Roberts v. Drew

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

Keith Roberts and Lot 12 Yellow House, LLC,
Appellants,

v.

Randall J. Drew, Respondent.

Appellate Case No. 2013-000020

Appeal From Charleston County
W. Jeffrey Young, Circuit Court Judge

Unpublished Opinion No. 2014-UP-292
Heard February 20, 2014 – Filed July 16, 2014

AFFIRMED

Thomas A. Pendarvis and Catherine Brown Kerney, both
of Pendarvis Law Offices, PC, both of Beaufort, for
Appellants.

David W. Overstreet and Andrew W. Countryman, both
of Carlock Copeland & Stair, LLP, both of Charleston,
for Respondent.

PER CURIAM: Keith Roberts and Lot 12 Yellow House, LLC (collectively
referred to as Roberts) appeal the circuit court's grant of respondent Randall J.
Drew's motion for summary judgment in this legal malpractice action. Roberts
argues the circuit court improperly granted Drew's motion for summary judgment,
as the circuit court erred in (1) determining that the statute of limitations barred his
claim, (2) failing to find Drew equitably estopped from claiming the statute of
limitations as a defense, and (3) making erroneous findings of fact, which
collectively served to distort the record and cause mistaken conclusions of law.1

1. We find the circuit court did not err in determining that the statute of
limitations barred Roberts's claim. The statute of limitations for a legal
malpractice action is three years. S.C. Code Ann. § 15–3–530(5) (2005) (stating
the statute of limitations for "an action for assault, battery, or any injury to the
person or rights of another, not arising on contract and not enumerated by law" is
three years); see also Berry v. McLeod, 328 S.C. 435, 444, 492 S.E.2d 794, 799
(Ct. App. 1997) (finding section 15–3–530(5) provides a three-year statute of
limitations for legal malpractice actions). "According to the discovery rule, the
statute of limitations begins to run when a cause of action reasonably ought to have
been discovered." Dean v. Ruscon Corp., 321 S.C. 360, 363, 468 S.E.2d 645, 647
(1996). "This determination is objective, rather than subjective. As such, the
question is not whether the particular plaintiff in this case actually knew [he] had a
claim." Martin v. Companion Healthcare Corp., 357 S.C. 570, 576, 593 S.E.2d
624, 627 (Ct. App. 2004) (internal citation omitted). "Rather, courts must decide
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." Young v. S.C. Dep't of Corr., 333 S.C.
714, 719, 511 S.E.2d 413, 416 (Ct. App. 1999). In his complaint, Roberts
contended Drew had a duty to advise him that the title to Lot 12 was "not good and
not marketable." Roberts's complaint alleged his title to Lot 12 was "unmarketable
because Plaintiffs' acquisition of the subject property is, was, and actually did
subject Plaintiffs to litigation on the claims of others who have outstanding
property interests."2 Roberts testified he was aware prior to May 5, 2008, of the

1
Roberts's brief identified six issues upon which the circuit court allegedly erred.
We have consolidated those six issues into three in the interest of brevity and
clarity.
2
At oral argument, Roberts argued that Drew failed to advise him of the validity of
the Navy's claim. However, at the time Roberts commenced this malpractice
action, Roberts was contesting the Navy's claim in federal court. In a deposition in
this case, Roberts stated "I still believe that we are right" regarding his dispute with
the Navy.
problematic dock issue arising from the Navy's claim of marshland adjacent to Lot
12. Roberts also testified he was aware prior to May 5, 2008, of multiple
communications in which the Navy threatened to pursue legal action regarding his
dock.3 As all of the evidence within the record reveals that Roberts was aware
prior to May 5, 2008, that his acquisition of Lot 12 subjected him to potential
litigation on the claims of others with outstanding property interests, the circuit
court did not err in concluding Roberts should have known Drew's advice was
incorrect.4 Thus, the three-year statute of limitations for this legal malpractice
action had already expired when Roberts filed this claim on May 5, 2011. See
Martin, 357 S.C. at 575, 593 S.E.2d at 627 ("[T]he 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.'"
(quoting Bayle v. S.C. Dep't of Transp., 344 S.C. 115, 123, 542 S.E.2d 736, 740
(Ct. App. 2001))). Therefore, the circuit court properly granted Drew's motion for
summary judgment because the statute of limitations barred Roberts's claim. See
Christensen v. Mikell, 324 S.C. 70, 72, 476 S.E.2d 692, 694 (1996) ("Summary
judgment is appropriate where it is clear there is no genuine issue of material fact
and the moving party is entitled to judgment as a matter of law.").

