THE STATE OF SOUTH CAROLINA 

In The Supreme Court 

Phillip Francis Luke Hughes, on behalf of the Estate of 

Jane K. Hughes, Petitioner, 

v. 

Bank of America National Association, Respondent. 

Appellate Case Nos. 2021-001339 and 2022-000079 

ON WRIT OF CERTIORARI TO THE COURT OF APPEALS 

Appeal from Spartanburg County 

R. Keith Kelly and Grace Gilchrist Knie, Circuit Court Judges 

Opinion No. 28187 

Heard March 28, 2023 – Filed January 17, 2024 

AFFIRMED AS MODIFIED IN PART, REVERSED 

IN PART, AND REMANDED 

Bradley Davis Hewett and D. Michael Kelly, of Mike 

Kelly Law Group, LLC; and Jamie Nicole Smith, of South 

Carolina Human Affairs Commission, all of Columbia, for 

Petitioner. 

Robert A. Muckenfuss, of Charlotte, NC; Elizabeth 

Marion Zwickert Timmermans and Jonathan Y. Ellis, of 

Raleigh, NC; and Kathryn M. Barber, of Richmond, 

Virginia, all of McGuire Woods LLP, for Respondent. 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

JUSTICE JAMES: This suit arises out of $795.20 in insurance premiums charged 

by respondent Bank of America to Petitioner's parents in connection with a home 

equity line of credit they obtained from Bank of America in 2006. The 

extraordinarily convoluted procedural history of this case ends with this consolidated 

opinion. Petitioner, as personal representative of the estate of Jane Hughes (his late 

mother), sued Bank of America for fraud, fraudulent concealment, and breach of 

contract accompanied by a fraudulent act. The issues are (1) whether we should 

overrule precedent holding the claims do not survive a party's death; (2) whether, 

even if these claims do survive, the claims are barred in this case by res judicata and 

the statute of limitations; and (3) whether the circuit court erred in ruling Bank of 

America's motion for sanctions pursuant to the South Carolina Frivolous Civil 

Proceedings Sanctions Act (FCPSA)1 and Rule 11, SCRCP was premature. The first 

two issues stem from the court of appeals' decision in Hughes ex rel. Estate of 

Hughes v. Bank of America National Association, Op. No. 2021-UP-341 (S.C. Ct. 

App. filed Sept. 29, 2021). The third issue stems from the court of appeals' decision 

in Hughes ex rel. Estate of Hughes v. Bank of America National Association, Op. 

No. 2021-UP-354 (S.C. Ct. App. filed Oct. 13, 2021). 

The circuit court (Judge Kelly) granted Bank of America's motion to dismiss 

all three causes of action, ruling the claims did not fall within the survival statute 

(S.C. Code Ann. § 15-5-90 (2005)) and therefore did not survive Jane Hughes' death, 

and also ruling the claims were barred by the three-year statute of limitations and by 

the res judicata effect of rulings in related federal court litigation. Judge Kelly also 

ruled the statute of limitations was not equitably tolled. The court of appeals 

affirmed Judge Kelly's ruling on the survival statute and did not reach the remaining 

issues. Hughes, Op. No. 2021-UP-341, at 1-2. 

We granted Petitioner's petition for a writ of certiorari and granted Petitioner's 

motion to argue against precedent. We hold Petitioner's claims for fraud and 

fraudulent concealment survived the death of Jane Hughes. For a different reason, 

we hold the claim for breach of contract accompanied by fraudulent act also survived 

her death. However, we hold all three causes of action are barred by the preclusive 

effect of the rulings of the United States District Court, as affirmed by the Fourth 

Circuit in 2018. Therefore, we affirm as modified in part and reverse in part the 

court of appeals' decision in Op. No. 2021-UP-341. 

1 See S.C. Code Ann. §§ 15-36-10 to -100 (2005 & Supp. 2023). 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Bank of America moved for sanctions in the circuit court, but the circuit court 

(Judge Knie) ruled the motion could not be heard until the conclusion of Petitioner's 

appeal of the Rule 12(b)(6) dismissal. Bank of America appealed that ruling, and 

the court of appeals reversed and remanded the sanctions motion to the circuit court, 

holding the sanctions motion was not premature. Hughes, Op. No. 2021-UP-354, 

at 6-9. We affirm the court of appeals on that issue in Section IV of this opinion. 

I. 

In June 2006, John and Jane Hughes opened a home equity line of credit with 

Bank of America. They authorized Bank of America to automatically draft 

payments of principal and interest from their joint Bank of America checking 

account. At closing, Bank of America offered an insurance plan that would cancel 

loan payments in the event of disability, accidental death, or involuntary 

unemployment. Petitioner claims that even though Mr. and Mrs. Hughes initialed a 

form at closing declining the offer, Bank of America immediately began drafting 

$28.40 from the Hughes' checking account each month in payment of the premium 

for that insurance. That premium charge was itemized each month on the Hughes' 

bank statement, with the notation "Ad Insurance Des:XXXXXX:4374 ID: 6 R# 

XXXXXXX1070 Indn: Hughes Sr, John P Co ID:XXXXXX4660 Ppd." 

Mr. Hughes died in 2008. In 2015, the Hughes family advised Bank of 

America of Mr. Hughes' death, and Bank of America refunded the premiums drafted 

during that roughly seven-year period. Bank of America did not, however, refund 

premiums of $795.20 drafted during the twenty-eight months between the 2006 

closing and Mr. Hughes' 2008 death. 

Mrs. Hughes died in 2015, and Petitioner was appointed personal 

representative of her estate. In 2015, Petitioner sued Bank of America in 

Spartanburg County for violation of the Truth in Lending Act (TILA),2 breach of 

contract, fraud, fraudulent concealment, and breach of contract accompanied by 

fraudulent act. Bank of America removed the case to federal court, where Petitioner 

voluntarily dismissed without prejudice his claims for fraud, fraudulent 

concealment, and breach of contract accompanied by fraudulent act. The district 

court granted BOA's motion to dismiss Petitioner's TILA and breach of contract 

claims, finding Petitioner "fail[ed] to dispute [he] neglected to file [his] lawsuit 

before the pertinent statutes of limitations expired. Instead, [he relies] on the 

doctrine of equitable tolling to argue [his] claims are timely." Hughes ex rel. Est. of 

2 See 15 U.S.C. §§ 1601-1667f. 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Hughes v. Bank of Am., Nat'l Ass'n, No. 7:15-5083, 2017 WL 569847, at *2 (D.S.C. 

