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2011-UP-517 - McLean v. Drennan

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 Court of Appeals

Norman M. McLean, James N. McLean, Marie McLean-Choi, William N. McLean, Robert L. McLean, and JL McLean Properties, LLC, Appellants,

v.

James B. Drennan, III, as Personal Representative of the Estate of Elizabeth McLean Pence, James E. Brogdon, Sr., as Trustee of the Trust Agreement of Elizabeth McLean Pence dated May 28, 1999, Wachovia Bank National Association, as Personal Representative of the Estate of Elizabeth P. Pence, Wachovia Bank National Association, as Trustee of the Elizabeth P. Pence Trust, Marlboro Academy, Inc., Charles P. Thompson, Jr., Cheri (Cheryl) Brown Thompson, Money to Go, LLC, James J. Pence, Jr., as Personal Representative of the Estate of Stephen Pence, and Harry R. Easterling, Jr., Respondents.


Appeal From Orangeburg County
 Diane Schafer Goodstein, Circuit Court Judge


Unpublished Opinion No. 2011-UP-517
Heard October 20, 2011 – Filed November 29, 2011   


AFFIRMED


David Alexander, of Greenville, for Appellants.

Edward Bilbro Davis, of Charlotte, Harry R. Easterling, Sr., of Bennettsville, James Randall Davis, of Lexington, Jeffrey L. Payne and J. Rene Josey, both of Columbia, John J. James, II, of Darlington, Matthew H. Henrikson, of Greenville, and W. Cliff Moore, III, of Columbia, for Respondents.

PER CURIAM:  Appellants Norman M. McLean, James N. McLean, Marie McLean-Choi, William N. McLean, Robert L. McLean, and JL McLean Properties, LLC (collectively Appellants) appeal from the grant of summary judgment in favor of Respondents.  We affirm.

1.  As to the grant of summary judgment in favor of Respondents James B. Drennan, III, Wachovia Bank National Association, Marlboro Academy, Inc., Charles P. Thompson, Jr., Cheri Brown Thompson, Money to Go, LLC, James J. Pence, Jr., and Harry R. Easterling, Jr., we find Appellants, as contingent beneficiaries, were bound by the actions of Respondent James E. Brogdon, Sr., (Brogdon) in his capacity as trustee of the Trust Agreement of Elizabeth McLean Pence (the Trust).  See S.C. Code Ann. § 62-1-403(2)(ii) (Supp. 2010) ("[I]n judicially supervised settlements . . . orders binding a trustee bind beneficiaries of the trust . . . in proceedings involving creditors or other third parties . . . ."); S.C. Code Ann. § 62-7-103(2)(A) (2009) (defining beneficiary as a person that "has a present or future beneficial interest in a trust, vested or contingent"); S.C. Code Ann. § 62-7-303(a)(4) (2009) ("[A] trustee may represent and bind the beneficiaries of the trust with respect to questions or disputes involving the trust.").  As a result of the court-approved settlement of prior litigation involving the Trust, the two disputed Orangeburg properties were transferred as part of the Estate of Elizabeth McLean Pence and not as part of the Trust.  See S.C. Code Ann. § 62-3-1101 (Supp. 2010) ("A compromise of a controversy as to admission to probate of an instrument offered for formal probate as the will of a decedent . . . if approved by the court after hearing, is binding on all the parties . . . .  An approved compromise is binding even though it may affect a trust . . . .").  Thus, we find Appellants are bound by Brogdon's failure to take action in the prior litigation to ensure that the disputed properties became assets of the Trust.  See Rule 60(b), SCRCP (noting a motion for relief from judgment for mistake, inadvertence, surprise, or excusable neglect must be made not more than one year after entry of the judgment); S.C. Code Ann. § 62-3-803 (2009) (setting forth a one-year statute of limitations for presenting a claim against a decedent's estate).

2.  As to the grant of summary judgment in favor of Brogdon, we find there is no question of material fact based on Appellants' own deposition testimony that Appellants knew or should have known Brogdon was acting on their behalf when he participated in the settlement of the Trust litigation in February 2002.  See S.C. Code Ann. § 62-7-104(a) (2009) ("[A] person has knowledge of a fact if the person:  (1) has actual knowledge of it; (2) has received a notice or notification of it; or (3) from all the facts and circumstances known to the person at the time in question, has reason to know it."); Epstein v. Coastal Timber Co., 393 S.C. 276, 281, 711 S.E.2d 912, 915 (2011) (noting a trial court may grant summary judgment if there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law); Holly Woods Ass'n of Residence Owners v. Hiller, 392 S.C. 172, 183, 708 S.E.2d 787, 793 (Ct. App. 2011) ("Under the discovery rule, the three-year clock starts ticking on 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.") (internal quotation marks omitted); Martin v. Companion Healthcare Corp., 357 S.C. 570, 576, 593 S.E.2d 624, 627 (Ct. App. 2004) ("[W]e approach this inquiry by deciding whether the circumstances of the case 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.") (internal quotation marks omitted).[1] 

AFFIRMED.

HUFF and PIEPER, JJ., and CURETON, A.J., concur.


[1] Based on our disposition herein, we need not consider the remaining issues on appeal.  See Futch v. McAllister Towing of Georgetown, Inc., 335 S.C. 598, 613, 518 S.E.2d 591, 598 (1999) (noting where one issue is dispositive, the remaining issues need not be addressed).