Fisher v. Huckabee
| Decision Date | 21 December 2016 |
| Docket Number | 2016-UP-528 |
| Court | South Carolina Court of Appeals |
| Parties | Betty Fisher, Appellant, v. Bessie Huckabee, Respondent. Lisa Fisher, Appellant, v. Bessie Huckabee, Respondent. Appellate Case No. 2014-002020 |
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.
Heard October 3, 2016
Appeal From Charleston County J. C. Nicholson, Jr., Circuit Court Judge
AFFIRMED IN PART and REMANDED IN PART
John Hughes Cooper, of John Hughes Cooper, PC, of Mount Pleasant and Lisa Fisher, of Long Beach, CA, for Appellants.
Peter A. Kouten, of Kouten Law Firm, LLC, of Johns Island, for Respondent.
In this consolidated probate case, Appellants Betty Fisher and Lisa Fisher separately appeal from the circuit court's affirmance of the probate court's orders appointing a special fiduciary, freezing assets, and denying the Fishers' motions for reconsideration, arguing twenty-two issues summarized as the following: (1) the circuit court erred in failing to consider the Fishers' Statement of Grounds or allow oral argument; (2) the probate court did not have jurisdiction because the matter was on appeal; (3) Respondent Bessie Huckabee did not have standing in the matter; (4) the probate court's order was void because Huckabee failed to provide the required notice and violated Rule 11, SCRCP; (5) the probate court erred in denying Lisa Fisher reasonable compensation; (6) the probate court erred in freezing decedent's accounts; (7) the probate court erred in appointing a special fiduciary; (8) the probate court erred in failing to grant Lisa Fisher an extension; and (9) the probate court erred in hearing the motion to appoint a special fiduciary when statutory notice was not given. We affirm in part and remand in part.
II. BACKGROUND FACTS[2]
Lisa Fisher was appointed as Alice Shaw-Baker's guardian and conservator by order dated November 19, 2008. Peter A. Kouten was appointed as Shaw-Baker's guardian ad litem. After Shaw-Baker died on February 25, 2009, and Huckabee was appointed personal representative based on her nomination in the will, Lisa Fisher was discharged as the conservator by order dated May 11, 2009. The order required Fisher to provide an estate accounting and turn over all estate assets within fifteen days of the date of the order.
In May 2011, Huckabee filed a motion entitled, "Motion to Appoint Special Fiduciary for Conservatorship Assets." Huckabee alleged Lisa Fisher was discharged as the conservator of Shaw-Baker by the May 11, 2009 order, had been granted at least six extensions to turn over the estate assets, and had not filed annual accountings since 2008. Huckabee requested the court deny any further continuances require Lisa Fisher to file the delinquent accountings for 2009 and 2010, require her to release estate funds, and to appoint a third-party special fiduciary to accept all assets of the estate. At a hearing on the motion, Huckabee argued Fisher did not appeal the order discharging her as conservator, but it had been two years and she had not turned over the estate assets.
Huckabee also argued that when Fisher finally turned in the annual accountings, "it became clear that the discharged conservator did not cease in her actions as conservator" and had disbursed $80, 500 from the estate after her authority ceased. Huckabee requested the court appoint a special fiduciary to accept the estate assets and that no further extensions be granted to Fisher.
Fisher argued she had motions pending, including a motion for a ninety-day extension and a motion to strike Huckabee's motion. Fisher also argued the court should strike the motion to appoint a special fiduciary. Fisher's motion to strike alleged the issue was moot because she filed the missing accountings with her motion; Kouten could not represent Huckabee because he had been Shaw-Baker's guardian ad litem; and Kouten had not satisfied the Rule 11(a), SCRCP requirement that a movant attempted in good faith to resolve an issue prior to filing a motion unless the movant certified that consultation would have served no useful purpose. Fisher argued she had been granted six extensions and was waiting for the appeals in circuit court and the supreme court to be decided prior to complying with the order to turn over the estate assets. By order dated September 28, 2011, the probate court denied Fisher's motions to strike and for an extension, granted the motion to appoint a special fiduciary and appointed Heyward Harvey, Esq. to serve as the special fiduciary. The order required Fisher to turn over the estate assets within fifteen days.
