THE STATE OF SOUTH CAROLINA 

In The Supreme Court 

Jacquelin S. Bennett, Genevieve S. Felder, and Kathleen 

S. Turner, individually, as Co-Trustees and Beneficiaries 

of the Marital Trust and the Qualified Terminable 

Interest Trust created by the Thomas Stevenson Will, and 

Jacquelin S. Bennett, and Kathleen S. Turner, as CoPersonal Representatives on behalf of the Estate of 

Jacquelin K. Stevenson, Respondents, 

v. 

T. Heyward Carter Jr., Evans, Carter, Kunes & Bennett, 

P.A., Douglas Capital Management, Inc., Dixon Hughes 

f/k/a Pratt-Thomas Gumb & Co., P.A., and Lynne L. 

Kerrison, Defendants, 

Of Whom Dixon Hughes f/k/a Pratt-Thomas Gumb & 

Co., and Lynne L. Kerrison are the Petitioners. 

Appellate Case No. 2016-000065 

ON WRIT OF CERTIORARI TO THE COURT OF APPEALS 

Appeal from Charleston County 

Roger M. Young Sr., Circuit Court Judge 

Opinion No. 27748 

Heard May 24, 2017 – Filed November 8, 2017 

AFFIRMED AS MODIFIED 
 

 

 

 

M. Dawes Cooke Jr., of Barnwell Whaley Patterson & 

Helms, LLC, of Charleston, and Frederick K. Sharpless, 

of Greensboro, both for Petitioners. 

Keith M. Babcock, A. Camden Lewis, James Mixon 

Griffin, and Ariail Elizabeth King, all of Lewis Babcock 

& Griffin, LLP, of Columbia, for Respondents. 

JUSTICE JAMES: We granted certiorari to review the court of appeals' decision 

reversing in part a circuit court order which granted Petitioners summary judgment 

on Respondents' individual cause of action for aiding and abetting a breach of

fiduciary duty. Bennett v. Carter, Op. No. 2015-UP-491 (S.C. Ct. App. filed Oct. 

14, 2015). The sole issue before the Court is whether this cause of action survives 

summary judgment. We affirm as modified. 

FACTUAL AND PROCEDURAL HISTORY 

Jacquelin Stevenson (Mother) was the sole lifetime beneficiary of two trusts 

created by the will of her husband, who died in 1988.1 The residual beneficiaries of 

the two trusts were her sons, Thomas Stevenson III and Daniel Stevenson II 

(collectively, the Stevenson brothers), and her daughters, Respondents. 

The Stevenson brothers were also co-trustees of the two trusts from 1999 to 

2006. Respondents allege that while the Stevenson brothers were co-trustees, they 

violated their fiduciary duties by unlawfully taking money from the trusts. 

Respondents claim the Stevenson brothers stole approximately five million dollars 

from the two trusts. 

In 1997, Lynne Kerrison and her accounting firm Dixon Hughes (collectively, 

Petitioners) began preparing the income tax returns of Mother and the two subject 

trusts. Mother's personal bookkeeper, Pat Neapolitan, provided Kerrison with the 

information needed to complete Mother's tax returns and those of the trusts. In 2001,

while preparing Mother's tax returns, Kerrison noticed the records reflected loans to 

one of the Stevenson brothers and had concerns about the propriety of the 

1 The factual recitations herein are in the light most favorable to Respondents, as this 

is an appeal from a grant of summary judgment. These findings are not binding on 

the fact-finder on remand. 
 

 

transactions. She contacted Mother's attorney, Heyward Carter Jr., and informed 

him of the transactions. In October of 2001, Kerrison, Carter, and the Stevenson 

brothers met to discuss the suspect transactions. At this meeting, the Stevenson 

brothers were advised about the impropriety of these transactions, and they were 

advised to tell Respondents about their actions. Neither Carter nor Kerrison had any 

discussions with Respondents about Mother's finances or the finances of the trusts. 

The Stevenson brothers did not tell Respondents about the transactions until a 

meeting in 2006. 

