In the Matter of: Estate of Annie Mae Crosby

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 the Matter of: Estate of Annie Mae Crosby.

Jessie Fred Crosby and Robert Edward Crosby, Jr.,
Respondents,

v.

Rose Mae Crosby Walsh, individually and as personal
representative of the Estate of Annie Mae Crosby, and
Kelvin Wayne Crosby, Respondents,

Of whom Rose Mae Crosby Walsh, individually and as
personal representative of the Estate of Annie Mae
Crosby, is the Appellant.

Appellate Case No. 2020-000853

Appeal From Charleston County
J. Derham Cole, Circuit Court Judge

Unpublished Opinion No. 2024-UP-158
Submitted May 1, 2023 – Filed May 8, 2024

AFFIRMED

Gregg E. Meyers, of Byron, MN, for Appellant.
Thomas E. Lydon, of McAngus Goudelock & Courie,
LLC, of Columbia, for Respondents Jessie Fred Crosby
and Robert Edward Crosby, Jr.

Kelvin W. Crosby, pro se.

PER CURIAM: Rose Walsh argues the circuit court erred in affirming the probate
court's order removing her as personal representative of the Estate of Annie Mae
Crosby (the Estate) despite her compliance with a prior court order. We affirm.

Facts and Procedural History

On April 15, 2009, Annie Mae Crosby (Mother) executed a will in which she
appointed Walsh as her personal representative and an attorney (Attorney) as
successor personal representative should Walsh cease to serve. Mother bequeathed
3329 Von Ohsen Road to Walsh and certain vacant land on Mill Street (the Mill
Street Property) to her son, Jessie Crosby (Jessie). Mother's remaining real
property, including 3283 Von Ohsen Road (the Family Home), was to be divided
equally among her four children: Walsh, Jessie, Robert Crosby (Bobby), and
Kelvin Crosby (Kelvin). Mother died on November 29, 2016.

On April 12, 2018, Walsh filed an amended petition to approve the sale of real
estate; she requested authorization to sell the Family Home to herself and to sell
other properties. Walsh provided appraisals for the Family Home, which appraised
at $145,000 in 2016 and at $190,000 in 2018. Walsh sought to purchase the
Family Home for $171,000 (90% of the appraised value minus closing costs).

On April 25, 2018, Jessie requested that Walsh deed him the Mill Street property
within fifteen days. On May 15, Jessie requested an update on the Mill Street
Property and asked that a deed of distribution be executed prior to any bidding for
the Family Home. Walsh's counsel responded that she had advised Walsh she
should not make a distribution only to Jessie at that time and preferred "that the
remaining outstanding issues of the estate be resolved before further distributions
are made from the estate." Walsh accepted this advice.

On May 16, 2018, the probate court ordered that the Family Home be sold to the
highest bidder between Walsh and Jessie, with the bidding process to begin within
thirty days (the Family Home Order). Pursuant to the Family Home Order, Walsh
would be the initial bidder with a bid not less than $190,000, and all bids thereafter
required a minimum bid increase of $2,000. The order further stated:

(b) The bidding process shall commence within thirty
(30) days of the date of this Order, and shall be initiated
at the request of the Petitioner (the "Opening of the
Bidding Period"). The first bid shall be submitted by
Petitioner within twenty-four (24) hours of the Opening
of the Bidding Period. Jessie Fred Crosby shall have
twenty-four (24) hours from the time the prior bid was
sent to submit a higher bid. The bidding shall continue
back and forth until one of the parties refuses or fails to
submit a higher bid within twenty-four (24) hours than
the other party's previous bid. For example, if Petitioner
sends her initial bid at 2 p.m. EST on the first day, Jessie
Fred Crosby has until 2 p.m. EST on the second day to
submit a higher bid.

....

(e) The person submitting the highest bid to purchase [the
Family Home] must pay to the Personal Representative
of the Decedent's Estate a sum equal to seventy-five
percent (75%) of the highest bid within ten (10) days of
making the final bid. The highest bidder may only assign
up to $75,000 of his or her expected share of the estate to
the purchase.

