Moore v. Simpson et al

Filing 88

ORDER RULING ON REPORT AND RECOMMENDATIONS adopting 79 Report and Recommendations, denying Plaintiff's 55 Motion for Summary Judgment, granting 52 Motion for Summary Judgment filed by S Jackson Kimball, III, grantin g Plaintiff's 75 Motion to Dismiss S Jackson Kimball, III, granting 59 Motion for Summary Judgment filed by David E Simpson, granting 62 Motion for Summary Judgment filed by Ivan N Walters, and dismissing all claims against Lisa H. Whisenant and Ronald E. Whisenant sua sponte. Signed by Honorable Joseph F Anderson, Jr on 09/07/2011. (bshr, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
ROCK HILL DIVISION
MARY JOE MOORE,

)
)
Plaintiff,
)
)
v.
)
)
DAVID E. SIMPSON, Attorney at
)
Law, IVAN N. WALTERS, Attorney
)
At Law, S. JACKSON KIMBALL, III,
)
Attorney at Law and Master in Equity for )
York County, LISA H. WHISENANT,
)
RONALD E. WHISENANT,
)
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Defendants.
)
____________________________________)

C.A. No.: 0:09-cv-2308-JFA

ORDER

This matter is before the court upon Plaintiff Mary Joe Moore’s objections to a United
States Magistrate Judge’s Report and Recommendation (“R&R”), which recommends that this
court grant the motions for summary judgment submitted by Defendants Judge S. Jackson
Kimball, III, David E. Simpson, and Ivan N. Walters. The R&R further recommends that this
court deny Moore’s motion for summary judgment and grant Moore’s motion to dismiss Judge
Kimball. Finally, the R&R suggests that this court dismiss all claims against Defendants Ronald
and Lisa Whisenant, sua sponte.

Having reviewed the entire record, including Plaintiff’s

objections, the court finds the Magistrate Judge fairly and accurately summarized the facts and
applied the correct principles of law.

Accordingly, the court adopts the R&R and fully

incorporates it into this order.
LEGAL STANDARDS
I.

The Magistrate Judge’s Report and Recommendation

The Magistrate Judge made his review in accordance with 28 U.S.C. § 636(b)(1)(B) and
Local Civil Rule 73.02. The Magistrate Judge only makes a recommendation to the court. It has
no presumptive weight, and the responsibility for making a final determination remains with the
court. Mathews v. Weber, 423 U.S. 261, 270–71 (1976). Parties are allowed to make a written
objection to a Magistrate Judge’s report within fourteen days after being served a copy of the
report. 28 U.S.C. § 636(b)(1). From the objections, the court reviews de novo those portions of
the R&R that have been specifically objected to, and the court is allowed to accept, reject, or
modify the R&R in whole or in part. Id.
II.

Legal Standard for Summary Judgment
To grant a motion for summary judgment, the court must find that “there is no genuine

issue as to any material fact.” Fed. R. Civ. P. 56(a). The judge is not to weigh the evidence but
rather must determine if there is a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 249 (1986). All evidence should be viewed in the light most favorable to the
nonmoving party. Perini Corp. v. Perini Constr., Inc., 915 F.2d 121, 123–24 (4th Cir. 1990).
“[W]here the record taken as a whole could not lead a rational trier of fact to find for the
nonmoving party, disposition by summary judgment is appropriate.” Teamsters Joint Council
No. 83 v. Centra, Inc., 947 F.2d 115, 119 (4th Cir. 1991). “[T]he plain language of Rule 56[a]
mandates the entry of summary judgment, after adequate time for discovery and upon motion,
against a party who fails to make a showing sufficient to establish the existence of an element
essential to that party’s case, and on which that party will bear the burden of proof at trial.”
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The “obligation of the nonmoving party is
‘particularly strong when the nonmoving party bears the burden of proof.’” Hughes v. Bedsole,

