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2008-UP-317 - Mallek v. Tangeman

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

Barry D. Mallek and Alice R. Mallek, Respondents,

v.

Delbert R. Tangeman, Appellant.


Appeal From Spartanburg County
 Gordon G. Cooper, Master-In-Equity


Unpublished Opinion No. 2008-UP-317
Submitted June 2, 2008 – Filed June 25, 2008   


REVERSED AND REMANDED


Delbert R. Tangeman, of Duncan, for Appellant.

Donald C. Coggins, Jr., Max Thomas Hyde, and Jack W. Lawrence, all of Spartanburg, for Respondents.

PER CURIAM: Subsequent to a supplemental proceeding, Delbert Tangeman (Tangeman) appeals the master-in-equity’s order setting aside the transfer of real property from Tangeman to his wife as a fraudulent transfer.  We reverse and remand.[1]

FACTS

Barry and Alice Mallek (the Malleks) received a general verdict against Tangeman following a jury trial in June 2002, which was affirmed by this court on January 14, 2005.  The Malleks sought to execute on the judgment against Tangeman; however, the execution was returned nulla bona on or about June 13, 2005. 

Thereafter, the Malleks sought an order of reference and rule to show cause for supplemental proceedings.  A supplemental proceeding was held before the master-in-equity on August 1, 2005.  During the hearing, Tangeman indicated that his business assets, as well as numerous pieces of real estate, had been transferred to his wife.  Tangeman did not have the documents regarding the transfers at the time of the hearing; thus, the hearing was adjourned and Tangeman was ordered to produce the relevant documents at a later date. 

The hearing was reconvened on January 17, 2006.  At the hearing, Tangeman returned to the stand and answered questions regarding the documents.  The documents included mortgage notes dated August 1, 1998, in the amounts of $20,000, $30,000, and $150,000.[2]  The mortgages securing these notes, although dated August 1, 1998, were notarized and recorded on April 26, 2000.  This date correlates to a document presented by Tangeman wherein he had transferred all of his assets, including all of his real estate, household furniture, construction business vehicles, equipment, and tools to his wife on April 25, 2000.  Tangeman testified that valid consideration for the transfers was given by his wife who, in addition to her personal service as secretary without compensation, had invested sums of money from her inheritance and otherwise into his business over the years.  He also stated that a written agreement reflecting any obligation for repayment from either himself or from his business was not executed. 

At the close of the hearing, the Malleks asked the master-in-equity to set aside the transfers as fraudulent conveyances under the Statute of Elizabeth.  At this time, Tangeman requested an opportunity to enter into evidence documents which he alleged would prove the transfers were not fraudulent.  The master-in-equity refused and the following colloquy ensued:

TANGEMAN:  Your Honor?

THE COURT:  Yes, sir.

TANGEMAN:  Don’t I get an opportunity to - - -

THE COURT:  Your opportunity was a long time ago.  You are here at the direction and the request to appear by [c]ounsel in an attempt to locate funds to pay his client’s judgment.  The issues relating to any other matters were tried in a case  - - -

TANGEMAN:  They were - - -

THE COURT:  In 2001 and those are not here.  Today, the only reason I am here, or the only reason we are here and I am hearing this, is to assist Mr. Coggins in having his client recover the money that was found to be due from you to the Malleks.

TANGEMAN:  Your Honor, there are two very important documents that Mr. Coggins is not present here today.

THE COURT:  Well, again - - - Excuse me, sir.

TANGEMAN:  And they have been presented in the past.

THE COURT:  Excuse me.  Mr. Coggins is handling his case for his client.  Now whether in his presentation he decided not to include documents, that is solely up to him.  But you are not handling his case and the sole purpose you are here today is to try to find funds to pay his client’s judgment.

TANGEMAN:  There are two - - -

THE COURT:  I understand.

TANGEMAN:  There are two - - -

THE COURT:  You didn’t - - - You didn’t hear me.

TANGEMAN:  Yes, I did.

THE COURT:  Alright.  And so that is the - - - That is the end of the conversation.

TANGEMAN:  So I cannot make a motion?

