                     THE STATE OF SOUTH CAROLINA
                          In The Supreme Court

            Betty Fisher, on behalf of the estate of Alice Shaw-
            Baker, Petitioner,

            v.

            Bessie Huckabee, Kay Passailaigue Slade, Sandra Byrd,
            and Peter Kouten, Respondents.

            Appellate Case No. 2016-000320

       ON WRIT OF CERTIORARI TO THE COURT OF APPEALS

                          Appeal from Charleston County
                      J. C. Nicholson Jr., Circuit Court Judge

                               Opinion No. 27765
                 Heard October 19, 2017 – Filed February 28, 2018

                          AFFIRMED AS MODIFIED


            John Hughes Cooper, of the John Hughes Cooper, P.C., of
            Mount Pleasant, Lisa Fisher, of the Law Offices of Lisa
            Fisher, of Long Beach, California, pro hac vice, both for
            Petitioner.

            Evan Smith, of the Evan Smith Law Firm, LLC, of
            Charleston, and Warren W. Wills III, of the Law Office of
            W. Westbrook Wills III, of Folly Beach, both for
            Respondents.


JUSTICE FEW: The question we address in this appeal is who may bring a civil
action on behalf of the estate of a deceased person when the personal representative
of the estate is also a potential defendant in the action. The answer is found in section
62-3-614 of our Probate Code, which provides, "A special administrator may be
appointed . . . in circumstances where a general personal representative cannot or
should not act."

      I.     Facts and Procedural History

Alice Shaw-Baker lived in Charleston and had no immediate family. She allegedly
reached an agreement with Bessie Huckabee, Kay Passailaigue Slade, and Sandra
Byrd that if they would care for her in her final years, she would leave them the
assets of her estate. In her last will—executed in 2001—she left her entire estate to
Huckabee, Slade, and Byrd, and named Huckabee the personal representative.
Shaw-Baker died in February 2009 at the age of seventy-nine.

Betty Fisher is Shaw-Baker's niece and closest living relative. Shortly after Shaw-
Baker's death, Fisher filed an action in probate court challenging the 2001 will and
the appointment of Huckabee as personal representative. Fisher removed the probate
action to circuit court. On May 14, 2009, Fisher filed what she called a "Motion for
Temporary Injunction" in the probate action in which she requested to remove
Huckabee as the personal representative. Fisher specifically alleged in the motion
"Shaw-Baker's estate has a survival action against Huckabee" as one of the reasons
Huckabee should be removed. As an alternative to the removal of Huckabee, Fisher
requested that attorney Frank Barnwell be appointed special administrator pursuant
to section 62-3-614 of the South Carolina Code (Supp. 2017). Fisher made no
suggestion, however, that the special administrator might bring a survival action.

On February 24, 2012, purporting to act as Shaw-Baker's "real representative,"
Fisher brought this action in circuit court against Huckabee, Slade, and Byrd, and
against Peter Kouten—a lawyer who represented the first three. Her primary
allegation in this action is that Huckabee, Slade, and Byrd breached their duty to
take suitable care of Shaw-Baker, causing Shaw-Baker to incur damages during her
lifetime. Fisher brought the action under the survival statute—section 15-5-90 of
the South Carolina Code (2005).

The defendants moved for summary judgment under Rule 56 of the South Carolina
Rules of Civil Procedure, claiming Fisher did not have standing to bring the survival
action. The record indicates the Motion for Temporary Injunction Fisher filed
almost three years earlier was still pending in the probate action at the time the
summary judgment motion was filed. However, Fisher never asked the circuit
court—in the probate action or the survival action—to appoint a special
administrator for the purpose of bringing the survival action. The circuit court
dismissed the action. The court of appeals affirmed. Fisher v. Huckabee, 415 S.C.
171, 781 S.E.2d 156 (Ct. App. 2015). We granted Fisher's petition for a writ of
certiorari to review the dismissal of the action.

