Fisher v. Huckabee

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
Betty Fisher, Appellant,
v.
Bessie Huckabee, Respondent.
Lisa Fisher, Appellant,
v.
Bessie Huckabee, Respondent.
Appellate Case No. 2014-0020201
Appeal From Charleston County
J. C. Nicholson, Jr., Circuit Court Judge
Opinion No. 2016-UP-528
Heard October 3, 2016 – Filed December 21, 2016
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.
1
Consolidated with Appellate Case No. 2014-002028 and Appellate Case No.
2014-002034.
Peter A. Kouten, of Kouten Law Firm, LLC, of Johns
Island, for Respondent.
PER CURIAM: 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 FACTS2
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
2
Additional background facts may be found in Fisher v. Huckabee, 415 S.C. 171,
173-75, 781 S.E.2d 156, 157-58 (Ct. App. 2015), reh'g denied (Jan. 21, 2016),
petition for cert. filed (Feb. 22, 2016) and In re Estate of Alice Shaw Baker, Op.
No. 2015-UP-359 (S.C. Ct. App. filed July 15, 2015), reh'g denied (Sept. 15,
2015).
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) (holding an action to remove a personal representative
appointed pursuant to the terms of a will is equitable in nature). 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 APPEAL3
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
3
We have combined the Fishers' twenty-two issues on appeal into nine issues as
noted. As to Lisa Fisher's brief in Appellate Case No. 2014-002034, we have listed
her issues as they appear in the Statement of Issues on Appeal.
4
Betty Fisher v. Huckabee, Appellate Case No. 2014-002020 ("2020") - issue 1;
Lisa Fisher v. Huckabee, Appellate Case No. 2014-002028 ("2028") - issue 1;
Lisa Fisher v. Huckabee, Appellate Case No. 2014-002034 ("2034") - issue 1.
5
2020 - issue 2; 2028 - issues 2, 3, 4, 6.
6
2020 - issue 4; 2028 - issue 5.
7
2028 - issue 10.
8
2034 - issues 2, 3, 4.
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 appoint a special fiduciary
when statutory notice was not given?12
V. LAW/ANALYSIS
1. Failure to Consider Statement of Grounds or Permit Oral Argument
The Fishers argue the circuit court erred in failing to read the briefs prior to the
hearing, depriving them of further argument on the record, and failing to make
findings of fact. We disagree.
At the beginning of the hearing, the circuit court noted on the record that it
remembered the parties from one of the previous cases. The Fishers' attorney
began arguments, stating, "[W]e've briefed this extensively and we assume the
Court has those briefs and I'm not going to go into it." The circuit court judge
stated, "Yes, I've got the briefs. I have not looked at them but I have got them
here. I will probably have to look at them before I make a decision. But go ahead.
. . . If you can summarize the briefs, that would be very helpful." The Fishers'
attorney responded, "That's what I'm going to attempt to do, Your Honor." The
judge stated, "You don't have to reiterate everything that's in there . . . because I
will read them . . . [o]r my law clerk and -- we both will probably read them." The
court heard extensive arguments from counsel.
The hearing lasted from 10:22 a.m. until 11:13 a.m. The Fishers were permitted to
fully argue the issues. At the conclusion of the hearing, the Fishers argued, "Your
Honor, one thing for the record?" The judge stated, "Thank you very much. I've
heard enough." However, as the Fishers concede, the judge next stated, "I'll review
9
2034 - issues 5, 6.
10
2028 - issues 7, 8, 9.
11
2028 - issue 11.
12
2020 - issue 3; 2028 - issue 12.
it. I'll review your memorand[a]. I'll make them a part of the record. Okay?
Thank y'all very much." The Fishers' counsel replied, "Thank you."
We find no error by the circuit court. Although the circuit court sitting in an
appellate capacity in an equity action may make factual findings according to its
own view of the preponderance of the evidence, deference to the probate court's
findings is appropriate in circumstances where it is apparent from the record that
the credibility of the witnesses was a consideration. Macaulay v. Wachovia Bank
of S.C., 351 S.C. 287, 293-94, 569 S.E.2d 371, 375 (Ct. App. 2002). In this case,
the accounting provided by Lisa Fisher established unauthorized depletion of the
estate assets after Fisher was discharged as the conservator of the estate by order
filed May 11, 2009. Further, the circuit court heard the Fishers' arguments at the
hearing. We find no error. See Porter v. Labor Depot, 372 S.C. 560, 568, 643
S.E.2d 96, 100 (Ct. App. 2007) (stating "not all situations require a detailed order,
and the trial court's form order may be sufficient if the appellate court can ascertain
the basis for the trial court's ruling from the record on appeal").
