THIS OPINION
HAS NO PRECEDENTIAL VALUE. IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN
ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 268(d)(2), SCACR.
THE STATE OF SOUTH CAROLINA
In The Court of Appeals
In the Estate
of: Margaret S. Connor,
Leroy W. Connor
and Yvonne C. Austin, Appellants,
v.
Stephen M.
Slotchiver, as Special Administrator of the Estate of Margaret S. Connor, Respondent.
Appeal From Charleston County
Deadra L. Jefferson, Circuit Court Judge
Unpublished Opinion No. 2009-UP-501
Heard September 2, 2009 Filed October
29, 2009
AFFIRMED
Bernard Fielding, of Charleston, for Appellants.
John Massalon, of Charleston, for Respondent.
PER
CURIAM: Leroy
Connor and Yvonne Austin (collectively Appellants) appeal the circuit court's
order affirming the probate court's disposition of the estate of their mother,
Margaret S. Connor (Margaret). They argue the circuit court erred in affirming
the sale of Margaret's interest in a funeral home business and property, in
awarding attorney's fees, in refusing to allow Appellants' collateral attack,
and in failing to recognize Appellants' priority of appointment as Margaret's
conservators and as personal representatives of her estate. We affirm.
FACTS
Appellants' mother,
Margaret, experienced a decline in her mental faculties beginning in the late
1990s and was adjudged incapacitated in 2003. The probate court appointed
Family Services, Inc. (FSI) as her conservator and Leroy Connor as her
guardian. In 2004, after Connor transferred some of Margaret's real property
and money to himself in violation of a court order, the probate court held him
in contempt and removed him as guardian. In July 2004, FSI petitioned the
probate court to sell Margaret's interest in the funeral home business and the
property on which it operated (the Radcliffe property) to Bryan McNeal, who
already owned a portion of the business, to generate money to pay for
Margaret's care.[1]
The probate court granted the petition subject to the properties' being
appraised to establish their values. FSI entered into sales contracts with
McNeal and hired appraisers to value the funeral home business and the
Radcliffe property.
On
August 4, 2004, Margaret died. On August 24, 2004, the probate court, on its
own motion, appointed attorney Stephen Slotchiver as special administrator of
Margaret's estate. The
probate court noted that it had previously found neither Connor nor Austin was
capable of serving as either guardian or conservator and concluded a special
administrator was necessary to protect the estate. The following month, the
probate court approved FSI's final accounting and discharged FSI as
conservator.
On December 20, 2004, the probate court directed Slotchiver to
conclude the sale of Margaret's interests in the funeral home business and the
Radcliffe property and to notify Appellants directly of his appointment as
special administrator of their mother's estate. According to Slotchiver, he
did so and closed both sales by the end of the month. On January 19, 2005,
Slotchiver provided copies of the closing documents to Brian Phelan, one of the
attorneys who purported to represent the Appellants.
In January 2006, Slotchiver filed with the probate court a
supplemental inventory and appraisement, a proposal for distribution of estate
assets, and a final accounting. Through their new counsel, attorney Bernard
Fielding, Appellants objected to this filing, requested Slotchiver's removal, and
demanded a hearing. In March 2006, Appellants petitioned the probate court to
appoint a family friend and Connor's employer, St. Julian S. Matthews, personal
representative of the estate. In a conference call that included Appellants,
Slotchiver sought and received the probate court's permission to hire counsel.
The probate court heard arguments in October 2006 and ruled on
January 30, 2007. In declining to remove Slotchiver and appoint Matthews in
his place, the probate court found removal was not in the best interest of the
estate. The probate court found its prior orders holding Connor in contempt
for the misuse of estate property, appointing Slotchiver as special
administrator, and approving the sale of Margaret's interest in the funeral
home business and the Radcliffe property were all final orders. Furthermore,
it found Appellants received written notice of the appointment order by
September 2004 and of the order of sale on December 20, 2004. According to the
probate court, the evidence clearly indicated that by January 19, 2005,
Appellants had actual knowledge of all decisions of which they complained, but they
neither objected nor appealed timely. Consequently, the probate court found it
lacked subject matter jurisdiction to consider the merits of Appellants'
arguments and overruled all of Appellants' objections as time-barred.[2]
Along with the final estate documents, in January 2006 Slotchiver
submitted a petition for payment of his fees as special administrator and of
his attorney's fees. Appellants again objected. On June 6, 2007, the probate
court overruled Appellants' objections and ordered payment of Slotchiver's and
his attorney's fees from estate assets.
Appellants appealed both the January 2007 and June 2007 orders to
the circuit court, which affirmed. This appeal followed.