Feb. 13, 2017). The district court rejected Petitioner's equitable tolling argument, 

and the Fourth Circuit affirmed in an unpublished opinion. Hughes ex rel. Est. of 

Hughes v. Bank of Am. Nat'l Ass'n., 697 F. App'x 191 (4th Cir. 2017). The United 

States Supreme Court denied certiorari. Hughes ex rel. Est. of Hughes v. Bank of 

Am. Nat'l Ass'n, 583 U.S. 1103 (2018). 

In 2017, while Petitioner's appeal to the Fourth Circuit was pending, Petitioner 

commenced the instant litigation against Bank of America in Spartanburg County, 

asserting claims for fraud, fraudulent concealment, and breach of contract 

accompanied by fraudulent act (the three claims Petitioner voluntarily dismissed in 

federal court). Bank of America moved to dismiss the action for failure to state a 

claim upon which relief can be granted. See Rule 12(b)(6), SCRCP. As noted above, 

Judge Kelly granted the motion to dismiss, finding none of Petitioner's claims 

survived Mrs. Hughes' death, the claims were barred by res judicata, the three-year 

statute of limitations had expired for all three claims, and equitable tolling of the 

limitations period did not apply. 

Petitioner appealed, and our court of appeals affirmed Judge Kelly's ruling 

that Petitioner's claims did not survive Mrs. Hughes' death. See Hughes, Op. No. 

2021-UP-341, at 1-2. Finding that holding was dispositive, the court of appeals did 

not address the issues of res judicata, the expiration of the statute of limitations, or 

equitable tolling. Bank of America raises these three issues to this Court as 

additional sustaining grounds. 

As he did in the federal litigation, Petitioner contends the three-year statute of 

limitations for his three current causes of action was equitably tolled for two basic 

reasons: (1) Bank of America's fraudulent concealment of its debiting of the Hughes' 

joint checking account for the insurance premiums, and (2) Mrs. Hughes' alleged 

blindness, mental decline, and other health problems. In the federal litigation, the 

district court considered and rejected both arguments as a basis for invoking 

equitable tolling, and the Fourth Circuit affirmed. On the first point, Petitioner 

emphasizes the notation Bank of America placed beside each checking account entry 

for the premium: "Ad Insurance Des:XXXXXX:4374 ID: 6 R# XXXXXXX1070 

Indn: Hughes Sr, John P Co ID:XXXXXX4660 Ppd." On the second point, 

Petitioner's affidavit filed in the federal litigation is in the record. In that affidavit, 

Petitioner stated that "[i]n the years leading to her death in 2015," Mrs. Hughes 

underwent major heart surgery, suffered from dementia, suffered from cataracts, and 

underwent eye surgery. Petitioner swore Mrs. Hughes' poor eyesight rendered her 

unable to read documents "for several years prior to her death" in 2015. He similarly 

stated in the affidavit that Mrs. Hughes' physical and mental ailments rendered her 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

unable to read or understand her monthly bank statements "in the years prior to her 

death." This vague time frame referenced by Petitioner in his federal court 

affidavit—the "years prior to her death"—is consistent with Petitioner's allegations 

in his complaint in this action that Mrs. Hughes was age 85 at the time of the closing 

and that she suffered from impaired cognition, psychosis, lack of decisional capacity, 

blindness, and heart problems "in the years subsequent to June 2006." Even though 

Mrs. Hughes' alleged cognitive deficit or lack of capacity has always been the 

linchpin of Petitioner's equitable tolling argument, at no time has Petitioner alleged 

with any specificity when Mrs. Hughes' cognitive deficit or mental capacity issues 

manifested themselves. 

Two days after Petitioner filed his notice of appeal from Judge Kelly's order, 

Bank of America timely moved for sanctions in the circuit court. As noted above, 

Judge Knie ruled the sanctions motion could not be heard until Petitioner's appeal 

from Judge Kelly's ruling was concluded. The court of appeals reversed. Hughes, 

Op. No. 2021-UP-354, at 9. 

II. 

A. The common law and the survival statute 

Before the enactment of the survival statute over a century ago, the common 

law dictated whether a cause of action survived the death of either the wronged or 

the wrongdoer. A tort action—of which fraud is one—is a cause of action ex delicto. 

"Under the rule of the common law, the only causes of action that do not survive the 

death of either party, plaintiff or defendant, are causes of action ex delicto." Page v. 

Lewis, 203 S.C. 190, 193, 26 S.E.2d 569, 570 (1943). Consequently, an action ex 

contractu—one based in contract—survived at common law. 

The common law prohibition of the survival of tort actions was "partially 

abrogated" by the 1905 amendment of the survival statute, which provided "any and 

all injuries to the person or to personal property" survived the deaths of either party. 

Ferguson v. Charleston Lincoln Mercury, Inc., 349 S.C. 558, 564, 564 S.E.2d 94, 

97 (2002); see Mattison v. Palmetto State Life Ins. Co., 197 S.C. 256, 261-62, 15 

S.E.2d 117, 119 (1941). Except for minor grammatical changes, the survival statute 

has remained intact since 1905. The statute now provides: 

Causes of action for and in respect to any and all injuries and trespasses 

to and upon real estate and any and all injuries to the person or to 

personal property shall survive both to and against the personal or real 

representative, as the case may be, of a deceased person and the legal 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

representative of an insolvent person or a defunct or insolvent 

corporation, any law or rule to the contrary notwithstanding. 

S.C. Code Ann. § 15-5-90 (emphasis added). 

Petitioner argues we should overrule South Carolina case law holding that a 

fraud cause of action does not fall within the survival statute. Before we discuss that 

issue with respect to fraud and fraudulent concealment, we will briefly address 

whether Petitioner's cause of action for breach of contract accompanied by a 

fraudulent act falls within the survival statute. 