2. Jurisdiction of the Probate Court
The Fishers next argue the probate court did not have jurisdiction to hear the
motion to appoint a special fiduciary because related matters were pending on
appeal and a personal representative had already been appointed. We disagree.13
The jurisdiction of the probate court is governed by the Probate Code and extends
to subject matter related to estates of decedents. S.C. Code Ann. § 62-1-302(a)
(Supp. 2015) ("To the full extent permitted by the Constitution, and except as
otherwise specifically provided, the probate court has exclusive original
jurisdiction over all subject matter related to: (1) estates of decedents . . . ."). The
probate court may appoint a special administrator informally prior to the
appointment of a personal representative and in a formal proceeding "on the
petition of any interested person and finding . . . that appointment is necessary to
preserve the estate . . . ." S.C. Code Ann. § 62-3-614 (Supp. 2015). The probate
court has exclusive jurisdiction to determine the need for a conservator. S.C. Code
Ann. § 62-5-402(1) (Supp. 2015).
13
Huckabee argues the order appointing a special fiduciary is interlocutory and not
immediately appealable. We disagree. See Ex parte Small, 69 S.C. 43, 46, 48 S.E.
40, 41 (1904) (finding an order appointing an administrator was a final order and
was immediately appealable).
The question of whether the probate court may proceed with a case after one of its
orders has been appealed is also governed by the Probate Code. Section 62-1-
308(h) (Supp. 2015) of the Probate Code provides the following:
When an appeal according to law is taken from any
sentence or decree of the probate court, all proceedings in
pursuance of the order, sentence, or decree appealed from
shall cease until the judgment of the circuit court, court
of appeals or Supreme Court is had. If the appellant, in
writing, waives his appeal before the entry of the
judgment, proceedings may be had in the probate court as
if no appeal had been taken.
In Ulmer v. Ulmer, our supreme court explained that this section14 "does not apply
to all orders of the probate court concerning the parties. The only proceedings
required to cease are those proceedings addressed in the orders from which an
appeal was taken." 369 S.C. 486, 491-92, 632 S.E.2d 858, 861 (2006).
In this case, the order on appeal at the time of the probate court hearing related to
the appointment of Huckabee as the personal representative under the will. The
Fishers' cause of action challenging the will remains pending in the probate court.
We find Huckabee's status under the will is not related to the discharge of Lisa
Fisher as the conservator and the appointment of an unrelated, special fiduciary to
marshal the estate assets and maintain authority and control of the estate pending
the final distribution of the estate. Further, we find the probate court had
jurisdiction to appoint a special fiduciary under sections 62-1-302(a) and 62-3-614.
3. Huckabee's Standing
The Fishers argue Huckabee lacked standing to file the motion to appoint a special
fiduciary. We disagree.
The Probate Code defines interested persons to include the following:
heirs, devisees, children, spouses, creditors, beneficiaries,
and any others having a property right in or claim against
14
Formerly section 62-1-308(c).
a trust estate or the estate of a decedent, ward, or
protected person which may be affected by the
proceeding. It also includes persons having priority for
appointment as personal representative and other
fiduciaries representing interested persons. The meaning
as it relates to particular persons may vary from time to
time and must be determined according to the particular
purposes of, and matter involved in, any proceeding.
S.C. Code Ann. § 62-1-201(23) (Supp. 2015). "[A]ll persons having any interest
[in the probate of a will] are deemed parties and concluded by the decision
therein." Davis v. Davis, 214 S.C. 247, 258, 52 S.E.2d 192, 197 (1949). Because
Huckabee is the personal representative named in the will and is defined as an
interested person, we find no merit to the Fishers' challenge to Huckabee's
standing. As to the Fishers' challenge to Huckabee's standing based on the pending
appeal of the order appointing her as the personal representative, we affirm for the
reasons discussed in part 2 of this opinion.
4. Rule 11, SCRCP
Lisa Fisher argues the probate court's order was void because Huckabee failed to
comply with the notice provisions of Rule 11, SCRCP. We disagree.
