In the Matter of the Estate of Chris Combis

THE STATE OF SOUTH CAROLINA
In The Court of Appeals
In the Matter of the Estate of Chris Combis,
Desa Ballard, as Personal Representative of the Estate of
Chris Combis, Respondent,
v.
George Combis, Diane Combis, and Chris Combis,
Defendants,
Of Whom George Combis and Chris Combis are the
Appellants.
Appellate Case No. 2020-000021
Appeal From Lancaster County
Brian M. Gibbons, Circuit Court Judge
Opinion No. 5984
Heard December 8, 2022 – Filed May 3, 2023
AFFIRMED IN PART, REVERSED IN PART, AND
REMANDED
Brian Scott McCoy, of McCoy Law Firm, LLC, of Rock
Hill, for Appellant Chris Combis.
Ty Kimmell McTier, of Charlotte, North Carolina, for
Appellant George Combis.
Douglas Neal Truslow, and Neal Douglas Truslow, both
of Truslow & Truslow, of Columbia, for Respondent.
VINSON, J.: George Combis and Chris Combis (collectively, Appellants) appeal
the circuit court's order finding them in civil contempt and imposing a joint and
several award in the amount of $70,000 to be paid to Desa Ballard, as personal
representative of the estate of Chris 'Pop' Combis (the Estate), as compensatory
contempt. Appellants argue the circuit court erred in finding them in contempt,
imposing a sanction that was criminal in nature, determining the sanction amount
based on attorney's fees, failing to narrowly tailor the sanction to the Estate's actual
loss or fees attributable to Appellants' contemptuous conduct, imposing a joint and
several sanction, and failing to determine Appellants' ability to pay the sanction.
We affirm in part, reverse in part, and remand.
PROCEDURAL HISTORY
This case arises out of a dispute over the Estate between Pop's son, George;
George's wife, Diane Combis; George's son, Chris; and Ballard, as personal
representative of the Estate. 1 The procedural history of this dispute is complex and
involved actions filed in South Carolina and North Carolina state courts, the United
States District Court for the District of South Carolina, and the United States Court
of Appeals for the Fourth Circuit. The current matter concerns a dispute between
Ballard, as personal representative of the Estate, and George and Chris related to
personal property in the Estate. In November 2013, Ballard filed a complaint in
South Carolina probate court seeking an order requiring Appellants to account for
and surrender property of the Estate in their possession. Ballard alleged Chris
possessed a Rolex watch owned by Pop that Chris claimed Pop gifted to him prior
to Pop's death and George possessed several firearms owned by Pop, for which
George refused to provide any identifying information. In March 2014, the
probate court removed the case to South Carolina circuit court. The circuit court
subsequently consolidated several actions involving the Estate which were
removed to the United States District Court for the District of South Carolina. In
its order dated September 1, 2016, the district court determined the ownership
dispute over personal property was a probate court matter and declined to hear
testimony regarding the personal property. The circuit court continued to hear the
issues regarding the personal property.
1
We refer to Chris 'Pop' Combis as Pop, George Combis as George, Chris Combis
as Chris, and Diane Combis as Diane.
In March 2017, Ballard issued subpoenas to Appellants commanding the
production of the items of property sought in the complaint. Chris's subpoena
commanded the production of, "Original Rolex watch allegedly gifted to you by
[Pop] for appraisal." George's subpoena commanded the production of, "Any and
all firearms allegedly received from or gifted to you by [Pop] for appraisal as well
as contents of the safe in which [Pop] stored cash and documents." In response to
Appellants' objection to the subpoenas, Ballard filed a motion to compel seeking
production of the requested property for appraisal and valuation as well as
sanctions, including fees allowable under Rule 37 of the South Carolina Rules of
Civil Procedure. Following a hearing, the circuit court granted the motion to
compel by order filed August 8, 2017, but held the motion for sanctions in
abeyance. The circuit court ordered Appellants to produce the items sought for
production by August 15, 2017. On August 28, 2017, Ballard filed a verified
petition and requested an order and rule to show cause alleging the items produced
by Appellants through their counsel on August 14, 2017, were not the items
described in the subpoenas. Ballard alleged the items produced included a fake
Rolex watch (the silver Rolex) and a "low-quality" handgun. She also included a
more detailed description of the gold Rolex watch she sought, as well as
descriptions of specific firearms. Ballard sought a finding of criminal and civil
contempt and an order of compensatory contempt and/or sanctions. The circuit
court filed an order and rule to show cause on September 25, 2017, to Appellants
that specifically advised them of their right to counsel at the rule to show cause
hearing and of their right not to testify.