      II.    Analysis

The question of who may bring a civil action arises under Rule 17(a) of the South
Carolina Rules of Civil Procedure, which provides, "Every action shall be
prosecuted in the name of the real party in interest." As the court of appeals has
recognized, the real party in interest is "'the party who, by the substantive law, has
the right sought to be enforced.' It is ownership of the right sought to be enforced
which qualifies one as a real party in interest." Bank of Am., N.A. v. Draper, 405
S.C. 214, 220, 746 S.E.2d 478, 481 (Ct. App. 2013). The substantive law governing
the estates of deceased persons is the South Carolina Probate Code. See generally
S.C. Code Ann. § 62-1-100(b)(1) (Supp. 2017) (providing "the [Probate] Code
applies to any estates of decedents"); § 62-1-301 (Supp. 2017) (providing "this Code
applies to (1) the affairs and estates of decedents . . . [and] (4) survivorship").

Under ordinary circumstances, the Probate Code grants the personal representative
the exclusive authority to bring civil actions—including a survival action—on behalf
of an estate. See § 62-3-715(20) (Supp. 2017) (stating a personal representative may
"prosecute or defend claims . . . for the protection of the estate"); § 62-3-703(c)
(Supp. 2017) (providing "a personal representative . . . has the same standing to sue
and be sued . . . as his decedent had immediately prior to death"); § 62-3-715(24)
(Supp. 2017) (stating a personal representative may "compromise and settle . . . all
claims and actions based on causes of actions surviving, to personal
representatives"); see also Carson v. CSX Transp., Inc., 400 S.C. 221, 242, 734
S.E.2d 148, 159 (2012) (explaining "a survival claim may only be filed by the
personal representative of the decedent's estate").

However, the Probate Code contemplates there will be "circumstances where a
general personal representative cannot or should not act," in which case the Probate
Code provides, "A special administrator may be appointed . . . ." § 62-3-614. The
Reporter's Comment to section 62-3-614 explains, "Appointment of a special
administrator would enable the estate to participate in a transaction which the general
personal representative could not, or should not, handle because of conflict of
interest."
The defendants' motion for summary judgment sought dismissal of the survival
action on the premise Fisher did not meet the real party in interest requirement of
Rule 17(a). The premise of the motion was correct because Fisher was neither the
personal representative nor a special administrator. However, Rule 17(a) provides:

             No action shall be dismissed on the ground that it is not
             prosecuted in the name of the real party in interest until a
             reasonable time has been allowed, after objection, for
             ratification of commencement of the action by, or joinder
             or substitution of, the real party in interest; and such
             ratification, joinder, or substitution shall have the same
             effect as if the action had been commenced in the name of
             the real party in interest.

As the Reporter's Note to the rule states, this sentence "is intended to prevent
forfeiture in those cases in which the determination of the proper party to sue is
difficult or when there has been an honest mistake." See also 6A Charles Alan
Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 1541
(3d ed. 2010) (this sentence of Rule 17(a) was added "to provide that the failure to
join the real party in interest at the commencement of the action does not require
dismissal").

Therefore, Rule 17(a) provided Fisher an opportunity to cure her failure to meet the
real party in interest requirement. If she had asked, the circuit court would have
been required to allow time for "ratification, joinder, or substitution" of the proper
party under Rule 17(a) instead of immediately dismissing the action. However,
Fisher did not ask for such time, and specifically, she never asked the circuit court
to consider whether a special administrator should be appointed under section 62-3-
614, nor did she mention her pending motion in the probate action to appoint one.
Under this circumstance, Rule 17(a) permitted the dismissal of the action. Cf. Patton
v. Miller, 420 S.C. 471, 488-89, 804 S.E.2d 252, 261 (2017) (holding "the circuit
court . . . erred by dismissing Patton's claims . . . [because] she did specifically ask
to take advantage of . . . 'ratification, joinder, [or] substitution'").

This case was litigated in confusion from the beginning. Fisher filed her complaint
in what she claimed was her capacity "as Real Representative for Alice Shaw-
Baker." The term "real representative" is found in the survival statute, which
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 . . . ." § 15-5-90. The circuit court, and later the court of
appeals, analyzed the issue as whether Fisher qualified as Shaw-Baker's real
representative. Neither court considered Rule 17(a). Although the result the courts
reached was not erroneous, the analysis was misplaced.

