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

Max E. Matthews, as Co-Personal Representative of the Estate of Tillman B. Matthews, Sr., Appellant,

Ann J. Matthews, South Carolina Bank and Trust, First Citizens Bank, and Charles J. Matthews, Respondents.

Appeal From Richland County
G. Thomas Cooper, Jr., Circuit Court Judge

Unpublished Opinion No. 2010-UP-361
Submitted April 1, 2010 – Filed July 12, 2010

AFFIRMED

Matthew E. Steinmetz of Columbia, for Appellant.

Charles J. Hupfer, Jr., of Florence, E. LeRoy Nettles, Sr., of Lake City; Thomas E. Lydon, W. Cliff Moore, and John D. Hudson, Jr., all of Columbia, for Respondents.

PER CURIAM: Max E. Matthews, as co-personal representative of the estate of Tillman B. Matthews, Sr. appeals the trial court's order dismissing his action against Ann J. Matthews, South Carolina Bank and Trust (SCB&T), First Citizens Bank, and Charles J. Matthews (collectively Respondents).[1] We affirm.[2]

FACTS/PROCEDURAL HISTORY

Tillman died testate on June 6, 2004 at the age of 94. His will was admitted to informal probate in Florence County on July 15, 2004. In his will, Tillman appointed his sons from a prior marriage, Max, Charles, and Tillman Jr.[3] as the corepresentatives of his estate. Charles submitted an inventory to the probate court on February 3, 2005 verified only by himself because Max refused to verify it.

In September of 2005, Max filed a petition in probate court asserting the inventory was false in that it significantly understated the value of the estate and omitted items of personal property and funds Max believed Tillman owned at the time of his death. He claimed Tillman's widow, Ann, had used a power of attorney while Tillman was "incapacitated, blind, and vulnerable" to move funds into accounts in her name and thus received funds from bank accounts that should have passed under the residuary clause of the will. He asserted Ann and others utilized efforts to pay herself funds to which she was not entitled, including certificates of deposit at SCB&T. He also claimed she and others entered into Tillman's safe deposit box at First Citizens Bank after his death without all personal representatives or a bank officer being present. He asseverated all of Ann's financial transactions with Tillman are null and void. He alleged she had been communicating with Charles about closing the estate quickly. Max also filed a petition to remove Charles as personal representative.

Max, acting as corepresentative of the estate of his father, subsequently brought the present action against Ann, Charles, SCB&T. and First Citizens Bank in the court of common pleas for Richland County. In his complaint, Max made similar allegations as he did in his probate court petition. He asserted causes of action against Ann and the banks for breach of fiduciary duties in connection with the durable power of attorney, influenced transactions prior to the power of attorney, conversion, negligence per se, and violation of the Omnibus Adult Protection Act. In addition, he asserted a cause of action for conspiracy against all of the defendants, constructive trust against Ann, and violation of the South Carolina Unfair Trade Practices Act (SCUTPA) against the banks.

All of the defendants answered. Ann, Charles, and First Citizens each filed motions to dismiss. After a hearing, the trial court dismissed the case. The court held it did not have jurisdiction because the matters alleged in the complaint were directly related to the administration of the estate and were in the original jurisdiction of the Probate Court of Florence County. Max filed a motion to reconsider, which the court denied.

He then timely appealed to this court. During the pendency of the appeal, a dispute arose regarding whether the court's order, which referenced only Ann's motion to dismiss, applied to just Ann or to all defendants. This court granted Max's motion for a remand to seek clarification of the order. On remand, the trial court held the action was dismissed as to all defendants. Max served and filed a timely appeal of this order.

STANDARD OF REVIEW

"The question of subject matter jurisdiction is a question of law for the court." Capital City Ins. Co. v. BP Staff, Inc., 382 S.C. 92, 99, 674 S.E.2d 524, 528 (Ct. App. 2009). Thus, when reviewing the trial court's grant of a motion to dismiss for lack of subject matter jurisdiction pursuant to Rule 12(b)(1), SCRCP, this court is free to decide questions of law with no deference to the trial court. Id.

LAW/ANALYSIS

1. Exclusive jurisdiction of probate court

Max argues the circuit court erred in holding the probate court had exclusive jurisdiction over the action. We disagree.

The South Carolina Probate Code confers exclusive original jurisdiction to the probate court over all subject matter related to estates of decedents. S.C. Code Ann. § 62-1-302(a)(1) (2009) (providing probate court has exclusive original jurisdiction over all subject matter related to "estates of decedents, including the contest of wills, construction of wills, and determination of heirs and successors of decedents and estates of protected persons"). An action requesting settlement of a claim owed by and to an estate must be originated in the probate court. Anderson v. Anderson, 299 S.C. 110, 115, 382 S.E.2d 897, 900 (1989).

