Michelle N. Gardner v. Ernest J. Gardner, Jr. ( 2023 )

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.
THE STATE OF SOUTH CAROLINA
In The Court of Appeals
Michelle N. Gardner, Respondent.
v.
Ernest J. Gardner, Jr., individually and as Personal
Representative of the Estate of Jason F. Gardner,
Appellant,
Appellate Case No. 2020-001678
Appeal From Georgetown County
Brian M. Gibbons, Circuit Court Judge
Unpublished Opinion No. 2023-UP-095
Submitted January 1, 2023 – Filed March 15, 2023
AFFIRMED
Kenneth B. Wingate and Matthew Joseph Myers, both of
Sweeny Wingate & Barrow, PA, of Columbia; and Scott
Webster Hutto, of Hutto Law Firm, PA, of Georgetown,
all for Appellant.
John Ravenel Chase, of Haynsworth Sinkler Boyd, PA,
of Charleston; and Sarah P. Spruill, of Haynsworth
Sinkler Boyd, PA, of Greenville, both for Respondent.
PER CURIAM: Ernest J. Gardner, Jr. (Ernest), individually and as personal
representative of the Estate of Jason F. Gardner (the Estate), appeals a circuit court
order granting partial summary judgment in favor of Michelle N. Gardner
(Michelle) on her claim against the Estate and reversing the probate court's grant of
summary judgment in his favor on a creditor's claim he filed against the Estate. On
appeal, Ernest argues the circuit court erred by ruling his claim against the Estate
was untimely and rejecting his argument that Michelle's express waiver of any
claim to Jason F. Gardner's retirement accounts precluded her from recovering
from the proceeds of the accounts payable to the Estate. We affirm pursuant to
Rule 220(b), SCACR.
1. We hold the circuit court properly found Ernest failed to timely file his
creditor's claim against the Estate and therefore appropriately granted partial
summary judgment in favor of Michelle on this issue. See Brockbank v. Best
Capital Corp., 341 S.C. 372, 379, 534 S.E.2d 688, 692 (2000) ("An appellate court
reviews the granting of summary judgment under the same standard applied by the
trial court pursuant to Rule 56, SCRCP."); Wiegand v. U.S. Auto. Ass'n, 391 S.C.
159, 163, 705 S.E.2d 432, 434 (2011) ("Whe[n] cross[-]motions for summary
judgment are filed, the parties concede the issue before us should be decided as a
matter of law."); CFRE, LLC v. Greenville Cnty. Assessor, 395 S.C. 67, 74, 716
S.E.2d 877, 881 (2011) ("Questions of statutory interpretation are questions of law,
which we are free to decide without any deference to the court below."); Sloan v.
Hardee, 371 S.C. 495, 498, 640 S.E.2d 457, 459 (2007) ("The cardinal rule of
statutory interpretation is to ascertain and effectuate the intention of the
legislature."); id. ("When a statute's terms are clear and unambiguous on their face,
there is no room for statutory construction and a court must apply the statute
according to its literal meaning."); S.C. State Ports Auth. v. Jasper County, 368
S.C. 388, 398, 629 S.E.2d 624, 629 (2006) (explaining "the statute must be read as
a whole and sections which are a part of the same general statutory law must be
construed together and each one given effect"); S.C. Code Ann. § 62-3-803(a)
(2022) ("All claims against a decedent's estate which arose before the death of the
decedent . . . are barred against the estate . . . unless presented within the earlier of
the following: (1) one year after the decedent's death; or (2) the time provided by
Section 62-3-801(b) [of the South Carolina Code (2022)] for creditors who are
given actual notice, and within the time provided in Section 62-3-801(a) [of the
South Carolina Code (2022)] for all creditors barred by publication." (emphasis
added)); South Carolina Reporter's Comment section 62-3-803 ("Claims arising
before death, unless barred by other statutes of limitation, are barred unless
presented as follows: (1) for those creditors not barred by publication within the
earlier of one year following date of death or sixty days from any actual notice; and
(2) for those creditors barred by publication within the earlier of one year from
date of death or eight months from any publication." (emphasis added)); Matter of
Est. of Tollison, 320 S.C. 132, 135, 463 S.E.2d 611, 613 (Ct. App. 1995)
("[U]nless the statute is complied with, the creditor's claim is barred.").
2. We hold the circuit court did not err by granting partial summary judgment in
favor of Michelle and concluding that she was not precluded from recovering from
the proceeds to the accounts payable to the Estate. 1 See Brockbank, 341 S.C. at
379, 534 S.E.2d at 692 ("An appellate court reviews the granting of summary
judgment under the same standard applied by the trial court pursuant to Rule 56,
SCRCP."); Rule 56(c), SCRCP (explaining a circuit court may properly grant a
motion for summary judgment 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"); S.C. Code Ann. § 62-1-201(4) (2022)
(providing that "claims" against an estate include "liabilities of the decedent or
protected person whether arising in contract, in tort, or otherwise, and liabilities of
the estate which arise at or after the death of the decedent or after the appointment
of a conservator, including funeral expenses and expenses of administration"); In
re Est. of Hover, 407 S.C. 194, 203, 754 S.E.2d 875, 880 (2014) ("Thus, '[b]roadly
speaking, all claims against the decedent should be presented for allowance, and
the word claims includes such debts or demands as existed against the decedent in
his or her lifetime and that might have been enforced against him or her by
personal actions for the recovery of money.'" (quoting 34 C.J.S. Executors &
Administrators § 548 (Supp. 2013) (internal punctuation omitted))).
Additionally, we hold Ernest's argument regarding promissory estoppel is not
preserved for appeal because it was not raised to and ruled upon by the circuit
court or the probate court, and Ernest failed to file a motion to alter or amend the
judgment. See Wilder Corp. v. Wilke, 330 S.C. 71, 76, 497 S.E.2d 731, 733 (1998)
("It is axiomatic that an issue cannot be raised for the first time on appeal, but must
have been raised to and ruled upon by the trial judge to be preserved for appellate
review."); I'On, L.L.C. v. Town of Mt. Pleasant, 338 S.C. 406, 422, 526 S.E.2d
716, 724 (2000) ("If the losing party has raised an issue in the lower court, but the
court fails to rule upon it, the party must file a motion to alter or amend the
judgment in order to preserve the issue for appellate review.").
1
We note that factual questions remain regarding what accounts are payable to the
Estate.
AFFIRMED. 2
WILLIAMS, C.J., THOMAS, J., and LOCKEMY, A.J., concur.
2
We decide this case without oral argument pursuant to Rule 215, SCACR.