A rule to show cause hearing was initially held on November 14 and 17, 2017, but
the circuit court stayed the matter pending an investigation by the South Carolina
Law Enforcement Division (SLED). The hearing was resumed and concluded on
August 5, 2019, after SLED closed its investigation. On October 21, 2019, the
circuit court filed an order finding Chris and George in civil contempt and ordering
them to serve a sentence of ninety days suspended upon payment of $70,000 for
fees and costs. Appellants filed a Rule 59(e), SCRCP motion to alter or amend and
following a hearing, the circuit court granted the motion in part, modifying the
language in the contempt order relating to the jail sentence and $70,000 in fees and
costs. This appeal followed.
STANDARD OF REVIEW
"The determination of contempt ordinarily rests within the sound discretion of the
[circuit court]." Ex parte Kent, 379 S.C. 633, 637, 666 S.E.2d 921, 923 (Ct. App.
2008). "On appeal, a decision regarding contempt should be reversed only if it is
without evidentiary support or the [circuit court] has abused [its] discretion." Stone
v. Reddix-Smalls, 295 S.C. 514, 516, 369 S.E.2d 840, 840 (1988).
ISSUES ON APPEAL
1. Did the circuit court err by holding Chris in contempt when the language of the
motion to compel order and subpoena were vague and Chris timely produced a
Rolex watch that objectively fit the vague description?
2. Did the circuit court err by holding George in contempt when he produced two
guns that did not match the verified petition and was not ordered to produce an
additional firearm?
3. Did the circuit court misapply the law of compensatory contempt by failing to
tailor the sanction to proven actual losses of the Estate and by considering time
spent by Ballard?
4. Did the circuit court misapply the law of compensatory contempt by failing to
tailor the sanction to proven actual losses of the Estate and by ordering a joint and
several sanction?
LAW AND ANALYSIS
I. Circuit Court's Contempt Finding as to Chris
Appellants argue the language used to describe the Rolex watch in Chris's
subpoena was unclear because it was "undisputed" Chris possessed two Rolex
watches previously owned by Pop: one that was silver in color, the silver Rolex,
and another that was gold (the gold Rolex). They contend Ballard's use of the term
"original Rolex" in the subpoena and motion to compel caused confusion and that
had Ballard requested "the Rolex watch," it would have prompted Chris to inquire
as to which watch she sought. Appellants maintain Ballard should have described
the watch she sought in more detail in the subpoena and motion to compel. They
contend there was no evidence showing Chris intentionally produced the incorrect
Rolex watch or that he had any reason to believe the "original Rolex" Ballard
sought was the gold Rolex. In their reply brief, Appellants argue Chris purged his
contempt when he produced the gold Rolex and that the proceedings against him
should have ended at that time.
Appellants further argue that whether the silver Rolex Chris produced was a
genuine Rolex was not relevant to determining whether Chris was in contempt.
They contend the circuit court offered no support for its finding that Chris's
testimony regarding his belief that the silver Rolex he produced was genuine was
not credible. Appellants assert there was no evidence in the record showing Chris
knew or should have known the difference between a genuine and an imitation
Rolex watch or that the term "original Rolex" as used in the subpoena and motion
to compel excluded the silver Rolex because it was not genuine. We disagree.
"The power to punish for contempt is inherent in all courts. Its existence is
essential to the preservation of order in judicial proceedings, and to the
enforcement of the judgments, orders and writs of the courts, and consequently to
the due administration of justice." Curlee v. Howle, 277 S.C. 377, 382, 287 S.E.2d
915, 917 (1982). "Civil contempt must be proven by clear and convincing
evidence." Poston v. Poston, 331 S.C. 106, 113, 502 S.E.2d 86, 89 (1998).
