Watson v. Underwood
Watson v. Underwood
Opinion of the Court
Willie D. Watson appeals the circuit court’s grant of partial summary judgment finding her daughter, Nancy Carole Underwood, as Watson’s attorney-in-fact, had the authority to create and fund an irrevocable trust with Watson’s assets. We affirm.
FACTS/PROCEDURAL HISTORY
Watson and John Calvin Watson were married for sixty-two years and had three children: Underwood, John H. Watson, and Sherry Long. On October 4, 2006, Watson
On October 5, 2006, Watson granted Underwood a durable power of attorney. The power of attorney gave Underwood the power “[t]o establish trust funds, revocable or irrevocable, funded or unfunded, for the benefit of [Watson], [her] spouse, [her] children and [her] lineal descendants, and to transfer any of [her] assets to such trusts.” It also provided Underwood could transfer any of Watson’s assets to her “spouse, [her] children and [her] lineal descendants by gift, including to any such person serving as attorney[-]in[-]fact, or to any trust funds which [she] may have established, revocable or irrevocable.... ” The power of attorney provided mental incapacity or physical disability by Watson would not effect it.
On the same day, Watson executed a last will and testament. She devised $2,000 to each of her grandchildren and $1,000 to each of her great-grandchildren living at the time of her death. She bequeathed her husband and Long
Underwood and John H. were devised the residuary to be split equally. Both the will and the power of attorney were prepared by Townsend.
On March 13, 2009, during the night, Long moved Watson out of the assisted living facility
On June 18, 2009, Long moved Watson out of an assisted living facility, Generations, where Watson had been living for about a month. Also that day, Watson revoked Underwood’s power of attorney. On January 12, 2010, Watson executed a codicil to the 2006 will, naming Long as the sole beneficiary of the will. On January 26, 2010, Watson filed an action against Underwood and John H., as individuals and trustees, as well as her future and potential heirs of the trust (collectively, Respondents), challenging the validity and funding of the trust. Underwood and John H. answered on February 16, 2010. On April 29, 2010, Watson filed a petition
Respondents filed a motion for partial summary judgment on the issue of whether the power to create an irrevocable trust may be expressly granted and delegated by a competent principal to his or her agent in a power of attorney. Watson filed a cross-motion for summary judgment, contending (1) the deed was void as matter of law because it conveyed property to a trust rather than the trustees and (2) Underwood’s using her fiduciary powers to create an irrevocable trust that incorporates a fully revocable will, created a will in violation of the powers of a power of attorney. The circuit court held a hearing on the matter on August 26, 2011. On December 13, 2011, the circuit court filed an order granting Respondents’ motion and denying Watson’s. The court found (1) the power of attorney expressly authorized Underwood to create the trust, such power was legally delegable to the attorney-in-fact, and the trust was not a will and (2) the deed transferring real property was not invalid for lack of a properly named grantee. Watson filed a motion for reconsideration
LAW/ANALYSIS
I. Creation of a Will by a Power of Attorney
Watson argues the circuit court erred in denying her motion for summary judgment and granting Respondents’ partial summary judgment motion on the question of the validity of the trust because the effect of the trust is to create a will in violation of the powers of a power of attorney under South Carolina law.
The purpose of summary judgment is to expedite the disposition of cases not requiring the services of a fact finder. George v. Fabri, 345 S.C. 440, 452, 548 S.E.2d 868, 874 (2001). When reviewing the grant of a summary judgment motion, this court applies the same standard that governs the trial court under Rule 56(c), SCRCP; summary judgment is proper when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fleming v. Rose, 350 S.C. 488, 493, 567 S.E.2d 857, 860 (2002). In determining whether a genuine issue of fact exists, the evidence and all reasonable inferences drawn from it must be viewed in the light most favorable to the nonmoving party. Sauner v. Pub. Serv. Auth. of S. C., 354 S.C. 397, 404, 581 S.E.2d 161, 165 (2003).