(f) If the highest bidder cannot make such payment
within ten (10) days of making the final bid, then the
other party may submit a bid equal to One Hundred
Seventy-One Thousand Dollars ($171,000.00) and shall
be the highest bidder. Such bid shall be submitted in
accordance with subparagraph (d), above, within two (2)
days of the previous high bidder's failure to make
payment in accordance with subparagraph (e). The
person submitting the bid pursuant to this subparagraph
(f) must pay to the Personal Representative of the
Decedent's Estate a sum equal to seventy-five percent
(75%) of such highest bid within ten (10) days of making
the bid. Such highest bidder may only assign up to
$75,000 of his or her expected share of the estate to the
purchase.

The bidding process began on May 21. The following day, Jessie informed Walsh
that although Jessie was the official bidder, Bobby and Jessie planned to co-own
the Family Home and Bobby had authorized the use of $75,000 of his expected
estate share towards the purchase.

On May 23, Jessie notified Walsh that he intended to file a motion to compel if she
did not deed him the Mill Street Property. Walsh's counsel responded that Walsh
would handle other distributions after the Family Home Order's distributions
occurred because she would then "be in a better position to determine outstanding
issues and begin making final distribution of the estate assets."

That same day, Jessie moved to compel Walsh to execute his Mill Street deed and
moved to remove Walsh as personal representative. Jessie alleged Walsh breached
her fiduciary duty by failing to deed him the Mill Street Property so that she would
maintain a financial advantage during the bidding for the Family Home.

On May 30, the bidding process ended with Jessie's winning bid of $312,000.
Walsh noted Jessie's payment was due by 2:07 p.m. on June 11. Jessie's counsel
calculated Jessie and Bobby would each be required to pay $159,000 and emailed
the Estate's counsel and Walsh's counsel to confirm the figures. Jessie's counsel
arrived at $159,000 by taking 75% of the $312,000 Bid ($234,000) and subtracting
$75,000 (Jessie's expected credit from the Estate).

Bobby and Jessie then remitted payment to Walsh. Bobby provided a note stating
he was paying $78,000 to "pay off one of the heirs" because he and Jessie were
purchasing the Family Home together, along with a $75,000 cashier's check and a
$3,000 cashier's check. Jessie provided a note pledging his $75,000 credit from the
Estate and a $3,000 cashier's check. In total, Bobby and Jessie provided $81,000
in cashier's checks.

Later that afternoon, Walsh notified Jessie's counsel that Jessie had not complied
with the Family Home Order because Walsh was not authorized to accept Bobby's
assignment of his expected share of the Estate. Walsh indicated that even if she
could accept his assignment, she had only received $156,000, despite the order's
requirement that Jessie pay $159,000. Walsh then recognized her own $171,000
bid as successful in acquiring the Family Home.
On June 20, Jessie and Bobby filed petitions to enforce the sale and remove Walsh
as personal representative. They argued Walsh began the bidding process knowing
Jessie would be at a financial disadvantage because she declined to deed him the
Mill Street Property. They further asserted Walsh improperly denied Bobby's
request to pledge his $75,000 credit toward Jessie's purchase of the Family Home.

On June 22, Walsh deeded the Family Home to herself. Three days later, she filed
a return to the motions, along with counterclaims and a motion for judgment on the
pleadings and/or summary judgment.

On July 11, the probate court heard the motions to compel and to remove Walsh as
personal representative. Two days later, Walsh executed a deed of distribution to
Jessie for the Mill Street Property. On July 26, Walsh filed an inventory and
appraisement of certain assets, but she declined to provide account values. On July
28, the probate court ordered the parties to mediate. On July 31, Jessie and Bobby
issued a subpoena requiring Walsh to produce statements for Mother's checking
account. Walsh moved to quash and sought an order of protection.

At the December 2018 hearing before the probate court, Jessie testified he brought
Bobby into the bidding process for the Family Home because he needed additional
funds due to Walsh's refusal to deed him the Mill Street Property.

The probate court removed Walsh as personal representative and appointed
Attorney as successor personal representative. The probate court found Walsh
complied with the terms of the May 15, 2018 order but "failed to exercise
reasonable care, skill, and caution" in refusing to allow Jessie and Bobby to
purchase the Family Home for $312,000. The probate court further found Walsh
violated her fiduciary duty and caused significant harm to the Estate when she sold
the Family Home to herself for $141,000 less than Jessie and Bobby agreed to pay.
The probate court instructed Walsh to deed the Family Home back to the Estate
and ordered that Jessie and Bobby's agreement "to purchase the property for
$312,000 shall be enforced." The Estate was ordered to accept Jessie and Bobby's
$150,000 in notes and $81,000 in cashier's checks towards the purchase price. The
probate court found Walsh's actions caused delays in distributing the Estate and
conflict among the beneficiaries, including Kelvin, who was not involved in the
dispute over the Family Home. Walsh appealed to the circuit court.

