In the Matter of the Estate of Thomas G. Moore ( 2022 )

THE STATE OF SOUTH CAROLINA
In The Court of Appeals
In the Matter of the Estate of Thomas G. Moore:
Michael Dennis Moore, Appellant,
v.
Thomas Paul Moore, Francine Laura Lawhon, Estate of
Linda Kaye Moore, and Phillip Frederick Moore,
Respondents.
Appellate Case No. 2018-001144
Appeal From Florence County
J. Munford Scott, Jr., Probate Court Judge
Thomas A. Russo, Circuit Court Judge
Opinion No. 5887
Submitted November 1, 2021 – Filed January 5, 2022
AFFIRMED IN PART AND REVERSED IN PART
Michael Dennis Moore, pro se.
C. Pierce Campbell, of Turner Padget Graham & Laney,
PA, of Florence, for Respondent Thomas Paul Moore.
James Ross Snell, Jr. and Vicki D Koutsogiannis, of Law
Office of James R. Snell, Jr., LLC, both of Lexington, for
Respondent Phillip Frederick Moore.
THOMAS, J.: Michael Dennis Moore (Appellant), personal representative of the
estate of Thomas G. Moore (Decedent), appeals a circuit court order affirming the
probate court's order, arguing the circuit court erred in ruling (1) a joint tenancy
with a right of survivorship between Decedent and Appellant was defeated at the
time a purchase agreement to sell a parcel of real property was signed; (2)
Appellant's claims of prejudicial submission of evidence and allowance of new
claims on the day of trial were not preserved for the court's review; and (3) a
separate envelope containing a document with instructions concerning a piece of
Decedent's estate should be integrated into Decedent's last will and testament
(Will). We affirm in part and reverse in part.1
FACTS/PROCEDURAL HISTORY
Decedent passed away on December 20, 2013, leaving a Will dated September 27,
1997. The Will appointed Appellant as the personal representative. The Will was
admitted to the Florence County Probate Court on February 20, 2014, and
Appellant filed an Original Inventory and Appraisement for the Estate on April 24,
2014. Decedent was survived by five children: Appellant, Thomas Paul Moore,
Phillip Frederick Moore, Francine Laura Lawhon, and Linda Kaye Moore.
Thomas, Phillip, Francine, and Linda are Respondents.
The matter appeared before the probate court on December 22, 2015, and July 27,
2016. In its order filed November 29, 2016, the court ruled a document, separate
from the Will that was found within Decedent's safe with the Will, should be
integrated into the Will. The separate document sought to devise to Thomas an
interest in a five-acre piece of property located in Richland County, referred to as
the "Church Property" by the probate court because it was located across the street
from the house of the pastor of Horrell Hill Baptist Church. The church's pastor
was Decedent's brother, Reverend Lester Moore. Decedent and Reverend Moore
each owned half of the property.
Appellant filed an appeal with the circuit court. After a hearing on February 14,
2018, the circuit court affirmed the probate court's decision by order filed on May
8, 2018. According to Appellant's brief, Appellant filed a motion to alter or
amend, which was denied on June 5, 2018; however, neither the motion to alter or
amend nor the order denying the motion is included in the record on appeal. This
appeal followed.
1
We decide this case without oral argument pursuant to Rule 215, SCACR.
STANDARD OF REVIEW
"The standard of review applicable to cases originating in the probate court is
controlled by whether the underlying cause of action is at law or in equity." In re
Est. of Hyman, 362 S.C. 20, 25, 606 S.E.2d 205, 207 (Ct. App. 2004). An action to
construe a will is an action at law. Id. Thus, our review extends merely to the
correction of legal errors. Id. "[T]his [c]ourt may not disturb the probate [court's]
findings of fact unless a review of the record discloses there is no evidence to
support them." In re Est. of Cumbee, 333 S.C. 664, 670, 511 S.E.2d 390, 393 (Ct.
App. 1999).
LAW/ANALYSIS
I. Joint Tenancy with a Right of Survivorship
Appellant argues the circuit court erred in ruling a joint tenancy with a right of
survivorship between Decedent and Appellant was defeated at the time a purchase
agreement to sell a parcel of real property was signed. We agree.