Max asserts the probate court lacks subject matter jurisdiction over tort actions. He claims: "Indeed, if the decision of the lower court dismissing [his] Complaint is upheld, such will set a new precedent requiring that all civil actions brought on behalf of estates or beneficiaries, including actions for wrongful death, must be brought first in the Probate Court." The probate code specifically addresses the circuit court's concurrent jurisdiction for wrongful death and survival actions.[4] In addition, while certain claims must originate in probate court, they may be removed to circuit court pursuant to section 62-1-302(d), which provides in part:

Notwithstanding the exclusive jurisdiction of the probate court over the foregoing matters, any action or proceeding filed in the probate court and relating to the following subject matters, on motion of a party, or by the court on its own motion, made not later than ten days following the date on which all responsive pleadings must be filed, must be removed to the circuit court and in these cases the circuit court shall proceed upon the matter de novo:

. . .

(5) actions in which a party has a right to trial by jury and which involve an amount in controversy of at least five thousand dollars in value. . . .

S.C. Code Ann. § 62-1-302(d) (2009 & Supp. 2009).

In his response to Ann's and Charles' motions to dismiss, Max acknowledged this section was applicable to the present case even though he had originated his claim in circuit court rather than filing it in probate court and seeking removal to circuit court pursuant to the statute. We find no merit to Max's assertion that the probate court does not have jurisdiction over tort actions when those actions are related to estates of decedents. See also Fulmer v. Cain, 380 S.C. 466, 471, 670 S.E.2d 652, 655 (2008) (Toal, C.J., concurring) (agreeing order denying removal was not immediately appealable but noting appellant had an absolute right to remove the case to circuit court for causes of action including tortious interference with a contract and tortious interference with inheritance rights); Mayer v. M.S. Bailey & Son, 347 S.C. 353, 357-58, 555 S.E.2d 406, 408 (Ct. App. 2001) (noting action against bankers for breach of contract, breach of contract accompanied by fraudulent act, breach of fiduciary duty, and violation of the SCUTPA concerning administration of trust filed in circuit court had been dismissed without prejudice for lack of jurisdiction before it was brought in probate court).

Max brought the present action on behalf of the estate. His claims are based on Ann's alleged transformation of probate assets into non-probate assets and removal of assets from the estate after Tillman's death. He sought a determination of assets belonging to the estate, a return of the assets allegedly taken, and damages arising from the alleged removal. We hold these claims fall within the probate court's exclusive original jurisdiction over all subject matter related to estates of decedents. Accordingly, the trial court did not err in dismissing Max's claims.

2. Max's lack of authority to bring action as corepresentative

The Respondents contend as an additional sustaining ground this court should find Max did not have the authority to bring this action without the concurrence of his corepresentative, Charles. The Probate Code provides: "If two or more persons are appointed corepresentatives and unless the will provides otherwise, the concurrence of all is required on all acts connected with the administration and distribution of the estate." S.C. Code Ann. § 62-3-717 (2009).

In his reply brief, Max only contends this issue is not properly before the court because it was not raised to or ruled on by the trial court. However, this court may affirm for any reason appearing in the record. Rule 220(c), SCACR ("The appellate court may affirm any ruling, order, decision or judgment upon any ground(s) appearing in the Record on Appeal."); I'On, L.L.C. v. Town of Mount Pleasant, 338 S.C. 406, 419, 526 S.E.2d 716, 723 (2000) ("Under the present rules, a respondent-the 'winner' in the lower court-may raise on appeal any additional reasons the appellate court should affirm the lower court's ruling, regardless of whether those reasons have been presented to or ruled on by the lower court."). Accordingly, we hold we may consider this issue.

Max did not bring this action individually but was solely acting as the corepresentative of the estate. He did not have the concurrence of Charles, his corepresentative, to bring the action. Thus, under section 62-3-717, he did not have the authority to bring the action.

CONCLUSION

We find no error in the trial court's dismissal of Max's complaint. Accordingly, the order of the trial court is

AFFIRMED.[5]

HUFF, THOMAS, and KONDUROS, JJ., concur.

[1] The Matthews family members are referred to by their first names.

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

[3] Tillman Jr. passed away in September of 2004.

[4] "The court's jurisdiction over matters involving wrongful death or actions under the survival statute is concurrent with that of the circuit court and extends only to the approval of settlements . . . and to the allocation of settlement proceeds among the parties involved in the estate." S.C. Code Ann. § 62-1-302(b) (2009).

[5] SCB&T and First Citizens Bank assert the appeal should be dismissed because Max failed to preserve the issue of the identity of the parties to whom the trial court's original order applied by not seeking clarification in his motion to alter or amend. Max served all parties with his notice of appeal of the trial court's December 2006 and January 2007 orders. Thus, he timely appealed as to all parties. Max does not dispute on appeal the identity of the parties to whom the dismissal applied. We find this argument to be without merit.