Spence v. Wingate

• Decision Date: 17 April 2008
• Docket Number: No. 4370.,4370.
• Court: South Carolina Court of Appeals
• Parties: Deborah W. SPENCE, Individually, and on behalf of the Estate of Floyd W. Spence, Appellant, v. Kenneth B. WINGATE, Sweeny Wingate & Barrow, P.A., Respondents.

663 S.E.2d 70

378 S.C. 486

Deborah W. SPENCE, Individually, and on behalf of the Estate of Floyd W. Spence, Appellant, v. Kenneth B. WINGATE, Sweeny Wingate & Barrow, P.A., Respondents.

No. 4370.

Court of Appeals of South Carolina.

April 17, 2008.

Heard September 11, 2007.

Decided April 17, 2008.

Rehearing Denied June 27, 2008.

A. Camden Lewis and Brady R. Thomas, both of Columbia, for Appellant.

Pope D. Johnson, III, of Columbia, for Respondents.

THOMAS, J.

This is a legal malpractice action. The trial judge granted partial summary judgment to Respondents Kenneth B. Wingate and his law firm, Sweeney Wingate & Barrow, finding they did not owe a fiduciary duty to Deborah Spence (Wife) concerning her late husband's life insurance policy. Wife appeals. We affirm.

FACTS

Viewing the record in the light most favorable to Wife, we find the following: On August 13, 2001, Wingate commenced legal representation of Wife. The purpose of the representation was to negotiate an agreement on Wife's behalf with the four sons of her husband, Congressman Floyd W. Spence, concerning the division of Spence's probate estate. Wife and Spence's sons entered into such an agreement on August 15, 2001. During the course of Wingate's representation of Wife, Wife also consulted with him about her husband's Federal Group Life Insurance Policy and informed him Spence had named her as beneficiary. On August 16, 2001, Spence died. Either in mid-August or early September, Wingate became the attorney for Spence's estate.

In 1988, Spence had named each of his four sons and Wife as equal beneficiaries under the life insurance policy. Shortly before his death, however, Spence attempted to make Wife the sole beneficiary of the policy. After Spence died, the Members Services Office of the United States House of Representatives determined the proceeds of the policy should be divided equally among Wife and the four sons and made payment accordingly.

Wife brought this action against Respondents, alleging negligence, professional negligence, breach of fiduciary duty, and civil conspiracy. After Respondents answered, they moved for partial summary judgment, claiming they were not liable to Wife or Spence's estate in connection with Spence's congressional life insurance policy. Following a hearing, the trial judge granted partial summary judgment to Respondents, holding that "[b]y statute, [Respondent] owed no duty or obligation to [Wife] with respect to the congressional life insurance police or the manner in which it was paid." This appeal followed.

STANDARD OF REVIEW

In reviewing a grant of summary judgment, the appellate court uses the same standard that governs the trial court under Rule 56(c), SCRCP. Nexsen v. Haddock, 353 S.C. 74, 77, 576 S.E.2d 183, 185 (Ct.App. 2002). Summary judgment should be granted 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." Rule 56(c), SCRCP. Nevertheless, "[a]n issue is not preserved where the trial court does not explicitly rule on an argument and the appellant does not make a Rule 59(e) motion to alter or amend the judgment." Jones v. State Farm Mut. Auto. Ins. Co., 364 S.C. 222, 235, 612 S.E.2d 719, 726 (Ct.App.2005); see also Pye v. Estate of Fox, 369 S.C. 555, 565, 633 S.E.2d 505, 510 (2006) ("Generally, an issue must be raised to and ruled upon by the circuit court to be preserved.").

LAW/ANALYSIS

On appeal, Wife argues a genuine issue of material fact exists as to whether Respondents breached a fiduciary duty owed to her arising from Wingate's earlier representation of her in a related matter. Respondents contend this argument is not preserved for review because the trial judge did not explicitly rule on this argument and Wife did not move to alter or amend the appealed order on that ground. In her reply brief, Wife maintains no motion to alter or amend was necessary because the sole argument she advanced as the basis for the existence of a fiduciary duty was Respondents' prior legal representation of her.

We agree with Respondents that it was incumbent on Wife to move under Rule 59(e), SCRCP, for a ruling on the issue of whether Respondents owed her a fiduciary duty based on her status as their former client in order to preserve this argument for appeal. In granting partial summary judgment to Respondents, the trial judge relied on South Carolina Code section 62-1-109. That section provides as follows:

Unless expressly provided otherwise in a written employment agreement, the creation of an attorney-client relationship between a lawyer and a person serving as a fiduciary shall not impose upon the lawyer any duties or obligations to other persons interested in the estate, trust estate, or other fiduciary property, even though fiduciary funds may be used to compensate the lawyer for legal services rendered to the fiduciary. This section is intended to be declaratory of the common law and governs relationships in existence between lawyers and persons serving as fiduciaries as well as such relationships hereafter created.

S.C.Code Ann. § 62-1-109 (Supp.2007).¹ This statute provides only that a lawyer's representation of a fiduciary in a probate matter does not, without more, impose on the lawyer responsibilities to other parties with interests in the fiduciary property. It does not address whether attorneys representing fiduciaries could be accountable to such claimants for other reasons.

Even if, as Wife asserts, the only argument she offered in opposition to the summary judgment motion was that Respondents owed her a fiduciary duty regarding Spence's life insurance policy because she had consulted with Wingate in the past about the matter, the trial judge apparently overlooked the prior attorney-client relationship. A careful examination of the appealed order indicates the trial judge considered only (1) Wingate's later role as the attorney for Spence's estate, and (2) the fact that Wingate did not represent Wife individually at the time of Spence's death. The trial judge did not mention Wife's alternative theory of liability that, as a former client of Respondents, she had a continuing fiduciary relationship with them that would not be affected by section 62-1-109. There is nothing in the appealed order suggesting the trial judge determined this statute absolved Wingate of all responsibilities to Wife regardless of when or how they arose. Absent an explicit ruling on the argument Wife advances in her appeal, we cannot disturb the trial judge's decision. See Shealy v. Aiken County, 341 S.C. 448, 460, 535 S.E.2d 438, 444-45 (2000) (holding a general ruling by the trial court is insufficient to preserve a specific issue for appellate review); Van Blarcum v. City of N. Myrtle Beach, 337 S.C. 446, 453, 523 S.E.2d 486, 490 (Ct.App.1999) (stating a reviewing court cannot address an issue on which there is an implicit rather than explicit ruling).

Under these circumstances, we cannot in good conscience address the issue of whether Wingate's prior representation of Wife in a related matter creates genuine issues of material fact as to whether Respondents owed and breached a fiduciary duty to Wife. The trial judge did not rule on this argument and was never requested to correct this omission.

AFFIRMED.

ANDERSON, J., concurs.

HEARN, C.J., dissents in a separate opinion.

HEARN, C.J. (dissenting).

I respectfully dissent. I would hold the issue is preserved for our review, and that the circuit court judge erred in granting summary judgment on Wife's breach of fiduciary duty claim....