Anne Wiggins Smith v. John L. Wiggins, III
CourtCourt of Appeals of South Carolina
Date FiledOctober 28, 2026
Docket2024-001266
StatusUnpublished
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Full Opinion
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
Anne Wiggins Smith, Appellant,
v.
John L. Wiggins, III, Individually and as Trustee of the
John L. Wiggins, Jr. Revocable Trust, as Trustee of the
Margaret Eugenia Utsey Wiggins Revocable Trust, and
as Personal Representative of the Estate of Margaret
Eugenia Utsey Wiggins, Respondent.
Appellate Case No. 2024-001266
Appeal From Orangeburg County
James B. Jackson, Jr., Special Circuit Court Judge
Unpublished Opinion No. 2026-UP-461
Submitted September 1, 2026 – Filed October 28, 2026
AFFIRMED
Russell Allen Blanchard, IV, of Williams & Williams, of
Orangeburg, for Appellant.
Amy L.B. Hill and Dixie Nicole McCollum, both of
Richardson Thomas, LLC, of Columbia, for Respondent.
PER CURIAM: This appeal arises from the special circuit court's order granting
Respondent John L. Wiggins, III's motion to dismiss for failure to prosecute and
motion for summary judgment based on the statute of limitations. On appeal,
Appellant Anne Wiggins Smith argues (1) the statute of limitations did not begin to
run on her claim on September 5, 2014; (2) the circuit court incorrectly found that
Appellant failed to prosecute her case; and (3) the circuit court abused its
discretion by failing to consider sanctions less harsh than outright dismissal. We
affirm.
1. Appellant and Respondent are biological siblings. On August 24, 2017,
Appellant filed an action against her mother (Mother) and Respondent in the
Orangeburg County Probate Court 1 asserting mismanagement of a marital trust
created by the parties' parents (the Marital Trust) due to alleged improper loans
made to Respondent. Appellant argues the statute of limitations did not begin to
run on her claim on September 5, 2014; therefore, the circuit court erred in
granting Respondent's motion for summary judgment. We disagree.
"[A] moving party is entitled to summary judgment 'if the [evidence before the
court] show[s] that there is no genuine issue as to any material fact and that the
moving party is entitled to a judgment as a matter of law.'" Kitchen Planners, LLC
v. Friedman, 440 S.C. 456, 459, 892 S.E.2d 297, 299 (2023) (second and third
alterations in original) (quoting Rule 56(c), SCRCP). "When determining if any
triable issues of fact exist, the evidence and all reasonable inferences must be
viewed in the light most favorable to the non-moving party." Bluestein v. Town of
Sullivan's Island, 429 S.C. 458, 462, 839 S.E.2d 879, 881 (2020) (quoting Turner v.
Milliman, 392 S.C. 116, 122, 708 S.E.2d 766, 769 (2011)). "Summary judgment is
appropriate when a plaintiff does not commence an action within the applicable
statute of limitations." Allwin v. Russ Cooper Assocs., 426 S.C. 1, 11, 825 S.E.2d
707, 712 (Ct. App. 2019) (quoting McMaster v. Dewitt, 411 S.C. 138, 143, 767
S.E.2d 451, 453 (Ct. App. 2014)). "[A]ctions concerning the administration of
trust accounts fall squarely within the Probate Code statute of limitations." Mayer
v. M.S. Bailey & Son, 347 S.C. 353, 359, 555 S.E.2d 406, 409 (Ct. App. 2001).
Article 7 of the Probate Code 2 controls the administration of trusts and "establishes
either a one or three year statute of limitations, depending on the extent of
disclosure, within which a beneficiary is required to initiate a lawsuit against the
1
On September 7, 2017, the probate court sua sponte transferred the case to circuit
court. By order dated February 1, 2019, the circuit court referred the case to the
Master in Equity, James B. Jackson, as special circuit court judge.
2
See S.C. Code Ann. §§ 62-7-101 to -1106 (2022 & Supp. 2025).
trustee for mismanagement of the trust accounts." Mayer, 347 S.C. at 359–60, 555
S.E.2d at 409. Section 62-7-1005 provides:
(a) Unless previously barred by adjudication, consent, or
limitation, a beneficiary may not commence a proceeding
against a trustee for breach of trust more than one year
after the date the beneficiary or a representative of the
beneficiary was sent a report that adequately disclosed the
existence of a potential claim for breach of trust.
(b) A report adequately discloses the existence of a
potential claim for breach of trust if it provides sufficient
information so that the beneficiary or representative
knows of the potential claim or should have inquired into
its existence.
S.C. Code Ann. § 62-7-1005(a) to (b). If subsection (a) does not apply, a
beneficiary's proceeding "against a trustee for breach of trust must be commenced
within three years after the first to occur of: (1) the removal, resignation, or death
of the trustee; (2) the termination of the beneficiary's interest in the trust; or (3) the
termination of the trust." § 62-7-1005(c).