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48 F.3d 1376, 1381 (4th Cir. 1995) (quoting Pachaly v. City of Lynchburg, 897 F.2d 723, 725
(4th Cir. 1990)). Summary judgment is not “a disfavored procedural shortcut,” but an important
mechanism for weeding out “claims and defenses [that] have no factual bases.” Celotex, 477
U.S. at 327.
When the parties file cross-motions for summary judgment, “the standards upon which
the court evaluates the motions for summary judgment do not change.” Taft Broad. Co. v.
United States, 929 F. 2d 240, 248 (6th Cir. 1991). “[T]he Court must review each motion
separately on its own merits ‘to determine whether either of the parties deserves judgment as a
matter of law.’” Rossignol v. Voorhaar, 316 F.3d 516, 523 (4th Cir. 2003) (quoting Philip
Morris Inc. v. Harshbarger, 122 F.3d 58, 62 n. 4 (1st Cir. 1977)). The fact that both sides have
moved for summary judgment does not establish that no genuine dispute of material fact exists
and that judgment must be granted to one side or the other. See Worldwide Rights Ltd. P’ship v.
Combe, Inc., 955 F.2d 242, 244 (4th Cir. 1992); Am. Fid. & Cas. Co. v. London & Edinburgh
Ins. Co., 354 F.2d 214, 216 (4th Cir. 1965).
ANALYSIS
Procedural & Factual History
On September 1, 2009, Moore filed this action against the following Defendants: David
E. Simpson, Ivan N. Walters, the Honorable S. Jackson Kimball, III, Ronald E. Whisenant, and
Lisa H. Whisenant. All of the Defendants answered. Judge Kimball, Simpson, and Walters have
all filed separate motions for summary judgment. Moore has responded to these motions and has
filed her own motion for summary judgment. She has also filed a motion to dismiss Judge
Kimball as a Defendant.

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Moore’s complaint relates to a number of planned property conveyances between
Plaintiff, Plaintiff’s mother, Mary G. Curtis, and Defendants Lisa and Ronald Whisenant. The
following summary given by the Magistrate outlines the general scheme of the planned property
conveyances:
Ms. Curtis owned real estate off Mt. Gallant Road in York County
adjacent to property owned by her daughter, Moore. Apparently, Ms. Curtis
wished to convey her property to Moore, who in turn, wished to sell a portion of
the combined property to the Whisenants. The potential transaction was further
complicated by a York County requirement that each parcel in a subdivision have
ingress and egress on a county approved road. Because the parcel the Whisenants
wished to purchase from the larger combined property would not qualify under
the regulation, Ms. Curtis, Moore, and the Whisenants decided that Ms. Curtis
would convey her property to the Whisenants, who would keep a portion of the
property and convey the remainder of the property to Moore once a complying
road or roads were built and York county approved the subdivision plat.
In order to accomplish the planned transfer, in October 1992 Curtis conveyed the land to
the Whisenants, who both executed “Options to Purchase” giving Moore the rights to certain
plats. Defendant Simpson witnessed all of those transactions. In a deed dated March 11, 1993,
the Whisenants conveyed a tract of the land (“Tract 1” in the R&R) to Moore, but that deed was
not recorded until November 18, 1998. Moore acknowledges that she received the deed from
Simpson and recorded it on that date. Moore began attempting to get another tract of land
(“Tract 3” in the R&R) transferred from the Whisenants to herself in 1999 so that she could

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combine Tracts 1 and 3 with other property and use it for a multi-family development. In late
December, 1999, Moore requested the deed for Tract 3 from Simpson, who wrote the
Whisenants’ attorney about the deed. Around the beginning of 2001, Moore hired attorney
Bruce M. Poore to get the transfer of Tract 3 approved by the county and to obtain a deed from
the Whisenants. Later that year, Moore hired another attorney, Defendant Walters, to form a
corporation to act as a holding company for the property that Moore planned to develop.
According to the Whisenants, they signed the deed that Poore sent them on December 28, 2001,
and returned it to Poore’s office. When Moore received a copy of the deed, she instructed
Walters to obtain the original deed and to have it recorded. Walters spoke with Simpson about
the deed, but Simpson was unaware that the Whisenants had executed a deed for the property.
On December 28, 2006, Wells Fargo Bank, N.A. filed a foreclosure action against the
Whisenants. Judgment in the foreclosure action was entered on February 15, 2007, and a court
deed to the Whisenant’s land was recorded on April 4, 2007. Judge Kimball presided over the
foreclosure proceeding. Moore has asserted that she became aware of the outstanding deed to
Tract 3 and the fact that the property remained in the name of the Whisenants on April 18, 2007.
Moore’s Motion for Summary Judgment
Plaintiff, appearing pro se, filed a complaint citing the following “reasons” that the
Defendants are being sued: conspiracy to defraud, fraud, unfair trade practices, breach of
contract, intentional misrepresentation, unjust enrichment, immoral and unethical practices, bad
faith – dishonest dealings, attorneys did not protect client, obstruction of justice, and serious
miscarriage of justice. As pointed out by the Magistrate,

