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2011-UP-561 - Fiddie v. Estate of Fiddie

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


Alan Fiddie and Joyce Fiddie, Appellants,

v.

The Estate of Sheridan Fiddie; any and all Personal Representatives, Executors, Special Administrators of any Estate of Sheridan Fiddie; JANE DOE, a fictitious person designated to represent the spouse of Sheridan Fiddie; JOHN DOES 1-10,001, being fictitious persons designated to represent any heirs at law of Sheridan Fiddie; JAMES DOES 1-10,001, being fictitious persons designated to represent any and all devisees of Sheridan Fiddie; JACK DOES 1-10,001, fictitious names designated to represent the heirs and devisees of any spouse of Sheridan Fiddie; PAUL DOES 1-10,001, fictitious names designated to represent the heirs and devisees of any heirs and devisees and spouses of, any heir or devisee of any spouse of Sheridan Fiddie; JOHN ROES 1-10,001, being fictitious names used to represent the spouse of any surviving spouse of Sheridan Fiddie, JAMES ROES 1-10,001, being fictitious names used to represent the heirs, devisees and spouses of any spouse of any surviving spouse of Sheridan Fiddie; JACK ROES 1-10,001, being fictitious Names used to represent the heirs, spouses and devisees of any heir of any heir of Sheridan Fiddie; JANE ROES 1-10,001, being fictitious names used to represent the heirs, spouses and devisees of any heir of any devisee of Sheridan Fiddie; JENNIFER DOES 1-10,001, being fictitious names used to represent the heirs, spouses and devisees of any devisee of any devisee of Sheridan Fiddie; JENNIFER ROES 1-10,001, being fictitious names used to represent the heirs, spouses and devisees of any devisee of any devisee of Sheridan Fiddie; the Estate of Theodore Fiddie, any and all Personal representatives, Executors, or Special  Administrators of any Estate of Theodore Fiddie; JANE LOW, being a fictitious names used to designate the surviving spouse, if any of Theodore Fiddie; JOHN LOW 1-10,001 being fictitious names to represent the heirs, devisees of any surviving spouse of Theodore Fiddie; JACK LOW 1-10,001, being fictitious names used to designate the heirs, devisees and surviving spouses of any heir, devisee of a surviving spouse of Theodore Fiddie; JAMES LOW being any person entitled to claim an interest in any property by virtue of intestate succession or devise from Theodore Fiddie through any person or person, without regard to how remote such interest have devolved from Theodore Fiddie; the Estates, Executors, Personal Representatives or Special Administrators of Charlotte Fiddie, Theodore Fiddie, Jr., Paul Fiddie, Daisy Fiddie, Annie Fiddie; and, Harry Fiddie; the intestate heirs of Charlotte Fiddie, Theodore Fiddie, Jr., Paul Fiddie, Daisy Fiddie, Annie Fiddie; and, Hattie Fiddie; the devisees of Charlotte Fiddie, Theodore Fiddie, Jr., Paul Fiddie, Daisy Fiddie, Annie Fiddie; and, Hattie Fiddie; the surviving spouses of Charlotte Fiddie, Theodore Fiddie, Jr., Paul Fiddie, Daisy Fiddie, Annie Fiddie, and, Hattie Fiddie; the heirs or devisees of any surviving spouse or heir or devisee of Charlotte Fiddie, Theodore Fiddie, Jr., Paul Fiddie, Daisy Fiddie, Annie Fiddie; and, Hattie Fiddie; the Estate of Sam Fiddie, any and all Personal Representatives, Executors, or Special Administrators of any Estate of Sam Fiddie; JANE MOW, being a fictitious name used to designate the surviving spouse, if any, of Sam Fiddie; JOHN MOW 1-10,001, being fictitious names to represent the heirs, devisees and surviving spouses of Sam Fiddie and any surviving spouse of Sam Fiddie; JACK