In Re: Estate of Norman Robert Knight, Jr.

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 Re: Estate of Norman Robert Knight, Jr., (deceased),
Estate of Mildred C. Knight, (deceased), and Norman
Robert "Bobby" Knight, III, Appellants,

v.

Beatrice E. Whitten, as a special administrator, and Chloe
Knight-Tonney, Claimant, Respondents.

Appellate Case No. 2016-000748

Appeal From Charleston County
J. C. Nicholson, Jr., Circuit Court Judge

Unpublished Opinion No. 2018-UP-365
Submitted June 1, 2018 – Filed September 19, 2018

AFFIRMED

Jackson Seth Whipper, of Whipper Law Firm, of North
Charleston, for Appellants.

Charles Mac Gibson, Jr., of Mount Pleasant, for
Respondent Chloe Knight-Tonney.

Beatrice E. Whitten, of Mount Pleasant, pro se.
PER CURIAM: In this appeal of an order granting Chloe Knight-Tonney's
(Chloe's) claim against Norman Robert Knight, Jr.'s (Father's) Estate, Norman
Robert Knight III (Bobby), Mildred C. Knight's (Mother's) Estate, and Father's
Estate (collectively, Appellants) raise numerous issues, including whether the
special administrator should have been removed for cause, whether Chloe was
entitled to reimbursement for expenses paid for Father's care, and whether the
probate court had proper jurisdiction over the matter. We affirm.

1. We find the lower courts erred by finding Chloe did not have to file a summons.
Chloe filed her claim and petition for allowance of a claim in 2009, prior to the
amendment of section 62-3-806(b) requiring the filing of a summons with a petition.
However, at the time Chloe filed her petition, section 14-23-280 of the South
Carolina Code and the South Carolina Rules of Civil Procedure (SCRCP) required
her to file and serve a summons. See S.C. Code Ann. § 14-23-280 (2016)
("Proceedings in the court of probate may be commenced by petition or complaint
to the judge of probate for the county to which the jurisdiction of the subject matter
belongs, briefly setting forth the facts or grounds of the application. A summons
shall be issued to the defendants in such proceedings." (emphasis added)); Rule 81,
SCRCP (providing the South Carolina Rules of Civil Procedure apply in probate
court "to the extent they are not inconsistent with the statutes and rules governing
[the probate court]"); Rule 3(a), SCRCP ("A civil action is commenced when the
summons and complaint are filed with the clerk of court . . . .").

Appellants assert the lower courts lacked jurisdiction over them because Chloe failed
to file or serve a summons. See BB & T v. Taylor, 369 S.C. 548, 551, 633 S.E.2d
501, 503 (2006) ("A court generally obtains personal jurisdiction by the service of a
summons.); Roche v. Young Bros. of Florence, 318 S.C. 207, 209, 456 S.E.2d 897,
899 (1995) ("Rule 4, SCRCP[, the rule governing service of process,] serves at least
two purposes. It confers personal jurisdiction on the court and assures the defendant
of reasonable notice of the action."). However, we find Appellants waived any
objection to the failure to file or serve a summons and to the lack of personal
jurisdiction by (1) failing to raise the failure to file or serve the summons in their
first motion to dismiss, (2) failing to raise the lack of personal jurisdiction in a
motion to dismiss or in a responsive pleading, and (3) appearing and arguing the
merits of the action multiple times before the probate court and the circuit court. See
Rule 12(h)(1), SCRCP ("A defense of lack of jurisdiction over the person, improper
venue, insufficiency of process, insufficiency of service of process, or that another
action is pending between the same parties for the same claim is waived (A) if
omitted from a motion [made pursuant to Rule 12] or (B) if it is neither made by
motion under this rule nor included in a responsive pleading or an amendment
thereof permitted by Rule 15(a) to be made as a matter of course."); Stearns Bank
Nat'l Ass'n v. Glenwood Falls, LP, 373 S.C. 331, 337, 644 S.E.2d 793, 796 (Ct. App.
2007) ("Although a court commonly obtains personal jurisdiction by the service of
the summons and complaint, it may also obtain personal jurisdiction if the defendant
makes a voluntary appearance."); see also Cheraw Motor Sales Co. v. Rainwater,
125 S.C. 509, 513, 119 S.E. 237, 239 (1923) ("The next assignment of error is the
refusal to dismiss the proceedings because there was no summons and complaint
served. The defendant filed his answer and tried his case on the affidavit in
attachment, and thereby waived his right to his motion."). Accordingly, we affirm
as to this issue.

