Brailsford v. Brailsford

• Decision Date: 14 November 2008
• Docket Number: No. 4456.,4456.
• Citation: 669 S.E.2d 342,380 S.C. 443
• Court: South Carolina Court of Appeals
• Parties: Donna F. BRAILSFORD, Individually and as Personal Representative and Trustee under the Will of William M. Brailsford, Deceased, and Kelly T. Brailsford, an Incapacitated Person by her Guardian ad Litem, Plaintiffs, Of Whom Donna F. Brailsford, Individually and as Personal Representative and Trustee under the Will of William M. Brailsford, Deceased is the Appellant, v. John F. BRAILSFORD, Jr., Individually and as Personal Representative and Trustee, and Marjorie B. Nickel, and Elizabeth B. Davis, as Trustees, Respondents.

669 S.E.2d 342

380 S.C. 443

Donna F. BRAILSFORD, Individually and as Personal Representative and Trustee under the Will of William M. Brailsford, Deceased, and Kelly T. Brailsford, an Incapacitated Person by her Guardian ad Litem, Plaintiffs Of Whom Donna F. Brailsford, Individually and as Personal Representative and Trustee under the Will of William M. Brailsford, Deceased is the Appellant, v. John F. BRAILSFORD, Jr., Individually and as Personal Representative and Trustee, and Marjorie B. Nickel, and Elizabeth B. Davis, as Trustees, Respondents.

No. 4456.

Court of Appeals of South Carolina.

Heard September 16, 2008.

Decided November 14, 2008.

Adele Jeffords Pope, of Columbia, for Appellant.

Henry W. Brown, of Columbia, for Respondents.

Pope D. Johnson, III, of Columbia, for Guardian Ad Litem.

THOMAS, J.:

Donna Brailsford (Donna), in her individual and representative capacities, appeals the trial court's Order Granting Summary Judgment and Dismissing Causes of Action, arguing (1) her cause of action on behalf of the estate of William M. Brailsford (William) for fraud survived William's death; and (2) in the alternative, the trial judge lacked authority to issue the Order after engaging in allegedly inappropriate ex parte communication with opposing counsel. Donna also appeals the denial of her motion to alter or amend, alleging the trial judge was without jurisdiction to issue the order after having orally recused himself. We affirm as modified.

FACTS

This appeal is from the Orangeburg County Court of Common Pleas and involves the trusts and estates of Marjorie Brailsford (Mother) and John F. Brailsford (Father). During their lives, Mother and Father created a trust, from which upon their deaths the proceeds were to be distributed to each of their five children: John Jr., William, Marjorie Nickel, Elizabeth Davis, and Florence Brailsford¹. The amount to be distributed to each child was to be adjusted to allow for any gifts given to the respective child during the lives of Mother and Father. Both Mother and Father died in 2000. William died in 2001, survived by his widow, Donna, and an incompetent daughter, Kelly Brailsford.

John Jr., served as the personal representative of the estates of both Mother and Father. He also served as a co-trustee of the trust, along with Marjorie and Elizabeth, as well as co-guardian of the incompetent Florence.

This action was commenced by Donna, personally and in her capacity as Personal Representative of William's estate alleging ten causes of action, including an action entitled "fraud." Subsequently, Kelly was joined as a plaintiff; however, she does not join in this appeal. Initially Donna and Kelly were represented jointly by attorneys Adele Pope and Pope Johnson. However, on December 29, 2004, the trial court issued an order relieving each from joint representation and ordering Johnson to represent only Kelly and Pope to represent only Donna.

In her complaint, Donna alleges various instances of fraudulent conduct that, among other things, affected the amount of distributions made by the trust to William's estate.² Among these causes of action was one for fraud arising from a transaction in 1989, in which John, Jr., acquired William's 49% interest in the family owned business by allegedly concealing from him a tort claim the company had. By becoming 100% owner, John Jr. became the sole recipient of an $8 Million settlement.

Defendant moved the court for summary judgment, and on December 1, 2004, a hearing was held on this motion, at which Attorney Johnson appeared on behalf of all plaintiffs. During the hearing the trial judge orally granted summary judgment and dismissed Donna's "fraud" cause of action and other causes of action that alleged fraud or deceit against William, "whether called fraud or something else." On February 22, 2005, the trial judge issued a written Order Granting Summary Judgment and Dismissing Causes of Action, as to fraudulent facts and circumstances relating to William Brailsford before his death, stating as follows:

(1) the Plaintiff's third cause of action premised on Fraud is dismissed with prejudice as to all Plaintiffs to the extent this cause of action is based on facts relating to William Brailsford prior to his death. (2) As to all other causes of action, any portion thereof that is premised upon or supported by allegations or evidence generally constituting fraud and deceit, and relating to William Brailsford, are dismissed with prejudice. (3) This Order does not constitute a bar to any evidence or cause of action pertaining to facts and circumstances not meeting the general definition of fraud and deceit and unrelated to William Brailsford.³

In the interim, between the oral granting of summary judgment and entry of the written order, counsel for Donna alleged the trial judge engaged in inappropriate ex parte communication with opposing counsel. Based on this belief, on February 24, 2005, Donna's attorney filed a Motion to Recuse, alleging the judge to be, inter alia, biased and incapable of rendering an impartial opinion.