“A trust ... may be created by: (i) transfer of property to another person as trustee during the settlor’s lifetime or by will or other disposition taking effect upon the settlor’s death----” S.C.Code Ann. § 62-7-401(a)(l) (Supp. 2013).
The power of attorney specifically granted Underwood the power to create trusts, both revocable and irrevocable. Simply because the trust used the will to specify how to distribute
II. Scope of Power of Attorney
Watson further asserts Underwood did not have the authority to execute the trust because the power of attorney was only to be used if her health failed. We disagree.
“ ‘A power of attorney is an instrument in writing by which one person, as principal, appoints another as his agent and confers upon him the authority to perform certain specified acts or kinds of acts on behalf of the principal. The written authorization itself is the power of attorney.’ ” In re Thames, 344 S.C. 564, 569, 544 S.E.2d 854, 856 (Ct.App. 2001) (footnotes omitted by court) (quoting 3 Am.Jur.2d Agency § 23 (1986)). “A durable power of attorney allows a person, the principal, to designate another as his or her attorney[-] in[-] fact to act on the principal’s behalf as provided in the document even if the principal becomes mentally incompetent.” Id. (citing S.C.Code Ann. § 62-5-501 (Supp. 2000)).
This court has previously determined “a cause of action to set aside [a power of attorney] is more closely akin to an action to set aside a contract, deed, or petition than it is to a will contest.” Id. at 571, 544 S.E.2d at 857. The same reasoning lends itself to the conclusion that an action to interpret a power of attorney is similar to an action to interpret a contract. An action to interpret a contract is an action at law. Pruitt v. S.C. Med. Malpractice Liab. Joint Underwriting Ass'n, 343 S.C. 335, 339, 540 S.E.2d 843, 845 (2001). “The construction of a contract which is ambiguous, or capable o[f] more than one construction, is a question of fact.” Skull Creek Club Ltd. P'ship v. Cook & Book, Inc., 313 S.C. 283, 286, 437 S.E.2d 163, 165 (Ct.App. 1993). “The cardinal
Generally, “the construction of contracts is a question of law for the court.” Hope Petty Motors v. Hyatt, 310 S.C. 171, 175, 425 S.E.2d 786, 789 (Ct.App. 1992). Determining what the parties intended becomes a question of fact for the jury only when the contract is ambiguous. Id. “If a contract is unambiguous, extrinsic evidence cannot be used to give the contract a meaning different from that indicated by its plain terms.” Bates v. Lewis, 311 S.C. 158, 161 n. 1, 427 S.E.2d 907, 909 n. 1 (Ct.App. 1993). “A contract is ambiguous only when it may fairly and reasonably be understood in more ways than one.” Jordan v. Sec. Grp., Inc., 311 S.C. 227, 230, 428 S.E.2d 705, 707 (1993). “Whe[n] the language of a contract is plain and capable of legal construction, that language alone determines the instrument’s force and effect.” Id. “Resort to construction by a party is only done when the contract is ambiguous or there is doubt as to its intended meaning.” Id. “The [c]ourt’s duty is to enforce the contract made by the parties regardless of its wisdom or folly, apparent unreasonableness, or the parties’ failure to guard their rights carefully.” Id.
In support of this argument, Watson cites to her testimony during a deposition.
Watson maintains the circuit court erred in granting Respondents’ summary judgment motion on the question of whether or not the irrevocable trust is valid because there were multiple questions of fact for a jury to determine. Watson contends Underwood had both a confidential and fiduciary relationship "with Watson and by creating the irrevocable trust naming herself as a beneficiary she violated those duties. We find these issues are not properly before this court.
