Russell Bauknight v. Adele Pope (3)

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

Russell L. Bauknight, as Trustee of the James Brown
2000 Irrevocable Trust and the James Brown Legacy
Trust, as Personal Representative of the Estate of James
Brown, and on behalf of Alan Wilson, in his capacity as
Attorney General of the State of South Carolina; Tommie
Rae Brown, individually and on behalf of her minor
child, James B. II; Daryl J. Brown, individually and on
behalf of his minor child, Janise B.; Lindsey Delores
Brown; Deanna J. Brown Thomas; Jason Brown-Lewis;
Yamma N. Brown, individually and on behalf of her
minor children Sydney L. and Carrington L.; Tonya
Brown; Venisha Brown; Larry Brown; and Terry Brown

And

Alan Wilson, in his capacity as Attorney General of the
State of South Carolina; Tommie Rae Brown,
individually and on behalf of her minor child, James B.
II; Daryl J. Brown, individually and on behalf of his
minor child Janise B.; Lindsey Delores Brown; Deanna J.
Brown Thomas; Jason Brown-Lewis; Yamma N. Brown,
individually and on behalf of her minor children Sydney
L. and Carrington L.; Tonya Brown; Venisha Brown;
Larry Brown; and Terry Brown, Plaintiffs,

Of whom Russell L. Bauknight, as Trustee of the James
Brown 2000 Irrevocable Trust and the James Brown
Legacy Trust, as Personal Representative of the Estate of
James Brown, and on behalf of Alan Wilson, in his
capacity as Attorney General of the State of South
Carolina; Tommie Rae Brown, individually and on
behalf of her minor child, James B. II; Daryl J. Brown,
individually and on behalf of his minor child, Janise B.;
Lindsey Delores Brown; Deanna J. Brown Thomas;
Jason Brown-Lewis; Yamma N. Brown, individually and
on behalf of her minor children Sydney L. and
Carrington L.; Tonya Brown; Venisha Brown; Larry
Brown; and Terry Brown

And

Tommie Rae Brown, individually and on behalf of her
minor child, James B. II; Daryl J. Brown, individually
and on behalf of his minor child Janise B.; Lindsey
Delores Brown; Deanna J. Brown Thomas; Jason Brown-
Lewis; Yamma N. Brown, individually and on behalf of
her minor children Sydney L. and Carrington L.; Tonya
Brown; Venisha Brown; Larry Brown; and Terry Brown
are Respondents,

v.

Adele J. Pope and Robert L. Buchanan, Jr., Defendants,

Of whom Adele J. Pope is the Appellant.

Appellate Case No. 2018-002229

Appeal From Richland County
Doyet A. Early, III, Circuit Court Judge
L. Casey Manning, Jr., Circuit Court Judge

Unpublished Opinion No. 2022-UP-346
Heard February 8, 2022 – Filed August 24, 2022

AFFIRMED IN PART, DISMISSED IN PART
Charles E. Carpenter, Jr., of Carpenter Appeals & Trial
Support, LLC, Adam Tremaine Silvernail, of Law Ofc.
of Adam T. Silvernail, Daryl L. Williams, of Gertz &
Moore, LLP, all of Columbia; and William Jeffrey Smith,
of Newberry, for Appellant.

Kenneth B. Wingate, Mark V. Gende, and Aaron
Jameson Hayes all of Sweeny Wingate & Barrow, PA, all
of Columbia; and Everett Augustus Kendall, II, of
Murphy & Grantland, PA, of Columbia, for Respondents.

PER CURIAM: Adele J. Pope's current appeal of twenty-five circuit court orders
arises from the voluminous litigation following the death of the famous singer and
entertainer, James Brown. Pope has again appealed the circuit court's order
denying her motion to dismiss Respondents' 2010 complaint against her and Robert
Buchanan, Jr. Pope also appeals the circuit court's orders relating to Respondents'
motion for summary judgment on her counterclaims, as well as several other orders
relating to her involvement as a former special administrator, personal
representative (PR), and trustee of Brown's Estate. We dismiss Pope's second
attempt to appeal the denial of her motion to dismiss. As to the remaining orders,
we affirm.

