Emily Nichols Felder v. Albert N. Thompson

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

Emily Nichols Felder, Executor of the Estate of Mamie
F. Nichols, Appellant,

v.

Albert Napoleon Thompson, Jr., Al Thaddeus Thompson,
Titus Sherod Thompson, Asia Rachal Thompson,
Respondents.

Appellate Case No. 2015-001752

Appeal From Charleston County
J. C. Nicholson, Jr., Circuit Court Judge
Stephanie P. McDonald, Circuit Court Judge

Unpublished Opinion No. 2018-UP-038
Submitted September 1, 2017 – Filed January 31, 2018

AFFIRMED

Precious Felder, of Atlanta, Georgia, and Louis S.
Moore, of Charleston, for Appellant.

Eduardo Kelvin Curry, of The Curry Law Firm, LLC, of
North Charleston, for Respondents.
PER CURIAM: Emily Felder (Daughter 1), executor of the estate of Mamie
Nichols (Mother),1 appeals the jury verdict in favor of Albert Thompson, Thaddeus
Thompson, Titus Thompson, and Asia Thompson (collectively, Respondents). On
appeal, Daughter 1 argues the circuit court erred in (1) failing to find the deed was
void as a matter of law because it was prepared by an unlicensed attorney, (2)
submitting to the jury the question of whether a confidential relationship existed,
and (3) denying Mother's motion for a directed verdict on her claim of undue
influence. We affirm.

1. Daughter 1 argues the circuit court erred in failing to find the deed was void
as a matter of law because it was prepared by an unlicensed attorney. We disagree.
Daughter 1 relies on Matrix Financial Services Corp. v. Frazer, 394 S.C. 134, 714
S.E.2d 532 (2011), and Wachovia Bank v. Coffey, 389 S.C. 68, 698 S.E.2d 24 (Ct.
App. 2010) (finding this court did not need to reach the issue of whether the bank's
unauthorized practice of law barred equitable and legal relief because the bank
could not foreclose on an invalid mortgage obtained by the deceased husband on
property titled exclusively to the wife), aff'd as modified, 404 S.C. 421, 746 S.E.2d
35 (2013). In Matrix, our supreme court stated that a lender "may not enjoy the
benefit of equitable remedies when that lender failed to have attorney supervision
during the loan process as required by our law." 394 S.C. at 140, 714 S.E.2d at
535. In Coffey, this court similarly found a lender may not enjoy the benefits of
equitable remedies when that lender committed the unauthorized practice of law.
389 S.C. at 74, 698 S.E.2d at 247. These cases prohibited recovery to the entities
that committed the unauthorized practice of law under equitable doctrines
disallowing parties from benefitting from their own misconduct. See generally
Vitauts M. Gulbis, J.D., Annotation, Right of Party Litigant to Defend or
Counterclaim on Ground that Opposing Party or His Attorney is Engaged in
Unauthorized Practice of Law, 7 A.L.R.4th 1146 §2[a] (1981) ("Generally, courts
have distinguished between cases in which a party has engaged in the unauthorized
practice of law in an underlying transaction, and cases in which the party's
representative has engaged in unauthorized practice in the course of litigation.").
In this case, the closing attorney had been disbarred, but no evidence was presented
indicating any of the parties were aware of it at the time the unauthorized practice
of law was committed. We find no application of these cases to Respondents.

2. Daughter 1 next argues the circuit court erred in submitting to the jury the
question of whether a confidential relationship existed and denying her motion for

1
Mother filed this appeal, but she subsequently died. Daughter 1 was substituted
as the named appellant after being appointed as executor of Mother's estate.
a directed verdict on her undue influence claim.2 We find no reversible error. The
existence of a fiduciary relationship is a question for the court; however, whether a
breach of the fiduciary duty has occurred may be a question of fact. Spence v.
Wingate, 395 S.C. 148, 160, 716 S.E.2d 920, 926-27 (2011). Here, the circuit
court agreed on the record that a confidential relationship existed. Although the
jury verdict form includes the question of the Mother's capability of being unduly
influenced, Daughter 1 neither objected to the verdict form nor included the jury
charge in the Record on Appeal. Therefore, she has waived the issue of submitting
the question of the existence of a confidential relationship to the jury. See Helms
Realty, Inc. v. Gibson-Wall Co., 363 S.C. 334, 339-40, 611 S.E.2d 485, 488 (2005)
(declining to address a challenge to the trial court's jury charge because the charge
was not included in the Record on Appeal); Howard v. Kirton, 144 S.C. 89, 101,
142 S.E. 39, 43 (1928) ("If the appellant thought there was confusion in the
wording of the verdict, he should have called the attention of the court to the
matter at the time the verdict was rendered; and, then any seeming confusion in the
language of the verdict could have been easily cleared up."); Johnson v. Hoechst
Celanese Corp., 317 S.C. 415, 421, 453 S.E.2d 908, 912 (Ct. App. 1995)
("Because they did not raise the alleged error at the first opportunity, we hold the
landowners failed to preserve any issue regarding the court's exhibit and verdict
form.").

As to the denial of Daughter 1's motion for a directed verdict on her undue
influence claim, we find there was evidence to submit the issue to the jury. See
Middleton v. Suber, 300 S.C. 402, 405, 388 S.E.2d 639, 641 (1990) ("Where . . . a
'confidential relationship' exists between the grantor and grantee, the deed is
presumed invalid and the burden is upon the grantee to establish absence of undue
influence."). Barbara Gillard testified Mother told her she wanted Donna
Thompson (Daughter 2) to have the property after she died because Daughter 2
was already living at the property. Gillard also claimed that after Daughter 2 died,
Mother again stated she wanted Daughter 2's children to have the property.
Additionally, Gillard stated it was not in Daughter 2's nature to put pressure on
Mother and Mother never mentioned Daughter 2 putting pressure on her. Because
Respondents provided evidence that refutes the presumption of invalidity of the
deed, we find this cause of action was properly submitted to the jury. See
Quesinberry v. Rouppasong, 331 S.C. 589, 594, 503 S.E.2d 717, 720 (1998) ("If
the evidence is susceptible to more than one reasonable inference, the case should
be submitted to the jury.").

2
We combine Daughter 1's second and third issues because both are related to her
undue influence claim.
AFFIRMED.3

SHORT, KONDUROS, and GEATHERS, JJ., concur.

3
We decide this case without oral argument pursuant to Rule 215, SCACR.