Subsequently on March 1, 2005, Donna filed a Motion to Alter or Amend the Judgment of the court as to the granting of summary judgment. On March 7, 2005, a hearing was held on Donna's Motion to Recuse. During the hearing the trial judge denied the accusations set forth in the motion but nonetheless stated he was recusing himself from the case.

On March 9, the trial judge issued a written denial of Donna's Motion to Alter or Amend and the next day, March 10, issued a written Order of Recusal, recusing himself from the case.

Donna now appeals the granting of summary judgment and also alleges that it was improper for the trial judge to rule on her Motion to Alter or Amend.

STANDARD OF REVIEW

When reviewing the grant of a summary judgment motion, this Court applies the same standard which governs the trial court under Rule 56(c), SCRCP: summary judgment is proper when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fleming v. Rose, 350 S.C. 488, 493, 567 S.E.2d 857, 860 (2002). In determining whether a triable issue of fact exists, the evidence and all factual inferences drawn from it must be viewed in the light most favorable to the nonmoving party. Sauner v. Pub. Serv. Auth., 354 S.C. 397, 404, 581 S.E.2d 161, 165 (2003).

LAW/ANALYSIS

I. Survivability of a fraud cause of action

Donna first argues that section 62-1-106 of the South Carolina Probate Code operates as a survival statute, which would allow a fraud claim to survive the death of William Brailsford. This argument was not preserved for appeal.

Generally "[a] party cannot use a motion ... to alter or amend a judgment to present an issue that could have been raised prior to judgment but was not." Tallent v. South Carolina Dep't of Transp., 363 S.C. 160, 165, 609 S.E.2d 544, 546 (Ct.App.2005); see also MailSource, LLC v. M.A. Bailey &amp Assocs. Inc., 356 S.C. 370, 374, 588 S.E.2d 639, 641 (Ct.App.2003) ("A party cannot raise an issue for the first time in a Rule 59(e), SCRCP motion which could have been raised at trial."). In the case sub judice, the argument concerning section 62-1-106 was never presented to the trial court before the filing of the Motion to Alter or Amend; therefore, it is not preserved for appeal and we decline to address it.

Donna next argues that it was error for the trial court to dismiss her "fraud" cause of action and other causes of action that were based on acts against William before his death. We disagree, but herein modify the trial court's order.

Statutory law in South Carolina provides "[c]auses of action for and in respect to ... any and all injuries to the person or to personal property shall survive both to and against the personal or real representative ... of a deceased person ... any law or rule to the contrary notwithstanding." S.C.Code Ann. § 15-5-90 (1976). South Carolina, however, has long recognized several exceptions to the survivability of a claim, including an exception for fraud. See Mattison v. Palmetto State Life Ins. Co., 197 S.C. 256, 15 S.E.2d 117 (1941) (actions for fraud or deceit are excepted from the survivability statute); Ferguson v. Charleston Lincoln Mercury, Inc., 349 S.C. 558, 564-65, 564 S.E.2d 94, 97 (2002); Pamplico Bank & Trust Co. v. Prosser, 259 S.C. 621, 625, 193 S.E.2d 539, 540 (1972); Brewer v. Graydon, 233 S.C. 124, 124, 103 S.E.2d 767, 769 (1958).

In the case at hand, Donna pleads a cause of action for fraud as well as various other causes of action. Applying this State's longstanding exception to the survivability statute for fraud, as set forth in Mattison and reiterated in Ferguson, her third cause of action for fraud cannot survive William's death. We therefore hold that the trial judge properly dismissed her cause of action for fraud.

As it relates to the other causes of action, the trial judge found "all other causes of action [and] any portion thereof that is premised upon or supported by allegations or evidence generally constituting fraud and deceit, and relating to William Brailsford, are dismissed with prejudice." The trial court order made no specific ruling on which, if any, causes of actions were dismissed.⁴

The fraud exception to survivability is not limited only to a cause of action titled "fraud." Ferguson, 349 S.C. at 564-65, 564 S.E.2d at 97. In Ferguson, our supreme court recognized that although Ferguson's cause of action arose under the "Dealer Act,"⁵ the essence of the Defendant's alleged conduct amounted to misleading Mr. Ferguson, and concealing overcharges by either intentional deception or gross negligence. Id. The court held that because such actions fit within the ambit of fraudulent or deceptive conduct, it was insignificant what "label" the Plaintiff gave to such conduct. Id. at 565, 564 S.E.2d at 97.

Accordingly, insomuch as any of Donna's causes of action are...