Facts and Procedural History

Upon his death on December 25, 2006, Brown left behind an estate estimated to be
worth between $5 million and $100 million. After some of Brown's relatives
became suspicious of prior PRs and trustees, Pope and Buchanan were appointed
as special administrators. While overseeing the PRs/trustees' work in their
capacities as special administrators, Pope and Buchanan uncovered serious
financial misconduct, which ultimately led to the court's 2007 appointment of Pope
and Buchanan as replacement PR/trustees.

Pope and Buchanan served in these capacities until May 26, 2009, when the circuit
court approved a settlement negotiated by then-Attorney General Henry McMaster.
The settlement plan removed Pope and Buchanan and replaced them with Russell
Bauknight. Pope and Buchanan appealed, arguing the settlement's terms were
contrary to Brown's desire that the majority of his estate go to charity. In Wilson v.
Dallas, 403 S.C. 411, 448, 743 S.E.2d 746, 766 (2013), our supreme court set aside
the settlement but affirmed Pope and Buchanan's removal, finding an irreconcilable
conflict existed between Pope and Buchanan and certain parties who expressed
continuing opposition to their actions.

Unfortunately, Wilson addressed only a fraction of the litigation that has ensued
since Mr. Brown's death. On May 19, 2010, Respondents filed this action for
breach of fiduciary duty, breach of trust, and negligence arising from Pope and
Buchanan's alleged failure to properly administer the Brown Estate. Respondents
claim this maladministration caused significant financial damage to the Estate.
Initially, Pope and Buchanan moved to dismiss and change venue; however, they
subsequently answered and asserted multiple counterclaims.

On November 9, 2010, the circuit court denied Pope and Buchanan's motions to
dismiss and change venue. On November 10, 2010, Pope and Buchanan filed an
affidavit of default asserting Respondents failed to timely respond to their
counterclaims. Respondents then filed an answer addressing the counterclaims,
along with a motion to set aside the entry of default.1

In 2011, Pope appealed the circuit court's orders denying her motions to dismiss, to
change venue, and to alter or amend. We dismissed that appeal, finding "the orders
challenged on appeal are not immediately appealable."

On May 19, 2011, Pope filed a motion seeking, among other things, to disqualify
the law firm of Sweeny, Wingate & Barrow from representing the Attorney
General and enjoining Russell Bauknight, who was then trustee and PR of the
Brown Estate, from purporting to speak on behalf of the Attorney General.
Following a hearing, the circuit court denied Pope's motion.

The circuit court granted Respondents' motion to set aside the entry of default, and
Respondents subsequently moved for summary judgment on Pope's counterclaims.
Following a hearing, the Honorable Doyet A. Early, III, granted summary
judgment.

In 2017, the circuit court granted the Attorney General's motion to withdraw as a
party under Rule 21, SCRCP. Pope appealed, and this court affirmed in part and
dismissed in part in an unpublished opinion, Bauknight as Trustee of James Brown
2000 Irrevocable Tr. v. Pope, Op. No. 2020-UP-216 (S.C. Ct. App. filed Sept. 16,

1
In 2012, Buchanan settled all claims with Respondents; thus, he is not a party to
this appeal.
2020). We also found the circuit court correctly recognized the Attorney General's
interest in protecting the charitable beneficiaries. Id.

Law and Analysis

I. Motion to Dismiss

Pope argues the circuit court erred in failing to dismiss Respondents' complaint
under Rules 12(b)(6), (7), and (8), SCRCP. As noted above, Pope previously
appealed this order in 2011. We find the order denying Pope's motion to dismiss is
still not appealable.

