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.