B. A cause of action for breach of contract accompanied by a fraudulent 

act survives the death of the parties 

Bank of America rightly acknowledges that an action for breach of contract 

survives death under the common law. Bank of America argues a cause of action 

for breach of contract accompanied by a fraudulent act does not survive because it 

is "fraud-based." We disagree. As we noted in Smith v. Canal Ins. Co., "[t]here is 

no cause of action distinct from breach of contract for breach of contract 

accompanied by a fraudulent act." 275 S.C. 256, 260, 269 S.E.2d 348, 350 (1980). 

"An action for breach of contract accompanied by a fraudulent act is an action ex 

contractu, not ex delicto." Peeples v. Orkin Exterminating Co., 244 S.C. 173, 178, 

135 S.E.2d 845, 847 (1964) (first citing Cain v. United Ins. Co., 232 S.C. 397, 102 

S.E.2d 360 (1958); and then citing Ross v. Am. Income Life Ins. Co., 232 S.C. 433, 

102 S.E.2d 743 (1958)). Therefore, Petitioner's contract-based cause of action for 

breach of contract accompanied by a fraudulent act survives under the common law 

and is not impacted by the survival statute. We will further discuss the viability of 

this cause of action under the facts of this case when we address the issue of res 

judicata. 

C. Common law principle that a tort action for fraud does not survive 

As background to our discussion of whether a fraud action falls within the 

scope of the survival statute, we address the common law principle that a fraud and 

deceit action does not survive the death of either the victim or the perpetrator. 

Of course, fraud and fraudulent concealment are tort actions. Under the 

common law, tort actions did not survive the death of either the victim or the 

tortfeasor. Our case law does not explain why. The decisions simply say it is so. 

For example, in Chaplin v. Barrett, the Court noted: 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

We have seen the right of action for the breach of a contract upon the 

death of either party, in general survives against the executor or 

administrator of each; but in the case of torts, where the action must be 

in form ex delicto, for the recovery of damages, and the plea is not 

guilty, the rule at common law was otherwise. 

46 S.C.L. (12 Rich.) 284, 284-85 (1859). 

Professors Dobbs, Hayden, and Bublick have commented on the absence of 

an explanation for this common law principle: 

[Under the common law], personal actions die with the person. The 

common law [held] . . . that the death of either the tortfeasor or the 

victim eliminated all tort claims. In particular: (1) If the tort victim 

died, his cause of action was at an end. His estate had no cause of 

action. (2) If the tortfeasor himself died after committing a tort against 

his victim, the victim's claim died as well. (3) If the victim died, her 

survivors had no independent claim of their own against the tortfeasor 

for the loss of their support or for their grief and sorrow. 

2 Dan B. Dobbs et al., The Law of Torts § 372, at 501 (2d ed. 2011) (footnotes 

omitted). The authors noted "[t]here has never been any good explanation for all 

these rules" and then commented, 

However, an historical explanation for some of the rules can be found 

in primitive English law. The English idea was that there was no 

private tort action for a felony because the tort action merged in the 

felony, which was to say that the felon's property was forfeited to the 

Crown, which was unwilling to share any of the assets with the felon's 

victim. 

Id. at n. 4. Indeed, Black's Law Dictionary defines the term "ex delicto" as "[a]rising 

from a crime or tort." Ex delicto, Black’s Law Dictionary (11th ed. 2019). 

Similarly, it is stated in Prosser and Keeton on Torts: 

The historical reasons for the rule that personal torts died with the 

person of either the plaintiff or the defendant are obscure. Probably 

they derive from a day when little distinction was drawn between tort 

and crime; death of the defendant minimized the capacity of the law to 

exact punishment, and the death of the plaintiff minimized the need to 

substitute tort damages for vengeance. These grounds have, of course, 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

disappeared with the establishment of tort as a separate branch of law 

with emphasis on compensation as well as punishment . . . . 

W. Page Keeton et al., Prosser & Keeton on Torts § 126, at 942 (5th ed. 1984) 

(footnotes omitted). 

We decided Page v. Lewis in 1943. 203 S.C. 190, 26 S.E.2d 569. We 

acknowledged that an equity action for cancellation of a fraudulent real estate 

conveyance did survive death under the common law. We concluded that if the 

action were not to survive the defrauded person's death, the "perpetrator of the 

outrage could openly proclaim his own guilt without any fear of having to disgorge 

his ill gotten gains. To state such a proposition is to refute it." Id. at 196, 26 S.E.2d 

at 571; see Hughey v. Mooney, 282 S.C 597, 600-02, 320 S.E.2d 475, 476-77 (Ct. 

App. 1984) (discussing Page v. Lewis). This rationale arguably extends to an at-law 

fraud action. However, as we will now discuss, an action at law for fraud and deceit 

does fall within the survival statute; therefore, we need not consider abolishing the 

common law principle that such a cause of action does not survive death.3 

D. Does a fraud action fall within the language of the survival statute? 

Bank of America argues Faircloth v. Finesod, 938 F.2d 513 (4th Cir. 1991) 

sufficiently explains why our legislature chose not to include fraud actions within 

the survival statute. In Faircloth, the Fourth Circuit considered an equal protection 

challenge to the survival statute and held there was a rational basis for the General 

Assembly drafting the survival statute to allow fraud-based equitable rescission 

claims—but not common law fraud claims—to survive: 

The "rational basis" for the distinction is the real issue, and the basis 

posited by appellant is enough. Appellant argues that fraud is a tort that 

requires a special quality of proof, and the states of mind of the victim 

(e.g., whether he knew the statement was false, relied upon it, and was 

justified in so relying) and the perpetrator are especially vital. 

Appellant asserts that a legislature could rationally conclude that the 

difficulty and potential unfairness of proving the state of mind of a dead 

party to a fraudulent transaction justified excepting fraud from the 

survival statute. In rebuttal, Faircloth points out that equitable 

rescission claims based on fraud do survive in South Carolina. Page v. 