STANDARD OF REVIEW
Appeals from the probate court are governed by the provisions of
the Probate Code. Matter of Howard, 315 S.C. 356, 360, 434 S.E.2d 254,
256 (1993). The Probate Code provides that a final order or decree of the
probate court may be appealed to the circuit court. S.C. Code Ann. § 62‑1‑308
(2009). Generally, appeal from an order of the circuit court is to the court
of appeals. S.C. Code Ann. § 14-8-200 (Supp. 2008).
An issue regarding statutory interpretation is a question of law. Univ. of S. Cal. v. Moran, 365 S.C. 270, 274-75, 617 S.E.2d 135,
137 (Ct. App. 2005). If the proceeding in the probate court is in the
nature of an action at law, neither the circuit court nor the appellate court
may "disturb the probate court's findings of fact unless a review of the
record discloses there is no evidence to support them." Neely v.
Thomasson, 365 S.C. 345, 349-50, 618 S.E.2d 884, 886 (2005). Likewise, in an equitable matter decided by the
probate court and affirmed by the circuit court, the "two-judge" rule
requires an appellate court to uphold the decision of the circuit court if any
evidence supports it. Dean
v. Kilgore, 313 S.C. 257,
259-260, 437 S.E.2d 154, 155 (Ct. App. 1993). Nevertheless, the question of subject
matter jurisdiction may be raised for the first time on appeal, even by the
court on its own motion. Ness v.
Eckerd Corp., 350 S.C. 399, 402, 566 S.E.2d 193, 195 (Ct. App. 2002). Moreover, although a judgment entered by a court without
subject matter jurisdiction is void, the improper exercise of jurisdiction,
while decidedly wrong, results in a judgment that is merely voidable and
must be challenged through direct appeal. S.C.
Dep't of Motor Vehicles v. Holtzclaw, 382 S.C. 344, 351, 675 S.E.2d 756, 759
(Ct. App. 2009).
LAW/ANALYSIS
I. Subject Matter Jurisdiction
of Probate and Circuit Courts
Appellants first appear to argue that because the
probate court did not comply with the provisions of the Probate Code regarding
the sale of a decedent's real property in aid of assets, it did not have subject
matter jurisdiction to order a sale of Margaret's interest in the funeral home.[3] Here, during Margaret's life, the probate court appointed a conservator who
entered into a contract with McNeal, a co-owner of the funeral home, to sell
Margaret's interest to him. The special administrator, the subject of this
appeal, completed the sale after Margaret's death in accordance with the
contract that had been approved by the court.
The authority of
the probate court to appoint conservators is found in Part 4 of the Probate
Code, entitled "Protection of Property of Persons Under Disability and
Minors." S.C. Code Ann. §§ 62-5-401 to -435 (2009). Section 62-5-408
provides that, after proper hearing to determine the necessity for the appointment,
the probate court may appoint a conservator who has all the powers over the
incompetent's estate, which the incompetent would have if not under disability,
to include the authority to enter into contracts. The contract between the
conservator and McNeal was approved by the probate court in July 2004.
Margaret died on
August 4, 2004, and Slotchiver was appointed special administrator on August
24, 2004. Thereafter, on December 20, 2004, the probate court authorized the
special administrator to complete the sale of the funeral home properties to
McNeal. The probate court found in its January 30, 2007, order "[t]hat
written notice of the Probate Court's Order of August 24, 2004 . . . was
provided to Mr. Connor and Ms. Austin when Mr. Slotchiver served formal notice
of his appointment on both Mr. Connor and Ms. Austin on December 20,
2004." The circuit court concurred in this finding of fact. We are thus
bound by their factual findings. See Dean v. Kilgore, 313 S.C. at
259-260, 437 S.E.2d at 155. We therefore conclude the probate court had
subject matter jurisdiction to decide these issues.
II.Sale of Funeral
Home Properties; Special Administrator
Appellants
additionally argue the circuit court erred in failing to find (1) title to the
funeral home properties passed to Margaret's heirs upon her death; (2) the sale
of the funeral home properties denied Appellants their constitutional rights to
due process; (3) a special administrator is equivalent to a personal
representative; and (4) Appellants enjoyed priority of appointment in
Margaret's conservatorship and estate. We disagree.
An
unchallenged ruling, "right or wrong, is the law of [the] case and
requires affirmance." Buckner v. Preferred Mut. Ins. Co., 255 S.C.
159, 161, 177 S.E.2d 544, 544 (1970). Moreover, a party's failure to appeal
within the time specified by statute deprives the appellate court of
jurisdiction over the appeal. Gallagher v. Evert, 353 S.C. 59, 68, 577
S.E.2d 217, 221 (Ct. App. 2002).
