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South Carolina
Judicial Department
2011-UP-383 - Belk v. Harris


In The Court of Appeals

Gene C. Belk, Individually and as Co-Personal Representative of the Estate of Robert D. Belk, Appellant,


Linda B. Harris, Individually and as Trustee of the Ida Mae K. Belk Irrevocable Trust dated 9-17-07 and in all alleged fiduciary capacities, Bibco, Inc., Dewey M. Houser, Carolina Preowned, LLP, Michael D. "Mickey" Lyles, Jr., and M.M. Weinberg, Jr., Defendants and Cheryl Ann Harrison, Patricia B. Schmid, Robert M. Belk, and Ida Mae Belk, Stakeholders, 

Of whom Bibco, Inc., Mary B. Weinberg (substituted for M.M. Weinberg, Jr., deceased) Patricia B. Schmid and Ida Mae Belk are Respondents.

Appeal From Sumter County
 James R. Barber, Circuit Court Judge

Unpublished Opinion No.  2011-UP-383 
Submitted June 7, 2011 – Filed August 4, 2011


Andrew F. Lindemann and Thomas E. Lydon, both of Columbia, for Appellant.

Pope D. Johnson, III, of Columbia and William H. Johnson, of Manning, for Respondents.

PER CURIAM: This case involves family disputes stemming from the father's probate estate.  The surviving siblings disagreed about who should serve as personal representative, seeking both formally and informally to remove each other or appoint an alternative sibling.  The probate court removed the motions to remove and appoint a personal representative to circuit court.  One sibling, Gene Belk, also filed an action in circuit court complaining about a trust created for his mother after his father's death by the same attorney who drafted his father's will, M.M. Weinberg.  Weinberg filed a motion to dismiss the complaint and attached two affidavits.  The circuit court retained Gene and his sister, Linda Harris, as co-personal representatives and appointed a third sibling, Patricia Schmid, as special administrator.  The court granted Weinberg's motion to dismiss, treating it as a summary judgment motion.  The court denied Gene's post-trial motions.

Gene appeals arguing the circuit court (1) lacked subject matter jurisdiction to appoint a special administrator, (2) erred in converting the Rule 12(b)(6), SCRCP motion into a Rule 56, SCRCP summary judgment motion, (3) should have heard a motion to compel discovery before the motion to dismiss, and (4) erred in granting the motion to dismiss.[1]  We affirm pursuant to Rule 220(b)(1), SCACR, and the following authorities:

As to whether the circuit court lacked subject matter jurisdiction:  S.C. Code Ann. § 62-1-302(d)(1) (Supp. 2010) (allowing removal from probate to circuit court of "formal proceedings for the probate of wills and for the appointment of general personal representatives" (emphasis added)); Dema v. Tenet Physician Servs.-Hilton Head, Inc., 383 S.C. 115, 120, 678 S.E.2d 430, 433 (2009) ("Subject matter jurisdiction is the power to hear and determine cases of the general class to which the proceedings in question belong.").

As to conversion of motion to dismiss into a summary judgment motion and the order in which the court addressed the motions: Chastain v. Hiltabidle, 381 S.C. 508, 514-15, 673 S.E.2d 826, 829 (Ct. App. 2009) ("It is well settled that, but for a very few exceptional circumstances, an appellate court cannot address an issue unless it was raised to and ruled upon by the trial court."). 

As to whether the circuit court properly granted the motion to dismiss: Gaar v. N. Myrtle Beach Realty Co., 287 S.C. 525, 528, 339 S.E.2d 887, 889 (Ct. App. 1986) ("[A]n attorney is immune from liability to third persons arising from the performance of his professional activities as an attorney on behalf of and with the knowledge of his client."); Stiles v. Onorato, 318 S.C. 297, 300, 457 S.E.2d 601, 602 (1995) ("[A]n attorney may be held liable for conspiracy where, in addition to representing his client, he [1] breaches some independent duty to a third person or [2] acts in his own personal interest, outside the scope of his representation of the client."); Argoe v. Three Rivers Behavioral Ctr. & Psychiatric Solutions, 388 S.C. 394, 405, 697 S.E.2d 551, 556 (2010) (declining to "extend an attorney's liability to those in privity with his or her client").


FEW, C.J., PIEPER, and LOCKEMY, JJ., concur.

[1] We decide this case without oral argument pursuant to Rule 215, SCACR.