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SC Court of Appeals Holds that Intervenor Rights Trump Plaintiff's

Order which adds a party is really an order granting intervention

2016 Case Notes: Commercial Litigation

December 9, 2016


The South Carolina Court of Appeals recently released the decision of Dorn v. Cohen, Op. No. 5432 (S.C.Ct. App. filed Aug. 3, 2016)(Shearouse Adv.Sh. No. 31). In Dorn, the husband of an incapacitated woman sued to remove her parents as guardians and trustees of her special needs trust.

Proceedings & Appeal

Early in the proceedings, the probate court appointed a guardian ad litem and an attorney for the incapacitated wife, both of whom fully participated in pre-trial discovery and were present at the trial and cross-examined witnesses.  After the trial on the husband’s petition, the probate court ordered the incapacitated wife be added as a party defendant. On appeal, the husband argued that adding his incapacitated wife as a party deprived him of the substantial right of “bringing [his] case against the defendant of [his] own choosing.”

In affirming the probate court’s order, the Court of Appeal characterized the decision as granting a motion to intervene, and an order granting a motion to intervene does not affect a substantial right. (citing Duncan v. Gov't Emps. Ins. Co., 331 S.C. 484, 485, 449 S.E.2d 580, 580 (1994)).  The Court of Appeals also acknowledged, pursuant to Rule 19 and prior case law, “it is indispensable that the beneficiaries be made parties to any proceeding brought for the purpose of adjudicating their interest.”  Id. (quoting Hood v. Cannon, 178 S.C. 94, 99–100, 182 S.E.2d 306, 308 (1935)).

The husband argued the trustees/guardians of his wife adequately represented her interests.  In rejecting this argument, the Court relied on the distinction between the trustees as guardians and the probate court-appointed guardian ad litem:

A “guardian” is one given the power and charged with the duty of taking care of a person who is considered incapable of administering his or her own affairs and of managing his or her property rights. A “guardian ad litem,” on the other hand, is one authorized to prosecute on behalf of or defend an incapacitated person in any suit to which the incapacitated person may be a party and to protect his or her interests in the particular litigation. 

Id. at 27.  Because the wife’s guardians/trustees were sued by her husband, the probate court had to appoint a guardian ad litem to address the “potential conflict of interest” raised by the question of “whether Trust funds were used to satisfy [the wife’s] special needs versus [the guardians’] perception of [her] needs.”  Id.  Finally, the Court of Appeal held the husband would suffer no undue prejudice by adding his incapacitated wife as a party.  The probate court was “flexible with the parties’ presentation of their cases” including the opportunity to recall witnesses and call rebuttal witnesses.


Because the Court of Appeals characterized the probate order as a motion to intervene, the Supreme Court’s precedent under Duncan, supra, dictated the Order was not immediately appealable.  

Bruce Wallace practices in the business and consumer litigation group.  He represents a variety of banking and financial institutions in real estate litigation, commercial litigation, and mortgage foreclosures. He also represents insurers and corporate clients in bad faith and coverage issues, professional liability, business litigation (including  disputes involving partnerships, limited liability companies, and closely held companies), and probate litigation matters (including trusts and estates)