After the meeting in 2001, the Stevenson brothers continued to withdraw 

money from the trusts. Neapolitan died, and at some point in 2003, Petitioners began 

performing the bookkeeping for Mother and the trusts. Petitioners had possession 

of the trust checkbooks and would write checks from the trusts to the Stevenson 

brothers. The Stevenson brothers held sole check-signing authority. 

To obtain checks from the trusts, the Stevenson brothers would request a

withdrawal at Petitioners' office, and Petitioners' employees would then write the

checks as requested. Petitioners knew the Stevenson brothers continued to withdraw 

money from the trusts after the October 2001 meeting. Petitioners were aware some 

of the checks written for the Stevenson brothers were to the Stevenson brothers' 

companies, and Petitioners were aware one of Petitioners' partners was personally 

investing in one of those businesses, as well as sitting on its board. 

In 2006, Respondent Kathleen S. Turner (Turner) attended a meeting with

Kerrison, Carter, and the Stevenson brothers. At this meeting, Turner learned for 

the first time that the Stevenson brothers had withdrawn money from the two trusts 

over a five year period. Mother passed away in 2007. In 2008, Respondents brought 

suit against the Stevenson brothers, resulting in a settlement with Thomas Stevenson 

and a judgment against Daniel Stevenson. In 2009, Respondents filed the present 

action against Petitioners for professional negligence, breach of fiduciary duty, and 

aiding and abetting a breach of fiduciary duty. 

The circuit court granted Petitioners' motion for summary judgment on the 

basis that the three-year statute of limitations had expired on all causes of action. 

The circuit court also ruled Respondents had not presented sufficient evidence to 

withstand summary judgment on their claim for aiding and abetting a breach of 

fiduciary duty. The court of appeals reversed in an unpublished decision, holding 

there was a question of fact as to when the statute began to run on the cause of action 

for aiding and abetting a breach of fiduciary duty, and holding Respondents 
presented sufficient evidence in support of that claim to withstand summary 

judgment. Bennett v. Carter, Op. No. 2015-UP-491 (S.C. Ct. App. filed Oct. 14, 

2015). Petitioners do not challenge the statute of limitations holding; therefore, the 

only issues before the Court are (1) whether the court of appeals erred in holding 

Petitioners presented sufficient evidence to allow the aiding and abetting claim to 

survive summary judgment, and (2) whether the aiding and abetting claim abated 

upon Mother's death in 2007.

DISCUSSION

We review the granting of summary judgment under the same standard 

applied by the trial court under Rule 56(c) of the South Carolina Rules of Civil

Procedure. Quail Hill, LLC v. Cty. of Richland, 387 S.C. 223, 235, 692 S.E.2d 499, 

505 (2010). The trial court shall grant summary judgment if "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." Rule 56(c), SCRCP. 

"In determining whether any triable issue of fact exists, the evidence and all 

inferences which can reasonably be drawn therefrom must be viewed in the light 

most favorable to the nonmoving party." Quail Hill, LLC, 387 S.C. at 235, 692 

S.E.2d at 505 (quoting Pye v. Estate of Fox, 369 S.C. 555, 563, 633 S.E.2d 505, 509 

(2006)). "However, it is not sufficient for a party to create an inference that is not

reasonable or an issue of fact that is not genuine." Town of Hollywood v. Floyd, 403 

S.C. 466, 477, 744 S.E.2d 161, 166 (2013). When the trial court grants summary 

judgment on a question of law, we review the ruling de novo. See Town of 

Summerville v. City of N. Charleston, 378 S.C. 107, 110, 662 S.E.2d 40, 41 (2008). 

The elements for aiding and abetting a breach of fiduciary duty are (1) a

breach of a fiduciary duty owed to the plaintiff; (2) the defendant's knowing 

participation in the breach; and (3) damages. Future Grp., II v. Nationsbank, 324 

S.C. 89, 99, 478 S.E.2d 45, 50 (1996). "The gravamen of the claim is the defendant's

knowing participation in the fiduciary's breach." Id. 

A. There is Sufficient Evidence to Allow the Aiding and Abetting Claim to 

Survive Summary Judgment. 