"Contempt results from the willful disobedience of a court order and before a
person may be held in contempt, the record must be clear and specific as to acts or
conduct upon which the contempt is based." Ex parte Kent, 379 S.C. at 637, 666
S.E.2d at 923. "A willful act is one which is 'done voluntarily and intentionally
with the specific intent to do something the law forbids, or with the specific intent
to fail to do something the law requires to be done; that is to say, with bad purpose
either to disobey or disregard the law.'" Miller v. Miller, 375 S.C. 443, 454, 652
S.E.2d 754, 759-60 (Ct. App. 2007) (quoting Widman v. Widman, 348 S.C. 97,
119, 557 S.E.2d 693, 705 (Ct. App. 2001)).
At the outset, we acknowledge George's deposition testimony and the testimony
presented at the rule to show cause hearing created significant confusion as to what
watches Pop owned. Nevertheless, we hold the circuit court did not abuse its
discretion in finding Chris in contempt because clear and convincing evidence
showed Chris willfully disobeyed the motion to compel order. First, as to
Appellants' argument that the language used in Chris's subpoena was too vague, we
conclude that, viewed in context, the language was sufficiently descriptive to
inform Chris of what he must do. See Welchel v. Boyter, 260 S.C. 418, 421, 196
S.E.2d 496, 498 (1973) ("One may not be convicted of contempt for violating a
court order which fails to tell him in definite terms what he must do."). Ballard
testified Appellants' counsel represented to her that Chris possessed a single Rolex
watch belonging to Pop. At the time she issued the subpoena, Ballard was only
aware that Pop owned one gold Rolex watch and believed this was the watch
referenced in Pop's trust, which devised a single Rolex watch to Chris. It was only
after Ballard filed the rule to show cause that George alleged in his deposition
testimony that Pop owned multiple Rolex watches. At the rule to show cause
hearing, Chris admitted he possessed both a silver Rolex and a gold Rolex that he
alleged Pop gifted to him in the early 2000s. Chris produced the gold Rolex on the
first day of the hearing. In light of Appellants' counsel's representation that Chris
possessed only one Rolex watch belonging to Pop and the language of Pop's trust,
we find the subpoena was sufficient to inform Chris that he should have produced
both watches regardless of whether he believed the description "original" referred
to the silver Rolex.
In addition, we find evidence supports the circuit court's finding Chris's testimony
that he did not know the difference between a real Rolex watch and a fake Rolex
watch was not credible. At the rule to show cause hearing, a jeweler testified he
determined the silver Rolex was "obviously fake" because it was too light in
weight to have a counterweight in the back, which allows the watch to wind itself;
the face of the watch appeared to be covered with plastic, rather than mineral
crystal or sapphire crystal, due to the amount of visible scratching; the gold band
material had worn off, which would not occur on a genuine Rolex; and the watch
stem was missing the Rolex crown insignia. These characteristics would have
been readily apparent to Chris given that he also possessed the gold Rolex, which
was genuine. Based on the foregoing, we find evidence supports the circuit court's
credibility finding. Accordingly, because Chris knew the silver Rolex was fake, it
was reasonable to expect Chris to know the language in his subpoena referring to
an "original Rolex" was not in reference to a fake Rolex watch.
Furthermore, because Chris knew the silver Rolex was fake, his production of the
gold Rolex at the rule to show cause hearing was clear and convincing evidence of
his specific intent to willfully disobey the motion to compel order. By his own
admission, Pop gifted Chris the gold Rolex, which had previously belonged to Pop.
Moreover, Chris testified the gold Rolex had been in his possession ever since Pop
gifted it to him, meaning Chris had the gold Rolex at the time the circuit court filed
its motion to compel order. Cf. Miller, 375 S.C. at 454, 652 S.E.2d at 760
("Whe[n] a contemnor is unable, without fault on his part, to obey an order of the
court, he is not to be held in contempt." (quoting Widman, 348 S.C. at 119, 557
S.E.2d at 705)). Based on the foregoing, we hold the circuit court did not abuse its
discretion in finding Chris in contempt and, as discussed below, remand the issue
of the determination of fees appropriate for compensatory contempt only as to
Chris.
II. Circuit Court's Contempt Finding as to George
Appellants argue the record contains no evidence to support a finding that George
possessed any of the firearms described in the rule to show cause. Because the
circuit court did not order George to produce any additional firearms, Appellants
assert the circuit court abused its discretion in finding George in contempt. We
agree.
