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Unpublished Opinion No. 2003-UP-475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.