In finding Respondents presented sufficient evidence to withstand summary 

judgment, the court of appeals wrote, "In addition to taking no further action 

regarding [the Stevenson brothers'] activities, Kerrison's firm actually had
 

 

 

 

 

 

 

possession of the trust checkbooks and wrote the checks for [the Stevenson brothers']

withdrawals of funds from the trusts." Bennett v. Carter, Op. No. 2015-UP-491. 

We agree Respondents presented evidence from which a jury could reasonably 

conclude Petitioners knowingly participated in the Stevenson brothers' breach 

through Petitioners' possession of the trust checkbooks and writing checks to the 

Stevenson brothers.2 However, to the extent the "in addition to taking no further 

action" language employed by the court of appeals can be interpreted to hold that 

Petitioners' non-disclosure is evidence of Petitioners' knowing participation, we 

modify the court of appeals' opinion.

Petitioners contend the "in addition to" language employed by the court of 

appeals allows Respondents to pursue their aiding and abetting claim on the theory

Petitioners should have disclosed the Stevenson brothers' withdrawals to 

Respondents, or at least to Turner. Petitioners argue such disclosure is prohibited 

by 26 U.S.C. § 7216 (2000) and S.C. Code Ann. § 40-2-190 (Supp. 2004).3

Respondents argue the "related taxpayer" exception in 26 C.F.R. § 301.7216-

2(b)(1)-(2) (2001)4 allowed Petitioners to make the disclosure to Respondents. We

agree with Petitioners. 

2 We take no position as to whether other facts, if proven, would also support a claim 

for aiding and abetting a breach of fiduciary duty.

3 Petitioners cite section 40-2-190(A) of the South Carolina Code for the proposition 

that their disclosure of the withdrawals to Respondents was prohibited. Respondents 

contend Petitioners failed to cite this statute in their arguments before the trial court

and the court of appeals, and, therefore, Petitioners are unable to now rely on this 

statute as authority. We first note the effective date of current section 40-2-190(A)

was July 22, 2004—several years after the allegedly improper withdrawals began 

but more than a year before they ended. It appears the text of current section 40-2-

190(A) did not exist elsewhere in the South Carolina Code prior to July 22, 2004; at

the least, Petitioners have not cited to any similar statutory language existing prior 

to this date, and we have been unable to find any such language. Whatever the case,

we find the applicable federal authority as discussed herein is sufficient to support 

our conclusions. 

4 Parties cite to the "related taxpayer" exception as 26 C.F.R. § 301.7216-2(e)(1)-(2); 

however, during the time period in which the alleged aiding and abetting occurred, 

the "related taxpayer" exception was located in subsection (b)(1)-(2). The "related

taxpayer" exception was not moved to subsection (e)(1)-(2) until the 2008 version 
 

 

 

 

 

 

Petitioners were prohibited by 26 U.S.C. § 7216 from disclosing the

Stevenson brothers' withdrawals to Respondents because this statute prohibits any 

person who is engaged in the business of preparing tax returns—here, Petitioners—

from disclosing to a third party any information furnished for, or in connection with, 

the preparation of any such return and imposes criminal sanctions for a violation of 

this prohibition. Respondents contend the "related taxpayer" exception set forth in 

26 C.F.R. § 301.7216-2(b)(1)-(2)5 allowed for disclosure to Turner, as Petitioners 

also prepared her individual tax returns. We disagree. The exception does not apply, 

as the exception is triggered only when the tax preparer is engaged in "preparing a 

tax return of a second taxpayer" and when the subject information was used in 

preparing the second taxpayer's returns. 26 C.F.R. § 301.7216-2(b)(1)-(2). While 

Turner may have been a "second taxpayer," there is no evidence any information 

pertaining to the illicit withdrawals was used "in preparing" her personal returns. 

Respondents also claim Petitioners should have disclosed the withdrawals to 

Turner because she was designated as Mother's attorney-in-fact under Mother's 2001 

power of attorney. Respondents correctly state that the holder of a power of attorney

steps into the shoes of the grantor and is basically the alter ego of the grantor. See 

Muller v. Bank of Am., N.A., 12 P.3d 899, 904 (Kan. Ct. App. 2000) (citing 3 Am. 

