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2004-UP-520 - Babb v. Thompson et al.
PREHEARING REPORT

THIS OPINION HAS NO PRECEDENTIAL VALUE.  IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 239(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals


Mac Babb,        Appellant,

v.

Nina Lee Thompson, Personal Representative for the Estate of Helen W. Thompson and Charles Wiriden, Jr.,        Defendants,

Of Whom Nina Lee Thompson, Personal Representative for the Estate of Helen W. Thompson is        Respondent,

and

Mac Babb,        Third-Party Plaintiff,

v.

Waterway Mobile Home Park, Inc., a North Carolina Corporation, and Cheryl Lloyd, Personal Representative of the Estate of H.O. Taylor, individually, and as Registered Agent for Waterway Mobile Park, Inc., and as Officer, Shareholder, and Director of Waterway Mobile Home Park, Inc., Third-Party Defendants,        Respondents,


Appeal From Horry County
J. Michael Baxley, Circuit Court Judge


Unpublished Opinion No. 2004-UP-520
Submitted September 15, 2004 – Filed October 14, 2004


AFFIRMED


Mac Babb, of Calabash, North Carolina, pro se.

Nina Lee Thompson, of Acton, North Carolina, pro se.

PER CURIAM: Mac Babb brought this action against Helen W. Thompson and Waterway Mobile Home Park to collect on a default judgment entered against Thompson in 1998.  The circuit judge issued an order disposing of Waterway’s previously impounded funds and allowing Waterway’s previous attorney to withdraw, as earned fees, money he held in escrow for Waterway.  The judge denied Babb’s request for a writ of assistance to assign to him the stock of Waterway and denied Babb’s motions for contempt, sanctions, and punitive damages.  The order also affirmed the probate court’s dismissal of Babb’s petition to open an estate for Thompson.  Babb appeals from this order.  We affirm. [1]  

FACTS

This case arises from a lengthy and complex procedural history. [2]   Babb filed a breach of contract action against Thompson regarding their business relationship.  A default judgment was entered against Thompson in the amount of $63,000, plus prejudgment interest.  Babb filed this action seeking to collect his judgment.  The action was designated a complex case over which Judge J. Michael Baxley presided.  During the course of this litigation, Thompson assumed sole ownership of Waterway.  Subsequently, and also during the course of litigation, Thompson died in the state of California.  Thompson and Waterway have insufficient assets to satisfy Babb’s judgment. 

Babb filed a petition, as a judgment creditor, to open an estate for Thompson in South Carolina and to be appointed personal representative.  The probate court issued an order dismissing Babb’s case due to inactivity and removed the file from the active docket with leave to restore upon good cause shown.  A letter attached to the order of the probate court stated the reason the file was being closed was because it “appears to be defunct in fact and not susceptible to ending by Letters Dismissory.” 

By a prior order of the circuit judge, Waterway’s corporate income and accounts, excluding its operating account, were impounded.  Additionally, another prior order of the circuit judge released $10,000 from the impounded funds into Waterway’s operating account.  At the time of the final hearing, the impounded funds totaled $71,975.38.  Waterway’s previous attorney, Michael Henthorne, held a sum of money, presumably paid from Waterway’s operating account, [3] in his escrow account. 

At the final hearing in this action, Babb sought partial satisfaction of his judgment through payment of the impounded funds.  Babb also sought a writ of assistance assigning to him all of the stock of Waterway.  Further, Babb requested the trial court hold Thompson and Waterway in contempt and asked for sanctions arising from alleged violations [4] of the court’s previous orders.  Babb also requested punitive damages.  Finally, Babb appealed to the circuit court the probate court’s dismissal of his petition to open an estate for Thompson. 