3 Over time, the common law rule that an at-law fraud action does not survive death 

became the common law "exception" to the broad scope of the survival statute. 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Lewis, 203 S.C. 190, 26 S.E.2d 569 (1943). Faircloth's argument has 

some merit, though we think it rational to distinguish between a 

common-law fraud action (in which consequential and punitive 

damages are available) and a rescission claim based on fraud (where 

restoration of the status quo ante is the entire remedy), and to allow only 

the less expansive remedy where a party is dead. 

938 F.2d at 517 (footnote omitted). As we will explain, Mattison— and subsequent 

cases addressing the survival of a fraud action—were wrongly decided; therefore, 

the Fourth Circuit's reasoning is of no import. In any event, while there is indeed a 

"special quality of proof" inherent in a fraud cause of action, nothing in the way of 

legislative history or otherwise indicates the General Assembly purposefully 

excluded a fraud action from the survival statute. 

Bank of America argues other "special concerns" justify the conclusion fraud 

does not fall within the survival statute: 

[T]his action is, in fact, exactly the kind that raises the special concerns 

surrounding fraud. [Petitioner's] parents, not him, were the ones who 

signed the relevant paperwork, met with [Bank of America] employees, 

and were charged for LPP coverage. Even if [Petitioner] could identify 

a fraudulent statement that was made to his parents—and he has not— 

[Bank of America] would be unable to examine whether [Petitioner's] 

parents knew that statement was false or actually (and justifiably) relied 

on it. Evidence central to [Petitioner's] fraud-based claims disappeared 

when his parents died. Precluding such claims from the survival statute 

thus makes perfect sense here. 

As was the Fourth Circuit's reasoning in Faircloth, Bank of America's rationale is 

based on the assumption that the survival statute excludes fraud actions; again, as 

we will discuss below, Mattison and its progeny were wrongly decided. In any 

event, if the death of an alleged fraud victim prevents her estate from proving 

the elements of a fraud claim, those proof problems are in the lap of the estate, 

not the defendant. However, the possibility of proof problems is not a sufficient 

reason to bar outright the survival of the fraud claim. 

We are finally at the point in this opinion where we explain, if possible, South 

Carolina case law on the issue of the survival of an action for fraud and deceit. In 

1941, we first addressed the question in Mattison v. Palmetto State Life Ins. Co. 

With no analysis, we held a cause of action for "taking and carrying away [an 

insurance contract] . . . with intent to cheat and defraud [the] plaintiff's 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

intestate . . . . does not come within either of the instances where a cause of action 

survives" under the survival statute. 197 S.C. at 259, 262, 15 S.E.2d at 118-19. 

Citing Mattison, this Court and the court of appeals have repeated the premise 

several times, again with no analysis. See Brewer v. Graydon, 233 S.C. 124, 128, 

103 S.E.2d 767, 769 (1958); Pamplico Bank & Tr. Co. v. Prosser, 259 S.C. 621, 

625, 193 S.E.2d 539, 540 (1972); Ferguson, 349 S.C. at 563-64, 564 S.E.2d at 97; 

Hughey v. Mooney, 282 S.C. 597, 602, 320 S.E.2d 475, 477 (Ct. App. 1984); 

Brailsford v. Brailsford, 380 S.C. 443, 449, 669 S.E.2d 342, 345 (Ct. App. 2008); 

Bennett v. Carter, 421 S.C. 374, 383, 807 S.E.2d 197, 202 (2017). 

In Ferguson, we noted with some reservation that even though the language 

of the survival statute "is broad and ostensibly appears to include almost every 

conceivable cause of action," our case law "has continued to recognize a common 

law exception regarding causes of action for fraud and deceit." 349 S.C. at 564, 564 

S.E.2d at 97. That reservation was understandable, as we have never articulated why 

the survival statute does not include a fraud cause of action. 

Bank of America argues the question of "why" does not matter because the 

General Assembly ratified Mattison by re-enacting the survival statute in 1942, 

1952, and 1962 without disturbing its operative text. Legislative inaction is one 

canon of statutory construction, but it is not the only one. We should not rely 

exclusively on legislative inaction when the underlying statute has never been fully 

analyzed by an appellate court. See State v. Ramsey, 409 S.C. 206, 213, 762 S.E.2d 

15, 18 (2014) ("[L]egislative inaction cannot legitimize a flawed analysis nor does 

it alter our obligation to rely on the plain language of a statute."). We take this 

opportunity to meaningfully construe the survival statute in the fraud context for the 

first time. 

To say a cause of action is "abated" at the time of death of a party or a potential 

party is to say the cause of action is no longer viable because of that death. The 

Supreme Court of Missouri recently addressed the issue of abatement and survival 

in the context of an ex-wife's motion to set aside for fraud a property settlement 

agreement she previously entered into with her ex-husband, who died while the 

motion was pending. Olofson v. Olofson, 625 S.W.3d 419 (2021). The Olofson 

court's reasoning is instructive as to the nature of a fraud cause of action and why it 

falls within our survival statute. In concluding the ex-wife's motion remained viable 

in spite of her ex-husband's death, the court analyzed the Missouri survival statute, 

Mo. St. § 537.010, which provides, in pertinent part, for the survival of "[a]ctions 

for wrongs done to property or interests therein." This language is essentially the 

same as the language of the South Carolina survival statute allowing the survival of 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

causes of action for "any and all injuries ... to personal property." S.C. Code Ann. 

§ 15-5-90.4 The Olofson court observed, 

The rationale behind the rule of abatement is pragmatic. An action 

involving purely personal issues abates with the death of a party, except 

where otherwise provided by statute, because “the need to redress 

purely personal wrongs ceases to exist.” By contrast, an action that 

primarily concerns property or property interests and only incidentally 

implicates personal issues does not abate with the death of a party 

because such an action can achieve its purpose after 

death. Similarly, section 537.010 provides that wrongs done to 

property interests survive the death of the wrongdoer, and a fraud claim 

that involves "a loss of money due to the fraudulent actions of the 

defendant" is a such a wrong. 

