Greg Simmons v. Palmer Simmons

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

Greg Marcus Simmons and Jermaine Robinson, both
individually and derivatively on behalf of Simmons
Family Holdings, LLC, a South Carolina Limited
Liability Company, Respondents,

v.

Palmer E. Simmons, individually and as Trustee of the
Charles E. Simmons, Jr. and Rosa G. Simmons
Revocable Trust dated May 5, 2016, and Charlesetta S.
Aiken, Appellants,

and

Simmons Family Holdings, LLC, as a nominal
Defendant.

Appellate Case No. 2021-000375

Appeal From Beaufort County
R. Lawton McIntosh, Circuit Court Judge

Unpublished Opinion No. 2024-UP-194
Heard March 7, 2024 – Filed May 29, 2024

AFFIRMED IN PART AND DISMISSED IN PART
Ian S. Ford and Ainsley Fisher Tillman, both of Ford
Wallace Thomson LLC, of Charleston; and Mark S.
Berglind, of Vaux Marscher Berglind, P.A., of Bluffton,
all for Appellants.

Ehrick K. Haight, Jr. and Stacey Studley Collins, both of
Minor Haight & Arundell, PC, of Hilton Head Island;
and Thomas J. Rode, of Thurmond Kirchner & Timbes,
P.A., of Charleston, all for Respondents.

PER CURIAM: In this civil matter, Palmer Simmons, individually and as the
Trustee of the Charles E. Simmons, Jr. (Decedent) and Rosa G. Simmons
Revocable Trust (the Trust), and Charlesetta Aiken (collectively, Children) appeal
the circuit court's orders (1) partially granting summary judgment to Greg Marcus
Simmons (Marcus) and Jermaine Robinson (collectively, Grandchildren) and
denying summary judgment to Children and (2) granting Grandchildren's motion to
compel discovery. We affirm in part and dismiss in part. 1

1. As to whether the circuit court erred in granting Grandchildren summary
judgment on their request for declaratory relief, Children contend the 2015
amendment to the articles of incorporation fails to comply with the requirements of
section 3.1 in the operating agreement and, thus, the circuit court erred in finding,
as a matter of law, that Grandchildren were members of Simmons Family
Holdings, LLC (SFH) since 2015. Because Children, as co-managers of SFH, and
Palmer, in his capacities as personal representative of Decedent's estate and trustee
for the Trust, operated as if Grandchildren were members of SFH and failed to
challenge the validity of their membership until this action was filed in 2019, we
hold Children have waived any challenge to assert that the Trust is the sole owner
of SFH or that they are members. See Sanford v. S.C. State Ethics Comm'n, 385

1
See Loflin v. BMP Dev., LP, 427 S.C. 580, 588, 832 S.E.2d 294, 298–99 (Ct.
App. 2019) (providing that appellate courts review a grant of summary judgment
under the same standard applied by the circuit court under Rule 56(c), SCRCP),
aff'd as modified on other grounds, 432 S.C. 246, 851 S.E.2d 713 (2020); Kitchen
Planners, LLC v. Friedman, 440 S.C. 456, 459, 892 S.E.2d 297, 299 (2023) ("Rule
56(c) of the South Carolina Rules of Civil Procedure provides that the moving
party is entitled to summary judgment 'if the [evidence before the court] show[s]
that there is no genuine issue as to any material fact and that the moving party is
entitled to a judgment as a matter of law.'" (quoting Rule 56, SCRCP)).
S.C. 483, 496, 685 S.E.2d 600, 607 (2009) ("A waiver is a voluntary and
intentional abandonment or relinquishment of a known right."), opinion clarified
by 386 S.C. 274, 688 S.E.2d 120 (2009). Further, if Children believed
Grandchildren were receiving distributions that belonged to the Trust or
themselves as the rightful shareholders of SFH, then their acquiescence to
Grandchildren's perceived status as members estops them from attacking the
validity of the 2015 amendment. See S. Dev. Land & Golf Co. v. S.C. Pub. Serv.
Auth., 311 S.C. 29, 33, 426 S.E.2d 748, 751 (1993) ("Silence, when it is intended,
or when it has the effect of misleading a party, may operate as equitable
estoppel."); id. ("There is no requirement that the person whose silence misleads
another have actual knowledge of the true facts if circumstances are such that
knowledge is necessarily imputed to him."); Queen's Grant II Horizontal Prop.
Regime v. Greenwood Dev. Corp., 368 S.C. 342, 358, 628 S.E.2d 902, 911 (Ct.
App. 2006) ("[I]t is a well-established principle in South Carolina that estoppel by
silence arises when one party observes another dealing with his property in a
manner inconsistent with his rights and makes no objection while the other party
changes his position based on the party's silence."); see also Miller on Behalf of
Grand Strand Diversified, Inc. v. Gandee, 285 S.C. 174, 177, 328 S.E.2d 482, 484
(Ct. App. 1985) (holding a shareholder who was a former manager of the company
was estopped from attacking the validity of the company's assignment of a lease
when his conduct acquiesced to the sale).

