Brown v. Brown

740 S.E.2d 507, 402 S.C. 202, 2013 WL 1223390, 2013 S.C. App. LEXIS 77
CourtCourt of Appeals of South Carolina
DecidedMarch 27, 2013
DocketAppellate Case No. 2012-206508; No. 5104
StatusPublished
Cited by1 cases

This text of 740 S.E.2d 507 (Brown v. Brown) is published on Counsel Stack Legal Research, covering Court of Appeals of South Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Brown v. Brown, 740 S.E.2d 507, 402 S.C. 202, 2013 WL 1223390, 2013 S.C. App. LEXIS 77 (S.C. Ct. App. 2013).

Opinion

FEW, C.J.

Gregory Brown brought this action for partition of real property that he and his five siblings owned together, and for an accounting of expenses he paid to preserve the property. The master-in-equity ordered the five siblings to pay Gregory their share of the expenses, partitioned the property by sale rather than in kind, and awarded Gregory attorney’s fees and costs. The siblings appeal those decisions. We affirm the accounting decision, reverse the partition decision, vacate the award of fees and costs, and remand.

I. Facts and Procedural History

Willie Brown Sr. died in June 2005, leaving a will that devised all his assets to his six children. The will named Gregory as the estate’s personal representative. The estate’s assets included personal property and two parcels of real property — the Clarkson property and the Dry Branch property. The Clarkson property is bounded on two sides by public roads. The Dry Branch property is landlocked but can be accessed using an easement over an adjoining piece of land. Acting in his capacity as personal representative, Gregory executed deeds in 2006 conveying equal, undivided shares of the Clarkson and Dry Branch properties to himself and his siblings.

As personal representative, Gregory managed the estate’s income, property, and expenses. Although the estate received some income from various sources, it did not have sufficient funds to pay all its expenses. The siblings gave Gregory money to help pay the estate’s expenses.

In 2005, before Gregory conveyed the properties, he began paying the taxes, mortgage debt, and utility bills with his own money. He continued to do this for several years after he and his siblings took title to the properties. He also performed maintenance on the properties, for which he charged his siblings a fee. The parties have been unable to agree on how much, if anything, the siblings owe Gregory for their share of these expenses.

For several years, the parties attempted unsuccessfully to reach an agreement on how to divide the real properties among them. In 2009, Gregory filed a complaint asking the [206]*206court to partition the properties either in kind or by sale.. He also asked for an accounting of how much money his siblings owed him for their share of the expenses he incurred on the properties. The master conducted a trial and issued an order. As to the accounting cause of action, the master ordered each sibling to pay Gregory $5,171.15 as his or her share of the expenses. As to partition, the master determined that equitably dividing the properties into smaller parcels would be impracticable, and therefore he ordered the properties be sold at a public sale. Finally, the master ordered each sibling to pay Gregory $3,583.88 as his or her share of Gregory’s attorney’s fees and costs. The siblings filed a motion to alter or amend the judgment or for a new trial. The master denied the motion.

II. Accounting

In making his accounting decision, the master refused to consider anything he found unrelated to the expenses of the Clarkson and Dry Branch properties. The siblings argue the master erred by not taking several things into account.

First, the siblings claim the funds they gave Gregory were contributions for the estate’s expenses and for the parties’ shared expenses related to owning the properties. The master found the contributions were purely for estate expenses, which meant the probate court had exclusive jurisdiction over any dispute about the contributions. See S.C.Code Ann. § 62-l-302(a)(l) (2009) (providing the probate court exclusive original jurisdiction over all subject matter related to estates of decedents). We find the master correctly determined the siblings’ payments were contributions for estate expenses, not contributions toward their share of their expenses as owners of the properties. Gregory testified some of his siblings “contributed their equal portion for the burial expenses, which whs agreed upon.” Vivian testified, “Ever since we started this our disagreement with Greg has been how much we actually owe him for the expenses of the estate, and even though I’m hearing otherwise today, that’s what I thought we were here for....” She also testified the siblings offered to help Gregory with bills he had to pay as the personal representative of the estate.

[207]*207Second, the siblings claim- Gregory converted several items of personal property from the estate to which they were entitled under the will. They argue the master should have reduced their liability to Gregory by the value of their interests in the items. We find the master properly declined to consider the personal property. A dispute over conversion of estate property would be for the probate court to decide. See § 62-l-302(a)(l). To the extent the siblings are arguing the conversion occurred after they became owners of the personal property, the master found, the evidence did not support the conversion claim. Gregory testified he is holding the items for safekeeping because several things had been stolen from Mr. Brown’s house after he died. Given the conflicting characterizations of Gregory’s intent regarding the personal property, the master’s finding contains an implicit determination that Gregory’s testimony was credible. We find no error in the master’s choice to believe Gregory over his siblings. See Clardy v. Bodolosky, 383 S.C. 418, 424, 679 S.E.2d 527, 530 (Ct.App.2009) (stating the broad'standard of. review in equitable actions “does not require this-court to ignore the findings below when the trial court was in a better position to evaluate the credibility of the witnesses” (citation and quotation marks omitted)).

The siblings assert two additional errors that we do not address. They argue the master erred in considering releases they signed because the releases were never made part of the record below. The master considered the releases as an alternative basis for his ruling. Our decision to affirm the ruling for the reasons described above makes it unnecessary to address this argument. See Fesmire v. Digh, 385 S.C. 296, 315 n. 10, 683 S.E.2d 803, 814 n. 10 (Ct.App.2009) (declining to address appellant’s arguments because court’s decision on other issues disposed of the appeal). The siblings also argue the master should have taken into account money Gregory received from third parties while acting as personal representative, as- well as the value of scrap metal a family acquaintance removed from the properties and sold. This argument is not preserved because the master did not rule on it and the siblings did. not raise it in their motion to alter or amend. See Elam v. S.C. Dep’t of Transp., 361 S.C. 9, 24, 602 S.E.2d 772, 780 (2004) (stating that when a party has raised an [208]*208issue or argument to the court, but the court did not rule on it, a party must file a motion to alter or amend in order to preserve it for appellate review).

III. Partition

A trial court may partition jointly held property in kind, by allotment, or by sale. S.C.Code Ann. § 15-61-50 (2005).

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Bluebook (online)
740 S.E.2d 507, 402 S.C. 202, 2013 WL 1223390, 2013 S.C. App. LEXIS 77, Counsel Stack Legal Research, https://law.counselstack.com/opinion/brown-v-brown-scctapp-2013.