THE COURT:  No, you cannot.  If you want to have an attorney file some type of motion on your behalf, then you are welcome to do that.  Once the [o]rder has been signed, then if there is grounds for filing a motion or any type of responsive pleading, then the attorney would have to review the [o]rder that I have signed and at that point the [o]rder is subject to whatever attack that can be done.  But until then - - -

TANGEMAN:  There have been two - - - May I share the two documents that are in evidence and that are not - - -

THE COURT:  They are not.  The only evidence are here and I have reviewed these documents as they were handed up.

TANGEMAN:  Okay.

THE COURT:  There’s eleven documents that were presented by Mr. Coggins during your testimony.

TANGEMAN:  There is one side of that page that you have not considered, Your Honor.

THE COURT:  I have looked at every document.

TANGEMAN:  No, sir.  You have not.  It is on the back side of that one mortgage.

THE COURT:  I have - Sir, I have looked at every document as it was handed up and I’ve looked at the dates.  I’ve looked at all the recording information and everything that is on the documents.

TANGEMAN:  There is a [o]ne hundred fifty thousand ($150,000) [d]ollar mortgage that preceded all of these dates and it is in evidence.

THE COURT:  I understand that.  I understand that.

TANGEMAN:  And it will clearly take care of any fraudulent claims.  It is clearly - - -

THE COURT:  Well, sir, I am not meaning to cut you short, but I am.  If, after the [o]rder is entered, you have an attorney who wants to file some type of motion relating to the [o]rder, then that is the time to do it.  Alright, sir?

TANGEMAN:  Yes, sir.

Shortly after this exchange, the hearing concluded.  In the final order, the master-in-equity set aside the transfer of Tangeman’s property to his wife as a fraudulent conveyance and appointed a receiver over all of his business and real estate properties until the Malleks’ judgment was paid in full. 

Tangeman filed a motion to reconsider claiming he was not provided an opportunity to prove the transfers were valid and requested the master-in-equity consider certain documents he was not allowed to present at the hearing.  The master-in-equity denied Tangeman’s motion.  This appeal follows.          

STANDARD OF REVIEW

Supplementary proceedings are equitable in nature.  Ag-Chem Equip. Co., Inc. v. Daggerhart, 281 S.C. 380, 383, 315 S.E.2d 379, 381 (Ct. App. 1984).  In an equitable matter referred to a master-in-equity for final judgment, we may find facts in accordance with our own view of the preponderance of the evidence.  Van Blarcum v. City of North Myrtle Beach, 337 S.C. 446, 450, 523 S.E.2d 486, 488 (Ct. App. 1999).  However, this court is not required to disregard the findings of the master-in-equity.  Friarsgate, Inc. v. First Fed. Sav. & Loan Ass’n, 317 S.C. 452, 456, 454 S.E.2d 901, 904 (Ct. App. 1995). 

The admissibility of evidence is within the sound discretion of the trial court and will not be reversed on appeal absent an abuse of discretion or the commission of legal error resulting in prejudice to the defendant.  Wright v. Craft, 372 S.C. 1, 33, 640 S.E.2d 486, 504 (Ct. App. 2006).  “An abuse of discretion occurs when the ruling is based on an error of law or a factual conclusion that is without evidentiary support.”  Menne v. Keowee Key Prop. Owners’ Ass’n, Inc., 368 S.C. 557, 568, 629 S.E.2d 690, 696 (Ct. App. 2006).  “To warrant reversal based on the admission or exclusion of evidence, the appellant must prove both the error of the ruling and the resulting prejudice.”  Fields v. Reg’l Med. Ctr. Orangeburg, 363 S.C. 19, 609 S.E.2d 506, 509 (2005).

LAW/ANALYSIS

Tangeman argues the denial by the master-in-equity of his request to present evidence of a valid conveyance was error.  We agree.

The Statute of Elizabeth, as codified in section 27-23-10 of the South Carolina Code (Supp. 2007), provides in relevant part:

Every . . . conveyance of lands . . . which may be had or made to or for any intent or purpose to delay, hinder, or defraud creditors and others of their just and lawful . . . debts . . . must be deemed and taken . . . to be clearly and utterly void, frustrate and of no effect, any pretense, color, feigned consideration, expressing of use, or any other matter or thing to the contrary notwithstanding.

