Matthews v. Matthews

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

Max E.
Matthews, as Co-Personal Representative of the Estate of Tillman B. Matthews,
Sr., Appellant,

v.

Ann J.
Matthews, South Carolina Bank and Trust, First Citizens Bank, and Charles J.
Matthews, Respondents.

Appeal From Richland County

G. Thomas Cooper, Jr., Circuit Court
Judge

Unpublished Opinion No. 2010-UP-361

Submitted April 1, 2010 – Filed July 12,
2010   

AFFIRMED

Matthew E. Steinmetz of Columbia, for
Appellant.

Charles J. Hupfer, Jr., of Florence, E.
LeRoy Nettles, Sr., of Lake City; Thomas E. Lydon, W. Cliff Moore, and John D.
Hudson, Jr., all of Columbia, for Respondents.

PER CURIAM: Max
E. Matthews, as co-personal representative of the estate of Tillman B. Matthews,
Sr. appeals the trial court's order dismissing his action against Ann J.
Matthews, South Carolina Bank and Trust (SCB&T), First Citizens Bank, and
Charles J. Matthews (collectively Respondents).[1] 
We affirm.[2]

FACTS/PROCEDURAL
HISTORY

Tillman died testate on June
6, 2004 at the age of 94.  His will was admitted to informal probate in
Florence County on July 15, 2004.  In his will, Tillman appointed his sons from
a prior marriage, Max, Charles, and Tillman Jr.[3] as the corepresentatives of his estate.  Charles submitted an inventory to the
probate court on February 3, 2005 verified only by himself because Max refused
to verify it. 

In September of 2005, Max
filed a petition in probate court asserting the inventory was false in that it
significantly understated the value of the estate and omitted items of personal
property and funds Max believed Tillman owned at the time of his death.  He
claimed Tillman's widow, Ann, had used a power of attorney while Tillman was
"incapacitated, blind, and vulnerable" to move funds into accounts in
her name and thus received funds from bank accounts that should have passed
under the residuary clause of the will.  He asserted Ann and others utilized
efforts to pay herself funds to which she was not entitled, including
certificates of deposit at SCB&T.  He also claimed she and others entered
into Tillman's safe deposit box at First Citizens Bank after his death without
all personal representatives or a bank officer being present.  He asseverated
all of Ann's financial transactions with Tillman are null and void.  He alleged
she had been communicating with Charles about closing the estate quickly.  Max
also filed a petition to remove Charles as personal representative.

Max, acting as corepresentative
of the estate of his father, subsequently brought the present action against
Ann, Charles, SCB&T. and First Citizens Bank in the court of common pleas
for Richland County.  In his complaint, Max made similar allegations as he did in
his probate court petition.  He asserted causes of action against Ann and the
banks for breach of fiduciary duties in connection with the durable power of
attorney, influenced transactions prior to the power of attorney, conversion,
negligence per se, and violation of the Omnibus Adult Protection Act.  In
addition, he asserted a cause of action for conspiracy against all of the
defendants, constructive trust against Ann, and violation of the South Carolina
Unfair Trade Practices Act (SCUTPA) against the banks. 

All of the defendants
answered.  Ann, Charles, and First Citizens each filed motions to dismiss. 
After a hearing, the trial court dismissed the case.  The court held it did not
have jurisdiction because the matters alleged in the complaint were directly
related to the administration of the estate and were in the original
jurisdiction of the Probate Court of Florence County.  Max filed a motion to
reconsider, which the court denied. 

He then timely appealed to
this court.  During the pendency of the appeal, a dispute arose regarding
whether the court's order, which referenced only Ann's motion to dismiss, applied
to just Ann or to all defendants.  This court granted Max's motion for a remand
to seek clarification of the order.  On remand, the trial court held the action
was dismissed as to all defendants.  Max served and filed a timely appeal of
this order.

STANDARD OF REVIEW

"The question of subject
matter jurisdiction is a question of law for the court."  Capital City
Ins. Co. v. BP Staff, Inc., 382 S.C. 92, 99, 674 S.E.2d 524, 528 (Ct. App.
2009).  Thus, when reviewing the trial court's grant of a motion to dismiss for
lack of subject matter jurisdiction pursuant to Rule 12(b)(1), SCRCP, this
court is free to decide questions of law with no deference to the trial court.  Id.

LAW/ANALYSIS

1. Exclusive jurisdiction of
probate court

Max argues the circuit court
erred in holding the probate court had exclusive jurisdiction over the action. 
We disagree. 

The South Carolina Probate
Code confers exclusive original jurisdiction to the probate court over all
subject matter related to estates of decedents.  S.C. Code Ann. § 62-1-302(a)(1)
(2009) (providing probate court has exclusive original jurisdiction over all
subject matter related to "estates of decedents, including the contest of
wills, construction of wills, and determination of heirs and successors of
decedents and estates of protected persons").  An action requesting
settlement of a claim owed by and to an estate must be originated in the
probate court.  Anderson v. Anderson, 299 S.C. 110, 115, 382 S.E.2d 897,
900 (1989). 