Jur. 2d, Agency § 23). However, since Kerrison notified Carter, Mother's personal 

attorney, of the withdrawals, that was sufficient to notify Mother. See Crystal Ice 

Co. of Columbia, Inc. v. First Colonial Corp., 273 S.C. 306, 309, 257 S.E.2d 496, 

497 (1979) ("It is well established that a principal is affected with constructive 

knowledge of all material facts of which his agent receives notice while acting within 

the scope of his authority."). Mother was Carter's client and was competent at the

time Kerrison informed Carter about the withdrawals. While Kerrison could have 

disclosed any information to Turner that was disclosed to Mother through Carter, 

the power of attorney did not create a separate and independent obligation on the 

part of Petitioners to disclose the withdrawals to Turner in her capacity as Mother's

attorney-in-fact. The fact that disclosure to Turner as attorney-in-fact would have 

resulted in her being individually aware of the withdrawals is of no import. 

B. The Aiding and Abetting Claim Survives Mother's Death.

of the Code of Federal Regulations. See 26 C.F.R. § 301.7216-2(e)(1)-(2) (2008). 

Nevertheless, the language is substantially the same. 

5 See note 4.
 

 

 

Petitioners contend they are entitled to summary judgment on the ground that 

Respondents' claim for aiding and abetting a breach of fiduciary duty abated on the 

death of Mother because the claim rests on a theory of fraud and deceit.6

 We

disagree. 

Section 15-5-90 of the South Carolina Code (2005) provides "[c]auses of 

action for and in respect to . . . any and all injuries to the person or to personal

property shall survive both to and against the personal or real representative . . . of a

deceased person . . . any law or rule to the contrary notwithstanding." However, 

South Carolina recognizes several exceptions to the survivability of a claim, 

including an exception for fraud. See Mattison v. Palmetto State Life Ins. Co., 197 

S.C. 256, 15 S.E.2d 117 (1941). 

Petitioners first argue Respondents' claim for aiding and abetting does not

survive Mother's death because the essence of the claim is that Petitioners 

fraudulently failed to disclose to Respondents the Stevenson brothers' fraud and 

deceit. This argument is unavailing, as we have determined Petitioners had no 

obligation to disclose the Stevenson brothers' withdrawals to Respondents. 

Nondisclosure to Respondents—fraudulent or otherwise—is not part of 

Respondents' aiding and abetting claim.

Second, Petitioners argue the aiding and abetting claim does not survive 

Mother's death because the claim is based on the Stevenson brothers' fraudulent 

conduct against Mother, the sole lifetime beneficiary of the trusts. That argument is 

likewise unavailing. While the Stevenson brothers' alleged fraud and deceit 

committed against Mother will be in evidence, Respondents' claim for aiding and 

abetting is based on the Stevenson brothers' fraud and deceit committed against 

Respondents. The issues framed to this Court have been with regard to Respondents' 

individual claims as beneficiaries, not their claims as co-trustees or co-personal 

representatives of Mother's estate. Within the context of abatement, the fact that

Mother may have been a victim of the Stevenson brothers' fraud and deceit does not 

impact the viability of Respondents' individual claims. Their individual claims do 

6 Petitioners asserted this ground in their original motion, but it was not ruled upon 

by the trial judge. Petitioners asserted it as an additional sustaining ground before 

the court of appeals and then again in their petition for rehearing, but it was not ruled 

upon by the court of appeals. They have raised the issue again before this Court. 
not derive from damage sustained by Mother during her lifetime, but rather from 

damage they must prove they individually sustained as residual beneficiaries. 

CONCLUSION 

The decision of the court of appeals reversing the grant of summary judgment 

to Petitioners is affirmed as modified. 

AFFIRMED AS MODIFIED. 

BEATTY, C.J., KITTREDGE, HEARN, JJ., and Acting Justice Clifton

Newman, concur.