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2004-UP-371 - Landmark et al. v. Pierce et al.


In The Court of Appeals

Landmark 501(C)(9) Trust Agreement For The Landmark Group, by and through its trustees, Michael P. Dunlap, Steven D. Hale, and Roger K. Meagher, Appellants,


Pierce, Couch, Hendrickson, Baysinger & Green; H. Blanton Brown & Associates, P.C.; Brown & Sanger, PC; and Young Clement Rivers & Tisdale, LLP, Respondents.

Appeal From Charleston County
 A. Victor Rawl, Circuit Court Judge

Unpublished Opinion No. 2004-UP-371
Heard April 6, 2004 – Filed June 17, 2004


A. Camden Lewis and Peter D. Protopapas, both of Columbia, for Appellants.                                                                                           

Carl E. Pierce, II, Joseph C. Wilson, IV, M. Dawes Cooke, Jr., all of Charleston; Susan P. McWilliams and Nikole Setzler Mergo, both of Columbia, for Respondents.   

PER CURIAM: Landmark 501(C)(9) Trust Agreement for the Landmark Group, by and through its trustees, Michael P. Dunlap, Steven D. Hale, and Roger K. Meagher (“Appellants”) brought this legal malpractice action against Pierce, Couch, Hendrickson, Baysinger & Green; H. Blanton Brown & Associates, P.C.; Brown & Sanger, P.C.; and Young Clement Rivers & Tisdale, LLP (“Respondents”). Appellants allege that Respondents were negligent in pursuing a case that lacked legal merit, or in the alternative, improperly handled the litigation. The trial judge granted Respondents’ motions for summary judgment, finding the claims were barred by the statute of limitations, collateral estoppel, and res judicata. We affirm. [1]


The Landmark group owned and managed golf resorts across the country. In 1988, Landmark’s parent company, Clock Tower Place Investments, Ltd., established a self-funded health and welfare plan for its employees called the Landmark Group Insurance Program  (“the Plan”). The Plan was set up as an Employee Welfare Benefit Plan in accordance with ERISA.  In 1991, Landmark declared bankruptcy and was soon controlled by the Resolution Trust Corporation (“RTC”).  RTC created the Landmark Trust (“the Trust”) to oversee the Plan during the bankruptcy and receivership.  In 1993, RTC hired Gloria Robinson as the Plan administrator and appointed Michael Welch and V. Jackson Carney (“Original Trustees”) as the trustees of the Trust. Robinson eventually learned that Landmark had paid more than one million dollars in benefits out of the Plan to certain unqualified, independent contractors [2] and their dependents.

In November of 1995, the Trust submitted a case memorandum to RTC requesting the allocation of funds to Clock Tower to repay the amount of the ineligible claims to the Trust.  RTC denied the claim.  The following month, Robinson and the Original Trustees hired Respondents and filed an action (“Robinson I”) against Landmark, Clock Tower, the FDIC, and RTC seeking reimbursement for the payments to the ineligible independent contractors. Clock Tower counterclaimed against the Original Trustees on behalf of the Trust, alleging Robinson and the Original Trustees breached their fiduciary duty and wasted the Trust’s assets by hiring Respondents to pursue Robinson I.  On March 28, 1996, the trial court dismissed Robinson’s  and the Original Trustees’ claims for lack of subject matter jurisdiction.  Clock Tower continued to pursue its counterclaims. [3]   On April 25, 1996, Clock Tower informed the Original Trustees they would be removed effective May 26, 1996.  Clock Tower then replaced the Original Trustees with Michael Dunlap, Steven Hale, and Roger Meagher (“Appellant Trustees”).  Dunlap was appointed on March 8, 1996, and Hale and Meagher on June 1, 1996.  The Appellant Trustees are former employees of the FDIC. 

On June 13, 1996, Appellant Trustees fired Respondents. In April of 1997, Clock Tower, acting on behalf of the Trust and with assistance from the Appellant Trustees, moved to disgorge attorneys’ fees from the Original Trustees and Respondents.  The trial court granted the motion in part and ordered Respondents to return all fees unused as of June 13, 1996.  On August 31, 1997, the Plan was terminated due to lack of employees or Plan participants. 

Appellants filed the current action on May 28, 1999.  They alleged that Respondents were negligent and performed unnecessary work. Appellants sought to disgorge the fees paid to Respondents.  Respondents filed motions for summary judgment.  At the August 10, 2001 hearing, the trial court granted Respondents’ motions, deeming Appellants’ claim barred by the statute of limitations, collateral estoppel and res judicata.  This appeal followed.