Section 27-7-40(a) of the South Carolina Code (2007) provides joint tenancy
includes the following incidents of ownership:
(i) In the event of the death of a joint tenant, and in the
event only one other joint tenant in the joint tenancy
survives, the entire interest of the deceased joint tenant in
the real estate vests in the surviving joint tenant, who is
vested with the entire interest in the real estate owned by
the joint tenants.
....
(iii) The fee interest in real estate held in joint tenancy
may not be encumbered by a joint tenant acting alone
without the joinder of the other joint tenant or tenants in
the encumbrance.
(iv) If all the joint tenants who own real estate held in
joint tenancy join in an encumbrance, the interest in the
real estate is effectively encumbered to a third party or
parties.
Section 27-7-40(c) provides in part:
Except as expressly provided herein, any joint tenancy
severed pursuant to the terms of this section is and
becomes a tenancy in common without rights of
survivorship. Nothing contained in this section shall be
construed to create the estate of tenancy by the entireties.
Nothing contained in this section amends any statute
relating to joint tenancy with rights of survivorship in
personal property but affects only real estate. The
provisions of this section must be liberally construed to
carry out the intentions of the parties.
Appellant and Decedent jointly purchased 334 Cypress Avenue in Garden City,
South Carolina, with each owning half of the property. They entered into an
agreement to sell the property in November 2013, prior to Decedent's death on
December 20, 2013. The property was sold on December 27, seven days after
Decedent's death. Appellant signed the deed individually and received all the
proceeds from the sale, despite the existence of the sales contract before Decedent's
death.
The probate court cited to section 27-7-40 of the South Carolina Code for the
proposition that if all joint tenants who own real property in joint tenancy join in an
encumbrance, the interest in the real property is encumbered for a third party or
parties. The probate court wrote that this court expounded on the statute in South
Carolina Federal Savings Bank v. San-A-Bel Corporation, 307 S.C. 76, 78-79, 413
S.E.2d 852, 854 (Ct. App. 1992), when it held a "purchaser under an executory
contract for the purchase and sale of real property has an equitable lien on the
property in the amount paid for the purchase price," and "[t]his equitable interest
arises from payment of the money and does not depend on the purchaser's taking
possession of the real estate." Thus, the probate court reasoned that the sales
contract entered into prior to Decedent's death encumbered the property, entitling
the purchaser to possession of the property upon payment of the agreed price and
Decedent to one-half of the proceeds at closing. The court found that neither the
fact that Decedent's signature was not listed on the closing documents nor that the
deed was not prepared prior to Decedent's death invalidated Decedent's rights to
the proceeds of the sale of the property. Therefore, the probate court ruled the joint
tenancy with right of survivorship was defeated by the contract to sell the property
and Decedent's Estate was entitled to one-half of the proceeds from the sale. The
court ordered Appellant to pay Decedent's Estate $162,500 for the Estate's portion
of the sales proceeds.
In its order, the circuit court found there was evidence to support the probate
court's findings; thus, they should not be disturbed. As to the legal question of the
effect of a contract to purchase and sell real estate creating rights for Decedent
after death, after a de novo review, the circuit court found the probate court
correctly interpreted and applied the relevant law. The circuit court noted this
court has held a "purchaser under an executory contract for the purchase and sale
of real property has an equitable lien on the property in the amount paid on the
purchase price." Id. at 78, 413 S.E.2d at 854. Thus, the court reasoned that once
Decedent and Appellant entered into the binding contract to sell the property,
Decedent's death did not prevent him from preserving all the rights under it simply
because he was waiting for it to be executed. Accordingly, the court held
Decedent and Appellant were entitled to receive an equal share of the proceeds of
the sale. However, the circuit court noted the probate court incorrectly found half
of the $324,500 sale price was $162,500, when it should have been $162,250.
Appellant argues the probate court erred in ruling Appellant and Decedent's joint
tenancy with a right of survivorship was severed at the signing of the purchase
agreement for the sale of the property. He argues he was the sole owner of the
property at the time it was sold because Decedent passed away before the final
closing and recording of the property. He asserts the agreement to sell the
property, signed by both joint tenants, did not terminate the joint tenancy with a
right of survivorship. He argues § 27-7-40(a)(iv) allows for joint tenancies with a
right of survivorship to effectively encumber property to third parties but does not
state an encumbrance severs a joint tenancy with a right of survivorship. Appellant
also argues the probate court incorrectly claimed jurisdiction over a non-probate
asset and ruled the joint tenancy with the right of survivorship was terminated at
the moment the contract for sale of the property was signed. He maintains there
are no South Carolina cases that address this issue.