Rule 11 of the South Carolina Rules of Civil Procedure provides that "[a]ll motions
filed shall contain an affirmation that the movant's counsel . . . has communicated .
. . with opposing counsel and has attempted in good faith to resolve the matter . . .
unless the movant's counsel certifies that consultation would serve no useful
purpose . . . ." Rule 11, SCRCP. Rule 11 provides a motion not in compliance
with the rule "shall be stricken unless it is signed promptly after the omission is
called to the attention of the pleader or movant." Id. Finally, the rule provides the
court "may impose upon the person who signed it, a represented party, or both, an
appropriate sanction . . . ." Id.In Jackson v. Speed, our supreme court affirmed the trial judge's refusal to strike a
motion based on a similar Rule 11(a) violation, finding the trial judge did not abuse
his discretion in refusing to strike the motion because an attempt to consult with
opposing counsel about the matter would have been pointless. 326 S.C. 289, 310-
11, 486 S.E.2d 750, 761 (1997). The court noted "[t]his finding by the trial judge
is adequate to cure the deficiency under the facts of this case." Id. at 311, 486
S.E.2d at 761.
In this case, the Fishers argued the motion to appoint a fiduciary should have been
striken based on the Rule 11 violation. Huckabee argued the motion was in
response to Lisa Fisher's motion for an extension. In her brief, Huckabee also
notes counsel had discussed the matter of the appointment of a special
administrator on several occasions and the Fishers' motions for extensions likewise
failed to comply with the Rule 11 affirmation requirements. The probate court did
not make a specific finding on the record. However, the issue of the violation was
argued to the probate court, and the court ruled at the hearing that Huckabee had "a
right to file that motion with the Court." Although a specific ruling excusing the
Rule 11 violation is preferable, we affirm, finding the probate court's ruling
implicitly found consultation with opposing counsel would have been pointless.
See Runyon v. Wright, 322 S.C. 15, 19, 471 S.E.2d 160, 162 (1996) (stating the
imposition of sanctions under Rule 11 is subjected to an abuse of discretion
standard of review).
5. Denial of Lisa Fisher's Request for Fees
Fisher argues the probate court erred in denying her request for fees. We remand
this issue.
Fisher was appointed as the guardian and conservator by order dated November 19,
2008. After Shaw-Baker died on February 25, 2009, Huckabee was appointed
personal representative based on her nomination in the will. Fisher was discharged
as the conservator of the estate by order dated May 11, 2009. Fisher moved for
fees and expenses of $67,814.50 for services rendered between August 2008 and
July 2009, which is approximately 17% of the estimated value of the estate of
$395,935.39. Fisher argued entitlement to fees under the probate code. By order
dated October 14, 2011, the probate court summarily denied the motion.15 Fisher
moved to reconsider the order, arguing (1) all other guardians and attorneys had
been paid their fees; thus, she was entitled to fees under the equal protection clause
of the United States and South Carolina constitutions; (2) the probate code
provides for reasonable compensation to guardians and conservators; and (3) the
takings clauses of the constitutions require compensation.
15
Fisher filed her motion in July 2009 and filed a renewed motion in October
2011.
The Probate Code provides, "[i]f not otherwise compensated for services rendered,
any visitor, lawyer, physician, conservator, or special conservator appointed in a
protective proceeding is entitled to reasonable compensation from the estate, as
determined by the court." S.C. Code Ann. § 62-5-414 (2009) (emphasis added).
The Probate Code also provides as follows:
Any guardian of one for whom a conservator also has
been appointed shall control the custody and care of the
ward and is entitled to receive reasonable sums for his
services and for room and board furnished to the ward as
agreed upon between him and the conservator, provided
the amounts agreed upon are reasonable under the
circumstances.
S.C. Code Ann. § 62-5-312(b) (2009) (emphasis added). In addition, the Probate
Code requires a conservator to "retain the estate for delivery to a duly appointed
personal representative of the decedent or other persons entitled thereto" if a
protected person dies. S.C. Code Ann. § 62-5-425(d) (2009).
