Cartee v. Lesley

• Decision Date: 22 April 1985
• Docket Number: No. 0517,0517
• Citation: Cartee v. Lesley, 333 S.E.2d 341, 286 S.C. 249 (S.C. App. 1985)
• Court: South Carolina Court of Appeals
• Parties: Mable Craig CARTEE, Joseph Lane Cartee, Gary L. Cartee and Gregory D. Cartee, Appellants-Respondents, v. Jasper P. LESLEY and W.G. Acker, Respondents-Appellants. . Heard

Page 341

333 S.E.2d 341

286 S.C. 249

Mable Craig CARTEE, Joseph Lane Cartee, Gary L. Cartee and Gregory D. Cartee, Appellants-Respondents, v. Jasper P. LESLEY and W.G. Acker, Respondents-Appellants.

No. 0517.

Court of Appeals of South Carolina.

Heard April 22, 1985.

Decided July 1, 1985.

Gary L. Cartee, Charleston, for appellants-respondents.

Edward Welmaker, Pickens, for respondents-appellants.

CURETON, Judge:

This appeal involves a suit by the beneficiaries under the will of E.F. Cartee against the executors-trustees for negligent management of Mr. Cartee's estate. The jury returned a verdict for the beneficiaries for $1.00 and all parties appeal. We affirm.

E.F. Cartee died in 1972 leaving a will which named Jasper P. Lesley, a nephew, and W.G. Acker, Cartee's attorney, co-executors-trustees of his estate. In his will, Mr. Cartee devised his estate to Lesley and Acker in trust for the benefit of his wife Mable Cartee, his son Joseph Cartee and his grandsons, Gary and Gregory Cartee. The trustees were authorized to provide adequate funds for support of the wife and son and to pay for the grandsons' educations. The will provided for distribution of the estate to the grandsons following the deaths of Mable Cartee and the parents of Gary and Gregory Cartee.

The Cartee beneficiaries brought this suit in 1981 alleging that the trustees negligently and fraudulently mismanaged the estate in four primary areas: (1) subdividing and selling thirty acres of the estate's land; (2) failing to properly manage the timber on the estate's land; (3) leasing a store building owned by the estate to Lesley's son for less than its fair market value; and (4) filing their first estate accounting in the probate court some five years after commencement of administration of the estate. In their complaint the beneficiaries prayed for money damages of $750,000 and an injunction prohibiting the trustees from further administering the estate.

On appeal the beneficiaries raise several issues regarding evidentiary matters, the impeachment of witnesses, the form of the verdict, and the striking of allegations from their pleadings. They also complain of the refusal of the trial judge to require production of documents, to permit amendment of their pleadings, to submit certain issues to the jury, and to grant an injunction. On the other hand, the trustees complain of the admission of certain testimony, the submission of certain issues to the jury and the failure of the trial judge to direct a verdict, grant a non-suit, or enter judgment n.o.v.

I. THE BENEFICIARIES' CASE

A.

On the first day of trial, the Cartees moved for permission to amend the prayer of their complaint to seek damages on behalf of the estate instead of for their own benefit, and to require trustee Lesley to produce at trial the leases on all store buildings owned by him in South Carolina. They wanted the leases in order to show that Lesley leased his buildings for substantially more than the trustees leased the estate's store building to Lesley's son.

Motions to produce documents and to amend pleadings are addressed to the sound discretion of the trial judge. Industrial Welding Supplies, Inc. v. Atlas Vending Co., 276 S.C. 196, 277 S.E.2d 885 (1981) (amendment to pleadings); Wallace v. Timmons, 237 S.C. 411, 117 S.E.2d 567 (1960) (motion to produce). We find no abuse of discretion. The evidence does not show that the beneficiaries were entitled under statute to the amendment or that they were prejudiced by the court's failure to grant the amendment since the beneficiaries were, in any event, entitled to prosecute the instant action against the trustees. 76 Am.Jur.2d Trusts Section 578 (1975). 3 A.W. Scott, The Law of Trusts Sections 197-198 (3d ed. 1967). Further, as pertains to the leases, the beneficiaries do not show by any competent evidence that the leases involved comparable properties. Thus, it was not error for the trial judge to refuse the motion to produce the leases.

B.

The beneficiaries next argue that the trial judge should have permitted them to introduce into evidence some of Mr. Cartee's bank records to explain the precise time Lesley's son first leased the building. We are unable to review this exception because the court's ruling on the trustees' objection to this offer of evidence is not in the record. Polson v. Burr, 235 S.C. 216, 110 S.E.2d 855 (1959).