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Some of the “reasons” stated by Moore clearly do not constitute civil causes of
action under South Carolina law. Others are overlapping and/or misstated. In her
motion for summary judgment, Moore asserts that she has been damaged due to
“[t]he failure of the Defendants to complete their respective obligations.” (P.
Mot., p. 2). Moore then argues that Judge Kimball, Simpson, and Walters were
negligent in performing their duties. She also discusses the involvement of R.
Whisenant and L. Whisenant and their “intimate knowledge of the transactions,”
but does not assert any claim against them.
Based on the claims Moore asserted against the Defendants and the Magistrate’s
recommendation to grant summary judgment to all of the Defendants, the Magistrate
recommended that Moore’s motion for summary judgment be denied. This Court adopts
the Magistrate’s recommendation with respect to Moore’s motion for summary judgment.
Moore’s Motion to Dismiss and Kimball’s Motion for Summary Judgment
As an initial matter, this Court adopts the Magistrate’s recommendation to grant the
Plaintiff’s motion to dismiss Judge Kimball as a Defendant, which renders Judge Kimball’s
Motion for Summary Judgment moot. The claims against Judge Kimball are dismissed with
prejudice.
Simpson’s and Walter’s Motions for Summary Judgment
Though not clear from the record, Moore appears to be asserting claims of
negligence or legal malpractice against attorneys Simpson and Walters. The Magistrate
points out that such legal malpractice claims have a three year statute of limitations in
South Carolina, which begins to run “not merely by knowledge of an injury but by

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knowledge of diligently acquired facts sufficient to put an injured person on the notice of
the existence of a cause of action against another.” Kelly v. Logan, Jolley, & Smith,
L.L.P., 383 S.C. 626, 682 S.E.2d 1, 4 (Ct. App. 2009) (citing Epstein v. Brown, 363 S.C.
372, 376, 610 S.E.2d 816, 818 (2005). Because this case was filed on September 1, 2009,
all claims of legal malpractice arising before September 1, 2006 are barred by the statute
of limitations.
As to Moore’s claims against Simpson, any claims involving the property transfer
from Curtis to the Whisenants are clearly barred by the statute of limitations as are any
claims regarding the deed of the first tract of property that was recorded on November 1,
1998. Moore would have been on notice of the existence of a cause of action with
regards to those property transfers almost eleven years before this case was filed.
Furthermore, since Moore knew in 1999 that the title to Tract 3 was still in the name of
the Defendants Whisenant, and she was engaged in trying to obtain a deed from Simpson
for that Tract from that time until around 2001, Moore had sufficient facts to put her on
notice of the existence of a cause of action against Simpson well before September of
2006.
As to Defendant Walters, Moore contends that she hired Walters to obtain the
deed from Simpson in 2001.

Based on Moore’s own contention, the Magistrate

concluded that Moore had knowledge of any claims against Walters related to that
representation well before September 2006.

This Court adopts the Magistrate’s

conclusion.

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The Magistrate further points out even if the legal malpractice claims against
Simpson and Walters were not barred by the statute of limitations, Moore has not
established a standard of care by expert testimony or otherwise. Moore has contended
that Simpson was not released from his fiduciary obligation until deeds to Tracts 1 and 3
were recorded. Against Walters, Moore has asserted that he failed to get the deed for
Tract 3 from Simpson or to ascertain whether Simpson had filed the deed. However,
these claims are based on a faulty premise, namely Moore’s contention that deeds to
Tracts 1 and 3 were prepared and signed at the time of the original property conveyances
in 1992. This contention is unsupported by the record. For instance, if deeds had been
executed at that time, then there would have been no need to execute “Options to
Purchase” for those tracts of land. In the R&R the Magistrate further explains why this
contention by Moore is unsupported by the record, finding “no evidence to support a
conclusion that there was a deed from the Whisenants to Moore for Tract 3 prior to 2001,
nor is there any evidence that Simpson or Walters ever had possession of the deed.”
For the reasons discussed above, the Magistrate found that summary judgment
was appropriate for Moore’s claims against Simpson and Walters, and this Court adopts
the Magistrate’s recommendations as to both of those claims.
Ronald and Lisa Whisenant
The Magistrate concluded that the claims against both Defendants Whisenant
should be dismissed sua sponte based on the fact that the Whisenants have risen to fulfill
their duty under the “Options to Purchase” each time that a deed has been presented to
them to convey Tract 3 to Moore. This fact is supported by the record—even Moore has

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admitted that the Whisenants have signed the appropriate deeds to transfer the land
covered by the “Options to Purchase” to Moore. Furthermore, the Whisenants have
expressed a continued willingness to convey Tract 3 to Moore. As such, the Court adopts
the Magistrate’s recommendation as to Moore’s claims against Ronald and Lisa
Whisenant and dismisses those claims sua sponte. This matter is now ended.

IT IS SO ORDERED.

September 7, 2011
Columbia, South Carolina

Joseph F. Anderson, Jr.
United States District Judge

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