After hearing Walsh's appeal, the circuit court affirmed the probate court's
decision. The circuit court found the probate court's requirement that the highest
bidder pay 75% of the total bid was based on the fact that each beneficiary had a
25% interest in the Family Home, and the winning bidder would be purchasing the
interests of the other beneficiaries. The circuit court's order provided the following
calculations:

Amount bid by Jessie and Bobby $312,000.00

Less: 50% interest owned by Jessie and Bobby ($156,000.00)

BALANCE DUE TO ESTATE $156,000.00

Less: $75,000 credit per Consent Order ($75,000.00)

NET BALANCE DUE TO ESTATE $81,000.00

Walsh filed a timely Rule 59(e), SCRCP, motion, which the circuit court denied.

Standard of Review

"[A]n action for breach of fiduciary duty is either an action at law or in equity
depending on the remedy sought." Bennett v. Est. of King, 436 S.C. 614, 621–22,
875 S.E.2d 46, 50 (2022). An action to remove a personal representative is
equitable in nature. Church v. McGee, 391 S.C. 334, 342, 705 S.E.2d 481, 485
(Ct. App. 2011); Blackmon v. Weaver, 366 S.C. 245, 248, 621 S.E.2d 42, 43 (Ct.
App. 2005). "In an action at equity, tried by a judge alone, [the court's] standard of
review is de novo." Fountain v. Fred's, Inc., 436 S.C. 40, 47, 871 S.E.2d 166, 170
(2022); see also Gilbert v. McLeod Infirmary, 219 S.C. 174, 184, 64 S.E.2d 524,
528 (1951) (noting an appellate court "ha[s] jurisdiction in appeals in equity to find
the facts in accord with our view of the preponderance or greater weight of the
evidence").

Analysis

I. Consent Order

Initially, Walsh argues the circuit court erred in finding the Family Home Order
was not a consent order. Walsh contends that because the Family Home Order is a
consent order, Respondents cannot complain because she complied with the
requirements of the order. We disagree.
First, we find Walsh failed to preserve this issue for appellate review. Although
Walsh repeatedly called the May 16, 2018 order a consent order before both the
probate and circuit courts, she did not argue Jessie and Bobby could not be
"aggrieved" as she now seeks to assert on appeal. 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 judge to be preserved for appellate review.").

In any event, whether the order was a consent order or not is immaterial. Jessie
and Bobby did not challenge the order itself—they sought to enforce the real
property sale and have Walsh removed for her breaches of fiduciary duty. The
probate court did not remove Walsh for her noncompliance with the Family Home
Order but for her breaches of fiduciary duty to the Estate and its beneficiaries.

II. Removal of Personal Representative

Walsh next argues the circuit court erred in affirming the probate court's order
removing her as personal representative of the Estate. Walsh contends she did not
breach her fiduciary duties because she complied with the probate court's order
governing the sale of the Family Home. Again, Walsh misunderstands the probate
court's decree. Section 62-3-703(a) of the South Carolina Code provides:

A personal representative is a fiduciary who shall
observe the standards of care described by Section
62-7-804. A personal representative has a duty to settle
and distribute the estate of the decedent in accordance
with the terms of a probated and effective will and this
code, and as expeditiously and efficiently as is consistent
with the best interests of the estate. He shall use the
authority conferred upon him by this code, the terms of
the will, and any order in proceedings to which he is
party for the best interests of successors to the estate.

S.C. Code Ann. § 62-3-703(a) (Supp. 2023). Section 62-7-804 states, "A trustee
shall administer the trust as a prudent person would, by considering the purposes,
terms, distributional requirements, and other circumstances of the trust. In
satisfying this standard, the trustee shall exercise reasonable care, skill, and
caution."
"A person interested in the estate may petition for removal of a personal
representative for cause at any time." S.C. Code Ann. § 62-3-611(a) (Supp. 2023).

