The Estate of John Joseph Manning v. Bushman

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 the Estate of John Joseph Manning, Jr.

Deanna Bushman, as Holder of Durable Power of
Attorney for Sally Manning and as Trustee of the Trust
Agreement of Sally Manning Dated December 6, 2004,
Respondent,

v.

The Estate of John J. Manning, Jr.; John J. Manning, III;
Christopher Manning; and Linda Manning, Appellants.

Appellate Case No. 2017-002019

Appeal From Beaufort County
Carmen T. Mullen, Circuit Court Judge

Unpublished Opinion No. 2019-UP-390
Submitted October 1, 2019 – Filed December 18, 2019

AFFIRMED

Robert Bruce Wallace and Stephen Peterson Groves, Sr.,
both of Nexsen Pruet, LLC, of Charleston, for
Appellants.

James Ashley Twombley, of Twenge & Twombley,
LLC, of Beaufort, for Respondent.
PER CURIAM: In this dispute involving a trust, John J. Manning, III,
Christopher Manning, Linda Manning, and the Estate of John J. Manning, Jr.
(Appellants) appeal from the trial court's order granting partial summary judgment
to Deanna Bushman, as holder of durable power of attorney for Sally Manning and
as trustee of the trust agreement for Sally Manning (Sally). Appellants argue the
trial court erred in (1) not finding John J. Manning, Jr.'s (Jack1) trust agreement
created a valid support trust for Sally; (2) relying on an attorney's affidavit; and (3)
determining the support trust was without any value. We affirm.

FACTS

Jack and Sally were married on October 15, 1997. After they married, Sally was
diagnosed with Alzheimer's disease, and by December 2010, Sally was living at a
center with full-time care. Sally was still married to Jack at his death on
September 4, 2014.

Jack's Last Will and Testament, signed September 2, 2009, provided: "I expressly
make no provision in this Will for my wife, SALLY A. MANNING as she has
been provided for by other means." Jack set up a revocable trust agreement, which
he amended three times. The Third Amendment and Restatement of Jack's
Revocable Trust, dated July 26, 2012, stated: "I hereby expressly make no
provision in this Trust Agreement for my spouse, SALLY A. MANNING."
However, the next sentence provided:

Notwithstanding the above, in the event any portion of
the Trust Estate shall be deemed payable to or for the
benefit of my spouse, such amount shall be held,
administered and distributed as a separate share for the
benefit of my spouse as provided in this Paragraph (C) of
ARTICLE 4. In such event, JOHN J. MANNING, III
and CHRISTOPHER H. MANNING, or the survivor of
them, shall serve as trustee of such separate share.

(1) The trustee shall pay to, or for the benefit of, my
spouse, during her lifetime, so much of the income of the
separate share, if any, established in this Paragraph (C) as

1
The parties referred to him as Jack.
the trustee shall, from time to time, determine to be
necessary for the health and support of my spouse, in
accordance with the standard of living to which she has
become accustomed, including medical, surgical, hospital
or other institutional care, due regard being given by the
trustee to the amount of income known to the trustee to
be available to my spouse from other sources.

(2) Upon the death of my spouse, the principal and all
accrued and undistributed income, if any, of such
separate share shall be added to and become a part of the
Manning Family Share to be held, administered and
distributed as provided in ARTICLE 5.

Pursuant to Jack's Will, when he died, nothing passed to Sally. The trust described
in Jack's Revocable Trust Agreement was never funded and nothing has been paid
to Sally from John's estate or any related trust.