Olofson, 625 S.W.2d at 430 (cleaned up) (emphasis added). The Olofson court then 

noted that it "has long been the law" in Missouri that "[a]ctions for fraud and deceit 

are considered property torts and [are] 'more than merely personal' when they 

involve matters diminishing the property of the person defrauded." Id. 

We agree with the Missouri approach. In Mattison and in every succeeding 

case, neither this Court nor our court of appeals in following our lead has ever 

explained why a fraud action does not fall within the survival statute. We have just 

said it is so. The survival statute provides "causes of action for and in respect to . . . 

any and all injuries to . . . personal property shall survive . . . ." S.C. 

Code Ann. § 15-5-90. We hold this language plainly applies to actions for fraud and 

deceit. "The cardinal rule of statutory construction is to ascertain and effectuate the 

intent of the legislature." Hodges v. Rainey, 341 S.C. 79, 85, 533 S.E.2d 578, 581 

(2000). "Where the statute's language is plain and unambiguous, and conveys a clear 

and definite meaning, the rules of statutory interpretation are not needed and the 

court has no right to impose another meaning." Id. 

We therefore reverse the court of appeals on this issue and turn to the 

additional sustaining grounds raised by Bank of America. 

4 As used in section 15-5-90, "personal property" includes "money, goods, chattels, 

things in action and evidences of debt." S.C. Code Ann. § 15-1-40 (2005). 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

III. 

A. Res Judicata 

Bank of America's first additional sustaining ground is that the circuit court 

properly ruled all three causes of action are barred by res judicata. "Res judicata 

bars subsequent actions by the same parties when the claims arise out of the same 

transaction or occurrence that was the subject of a prior action between those 

parties." Plum Creek Dev. Co., Inc. v. City of Conway, 334 S.C. 30, 34, 512 S.E.2d 

106, 109 (1999) (citing Sub-Zero Freezer Co. v. R.J. Clarkson Co., 308 S.C. 188, 

417 S.E.2d 569 (1992)). Res judicata may apply if (1) the identities of the parties 

are the same as in the prior litigation, (2) the subject matter is the same as in the prior 

litigation, and (3) there was a prior adjudication of the action by a court of competent 

jurisdiction. Catawba Indian Nation v. State, 407 S.C. 526, 538, 756 S.E.2d 900, 

907 (2014) (citing Johnson v. Greenwood Mills, Inc., 317 S.C. 248, 250-51, 452 

S.E.2d 832, 833 (1994)). "[R]es judicata is more commonly referred to simply as 

claim preclusion." Id. at 537, 756 S.E.2d at 906 (citing Garris v. Governing Bd. of 

S.C. Reinsurance Facility, 333 S.C. 432, 449, 511 S.E.2d 48, 57 (1998)). "Claim 

preclusion bars plaintiffs from pursuing a later suit where the claim (1) was litigated 

or (2) could have been litigated." Id. at 537, 756 S.E.2d at 906 (citing Crestwood 

Golf Club, Inc. v. Potter, 328 S.C. 201, 216, 493 S.E.2d 826, 835 (1997)). However, 

the doctrine of res judicata is not an “ironclad bar” to a later lawsuit. Id. at 538, 756 

S.E.2d at 907. 

Petitioner concedes the first and second elements of res judicata have been 

met. As to the third element, Petitioner argues his three current claims were not 

adjudicated in the federal suit because they were dismissed without prejudice in the 

district court. We agree with Petitioner as to his claims for fraud and fraudulent 

concealment, because a dismissal without prejudice in federal court litigation "does 

not 'operat[e] as an adjudication upon the merits,' [Fed. R. Civ. P.] 41(a)(1), and thus 

does not have a res judicata effect." Cooter & Gell v. Hartmarx Corp., 496 U.S. 

384, 396 (1990) (second brackets added); see McEachern v. Black, 329 S.C. 642, 

651, 496 S.E.2d 659, 663 (Ct. App. 1998) (quoting Collins v. Sigmon, 299 S.C. 464, 

467, 385 S.E.2d 835, 837 (1989)). However, we disagree with Petitioner with 

respect to his claim for breach of contract accompanied by fraudulent act. Although 

Plaintiff voluntarily dismissed this claim without prejudice in the federal litigation, 

the district court dismissed with prejudice Petitioner's claim for breach of contract, 

and the Fourth Circuit affirmed that dismissal. As noted above, "[t]here is no cause 

of action distinct from breach of contract for breach of contract accompanied by a 

fraudulent act." Smith, 275 S.C. at 260, 269 S.E.2d at 350. Without a viable breach 

of contract action, there can be no action for breach of contract accompanied by a 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

fraudulent act. As to that cause of action, all three elements of res judicata exist— 

identity of the parties, identity of the subject matter, and adjudication of the claim in 

the former suit. Consequently, res judicata bars Petitioner's claim for breach of 

contract accompanied by a fraudulent act. 

The question of whether res judicata bars Petitioner's fraud and fraudulent 

concealment claims requires a different analysis. Bank of America argues 

Petitioner's three claims could have been litigated in the federal litigation, but 

Petitioner chose to voluntarily dismiss them without prejudice. However, 

Petitioner's end game is to convince this Court to overrule precedent holding the 

survival statute does not extend to a fraud cause of action. Citing Rule 244(a) of the 

South Carolina Appellate Court Rules, Petitioner contends he was in a quandary in 

federal court, as neither the district court nor the Fourth Circuit could certify to this 

Court a settled question of state law. See Rule 244(a), SCACR ("The Supreme Court 

in its discretion may answer questions of law certified to it by any federal court of 

the United States ... when it appears to the certifying court there is no controlling 

precedent in the decisions of the Supreme Court." (emphasis added)). Petitioner 

claims a request of either the district court or the Fourth Circuit to certify the question 

of the interpretation of the survival statute would have been futile because Mattison 

and subsequent decisions of this Court hold a fraud and deceit action does not 

survive. Bank of America contends there is ample "controlling precedent" for the 

proposition that a fraud and deceit action does not survive, but at the same time 

contends Petitioner should have at least asked the federal court to certify the question 

of whether this Court should overrule or clarify its prior decisions. 