In this case, Lisa Fisher was the appointed guardian and conservator until Shaw-
Baker died on February 25, 2009. Some of the expenses Fisher requested
reimbursement for were incurred after her conservatorship ended. However, the
accountings filed by Fisher include disbursements of $68,523.79 in
"Administrative/Legal Fees" incurred between December 23, 2008 and December
31, 2009 alone. Furthermore, Huckabee alleged the accountings indicate the estate
has been depleted by more than $80,000, but the accountings in the record indicate
depletion of more than $250,000. Because the probate court's order and the circuit
court's order only summarily address the issue, we remand to the probate court.16
6. Freezing of Assets
Lisa Fisher argues the probate court erred in freezing assets. We disagree.
Fisher argues the order(s) freezing assets were issued without notice because this
relief was not requested or raised; she was required to retain the estate property
16
We make no determination of the entitlement to, or the reasonableness of, the
fees claimed.
until a "duly appointed" personal representative was appointed and the issue of the
propriety of Huckabee's appointment is on appeal; the doctrine of laches supports
her continued protection of the estate; and the freezing of the estate assets and
Fisher's personal assets violated Fisher's constitutional rights.
Section 62-1-302 of the Probate Code generally defines the probate court's
jurisdiction and provides in pertinent part: "(a) To the full extent permitted by the
Constitution, and except as otherwise specifically provided, the probate court has
exclusive original jurisdiction over all subject matter related to: (1) estates of
decedents . . . ." S.C. Code Ann. § 62-1-302(a)(1) (Supp. 2015). The probate
court has the authority to issue orders in the nature of injunctions. See Greenfield
v. Greenfield, 245 S.C. 604, 611, 141 S.E.2d 920, 924 (1965) (finding the probate
court had the authority to issue an order requiring relatives of a decedent to
surrender the records of the decedent, and stating "[t]his power, we think, is one
which is of necessity incident to the jurisdiction expressly granted the probate
court over all matters of administration").
We find no merit to Fisher's arguments. As to her personal assets, Fisher admitted
at the hearing before the circuit court that the order(s) freezing assets "didn't have
any real effect because Lisa Fisher didn't have any accounts here in South Carolina
personally." Thus, Fisher suffered no prejudice and there is no basis for reversal.
See In re Estate of Patterson v. Palmetto Bank, 374 S.C. 116, 120, 646 S.E.2d 885,
887 (Ct. App. 2007) (holding a probate court's error that did not prejudice either
party formed no basis for reversal). As to the estate assets, we find the probate
court had the authority to freeze assets to protect the estate.
7. Appointing Special Fiduciary
Lisa Fisher next argues the probate court erred in appointing a special fiduciary.
We disagree.
First, Fisher argues the probate court did not rule on her objections to the
procedure and the accusations of her mismanagement of the estate. Second, she
argues the probate court's rulings are not supported by the record. Third, relying
on trust law, Fisher argues the probate court's finding that she did not have
authority to pay expenses on behalf of the estate was erroneous and demonstrates
no emergent need for a special fiduciary. Finally, Fisher argues Huckabee is
barred from moving for the appointment of a special fiduciary under the doctrine
of laches.
As to the first three issues, we find no merit. Initially, the probate court noted
Fisher's continued objections to its jurisdiction. In addition, neither the probate
court nor the circuit court found misconduct by Fisher in their written orders.
Rather, the probate court found Fisher had been discharged in 2009; the estate
contained real property assets requiring upkeep and repair; and the accounting
indicated a need for authority to deal with third parties. To the extent the court's
findings regarding Fisher's objections were deficient, we find adequate support in
the record. See Holcombe v. Hardee, 304 S.C. 522, 524, 405 S.E.2d 821, 822
(1991) (allowing the appellate court to make its own findings of fact if the record is
sufficient even though the family court may have failed to set forth specific
findings of fact and conclusions of law to support its decision). Further, the
accounting provided by Lisa Fisher established unauthorized depletion of the estate
assets after Fisher was discharged as the conservator of the estate by order dated
May 11, 2009. This is sufficient evidence in the record to constitute the emergent
need found by the probate court. See S.C. Code Ann. § 62-7-704(e) (Supp. 2015)
(providing the probate court with authority to appoint a special fiduciary to
administer a trust whenever the court considers the appointment necessary for the
administration of a trust); § 62-5-402(1) (Supp. 2015) (providing the probate court
with exclusive jurisdiction to determine the need for a conservator or other
protective order). To the extent Fisher argues trust law does not apply, the probate
court has jurisdiction over the estate of decedents outside of the trust provisions of
the Probate Code. See § 62-1-302(a) ("To the full extent permitted by the
Constitution, and except as otherwise specifically provided, the probate court has
exclusive original jurisdiction over all subject matter related to: (1) estates of
decedents . . . ."). Thus, any erroneous reliance by the probate court on trust law is
insignificant because the probate court had authority under estate law.