2. We find the Office of Court Administration (the Court Administration), on behalf
of the Chief Justice, appropriately assigned Judge Mary Blunt and then Judge
Kenneth E. Fulp to preside over this probate case because the other judges presiding
over the case were recused or disqualified. See S.C. Const. art. V, § 4 ("The Chief
Justice . . . shall have the power to assign any judge to sit in any court within the
unified judicial system."); S.C. Code Ann. § 14-23-1010 (2016) ("The probate court
of each county is part of the unified judicial system of this State."); S.C. Code Ann.
§ 14-23-1080 (2016) (providing where a probate judge must be recused from a case,
"the Chief Justice of the [s]upreme [c]ourt shall appoint a special judge to sit in the
matter"). We also find venue was proper because (1) based on a 2012 memorandum
from the Court Administration, Judge Fulp, as a special probate judge, could
properly hold hearings in either Beaufort, his own county, or Charleston, the county
where the case originated; (2) Appellants withdrew their objection to venue during
a December 17, 2013 hearing; and (3) Appellants' alleged objections to venue while
Judge Blunt presided over the case are not included in the record. See Harkins v.
Greenville County, 340 S.C. 606, 616, 533 S.E.2d 886, 891 (2000) (stating the
appellants have the burden of providing this court with an adequate record); Ex parte
McMillan, 319 S.C. 331, 335, 461 S.E.2d 43, 45 (1995) (providing an issue conceded
in the trial court cannot be argued on appeal). Accordingly, we affirm as to this
issue.

3. We find the probate court did not abuse its discretion by quashing Appellants'
subpoena for the deposit and withdrawal records from 2004 to 2009 of the
"Queenie" account because Chloe withdrew her claim for the $1,622.22 paid to the
Bishop Gadsden nursing facility for Father's care that came from the account,
rendering discovery of who deposited and withdrew money from the account
irrelevant. See Hollman v. Woolfson, 384 S.C. 571, 577, 683 S.E.2d 495, 498 (2009)
("A trial [court's] rulings on discovery matters will not be disturbed by an appellate
court absent a clear abuse of discretion."); id. ("Rule 26(b)(1), SCRCP, provides,
unless otherwise limited by order of the court, '[p]arties may obtain discovery
regarding any matter, not privileged, which is relevant to the subject matter involved
in the pending action . . . .'" (alteration in original) (emphasis added) (quoting Rule
26(b)(1), SCRCP)). Additionally, we find the issue of whether Chloe should have
moved for a protective order of the information from the "Queenie" account is
unpreserved for appellate review because Appellants did not raise this issue until on
appeal to this court. See 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 trial [court] to be preserved for
appellate review.").

We find the probate court erred by finding the redaction in the letter from Thad
Vincent, Father's attorney in the family court case and Chloe's attorney in the probate
case, to Chloe and Walter Kaufmann, Father's guardian, was protected by
attorney-client privilege because (1) the letter pertained to Father's attorney's fees in
the family court case, not to any confidential information given to Vincent by Chloe;
(2) Vincent provided no legal advice to Chloe in the letter; and (3) Vincent did not
represent Chloe in the family court case. See Marshall v. Marshall, 282 S.C. 534,
539, 320 S.E.2d 44, 47 (Ct. App. 1984) ("When the attorney communicates to the
client, the privilege applies only if communication is based on confidential
information provided by the client."); id. ("The attorney-client privilege, though,
does not protect communications with non-clients."); id. ("A person attains the status
of a 'client' when that person seeks legal advice by communicating in confidence
with an attorney for the purpose of obtaining such advice."). Nonetheless, the
redacted material in the letter regarding who Vincent believed to be at fault for the
"craziness involved" in the family court matter was not relevant to Chloe's claim for
Father's attorney's fees; thus, we find Chloe did not have to provide the unaltered
letter in discovery. See Hollman, 384 S.C. at 577, 683 S.E.2d at 498 ("Rule 26(b)(1),
SCRCP, provides, unless otherwise limited by order of the court, '[p]arties may
obtain discovery regarding any matter, not privileged, which is relevant to the
subject matter involved in the pending action . . . . '" (alteration in original)
(emphasis added) (quoting Rule 26(b)(1), SCRCP)). Accordingly, we affirm as to
this issue.

