Civil Practice – Statute of Limitations – Exercise of Reasonable Diligence

Appellant Bierer and Associates claims were barred as a matter of law and the trial court did not err by granting Respondents’ motions for summary judgment.

We affirmed the trial court’s grant of Respondents’ motions for summary judgment.

This case centered around the actions of Jan Kennerly, who worked for Bierer from 2003–2018. Beginning in 2009, Kennerly served as a national sales representative for Bierer. The issues in this case arose because, while in this role, Kennerly entered into employment contracts with other companies, including Travis and Trystar, allegedly without Bierer’s knowledge or approval and against Bierer’s employment policy.

In 2013, Kennerly began working for Travis as an independent sales representative and also entered into an employment agreement with Trystar. After learning Kennerly was in fact a Travis employee, Bierer called Trystar and discovered that Kennerly was also employed by Trystar. Owner Walter Bierer fired Kennerly that same day.

Bierer filed an initial complaint against Kennerly in September 2018. On April 15, 2021, Bierer added Travis and Trystar (in addition to others) as defendants. In its Third Amended Complaint, Bierer brought claims against Travis and Trystar for aiding and abetting breach of fiduciary duty, tortious interference with existing contractual relations, tortious interference with prospective business arrangements, unjust enrichment, common law unfair competition, and violation of the South Carolina Trade Secrets Act. Bierer alleged it discovered its claims against Travis and Trystar on July 10, 2018, the day it made two phone calls. Travis and Trystar both moved for summary judgment, arguing Bierer’s claims against them were barred by statutes of limitations1 because Bierer was on notice of these claims years before the statutory look-back date of April 15, 2018. Bierer asserted Kennerly fraudulently concealed his employment and that this tolled the statutes of limitations. The trial court granted both motions, finding Bierer was on notice of its potential claims as early as 2013 and as late as 2015.

Because Bierer filed its Third Amended Complaint, which named Travis and Trystar as defendants, on April 15, 2021, the statutes of limitations bar any claims that accrued before April 15, 2018. We found that reasonable diligence would have revealed to Bierer the existence of possible claims well before this date. Bierer’s claims against Travis and Trystar accrued at some point between 2013 and 2016. Therefore, Bierer’s claims were barred as a matter of law and the trial court did not err by granting Travis’s and Trystar’s motions for summary judgment.

Kennerly began to exhibit behaviors as early as 2012 that evidenced an intent to distance himself from Bierer, such as transferring his email and phone from the company account to personal accounts, submitting fewer receipts and other reports, and openly conducting business with manufacturers. Bierer contended it never suspected misconduct because it accepted Kennerly’s “benign explanation” for these actions. However, Walter emailed Kennerly the following in October 2015: “I see your lack of reporting your activities (itinerary and reports) as a symptom of a larger issue which is your lack of accountability to anyone and everyone in our company including me. More and more, I am beginning to wonder why I am paying you large sums of money to disappear for weeks at a time. For years I have trusted you were always doing the “right thing” but my trust is waning . . . . I think it may be time for you to begin looking for employment elsewhere unless you can think of some way to resolve and reverse all the issues mentioned.” This email suggests Bierer had notice of potential claims involving Kennerly. It does not matter that Bierer was unaware of Kennerly’s specific misconduct involving Travis and Trystar. The pertinent question is whether Bierer was on notice of some claim against another party. The content and tone of Walter’s email illustrates Bierer’s suspicions about Kennerly’s conduct. Had Bierer exercised reasonable diligence to investigate Kennerly’s activities at this time, it could have discovered its claims against Travis and Trystar. When viewed alongside the additional evidence, no genuine issue exists as to whether Bierer’s claims accrued prior to April 15, 2018.

Travis submitted it consistently presented Kennerly to the public as its sales representative. A biography of Kennerly in a newsletter described that he “has worked for [Bierer] as an engineering and operations manager for 15 years and Travis UGD for 2 years.” Bierer could have discovered its claims against Travis when it first saw the advertisement for a conference that described Kennerly as a Travis employee, which occurred years prior to 2018. Bierer’s claims against Travis accrued when it first discovered the newsletter that listed Kennerly as a Travis employee, and there is no genuine issue that this occurred before April 15, 2018. Thus, the statutes of limitations bar Bierer’s claims against Travis.

Affirmed.

Bierer and Associates Inc. v. Kennerly (Lawyers’ Weekly No. 012-037-25, 10 pp.) (Per Curiam) Appealed from Richland County Circuit Court (R. Lawton McIntosh, J.) James Mixon Griffin and Margaret Nicole Fox, both of Griffin Humphries LLC, of Columbia, for Appellant. Brian C. Duffy and Blake Abernethy McKie, both of Duffy & Young, LLC, of Charleston, and John W. Ursu, of Minneapolis, all for Respondent Trystar LLC. Lyndey Ritz Zwing Bryant, of Adams and Reese LLP, and John Fisher Beach, of John Beach Mediation, LLC, both of Columbia, for Respondent Travis Pattern & Foundry, Inc. South Carolina Court of Appeals Unpublished