Here, we agree with the circuit court that Appellant's claims are barred by both the
one-year Probate Code statute of limitations and the discovery rule three-year
statute of limitations proscribed in sections 15-3-530 3 and 15-3-5354 of the South
Carolina Code. The loan transactions Appellant complained of were fully
disclosed in previous reports supplied to Appellant more than a year prior to her
filing this action in August 2017. This is evidenced by Appellant's own
correspondence, as acknowledged by the circuit court. For example, in her brief in
opposition to the motion to dismiss and motion for summary judgment, Appellant
claimed, "On August 10, 2004, [Respondent] started taking monies for his personal
use from the Marital Trust when he wrote himself a check in the amount of
3
"Within three years: (1) an action upon a contract, obligation, or liability, express
or implied . . . [and] (5) an action for assault, battery, or any injury to the person or
rights of another, not arising on contract and not enumerated by law . . . ." S.C.
Code Ann. § 15-3-530 (2005).
4
"[A]ll actions initiated under [s]ection 15-3-530(5) must be commenced within
three years after the person knew or by the exercise of reasonable diligence should
have known that he had a cause of action." S.C. Code Ann. § 15-3-535 (2005).
$10,000." She continued by stating Respondent "continued this practice until June
30, 2014, after he had been caught and confronted." Further, in Appellant's
affidavit filed in July 2019, she explicitly acknowledged a division of assets report
provided to her by M. Joseph Binnicker, CPA, with McGregor and Company (the
McGregor Report) dated August 25, 2014, which "sets out a division of assets into
the Marital Trust assets . . . ." The McGregor Report was prepared pursuant to
Appellant's request. In the same affidavit, Appellant later acknowledged, "Up until
8/9/14 [Appellant] was privy to the bank statements and checks on the account of
[the Marital Trust]." We find the record shows Appellant received the McGregor
Report by September 5, 2014, and that upon receiving the McGregor Report, she
began making further inquiries as to any claims she might have regarding the loans
at issue. As such, we find the statute of limitations clock began when the
McGregor Report was received. To the extent legitimate claims existed that related
to those loans, Appellant failed to initiate the same within one year of receiving the
McGregor Report. Accordingly, we affirm the circuit court's grant of summary
judgment based upon the statute of limitations. See Jackson v. Bermuda Sands,
Inc., 383 S.C. 11, 14 n.2, 677 S.E.2d 612, 614 n.2 (Ct. App. 2009) (explaining
appellate courts review the grant of a summary judgment motion under the same
standard applied by the trial court pursuant to Rule 56(c), SCRCP); Rule 56(c),
SCRCP (providing that summary judgment shall be granted when "the pleadings,
depositions, answers to interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any material fact and
that the moving party is entitled to a judgment as a matter of law"); Mayer, 347
S.C. at 360-61, 555 S.E.2d at 409–10 (affirming the dismissal of beneficiaries'
claims against a trustee according to both a one and a three-year statute of
limitations when the suit was initiated four years after receiving the bank letter and
five years after receiving the trust bank statements).
2. Appellant argues the trial court incorrectly found that she failed to prosecute
her case. We disagree. "The plaintiff has the burden of prosecuting [her] action,
and the trial court may properly dismiss an action for plaintiff's unreasonable
neglect in proceeding with [her] cause." Don Shevey & Spires, Inc. v. Am. Motors
Realty Corp., 279 S.C. 58, 60, 301 S.E.2d 757, 758 (1983).
[T]he trial court must consider four factors before
dismissing a case for failure to prosecute: (1) the plaintiff's
degree of personal responsibility; (2) the amount of
prejudice caused the defendant; (3) the presence of a
drawn out history of deliberately proceeding in a dilatory
fashion; and (4) the effectiveness of sanctions less drastic
than dismissal.
McComas v. Ross, 368 S.C. 59, 63, 626 S.E.2d 902, 904 (Ct. App. 2006). "In
granting dismissal for failure to prosecute, there must be some showing of
indifference to the rights of the defendant." Id. at 62–63, 626 S.E.2d at 904.
We agree with the circuit court and find Appellant failed to prosecute her case and
dismissal was the adequate remedy. We find no abuse of discretion on the part of
the circuit court as it expressly detailed the circumstances of this case that led to
the ultimate dismissal. 5 Respondents made the first request for a damages
calculation on December 17, 2018, and, in fact, at the time the underlying order on
appeal was filed in November 2023, Appellant had still not provided a damages
calculation. Appellant actively participated in litigation following the December
2018 request. Further, at the time Respondent first moved to dismiss for failure to
prosecute, it had been over three years since the original request for damages. In
addition, at the hearing on the motion to dismiss for failure to prosecute, Appellant
reassured the court she would provide an expert damages report in thirty to sixty
days following the hearing. She failed to do so, which led to the request for and
filing of a scheduling order setting forth a deadline to provide the expert's report.
