Will the “Real” Representative Please Stand

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Last month, the Supreme Court of South Carolina, in Fisher v. Huckabee, 2018 WL 1076808 (Feb. 28, 2018), addressed the question of who may bring a suit on behalf of a deceased individual if the personal representative has a conflict.  Briefly, the decedent asked the defendants to care for her in her last years.  In exchange for such care, the decedent promised to make each of the caregivers residuary beneficiaries under her will.  When decedent died, her probated will left all of her assets to the caregivers as promised.  The will named Defendant Huckabee as personal representative of the estate.

Thereafter, Fisher brought an action in circuit court against the defendants under South Carolina’s survival statute, alleging they failed to care for decedent, and decedent suffered damages as a result.  Fisher filed the action as the decedent’s “real representative.” At the time of the filing of the action, Fisher was not the personal representative of the estate, nor was she a special administrator of the estate.  The defendants moved for summary judgment, claiming Fisher did not have standing to bring the survival action. Fisher never asked the circuit court to appoint a special administrator for the purpose of bringing the survival action. The circuit court dismissed the action, and the court of appeals affirmed.

On certiorari, the Supreme Court looked to Rule 17 of the South Carolina Rules of Civil Procedure and S.C. Code Ann. § 62-3-614 to answer the question.  Discussing Rule 17, the Supreme Court noted that rule specifies the real party in interest is the party charged with prosecuting an action.    Under the Probate Code, a personal representative is usually the only party “with exclusive authority to bring civil actions” on behalf of the estate or the decedent.  However, the Supreme Court also recognized, under Probate Code § 62-3-614, sometimes “a general personal representative cannot or should not act.”  In those circumstances, the court should appoint a special administrator, which would then “enable the estate to participate in a transaction which the general personal representative could not, or should not, handle because of conflict of interest.”

Because Fisher was neither the personal representative nor a special administrator of the estate, the defendants argued Fisher was not the real party in interest under Rule 17(a). The trial court, Court of Appeals, and Supreme Court agreed with this argument.   The Supreme Court then noted the saving clause of Rule 17(a) allowed “a reasonable time” for joinder or substitution of the real party in interest.  Fisher did not take advantage of this saving clause, so the trial court dismissed the action.

The Supreme Court then addressed Fisher’s standing as the “real” representative of the decedent.  Although that term exists in South Carolina’s survival statute, the Supreme Court held it no longer had any viable meaning under South Carolina’s modern jurisprudence.  In fact, the Supreme Court agreed with the Court of Appeals in that “[t]he real representative ... is mentioned nowhere in the modern Probate Code.”  Instead, the right to bring a survival action like Fisher’s belongs initially to the personal representative, and secondarily to a special administrator. 

Finally, the Supreme Court addressed whether remand was an available remedy following this appeal, to allow Fisher to seek appointment as a special administrator to bring the action. In rejecting this option, the Supreme Court noted the trial court “engaged Fisher in a discussion over who has the authority to bring the action, and suggested that Fisher turn to the probate court for guidance.”  Because Fisher refused to seek appointment, “continued to maintain her legally flawed position,” and “insisted that the validity of her claimed status be litigated,” the Supreme Court decided to “rule on the question put before it.”  Fisher chose to put to the court the question of whether there is even such thing as a “real representative” under modern law, and the Supreme Court responded—again looking to the Probate Code—with an unequivocal “No.”

Bruce Wallace practices with Nexsen Pruet’s business and consumer litigation group in Charleston. He represents a variety of banking and financial institutions in real estate litigation, commercial litigation, and mortgage foreclosures. He also represents insurers and corporate clients in bad faith and coverage issues, professional liability, business litigation (including disputes involving partnerships, limited liability companies, and closely held companies), and probate litigation matters (including trusts and estates).