As to Fisher's final issue, we find laches does not apply to bar Huckabee's request
for the appointment of a special fiduciary. "The party seeking to establish laches
must show: (1) a delay, (2) that was unreasonable under the circumstances, and (3)
prejudice." Robinson v. Estate of Harris, 388 S.C. 616, 627, 698 S.E.2d 214, 220
(2010). In this case, even if Fisher can show Huckabee caused any delay, it would
not be unreasonable delay. The issue of Huckabee's appointment as the personal
representative was not affirmed by this court until April 2011. Huckabee filed the
Motion to Appoint Special Fiduciary for Conservatorship Assets in May 2011.
8. Denial of Lisa Fisher's Request for Extension
Lisa Fisher argues the probate court erred in failing to grant her another extension
to deliver the assets, averring the court erred in finding she did not have the duty to
act once she had been discharged because she was required to protect the property
until delivery. We find no reversible error.
The South Carolina Rules of Probate Court govern procedure in the probate court.
See Rules 1-5, SCRPC. These rules address only a limited number of issues, and
there is no procedural rule governing motions in probate court. However, the
Probate Code provides the rules of civil procedure shall be applied in formal
proceedings in the probate court. S.C. Code Ann. § 62-1-304 (Supp. 2015). "The
manner of service, time for answering and other proceedings relating to the trial,
except trial by jury, shall conform as nearly as may be to the practice in the courts
of common pleas as provided in this Code." In re Estate of Weeks, 329 S.C. 251,
258, 495 S.E.2d 454, 458 (Ct. App. 1997) (quoting S.C. Code Ann. § 14-23-280(1976)). We find the probate court's ruling on Fisher's motion for an extension to
turn over the estate assets was within the sound discretion of the probate court. See
generally Beckham v. Durant, 300 S.C. 329, 332, 387 S.E.2d 701, 703 (Ct. App.
1989) (finding the probate court's consideration of an enlargement of time to file an
answer was within the discretion of the probate court). As to Fisher's argument the
probate court erred in finding she did not have the duty to act once she had been
discharged, we note this was a statement made by the probate court during the
hearing, and the probate court did not make this finding in its final order. We find
no merit to this argument. See Ford v. State Ethics Comm'n, 344 S.C. 642, 646,
545 S.E.2d 821, 823 (2001) ("Until written and entered, the trial judge retains
discretion to change his mind and amend his oral ruling accordingly.); id. ("The
written order is the trial judge's final order and as such constitutes the final
judgment of the court.").
9. Statutory Notice of the Hearing
The Fishers argue the probate court's order appointing a special fiduciary is void
because neither Betty Fisher nor the Attorney General's office were provided
notice of the Motion to Appoint Special Fiduciary for Conservatorship Assets. We
disagree.
Betty Fisher again argues the probate court erred in relying on trust law to appoint
a special fiduciary, which we considered above and found no reversible error. As
to notice, we likewise find no reversible error. Under the Probate Code, "[a]
special administrator may be appointed: (1) informally by the court on the
application of an interested person when necessary . . . (c) to take appropriate
actions involving estate assets; (2) in a formal proceeding by order of the court on
the petition of any interested person . . . . If it appears to the court that an
emergency exists, appointment may be ordered without notice." S.C. Code Ann. §
62-3-614 (Supp. 2015). In this case, the issue before the court was the protection
of the estate. Although the disposition of the estate would require notice to an
"interested person," the Probate Code provided authority for the probate court to
conduct this hearing without notice to Betty Fisher or the Attorney General. See
S.C. Code Ann. § 62-1-201(23) (Supp. 2015) (defining an "interested person" as
including "heirs, devisees, children, spouses, creditors, beneficiaries, and any
others having a property right in or claim against a trust estate or the estate of a
decedent . . ."). Neither Betty Fisher nor the animal charities are named in the last
will.
V. CONCLUSION
For the foregoing reasons, we affirm in part and remand in part.
AFFIRMED IN PART and REMANDED IN PART.
HUFF and SHORT, JJ., and MOORE, A.J., concur.