MOW 1-10,001 being fictitious names used to designate the heirs, devisees and surviving spouses of any heir, devisee or surviving spouse of Sam Fiddie or any surviving spouse of Sam Fiddie; JAMES MOW being any person entitled to claim an interest in any property by virtue of intestate succession or devise from Sam Fiddie through any person or persons, without regard to how remote such interest have devolved from Sam Fiddie; Mamie Fiddie Parker; Bertie Fiddie Barnette; Harry Fiddie; Jimmy Fiddie; Raymond Fiddie; Frank Clark; Frances Fiddie; Billy Wilson; LeRoy Mixon; JAMES NOWS 1-100,001 being fictitious names used to represent the Estates of Frank Clark, Frances Fiddie, Billy Wilson, LeRoy Mixon, or the Personal Representative(s), Executor(s) or Special Administrator(s) of the Estate(s) of Frank Clark, Frances Fiddie, Billy Wilson, LeRoy Mixon, the surviving spouses of Frank Clark, Frances Fiddie, Billy Wilson, LeRoy Mixon The intestate heirs and the devisee of Frank Clark, Frances Fiddie, Billy Wilson, LeRoy Mixon, the intestate heirs and the devisee of Frank Clark, Frances Fiddie, Billy Wilson, LeRoy Mixon, the intestate heirs or devisee of any heir or devisee of Frank Clark, Frances Fiddie, Billy Wilson, or LeRoy Mixon, or their surviving spouses, if any; Betty (nee) Colins; Mary (nee) Collins; Hazel (nee) Collins, Theodore Fiddie; James Fiddie; Mary Fiddie; Nancy Fiddie; Veronica Anderson; Gilbert Anderson; Pat Anderson; Elloree Bryant, Jr.; Helen Bryant; Melvin Mixon; JOHN ZOES 1-100-001 being fictitious names used to represent the surviving spouses and heirs and devisees of Betty (nee) Colins; Mary (nee) Collins; Hazel (nee) Collins, Theodore Fiddie; James Fiddie; Mary Fiddie; Nancy Fiddie, Veronica Anderson; Gilbert Anderson; Pat Anderson; Elloree Bryant, Jr.; Helen Bryant; Melvin Mixon, the Estate(s) of, personal Representatives and Special Administrators of any Estates of Betty (nee) Colins; Mary (nee) Collins; Hazel (nee) Collins, Theodore Fiddie; James Fiddie; Mary Fiddie; Nancy Fiddie, Veronica Anderson; Gilbert Anderson; Pat Anderson; Elloree Bryant, Jr.; Helen Bryant; Melvin Mixon, or any heirs or devisees of said persons' heirs or devisees or of said persons' surviving spouse; Ruth Fiddie, the Estate of Harry Fiddie or any Personal Representatives, Executors or Special Administrators of Harry Fiddie, Ricky Fiddie J.L. Clark, Kenny Clark, Mary Fiddie Metts, Veronica Anderson Wallace, Larry Anderson The Estate or Larry Anderson, Personal Representatives or Special Administrators of Larry Anderson, Pat Anderson, any and all Heirs and Devisees of Larry Anderson, Misty Anderson, and any other person who Claims an interest through any person listed supra herein; and also JENNY LOWES 1-1,000,001 being fictitious names used to designate any person who may claim an interest in the property set forth more fully in the complaint, being in the County of Berkeley, State of South Carolina, TMS NUMBER 1610001013, by virtue of devise or descent from any person listed above or herein, or by deed or tax deed or foreclosure, or by any other means or manner; and those persons who claim or may claim such interest who are imprisoned within or outside of the State of South Carolina, or who are incompetent, or who are minors or who are protected by the provisions of that law known as the Soldiers and Sailors Civil Relief Act, as amended from time to time, as found codified in Title 50 App. of the United States Code of Laws, Also all other persons unknown, claiming any right, title, estate, interest in or lien upon the real estate described in the complaint herein, Defendants,