We repeat that res judicata is not "an ironclad bar." Under the unique 

circumstances of this case, we hold res judicata does not bar Petitioner's fraud and 

fraudulent concealment actions. 

B. Statute of Limitations 

Bank of America's second additional sustaining ground is that the circuit court 

properly ruled all three causes of action are barred by the three-year statute of 

limitations set forth in S.C. Code section 15-3-530(7) (2005). This limitations 

period "is governed by the 'discovery rule,' and does not begin to run until discovery 

of the fraud itself or of 'such facts as would have led to the knowledge thereof, if 

pursued with reasonable diligence.'" Burgess v. Am. Cancer Soc'y, S.C. Div., Inc., 

300 S.C. 182, 185, 386 S.E.2d 798, 799 (Ct. App. 1989) (quoting Grayson v. Fid. 

Life Ins. Co. of Phila., 114 S.C. 130, 135, 103 S.E. 477, 478 (1920)). In other words, 

"[t]he statute runs from the date the injured party either knows or should have known 

by the exercise of reasonable diligence that a cause of action arises from the 
 

 

 

 

 

 

 

 

 

 

 

wrongful conduct." Dean v. Ruscon Corp., 321 S.C. 360, 363, 468 S.E.2d 645, 647 

(1996) (citing Johnston v. Bowen, 313 S.C. 61, 437 S.E.2d 45 (1993)). This issue 

was not squarely addressed by the district court or the Fourth Circuit, as both courts 

went directly to the issue of equitable tolling. Therefore, we address the issue for 

the first time. 

We must construe Petitioner's complaint and determine if the facts alleged and 

all inferences reasonably deducible from the complaint would support a finding that 

Petitioner commenced this action within the three-year limitations period. See 

Rydde v. Morris, 381 S.C. 643, 646, 675 S.E.2d 431, 433 (2009). Petitioner cites 

five allegations in his complaint in support of his argument that dismissal of his 

fraud-based claims at the 12(b)(6) stage on statute of limitations grounds was error: 

(1) Mrs. Hughes was eighty-five years old when the line of credit transaction was 

closed in 2006; (2) thereafter (Petitioner does not state when), Mrs. Hughes suffered 

from dementia, impaired vision, decisional incapacity, and other health problems; 

(3) Bank of America did not inform Mrs. Hughes of the now-disputed charges until 

March 2015; (4) the charges were "ambiguously listed and appeared amid numerous 

other monthly charges" on Mrs. Hughes' Bank of America joint checking account 

statement; and (5) in March of 2015, Mrs. Hughes received notice (addressed to the 

then-late Mr. Hughes) from Bank of America that the disputed insurance plan was 

in effect as to Mr. Hughes. 

We disagree with Petitioner. Petitioner acknowledges the charge appeared on 

each statement "for several years" beginning in 2006 Thus, even considering the 

allegations in the light most favorable to Petitioner, Mr. and Mrs. Hughes knew, or 

by the exercise of reasonable diligence, should have known, they were being charged 

$28.40 for something. It was incumbent upon them to conduct a reasonably diligent 

inquiry into the nature of the charge; however, they did not do so, and the limitations 

period expired before Petitioner commenced this action. 

C. Equitable Tolling and Collateral Estoppel 

Bank of America's third additional sustaining ground is that the circuit court 

properly ruled the statute of limitations was not equitably tolled. As he does here, 

Petitioner argued in the federal litigation that even if the statute of limitations 

otherwise expired, it was equitably tolled, thus precluding Rule 12(b)(6) dismissal. 

Applying federal case law, the district court and Fourth Circuit rejected Petitioner's 

argument. We must determine whether the Fourth Circuit's ruling on equitable 

tolling collaterally estops Petitioner from relitigating the issue in this state court 

litigation. In Section III.A above, we discussed the role of res judicata in this case. 

"Res judicata bars relitigation of the same cause of action while collateral estoppel 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

bars relitigation of the same facts or issues necessarily determined in the former 

proceeding." Pye v. Aycock, 325 S.C. 426, 436, 480 S.E.2d 455, 460 (Ct. App. 

1997). The doctrine of collateral estoppel precludes a party from relitigating an issue 

decided in prior litigation, regardless of whether the claims in the prior and instant 

litigation are the same. Carolina Renewal, Inc. v. S.C. Dep't of Transp., 385 S.C. 

550, 554-55, 684 S.E.2d 779, 782 (Ct. App. 2009). 

For collateral estoppel to apply, it must be shown that the issue "was: (1) 

actually litigated in the prior action; (2) directly determined in the prior action; (3) 

necessary to support the prior judgment." Id. (citing Beall v. Doe, 281 S.C. 363, 369 

n.1, 315 S.E.2d 186, 189-90 n.1 (Ct. App. 1984)). "The doctrine of collateral 

estoppel is intended to reduce litigation and conserve the resources of the court and 

litigants and it is based upon the notion that it is unfair to permit a party to relitigate 

an issue that has already been decided." State v. Bacote, 331 S.C. 328, 331, 503 

S.E.2d 161, 163 (1998). "Since it is grounded upon concepts of fairness, it should 

not be rigidly or mechanically applied." Id. 

In support of his equitable tolling argument, Petitioner relies in part upon the 

same allegations in his complaint he relies upon in arguing the limitations period had 

not expired—Mrs. Hughes' diminished mental capacity, poor eyesight, and general 

poor health. In rejecting this argument, the district court found: 

The charge for the mortgage insurance appeared on the Hughes' 

monthly checking account statements from 2006 to 2015. Thus, any 

argument they failed to discover the purported wrongdoing by [Bank of 

America] during this period of time, although they exercised due 

diligence, is bereft of any merit. Assertions [Jane] Hughes "underwent 

major heart surgery, suffered from dementia, experienced vision 

impairments, including cataracts and eye surgery, and suffered a broken 

hip that required hospitalization and extensive rehabilitation at White 

Oak Manor Nursing Home in Spartanburg, South Carolina," although 

unfortunate, are simply insufficient to satisfy the due diligence 

requirement. 

. . . . 

