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2009-UP-501 - Estate of Connor #1

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Unpublished Opinion No.  2009-UP-501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. 


[1] By May 2004, Margaret had been diagnosed with stomach cancer and required round-the-clock care. 

[2] Nevertheless, the probate court's order addressed the merits and ruled against Appellants on each issue.

[3] Subject matter jurisdiction is defined as a "court's power to hear and determine a particular class of cases."  Whaley v. CSX Transp., Inc., 362 S.C. 456, 474, 609 S.E.2d 286, 295 (2005).  Appellants base their argument upon Part 13 of the Probate Code, which is entitled, "Sale of Real Estate by Probate Court to Pay Debts."  The pertinent section states:  "The provisions of this Part are hereby declared to be the only procedure for the sale of lands by the court, except where the will of the decedent authorizes to the contrary."  S.C. Code Ann. § 62-3-1301 (2009).  Because the probate court is a statutory court and only has such jurisdiction as the Legislature affords it, the section at first blush appears to confer subject matter jurisdiction to the probate court to sell real estate only in the manner prescribed by that section.