Of Whom

Raymond Fiddie, Jimmy Fiddie, Frank O. Clark, Jr., Hattie F. Dangerfield, Bertie Fiddie Barnette, & Mamie Fiddie Parker, Paul Fiddie, Jr., Theodore Fiddie, Jr., Kenneth  Clark, Jim L. Clark, Gilbert Anderson, Veronica Anderson Shaw, Patricia Fiddie Jackson, Pauline Fiddie Walker, Mary F. Varner are, Respondents.


Appeal From Berkeley County
R. Markley Dennis, Jr., Circuit Court Judge


Unpublished Opinion No. 2011-UP-561
Heard November 17, 2011 – Filed December 13, 2011  


AFFIRMED


Melvin Richardson Hyman, Jr., of Charleston, for Appellants.

John B. Williams and J. Jay Hulst, both of Moncks Corner, for Respondents.

PER CURIAM:  Appellants Alan Fiddie and Joyce Fiddie (collectively Appellants) appeal from the trial court's grant of summary judgment in favor of Respondents on Appellants' adverse possession claim.  On appeal, Appellants argue the trial court erred in failing to apply the presumption of ouster and that a genuine issue of material fact exists as to whether Appellants ousted Respondents and adversely possessed the disputed property. We affirm.

1. As to the grant of summary judgment in favor of Respondents, we find there is no genuine issue of material fact as to whether Appellants held the disputed property in an actual, open, notorious, exclusive, continuous, and hostile manner that amounted to an ouster of Respondents. Appellants' subjective belief that Respondents had to ask their permission to come on the property did not create a genuine issue of material fact. See Rule 56(c), SCRCP (stating summary judgment is proper where no genuine issue exists as to any material fact and the moving party is entitled to judgment as a matter of law); Hancock v. Mid-South Mgmt. Co., 381 S.C. 326, 330, 673 S.E.2d 801, 803 (2009) (noting cases with a heightened burden of proof require the nonmoving party to submit more than a mere scintilla of evidence to withstand a motion for summary judgment);  Jones v. Leagan, 384 S.C. 1, 10-11, 681 S.E.2d 6, 11 (Ct. App. 2009) (finding an adverse possession claim requires the claimant to prove by clear and convincing evidence his possession of the disputed property was continuous, hostile, actual, open, notorious, and exclusive for the statutory period); Wells v. Coursey, 197 S.C. 483, ___, 15 S.E.2d 752, 755 (1941) ("In order that one of several cotenants may acquire title by adverse possession as against the others, his possession must be such an actual, open, notorious, exclusive and hostile character as to amount to an ouster to the other cotenants. . . . The acts relied on to establish an ouster must be of an unequivocal nature, and so distinctly hostile to the rights of the other cotenants that the intention to disseize is clear and unmistakable."); Jones, 384 S.C. at 13-14, 681 S.E.2d at 12 ("[T]he determination of whether possession is open and notorious is made from the viewpoint of the legal owner exercising ordinary diligence, not from the viewpoint of the adverse possessor."). 

2. As to whether the trial court erred in failing to apply the presumption of ouster, we find the issue is not preserved for our review. See Shirley's Iron Works, Inc. v. City of Union, 387 S.C. 389, 400, 693 S.E.2d 1, 6 (Ct. App. 2010) ("[F]or an issue to be preserved for appeal, it must have been raised to and ruled upon by the trial court."); Church v. McGee, 391 S.C. 334, 347, 705 S.E.2d 481, 488 (Ct. App. 2011) ("Post-trial motions are not necessary to preserve issues that have already been ruled on; they are used to preserve those that have been raised to the trial court but not yet ruled on by it."); Elam v. S.C. Dep't of Transp., 361 S.C. 9, 24, 602 S.E.2d 772, 780 (2004) (stating a party must file a Rule 59(e), SCRCP, motion when "an issue or argument has been raised, but not ruled on, in order to preserve it for appellate review").

3. As to the remaining issues raised on appeal, we decline to address Appellants' arguments, as they are not necessary to the decision of this appeal.  See Futch v. McAllister Towing of Georgetown, Inc., 335 S.C. 598, 613, 518 S.E.2d 591, 598 (1999) (holding an appellate court need not review remaining issues on appeal when its determination of a prior issue is dispositive).  

AFFIRMED.

HUFF, PIEPER, and LOCKEMY, JJ., concur.