Myers v. Kaufmann

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

Jerome Myers and Gloria Myers, Appellants,

v.

Walter R. Kaufmann, Kaufmann and Associates, LLC,
Joseph A. Broom, Active Day, Inc., Craig Mehnert COO,
Bettye Dorn as Center Director of Active Day, Inc. @
Charleston, SC, Respondents.

Appellate Case No. 2014-000077

Appeal From Charleston County
Kristi Lea Harrington, Circuit Court Judge

Unpublished Opinion No. 2016-UP-125
Submitted February 1, 2016 – Filed March 2, 2016

AFFIRMED

Jerome Myers and Gloria Myers, of North Charleston,
pro se.

John Joseph Dodds, III, of The Law Firm of Cisa &
Dodds, LLP, of Mt. Pleasant for Respondents Walter R.
Kaufmann, Kaufmann and Associates, LLC, and Joseph
A. Broom.
David Starr Cobb, of Turner Padget Graham & Laney,
PA, of Charleston, for Respondents Active Day, Inc.,
Craig Mehnert, and Bettye Dorn.

PER CURIAM: Jerome and Gloria Myers (Appellants) appeal the circuit court's
order dismissing their action against Walter R. Kaufmann, Kaufmann and
Associates, LLC, Joseph A. Broom, Active Day, Inc., Craig Mehnert CCO, and
Bettye Dorn as Center Director of Active Day, Inc. @ Charleston, SC
(Respondents) pursuant to Rule 12(b)(6), SCRCP, for failure to state a cognizable
claim. Appellants argue (1) the circuit court erred in refusing to admit documents
as evidence prior to its decision; (2) the probate court erred in offering a "visitor
competency investigation[;]" (3) the probate court erred in appointing Walter
Kaufmann to serve as guardian; (4) the probate court erred by allowing Kaufmann
to continue to serve as guardian under the original guardianship order after he
began Kaufmann and Associates, LLC; (5) the probate court erred by failing to
supervise the guardian; (6) the probate court erred in approving payments to
Kaufmann after the Department of Veterans Affairs determined his ward to be
competent; (7) Kaufmann violated section 62-5-104 of the South Carolina Code
(2009) by granting guardianship duties to Broom; (8) Kaufmann did not have
authority to appoint Broom as conservator; (9) Kaufmann "violate[d] the peace and
privacy of [his ward's] enjoyment" by appointing Broom a "temporary guardian[;]"
(10) Kaufmann committed conversion of his ward's disability benefits; (11)
Kaufmann should suffer disgorgements for his actions; (12) Broom violated South
Carolina law by acting as a guardian without a lawful certificate of appointment;
(13) Dorn violated South Carolina law by assisting Broom in transporting the
ward; (14) Respondents "failed to yield to the Supremacy Clause[;]" and (15)
Kaufman "wrongfully attack[ed]" Appellants when they obtained a power of
attorney from the ward following the Department of Veteran's Affairs
determination. We affirm1 pursuant to Rule 220(b), SCACR, and the following
authorities:

As to issue 1: Doe v. Marion, 373 S.C. 390, 395, 645 S.E.2d 245, 247 (2007) ("In
reviewing the dismissal of an action pursuant to Rule 12(b)(6), SCRCP, the
appellate court applies the same standard of review as the [circuit] court."); id. ("In
considering a motion to dismiss a complaint based on a failure to state facts

1
We decide this case without oral argument pursuant to Rule 215, SCACR.
sufficient to constitute a cause of action, the [circuit] court must base its rulings
solely on allegations set forth in the complaint." (emphasis added)); id. ("If the
facts alleged and inferences reasonably deducible therefrom, viewed in the light
most favorable to the plaintiff, would entitle the plaintiff to relief on any theory,
then dismissal under Rule 12(b)(6) is improper.").

As to issues 2-6: Rule 203(b)(1), SCACR ("A notice of appeal shall be served on
all respondents within thirty (30) days after receipt of written notice of entry of the
order or judgment."); Rule 203(b)(5), SCACR (stating appeals from the probate
court "shall be served in the same manner as provided by Rule 203(b)(1)"); USAA
Prop. & Cas. Ins. Co. v. Clegg, 377 S.C. 643, 651, 661 S.E.2d 791, 795 (2008)
("The requirement of service of the notice of appeal is jurisdictional, i.e., if a party
misses the deadline, the appellate court lacks jurisdiction to consider the appeal...."
(quoting Elam v. S.C. Dep't of Transp., 361 S.C. 9, 14-15, 602 S.E.2d 772, 775
(2004))).

As to issues 7-15: Pye v. Estate of Fox, 369 S.C. 555, 566, 633 S.E.2d 505, 510
(2006) ("It is well settled that an issue cannot be raised for the first time on appeal,
but must have been raised to and ruled upon by the [circuit] court to be
preserved."); Lapp v. S.C. Dep't of Motor Vehicles, 387 S.C. 500, 507, 692 S.E.2d
565, 569 (Ct. App. 2010) ("To be preserved for appellate review, an issue must
have been: (1) raised to and ruled upon by the [circuit] court, (2) raised by the
appellant, (3) raised in a timely manner, and (4) raised to the [circuit] court with
sufficient specificity." (emphasis added)); Rodriguez v. Gutierrez, 391 S.C. 323,
330, 705 S.E.2d 94, 98 (Ct. App. 2011) ("When an issue or argument has been
raised to but not ruled upon by the circuit court, a party must file a Rule 59(e) [,
SCRCP] motion in order to preserve it for appellate review."); Herron v. Century
BMW, 395 S.C. 461, 465, 719 S.E.2d 640, 642 (2011) ("Issue preservation rules
are designed to give the [circuit] court a fair opportunity to rule on the issues, and
thus provide us with a platform for meaningful appellate review." (quoting Queens
Grant II Horizontal Prop. Regime v. Greenwood Dev. Corp., 368 S.C. 342, 373,
628 S.E.2d 902, 919 (Ct. App. 2006))); State v. Burton, 356 S.C. 259, 265 n.5, 589
S.E.2d 6, 9 n.5 (2003) (noting "[a] pro se litigant who knowingly elects to
represent himself assumes full responsibility for complying with the substantive
and procedural requirements of the law").

AFFIRMED.

FEW, C.J., and SHORT and THOMAS, JJ., concur.