We hold the circuit court abused its discretion in finding George in contempt
because the record does not contain clear and convincing evidence showing
George possessed any of the firearms Ballard alleged he had in his possession or
that the firearms George produced in response to the subpoena did not belong to
Pop. See Poston, 331 S.C. at 113, 502 S.E.2d at 89 ("Civil contempt must be
proven by clear and convincing evidence."); Ex parte Kent, 379 S.C. at 637, 666
S.E.2d at 923 ("Contempt results from the willful disobedience of a court order and
before a person may be held in contempt, the record must be clear and specific as
to acts or conduct upon which the contempt is based."). George's subpoena
required him to produce "any and all firearms allegedly received from or gifted to
[him] by [Pop]." In drafting the subpoena, Ballard relied on representations made
by Appellants' counsel, who suggested George possessed two nondescript pistols
owned by Pop. Although Ballard presented testimony at the rule to show cause
hearing to provide evidence of firearms Pop owned, Ballard admitted she did not
have any identifying information about the two pistols George allegedly possessed
and she had no direct knowledge that Pop did not own the pistol George produced
in response to the motion to compel order. No testimony was presented about the
firearm that Appellants' attorney produced to the circuit court on the second day of
the rule to show cause hearing. Ballard suggested during her testimony that
George possessed an engraved silver pistol with pearl grips; however, one of Pop's
daughters testified it was possible Pop took that firearm to his business and hid it.
Because Ballard failed to present clear and convincing evidence showing the
pistols George produced were not responsive to the subpoena or that he possessed
additional firearms owned by Pop, we reverse the circuit court's contempt finding
against George.
Appellants further argue George's subpoena and the motion to compel requested
gifted items that, if gifted during Pop's lifetime, would remove them from the
Estate and fall outside the scope of the proceedings. We find our reversal of the
circuit court's order finding George in civil contempt is dispositive of this issue and
decline to address the merits of this argument. See Futch v. McAllister Towing of
Georgetown, Inc., 335 S.C. 598, 613, 518 S.E.2d 591, 598 (2008) (holding an
appellate court need not address remaining issues on appeal when its determination
of a prior issue is dispositive).
Additionally, Appellants' judicial estoppel argument as it relates to George's
contempt is not properly before the court because it was first raised in Appellants'
reply brief, and we decline to address the merits of this argument. See Spivey ex
rel. Spivey v. Carolina Crawler, 367 S.C. 154, 161, 624 S.E.2d 435, 438 (Ct. App.
2005) (declining to consider issues raised for the first time in the appellants'
reply brief when not raised in the appellant's initial brief).
III. Misapplication of the Law of Civil Contempt
Appellants argue the circuit court's civil contempt order was criminal in nature.
We disagree.
"The major factor in determining whether a contempt is civil or criminal is the
purpose for which the power is exercised, including the nature of the relief and the
purpose for which the sentence is imposed." Poston, 331 S.C. at 111, 502 S.E.2d
at 88. "The purpose of civil contempt is 'to coerce the defendant to do the thing
required by the order for the benefit of the complainant.'" Id. (quoting Gompers v.
Buck's Store & Range Co., 221 U.S. 418, 441 (1911)). "If it is for civil contempt
the punishment is remedial, and for the benefit of the complainant." Id. (quoting
Hicks v. Feiock, 485 U.S. 624, 631 (1988)). "Courts, by exercising their contempt
power, can award attorney's fees under a compensatory contempt theory." Miller,
375 S.C. at 463, 652 S.E.2d at 764.
In a civil contempt proceeding, a contemnor may be
required to reimburse a complainant for the costs he
incurred in enforcing the court's prior order, including
reasonable attorney's fees. The award of attorney's fees
is not a punishment but an indemnification to the party
who instituted the contempt proceeding. Thus, the court
is not required to provide the contemnor with an
opportunity to purge himself of these attorney's fees in
order to hold him in civil contempt.
Poston, 331 S.C. at 114, 502 S.E.2d at 90.
"In civil contempt cases, the sanctions are conditioned on compliance with the
court's order." Id. at 112, 502 S.E.2d at 89. "The conditional nature of the
punishment renders the relief civil in nature because the contemnor 'can end the
sentence and discharge himself at any moment by doing what he had previously
refused to do.'" Id. (quoting Hicks, 485 U.S. at 633).