The confusion and misplaced analysis arose from the fact that our statutes contain
terms that no longer have the same significance under modern law they had when
they were originally used. For example, section 15-51-20 of the Wrongful Death
Act provides, "Every [wrongful death] action shall be brought by or in the name of
the executor or administrator of such person." S.C. Code Ann. § 15-51-20 (2005).
Prior to the enactment of our Probate Code, the terms "executor" and "administrator"
had specific meaning, and an "action for wrongful death . . . [could] be brought only
by the executor or administrator of such deceased person." Glenn v. E. I. DuPont
De Nemours & Co., 254 S.C. 128, 133, 174 S.E.2d 155, 157 (1970). Under the
Probate Code, however, the terms "executor" and "administrator" do not have
separate meaning, but are included within the defined term "personal
representative." See S.C. Code Ann. § 62-1-201(33) (Supp. 2017) (defining
"Personal representative" as "includes executor, administrator, . . ."). Therefore,
wrongful death actions must be brought by the personal representative, despite the
language "shall be brought by . . . the executor or administrator" that still appears in
section 15-51-20. Cf. Rutland v. S.C. Dep't of Transp., 390 S.C. 78, 81, 700 S.E.2d
451, 453 (Ct. App. 2010) (explaining the personal representative brought the
wrongful death action), aff'd as modified, 400 S.C. 209, 734 S.E.2d 142 (2012).

Similarly, the term "real representative"—whatever the term meant when the
survival statute was enacted in 18921—is no longer a meaningful term. Rather, the
substantive right to bring a survival action—like a wrongful death action—is
determined by the Probate Code. As the court of appeals recognized, "The real
representative . . . is mentioned nowhere in the modern Probate Code." 415 S.C. at
179, 781 S.E.2d at 160. Under the Probate Code, the right to bring a survival action
belongs initially to the personal representative. Carson, 400 S.C. at 242, 734 S.E.2d
at 159. However, "in circumstances where a general personal representative cannot
or should not act," the right to bring a survival action belongs to a special
administrator. § 62-3-614.

The dissent makes a tempting argument that we should reverse the circuit court and
remand, so Fisher may now seek appointment as a special administrator for the

1
    See Act No. 15, 1892 S.C. Acts 18.
purpose of bringing this action. Interestingly, Fisher does not make this argument.
The argument, however, raises the valid question of who bears the responsibility of
determining the identity of the real party in interest. To some extent, all participants
in the litigation—including the trial court—share this responsibility. Here, the
circuit court engaged Fisher in a discussion over who has the authority to bring the
action, and suggested that Fisher turn to the probate court for guidance. Fisher
declined. Ultimately, the circuit court is not responsible for doing the plaintiff's
work, and the burden of compliance with Rule 17(a) and its real party in interest
requirement falls to the plaintiff.

When the defendants' motion challenged whether Fisher complied with this
requirement, she responded by continuing to maintain her legally flawed position.
In other words, Fisher insisted that the validity of her claimed status be litigated, and
she never contemplated changing her status to comply with Rule 17(a). Fisher chose
the question for the court, and eventually, the court must rule on the question put
before it. Fisher put to the circuit court, the court of appeals, and now this Court,
the question of whether there is even such thing as a "real representative" under
modern law. The Probate Code provides the answer to her question—"No."

In Patton, by contrast, the plaintiff responded to the defendants' motion by
"specifically ask[ing]" to change her status through "'ratification, joinder, [and]
substitution'" so she could address the defendants' claim she was not the real party
in interest. 420 S.C. at 489, 804 S.E.2d at 261 (quoting Rule 17(a)). When the
circuit court in that case refused to permit her to do so, the court committed legal
error. 420 S.C. at 488, 804 S.E.2d at 261. Thus, the distinction between Patton and
this case is that the plaintiff in Patton placed before the circuit court the Rule 17(a)
question of whether she should be permitted to ratify, join, or substitute, while Fisher
held firmly to her flawed position that she was right in the first place.

