Miller v. Miller

THE STATE OF SOUTH CAROLINA

In The Court of Appeals

Joyce Miller,       
Respondent

v.

Johnny Miller, individually and as Guardian for Jacquia Miller and Juenville
Miller, and LaKischia Miller,        Appellants.

Appeal From York County

John Buford Grier, Circuit Court Judge

Unpublished Opinion No. 2003-UP-325

Submitted January 17, 2003 - Filed May
7, 2003

AFFIRMED

Johnny E. Miller, of Rock Hill, pro se.

Douglas Francis Gay, of Rock Hill, for Respondent.

PER CURIAM:  Johnny Miller, on behalf of
himself and his three children, appeals from an order of the master-in-equity
which distributed the proceeds of a public sale of real property in a partition
action.  We affirm. [1]

FACTS

This is the sixth appeal arising out of a dispute that
developed between siblings over property left to them in their mother’s will. 
The mother, Viola Miller, passed away in 1997, leaving one-third of her property
to Joyce Miller, one-third to Gregory Miller, and one-third to Johnny Miller
and his three children.  Deeds of distribution were created that gave the heirs
a joint tenancy in all of Viola’s properties.
[2]   Gregory Miller subsequently transferred his one-third interest to
Joyce for $1.00, love and affection, and he began staying in one of the properties
under a lease executed by Joyce.  Johnny Miller, who lived in another one of
the estate properties, challenged the validity of the lease on the basis he
was a joint tenant and had not approved of the lease.  He also contended the
will was fraudulently drafted by Joyce, an attorney. 

In late 1998, Joyce filed a summons and complaint seeking
to partition all of the real estate.  The circuit court referred the matter
to a master-in-equity.  The master ordered the property to be partitioned and
allowed the parties thirty days to arrange a private sale; otherwise, he would
order a public sale of the properties.  When the real estate was not sold by
the parties, the master issued a supplemental order directing the public sale
of the real property to be partitioned.
[3]

Joyce was the successful bidder at the sale on December 3, 2001, purchasing
the properties for $180,500.00.  By order filed June 28, 2002, the master distributed
the proceeds.  In the order, the master increased the total value of the estate
to $243,171.15.  Among other things, the master found the fair rental values
of the homes Johnny Miller and Gregory Miller were occupying should be added
to the sales price to represent the entire “estate” to be distributed.  Further,
the master found that Johnny Miller had removed two properties from Section
8 status and that the parties were entitled to the benefit of the rents that
would have been received had the properties remained under Section 8 and added
those amounts to the proceeds.  The master deducted this lost rent from Johnny
Miller’s share. 

LAW/ANALYSIS

On appeal, Johnny Miller contends the master erred in his findings of fact
and conclusions of law in the order distributing the proceeds from the public
sale.

As to the findings of fact, Miller asserts the master
erred in finding that the two rental properties in Chester were removed from
Section 8 status at his insistence and in finding Joyce Miller had spent $2,004.75
on upkeep for the two rental properties.  He asserts he removed the properties
from Section 8 status only because Joyce Miller was not paying him one-third
of the rental income, which was being paid to Joyce as long as the homes remained
under Section 8.  Further, he contends “very credible evidence was produced
at this hearing that indicated [Joyce] spent the money on improvements to the
new home she [had] purchased . . . .” 

Miller enumerates seven points challenging the master’s conclusions of law,
some containing several unrelated issues.  Among other things, he contends that
Joyce Miller presented no testimony concerning the money she spent on the rental
homes and her credibility was impeached at the hearing on this matter, that
no rent should have been imputed for the home he resided in because he was a
joint tenant, that Joyce should have been ordered to pay the lost rent on the
Section 8 rental properties because the removal of the homes from Section 8
status was because of her actions, and that Joyce should bear all attorney fees
and expenses.  He also asserts that he is entitled to a lis pendens
on the properties and that he should receive treble damages and punitive damages
under section 15-67-420 of the South Carolina Code.

In his brief, Miller admits that the hearing held to determine the distribution
of the sale proceeds was held on June 3, 2002, but that he did not order a transcript
of the hearing.  Rather, he asserts “the most prevalent facts that underscore
how the monies should be distributed were presented at the main trial in this
matter.”  He explains that he has, however, submitted an excerpt of the transcript
from the prior hearing, which was held on July 23, 2001. 

The appellant has the burden of providing
a sufficient record to enable an appellate court to review the decision of the
trial court for any alleged errors.  See, e.g., Crestwood Golf Club,
Inc. v. Potter, 328 S.C. 201, 493 S.E.2d 826 (1997); Germain v. Nichol,
278 S.C. 508, 299 S.E.2d 335 (1983).  “Except as provided by Rule 212 and Rule
208(b)(1)(C) and (2), the appellate court will not consider any fact which does
not appear in the Record on Appeal.”  Rule 210(h), SCACR.

“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 judge to be preserved for appellate review.”  Wilder Corp.
v. Wilke, 330 S.C. 71, 76, 497 S.E.2d 731, 733 (1998); see Tupper
v. Dorchester County, 326 S.C. 318, 487 S.E.2d 187 (1997) (noting an alleged
error must be both raised to and ruled upon by the trial court to be preserved). 

In Germain, our supreme court found the
appellant’s failure to supply the trial testimony precluded review of the appellant’s
contention that the evidence did not justify an award of actual damages.  Germain,
278 S.C. at 509, 299 S.E.2d at 335.  Similarly, although Miller contends the
substance of some of his issues on appeal was argued at the prior hearing, we
have no way of determining whether the issues he urges on appeal were raised
to and ruled upon by the master in the current proceeding.  It is also impossible
to review the contentions that the evidence did not support the master’s actions
because we cannot determine from the present record what evidence was before
the court. 

AFFIRMED.

HEARN, C.J., GOOLSBY and HUFF, JJ., concur.

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

[2]   Johnny Miller and his three children together held a one-third interest
in Viola’s real estate, giving them each a one-twelfth interest in the properties.

[3]   The history of this
case is set forth in appeals three, four, and five.  See Miller
v. Miller (#3), Op. No. 2003-UP-83 (filed Jan. 29, 2003); Miller v.
Miller (#4), Op. No. 2003-UP-84 (filed Jan. 29, 2003); Miller v. Miller
(#5), Op. No. 2003-UP-85 (filed Jan. 29, 2003).