The fact equitable tolling is to be employed sparingly is so established 

as [t]o make a citation to authority unnecessary. For the Court to adopt 

[Hughes'] position [his] claims are entitled to equitable tolling would 

mean statutes of limitations are inconsequential. And, of course, that is 

not so. 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Hughes, 2017 WL 569847, at *2 (citation omitted). 

The Fourth Circuit affirmed, citing its equitable tolling precedent: 

Generally, parties "are entitled to equitable tolling only if they show 

that have pursued their rights diligently and extraordinary 

circumstances prevented them from filing on time." Raplee v. United 

States, 842 F.2d 328, 333 (4th Cir. 2016), cert denied, 137 S. Ct. 2274 

(2017). "Equitable tolling is reserved for those rare instances where— 

due to circumstances external to the party's own conduct—it would be 

unconscionable to enforce the limitation period against the party and 

gross injustice would result." Id. at 333. "The use of equitable tolling 

must be guarded and infrequent, lest circumstances of individualized 

hardship supplant the rules of clearly drafted statutes." Lawrence v. 

Lynch, 826 F.2d 198, 204 (4th Cir. 2016). 

Hughes, 697 F. App'x at 192-93 (cleaned up). 

Petitioner also argues equitable tolling is appropriate because Bank of 

America fraudulently concealed the details of the monthly insurance charge on the 

Hughes' checking account statements. The Fourth Circuit addressed this argument 

as well, citing Supermarket of Marlington, Inc. v. Meadow Gold Dairies, Inc. for the 

proposition that when a plaintiff alleges fraudulent concealment of his cause of 

action by the defendant, the plaintiff seeking equitable tolling must show (1) the 

defendant pleading the statute of limitations fraudulently concealed facts that are the 

basis of the plaintiff's claim and (2) the plaintiff failed to discover those facts within 

the limitations period despite the exercise of due diligence. Hughes, 697 F. App'x 

at 192-93 (citing Supermarket of Marlington, Inc. v. Meadow Gold Dairies, Inc., 71 

F.3d 119, 122 (4th Cir. 1995)). The Fourth Circuit held Petitioner did not make the 

required showing. Id. at 193. In cases in which a plaintiff contends the defendant 

had fraudulently concealed a cause of action, the showing required by Supermarket 

of Marlington is in accord with South Carolina law. 

Petitioner contends the federal court disposition of the equitable tolling issue 

does not preclude consideration of the equitable tolling issue because "South 

Carolina's stance on equitable tolling ... is more lenient than that of the federal 

courts" and the circuit court did not review this case under the supposedly more 

lenient standard. In South Carolina, the party claiming the application of equitable 

tolling bears the burden of establishing sufficient facts to justify its use. Hooper v. 

Ebenezer Sr. Servs. & Rehab. Ctr., 386 S.C. 108, 115, 687 S.E.2d 29, 32 (2009) 

(citing Ocana v. Am. Furniture Co., 91 P.3d 58, 65 (N.M. 2004)). Equitable tolling 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

typically applies when a litigant was prevented from timely commencing an action 

because of an extraordinary event beyond his control. Hooper, 386 S.C. at 116, 687 

S.E.2d at 32 (citing Ocana, 91 P.3d at 66). In Hooper, we noted there is not an 

exclusive list of circumstances that justify the application of equitable tolling and it 

may be applied where it is justified under all the circumstances. Id. at 116-17, 687 

S.E.2d at 33. However, the Court cautioned that equitable tolling "should be used 

sparingly and only when the interests of justice compel its use." Id. at 117, 687 

S.E.2d at 33. 

Petitioner highlights the allegations central to his claims—that Bank of 

America "deceived and defrauded a frail, elderly couple by surreptitiously charging 

them for a product they expressly declined" and by burying the premium charge in 

garbled language on monthly bank statements. Petitioner argues Mr. Hughes' death 

and Mrs. Hughes' mental decline, "when viewed in combination with [Bank of 

America's] surreptitious and illegal activities," constitute extraordinary 

circumstances beyond Mrs. Hughes' control. The Fourth Circuit reviewed the 

District Court's findings on those points and concluded that a party such as Mrs. 

Hughes would be entitled to equitable tolling only if she has pursued her rights 

diligently and extraordinary circumstances external to her own conduct prevented 

her from commencing the action on time. Hughes, 697 F. App'x at 192 (citing 

Raplee, 842 F.3d at 333). The Fourth Circuit also observed that "[t]he use of 

equitable tolling must be guarded and infrequent, lest circumstances of 

individualized hardship supplant the rules of clearly drafted statutes." Id. (citing 

Lynch, 826 F.3d at 204). This standard is consistent with what we declared in 

Hooper to be the law in South Carolina. The Fourth Circuit's affirmation of the 

district court's ruling on the equitable tolling issue precludes this issue from being 

relitigated. 

IV. Motion for Sanctions–Op. No. 2021-UP-354 

Two days after Petitioner filed his notice of appeal from Judge Kelly's order, 

Bank of America filed a motion for sanctions, seeking $76,556.02 in attorneys' fees 

and costs under both the FCPSA and Rule 11, SCRCP. Citing the pending appeal, 

the circuit court (Judge Knie) concluded Petitioner's claims "ha[d] not yet been fully 

adjudicated" and therefore denied Bank of America's motion for sanctions as 

"untimely and premature." The court of appeals reversed, holding the motion was 

not "untimely." 