4. Because Chloe's claim sounds in law, as the relief requested is for money due and
the nature of her claim is akin to repayment of a personal loan to Father during his
lifetime, we find the doctrine of unclean hands cannot apply to bar Chloe's claim.
Aaron v. Mahl, 381 S.C. 585, 594, 674 S.E.2d 482, 487 (2009) ("The doctrine of
unclean hands 'precludes a plaintiff from recovering in equity if he acted unfairly in
a matter that is the subject of the litigation to the prejudice of the defendant.'"
(quoting Ingram v. Kasey's Assocs., 340 S.C. 98, 111 n.2, 531 S.E.2d 287, 294 n.2,
(2000))); id. ("The equitable doctrine of unclean hands, however, has no application
to an action at law."); see also Matter of Howard, 315 S.C. 356, 359, 362, 434 S.E.2d
254, 256, 258 (1993) (finding petition for allowance of claims for deceased's unpaid
balance on loans from several family members was an action at law).

5. We find the probate court did not err by failing to recognize the automatic stay
for appeals found in section 62-1-308(c) of the South Carolina Code (Supp. 2005)1
because (1) Chloe did not file her creditor's claim until almost three years after the
circuit court affirmed the probate court order appointing Kaufmann, and (2) the
probate court orders appealed by Appellants did not address the administration of
Father's estate because Father was still alive at the time of the orders and the appeal.
See § 62-1-308(c) ("When an appeal according to law is taken from any sentence or
decree of the probate court, all proceedings in pursuance of the order, sentence, or
decree appealed from shall cease until the judgment of the circuit court, court of
appeals, or [s]upreme [c]ourt is had."); Ulmer v. Ulmer, 369 S.C. 486, 492, 632
S.E.2d 858, 861 (2006) ("Section 62-1-308(c) does not apply to all orders of the
probate court concerning the parties. The only proceedings required to cease are
those proceedings addressed in the orders from which an appeal was taken.").
Accordingly, we affirm as to this issue.

6. We find the lower court did not err by failing to apply the doctrine of fraud in the
inducement to enter a contract as a bar to Chloe's claim because Mother did not prove
Kaufmann's and Family Services Inc.'s, Father's conservator's, failure to inform
Mother that Chloe would be covering the costs of some of Father's expenditures was
a false representation intended to be acted upon by Mother. See M. B. Kahn Constr.
Co. v. S.C. Nat'l Bank of Charleston, 275 S.C. 381, 384, 271 S.E.2d 414, 415 (1980)
("In order to recover in an action for fraud and deceit, based upon misrepresentation,
the following elements must be shown by clear, cogent and convincing evidence: (1)
a representation; (2) its falsity; (3) its materiality; (4) either knowledge of its falsity
or a reckless disregard of its truth or falsity; (5) intent that the representation be acted
upon; (6) the hearer's ignorance of its falsity; (7) the hearer's reliance on its truth; (8)
the hearer's right to rely thereon; (9) the hearer's consequent and proximate injury.");
id. ("Failure to prove any one of the foregoing elements is fatal to recovery.").
Accordingly, we affirm as to this issue.

7. We find the lower courts did not err by allowing Chloe's claim against the greater

1
Although not relevant in this appeal, we note section 62-1-308(c) has been
amended since the time relevant to this case. See § 62-1-308(c) (Supp. 2017).
weight of the evidence because (1) the proper standard of review of a probate court
proceeding pertaining to an action at law is any evidence, and (2) evidence in the
record supported the probate court's findings that Chloe's claims against Father's
estate fell within the definition of claim found in section 62-1-201(4) of the South
Carolina Code (Supp. 2017). See § 62-1-201(4) ("'Claims,' in respect to estates of
decedents and protected persons, includes liabilities of the decedent or protected
person whether arising in contract, in tort, or otherwise, and liabilities of the estate
which arise at or after the death of the decedent or after the appointment of a
conservator . . . ."); Matter of Howard, 315 S.C. at 361, 434 S.E.2d at 257 ("If the
proceeding in the probate court is in the nature of an action at law, the circuit court
may not disturb the probate court's findings of fact unless a review of the record
discloses there is no evidence to support them."). Therefore, they were allowable in
the amount of $23,914.73 plus 8.75% annual interest.