The circuit judge ordered $2,377 of impounded funds be paid to accountant Harold R. Cooper, for his services as ordered by the court and necessitated by the litigation.  As for the remainder of the impounded funds, the judge ordered they be paid to Babb in partial satisfaction of his judgment.  The judge also authorized Henthorne to withdraw $4,488 of his outstanding and past due legal fees from his escrow account, finding Henthorne’s work greatly beneficial to the court and to Babb.  The order denied Babb’s request for a writ of assistance, finding it would not be beneficial and would only generate further litigation.  The judge denied Babb’s motion for contempt, stating that he found Thomson and Waterway had substantially complied with the previous orders. The judge also denied Babb’s request for punitive damages.  Finally, the judge declined to reverse the probate court’s order dismissing Babb’s petition to open an estate for Thompson, ultimately concurring with the probate court’s decision to dismiss the initial filing as inadequate, but noting that Babb had failed to request a rehearing or move to restore the case to the probate court.  This appeal followed.

ISSUES

1.                 Whether the trial court erred in providing for payment of Henthorne’s fees;

2.                 Whether the trial court erred in providing for payment of accountant Cooper from the impounded funds;

3.                 Whether the trial court erred in denying Babb’s motion for writ of assistance;

4.                 Whether the trial court had jurisdiction to deny Babb’s motion for punitive damages; and

5.                 Whether the trial court erred in failing to remand to the probate court the issue of the dismissal of Babb’s petition to open an estate for Thompson.

LAW/ANALYSIS

As an initial matter, we note that Babb has provided us with an incomplete record on appeal.  For a case with a substantial procedural history, the record in this case is sparse.  Significantly, Babb has failed to include in his record a copy of his complaint in this matter.  Without this, we can only speculate as to the causes of action under which Babb requested payment of the impounded funds.  See Harkins v. Greenville County, 340 S.C. 606, 616, 533 S.E.2d 886, 891 (2000) (stating the appellant has the burden of presenting a sufficient record to allow review).  “Except as provided by Rule 212 and Rule 208(b)(1)(C) and (2), the appellate court will not consider any fact which does not appear in the Record on Appeal.”  Rule 210(h), SCACR.  Only matters the parties deem not to be relevant to the appeal are properly excluded from the record.  See Former v. Butler, 319 S.C. 275, 277 n.1, 460 S.E.2d 425, 427 n.1 (Ct. App. 1995). “[T]he South Carolina Appellate Court Rules are not mere technicalities but provide the parties and this Court with an orderly mechanism through which to guide appeals in this State.  It is incumbent upon counsel to provide material that complies with the Rules and facilitates appellate review.”  Henning v. Kaye, 307 S.C. 436, 437, 415 S.E.2d 794, 794 (1992).  See also State v. Burton, 356 S.C. 259, 265, n.5, 589 S.E.2d 6, 9 n.5 (2003) (“A pro se litigant who knowingly elects to represent himself assumes full responsibility for complying with substantive and procedural requirements of the law.”);  State v. Hollman, 232 S.C. 489, 498, 102 S.E.2d 873, 877 (1958) (stating that established rules of procedure are not to be discarded on appeal merely because a party appeared pro se), overruled on other grounds by Stevenson v. State, 335 S.C. 193, 516 S.E.2d 434 (1999).  In this case, without knowing the causes of action Babb proceeded under to collect the impounded funds, we are unable to determine and apply the proper standard of review.     

1.       Payment of attorney's fees

Babb claims the judge erred in providing for payment of attorney Henthorne’s legal fees.  Babb asserts Henthorne waived his right to request fees because he failed to appear at the final hearing.   This issue is not preserved for our review because Babb did not raise it to the circuit judge at the final hearing.  Rather, Babb raised this issue for the first time in a Rule 59(e) motion. “A party cannot use Rule 59(e) to present to the court an issue the party could have raised prior to judgment but did not.”  Hickman v. Hickman,  301 S.C. 455, 456, 392 S.E.2d 481, 482 (Ct. App. 1990) (citations omitted).