Watson’s memorandum in support of her reply to Respondents’ summary judgment motion and her cross-motion for summary judgment alleges Underwood and Watson had a confidential and fiduciary relationship. Respondents’ memorandum of law in support of their motion of partial summary judgment and in opposition to Watson’s cross-motion for summary judgment addressed Watson’s allegations regarding breach of fiduciary duty in creating trust. It stated, “This portion of the Memo of Law addresses [Watson’s] arguments that are beyond the particular questions presented but which [Respondents] cannot allow to go unanswered.” The circuit court’s order makes no reference to whether a fiduciary or confidential relationship was violated here. In Respondents’ brief they state, “The motion for partial summary judgment did not raise, and the Order under appeal did not address, and rightfully so, trust validity issues related to a confidential relationship, undue influence or fiduciary duty....” “Generally, an issue must be raised to and ruled upon by the circuit court to be preserved.” Pye v. Estate of Fox, 369 S.C. 555, 565, 633 S.E.2d 505, 510 (2006) (citing Elam v. S.C. Dep't of Transp., 361 S.C. 9, 24, 602 S.E.2d 772, 780 (2004) (noting a party must file a Rule 59(e) motion “when an issue or argument has been raised, but not ruled on, in order to preserve it for appellate review”)). Accordingly, because these issues were not addressed in the grant of Respondents’ motion for partial summary judgment or raised in Watson’s 59(e) motion, we will not examine them on appeal.
IV. Denial of Summary Judgment — Transfer to Trust
Watson asserts the circuit court erred in denying her motion for summary judgment regarding when a deed
[A] judge deciding a case on the merits is not bound by a prior order of another judge denying summary judgment. If the law were otherwise, a party could never obtain relief from an erroneous order denying summary judgment since orders denying summary judgment are never appealable, not even after final judgment.
Weil v. Weil, 299 S.C. 84, 89, 382 S.E.2d 471, 473 (Ct.App. 1989). “[I]t is unnecessary to make findings of fact and conclusions of law in denying motions for summary judgment.” Ballenger, 313 S.C. at 478 n. 1, 443 S.E.2d at 380 n. 1. However, when denying Watson’s motion for summary judgment, the circuit court made conclusions of law. Because the denial of a motion for summary judgment cannot be appealed, we cannot consider this issue. We note that Watson is not bound by the circuit court’s conclusions of law on this issue and can raise the issue again at trial.
V. Denial of Petition to Terminate Trust
Watson contends the circuit court erred in denying her petition to terminate the trust. She maintains all the terms and conditions of section 62-7-411 of the South Carolina Code (Supp. 2013) were satisfied because she and Long are the sole beneficiaries, Watson is the settlor, and they gave their consent to terminate the trust. We find this issue is not appealable at this time.
“The right of appeal arises from and is controlled by statutory law.” Ex parte Capital U-Drive-It, Inc., 369 S.C. 1, 6, 630 S.E.2d 464, 467 (2006). “An appeal ordinarily may be pursued only after a party has obtained a final judgment.” Id. (citing S.C.Code Ann. § 14-3-330(1) (1977); Rule 72, SCRCP; Rule 201(a), SCACR). “The determination
“The provisions of [s]ection 14-3-330, including subsection (2), have been narrowly construed and immediate appeal of various orders issued before or during trial generally has not been allowed. Piecemeal appeals should be avoided and most errors can be corrected by the remedy of a new trial.” Hagood v. Sommerville, 362 S.C. 191, 196, 607 S.E.2d 707, 709 (2005). “The basic policy behind denying immediate review of pretrial motions is avoidance of piecemeal litigation where the rights of the parties have not been substantially impacted.” Breland v. Love Chevrolet Olds, Inc., 339 S.C. 89, 94, 529 S.E.2d 11, 13 (2000).
