In the Matter of the Estate of Harley A. Newsome

THE STATE OF SOUTH CAROLINA In The Court of Appeals In the Matter of the Estate of Harley A. Newsome, Deceased Gena Phillips Ervin as Personal Representative of the Estate of Harley A. Newsome; Christine N. Tolson, Individually and as Conservator for Sallie Louise Newsome, deceased; Cely Baker Reynolds as Guardian ad Litem for Sallie Louise A. Newsome, deceased; John H. Newsome, Sr.; and John H. Newsome, Jr. Respondents, v. Kenneth L. Amerson, Personal Representative of the Estate of Sallie Louise A. Newsome, Appellant. Appeal From Darlington County J. Ernest Kinard, Jr., Circuit Court Judge Unpublished Opinion No. 2003-UP-475 Submitted June 9, 2003 – Filed July 30, 2003 AFFIRMED Gary W. Crawford, of Florence, for Appellant. David W. Keller, Jr., R. Wayne Byrd, Julie J. Moore, Hugh L. Wilcox, Jr., James C. Rushton, III, and Lawrence B. Orr, all of Florence, for Respondents. PER CURIAM: Kenneth Amerson, personal representative of the estate of Sallie Louise A. Newsome, filed a Rule 60(b), SCRCP motion in probate court to set aside a sale of real property previously approved by the probate court. The probate court denied Amerson’s motion and the circuit court affirmed. We affirm. [1] FACTS Harley Newsome died on September 1, 1998. Newsome’s will left his entire estate to his wife, Sallie. Because Sallie suffered from Alzheimer’s disease, the probate court appointed Newsome’s sister, Christine Tolson, as Sallie’s conservator, Cely Baker Reynolds as Sallie’s guardian ad litem, and Gena Phillips Ervins as personal representative of Newsome’s estate. On January 12, 1999, Ervins petitioned the probate court for authorization to sell three parcels of land devised to Sallie by Newsome’s will. The stated reason for selling the parcels was to raise cash to pay for Sallie’s nursing home expenses. Ervins had the parcels appraised by Everett Johnson who valued the land at $88,800 based upon his finding that the best use of the land was farmland. Johnson noted in his appraisal that a new hospital was being built on nearby land. In her petition, Ervins requested that one parcel be sold to Tolson for $10,000 and the other two parcels to John Newsome Jr., Newsome’s brother, for $78,000. Neither Tolson nor Reynolds objected to the petition, and the probate court authorized the sale of the land as being in Sallie’s best interest. On March 8, 1999, Sallie died intestate leaving one sister and ten nieces and nephews as heirs. Amerson, the husband of one of the nieces, was appointed personal representative. After Amerson learned of the sale to Tolson and John Newsome, he commissioned Robert Christopher to appraise the three parcels. Christopher determined the land’s best use was commercial because of the proximity of the hospital and valued the parcels at $263,200. Amerson filed a Rule 60(b), SCRCP motion in the probate court seeking to rescind the sales to Tolson and John Newsome. At the hearing, Christopher’s appraisal was presented and the values of Newsome’s and Sallie’s estates were also presented. LAW/ANALYSIS Amerson contends the probate court erred when it denied his Rule 60(b) motion because the sale price was so far below the fair market value that it shocked the conscience, and the breaches of the fiduciary duties by Tolson, Ervins, and Reynolds required invalidation of the sale. We disagree. “The power to open, modify, or vacate a judgment is possessed solely by the court that rendered the judgment. Whether to grant or deny a motion under SCRCP 60(b) is within the sound discretion of the judge.” Coleman v. Dunlap, 306 S.C. 491, 494, 413 S.E.2d 15, 17 (1992) (citations omitted). An appellate court will not reverse the rendering court’s decision unless it abused its discretion. Saro Invs. v. Ocean Holiday P’ship, 314 S.C. 116, 124, 441 S.E.2d 835, 840 (Ct. App. 1994). “An abuse of discretion arises where the trial judge was controlled by an error of law or where his order is based on factual conclusions that are without evidentiary support.” Tri-County Ice & Fuel Co. v. Palmetto Ice Co., 303 S.C. 237, 242, 399 S.E.2d 779, 782 (1991). “Inadequacy of price will not justify setting aside a judicial sale unless the inadequacy is so gross as to shock the conscience of the court or is accompanied by other circumstances warranting interference by the court. Bonney v. Granger, 300 S.C. 362, 365, 387 S.E.2d 720, 722 (Ct. App. 1990). In Investors Savings Bank v. Phelps, 303 S.C. 15, 397 S.E.2d 780 (Ct. App. 1990), a third party placed a $510 bid on a piece of property that had been secured by a mortgage for over $45,000. Investors filed a motion to set aside the sale on the ground that the amount of the bid shocked the conscience when compared to the fair market value of the land. The master granted the motion to set aside the sale. This court affirmed, stating that the bid of less than ten percent of the fair market value of the property was unconscionably low. Id. at 18-19, 397 S.E.2d at 782. In this case, there is disagreement between two experts who appraised the property. On cross examination, Christopher readily admitted that it was common and not at all unusual to have two widely divergent valuations. His testimony supports the probate court’s decision not to rescind the sale because the value of the land was not undisputed. Even assuming Christopher’s $263,000 appraisal is the more accurate market value, the $88,000 paid for the land was more than one-third of Christopher’s appraised value, well above the ten percent line proscribed in Investors. Amerson’s contention that Tolson, Ervins, and Reynolds breached their fiduciary duties to Newsome’s and Sallie’s estates is an issue which was not raised to the probate court and thus is not preserved for our review. See, e.g., Humbert v. State, 345 S.C. 332, 337, 548 S.E.2d 862, 865 (2001). AFFIRMED. HEARN, C.J., CONNOR and STILWELL, JJ., concur. [1] We decide this case without oral argument pursuant to Rule 215, SCACR.