We hold the substance of the circuit court's finding of contempt was civil in nature.
Although the court's order granting Appellants' motion to alter or amend in part
denoted the $70,000 in costs and fees as a sanction, considering the order in its
entirety, its language evidenced the court's intent to find Appellants in civil
contempt and award fees and costs as compensatory contempt. See Miller, 375
S.C. at 461-62, 652 S.E.2d at 763-64 (finding the court's "error in nomenclature"
was not determinative of whether the court's finding of contempt was civil or
criminal in nature). The order awarded Ballard, as personal representative of the
Estate, $70,000 in fees and costs as compensatory contempt. The award of
compensatory contempt was intended to indemnify the Estate, not as a punishment.
As a sanction for failure to pay the compensatory contempt, Appellants would be
held in custody until they purged themselves of the compensatory contempt or for
no longer than ninety days. See Curlee, 277 S.C. at 382-86, 287 S.E.2d at 917-20
(holding when the contemnor was ordered to pay the moving party's expenses
incurred in enforcing the court's order as compensatory contempt and given a
conditional sentence as a sanction for failure to pay the expenses, the court's
contempt finding was civil in nature). Accordingly, the circuit court's finding of
contempt was civil in nature, and Appellants' argument that the contempt order
should be reversed is without merit.
IV. Misapplication of the Doctrine of Compensatory Contempt
Appellants argue the compensatory contempt award the circuit court imposed was
not related to any of the Estate's actual losses or attributable to the contemptuous
conduct, Ballard was not entitled to attorney's fees and time as an element of loss
because she was a party to the suit, the circuit court erred by awarding joint and
several compensatory contempt, the circuit court failed to determine their ability to
pay the compensatory contempt award, and it was unreasonable to require that the
compensatory contempt award be paid the same day the reconsideration order was
filed. We address each of Appellants' arguments below.
As to whether the compensatory contempt award was related to the Estate's actual
loss or attributable to the contemptuous conduct, whether Ballard was entitled to
her attorney's fees and time as an element of loss, whether the court did not give
Appellants adequate notice to pay the compensatory contempt award, and whether
the circuit court erred by awarding joint and several compensatory contempt, we
find reversing the circuit court's order finding George in civil contempt and
remanding to the circuit court for a determination of fees appropriate for
compensatory contempt as to Chris is dispositive of this issue and decline to
address the merits of these arguments. See Futch, 335 S.C. at 613, 518 S.E.2d at
598 (holding an appellate court need not address remaining issues on appeal when
its determination of a prior issue is dispositive).
Finally, Appellants contend the circuit court erred in failing to determine their
ability to pay the compensatory contempt award. We find this argument has been
abandoned on appeal. See State v. Lindsey, 394 S.C. 354, 363, 714 S.E.2d 554,
558 (Ct. App. 2011) ("An issue is deemed abandoned and will not be considered
on appeal if the argument is raised in a brief but not supported by authority.");
Glasscock, Inc. v. U.S. Fid. & Guar. Co., 348 S.C. 76, 81, 557 S.E.2d 689, 691 (Ct.
App. 2001) ("South Carolina law clearly states that short, conclusory statements
made without supporting authority are deemed abandoned on appeal and therefore
not presented for review."). In their brief, Appellants make short, conclusory
statements concerning the circuit court's alleged error—asserting simply, "Clearly,
this was error"—and fail to cite to any relevant legal authority in support of their
argument. Appellants cite to Cheap-O's Truck Stop, Inc. v. Cloyd 2 to support their
argument; however, that case dealt with a term of imprisonment imposed for
failure to comply with a settlement agreement and is therefore irrelevant.
Accordingly, we find Appellants' arguments are abandoned on appeal and decline
to address the merits of this issue.
CONCLUSION
Based on the foregoing, we affirm the circuit court's civil contempt finding as to
Chris, reverse its civil contempt finding as to George, and remand the issue of the
determination of fees appropriate for compensatory contempt only as to Chris.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
KONDUROS AND HEWITT, JJ., concur.
2
350 S.C. 596, 609-10, 567 S.E.2d 514, 521 (Ct. App. 2002).