Alternatively, Children maintain the circuit court improperly found Grandchildren
were members of SFH because a genuine issue of material fact existed as to the
identities and ownership interests of SFH's members. In opposition to
Grandchildren's motion for summary judgment, Children filed sworn affidavits and
excerpts of depositions from prior, unrelated cases involving SFH. Children assert
the circuit court improperly excluded Decedent's deposition testimony from a prior,
unrelated case, which bolstered their contention that a genuine issue of material
fact existed. Children's argument regarding the exclusion of Decedent's testimony
is without merit because the record contains no ruling by the circuit court on the
issue. At the hearing, Grandchildren raised their objection to the admission of
Decedent's prior testimony, and the circuit court took the matter under advisement.
In its order granting partial summary judgment, the court noted Grandchildren's
objection but, again, failed to specify a ruling on the matter. Although Children
filed a Rule 59(e), SCRCP, motion, the circuit court issued a Form 4 order denying
their motion, without noting any specific findings, and stating that a formal order
would not follow unless requested by a party. No subsequent order is included in
the record. Therefore, there is no finding for this court to review, and nothing in
the order indicates the court failed to consider the evidence. In fact, at the
beginning of the order, the court states, "Upon reviewing the verified pleadings, the
record, the affidavits, and memoranda submitted, including the deposition
excerpts . . . , the Court finds . . . ." See Staubes v. City of Folly Beach, 339 S.C.
406, 412, 529 S.E.2d 543, 546 (2000) ("Without an initial ruling by the trial court,
a reviewing court simply would not be able to evaluate whether the trial court
committed error."). Furthermore, Children base their arguments on the position
that they have presented a mere scintilla of evidence to raise a question of fact.
"[T]he 'mere scintilla' standard does not apply under Rule 56(c)." Kitchen
Planners, LLC v. Friedman, 440 S.C. 456, 463, 892 S.E.2d 297, 301 (2023).
Based on the evidence in the record, we find Children failed to create a reasonable
inference that Grandchildren were not members of SFH. Thus, we hold granting
partial summary judgment to Grandchildren was proper. See McMaster v. Dewitt,
411 S.C. 138, 143, 767 S.E.2d 451, 453–54 (Ct. App. 2014) ("[I]t is not sufficient
for a party to create an inference that is not reasonable or an issue of fact that is not
genuine." (quoting Town of Hollywood v. Floyd, 403 S.C. 466, 477, 744 S.E.2d
161, 166 (2013))).

2. Children assert the circuit court improperly granted partial summary judgment to
Grandchildren on their claim for monies had and received because they are not
members of SFH. Because we affirm the circuit court's holding that Grandchildren
are members of SFH, we decline to address this issue. See Futch v. McAllister
Towing of Georgetown, Inc., 335 S.C. 598, 613, 518 S.E.2d 591, 598 (1999)
(holding an appellate court need not review remaining issues when its
determination of a prior issue is dispositive).

3. Children contend the circuit court erred in granting Grandchildren's motion to
compel discovery. As clearly defined by our precedent, the circuit court's order
granting the motion to compel is interlocutory. Therefore, Children cannot
immediately appeal the order, and this portion of their appeal must be dismissed.
See Grosshuesch v. Cramer, 377 S.C. 12, 30, 659 S.E.2d 112, 122 (2008)
("[D]iscovery orders, in general, are interlocutory and are not immediately
appealable because they do not, within the meaning of the appealability statute,
involve the merits of the action or affect a substantial right."); Ex parte Wilson, 367
S.C. 7, 13, 625 S.E.2d 205, 208 (2005) (noting that "an order denying or
compelling pretrial discovery is not directly appealable since it is an intermediate
or interlocutory decision"); Tucker v. Honda of S.C. Mfg., Inc., 354 S.C. 574, 582
S.E.2d 405 (2003) (holding an order compelling discovery is not immediately
appealable even if it is challenged as violating the attorney-client privilege); Davis
v. Parkview Apartments, 409 S.C. 266, 280, 762 S.E.2d 535, 543 (2014) ("[T]o
challenge the specific rulings of the discovery orders, the normal course is to
refuse to comply, suffer contempt, and appeal from the contempt finding.").

AFFIRMED IN PART AND DISMISSED IN PART.

WILLIAMS, C.J., and KONDUROS and GEATHERS, JJ., concur.