On behalf of Sally, Bushman made a claim for an elective share in April 2015
pursuant to South Carolina Code section 62-2-201(a), which provides the surviving
spouse of a decedent has a right to take an elective share of one-third of the
decedent's probate estate. S.C. Code Ann. § 62-2-201(a) (Supp. 2019). The action
was subsequently removed to the court of common pleas. Bushman filed an
amended complaint in the circuit court against Appellants on December 21, 2015,
asserting claims for breach of fiduciary duty, conversion, constructive trust, undue
influence and duress, removal of the current trustees, injunctive relief, an
accounting, and a petition and request for the elective share. Appellants filed an
answer on February 24, 2016, asserting counterclaims for conversion and
constructive trust. On March 15, 2016, Bushman asserted affirmative defenses in
her reply to Appellants' counterclaims. Appellants filed a motion for summary
judgment on March 9, 2017. On April 10, 2017, Bushman also filed a motion for
partial summary judgment as to the issue of the elective share. A hearing on the
motions was held on July 11, 2017. The issue in both motions was whether Sally
was entitled to take an elective share of one-third of Jack's estate, or if the
contingent and discretionary trust described in Jack's estate planning documents
was sufficient to satisfy Sally's elective share.

The trial court granted Bushman's motion for partial summary judgment on
September 8, 2017, which did not fully resolve the case. Appellants filed a motion
to reconsider, which was denied by the court in a Form 4 order on September 19,
2017. This appeal follows.

STANDARD OF REVIEW

"This court reviews the grant of a summary judgment motion under the same
standard applied by the trial court under Rule 56(c), SCRCP." Team IA, Inc. v.
Lucas, 395 S.C. 237, 244, 717 S.E.2d 103, 106 (Ct. App. 2011). Rule 56(c),
SCRCP, provides the court should grant summary judgment when "the pleadings,
depositions, answers to interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any material fact and
that the moving party is entitled to a judgment as a matter of law." "In ascertaining
whether any triable issue of fact exists, the evidence and all inferences that can be
reasonably drawn from the evidence must be viewed in the light most favorable to
the non-moving party." Team IA, Inc., 395 S.C. at 244, 717 S.E.2d at 106.

LAW/ANALYSIS

Appellants argue the trial court erred in not finding Jack's trust agreement created a
valid support trust for Sally. We disagree.

"Generally, orders granting partial summary judgment may be immediately
appealable under either the 'involving the merits' or 'substantial right' categories of
section 14-3-330(1) and (2)(c) [of the South Carolina Code]." Thornton v. S.C.
Elec. & Gas Corp., 391 S.C. 297, 306, 705 S.E.2d 475, 480 (Ct. App. 2011). "To
decide whether a particular summary judgment order fits into either subsection,
however, the [appellate] court must examine the order to determine if it meets the
subsection's criteria for appealability." Id. An order granting partial summary
judgment involves the merits of a case when it finally determines a substantial
matter forming the whole or a part of some cause of action or defense. Id.

The trial court found Sally was entitled to take an elective share of one-third of
Jack's estate, and the contingent and discretionary trust described in Jack's estate
planning documents did not satisfy the elective share under South Carolina law.
Because this finally determines the issue of elective share, we find this issue is
immediately appealable.

South Carolina Code section 62-2-201(a) provides: "If a married person domiciled
in this State dies, the surviving spouse has a right of election to take an elective
share of one-third of the decedent's probate estate." S.C. Code Ann. § 62-2-201(a)
(Supp. 2019). In Appellants' motion for summary judgment, they stated "there is
no dispute as to [Sally's] entitlement to an elective share of [John's] estate pursuant
to S.C. Code Ann. § 62-2-201, et seq. or that [Sally] (through her agent,
[Bushman]) timely filed an election for the elective share." Appellants also stated
they "do not dispute that the assets held in the trust at [Jack's] death are to be
included in the probate estate for purposes of determining the elective share
amount." They asserted the "sole issue for determination is 'how' the elective share
amount is to be distributed, i.e., in trust as per the terms of the July 26, 2012
Amended and Restated Trust or outright to [Sally]." Appellants argued they were
entitled to summary judgment because the assets in Jack's trust are subject to the
terms of Jack's trust and are not required to be distributed outright to Sally in
satisfaction of any portion of the elective share amount.

