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2009-MO-040 - Duncan v. Little

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.

THE STATE OF SOUTH CAROLINA
In The Supreme Court


Ann G. Duncan, as Personal Representative of the Estate of Frankie Galloway, deceased, and Cleo Galloway, Respondents,

v.

Samuel D. Little, personally and as Personal Representative of the Estate of Joseph A. Galloway, a/k/a Avery Galloway, deceased; Betty Joy L. Iannazzone, personally and as Personal Representative of the estate of Joseph A. Galloway, deceased;  the Estate of Joseph A. Galloway, a/k/a Avery Galloway, deceased; and SunTrust Banks, Inc., formerly Central Carolina Bank, a/k/a CCB, Defendants,

Of whom Samuel D. Little, personally and as Personal Representative of the Estate of Joseph A. Galloway, a/k/a Avery Galloway, deceased, is Appellant.


Appeal From Pickens County
 Charles B. Simmons, Jr., Special Referee


Memorandum Opinion No. 2009-MO-040
Heard April 7, 2009 – Filed July 20, 2009


AFFIRMED


Dallas Ball, of Pickens and Sally Calhoun, of Beaufort, for Appellant.

Larry Brandt, of Walhalla, for Respondents.


PER CURIAM:  This is an appeal from a Special Referee’s finding of a constructive trust.  Appellant Samuel D. Little (“Little”) appeals.  We affirm.

The facts, as we borrow heavily from Little’s brief, are as follows.  In early June 2003, Frankey Galloway, aging and paraplegic, was admitted into a nursing home while being treated for an illness.  Frankey, who had stored away his life savings in cash at various locations in his home, feared its safety in his absence and asked his brother Cleo to collect the money and store it in a safe deposit box.  Cleo went to Frankey’s house, found the cash in the locations Frankey described, and took it home where he counted it in the presence of his wife and daughter.  Cleo tallied two hundred fifty-three thousand, eight hundred and forty-three dollars ($253,843.00), and reported this sum to Frankey, who confirmed that figure matched his expectation of the value of the stored cash.  Cleo placed the cash in a safe deposit box at a Wachovia Bank branch in Pickens, South Carolina.  Shortly thereafter, the money was removed and placed in two safe deposit boxes at Central Carolina Bank (“CCB,” now known as Sun Trust Bank). 

In August 2004, Frankey was released from the nursing home and Cleo and another brother, Avery, gave him four keys to the safe deposit boxes.  Cleo and Avery were listed on the lease agreement as co-lessees.

On November 24, 2004, Avery passed away.  In accordance with Avery’s will, his stepson Little and stepdaughter Betty Joy Innazzone (“Joy”) were appointed personal representatives of his estate.[1]  Within a week of Avery’s passing, Sammy and Joy went to CCB to ask if Avery had any accounts at the bank.  On December 4, 2004, the boxes were drilled open in the presence of Sammy and Joy.  Sammy and Joy left the bank with the cash from both boxes, in the amount of two hundred and twenty nine thousand, seven hundred and ninety-six dollars ($229,796.00).

The primary issue on appeal is whether the Special Referee erred in finding a constructive trust because he failed to exclude certain testimony pursuant to the Dead Man’s Statute, S.C. Code Ann. § 19-11-20 (2008).  We have reviewed the record on appeal, and find overwhelming evidence to support the Special Referee’s finding that a constructive trust was established for the benefit of Frankey Galloway.  We therefore affirm the decision of the Special Referee. 

AFFIRMED.

WALLER, ACTING CHIEF JUSTICE, PLEICONES, BEATTY, KITTREDGE, JJ., and Acting Justice James E. Moore, concur.


[1] Joy is now deceased and not a party to the present appeal.