To the extent that Babb argues the judge erred in allowing Henthorne’s fees to be paid out of “monies used in the winding up of Waterway’s affairs,” we find this issue not properly before us.  Henthorne’s affidavit stated that he accrued his fees in complying with the court’s order for an accounting and in winding up Waterway’s corporate affairs.  In an unappealed order, the circuit judge found Henthorne’s firm to be a claimant and “accorded [the firm] claimant status to the extent of its unpaid legal and professional fees,” amounting to $11,170.68.  The order specifically stated that “this court shall consider at a subsequent dispositional hearing whether all or a portion of the [firm’s] fees should be paid from the remaining assets of the corporation over which this court has jurisdiction.”  By another unappealed order of the circuit judge, $10,000 of impounded funds were released to Waterway’s operating account, which was not impounded, to be used as “necessary for the winding up of Defendant Waterway’s corporate affairs.”  Babb did not appeal the prior order treating the firm as a claimant or the prior order allowing the operating account to be used for the winding up of Waterway’s affairs.  Thus, these orders became the law of the case.  See Brading v. County of Georgetown, 327 S.C. 107, 113, 490 S.E.2d 4, 7 (1997).  Furthermore, Babb does not contest the fact that Henthorne accrued the fees in winding up Waterway’s affairs. Therefore, the actions of the circuit judge in allowing Henthorne to treat fees accrued in the winding up of Waterway’s affairs as earned and permitting Henthorne to withdraw the balance of the escrow account ($4,480.00) are not subject to our review. 

2.       Payment of accountant Cooper’s fees

Babb argues the circuit judge erred in awarding accountant Cooper fees from the impounded funds.  Babb does not cite to any authority in support of his proposition.  As a result, we deem this issue abandoned on appeal.  See First Sav. Bank v. McLean, 314 S.C. 361, 363, 444 S.E.2d 513, 514 (1994).  However, even if we were to address the merits and apply the broad standard of review for actions in equity, we find Babb’s argument to be without merit. 

In an appeal from an action in equity, this Court has jurisdiction to find facts in accordance with its own view of the preponderance of the evidence.  However, this broad scope of review does not require an appellate court to disregard the findings below or ignore the fact that the trial judge is in the better position to assess the credibility of the witnesses.  Moreover, the appellant is not relieved of his burden of convincing the appellate court the trial judge committed error in his findings. 

Pinckney v. Warren, 344 S.C. 382, 387-88, 544 S.E.2d 620, 623 (2001) (citations omitted).

We are satisfied and the record demonstrates that Cooper’s work was court ordered and necessitated by this litigation.  The following dialogue took place between Babb and the circuit judge:

The Court:  All right, is it within you – it’s your position that no other claimant then should receive any [impounded] funds other than you?
Mr. Babb:  Should not be senior, yes, sir.  I would think probably based on one of your Orders that Mr. Cooper should be paid.  I believe his bill is $3000.00.
The Court:  All right, sir, than other than Mr. Cooper you don’t believe it’s your position that no other claimant should be paid in part and certainly not in whole?  In other words, nobody [sic] but the remaining funds go to you other than Accountant Cooper?
Mr. Babb: That’s correct . . . .

Babb asserts that he consented to Cooper being paid, but contends that payment should have been made out of the monies in the operating account. [5]   The record does not demonstrate that any funds in the operating account were available to pay Cooper.  The record does not show the balance of the operating account, nor does the record itemize how the operating account was used in winding up Waterway's affairs.  Thus, the equities favor providing payment for Cooper’s services by means of the impounded funds.

3.       Writ of assistance

Babb argues the circuit judge erred in denying his motion for a writ of assistance which would assign to him all of the stock of Waterway.  Babb does not cite to any authority in support of his proposition.  As a result, we deem this issue abandoned on appeal.  See First Sav. Bank, 314 S.C. at 363, 444 S.E.2d at 514.   Nonetheless, we also disagree with Babb on the merits of this argument. 