"Denials of Rule 12(b)(6) motions are not immediately appealable." Weaver v.
Brookdale Senior Living, Inc., 431 S.C. 223, 234, 847 S.E.2d 268, 274 (Ct. App.
2020); see also Breland v. Love Chevrolet Olds, Inc., 339 S.C. 89, 93, 529 S.E.2d
11, 13 (2000) ("Currently, this Court does not allow immediate appellate review of
the denial of any Rule 12(b), SCRCP motion."). "Although there are no cases
addressing appealability in the context of a Rule 12(b)(7) motion, the appellate
courts generally do not allow immediate appellate review of the denial of Rule
12(b) motions." Jean Hoefer Toal et al., Appellate Practice in South Carolina 149
(3d ed. 2016). Similar to the denial of a motion for summary judgment, "the denial
of a motion to dismiss does not establish the law of the case and the issue raised by
the motion can be raised again at a later stage of the proceedings." McLendon v.
S.C. Dep't of Highways & Pub. Transp., 313 S.C. 525, 526 n.2, 443 S.E.2d 539,
540 n.2 (1994).

Here, the circuit court's order denying Pope's motion to dismiss does not establish
the law of the case, affect a substantial right, or prevent Pope from raising her
defenses at an appropriate stage of the litigation.

II. Motion for Summary Judgment

Pope argues the circuit court erred in granting Respondents summary judgment on
her counterclaims. We disagree—summary judgment was appropriate.

"When reviewing the grant of summary judgment, the appellate court applies the
same standard applied by the [circuit] court pursuant to Rule 56(c), SCRCP."
Garrard v. Charleston Cty. Sch. Dist., 429 S.C. 170, 189, 838 S.E.2d 698, 708 (Ct.
App. 2019) (alteration in original) (quoting Fleming v. Rose, 350 S.C. 488, 493,
567 S.E.2d 857, 860 (2002)). Under Rule 56(c),
The judgment sought shall be rendered forthwith if the
pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any,
show 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.

"Collateral estoppel, also known as issue preclusion, prevents a party from
relitigating an issue that was decided in a previous action, regardless of whether
the claims in the first and subsequent lawsuits are the same." Carolina Renewal,
Inc. v. S.C. Dep't of Transp., 385 S.C. 550, 554, 684 S.E.2d 779, 782 (Ct. App.
2009). "The party asserting collateral estoppel must demonstrate that the issue in
the present lawsuit was: (1) actually litigated in the prior action; (2) directly
determined in the prior action; and (3) necessary to support the prior judgment."
Id.

The grounds for Respondents' motion for summary judgment are based on their
contention that Wilson conclusively established facts precluding Pope's
counterclaims as a matter of law. In Wilson, the supreme court affirmed the circuit
court's "for cause" removal of Buchanan and Pope from their fiduciary roles and
made other findings which establish a meritorious basis for Respondents' claims.
403 S.C. at 448, 743 S.E.2d at 766. Specifically, the court found "the circuit court
did not violate the statutory provisions regarding the removal of personal
representatives. Notice and a hearing were provided, and the court had cause to
remove [Pope] as it was in the best interests of the estate." Id. (emphasis added).
The court cited the following specific examples of conduct necessitating Pope's
removal:

We are also aware that Appellants have sought $5 million
in fees for their services as fiduciaries for a relatively
short interval of time. In addition, [Pope] sought and
obtained permission from the circuit court to sell iconic
assets from Brown's estate in order to raise funds, and a
large portion of the amount raised went first to pay
Appellants' own attorneys' fees. [Pope] also
unsuccessfully attempted to sell Brown's GRAMMY
award at auction; the process was halted only because
officials from the National Academy of Recording Arts
and Sciences reclaimed the award after informing
Appellants that it was a longstanding policy that the
award could not be sold by recipients or anyone acting on
their behalf. These actions and the extreme discord
between the parties convince us that Appellants'
continued service as fiduciaries is not in the best interests
of the estate.

Id. at 448–49, 743 S.E.2d at 766–67. Certain issues regarding Pope's removal for
cause were necessarily determined by the supreme court in Wilson. Thus, the
elements for collateral estoppel have been met as to the majority of Pope's
counterclaims because her removal for cause was (1) actually litigated; (2) directly
determined by the court; and (3) necessary to support the prior judgment. Notably,
the supreme court expressly determined Pope had notice and a hearing on the
question of her removal for cause. Therefore, Pope was afforded a full and fair
opportunity to litigate the question of her removal. We briefly address the merits
of Pope's counterclaims below.

