Supreme Court Seal
South Carolina
JUDICIAL DEPARTMENT
Site Map | Feedback
2011-UP-016 - Matthews v. Matthews

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

Max E. Matthews, Appellant,

v.

Charles H. Matthews, Ann J. Matthews, Elizabeth M. Coker, and Mary M. Matthews, Personal Representative of the Estate of Tillman B. Matthews, Jr., Defendants,

of whom, Charles H. Matthews and Ann J. Matthews are, Respondents.


Appeal From Florence County
Thomas A. Russo, Circuit Court Judge


Unpublished Opinion No. 2011-UP-016
Submitted January 1, 2011 – Filed January 25, 2011   


AFFIRMED


Carrie Ann Warner and Max Nathan Pickelsimer, both of Columbia, for Appellant. 

Charles J. Hupfer, Jr., of Florence, for Respondent Charles H. Matthews.

Marian D. Nettles and E. LeRoy Nettles, Sr., both of Lake City, for Respondent Ann Matthews.

PER CURIAM:  Following the death of their father, Max E. Matthews and his brother, Charles, were appointed personal representatives of his estate.  Four years later, the probate court removed Max from his position.  The circuit court affirmed the removal.  Max appeals, arguing the circuit court erred in affirming the probate court's order despite the probate court's (1) failure to comply strictly with statutory requirements regarding grounds for removal of a personal representative; (2) failure to comply strictly with statutory requirements that all interested persons receive actual notice of the hearing; (3) error in basing its removal of Max as a personal representative on the fact that he had brought an action in the circuit court alleging fraud against his co-personal representative, Charles, for Charles's failure to pursue assets improperly removed from Tillman prior to his death; and (4) error in inquiring into facts of other litigation that was on appeal and therefore not properly before the probate court.  We affirm[1] pursuant to Rule 220(b)(1), SCACR, and the following authorities: 

1. As to the statutory requirements regarding grounds for removal of a personal representative:  S.C. Code Ann. § 62-3-611 (2009 & Supp. 2010) (providing the probate court may remove the personal representative of an estate from his position "when removal would be in the best interests of the estate"). 

2. As to the remaining issues:  Rule 210(h), SCACR ("[An] appellate court will not consider any fact which does not appear in the Record on Appeal."); Wilder Corp. v. Wilke, 330 S.C. 71, 76, 497 S.E.2d 731, 733 (1998) ("It is axiomatic that an issue cannot be raised for the first time on appeal, but must have been raised to and ruled upon by the [circuit court] to be preserved for appellate review."); Bonaparte v. Floyd, 291 S.C. 427, 444, 354 S.E.2d 40, 50 (Ct. App. 1987) (holding the burden of providing a record on appeal sufficient for intelligent review falls upon the appellant). 

AFFIRMED. 

FEW, C.J., SHORT, J., and CURETON, A.J., concur. 


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