THOMAS v. GRAYSON
3/21/1994
Pursuant to Rule 228, SCACR, we agreed to answer the following questions certified by the United States District Court for the District of South Carolina:
1. Under South Carolina law, is the limitation period in
S.C. Code Ann. § 15-3-530 (6) on injuries arising from
wrongful death a condition precedent to the filing of an
action (i.e., a qualification or condition restricting
the right granted by the wrongful death statute) that would
2. Would the subsequent adoption of Rules 15(c)
(pertaining to the relation back of amendments) and 17 (a)
(pertaining to the substitution of the real party in
interest) of the South Carolina Rules of Civil Procedure
allow for the relation back of any amendment to the
complaint to assert the qualification in South Carolina
of the foreign personal representative in an action which
was otherwise timely?
3. Would the adoption of S.C. Code Ann. § 62-3-701,
pertaining to the time for accrual of duties and powers
of personal representatives, allow for the relation back
of a personal representative's acts in filing timely
FACTS
This action involves a Mrs. Thomas' complaint stated that she was the duly appointed personal representative of the estate of Vermon Thomas as established by the Michigan Probate Court.
The defendants answered claiming that Mrs. Thomas lacked capacity to sue because she failed to allege her qualification and/or appointment as personal representative in South Carolina. Subsequently, Mrs. Thomas filed with the Charleston County Probate Court an authenticated copy of her Michigan Probate Court appointment as personal representative. However, this was done after the three year period for commencing an action under the
ANALYSIS
The essence of the first certified question is whether it is a condition precedent to bringing a
An action for
Mrs. Thomas filed her complaint within the three year limitation period. However, she did not comply with S.C. Code Ann. § 62-4-205 by providing proof of her foreign appointment and bond prior to expiration of the limitation period for filing a
Under prior South Carolina law, Mrs. Thomas did not have the capacity to bring an action at the time the complaint was filed because she was not recognized as a personal representative. Formerly, an administrator appointed by a foreign jurisdiction had no legal capacity to sue under the act. Coburn v. Coleman, 75 F. Supp. 107 (W.D.S.C. 1947). The new probate code represents a departure from the common law requirement of local appointment by the court and the creation of a South Carolina estate as a condition precedent to acting in a lawful capacity as representative. No longer is the Probate Court required to determine the qualifications of a personal representative appointed in another state. S.C. Code Ann. § 62-4-205 (Supp. 1993). Nor is the Probate Court required to appoint and issue letters to a non-resident personal representative. S.C. Code Ann. § 62-4-204 (1987). Now, the foreign representative is approved upon providing proof of the foreign appointment and bond. S.C. Code Ann. § 62-4-205 (Supp. 1993). Under prior law, the probate court had discretionary powers to determine whether to qualify a foreign representative. Now the acts of the probate court regarding personal representatives appointed in another state are ministerial. The foreign personal representative in this case was validly appointed under Michigan law and was not required to be separately qualified in South Carolina but, merely needed to provide proof of her appointment and bond.
The rule prohibiting an amendment to relate
Page 1 2 3 South Carolina Personal Injury Attorneys