Nature of the Case
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Facts
HCC established a charitable remainder unitrust (Trust) between itself, as grantor, and D, as trustee. At the time the Trust was established, third-party defendant Robert C. Penland (Penland) was President of HCC and signed the Trust documents in that capacity. Penland was also a beneficiary of the Trust. HCC petitioned the Aiken County Probate Court for an order removing D as trustee and naming Penland as successor trustee. D was removed as trustee and Penland was appointed successor trustee. HCC filed suit in probate court against D individually and as a former trustee of the Trust. HCC captioned the action as one for 'Breach of Trust,' triable 'Non-Jury.' HCC's causes of action included breach of fiduciary duty of care, breach of fiduciary duty of loyalty, and one for an accounting. HCC wanted the restoration of any lost income, lost capital gain, and lost appreciation in value caused by the alleged breach. HCC also wanted all commissions and profits received on the Trust's purchases of annuities and returning those commissions to the Trust. The third cause of action is a classic cause of action for an accounting. D asserted a third-party claim against Penland, alleging that Penland's actions caused damages and D seeks equitable indemnity and contribution. Penland was removed as successor trustee, and Verenes was substituted as the named plaintiff as successor trustee of the Trust. D filed a demand for trial by jury. The probate judge denied D's demand. The circuit court affirmed and D appealed.
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