The order explicitly provided that should Appellant fail to produce the damages
calculation, her action would be dismissed. The circuit court even afforded
Appellant an additional fifteen days to provide the report. Again, she failed to do
so. Instead, Appellant produced a letter from Ronny Burkett, CPA, dated June
30—the same day of the deadline—which did not provide a damages calculation,
but rather requested additional information so that a damages calculation could be
conducted. Respondent noted much of the information requested by Burkett in the
June 30 letter was already within the possession of Appellant because she had
previously disclosed such information to Respondent. We find the allegations
regarding the financial mismanagement of the Marital Trust were first raised years
before the case was filed and a financial analysis could have been done years prior.
We affirm. See Rule 41(b), SCRCP ("For failure of the plaintiff to prosecute . . . ,
a defendant may move for dismissal of an action or of any claim against him.");
5
The court's order extensively details the intricacies and complications arising
from familial disputes. Of import, the court noted Mother's death in September
2022 and found it "very unfortunate" that the matter could not be resolved in her
final years. It further noted that "tens of thousands of dollars have been spent on
legal fees to defend this matter, not to mention the emotional toll this has taken on
a family."
Georganne Apparel, Inc. v. Todd, 303 S.C. 87, 92, 399 S.E.2d 16, 19 (Ct. App.
1990) (noting dismissal with prejudice was warranted because the plaintiff was
"given abundant opportunity to litigate" and exceeded the "limit beyond which the
court should allow a litigant to consume the time of the court and to prolong
unnecessarily time, effort, and costs to defending parties").
3. Appellant argues the trial court abused its discretion by failing to consider
sanctions less harsh than outright dismissal. We disagree. "Pursuant to Rule
37(b)(2)(C), SCRCP, when a party fails to obey an order to provide or permit
discovery, the court may 'make such orders in regard to the failure as are just,'
including an order dismissing the action or proceeding, or any part thereof."
Barnette v. Adams Bros. Logging, 355 S.C. 588, 593, 586 S.E.2d 572, 575 (2003).
"[W]hen the court orders default or dismissal, or the sanction itself results in
default or dismissal, the end result is nevertheless harsh medicine that should not
be administered lightly." Karppi v. Greenville Terrazzo Co., 327 S.C. 538, 542–
43, 489 S.E.2d 679, 682 (Ct. App. 1997). "The sanction imposed should be
reasonable" and "[b]efore invoking this severe remedy, the trial court must
determine that there is some element of bad faith, willfulness, or gross indifference
to the rights of other litigants." Id. at 543, 489 S.E.2d at 682. "A dismissal under
Rule 37(b)(2)(C) is not mandatory; rather, the trial court is allowed to make such
orders as it deems just under the circumstances, and the selection of a sanction is
within the court's discretion." Kershaw Cnty. Bd. of Educ. v. U.S. Gypsum Co.,
302 S.C. 390, 395, 396 S.E.2d 369, 372 (1990). However, a party engaging in a
deliberate pattern of discovery abuse may be grounds for imposing a sanction
"tantamount to granting a judgment by default." Griffin Grading & Clearing, Inc.
v. Tire Serv. Equip. Mfg. Co., 334 S.C. 193, 198, 511 S.E.2d 716, 718–19 (Ct.
App. 1999). Before the trial court imposes such a sanction, "the moving party
must show bad faith, willful disobedience[,] or gross indifference to its rights to
justify the sanction." Id. at 198–99, 511 S.E.2d at 719.
After our review of the record, we determine the circuit court did not err in
rejecting sanctions less harsh than dismissal. The court properly considered the
length of time the case had been pending, the number of opportunities afforded to
Appellant to comply with discovery, the nature of the damages request, and the
prejudice to Respondent and the family as a whole. The court agreed with
Respondent that without a damages calculation, he could not move forward in
defense of his case. See Rule 37(b)(2)(C) (providing a court may "order [the]
striking out [of] pleadings . . . or rendering a judgment by default against the
disobedient party" for failure to comply with an order compelling discovery);
Downey v. Dixon, 294 S.C. 42, 45, 362 S.E.2d 317, 318 (Ct. App. 1987) ("The
imposition of sanctions is generally entrusted to the sound discretion of the
[c]ircuit [c]ourt."); Karppi, 327 S.C. at 542, 489 S.E.2d at 682 ("Rule 37 expressly
grants the [circuit] court power to order judgment by default for either the violation
of a court order, or, upon motion, for a party's failure to respond to certain
discovery requests."); Griffin Grading & Clearing, Inc., 334 S.C. at 199, 511
S.E.2d at 719 ("In determining the appropriateness of a sanction, the court should
consider such factors as the precise nature of the discovery and the discovery
posture of the case, willfulness, and degree of prejudice.").
Based on the foregoing, the order of the circuit court is
AFFIRMED.6
THOMAS, KONDUROS, and CURTIS, JJ., concur.
6
We decide this case without oral argument pursuant to Rule 215, SCACR.