2. We find the circuit court did not err in failing to find Drew equitably
estopped from claiming the statute of limitations as a defense. "A defendant may
be estopped from claiming a statute of limitations defense if the defendant's
conduct has induced the delay that otherwise would give operation to the statute."

3
At times prior to May 5, 2008, Roberts did the following regarding the Navy's
potential legal action: (1) categorized the dock issue and the Navy's threats of
litigation as "serious;" (2) claimed that Navy officials "just don't want to go away;"
and (3) wrote a letter to a United States senator, in which Roberts sought assistance
and claimed to have been "threatened by the U.S. attorney" with a lawsuit and
injunction.
4
Additionally, in Roberts's responses to Drew's discovery requests, Roberts stated
"What follows is a preliminary statement of Plaintiffs' damages . . . Contract sale
price to Bowen . . . Lost profits from sale of property to Bowen . . . ." Bowen
formally canceled the purchase contract for Lot 12 on January 18, 2007, largely
due to the Navy's potential claim. Roberts testified he was aware at that time of the
cancellation and Bowen's reasons for the cancellation. Given that Roberts claimed
the lost profits of that purchase contract as damages, he had actual and constructive
knowledge of a claim against Drew.
Moates v. Bobb, 322 S.C. 172, 175, 470 S.E.2d 402, 403 (Ct. App. 1996). "The
elements of estoppel as to the party estopped are (1) conduct by the party estopped
which amounts to a false representation or concealment of material facts; (2) the
intention that such conduct shall be acted upon by the other party; and (3)
knowledge, actual or constructive, of the true facts." Johns v. Johns, 309 S.C. 199,
203, 420 S.E.2d 856, 859 (Ct. App. 1992). "As to the party claiming the estoppel,
the elements are (1) lack of knowledge and of the means of knowledge of the truth
as to the facts in question; and (2) reliance upon the conduct of the party estopped."
Id. at 203-04, 420 S.E.2d at 859. In his complaint, Roberts alleged Drew had a
duty to advise him that the title to Lot 12 was "not good and not marketable."
Roberts claimed the title to Lot 12 was unmarketable because his acquisition of the
property had subjected him to litigation on the claims of others with outstanding
property interests. All of the evidence in the record reveals that, before May 5,
2008, Roberts had knowledge that the Navy was claiming ownership of the
marshland and threatening legal action against him. See Kelly v. Logan, Jolley, &
Smith, 383 S.C. 626, 638, 682 S.E.2d 1, 7 (Ct. App. 2009) ("The party asserting
equitable estoppel bears the burden of establishing all the elements."); see also S.
Dev. Land & Golf Co., Ltd. v. S.C. Pub. Serv. Auth., 311 S.C. 29, 34, 426 S.E.2d
748, 751 (1993) ("One with knowledge of the truth or the means by which with
reasonable diligence he could acquire knowledge cannot claim to have been
mislead [sic]."). Roberts also contends the circuit court failed to rule on the
application of equitable estoppel. However, the circuit court found that Roberts
was aware prior to May 5, 2008, of the Navy's claim and its threats of legal action
against him, and therefore Roberts knew or should have known of a claim against
Drew. Additionally, all litigation regarding the legality of the Navy's claim to the
property and the dock has been dropped. Thus, Roberts has not established that
whatever assurances Drew made amounted to false representations or
concealments of material facts. See Rule 220, SCACR (stating an appellate court
may affirm for any reason appearing in the record); see also Walterboro Cmty.
Hosp. v. Meacher, 392 S.C. 479, 489, 709 S.E.2d 71, 76 (Ct. App. 2011) (finding
that where the circuit court's order was ambiguous as to the basis for denying
plaintiff's equitable remedy, the appellate court could affirm for any reason
appearing in the record).

3. We find the circuit court did not make erroneous findings of fact. All of the
evidence supports the circuit court's recitation of the facts in its order and the
conclusions drawn therefrom. As there was no genuine issue of material fact as to
whether the statute of limitations barred Roberts's claim, the circuit court properly
granted Drew's motion for summary judgment. See Christensen, 324 S.C. at 72,
476 S.E.2d at 694 ("Summary judgment is appropriate where it is clear there is no
genuine issue of material fact and the moving party is entitled to judgment as a
matter of law.").

AFFIRMED.

HUFF, THOMAS, and LOCKEMY, JJ., concur.