Fisher moved for reconsideration, arguing the probate court did not have jurisdiction over the matter because an appeal was pending in the supreme court; no evidence of her wrongdoing was produced at the hearing; the probate court lacked statutory authority; Fisher had no ability to transfer the estate because a motion to appoint Betty Fisher as special administrator was pending in circuit court; and the probate court order was void. Betty Fisher also filed a motion as an "Interested Party" to void the September 28, 2011 order based on lack of notice and Huckabee's lack of standing. By order dated October 14, 2011, the probate court denied the motions. The order also denied a pending "Renewed Motion for Approval of Fees and Expenses of Guardian and Conservator." In a separate order dated October 14, 2011, the probate court froze the assets in all of decedent's accounts.
Lisa Fisher moved to reconsider the denial of the renewed motion for fees. Fisher argued her motion was originally filed in July 2009 and the probate code provided for fees. Fisher also moved to reconsider the freezing of the assets, arguing the following: (1) the probate court requires a conservator to deliver estate assets to a "Duly Appointed" personal representative; (2) she is entitled by the doctrine of laches to continue protecting the estate; (3) the probate court lacked jurisdiction; (4) no party sought an order freezing the assets; and (5) the orders violated due process. On November 9, 2011, the probate court denied the motions for reconsideration. Fisher and Betty Fisher appealed to the circuit court.
At a hearing in the circuit court, the Fishers argued Lisa Fisher had a statutory duty to turn over the estate assets to a duly appointed personal representative and the order appointing Huckabee the personal representative was on appeal; thus Fisher could not turn over the assets. The Fishers also argued the probate court did not have jurisdiction to appoint a special fiduciary because an appeal was pending. Betty Fisher next argued that as an interested party, she was entitled to the statutorily-required notice of twenty days before the probate court could consider a motion to appoint a special fiduciary. Betty Fisher further argued the Attorney General was entitled to notice as an interested party (as a protector of animal charities named in a prior will). Lisa Fisher next argued the probate court refused to take any testimony and made factual findings without any evidentiary support. Finally, Lisa Fisher argued the probate court erred in denying her motion to be paid fees as the conservator and in issuing orders freezing the assets.
Huckabee argued the issues in the current matter were unrelated to the pending appeals because they were related to conservatorship of the assets rather than personal representative matters. Huckabee also argued that although there were no affidavits or testimony before the probate court, Lisa Fisher's accountings indicated she was spending money from the estate after she was discharged, which was sufficient for the probate court to appoint a special fiduciary. In Form 4 orders, the circuit court affirmed the probate court's orders. This appeal followed.
III. STANDARD OF REVIEW
On appeal from a final order of the probate court, the circuit court must apply the same standard of review that an appellate court would apply on appeal. In re Howard 315 S.C. 356, 361, 434 S.E.2d 254, 257 (1993). "The standard of review applicable to cases originating in the probate court depends upon whether the underlying cause of action is at law or in equity." In re Estate of Hyman, 362 S.C. 20, 25, 606 S.E.2d 205, 207 (Ct. App. 2004). The underlying nature of the matter before the probate court was the appointment of a special fiduciary to manage the estate assets, which we find akin to the removal of a personal representative; thus, the action is in equity. See Dean v. Kilgore, 313 S.C. 257, 259, 437 S.E.2d 154, 155 (Ct. App. 1993) (). If probate proceedings are equitable in nature, then the circuit court on appeal may make factual findings according to its own view of the preponderance of the evidence. Howard, 315 S.C. at 361-62, 434 S.E.2d 254, 257-58.
IV. ISSUES ON APPEAL[3]
1. Did the circuit court err in failing to consider the Fishers' statement of grounds for appeal and failing to permit oral argument?[4]
2. Did the probate court lack jurisdiction because the matter was on appeal?[5] 3. Did Huckabee lack standing?[6]
4. Was the probate court order void because Huckabee failed to provide notice in violation of Rule 11, SCRCP?[7]
5. Did the probate court err in denying Lisa Fisher reasonable compensation?[8]
6. Did the probate court err in issuing orders freezing assets?[9]
7. Did the probate court err in appointing a special fiduciary?[10]
8. Did the probate court err in failing to grant Lisa Fisher an extension?[11]
9. Did the probate court err in hearing the motion to...
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