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Unpublished Opinion No. 2011-UP-173  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Withdrawn, Substituted and Refiled June 2,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.