We first note the true inquiry is whether the sanctions motion was 

"premature," not whether it was "untimely." With respect to the FCPSA, the 

sanctions motion was "timely" because it was filed within ten days after Bank of 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

America's receipt of written notice of the entry of Judge Kelly's order. See Russell 

v. Wachovia Bank, N.A., 370 S.C. 5, 20, 20 n.11, 633 S.E.2d 722, 730, 730 n.11 

(2006) (A motion for sanctions under the FCPSA must be filed within ten days after 

the notice of entry of judgment.). Bank of America seeks Rule 11 sanctions in the 

same motion, and the Rule 11 request for relief was also timely.5 

Nor was Bank of America's sanctions motion premature. In Holmes v. East 

Cooper Community Hospital, Inc., we noted a motion for sanctions is a post-trial 

motion, and we held "the filing of a notice of appeal does not deprive the circuit 

court of jurisdiction to consider a timely post-trial motion." 408 S.C. 138, 160-61, 

758 S.E.2d 483, 495-96 (2014) (citing Hudson v. Hudson, 290 S.C. 215, 215-16, 349 

S.E.2d 341, 341-42 (1986)). In Hudson, we took the unusual step of appending an 

order to our opinion. In that order we stated: 

IT IS ORDERED that in the event timely post-trial motions are filed 

under Rule 59, simultaneously with or subsequent to the filing of a 

Notice of Appeal, the appellant shall notify the Clerk of this Court in 

writing. Upon receipt of such notice, the appeal shall be dismissed 

without prejudice. Any party can appeal within ten (10) days after the 

order disposing of the post-trial motions. A second filing fee will not 

be collected from a party who previously appealed. 

Hudson, 290 S.C. at 216, 349 S.E.2d at 341-42 (footnote omitted). 

Because "[m]otions made pursuant to the FCPSA are post-trial motions", 

Holmes, 408 S.C. at 160, 758 S.E.2d at 495, our order in Hudson applies when a 

timely sanctions motion is filed after a notice of appeal is filed. In Holmes, we noted 

the procedure set forth in the Hudson order would allow "all ancillary matters [to] 

be timely heard, and appealed, if necessary, in an efficient and wholesale manner, 

and not . . . in a piecemeal fashion." Id. at 162, 758 S.E.2d at 496. 

Petitioner did not notify the clerk of the court of the filing of Bank of 

America's sanctions motion, which would have triggered the court of appeals' 

5 In Russell, we noted the issue of the timeliness of a Rule 11 motion is different 

from the issue of the timeliness of a motion under the FCPSA. 370 S.C. at 20 n.11, 

633 S.E.2d at 730 n.11; see Pee Dee Health Care., P.A. v. Est. of Thompson, 424 

S.C. 520, 530, 818 S.E.2d 758, 763 (2018) ("Rule 11—unlike the FCPSA—does not 

contain any time limit for filing a motion for sanctions, and South Carolina appellate 

courts have never interpreted Rule 11 to include a specific time limit."). The 

distinction between the two motions as to timeliness is not an issue in this case. 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

dismissal of Petitioner's appeal without prejudice and the remainder of the Hudson 

procedure. Because Petitioner did not notify the clerk, the sanctions motion came 

before Judge Knie for hearing roughly two months after the motion was filed. 

Because Petitioner's appeal was pending, Judge Knie understandably refused to hear 

the sanctions motion. Bank of America then filed a separate appeal from that 

decision, and both appeals worked their way through the appellate process to this 

Court. 

We see no reason to penalize Petitioner for not notifying the clerk of the court 

of appeals of the sanctions motion, as required by our order in Hudson. However, 

we take this opportunity to remind the bar of the Hudson procedure and the judicial 

economy inherent in it. If a party such as Petitioner has not notified the clerk of the 

appellate court of the filing of a post-trial motion, the trial court must order that party 

to notify the clerk of the appellate court of the post-trial motion. The appellate court 

must then dismiss the previously-filed appeal without prejudice, in accordance with 

Hudson. 

We have reversed in part and affirmed as modified in part the result reached 

by the court of appeals in Petitioner's appeal from Judge Kelly's order. We remand 

Bank of America's sanctions motion to the circuit court for hearing. In so doing, we 

join in the court of appeals' pronouncement that our remand of this motion is not a 

decision on "the merits of that motion." Hughes, Op. No. 2021-UP-354, at 9.

6 Of 

course, Bank of America is not entitled to sanctions on the portion of its motion 

emphasizing this Court's now-overruled precedent that fraud actions do not fall 

within the survival statute.7 

6 Petitioner argues sanctions are not warranted under either the FCPSA or Rule 11. 

Petitioner further argues that even if sanctions are warranted, Bank of America's 

demand for attorney's fees and costs of $76,556.02 incurred at the very early Rule 

12(b)(6) stage is outrageous. The circuit court must resolve these issues on remand. 

7 We overrule the following cases to the extent they hold a fraud cause of action does 

not survive the death of the alleged victim or the alleged perpetrator: Mattison v. 

Palmetto State Life Ins. Co., 197 S.C. 256, 15 S.E.2d 117 (1941); Brewer v. 

Graydon, 233 S.C. 124, 103 S.E.2d 767 (1958); Pamplico Bank & Tr. Co. v. Prosser, 

259 S.C. 621, 193 S.E.2d 539 (1972); Ferguson v. Charleston Lincoln Mercury, Inc., 

349 S.C. 558, 564 S.E.2d 94 (2002); Bennett v. Carter, 421 S.C. 374, 807 S.E.2d 
 

 

 

 

 

 

 

Conclusion 

Although Petitioner's claim for breach of contract accompanied by fraudulent 

act survived Mrs. Hughes' death, the claim is barred by res judicata. Petitioner's 

causes of action for fraud and fraudulent concealment survived Mrs. Hughes' death, 

but the statute of limitations expired before this action was commenced. The federal 

district court ruled equitable tolling does not apply, and the Fourth Circuit affirmed. 

Petitioner is precluded from relitigating the equitable tolling issue in this case. We 

therefore reverse in part and affirm as modified in part the court of appeals' decision 

in Hughes, Op. No. 2021-UP-341. We affirm as modified the court of appeals' 

decision in Hughes, Op. No. 2021-UP-354, and we remand Bank of America's 

sanctions motion to the circuit court for disposition. 

AFFIRMED AS MODIFIED IN PART, REVERSED IN PART, AND 

REMANDED. 

BEATTY, C.J., KITTREDGE, FEW, and HILL, JJ., concur. 

197 (2017); Hughey v. Mooney, 282 S.C. 597, 320 S.E.2d 475 (Ct. App. 1984); 

Brailsford v. Brailsford, 380 S.C. 443, 669 S.E.2d 342 (Ct. App. 2008).