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Unpublished Opinion No. 2011-UP-517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).