Both
the probate court and the circuit court found the probate court's initial
orders adjudicating the issues listed above were final and appealable.
Additionally, both the probate and circuit courts found Appellants' challenges
to those orders were procedurally barred due to Appellants' failure to appeal
within the time allotted by statute. Those rulings are the law of the case. See
Buckner, 255 S.C. at 161, 177 S.E.2d at 544. We affirm the circuit court's
conclusion that appeal of these rulings is untimely and therefore procedurally
barred. Because these issues are not properly before this court, we decline to
address the arguments on the merits.
III. Special
Administrator's Attorney's Fees
Appellants
next argue the circuit court erred in affirming the award of attorney's fees to
Slotchiver's counsel. We disagree.
Attorney's
fees incurred by the personal representative in the defense or prosecution of
estate litigation are reimbursable from estate assets. S.C. Code Ann. §
62-3-720 (2009). When an estate's assets are insufficient to pay all claims in
full, the Probate Code establishes the order in which the claims must be paid.
S.C. Code Ann. § 62-3-805 (2009). "[C]osts and expenses of administration,
including attorney's fees, and reasonable funeral expenses" must be paid
before any other claims. Id. However, upon petition by an interested
person, the probate court may review the reasonableness of compensation of
persons employed by the estate, including attorneys. S.C. Code Ann. §
62-3-721(a) (2009).
In
determining the reasonable time expended and a reasonable hourly rate for
purposes of calculating attorneys' fees, South Carolina courts have
historically relied on six common law factors of reasonableness: (1) the
nature, extent, and difficulty of the case; (2) the time necessarily devoted to
the case; (3) the professional standing of counsel; (4) the contingency of
compensation; (5) the beneficial results obtained; and (6) the customary legal
fees for similar services.
Layman v. State, 376 S.C. 434, 458, 658 S.E.2d 320, 333 (2008).
We
affirm the circuit court's order approving the special administrator's attorney's
fees. Although neither the probate court nor the circuit court had discretion
under section 62-3-805 to order that expenses of estate administration be paid
after other expenses, as Appellants suggest, the probate court had authority to
review the reasonableness of the fees charged. Upon Appellants' petition for
review, both the probate and circuit courts analyzed the fees and found them proper
under South Carolina law. Both courts found this case presented "novel
and complex legal issues," required extensive discovery, and involved a
three-day trial. See id. Furthermore, the courts found the
hourly rates and expenses were reasonable and customary, and the work performed
on the special administrator's behalf benefited the estate. See id.
Accordingly, the circuit court did not err in affirming the probate court's approval
of attorney's fees.
IV.Collateral Attack
Finally,
Appellants argue the circuit court erred in failing to find a collateral attack
is permissible when the court exceeds its statutory authority. We decline to
address this issue as it was waived on appeal because Appellants cited to
authority but made no argument by which this court could discern how they
believe the circuit court erred. An appellant's brief "shall be divided
into as many parts as there are issues to be argued. At the head of each part,
the particular issue to be addressed shall be set forth in distinctive type,
followed by discussion and citations of authority." Rule 208(b)(1)(D),
SCACR. An issue is deemed waived on appeal if it is not argued in the
appellant's brief. Guinan v. Tenet Healthsystems of Hilton Head, Inc.,
383 S.C. 48, 54 n.4, 677 S.E.2d 32, 36 n.4 (Ct. App. 2009). Appellants do not
argue this issue in their brief. Rather, they quote from American
Jurisprudence, asserting collateral attack is permissible when the court
has exceeded its authority, without arguing how this premise pertains to their
case. Appellants do not indicate which lower court allegedly exceeded its
authority or in what manner it did so. Thus, we find this issue is waived on
appeal, and we decline to address it.
CONCLUSION
We
hold the probate court had subject matter jurisdiction to order a sale of
Margaret's interest in the funeral home pursuant to the contract entered by
Margaret's conservator. With regard to the issue of the special
administrator's attorney's fees, we find Appellants asserted their statutory
right to judicial review to determine whether the fees billed by the special
administrator's attorney were reasonable. Accordingly, we affirm the circuit
court's decision on this issue.
Because
the appeal of the issues relating to the sale of the funeral home properties
and to the appointment of the special administrator was untimely, these issues
are not properly before this court. Therefore, we affirm the circuit court's
conclusion on this issue and decline to address the merits of Appellants'
arguments. In addition, we decline to address the issue of collateral attack as
waived on appeal. Consequently, the order of the circuit court is
AFFIRMED.
KONDUROS
and LOCKEMY, JJ., and CURETON, A.J., concur.