A. Civil Conspiracy Counterclaim

Initially, we note Respondents' prosecution of this suit for breach of fiduciary duty
is neither an "unlawful act [n]or a lawful act by unlawful means." Paradis v.
Charleston Cty. Sch. Dist., 433 S.C. 562, 574, 861 S.E.2d 774, 780 (2021). While
the Wilson court questioned whether Respondents' claims there were "asserted in
good faith since the primary claim asserted by the parties as a basis for discarding
Brown's testamentary documents, undue influence, was of dubious validity," 403
S.C. at 442, 743 S.E.2d at 763, the court recognized the evidence of
maladministration, self-dealing, and extreme discord between the parties. Id. at
448-49, 743 S.E.2d at 766-67. To the extent the supreme court's findings in Wilson
do not bar Pope's current claims, we find Pope has not put forth the evidence
necessary to support a claim of civil conspiracy.

B. Abuse of Process Counterclaim

Regarding Pope's counterclaim for abuse of process, we are unable to find any
evidence in the record demonstrating Respondents had an ulterior purpose in filing
their complaint. See Hainer v. Am. Med. Int'l. Inc., 328 S.C. 128, 136, 492 S.E.2d
103, 107 (1997) ("Some definite act or threat not authorized by the process or
aimed at an object not legitimate in the use of the process is required."); see also
First Union Mortg. Corp. v. Thomas, 317 S.C. 63, 74–75, 451 S.E.2d 907, 914 (Ct.
App. 1994) ("An ulterior purpose exists if the process is used to gain an objective
not legitimate in the use of the process. However, there is no liability when the
process has been carried to its authorized conclusion, even though with bad
intentions."). At oral argument, the panel repeatedly asked Pope what evidence she
could produce to support this cause of action, such as an affidavit of either of the
attorneys to whom Pope alleges an extortive threat of litigation was made. Other
than Pope's own conclusory allegations, no such evidence was forthcoming. Thus,
we find the circuit court did not err in granting summary judgment on Pope's abuse
of process counterclaim.

C. Fraud Counterclaim

In referencing Forlando J. Brown v. Adele J. Pope, Case No.: 3:08cv00014-WOB,
2014 WL 12622445 (D.S.C. March 28, 2014), the circuit court correctly noted the
federal court's order was persuasive because, although considering the claims of
different plaintiffs, it addressed "the exact same counterclaims that Mrs. Pope has
made in the instant case." With respect to Pope's statutory violation claim, the
district court found that although Pope made claims about certain statements of the
opposing party, she failed to "explain how any such statements were fraudulent or
constituted circumvention of the Probate Code." Id. at *7. The same is true here.

As to the allegations in Pope's brief regarding the former Attorney General, Pope
argues for the first time on appeal that the Attorney General joined with Forlando
Brown and Terry Brown to defraud the court regarding the valuation of the Brown
Estate. See Wilder Corp. v. Wilke, 330 S.C. 71, 76, 497 S.E.2d 731, 733 (1998)
("It is axiomatic that an issue cannot be raised for the first time on appeal, but must
have been raised to and ruled upon by the trial judge to be preserved for appellate
review."). Thus, this argument is not properly before us.

