he had been writing checks to Ruth & MacNeille.  Within five minutes of reading the letter, Robert realized that the attorney referred to in the letter was Jordan’s boss.  On February 5, Robert spoke with his attorney about the letter and asked him to get a private investigator to look into the matter. 

On February 23 or 24, 1998, Robert’s attorney contacted Jordan and informed her there was an allegation that MacNeille was having an affair with Carol.  Subsequent to that conversation, Jordan saw Robert’s attorney at the courthouse, at which time he informed her about the anonymous letter.  Jordan testified, although she knew that MacNeille and Carol were acquainted and that Carol visited the law firm office, she thought the visits were part of Carol’s association with Dixie Youth baseball.  Jordan denied any knowledge of the affair prior to the call from Robert’s attorney.  Upon learning of the allegations, Jordan immediately prepared a notice of motion to be relieved as GAL.  The motion was dated February 24, 1998, and was filed on February 26, 1998.  A hearing was held on March 17, 1998, at which time both Robert’s and Carol’s attorneys consented to the motion.  Jordan was thereafter relieved of her duties as GAL. 

At a hearing on April 30, 1998 a successor GAL was appointed.  When asked by the trial judge at the pre-hearing conference why she had asked to be relieved, Jordan stated that “there had been an allegation made against a shareholder in my firm of some type of a relationship with one of the parties.” 

Both Robert and Carol sought custody of their children.  In November 1998, the family court determined that Robert and Carol had a common law marriage and the divorce action proceeded.  In July 1999, Robert took Carol and MacNeille’s depositions.  Carol admitted to the affair with MacNeille as well as another with her son’s baseball coach.  MacNeille invoked the protection of the Fifth Amendment when asked if he had a sexual relationship with Carol.  The successor GAL’s report recommended Robert be given custody of the children.  In November 2000, the court granted custody of the children to Robert.  In March 2001, Robert was granted a divorce from Carol on the grounds of adultery. 

In August 2001, after Robert filed the current action and Carol filed her own, separate action against the respondents, Carol testified by way of deposition that her affair with MacNeille usually involved MacNeille’s use of cocaine and marijuana, and that she used cocaine with him on one occasion.  She further claimed that, during their affair, MacNeille acted in many ways like her attorney and spoke about the case to Jordan on at least one occasion. 

On February 16, 2001, this action was filed and given to the Sheriff’s Office for service on Respondents.  The complaint alleged malpractice on the part of Jordan arising from the conflict of interest and her failure to investigate the allegations or inform the court.  It alleged negligence on the part of MacNeille for endangering the children and ending any chance of reconciliation between Robert and Carol. It also accused the law firm of negligent inaction for failing to make efforts to police their members and in not reporting MacNeille to the proper authorities.  Robert asserted, as a direct and proximate result of the respondents’ negligence, his “children’s normal development was endangered, his children were put under physical risk because their mother’s drug addiction was being fostered, and any possibility of reunion between [Robert and Carol] were (sic) diminished.”  He further alleged he was required to pay considerable sums in GAL fees [1] and child support, and was deprived of custody of his children while they were put at risk.  The trial judge found that the action was time barred by the statute of limitations because more than three years had passed from Robert’s receipt of the letter alleging the affair to the date of filing and service.  Alternatively, he found that Jordan’s status as GAL made her immune from civil suits relating to the performance of those duties, Jordan owed no duty to Robert as the children’s father, and that MacNielle was not civilly liable because South Carolina no longer recognizes the torts of criminal conversation and alienation of affection.  This appeal follows.

STANDARD OF REVIEW

“The purpose of summary judgment is to expedite disposition of cases which do not require the services of a fact finder.”  George v. Fabri, 345 S.C. 440, 452, 548 S.E.2d 868, 874 (2001).  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.  Ferguson v. Charleston Lincoln Mercury, Inc., 349 S.C. 558, 562, 564 S.E.2d 94, 96 (2002).  In determining whether any triable issue of fact exists, the evidence and all reasonable inferences drawn therefrom must be viewed in a light most favorable to the nonmoving party.  Hendricks v. Clemson University, 353 S.C. 449, 455-56, 578 S.E.2d 711, 714 (2003).

LAW / ANALYSIS

On appeal, Robert does not dispute that the applicable limitations period for his claim against respondents is three years.  Rather, he contends the trial judge erred in finding the statute of limitations barred this action because the action was commenced within three years.  We disagree.

South Carolina Code Ann. § 15-3-530 (Supp. 2003) provides a three-year statute of limitations for legal malpractice suits or “any injury to the person or rights of another, not arising on contract and not enumerated by law.”  S.C. Code Ann. § 15-3-530(5) (Supp. 2003);  Peterson v. Richland County, 335 S.C. 135, 138, 515 S.E.2d 553, 555 (Ct. App. 1999);  Berry v. McLeod, 328 S.C. 435, 444, 492 S.E.2d 794, 799 (Ct. App. 1997).  With respect to injuries to the person, the discovery rule provides: “Except as to actions initiated under Section 15-3-545 [actions for medical malpractice], all actions initiated under Section 15-3-530(5) must be commenced within three years after the person knew or by the exercise of reasonable diligence should have known that he had a cause of action.”  S.C. Code Ann. § 15-3-535 (Supp. 2003).

“According to the discovery rule, the statute of limitations begins to run when a cause of action reasonably ought to have been discovered.  The statute runs from the date the injured party either knows or should have known by the exercise of reasonable diligence that a cause of action arises from the wrongful conduct.”  Dean v. Ruscon Corp., 321 S.C. 360, 363, 468 S.E.2d 645, 647 (1996).