We find the case the probate court relied on, South Carolina Federal Savings Bank
v. San-A-Bel Corporation, does not state a seller's interests in a joint tenancy with a
right of survivorship is severed at the signing of a purchase agreement. Also,
Section 27-7-40 of the South Carolina Code does not provide that an encumbrance
on real estate severs the joint tenancy with a right to survivorship. Thus, we look
at other states for guidance. There is a split in authority as to whether a contract
for the sale of property severs a joint tenancy with a right to survivorship. "In
some jurisdictions, a contract of sale made by both or all of the joint tenants
operates as a severance, while a contrary view is taken by other courts." 20 Am.
Jur. 2d Cotenancy and Joint Ownership § 27.
Appellant cites to a Supreme Court of Washington case, Estate of Phillips v.
Nyhus, 874 P.2d 154 (Wash. 1994), where joint tenants brought suit against the
estate of a deceased joint tenant to declare their entitlement to proceeds from the
sale of property. The Nyhus court held that "[a] contract or agreement by only one
joint tenant to convey property held in joint tenancy destroys the right of
survivorship, terminates the joint tenancy and converts it into a tenancy in
common." Id. at 157-58. However, in the Nyhus case, at the time of the joint
tenant's death, the property was held by the parties as joint tenants with right of
survivorship with contractual rights and obligations arising from an earnest money
agreement. Id. at 158-59. Because there had been no severance of the joint
tenancy by execution of the earnest money agreement at his death, the right of
survivorship vested title in the surviving joint tenants along with the contractual
rights and obligations. Id. The court held the operative event was the joint tenant's
death and not the ultimate right to possession of the proceeds which followed as a
consequence of the post-death completion of the earnest money agreement. Id.In Weise v. Kizer, 435 So. 2d 381, 381 (Fla. Dist. Ct. App. 1983), the sole issue
before the Florida District Court of Appeal was whether a joint tenancy is severed
and the incident of survivorship destroyed when joint tenants execute a contract to
sell real property. In that case, Judith Weise and Wallace Cawthon held real
property as joint tenants with a right of survivorship. Id. Weise and Cawthon
entered into a contract to sell the property to Howard and Karla Moss; however,
Cawthon died approximately one month before the closing. Id. The Weise court
held "severance does not automatically occur upon the execution of a contract to
sell that is executed by all joint tenants, unless there is an indication in the contract,
or from the circumstances, that the parties intended to sever and terminate the joint
tenancy." Id. at 382. Thus, severance did not occur, and Weise was entitled to
receive all of the proceeds of the sale of the property. Id. at 381.
We are inclined to follow the Weise court. The sales contract was silent as to
whether severance of the joint tenancy was intended by Appellant and Decedent,
and no extraneous circumstances indicated severance was intended by the parties.
Thus, we find the probate and circuit courts erred in finding the joint tenancy
became a tenancy in common without rights of survivorship when Appellant and
Decedent entered into a sales contract for the sale of the property and hold the joint
tenancy was not severed in this case. Therefore, we reverse the probate and circuit
courts on this issue and find the Estate is not entitled to proceeds from the sale.
II. Issue Preservation
Appellant argues the circuit court erred in ruling his claims of prejudicial
submission of evidence and allowance of new claims on the day of trial were not
preserved for the court's review. We disagree.
At the hearing before the circuit court, Appellant argued the probate court erred in
allowing new evidence and new claims of accounting to be submitted by
Respondents at the July 27 hearing because they were in Respondents' possession
prior to the first hearing on December 22. Appellant asserts he asked the probate
court to allow him to respond to the checks submitted by Respondents, and the
court denied his request. Thus, Appellant requested the circuit court reverse that
decision or at least remand it to the probate court to allow Appellant to review the
checks to determine if the money was spent and where it went.