I.   Did the trial court err in finding that this action is barred under the statute of limitations?
II.  Did the trial court err in finding that this action is barred under res judicata because of the previous action to disgorge payments?
III.  Did the trial court err in finding this action is barred under the settlement and release from the previous action?
IV. Did the trial court ignore evidence of Appellants’ damages?


“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.”  Baril v. Aiken Reg’l Med. Ctr., 352 S.C. 271, 279, 573 S.E.2d 830, 835 (Ct. App. 2002).  “Summary judgment is appropriate where 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 judgment as a matter of law.”  Id. at 280, 573 S.E.2d at 835.


Appellants argue that the trial court erred in finding that the statute of limitations had expired prior to the commencement of this action.  We disagree. 

Under Rule 3(b), SCRCP, an action is commenced, and the statute of limitations tolled, by filing and serving the summons and complaint.  The statute of limitations “upon a contract, obligation, or liability, express or implied” expires after three years.  S.C. Code Ann. § 15-3-530 (Supp. 2003). The statute of limitations on a negligence claim accrues at the time of the negligence or when facts and circumstances would put a person of common knowledge on notice of a possible claim against another party.  § 15-3-535.  Under the discovery rule, an action accrues when the injury is discovered or should have been discovered by reasonable diligence.  Strong v. Univ. of S.C. Sch. of Med., 316 S.C. 189, 190, 465 S.E.2d 850, 852 (1994).  The injured party is not required to comprehend the full extent of the damage or the exact nature of the wrong to start the running of the statute.  Dean v. Ruscon Corp., 321 S.C. 360, 364, 468 S.E.2d 645, 647 (1996).  All that is required is that the party have inquiry notice of a possible claim.  Binkley v. Burry, 352 S.C. 286, 297, 573 S.E.2d 838, 844 (Ct. App. 2002). 

The complaint in this action was served on Respondents on May 28, 1999, but at least one trustee, Michael Dunlap, had constructive notice of a claim prior to May 28, 1996 because Clock Tower’s counterclaim was a matter of public record as of February 1996. See Berry v. McLeod, 328 S.C. 435, 445, 492 S.E.2d 794, 799 (Ct. App. 1997) (“An individual on inquiry or constructive notice is held to be on notice of the contents of documents filed in conformity with applicable statutory law, which an inquiry would have revealed.”). Therefore, the trial judge was correct to rule that this action is barred by the statute of limitations.

In addition to constructive notice, Dunlap also had actual notice. He had been an FDIC employee from 1990 to February 1996 and became a trustee on March 8, 1996. He admits that he knew Robinson I was pending and could have obtained the pleadings at any time. [4]   Moreover, Dunlap was copied with Clock Tower’s letter terminating the Original Trustees and barring them from making further payments to Respondents.  He was also copied with the May 1, 1996 letter informing the Original Trustees they would be held personally accountable for the payments to Respondents.  Additionally, on May 23, 1996, Respondents actually provided Dunlap with a copy of Clock Tower’s Answer and Counterclaim.  On May 26, 1996, the Original Trustees were removed and Dunlap became the sole trustee. 

We find that Dunlap, as a trustee, had the knowledge and ability to act against Respondents prior to May 28, 1996. That knowledge is imputed to the other trustees. See Dorman v. Campbell, 331 S.C. 179, 185, 500 S.E.2d 786, 789 (Ct. App. 1998) (affirming that “a principal is affected with . . . knowledge of all [information] of which his agent receives notice while acting within the scope of his authority”) (citing Crystal Ice Co. of Columbia, Inc. v. First Colonial Corp., 273 S.C. 306, 309, 257 S.E.2d 496, 497 (1979)). Therefore, this action cannot lie.

As Appellants’ action is time-barred, we do not reach the remaining issues on appeal. [5]


Based on the above, we find that the trial court properly granted Respondents’ motions for summary judgment.  Accordingly, the decision is 


HEARN, C.J., and ANDERSON and BEATTY, JJ., concur.

[1] We decide this case without oral argument pursuant to Rule 215, SCACR.

[2] The independent contractors were golf pros for the resorts.

[3] On September 1, 2000, Clock Tower, Appellants, and the Original Trustees entered into a settlement agreement that released the Original Trustees from any liability in connection with payments to Respondents and acknowledged that the Original Trustees fulfilled their fiduciary obligations to the Trust and the Plan. 

[4] The trial court dismissed the Original Trustees’ claims in Robinson I on March 28, 1996, but that was after Dunlap had become a trustee.

[5] See Futch v. McAllister Towing of Georgetown, Inc., 335 S.C. 598, 613, 518 S.E.2d 591, 598 (1999) (explaining that appellate courts need not review remaining issues when the disposition of a prior issue is dispositive).