The exercise of reasonable diligence means simply that an injured party must act with some promptness where the facts and circumstances of an injury would put a person of common knowledge and experience on notice that some right of his has been invaded or that some claim against another party might exist.  The statute of limitations begins to run from this point and not when advice of counsel is sought or a full-blown theory of recovery developed.

Wiggins v. Edwards, 314 S.C. 126, 128, 442 S.E.2d 169, 170 (1994) (quoting Snell v. Columbia Gun Exchange, Inc., 276 S.C. 301, 303, 278 S.E.2d 333, 334 (1981)).  The focus date under the discovery rule is the date of discovery of the injury and not the date of discovery of the wrongdoer.  Id. at 128, 442 S.E.2d at 170.

The important date under the discovery rule is the date that a plaintiff discovers the injury, not the date of the discovery of the identity of another alleged wrongdoer.  If, on the date of injury, a plaintiff knows or should know that [he] had some claim against someone else, the statute of limitations begins to run for all claims based on that injury.

Id. (quoting Tollison v. B & J Machinery Co., Inc., 812 F.Supp. 618, 620 (D.S.C. 1993)). 

The test of whether or not a person should have known the operative facts is objective rather than subjective.  Bayle v. South Carolina Dep’t of Transp., 344 S.C. 115, 123, 542 S.E.2d 736, 740 (Ct. App. 2001).  The test is not whether a particular plaintiff actually knew he or she had a claim against a party.  Id.  Rather, the discovery rule focuses on whether the plaintiff acquired knowledge of any existing facts sufficient to put the party on inquiry.  Peterson, 335 S.C. at 139, 515 S.E.2d at 555.

Robert contends he had no cause of action against respondents until Jordan and her firm failed to investigate or report MacNeille’s conduct to the authorities after they were given notice of the allegation of the affair on the February 23 or 24, 1998.  We disagree. 

It is clear the injuries Robert alleges all stem from the sexual relationship between Carol and MacNeille and the alleged conflict of interest that arose therefrom during the time period that Jordan was acting as GAL.  Jordan denied any knowledge of the affair prior to being contacted by Robert’s attorney, and it is undisputed that, recognizing the potential conflict, Jordan immediately took steps to have herself relieved as GAL to the children once she was informed.  Robert had the means of discovering his potential claim against the respondents when he received the anonymous letter on February 5, 1998.  On this date, the facts and circumstances put Robert on notice that some right of his may have been invaded or that some claim against another party might exist.  It is irrelevant that Jordan and the law firm may have thereafter failed to investigate the allegations, as Robert acquired knowledge of facts sufficient to put him on inquiry prior to the time that Jordan received notice of the potential conflict of interest.  Indeed, Robert stated that at the time he received the letter and discovered the connection between Jordan and MacNeille, he felt it explained why “all these . . . biased things [had] been happening to [him]” and it “started making sense of what [had] transpired over the past” and why things had gone “heavily toward Carol and heavily against [him].”  Robert further admitted, “the machinery to inquire into the Doug MacNeille/Carol Hoisington matter was underway on February 5, 1998.”  The fact that an injured party does not initially comprehend the full extent of the damages does not prevent the proverbial clock from starting at the moment that party is aware of the facts that caused the injury.  Barr v. City of Rock Hill, 330 S.C. 640, 645, 500 S.E.2d 157, 160 (Ct. App. 1998).  Because Robert knew or should have known that he had some claim against someone on February 5, 1998 for any injuries accompanied by the affair between Carol and MacNeille, the statute of limitations began to run at that point for all claims based on that injury. The statute of limitations began to run at this time, and not when a full-blown theory of recovery was developed by Robert.

Further, we find our decision in Burgess v. Am. Cancer Soc’y, 300 S.C. 182, 386 S.E.2d 798 (Ct. App. 1989), remarkably similar to the situation in the instant case.  In Burgess, the plaintiff was fired as executive director of the American Cancer Society’s local office and later sued the society for this termination.  Her attorney in the action was having an affair during the litigation with the woman who replaced her as the director of the organization.  The plaintiff learned of the alleged affair, and several years later heard that the attorney had passed information regarding plaintiff’s lawsuit to the Cancer Society during the litigation.  She subsequently sued her attorney for malpractice.  Stressing that the discovery rule focuses upon whether the complaining party acquired knowledge of any existing facts that would be sufficient to put the party on inquiry, such that if developed would disclose the alleged wrong, the court held that the statute of limitations began to accrue when the plaintiff learned of the affair, not when she learned of the communications giving rise to the alleged malpractice.  Burgess, 300 S.C. at 186-87, 386 S.E.2d at 800-01.  Thus, the suit was barred pursuant to the statute of limitations.

It is undisputed that on February 5, 1998 Robert learned of the alleged affair which, as in Burgess, was very likely to lead to some kind of conflict on the part of Respondents concerning the handling of his legal matter.  Per the discovery rule, the statute of limitations began to accrue at this time.  Because the current action was initiated more than three years after this date, it is time barred by the statute of limitations as a matter of law. [2]

For the forgoing reasons, the decision of the trial court is

AFFIRMED.

HUFF and STILWELL, JJ. and CURETON, AJ., concur.


[1] Approximately one month after Robert filed this action, Carol was ordered to reimburse Robert for the $7,000 in GAL fees he paid to Jordan. 

[2] In light of our determination that this action is barred by the statute of limitations, we need not reach Robert’s remaining issues on appeal.