Max asserts the probate court
lacks subject matter jurisdiction over tort actions.  He claims:  "Indeed,
if the decision of the lower court dismissing [his] Complaint is upheld, such
will set a new precedent requiring that all civil actions brought on behalf of
estates or beneficiaries, including actions for wrongful death, must be brought
first in the Probate Court."  The probate code specifically addresses the
circuit court's concurrent jurisdiction for wrongful death and survival
actions.[4] 
In addition, while certain claims must originate in probate court, they may be
removed to circuit court pursuant to section 62-1-302(d), which provides in
part:

Notwithstanding
the exclusive jurisdiction of the probate court over the foregoing matters, any
action or proceeding filed in the probate court and relating to the following
subject matters, on motion of a party, or by the court on its own motion, made
not later than ten days following the date on which all responsive pleadings
must be filed, must be removed to the circuit court and in these cases the
circuit court shall proceed upon the matter de novo:

.
. .

(5) actions in which a party has a right to trial by
jury and which involve an amount in controversy of at least five thousand
dollars in value. . . .

S.C. Code Ann. § 62-1-302(d)
(2009 & Supp. 2009). 

In his response to Ann's and
Charles' motions to dismiss, Max acknowledged this section was applicable to
the present case even though he had originated his claim in circuit court
rather than filing it in probate court and seeking removal to circuit court
pursuant to the statute.  We find no merit to Max's assertion that the probate
court does not have jurisdiction over tort actions when those actions are related
to estates of decedents.  See also Fulmer v. Cain, 380 S.C. 466,
471, 670 S.E.2d 652, 655 (2008) (Toal, C.J., concurring) (agreeing order
denying removal was not immediately appealable but noting appellant had an
absolute right to remove the case to circuit court for causes of action
including tortious interference with a contract and tortious interference with
inheritance rights); Mayer v. M.S. Bailey & Son, 347 S.C. 353, 357-58,
555 S.E.2d 406, 408 (Ct. App. 2001) (noting action against bankers for breach
of contract, breach of contract accompanied by fraudulent act, breach of
fiduciary duty, and violation of the SCUTPA concerning administration of trust
filed in circuit court had been dismissed without prejudice for lack of
jurisdiction before it was brought in probate court). 

Max brought the present
action on behalf of the estate.  His claims are based on Ann's alleged
transformation of probate assets into non-probate assets and removal of assets
from the estate after Tillman's death.  He sought a determination of assets
belonging to the estate, a return of the assets allegedly taken, and damages
arising from the alleged removal.  We hold these claims fall within the probate
court's exclusive original jurisdiction over all subject matter related to
estates of decedents.  Accordingly, the trial court did not err in dismissing
Max's claims.

2.  Max's lack of authority
to bring action as corepresentative

The Respondents contend as an
additional sustaining ground this court should find Max did not have the authority
to bring this action without the concurrence of his corepresentative, Charles. 
The Probate Code provides: "If two or more persons are appointed
corepresentatives and unless the will provides otherwise, the concurrence of
all is required on all acts connected with the administration and distribution
of the estate."  S.C. Code Ann. § 62-3-717 (2009). 

In his reply brief, Max only
contends this issue is not properly before the court because it was not raised
to or ruled on by the trial court.  However, this court may affirm for any
reason appearing in the record.  Rule 220(c), SCACR ("The appellate court
may affirm any ruling, order, decision or judgment upon any ground(s) appearing
in the Record on Appeal."); I'On, L.L.C. v. Town of Mount Pleasant,
338 S.C. 406, 419, 526 S.E.2d 716, 723 (2000) ("Under the present rules, a
respondent-the 'winner' in the lower court-may raise on appeal any additional
reasons the appellate court should affirm the lower court's ruling, regardless
of whether those reasons have been presented to or ruled on by the lower court."). 
Accordingly, we hold we may consider this issue. 

Max did not bring this action
individually but was solely acting as the corepresentative of the estate.  He
did not have the concurrence of Charles, his corepresentative, to bring the
action.  Thus, under section 62-3-717, he did not have the authority to bring
the action. 

CONCLUSION

We find no error in the trial
court's dismissal of Max's complaint.  Accordingly, the order of the trial court
is

AFFIRMED.[5]

HUFF,
THOMAS, and KONDUROS, JJ., concur.

[1] The Matthews family members are referred to by their first names. 

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

[3] Tillman Jr. passed away in September of 2004.

[4] "The court's jurisdiction over matters involving wrongful death or actions
under the survival statute is concurrent with that of the circuit court and
extends only to the approval of settlements . . . and to the allocation of
settlement proceeds among the parties involved in the estate."  S.C. Code
Ann. § 62-1-302(b) (2009).

[5] SCB&T and First Citizens Bank assert the
appeal should be dismissed because Max failed to preserve the issue of the
identity of the parties to whom the trial court's original order applied by not
seeking clarification in his motion to alter or amend.  Max served all parties
with his notice of appeal of the trial court's December 2006 and January 2007
orders.  Thus, he timely appealed as to all parties.  Max does not dispute on
appeal the identity of the parties to whom the dismissal applied.  We find this
argument to be without merit.