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2011-UP-173 - Fisher v. Huckabee

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

Betty Fisher and Lisa Fisher, Appellants,

v

Bessie Huckabee, et al., Respondents.

In the Matter of the Estate of Alice Shaw-Baker,

Charleston County Probate No.:  2009-ES-10-0378/F


Appeal From Charleston County
Thomas L. Hughston, Jr., Circuit Court Judge


Unpublished Opinion No. 2011-UP-173  
Submitted February 9, 2011 – Filed April 18, 2011
Withdrawn, Substituted and Refiled June 2, 2011


AFFIRMED IN PART AND DISMISSED IN PART


Cain Denney, of Charleston, and John Cooper, of Sullivan's Island, for Appellants.

Peter A. Kouten, of Johns Island, for Respondents.

PER CURIAM: In this probate matter, Betty Fisher and Lisa Fisher appeal (1) the appointment of Bessie Huckabee as personal representative of the estate of Alice Shaw-Baker and (2) an order modifying a prior temporary order that had restrained Huckabee, in her capacity as personal representative of Shaw-Baker's estate, from taking any action regarding the estate.  Under the modified order, Huckabee could continue to administer and preserve the estate, but could not disburse or distribute any estate assets pending a trial on the merits.  We affirm on all issues raised by the Fishers in this appeal concerning the modification order and dismiss those issues concerning Huckabee's appointment.[1]

As to the modification order, the Fishers argue (1) the order was void because Huckabee's attorney failed to copy it to opposing counsel before submitting it to the presiding judge, (2) the order lacked the required finding of a change of circumstances to warrant modifying the prior order, (3) the circuit court should have applied the standard in the South Carolina Probate Code instead of that in the South Carolina Rules of Civil Procedure in determining whether or not modification of the prior order was warranted, (4) the provision in the modification order requiring the Fishers to post a bond was improper, and (5) the modification order was based on the incorrect assumption that Huckabee had possession of the estate assets.  We affirm pursuant to Rule 220(b)(1), SCACR, and the following authorities: Rule 81, SCRCP (stating the South Carolina Rules of Civil Procedure "shall apply insofar as practicable in magistrate's courts, probate courts, and family courts to the extent they are not inconsistent with the statutes and rules governing those courts"); Mims v. Alston, 312 S.C. 311, 314 n.1, 440 S.E.2d 357, 359 n.1 (1994) (refusing to address an issue because "it was not raised or ruled upon below"); In re Timmerman, 331 S.C. 455, 460, 502 S.E.2d 920, 922 (Ct. App. 1998) ("When a party receives an order that grants certain relief not previously contemplated or presented to the trial court, the aggrieved party must move, pursuant to Rule 59(e), SCRCP, to alter or amend the judgment in order to preserve the issue for appeal.").  Furthermore, as to issue (5), we hold that if the finding that Huckabee had possession of the estate assets is premature or otherwise incorrect, the error does not prejudice the Fishers in that under Huckabee, in her capacity as personal representative, has been restrained from making disbursements or distributions from the estate and counsel for the Fishers, on page 13 of the Appendix to the Record on Appeal, has implicitly acknowledged that Lisa Fisher has been ordered by the probate court to turn over the estate assets in her possession.

As to the order appointing Huckabee personal representative of the estate, the Fishers contend (1) the order is void because they were not given proper notice of Huckabee's intent to seek the appointment, (2) the order lacks the requisite findings of fact, (3) Huckabee is not qualified to serve as personal representative because her interests are adverse to those of the estate, and (4) they should not have to wait until a merits hearing in the probate court for a review of the appointment.  On page 19 of the Appendix to the Record on Appeal, counsel for the Fishers advised the circuit court that he had "a pending motion to replace the PR and to appoint a special administrator."  We, therefore, hold the issues raised by the Fishers to this court regarding the propriety of the appointment are interlocutory and decline to address them at this time.  See Charlotte-Mecklenburg Hosp. Auth. v. S.C. Dep't of Health & Envtl. Control, 387 S.C. 265, 267, 692 S.E.2d 894, 894 (2010) ("If there is some further act which must be done by the court prior to a determination of the rights of the parties, the order is interlocutory."); Morris v. Anderson Cnty., 349 S.C. 607, 610, 564 S.E.2d 649, 651 (2002) (stating an appellate court "may, as a matter of discretion, consider an unappealable order along with an appealable issue where such a ruling will avoid unnecessary litigation") (emphasis added).

AFFIRMED IN PART; APPEAL DISMISSED IN PART.

FEW, C.J., THOMAS and KONDUROS, JJ., concur.


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