“An order affects a substantial right and is immediately appealable when it ‘(a) in effect determines the action and prevents a judgment from which an appeal might be taken or discontinues the action, (b) grants or refuses a new trial[,] or (c) strikes out an answer or any part thereof or any pleading in any action.’ ” Hagood, 362 S.C. at 195, 607 S.E.2d at 709 (brackets omitted) (quoting § 14-3-330(2)). Usually, an order that does not finally end a case or prevent a final judgment from which a party could appeal is not immediately appealable. Id. A judgment that determines what law is applicable but leaves questions of fact unsettled is not a final judgment. Good v. Hartford Accident & Indem. Co., 201 S.C. 32, 41, 21 S.E.2d 209, 212 (1942). Additionally, a decree or judgment that leaves in doubt whether the plaintiff will prevail
However, “an order that is not directly appealable will nonetheless be considered if there is an appealable issue before the [c]ourt and a ruling on appeal will avoid unnecessary litigation.” Hite v. Thomas & Howard Co., 305 S.C. 358, 360, 409 S.E.2d 340, 341 (1991), overruled on other grounds by Huntley v. Young, 319 S.C. 559, 462 S.E.2d 860 (1995).
In ruling on the petition, the circuit court referred to it as interlocutory. Watson did not immediately appeal the denial of her petition; she waited and appealed it with the court’s grant of Respondents’ partial summary judgment motion and the denial of her summary judgment motion. Here, the granting of Respondents’ summary judgment motion is immediately appealable. Therefore, we could consider the denial of the petition if it would avoid unnecessary litigation. However, because the matters at issue in terminating the trust are intertwined with those to be determined at trial, we find the petition is not appealable until a final judgment has occurred.
CONCLUSION
We affirm the circuit court’s grant of Respondents’ partial summary judgment motion. We do not address the denial of Watson’s summary judgment motion nor petition to terminate the trust. Accordingly, the circuit court is
AFFIRMED.
. Watson was eighty-eight years old at the time of the incident.
. Watson noted in the will that she had made "many advancements” to Long. She had previously gifted Long half of an acre, which was located in the middle of twenty-seven acres Watson owned. Watson informed Townsend she wished to undo the gift but her attorney advised her that she could not. She also told him Long would be inheriting the bulk of Watson's husband’s estate.
. At her attorney’s urging, she devised them $1 instead of leaving them out entirely as she had done under her previous will.
. In July 2008, Watson had a stroke. Her doctor believed she could not live independently and needed twenty-four-hour supervision.
. Townsend testified Watson was scared of Long.
. Two of the accounts were in Watson’s name. The third account contained approximately $50,000 and was in John H.’s name and possibly Underwood’s too.
. The pleading appeared under the caption of the original complaint and was not accompanied by a summons. Thus, the circuit court treated the pleading as a motion.
. The Rule 59(e), SCRCP, motion stated the circuit court failed to make specific findings of fact regarding (1) the deed transferring property to a trust rather than trustees, (2) a power of attorney creating an irrevocable trust that references a will created a will, and (3) a power of attorney locking an estate's distribution through an irrevocable trust.
. We believe the concurrence/dissent is wrong to suggest the circuit court’s ruling of the grant of summary judgment should be vacated.
. The record does not specifically provide what assets of Watson's were not transferred to the trust but her personalty and her inheritance from her husband were not transferred to the trust.
. Conversely, Townsend provided he explained the power of attorney would continue to be in effect if she were to become incapacitated. He testified Watson had declined a healthcare power of attorney. He further stated Watson had not asked for a springing power of attorney, which would only come into effect if she was to be declared incompetent, because if she had, he would have prepared one.
. The denial of summary judgment is never appealable, even after final judgment. Olson v. Faculty House of Carolina, Inc., 354 S.C. 161, 168, 580 S.E.2d 440, 444 (2003).
Concurring in Part
concurring in part, and dissenting in part.
I concur in the majority’s decision to affirm partial summary judgment to Underwood on the only two issues raised in her motion: (1) Did Watson grant Underwood power of attorney; and (2) Did Underwood have authority under that power of attorney to create an irrevocable trust. Because Underwood’s motion raised no other issues, I would vacate all other relief granted by the circuit court.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.