In her motion for partial summary judgment as to the elective share, Bushman
argued:

The decedent's probate estate includes the property that
passes under the decedent's will or by intestacy (reduced
by funeral and administration expenses and enforceable
claims) as well as the property contained in the
decedent's revocable inter vivos trust(s). S.C. Code Ann.
§ 62-2-202; see also 32 S.C. Jur. Wills § 205.

The South Carolina Code also lists what assets may be
charged against the elective share. Under S.C. Code
Ann. § 62-2-206, any amounts that pass to the surviving
spouse under the decedent's will, by intestacy, by any
homestead allowance, or by S.C. Code Ann. § 62-2-401
are charged against the elective share. South Carolina
Code Ann. § 62-2-207 specifies which probate and non-
probate transfers are to be charged against the elective
share. The elective share has "the legislative purpose of
providing for the surviving spouses." Matter of Patrick,
303 S.C. 559, 564, 402 S.E.2d 664, 666 (1991).

Because the elective share is designed to provide for the
surviving spouse, the subjective intent of the decedent
cannot and does not override the elective share. As the
South Carolina Supreme Court stated, "[t]he provisions
concerning the elective share do not provide for the
testator's intent to the contrary. . . . Therefore, we find
that the elective share provision may not be ignored
by a testator and affirm the trial court's ruling." Id. at
562-63, 402 S.E.2d at 666 (emphasis added). The
elective share is mandatory, and a surviving spouse can
take an elective share of the decedent's probate estate,
even if the decedent intended to provide the surviving
spouse with less. 32 S.C. Jur. Wills § 201.

Nothing passed to Sally at Jack's death because Jack expressly provided that "no
provision" be made for Sally in his will or trust. No transfers have been made to
Sally pursuant to South Carolina Code section 62-2-207 (Supp. 2019).
Additionally, no person or court has determined Sally is entitled to the
Discretionary Limited Use Trust, and Sally has never received any payments from
any such trust.

Bushman asserted:

Since nothing passed to Sally at Jack's death, the Court
should end its analysis here and allow Sally 'to take' one-
third of Jack's Estate as her elective share. . . . Sally has
the right to take an elective share of one-third of Jack's
probate estate as set forth in S.C. Code Ann. § 62-2-20l(a).
The Court is not required to examine the Discretionary
Limited Use Trust because it did not pass to Sally upon
Jack's death. Nothing passed to Sally, and therefore, the
Discretionary Limited Use Trust is irrelevant. If the Court
agrees, it is not necessary for the Court to address any of
the additional arguments below.

Appellants argue gifts made to a surviving spouse in a revocable inter vivos trust
count towards the elective share, which is correct; however, Jack did not pass
anything to Sally in an inter vivos trust. Thus, the issue on appeal from summary
judgment does not have anything to do with an inter vivos trust. Bushman argues
Jack tried to get around the elective share by attempting to outright disinherit Sally
and then attempted to tie Sally's benefits from the elective share to her need for the
benefits. Sally's right to claim an elective share is not contingent on her need.

Viewing the evidence in the light most favorable to Appellants, we find nothing
passed to Sally at Jack's death via his will or trust, pursuant to section 62-2-207, or
the Discretionary Limited Use Trust. Therefore, we find the trial court correctly
found Sally was entitled to take an elective share of one-third of Jack's estate, and
the contingent and discretionary support trust described in Jack's estate planning
documents did not meet the statutory standards for satisfying the elective share.
Thus, summary judgment on that issue for Bushman was proper.

Because this issue is dispositive of the appeal, we decline to address the remaining
arguments. See Futch v. McAllister Towing of Georgetown, Inc., 335 S.C. 598,
613, 518 S.E.2d 591, 598 (1999) (holding an appellate court need not review
remaining issues when its determination of another issue is dispositive of the
appeal).

CONCLUSION

Accordingly, the decision of the trial court is

AFFIRMED.2

SHORT, THOMAS, and GEATHERS, JJ., concur.

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