The Cartees also assign error to the court's admission of the testimony of the trustees' expert witness relative to the rental value of the store owned by the estate. We cannot say the witness' testimony should have been excluded. While the witness admitted he was not sure he had an opinion about the value of the store, he did testify to the rental value of similar properties in the vicinity of the store. The qualifications of an expert are largely a matter of discretion of the trial judge. South Carolina Department of Highways and Public Transportation v. Manning, 283 S.C. 394, 323 S.E.2d 775 (1984).

C.

The beneficiaries called respondent Lesley as a witness. In examining him they requested the right to have him read from his deposition. The court refused stating that since the Cartees called Lesley as their own witness, they could not impeach him. Circuit Court Rule 87D(2) provides that the deposition of an adverse party may be used for any reason. Thus, to refuse permission to read the deposition into evidence was error. Nevertheless, in the absence of a showing in the record that the Cartees made an offer of proof of the content of the deposition, we find no error. Legrande v. Legrande, 178 S.C. 230, 182 S.E. 432, 102 A.L.R. 582 (1935); Williams By and Through Williams v. Vereen, 284 S.C. 219, 325 S.E.2d 337 (1985); see U.S. v. Lowrie, 246 F.2d 472 (4th Cir.1957).

D.

Next, the beneficiaries assert that the trial court erred in striking allegations from paragraphs twenty-one and thirty-nine of their complaint. The court's rulings striking these allegations are not in the record, nor are the Cartees' objections to the striking of these allegations in the record. This Court is confined to the appellate record in reviewing a judgment for error. South Carolina Highway Department v. Meredith, 241 S.C. 306, 128 S.E.2d 179 (1962); Masters v. Rodgers Development Group, 283 S.C. 251, 321 S.E.2d 194 (Ct.App.1984).

E.

The beneficiaries next contend that the trial court should not have directed a verdict against them on their fraud claim. This contention has no merit. Our review of the record shows that the Cartees neither alleged nor proved fraud. The only evidence regarding the fraud issue is that of Gary Cartee who explained the fraud thusly: "[I]t is in the lease. It was not an arm's length transaction." This explanation falls far short of showing fraud even if fraud were alleged by the beneficiaries in their complaint. Moye v. Wilson Motors, Inc., 254 S.C. 471, 176 S.E.2d 147 (1970).

F.

The beneficiaries next argue that the trial judge should have instructed the jury to return separate verdicts against each of the trustees. The record shows no objection was made to the form of the verdict at trial, no request was made for a special verdict, no request was made to poll the jury, nor was a motion made for a new trial based on the form of the verdict. Issues not presented to the trial court are not before us for review. Mackey v. Kerr-McGee Chemical Co., 280 S.C. 265, 312 S.E.2d 565 (Ct.App.1984).

G.

Finally, the beneficiaries argue that the trial judge erred in not granting them an injunction prohibiting the trustees from performing any duties with respect to the estate. We disagree. A court of equity may in a proper case decree an injunction to protect a trust res, restrain the trustees from unauthorized acts or breach of trust, or restrain an unauthorized sale, diversion or disposition of the trust property. 76 Am.Jur.2d Trusts Section 583 (1975). The general rule is that an injunction should be granted only where some irreparable injury is threatened for which there is no adequate remedy at law. Greenwood County v. Shay, 202 S.C. 16, 23 S.E.2d 825 (1943). Whether a wrong is irreparable in the sense that equity may intervene, and whether there is an adequate remedy at law for a wrong, are questions that are not decided by narrow and artificial rules. Kirk v. Clark, 191 S.C. 205, 4 S.E.2d 13 (1939). Here, the nominal jury verdict of $1.00 demonstrates that any harm done by the trustees to the trust res is insubstantial. Additionally, the beneficiaries have not shown any threat of future harm by the trustees to the beneficiaries' interests as would warrant intervention by a court of equity. We find no error in the trial judge's refusal to grant the injunction.

II. THE TRUSTEES' APPEAL

A.

The trustees argue first that since the probate court accepted the executors/trustees' first accounting, it is implied that he also approved it although it was over four years late. They further argue that the late filing could not as a matter of law constitute negligence and thus it was error for the trial judge to submit the issue to the jury. This argument has no merit. There is no evidence in the record that the probate court approved the late filing or the accounting. Moreover, S.C.Code Ann. Section 21-15-1410 (1976) provides in pertinent part that in addition to forfeiting his commissions, an executor who fails to make timely returns may "moreover be liable to be sued for damages by the person interested in such estate." We hold that failure of trustees to file timely returns may indicate acts of negligence. Thus, the trial judge did not commit error in failing to remove this issue from the jury's consideration.

B.

When called as a witness by the beneficiaries, Lesley testified to his use of due care in managing the estate. Gary Cartee, a beneficiary and the attorney who in effect represented the estate at trial, then testified. The trustees argue that the trial judge committed error in...