King v. King ( 2012 )

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
Patricia E. King and Robbie King Jones, as
representatives of W.R. King and Ellen King, Plaintiffs,
Of Whom Patricia E. King, as representative of W.R.
King and Ellen King is, Respondent,
v.
Margie B. King and Robbie Patricia Ione King,
individually and as co-representatives of the Estate of
Christopher G. King (deceased) and Nelson M. King,
Chester Telephone Company, Defendants,
Of Whom Margie B. King and Robbie Ione King,
individually, and as co-representatives of the Estate of
Christopher G. King (deceased) and Nelson M. King, are
Appellants.
Appellate Case No. 2011-189186
Appeal From Chester County
James C. Harrison, Jr., Special Referee
Unpublished Opinion No. 2012-UP-365
Heard May 7, 2012 – Filed June 20, 2012
AFFIRMED
Timothy F. Rogers and Richard L. Whitt, both of Austin
& Rogers, PA, of Columbia, for Appellants.
Kenneth B. Wingate and John E. Tyler, both of Sweeny,
Wingate & Barrow, PA, of Columbia, for Respondent.
PER CURIAM: Appellants appeal from an order of the special referee denying
their counterclaim against Respondent for an accounting of the profits of King's
Funeral Home. On appeal, Appellants argue (1) the circuit court's order of
reference required the special referee to direct an accounting of King's Funeral
Home; (2) the special referee should have estopped Patricia King from asserting an
accounting was not proper; and (3) the record does not support the factual findings
of the special referee. We affirm.
1. As to Appellants' argument that the circuit court's order of reference required
the special referee to direct an accounting of King's Funeral Home, we find the
issue of whether Appellants were entitled to an accounting was a new and separate
matter than the issue addressed in the order of reference of whether Patricia King
was entitled to an accounting. Furthermore, we find the order of reference is not
reasonably susceptible to Appellants' interpretation as requiring the special referee
to direct an accounting of King's Funeral Home. See Hailey v. Hailey, 357 S.C. 18,
25, 590 S.E.2d 495, 498 (Ct. App. 2003) ("As a general rule, judgments are to be
construed like other written instruments." (internal quotation marks omitted));
Petition of White, 299 S.C. 406, 412, 385 S.E.2d 211, 215 (Ct. App. 1989) ("The
determinative factor is the intent of the parties or the court, as gathered, not from
an isolated part of the contract or judgment but from all its parts."); id. (providing
if the language employed within a contract or judgment is plain and unambiguous,
there is no room for construction or interpretation and the effect thereof must be
declared in light of the literal meaning of the language used).
2. As to Appellants' argument that the special referee should have estopped
Patricia King from asserting an accounting was not proper, we find the doctrine of
judicial estoppel inapplicable because Patricia King did not take inconsistent
positions in the same or related proceedings. See City of N. Myrtle Beach v. E.
Cherry Grove Realty Co., Op. No. 27113 (S.C. Sup. Ct. filed April 11, 2012)
(Shearouse Adv. Sh. No. 13 at 44, 52) ("Judicial estoppel is an equitable concept
that prevents a litigant from asserting [a] position inconsistent with, or in conflict
with, one the litigant has previously asserted in the same or related proceeding."
(internal quotation marks omitted)); id. (providing the purpose of judicial estoppel
is to ensure the integrity of the judicial process, not to protect the parties from
allegedly dishonest conduct by their adversary); Wright v. Hiester Constr. Co., 389
S.C. 504, 519, 698 S.E.2d 822, 830 (Ct. App. 2010) ("Judicial estoppel comes into
play when the court is forced to take a position based on a factual assertion."
(internal quotation marks omitted)); Auto-Owners Ins. Co. v. Rhodes, 385 S.C. 83,
99 n.6, 682 S.E.2d 857, 866 n.6 (Ct. App. 2009) ("The elements of judicial
estoppel include: (1) two inconsistent positions taken by the same party or parties
in privity with one another; (2) the positions must be taken in the same or related
proceedings involving the same party or parties in privity with each other; (3) the
party taking the position must have been successful in maintaining that position
and have received some benefit; (4) the inconsistency must be part of an
intentional effort to mislead the court; and (5) the two positions must be totally
inconsistent." (citing Cothran v. Brown, 357 S.C. 210, 215-16, 592 S.E.2d 629,
632 (2004))).
3. As to Appellants' argument that the record does not support the factual findings
of the special referee, we find Appellants are not entitled to an accounting because
the preponderance of evidence supports the special referee's findings that the
funeral home business operated by Patricia King is a new and separate business
entity from the funeral home business operated by Chris King, and no fiduciary
relationship exists between Appellants and Patricia King. See Consignment Sales,
LLC v. Tucker Oil Co., 391 S.C. 266, 272, 705 S.E.2d 73, 76-77 (Ct. App. 2010)
(noting an action for an accounting is an equitable action; therefore, an appellate
court may review the record and make findings in accordance with its own view of
the preponderance of the evidence (citing Historic Charleston Holdings, LLC v.
Mallon, 381 S.C. 417, 427, 673 S.E.2d 448, 453 (2009))); Rogers v. Salisbury
Brick Corp., 299 S.C. 141, 144, 382 S.E.2d 915, 917 (1989) ("[A]n accounting is
designed to prevent unjust enrichment by disclosing and requiring the
relinquishment of profits received as the result of a breach of a confidential or
fiduciary duty." (citation omitted)); see also Black's Law Dictionary (9th ed. 2009)
(defining "sole proprietorship" as "[a] business in which one person owns all the
assets, owes all the liabilities, and operates in his or her personal capacity").
AFFIRMED.
PIEPER, KONDUROS, and GEATHERS, JJ., concur.