Pursuant to this statute, conveyances may be set aside under two conditions: (1) where the transfer is made by the grantor with the actual intent of defrauding his creditors where that intent is imputable to the grantee, even though there is valuable consideration; and (2) where a transfer is made without actual intent to defraud the grantor’s creditors, but without valuable consideration.  See Albertson v. Robinson, 371 S.C. 311, 316, 638 S.E.2d 81, 83 (Ct. App. 2006).  Where a conveyance is made without an actual intent to defraud but without consideration, the conveyance will stand if the grantor reserves a sufficient amount of property not merely at the time of the transfer, but an amount from which in the final analysis the creditors are able to collect their indebtedness in full.  Gardner v. Kirven, 184 S.C. 37, 41, 191 S.E. 814, 816 (1937).  Moreover, “[w]here transfers to members of the family are attacked either upon the ground of actual fraud or on account of their voluntary character, the law imposes the burden on the transferee to establish both a valuable consideration and the bona fides of the transaction by clear and convincing testimony.”  Id. (emphasis added). 

In this case, the alleged fraudulent conveyance was between family members; thus, the burden to establish valuable consideration and the bona fides of the transaction was imposed upon the transferee.  See Id.   However, the transferee, Tangeman’s wife, was not a party to the proceeding at issue.[3] Moreover, not only was the transferee not a party to the proceeding, but Tangeman himself was also denied the opportunity to introduce documentary evidence and to present an argument as to the validity of the transfer.  Review of the record indicates the master-in-equity stated that the Malleks had exclusive control over the presentation of the case and Tangeman’s involvement was limited solely to responding to their questions on direct examination.  The record further reveals that Tangeman sought to present testimony in response to the Malleks’ presentation on direct examination and was repeatedly denied the opportunity.  The master-in-equity erred by precluding Tangeman the opportunity to present his position as to the validity of the transfer.  Moreover, we further express concern that the master-in-equity clearly stated that Tangeman may only respond by having an attorney file some motion after the issuance of the court’s order.[4]  We find Tangeman’s inability to present his position prejudiced him. 

Therefore, we conclude a remand is appropriate to allow for a hearing in which Tangeman is provided an opportunity to address the validity of the transfer.[5]  Accordingly, we find it unnecessary to address Tangeman’s remaining issues and arguments.  See I’On, L.L.C. v. Town of Mount Pleasant, 338 S.C. 406, 423, 526 S.E.2d 716, 725 (2005) (holding that the court need not address additional issues if it is not necessary to the resolution of the case).  

Based on our reasoning herein, the decision of the master-in-equity is  

REVERSED AND REMANDED.

WILLIAMS, THOMAS, and PIEPER, JJ., concur.


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

[2] Tangeman also produced his 2001 and 2002 Federal income tax returns, which list “Delbert Tangeman” as the sole proprietor of his building contracting business.  The returns also indicated income received from rental property in the names of both Tangeman and his wife. 

[3] We recognize the issue as to the transferee not being named as a party was not raised; therefore, we focus only on the decision to preclude Tangeman from addressing the validity of the transfer.

[4] As to the Malleks’ argument that Tangeman failed to proffer the documents into the record, the record clearly shows the futility of further attempts to preserve Tangeman’s desire to introduce these documents in light of the comments of the master-in-equity.  See Staubes v. City of Folly Beach, 339 S.C. 406, 415, 529 S.E.2d 543, 547 (2000) (noting that this court does not require parties to engage in futile actions in order to preserve issues for appellate review).  Moreover, since the master-in-equity specifically indicated that Tangeman could only further address the court by way of post trial motion, we find Tangeman has preserved his arguments because he complied with the court’s specific instructions by way of a motion to reconsider.  Thus, in light of the court’s specific directions, we decline to find Tangeman’s arguments unpreserved.  

[5] On remand, consideration should be given as to whether the case should be postured as a declaratory judgment or other independent action and whether Tangeman’s wife, as transferee, should be added as a party.