THE STATE OF SOUTH CAROLINA
In The Supreme Court

Joanne Levesque Gignilliat, Appellant,

v.

Gignilliat, Savitz & Bettis, L.L.P., Respondent.

Appeal from Richland County
G. Thomas Cooper, Jr., Circuit Court Judge

Opinion No.  26735
Heard April 8, 2009 - Filed October 12, 2009  

AFFIRMED

Thomas L. Moses and Timothy J. Monahan, both of Monahan & Moses, of Greenville, for Appellant.

John Thomas Lay and Jenkins M. Mann, both of Ellis Lawhorne & Sims, of Columbia, and W. Duvall Spruill, of Turner, Padget, Graham & Laney, of Columbia, for Respondent.

JUSTICE BEATTY:  Joanne Levesque Gignilliat (Mrs. Gignilliat) appeals from an order granting summary judgment to Gignilliat, Savitz & Bettis, L.L.P. (GSB) on her claims arising from GSB’s continued use of her husband’s name in the law firm name after his death.  We affirm.

I.  FACTS

Julian Gignilliat (Gignilliat) was a founding partner in 1968 of what became the GSB law firm.  The firm did not have a written partnership agreement.  Gignilliat was diagnosed with a serious illness in 2001.  Gignilliat died on June 22, 2002.  It is undisputed that Gignilliat, cognizant of his terminal illness, requested that GSB continue to use his name after his death and that GSB not be sued.[1]

The Personal Representative (PR) of the Estate of Julian Gignilliat filed an action against GSB and six partners in the firm at Mrs. Gignilliat’s request.  The PR alleged GSB continued to use and profit from the Gignilliat name without the consent of Gignilliat’s estate and without making compensation for its use. 

A Consent Order was filed wherein the PR of the estate assigned Mrs. Gignilliat the sole right to any of the estate’s claims arising out of the complaint.  Subsequently, Mrs. Gignilliat filed an amended complaint naming herself as the plaintiff in which she sought a declaratory judgment regarding the defendants’ right to continue using the Gignilliat name without consent, and she asserted claims for (1) infringement on the right of publicity, (2) conversion, (3) unjust enrichment, and (4) quantum meruit.  She sought damages and an injunction preventing further use of the Gignilliat name without compensation.

The circuit court granted GSB’s motion for summary judgment, finding no genuine issues of material fact existed as to any of these claims.  The circuit court noted, "No South Carolina case has ever directly addressed whether a law firm may continue to use a deceased partner’s name."  Mrs. Gignilliat appeals, arguing the circuit court erred in granting summary judgment to GSB on all of her claims.[2]

II.  LAW/ANALYSIS

Rule 56(c) of the South Carolina Rules of Civil Procedure provides that a trial court may grant a motion for summary judgment "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law."  Rule 56(c), SCRCP.

"In determining whether any triable issues of fact exist, the court must view the evidence and all reasonable inferences that may be drawn from the evidence in the light most favorable to the non-moving party."  Brockbank v. Best Capital Corp., 341 S.C. 372, 378-79, 534 S.E.2d 688, 692 (2000).  An appellate court reviews the granting of summary judgment under the same standard applied by the trial court under Rule 56(c), SCRCP.  Id. at 379, 534 S.E.2d at 692.  "Summary judgment should not be granted even when there is no dispute as to evidentiary facts if there is dispute as to the conclusion to be drawn from those facts."  Id. at 378, 534 S.E.2d at 692.

A.  RIGHT OF PUBLICITY/WRONGFUL APPROPRIATION

Mrs. Gignilliat first contends the circuit court erred in granting summary judgment to GSB on her claim for infringement on the right of publicity.  We disagree.

In her amended complaint, Mrs. Gignilliat asserted a claim entitled "Infringement on the Right of Publicity," in which she alleged (1) she owns an enforceable right in the Gignilliat identity, (2) GSB is using some aspect of Gignilliat’s identity or persona (his surname) without permission and in a manner that makes Julian Gignilliat identifiable by GSB’s use, and (3) GSB’s use of the Gignilliat name is likely to cause damage to the commercial value of that persona.  Mrs. Gignilliat maintained she was entitled to compensation for the use of Gignilliat’s name by GSB and an injunction prohibiting its further use without just compensation.  

The circuit court granted GSB’s motion for summary judgment, finding South Carolina has not recognized the tort of infringement on the right of publicity.  The court noted South Carolina does recognize the tort of wrongful appropriation of personality, but stated Mrs. Gignilliat did not label her cause of action as wrongful appropriation and she would not be entitled to recovery under this theory, in any event. 

The court further ruled Mrs. Gignilliat was not entitled to any recovery for use of the Gignilliat name because her claims for damages concerned only the value of professional goodwill, which has no value apart from the individual professional.  The court also found the South Carolina Rules of Professional Conduct prevent