Additionally, Pope claims the Attorney General failed to address certain matters
regarding the correct heirs to the Brown Estate in circuit court case
2008-CP-02-0872. Pope brought this claim on September 10, 2010, more than two
years after the Attorney General entered the 2008 agreement. Therefore, such a
claim fails as a matter of law due to the two-year statute of limitations. See S.C.
Code Ann. § 62-1-106 (2022) ("Any proceeding must be commenced within two
years after the discovery of the fraud, but no proceeding may be brought against
one not a perpetrator of the fraud later than five years after the time of commission
of the fraud."). Moreover, Pope lacks standing to raise claims on behalf of the
Estate or the Trust due to her removal as PR and trustee. See Wilson, 403 S.C. at
448, 743 S.E.2d at 766 (holding the circuit court had cause to remove Buchanan
and Pope and replace them with a professional fiduciary).
D. Tortious Interference with Contractual Relations Counterclaim

Although we disagree with some of the circuit court's legal analysis addressing
Pope's counterclaim for tortious interference with contractual relations, we agree
that Pope has failed to present any evidence demonstrating Respondents
intentionally procured the breach of a contract (i.e., Pope's appointment by court
order) without justification. See e.g., Forlando Brown at *7 ("Pope and Buchanan
were appointed by Judge Early to act as PRs and Trustees of James Brown's Estate.
Even assuming that this arrangement constitute[s] a 'contract,' defendants have
adduced no evidence that plaintiff intentionally procured the 'breach' of that
agreement.").

Accordingly, we find Pope's counterclaims fail as a matter of law and the circuit
court properly granted Respondents' motion for summary judgment. Furthermore,
to the extent Pope seeks to assert claims on behalf of the Estate, she lacks standing
to do so due to her removal as PR and trustee.

III. Due Process

Pope next alleges the Attorney General and the circuit court violated her due
process rights; however, she presented a only brief argument on this point and
failed to cite any authority to support it. See Rule 208(b)(1)(E), SCACR (requiring
"discussion and citations of authority" for each issue in an appellant's brief); see
also State v. Lindsey, 394 S.C. 354, 363, 714 S.E.2d 554, 558 (Ct. App. 2011) ("An
issue is deemed abandoned and will not be considered on appeal if the argument is
raised in a brief but not supported by authority."); Glasscock, Inc. v. U.S. Fid. &
Guar. Co., 348 S.C. 76, 81, 557 S.E.2d 689, 691 (Ct. App. 2001) ("South Carolina
law clearly states that short, conclusory statements made without supporting
authority are deemed abandoned on appeal and therefore not presented for
review.").

Even if Pope had not abandoned this issue, we would find no due process
violation. Although Pope argues she has been denied a right to "a level playing
field," she has not identified how her rights to due process have purportedly been
violated. See e.g., Moore v. Moore, 376 S.C. 467, 472, 657 S.E.2d 743, 746 (2008)
("In order to prove a denial of substantive due process, a party must show that he
was arbitrarily and capriciously deprived of a cognizable property interest rooted in
state law."); id. at 473, 657 S.E.2d at 746 ("Procedural '[d]ue process requires (1)
adequate notice; (2) adequate opportunity for a hearing; (3) the right to introduce
evidence; and (4) the right to confront and cross-examine witnesses.'" (alteration in
original) (quoting Clear Channel Outdoor v. City of Myrtle Beach, 372 S.C. 230,
235, 642 S.E.2d 565, 567 (2007)); id. (explaining the procedural due process
requirements in a particular case "depend on the importance of the interest
involved and the circumstances under which the deprivation may occur"). And
other than the attorney's fees she contends she is owed, Pope has failed to identify
any "cognizable property interest rooted in state law." 2 Id. at 472, 657 S.E.2d at
746 (quoting Sloan v. S.C. Bd. of Physical Therapy Exam'rs, 370 S.C. 452, 483,
636 S.E.2d 598, 614 (2006), overruled on other grounds by Joseph v. S.C. Dep't of
Lab., Licensing and Regul., 417 S.C. 436, 790 S.E.2d 763 (2016)).

Conclusion

For the foregoing reasons, we again dismiss Pope's appeal of the orders denying
her motion to dismiss and affirm as to the remaining orders.

AFFIRMED IN PART, DISMISSED IN PART.

THOMAS, MCDONALD, and HEWITT, JJ., concur.

2
Issues relating to Pope's claim for fees and commission were addressed in Pope v.
Estate of James Brown and the James Brown 2000 Irrevocable Tr., Op. No.
2022-UP-229 (S.C. Ct. App. filed May 25, 2022).