The issuance of a writ of assistance rests in the sound discretion of the trial court.   See Griggs v. Griggs, 205 S.C. 272, ­­­274, 31 S.E.2d 505, 505 (1944).  The object of a writ of assistance is to take “possession [of property] from a party whose rights have been determined by the suit in which the sale [of property] was ordered.”  Id. at 275, 31 S.E.2d at 506 (citation omitted).  A writ of assistance is “‘issued only when the right is clear and free from doubt – when there is no equity or appearance of equity in defendant, and when the decree, and the sale and proceedings thereunder, are beyond suspicion . . . .’”  Id. at 274-75, 31 S.E.2d at 505-06 (quoting 5 C.J., §4 at 1317). 

In this case, the court found that Waterway operated a mobile home park on real property that it did not own.  The order stated that Waterway ceased operations and noted that the court had already seized its bank accounts.  The order referred to Waterway as an insolvent non-entity.  In fact, Waterway was dissolved prior to the final hearing on the merits.  Because we find support in the record for the circuit judge’s findings, we hold the circuit judge did not abuse his discretion in declining to issue Babb a writ of assistance. 

4.       Punitive damages

Babb argues the circuit judge erred in denying him punitive damages because the judge did not have subject matter jurisdiction over that issue.  Babb asserts that a prior order of the court, through an agreement of the parties, provided for the issue of punitive damages to be heard by a master-in-equity.  Babb’s argument to this effect is conclusory and not supported by any authority.  As a result, this issue is abandoned on appeal.  See First Sav. Bank, 314 S.C. at 363, 444 S.E.2d at 514. 

Moreover, as previously noted, the record in this case is sparse. The record contains the reference of the issue of punitive damages to a master-in-equity, dated March 25, 1998.  Despite this order of reference, the issue of punitive damages was raised to the circuit judge at the final hearing.  Nothing in the record indicates why this issue was raised at that time.  The issue of punitive damages was addressed at the hearing as follows:

Mr. Babb:  All right, the last thing is the punitive damages that [sic] Judge Lockemy’s Order of March of 1998 and I’m not prepared for that today.
The Court:  Well my recollection is is [sic] that issue – well, let me ask you to publish for the record what is the status of that issue.
Mr. Babb: It’s never been heard.  He ruled – it seemed like to me, I’m going from memory now that you asked that straight question, that it’s to be heard by Judge Cross but you’ve taken jurisdiction.
The Court:  All right, sir, then I’m going to take that under advisement, too, and we’ll look back in the Orders and again, just as it is somewhat confusing for you, there has been a lot of litigation in this action just while I’ve been in charge of the complex case and I’ll have to look back and see just exactly how that issue’s framed and we’ll make a ruling.

Because this case has an abundant procedural history with which the circuit judge was very familiar, we are reluctant to find a lack of subject matter jurisdiction based on the record before us.  As stated above, the record is incomplete, and thus, we are unable to determine why the issue of punitive damages was raised to the circuit judge at the final hearing.  Further, we are unable to determine on what grounds the circuit judge would have “taken jurisdiction.”  The circuit judge had all the prior orders in the case available to review and determine how the issue of punitive damages was framed.  We are not afforded the same luxury and are left only to speculate whether the court had subject matter jurisdiction.  The appellant has the burden of presenting a sufficient record to allow review.  See  Harkins, 340 S.C. at 616, 533 S.E.2d at 891.  Because we find Babb has not met this burden, we decline to address this issue on appeal.

5.       Appeal from probate court

Finally, Babb argues that because the circuit court applied inadequate grounds to affirm the dismissal of his probate petition, his appeal should have been remanded to probate court for further determinations. [6] “‘If the proceeding in the probate court is in the nature of an action at law, the [appellate] court may not disturb the probate court’s findings of fact unless a review of the record discloses there is no evidence to support them.’”  Macaulay v. Wachovia Bank of South Carolina, N.A., 351 S.C. 287, 293, 569 S.E.2d 371, 375, (Ct. App. 2002) (quoting Howard v. Mutz, 315 S.C. 356, 361, 434 S.E.2d 254, 257 (1993)). Rule 4 of the South Carolina Rules of Probate Court allow the court to strike a case from the active file with leave to restore upon good cause shown when it appears that the file is “defunct in fact and not susceptible to ending by letters dismissory . . . .” 