Thomas asserted no written discovery was done by any party in this case, so the
documents were not hidden or withheld before trial. He argued the issue was not
preserved because Appellant did not object to the introduction of the documents
into evidence. As for Appellant's assertion that the probate court denied his
request to respond, Thomas stated Appellant asked the court if it wanted a
summary of his interpretation of where the checks went and the court replied "no."
Appellant did not object.
In its order, the circuit court noted the issue before it was whether the probate court
properly considered the evidence and testimony presented at trial and correctly
ruled based on that evidence that Appellant failed to pursue loans to Decedent,
failed to account for funds received that belonged to the Estate, and failed to
account for loans made by Decedent to Appellant's own business. The court found
Appellant's primary arguments were that he was surprised by the evidence
presented at trial and he was not permitted to submit a summary of the evidence
post-trial. However, it noted Appellant chose not to conduct discovery on these
matters, as no written discovery was exchanged between the parties, limited
depositions were taken, and there were no requests for the production of
documents submitted. Further, it found Appellant's trial counsel acquiesced to the
admission of evidence related to the issues numerous times, either expressly or by
failing to object to its introduction. Thus, the circuit court determined Appellant
raised this issue to the court for the first time on appeal; therefore, it was not
preserved for its review.
We find the circuit court correctly found Appellant did not preserve this issue for
its review. At trial, Appellant did not object to the introduction of the documents
into evidence. See Staubes v. City of Folly Beach, 339 S.C. 406, 412, 529 S.E.2d
543, 546 (2000) ("It is well-settled that an issue cannot be raised for the first time
on appeal, but must have been raised to and ruled upon by the trial court to be
preserved for appellate review."). Also, Appellant did not object when the probate
court denied his request to respond to the evidence with a summary of his own.
See id. Further, even if Appellant raised any errors related to these issues in his
motion to reconsider to the probate court, we cannot review that motion because
Appellant did not include it in the record on appeal. See Bonaparte, 291 S.C. at
444, 354 S.E.2d at 50 (declining to address the appellant's claim of error because
the appellant failed to furnish this court with a sufficient record on appeal to permit
consideration of the issue); id. ("In the absence of such a record, this issue cannot
be considered on appeal."); Rule 210(h), SCACR ("[T]he appellate court will not
consider any fact which does not appear in the Record on Appeal.").
III. Separate Envelope
Appellant argues the circuit court erred in ruling a separate envelope containing a
document with instructions devising the Church Property to Thomas should be
integrated into Decedent's Will. We decline to consider this issue.
Appellant argues the circuit court erred in affirming the probate court, and the
typed document should not have been integrated into the Will because the
document was not signed, witnessed, dated, or notarized, and it was in a separate
envelope not attached to the Will. The Appellant has not included a copy of the
Will or the separate document in the record on appeal. The Appellant bears the
burden of providing a sufficient record on appeal from which this court can make
an intelligent review. See Bonaparte v. Floyd, 291 S.C. 427, 444, 354 S.E.2d 40,
50 (Ct. App. 1987) (declining to address the appellant's claim of error because the
appellant failed to furnish this court with a sufficient record on appeal to permit
consideration of the issue). "In the absence of such a record, this issue cannot be
considered on appeal." Id.; Rule 210(h), SCACR ("[T]he appellate court will not
consider any fact which does not appear in the Record on Appeal."). Our standard
of review is that this court may not disturb the probate or circuit courts' findings of
fact unless a review of the record discloses there is no evidence to support them.
In re Est. of Cumbee, 333 S.C. at 670, 511 S.E.2d at 393. Without the inclusion of
the Will or the separate document that was allegedly incorrectly integrated into the
Will, we decline to consider this issue.
CONCLUSION
Accordingly, we reverse the probate and circuit courts' rulings that the joint
tenancy with a right of survivorship between Decedent and Appellant was severed
at the time the purchase agreement to sell the property was signed. We affirm the
circuit court's ruling that Appellant did not preserve the issue for review of
prejudicial submission of evidence and allowance of new claims on the day of trial.
We decline to consider the probate and circuit courts' rulings that the separate
document disposing of the Church Property should be integrated into Decedent's
Will.
AFFIRMED IN PART and REVERSED IN PART.
HUFF and GEATHERS, JJ., concur.