R. Kent Porth v. Robert P. Wilkins, Jr.

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

R. Kent Porth and Panorama Point, LLC, Appellants,

v.

Robert P. Wilkins, Jr., RPW Development, Inc., Southern
Visions Realty, Inc., and Consolidated Multiple Listing
Service, Inc., Respondents,

Appellate Case No. 2021-000597

Appeal From Lexington County
Edgar W. Dickson, Circuit Court Judge

Unpublished Opinion No. 2024-UP-053
Heard December 5, 2023 – Filed February 14, 2024

AFFIRMED

Clarence Davis, of Griffin | Davis, of Columbia, for
Appellants.

Eric Steven Bland, of Bland Richter, LLP, of Lexington;
Scott Michael Mongillo and Ronald L. Richter, Jr., both
of Bland Richter, LLP, of Charleston; and Steven
Raymond Kropski and David W. Overstreet, both of
Earhart Overstreet, LLC, of Charleston; all for
Respondents.
PER CURIAM: This matter concerns a dispute between parties relating to the
development and sale of R. Kent Porth and Panorama Point, LLC's (collectively
Appellants) property (the Property). Appellants appeal the circuit court's order
granting Robert P. Wilkins, Jr., RPW Development, Inc., and Southern Vision
Realty, Inc.'s (collectively, Respondents) Motion to Dismiss Appellants'
Complaint. We affirm.

1. Appellants argue the circuit court erred by (1) failing to find Appellants did not
discover claims against Respondents until 2017; (2) finding Appellants were
charged with knowledge of the law; and (3) failing to find that Appellants' reliance
on Respondent Wilkins's status as an attorney was a reasonable basis to not
perform due diligence. We find none of Appellants' arguments would bar the
running of the statute of limitations and, if Appellants' claims are actions at law,
they are barred by the statute of limitations. See Moates v. Bobb, 322 S.C. 172,
176, 470 S.E.2d 402, 404 (Ct. App. 1996) ("Statutes of limitations embody
important public policy considerations in that they stimulate activity, punish
negligence, and promote repose by giving security and stability to human affairs.");
id. ("One purpose of a statute of limitations is 'to relieve the courts "of the burden
of trying stale claims when a plaintiff has slept on his rights."'" (quoting McKinney
v. CSX Transp., Inc., 298 S.C. 47, 49–50, 378 S.E.2d 69, 70 (Ct. App. 1989))); id.
("Another purpose of a statute of limitations is to protect potential defendants from
protracted fear of litigation."); Carolina Marine Handling, Inc. v. Lasch, 363 S.C.
169, 175, 609 S.E.2d 548, 552 (Ct. App. 2005) ("The cornerstone policy
consideration underlying statutes of limitations is the laudable goal of law to
promote and achieve finality in litigation."); S.C. Code Ann. § 15-3-530 (2005)
(stating the statute of limitations for Appellants' claims is three years); Gibson v.
Bank of Am., N.A., 383 S.C. 399, 405–06, 680 S.E.2d 778, 782 (Ct. App. 2009)
("[T]he applicable limitations period for a negligence claim . . . begins to run when
the plaintiff 'knew or by the exercise of reasonable diligence should have known
that he had a cause of action.'" (emphasis in original) (quoting S.C. Code Ann.
§ 15-3-535 (2005))); id. at 406, 680 S.E.2d at 782 ("[T]he clock starts running
when the facts and circumstances of an injury would put a person of common
knowledge and experience on notice that some claim against another party might
exist."); id. ("[T]he limitations period 'begins to run when a person could or
should have known, through the exercise of reasonable diligence, that a cause of
action might exist in his or her favor, rather than when a person obtains actual
knowledge of either the potential claim or of the facts giving rise thereto.'"
(emphasis in original) (quoting Burgess v. Am. Cancer Soc'y, S.C. Div., Inc., 300
S.C. 182, 186, 386 S.E.2d 798, 800 (Ct. App 1989)); Grillo v. Speedrite Prods.,
Inc., 340 S.C. 498, 503, 532 S.E.2d 1, 3 (Ct. App. 2000) ("Under section 15-3-535,
the statute of limitations is triggered not merely by knowledge of an injury, but by
knowledge of facts, diligently acquired, sufficient to put a person on notice of the
existence of a cause of action against another."); id. ("The statute of limitations
begins to run from this point and not when advice of counsel is sought or a
full-blown theory developed." (quoting Snell v. Columbia Gun Exch. Inc., 276 S.C.
301, 303, 278 S.E.2d 333, 334 (1981))); City of Newberry v. Newberry Elec.
Co-op., Inc., 387 S.C. 254, 264 n.4, 692 S.E.2d 510, n.4 515 (2010) (Kittredge, J.,
dissenting) ("Misinterpretation of the law does not toll the statute of limitations.").
The complaint makes clear Appellants were heavily involved in the sale and
development of the Property. Appellants' complaint outlines events that occurred
more than three years prior to Appellants filing their complaint that would put
them on inquiry notice, if not actual notice, that they may have a cause of action
against Respondents.