In this case, the order states that the reason for dismissal was inactivity in the file, but a letter accompanying the dismissal states the reason based on Rule 4.  The circuit court affirmed on the grounds of Rule 4, finding Babb’s initial filing inadequate.  The record reveals that Babb’s petition to open an estate for Thompson contained several omissions.  Thus, we decline to overturn the circuit judge’s decision to affirm the probate court’s dismissal of his petition.  See Rule 220(c), SCACR (“The appellate court may affirm any ruling, order, or judgment upon any ground(s) appearing in the Record on Appeal.”).  Further, because we affirm the dismissal of Babb’s petition, there is no reason to remand the issue.  However, nothing in this opinion affects Babb’s right to move to restore the petition to the active docket for good cause shown, as provided for in Rule 4 of the South Carolina Rules of Probate Court. 

CONCLUSION

We find Babb’s argument that the circuit judge erred in awarding Henthorne legal fees not preserved for our review and, therefore, decline to address the issue on appeal.  We deem Babb’s issues concerning the payment of accountant Cooper’s fees and concerning the writ of assistance abandoned on appeal.  Nonetheless, these issues also fail on the merits.  Furthermore, Babb has failed to provide to us a sufficient record on appeal to address whether the trial court had subject matter jurisdiction to decide the issue of punitive damages, and thus we decline to address the issue.  Finally, we do not find the circuit judge abused his discretion in affirming the decision to dismiss Babb’s petition to open an estate for Thompson in probate court.  Therefore, the order of the circuit judge is

AFFIRMED.

HEARN, C.J., HUFF and KITTREDGE, JJ., concur.


[1] We decide this case without oral argument pursuant to Rule 215, SCACR.

[2] Our court has twice before examined this case.  A more detailed procedural history can be found in the two previous unpublished opinions.  Babb v. Thompson, Op. No. 2002-UP-026 (Ct. App. filed Jan. 16, 2002) (affirming the default judgment against Thompson, but reversing the award of attorney’s fees to Babb), and 95-UP-195 (Ct. App. filed June 28, 1995) (reversing the trial judge’s denial of Babb’s motions for new trial nisi additur and new trial absolute, finding the jury’s award of $5.00 for his breach of contract claims not supported by the evidence).

[3] Although not explicitly set forth in the record, this is a logical presumption because the judge ordered this account be used to wind up Waterway’s corporate affairs and Henthorne’s services were utilized for the purpose of winding up Waterway’s affairs.  

[4] Neither Babb’s complaint nor his motion to hold Thomson and Waterway in contempt appear in the record on appeal.

[5] Arguably, this issue is not preserved for our review.  Babb did not make this specific argument at the final hearing.  The argument is made for the first time in his Rule 59(e) motion.  See Hickman, 301 S.C. at 456, 392 S.E.2d at 482 (“A party cannot use Rule 59(e) to present to the court an issue the party could have raised prior to judgment but did not.”).  However, in light of the confusing manner in which this issue was addressed at the final hearing, Babb’s Rule 59(e) motion may have presented him with the first opportunity to raise this argument.  We, therefore, address the equities presented by this issue.  

[6] The order dismissing Babb’s petition to open an estate for Thompson provided for “leave to restore [the petition] for good cause being shown why the case should be continued as a pending case.”  Instead of moving to restore the case for good cause shown, Babb directly appealed the probate court’s order to the circuit court.  Therefore, his appeal to circuit court was, at best, premature.  However, because the judge decided this issue on the merits, we also address the merits of Babb’s argument.