Belk v. Harris

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

Gene C. Belk, Individually and
as Co-Personal Representative of the Estate of Robert D. Belk, Appellant,

v.

Linda B. Harris, Individually
and as Trustee of the Ida Mae K. Belk Irrevocable Trust dated 9-17-07 and in
all alleged fiduciary capacities, Bibco, Inc., Dewey M. Houser, Carolina Preowned, LLP, Michael D. "Mickey" Lyles, Jr., and M.M. Weinberg,
Jr., Defendants and Cheryl Ann Harrison, Patricia B. Schmid, Robert M. Belk,
and Ida Mae Belk, Stakeholders, 

Of whom Bibco, Inc., Mary B.
Weinberg (substituted for M.M. Weinberg, Jr., deceased) Patricia B. Schmid
and Ida Mae Belk are Respondents.

Appeal From Sumter County

 James R. Barber, Circuit Court Judge

Unpublished Opinion No.  2011-UP-383 

Submitted June 7, 2011 – Filed August 4, 2011

AFFIRMED

Andrew F. Lindemann and Thomas E. Lydon, both of Columbia,
for Appellant.

Pope D. Johnson, III, of Columbia and William H. Johnson, of
Manning, for Respondents.

PER CURIAM: This case
involves family disputes stemming from the father's probate estate.  The
surviving siblings disagreed about who should serve as personal representative,
seeking both formally and informally to remove each other or appoint an
alternative sibling.  The probate court removed the motions to remove and
appoint a personal representative to circuit court.  One sibling, Gene Belk,
also filed an action in circuit court complaining about a trust created for his
mother after his father's death by the same attorney who drafted his father's
will, M.M. Weinberg.  Weinberg filed a motion to dismiss the complaint and
attached two affidavits.  The circuit court retained Gene and his sister, Linda
Harris, as co-personal representatives and appointed a third sibling, Patricia
Schmid, as special administrator.  The court granted Weinberg's motion to
dismiss, treating it as a summary judgment motion.  The court denied Gene's
post-trial motions.

Gene
appeals arguing the circuit court (1) lacked subject matter jurisdiction to
appoint a special administrator, (2) erred in converting the Rule 12(b)(6),
SCRCP motion into a Rule 56, SCRCP summary judgment motion, (3) should have
heard a motion to compel discovery before the motion to dismiss, and (4) erred
in granting the motion to dismiss.[1] 
We affirm pursuant to Rule 220(b)(1), SCACR, and the following authorities:

As to
whether the circuit court lacked subject matter jurisdiction:  S.C. Code Ann. §
62-1-302(d)(1) (Supp. 2010) (allowing removal from probate to circuit court of
"formal proceedings for the probate of wills and for the
appointment of general personal representatives" (emphasis added)); Dema
v. Tenet Physician Servs.-Hilton Head, Inc., 383 S.C. 115, 120, 678 S.E.2d
430, 433 (2009) ("Subject matter jurisdiction is the power to hear and
determine cases of the general class to which the proceedings in question
belong.").

As to conversion
of motion to dismiss into a summary judgment motion and the order in which the
court addressed the motions: Chastain v. Hiltabidle, 381 S.C. 508,
514-15, 673 S.E.2d 826, 829 (Ct. App. 2009) ("It is well settled that, but
for a very few exceptional circumstances, an appellate court cannot address an
issue unless it was raised to and ruled upon by the trial court."). 

As to
whether the circuit court properly granted the motion to dismiss: Gaar v. N.
Myrtle Beach Realty Co., 287 S.C. 525, 528, 339 S.E.2d 887, 889 (Ct. App.
1986) ("[A]n attorney is immune from liability to third persons arising
from the performance of his professional activities as an attorney on behalf of
and with the knowledge of his client."); Stiles v. Onorato, 318 S.C.
297, 300, 457 S.E.2d 601, 602 (1995) ("[A]n attorney may be held liable
for conspiracy where, in addition to representing his client, he [1] breaches
some independent duty to a third person or [2] acts in his own personal
interest, outside the scope of his representation of the client."); Argoe
v. Three Rivers Behavioral Ctr. & Psychiatric Solutions, 388 S.C. 394, 405,
697 S.E.2d 551, 556 (2010) (declining to "extend an attorney's liability
to those in privity with his or her client").

AFFIRMED.

FEW, C.J., PIEPER, and LOCKEMY, JJ., concur.

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