Cause for removal exists when removal would be in the
best interests of the estate, or if it is shown that a personal
representative or the person seeking his appointment
intentionally misrepresented material facts in the
proceedings leading to his appointment, or that the
personal representative has disregarded an order of the
court, has become incapable of discharging the duties of
his office, or has mismanaged the estate or failed to
perform any duty pertaining to the office.

S.C. Code Ann. § 62-3-611(b) (Supp. 2023).

Here, the evidence established that Walsh breached her fiduciary duty to the
Estate. Walsh had a duty to administer the Estate in the best interest of the
beneficiaries. Even if Walsh complied with the Family Home Order, she also
clearly attempted actions not in the Estate's best interest.

After submitting the highest bid, Jessie and Bobby remitted payment within ten
days as required at 11:30 a.m. on June 11, 2018. At 2:49 p.m. on June 11, 2018—
not even an hour after the payment deadline—Walsh informed Jessie's counsel that
he had not complied with the probate court's order and accepted her own much
lower bid. Walsh did not notify Jessie and Bobby that she believed their payment
to be $3,000 short nor give them time to correct the alleged mistake prior to her
effort to purchase the Family Home at a significantly lower price. Walsh was fully
aware that accepting her much lower bid would result in Kelvin receiving some
$30,000 less as an Estate beneficiary. To act in the best interests of the Estate,
Walsh should have notified Jessie prior to the 2:07 p.m. deadline that his payment
was insufficient. We find Walsh's decision to instead notify her own counsel of
her intent to exercise the purchase option within twenty minutes—and maybe
sooner—of the payment deadline is further evidence of her failure to act in the
Estate's best interests. When their payment was remitted, Jessie and Bobby gave
no indication that they intended to pay only $156,000; in fact, their counsel
calculated the amount owed to the Estate as $159,000, confirmed such with
Walsh's counsel, and engaged in several emails discussing the payment process.
Additionally, when it became apparent that there was a dispute over whether Jessie
and Bobby owed $156,0000 or $159,000, Walsh could have sought clarification
from the probate court but chose not to—presumably in support of her own effort
to purchase the Family Home at the considerably lower price. Notably, Jessie and
Bobby's calculation of $156,000 is based on each beneficiary having a 25% interest
in the Family Home; thus, they were purchasing Kelvin and Walsh's 25% interests,
valued at $78,000 each. 1 Initially, the parties calculated the amount owed to the
Estate differently. Even though the order allowed Walsh to exercise her option to
purchase at $171,000, the exercise of reasonable care, skill, and caution in
pursuing the Estate's best interest required—at a minimum—notifying Jessie and
Bobby of a potential miscalculation. When the probate court included the option
for the losing bidder to purchase the Family Home for $171,000 if the winning
bidder did not pay within ten days, it likely contemplated a situation in which the
winning bidder failed to pay at all or could not afford the purchase—not a dispute
over how to calculate the amount owed.

We find Walsh's refusal to deed the Mill Street Property to Jessie problematic as
well. Jessie testified he wanted to use the Mill Street Property as collateral in the
bidding process. Yet, despite Mother's specific bequest, Walsh claimed she did not
think she could distribute the Mill Street Property without distributing the other
properties. Regardless of the reason Jessie sought the deed to which he was
entitled, we see no reason Walsh could not have complied. Walsh testified the
Estate was incurring expenses; however, she admitted approximately $370,000 in
cash remained. Thus, her refusal to deed the Mill Street Property to Jessie further
supported her removal as personal representative.

For these reasons, the circuit court's order affirming the probate court's removal of
Walsh as personal representative of the Estate is

AFFIRMED. 2

THOMAS, MCDONALD, and HEWITT, JJ., concur.

1
This is likely the proper calculation. The Family Home Order contemplated a
sole beneficiary purchasing the Family Home, which is likely how it arrived at
75% of the purchase price to be paid to the Estate. Walsh's duty of care required
her to at least consider whether this calculation method was proper and to consult
the probate court if necessary, as opposed to simply voiding Jessie and Bobby's
purchase effort in favor of exercising her own lower bid—despite its negative
impact on the value of the Estate.
2
We decide this case without oral argument pursuant to Rule 215, SCACR.