Here, the record shows Chloe provided evidence in the form of her testimony,
receipts, bills, and letters from Father's attorneys, as well as the testimony of
Kaufmann and Family Services, Inc. that the expenditures she made were for
Father's benefit, were not intended to be a gift, and were made with Kaufmann and
Family Services, Inc.'s approval. Further, the record reveals the order removing
Mother as Father's guardian and conservator was appealed and affirmed, and
Father—an incapacitated elderly man suffering from Alzheimer's disease—was
removed from his home in compliance with an emergency order issued by the
probate court after his independent, court-appointed guardian was denied visitation.
The record further reveals at the time of his removal and after, Father did not have
access to his possessions or funds because they were in Mother's control or were
"tied-up" in litigation commenced by Mother against Father. Accordingly, evidence
in the record supports the $23,914.73 plus 8.75% annual interest awarded to Chloe
from Father's estate as reimbursement for her claim, and we affirm as to this issue.

8. We find Chloe timely filed her claim because she filed within eight months of the
first published notice for creditors to present their claims and within a year of
Father's death. See S.C. Code Ann. § 62-3-803(a) (2009) ("All claims against a
decedent's estate which arose before the death of the decedent . . . are barred . . .
unless presented within the earlier of the following dates: (1) one year after the
decedent's death; or (2) within the time frame provided by . . . Section 62-3-801(a)
[of the South Carolina Code (2009)] for all creditors barred by publication."); §
62-3-801(a) (providing a creditor must file a claim within eight months of the date
the estate's personal representative first published notice in the newspaper for
creditors to present their claims). Accordingly, we affirm as to this issue.

9. We find Appellants abandoned their argument that the lower courts erred by
holding Chloe satisfied the legal requirements for a case-in-chief because in making
this argument, Appellants presented no facts or specific law, citing only "S.C. Code
Ann. § 62-3-801, et seq. (1980)," which arguably could be construed as a citation to
the entire probate code. See In re McCracken, 346 S.C. 87, 92, 551 S.E.2d 235, 238
(2001) (holding an issue is deemed abandoned if the argument in the brief is not
supported by authority or is only conclusory), modified on other grounds by Matter
of Chapman, 419 S.C. 172, 796 S.E.2d 843 (2017).

10. We find the lower courts did not err by reimbursing Chloe for attorney's fees
resulting from the family court matter and granting her full interest on the judgment.
We note Appellants' argument that the holdings in Matter of Jennings2 and Huff v.
Jennings3 show Chloe's claim for attorney's fees is not valid because there was no
order by the family court awarding fees. However, Chloe is not a lawyer attempting
to collect unpaid fees, nor is she attempting to place a lien on property under section
20-3-145; accordingly, the holdings in Huff and Matter of Jennings are inapposite to
whether Chloe is entitled to repayment for the money she expended on Father's
representation in family court. Further, we find the probate court did not err in
awarding Chloe repayment for the money she expended on Father's legal services in
the family court because there was evidence in the record supporting its conclusion
that the attorney's fees were allowable claims against Father's estate. See Matter of
Howard, 315 S.C. at 361, 434 S.E.2d at 257 (proscribing any evidence standard of
review for a probate court action at law). Accordingly, we affirm as to this issue.

11. We affirm the denial of Bobby's petition to remove Beatrice Whitten as special
administrator because he did not provide an adequate record to complete appropriate
judicial review of this issue. See Harkins, 340 S.C. at 616, 533 S.E.2d at 891
(providing the appellants have the burden of providing an adequate record on

2
321 S.C. 440, 449 n.5, 468 S.E.2d 869, 875 n.5 (1996) (finding an attorney
improperly filed a lien on property belonging to her client pursuant to section
20-3-145 of the South Carolina Code (2014), which allows an award of attorney's
fees to "constitute a lien on any property owned by the person ordered to pay the
attorney fee" because section 20-3-145 is not applicable where the court did not
award attorney's fees (quoting § 20-3-145)).
3
319 S.C. 142, 145–47, 459 S.E.2d 886, 889–90 (Ct. App. 1995) (finding an
attorney's practice of filing liens on property belonging to her clients when they
failed to pay their bills was not statutorily authorized because section 20-3-145
allowed a lien for attorneys' fees only when an order by the family court awarded
the fees).
appeal).

AFFIRMED.4

SHORT, THOMAS, and HILL, JJ., concur.

4
We decide this case without oral argument pursuant to Rule 215, SCACR.