2. Appellants argue that Respondents are equitably barred from raising a statute of
limitations defense. We disagree. First, the unclean hands doctrine "precludes a
plaintiff from recovering in equity if he acted unfairly in a matter that is the subject
of the litigation to the prejudice of the defendant." First Union Nat'l Bank of S.C.
v. Soden, 333 S.C. 554, 568, 511 S.E.2d 372, 379 (Ct. App. 1998). Second,
Appellants' reliance on Vicary v. Town of Awendaw, 427 S.C. 48, 828 S.E.2d 229
(Ct. App. 2019), to assert a court may equitably bar Respondents' statute of
limitations defense is misplaced because Vicary's holding is limited to challenges
to void annexations. See id. at 56, 828 S.E.2d at 234 (holding the annexation
ordinance was not valid because of the town's deceitful conduct and the "challenge
to the purported annexations was not barred by the statute of limitations because
the passage of time cannot transform a void annexation into a valid one"). Third,
the circuit court did not err by failing to equitably toll the statute of limitations.
See Hooper v. Ebenezer Sr. Servs. & Rehab. Ctr., 386 S.C. 108, 115, 687 S.E.2d
29, 32 (2009) ("'Tolling' refers to suspending or stopping the running of a statute of
limitations; it is analogous to a clock stopping, then restarting." (quoting 51 Am.
Jur. 2d Limitation of Actions § 169 (2000))); id. ("Tolling may either temporarily
suspend the running of the limitations period or delay the start of the limitations
period." (quoting Limitation of Actions § 169)). Appellants failed to show they
were prevented from timely serving the summons and complaint by an event
beyond their control. See id. ("The party claiming the statute of limitations should
be tolled bears the burden of establishing sufficient facts to justify its use."); id. at
116, 687 S.E.2d at 32 ("It has been observed that '[e]quitable tolling typically
applies in cases where a litigant was prevented from filing suit because of an
extraordinary event beyond his or her control.'" (alteration in original) (quoting
Ocana v. Am. Furniture Co., 91 P.3d 58, 66 (N.M. 2004))).

3. Appellants argue the circuit court erred by (1) holding Appellants' breach of
fiduciary duty claims were not equitable and were not exempt from a statute of
limitations defense and (2) holding laches applied to Appellants' allegations. We
disagree. If the claims are equitable, they are barred by laches. See Hallums v.
Hallums, 296 S.C. 195, 198, 371 S.E.2d 525, 527 (1988) ("Laches is neglect for an
unreasonable and unexplained length of time, under circumstances affording
opportunity for diligence, to do what in law should have been done."); Chambers
of S.C., Inc. v. Cnty. Counsel for Lee Cnty., 315 S.C. 418, 421, 434 S.E.2d 279,
280 (1993) ("Under the doctrine of laches, if a party, knowing his rights, does not
seasonably assert them, but by unreasonable delay causes his adversary to incur
expenses or enter into obligations or otherwise detrimentally change his position,
then equity will ordinarily refuse to enforce those rights."). When asserting laches,
a party must establish there was prejudice. See Robinson v. Est. of Harris, 389
S.C. 360, 372, 698 S.E.2d 801, 807 (2010) ("The party seeking to establish laches
must show: (1) a delay, (2) that was unreasonable under the circumstances, and (3)
prejudice."). As stated previously, Appellants' complaint makes clear Appellants
were heavily involved in the sale and development of the Property. Appellants
sought disgorgement of commissions and development fees from a culmination of
over thirteen years of Respondents' developing and selling the Property.
Appellants sat on their rights to challenge Respondents' alleged breach of fiduciary
duty while Respondents continued to expend their efforts on Appellants' behalf and
Appellants benefited from Respondents' services, gaining over $6 million in profit.
In addition, Respondents are prejudiced because real estate agents are only
required to maintain business transaction records for a period of five years and the
vast majority of these transactions occurred more than five years from the initiation
of this action. See S.C. Code Ann. § 40-57-135(D)(1) (2011).

4. Appellants argue the circuit court erred by considering documents outside of the
records and taking judicial notice of the public record to establish Appellants'
knowledge of facts triggering the statute of limitations. Though the law provides
that a Rule 12(b)(6), SCRCP motion will not become a summary judgment if a
party attaches documents to a complaint or incorporates them by reference and that
a party may not benefit from failing to attach documents that are incorporated by
reference, see Brazell v. Windsor, 384 S.C. 512, 516, 682 S.E.2d 824, 826 (2009),
we need not address this argument because the complaint outlines events beyond
the three year limitations period that would put Appellants on inquiry notice, if not
actual notice, that they may have a cause of action against Respondents.
5. Appellants argue the circuit court erred by holding sections 40-57-135, -137,
and -139 of the South Carolina Code (2011) do not provide for private causes of
action for breach of fiduciary duties. We disagree. See Doe v. Marion, 373 S.C.
390, 397, 645 S.E.2d 245, 248 (2007) ("When a statute does not specifically create
a private cause of action, one can be implied only if the legislation was enacted for
the special benefit of a private party."). Furthermore, these statutes do not entitle
Appellants to complete disgorgement in this circumstance. Disgorgement has only
been awarded in very specific circumstances. See Darby v. Furman Co., 334 S.C.
343, 513 S.E.2d 848 (1999) (awarding disgorgement where real estate broker
assisted a seller in the sale of a property to a buyer in which the broker had an
ownership interest). Darby is distinguishable because Appellants did not allege
Respondents were purchasers of the Property.

6. We need not address Appellants' remaining arguments as the resolution of the
statute of limitations and laches issues is dispositive of these arguments. See Futch
v. McAllister Towing of Georgetown, Inc., 335 S.C. 598, 613, 518 S.E.2d 591, 598
(1999) (holding an appellate court need not address remaining issues on appeal
when its determination of a prior issue is dispositive).

AFFIRMED.

WILLIAMS, C.J., and HEWITT and VERDIN, JJ., concur.