      III.   Conclusion

The Probate Code defines who may act on behalf of the estate of a deceased person.
The Probate Code, therefore, is the substantive law by which the identity of the "real
party in interest" is determined for all civil actions brought on behalf of the estate of
a deceased person. When the personal representative of the estate cannot or should
not bring the lawsuit, a "special administrator" should be appointed pursuant to
section 62-3-614. After the defendants challenged Fisher's status as the real party in
interest, she did not ask for "a reasonable time . . . for ratification . . . or joinder or
substitution." In that circumstance, Rule 17(a) provides for dismissal, and the circuit
court did not err.
We VACATE that portion of the court of appeals' opinion discussing "real
representative," and AFFIRM the court of appeals AS MODIFIED.

KITTREDGE and JAMES, JJ., concur. HEARN, J., dissenting in a separate
opinion in which BEATTY, C.J., concurs.
JUSTICE HEARN: Respectfully, I dissent as I believe the proper approach is to
reverse and remand to the circuit court for consideration of whether a special
administrator should be appointed to bring this action. While I agree with the
majority's legal analysis of the terms "real representative" and "special
administrator," and that Petitioner should have filed a motion to have a special
administrator appointed, I part company with the majority's ultimate conclusion that
dismissal is warranted because Petitioner failed to specifically request this relief.

       The majority rightfully highlights the confusion that has plagued this case
from the beginning. The particular posture of the parties and the fact that the term
"real representative" still exists throughout our statutory framework contributed to
the confusion and may explain, at least in part, why Petitioner failed to bring this
action in the name of the real party in interest. However, holding this
misapprehension fatal to Petitioner's case is a harsh result that is not required by our
rules. Instead, I would hold that Rule 17(a), SCRCP, specifically allows the proper
party to assume prosecution of this case. Rule 17(a), SCRCP ("No action shall be
dismissed on the ground that it is not prosecuted in the name of the real party in
interest until a reasonable time has been allowed…."); Patton v. Miller, 420 S.C.
471, 487, 804 S.E.2d 252, 260 (2017) ("Under the Rules of Civil Procedure,
however, it is improper to immediately dismiss a lawsuit simply because it was not
brought in the name of the real party in interest."). Moreover, remanding this case to
permit Petitioner to seek an appointment of a special administrator is in keeping with
our general rules of construction. See Russell v. City of Columbia, 305 S.C. 86, 89,
406 S.E.2d 338, 339 (1991) ("Our courts have held that pleadings in a case should
be construed liberally so that substantial justice is done between the parties.").
Although Petitioner did not specifically ask the circuit court to appoint a special
administrator, the continued use of the term "real representative" in the survival
statute appears to make this request unnecessary. Only today, with this opinion, does
this Court clarify that the term "real representative" is no longer legally viable in
actions like this.

       Furthermore, there can be no question that Petitioner was seeking to pursue a
survival action, thus warranting the appointment of a special administrator because
the real party in interest—the personal representative—was the defendant. Patton,
420 S.C. at 489, 804 S.E.2d at 261 ("[T]he Rules were never intended to trap a party
simply for not using the proper words or rule number to describe the applicable legal
principal."). Because a remand has no effect on the merits of the underlying claim,
any prejudice to the defendants would be minimal. Id. at 492, 804 S.E.2d at 263
("While permitting the amendment would cause the defendants to face the merits of
the amended claim, the defendants' opportunity to defend the claim on the merits
was no different than it would have been if [Petitioner] had originally brought the
claim in [the proper] capacity.").

       I believe that the clear import of Rule 17(a), SCRCP, together with our
jurisprudence favoring the resolution of suits on their merits, point to a different
result than that reached by the majority. Id. at 488, 804 S.E.2d at 261 ("The purpose
of [Rule 17(a), SCRCP] is to avoid precisely what occurred here––the unnecessary
procedural dismissal of a lawsuit the court should resolve on the merits. As the
Reporter's Note to the rule indicates, this sentence 'is intended to prevent forfeiture
in those cases in which the determination of the proper party to sue is difficult or
where there has been an honest mistake.'"). To deny Petitioner the relief she seeks
here, where there is no suggestion that her failure to use the correct nomenclature
was anything other than an honest mistake, elevates form over substance and
unnecessarily deprives her of her right to have this matter heard on its merits.
Therefore, I would reverse and remand for the circuit court to consider whether a
special administrator should be appointed.

      BEATTY, C.J., concurs.
