MOTION TO STRIKE

In response to Respondent’s Motion to Strike Notice of Intent to Appeal, and Appellant’s Appeal Brief, Appellant hereby files this Response in Opposition thereof and states as follows:

FACTS

The facts giving rise to the Case began on or about July 7^th, 2020, when Doyle Elton Pierce- deceased, executed the last will and testament in compliance with SC Code § 62-2-502 (2017). The will was in writing and was signed by at least two disinterested individuals, each of whom witnessed either the signing or the testator’s acknowledgment of the signature or of the will.

Three months later, the decedent died at Prisma hospital, Oconee County on September 14th, 2020.

On or about September 23rd, 2020, the Appellant was legally appointment Personal Representative of the Estate of Doyle Elton Pierce.  Consequently, the Respondent contested the will and testament of the Deceased dated July 7, 2020, with the Probate Court. He filed Case No. 2020ES3700532 (In the matter of: Doyle Elton Pierce- deceased) at the Probate Court for Oconee County, SC.

On or about August 18^th, 2021, the Probate Court ruled to set aside the will. Appellant consequently filed an Appeal to the instant Court.

On or about November 12^th, 2021, the Respondent filed a Motion to Strike the Notice of Intent to Appeal, and the Appeal Brief. In the Motion, the Respondent alleged inter alia, that Appellant, as personal representative, is precluded from representing the decedent’s estate pro se.

Appellant hereby submits this opposition thereto.

ARGUMENTS

1. Appellant brought the appeal in her own capacity and not as the personal representative of the decedent’s estate.

Appellant contends that the right to file a lawsuit pro se is one of the most important rights under the constitution and laws of the United States of America. See Elmore v. McCammon (1986) 640 F. Supp. 905. According to 28 U.S. Code § 1654, for instance, “parties may plead and conduct their own cases personally or by counsel” (Emphasis added). 

It is trite law that no person can be deprived of life, liberty, or property, without due process of law. See U.S. Const. Am. V. In the instant case, Appellant appealed the Probate Court’s decision that set aside the decedent’s original will, which setting aside deprived and/or interfered with Appellant’s right(s) in the estate.

Appellant contends that “there can be no sanction or penalty imposed upon one because of his exercise of Constitutional Rights.” Sherar v. Cullen, 481 F. 2d 946 (1973). Therefore, challenging and/or objecting her pro se status in the instant case amounts to a curtailment of her Constitutional rights. It should be noted that “constitutional ‘rights’ [including the right to defend oneself] would be of little value if they could be indirectly denied.” Gomillion v. Lightfoot, 364 U.S. 155 (1966), cited also in Smith v. Allwright, 321 U.S. 649.644.

Besides, In re Otterness, 232 N.W. 318 (Minn. 1930) (holding executors, administrators and guardians are authorized to conduct proceedings in probate in matters where his personal rights as representative are concerned, as, for instance, where his account as representative is in question or misconduct is charged against him as representative (Emphasis added). In this instant case, the legacy, name, and reputation of the appellant are unfairly under attack on the infamous probate judgment. It is therefore the appellant’s right to defend herself, Pro se. 

Furthermore, the Appellant’s attorney in the Probate Court was compromised by the Respondent’s attorney, thus making Appellant lose the case. Appellant therefore lost confidence in having any attorney handling affairs of the decedent’s estate.

• The personal representative of an estate has standing to represent the estate in litigation

It has been held that “an ‘Estate’ is not an entity that can be a party to litigation. It is the personal representative of the estate, in a representative capacity, that is the proper party. ” Ganske v. Spence, 129 S.W.3d 701, 704 n.1 (Tex. App. 2004) (citations omitted); see also § 733.608, Fla. Stat. (2016) (describing the general power of the personal representative); Reopelle v. Reopelle, 587 So.2d 508, 512 (Fla. 5th DCA 1991) (highlighting that only the personal representative of a decedent’s estate would have the right to intervene in litigation for the benefit of all the beneficiaries of the decedent’s estate); 31 Am. Jur. 2d Executors and Administrators § 1141 (2016) (“Since estates are not natural or artificial persons, and they lack legal capacity to sue or be sued, an action against an estate must be brought against an administrator or executor as the representative of the estate.”); 18 Fla. Jur. 2d Decedents’ Property § 721 (2016) (same).

It follows; therefore, Appellant, as the personal representative, has the standing to represent the estate in litigation over any matter affecting the estate; and rights thereof.

• Judicial estoppel bars this Court from accepting Respondent’s Motion to Strike

Judicial estoppel is grounded in the principle of protecting the integrity of the court system by barring litigants from adopting inconsistent positions in more than one legal proceeding. The Supreme Court of South Carolina adopted the doctrine of judicial estoppel in Hayne Federal Credit Union v. Bailey, stating, “Judicial estoppel precludes a party from adopting a position in conflict with one earlier taken in the same or related litigation.” 327 S.C. 242, 251, 489 S.E.2d 472, 477 (1997).

The Hayne court further explained “the purpose or function of the doctrine is to protect the integrity of the judicial process or the integrity of courts rather than to protect litigants from allegedly improper or deceitful conduct by their adversaries.” 327 S.C. at 251, 489 S.E.2d at 477 (relying on 31 C.J.S. Estoppel Waiver § 139, at 593 (1996)). See also Hawkins v. Bruno Yacht Sales, Inc., 342 S.C. 352, 368, 536 S.E.2d 698, 706 (Ct.App. 2000) (“Judicial estoppel focuses on the relationship between the litigants and the judicial system. “). Judicial estoppel comes into play when the court is forced to take a position based on a factual assertion.” Hawkins v. Bruno Yacht Sales, Inc., 353 S.C. 31, 43, 577 S.E.2d 202, 208 (2003).

Appellant contends that she was permitted by the Probate Court to represent herself pro se in the hearing of her Motion for New Trial on or about October 1, 2021. In the respondent’s email to the Judge on September 1, 2021, He wrote: Judge Johns……. In addition, please advise as to whether Ms. Pierce is permitted to proceed in the Motion for New Trial proceeding without legal counsel. In his response to the respondent, the judge wrote…………. I do not see why she can’t represent herself as a ‘pro se’ litigant.

  Besides, the instant court accepted and filed Appellant’s Notice of Intent to Appeal and the Appeal Brief. Appellant also incurred pecuniary cost of $150 for the said filings. The Respondent is fully aware that the Probate Court allowed Appellant to represent herself pro se in the said hearing of her Motion for New Trial. Respondent is therefore precluded from challenging Appellant’s pro se status. (Emphasis added). 

CONCLUSION

For the foregoing reasons and for such other reasons as the Court finds to be good and sufficient cause, Respondent’s Motion to Strike should be denied.

                                            Respectfully submitted this 14^th day of November 2021

CERTIFICATE OF SERVICE

I, Dorothy Pierce, certified on this 15^th day of November 2021, I deposited a true copy of the respondent by placing the documents with prepaid postage in the United States mailbox address.: Richard H. McDuff, Esq. Merrell, Jahn & McDuff, P.A.119-B Professional Park Drive, Seneca, South Carolina 29678.

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