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Docket Number

Opinion No. 23768

Advocates

Steven E. Solomon, Myrtle Beach, for Appellant. David E. Martin, of DuRant Martin, Myrtle Beach, for respondents.

Judges

CHANDLER, Justice:

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Smart Summary

Case Summary: Parkman v. Hanna, Opinion No. 23768 (Supreme Court of South Carolina, Dec. 31, 1992)

Factual and Procedural Background

This appeal arises from an order of the Horry County Probate Court terminating the appointment of Larry L. Hanna (Hanna) as Personal Representative ("PR") of the Estate of George Siekmann (the Decedent). The relevant facts and procedural history, as stated in the opinion, are:

Hanna, an attorney, was disbarred by the South Carolina Supreme Court on May 7, 1990 (In re Larry Laverne Hanna, 301 S.C. 310, 391 S.E.2d 728 (1990)). He had previously received a public reprimand in 1987 (Matter of Hanna, 294 S.C. 56, 362 S.E.2d 632 (1987)).
Several years prior to his disbarment, Hanna drafted a will for the Decedent in which Hanna was named as the Personal Representative.
The Decedent died testate on February 15, 1991, leaving the Parkman family (Cheryl, Russell, Suzanne and Stephen Parkman) as the only heirs-at-law.
Hanna filed the will with the Probate Court on February 22, 1991, and was appointed Personal Representative that same date.
The Parkmans petitioned the Probate Court for Hanna's removal, alleging he was untrustworthy, incompetent, and unfit to serve as PR because of acts of dishonesty, fraud and deceit that had led to his disbarment.
Following a hearing, the Probate Court found Hanna unsuitable to serve as Personal Representative on the basis of the facts and circumstances that gave rise to his disbarment, and it appointed attorney David E. Martin as successor Personal Representative.
The Supreme Court of South Carolina granted certiorari to review the Probate Court's order terminating Hanna's appointment and affirmed the Probate Court's decision.

Legal Issues Presented

Whether the Probate Court properly terminated Hanna's appointment as Personal Representative under S.C. Code Ann. § 62-3-203(e)(2) based on findings that he was unsuitable to serve in that capacity.
Whether the Probate Court's decision removing Hanna as Personal Representative should be disturbed on appeal (i.e., whether the Probate Court abused its discretion).

Arguments of the Parties

Respondents' (Parkmans') Arguments

The Parkmans petitioned for removal on grounds that Hanna was untrustworthy, incompetent, and unfit to serve as Personal Representative because he had committed acts of dishonesty, fraud and deceit which had led to his disbarment.
All beneficiaries (the Parkmans) supported removal by petitioning the Probate Court based upon Hanna's acts of fraud, deceit and untrustworthiness.

The opinion does not contain a detailed account of arguments presented by the appellant (Hanna) in opposition to removal.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
In re Larry Laverne Hanna, 301 S.C. 310, 391 S.E.2d 728 (1990)	Prior disciplinary determination: disbarment for conduct involving dishonesty, fraud, deceit and misrepresentation; the Court described Hanna's conduct as "patently shocking" and "manifestly unconscionable."	The Supreme Court relied on the facts and findings from the disbarment proceeding as factual support for the Probate Court's determination that Hanna was unsuitable to serve as PR.
Matter of Hanna, 294 S.C. 56, 362 S.E.2d 632 (1987)	Prior public reprimand of Hanna (disciplinary history).	Cited as part of Hanna's record of professional discipline supporting the Probate Court's concerns about his fitness to serve as a fiduciary.
In re McClam's Estate, 245 S.C. 315, 140 S.E.2d 478 (1965)	Principle that the Judge of Probate may deny administration to a person otherwise entitled if, upon showing, the person is not properly qualified; issuance of letters is not automatic and third parties may show cause.	Used to support the proposition that the Probate Court has authority to deny or remove a person from administering an estate when the court is satisfied the person is not qualified.
Ex Parte Small, 69 S.C. 43, 48 S.E. 40 (1904)	Statement that one of the highest causes to deny administration is that the applicant lacks the character on which to base a trust or has conduct indicating intent to divert assets.	Cited for the principle that lack of character or conduct suggesting diversion of estate assets justifies denial of administration; applied to conclude Hanna's conduct warranted removal.
Ex Parte Tolbert (In re Tolbert's Estate), 206 S.C. 300, 34 S.E.2d 49 (1945)	Standard of review: the Probate Court's authority and factual determinations will not be disturbed on appeal absent a clear abuse of discretion.	The Court applied this standard to affirm the Probate Court's removal of Hanna, finding no clear abuse of discretion.

Court's Reasoning and Analysis

The Supreme Court's legal analysis proceeds from the statutory provision and precedent cited in the opinion:

Statutory Framework: The Court identified S.C. Code Ann. § 62-3-203(e)(2) (Cum. Supp. 1991), which disqualifies "a person whom the Court finds unsuitable in formal proceedings" from serving as a personal representative.
Precedent Supporting Probate Authority: The Court relied on In re McClam's Estate and Ex Parte Small to explain that the Probate Judge may deny administration to a person otherwise entitled if that person is not properly qualified and that lack of character or conduct indicating diversion of assets is a proper basis for denial.
Standard of Review: The Court reiterated the long-standing rule (Ex Parte Tolbert) that a Probate Court's actions will not be disturbed on appeal absent a clear abuse of discretion.
Application to the Facts: The Court concluded the Probate Court acted within its discretion. The Probate Court had specifically noted Hanna had been found guilty (by the appropriate disciplinary authority) of dishonesty, fraud, deceit, and misrepresentation and had been disbarred by this Court for conduct described as "patently shocking" and "manifestly unconscionable." The Court equated the fiduciary character of the attorney-client relationship with the fiduciary role of a Personal Representative and found Hanna's violation of his fiduciary duties as an attorney supported a finding he was unfit to serve as PR.
Support by Beneficiaries' Petition: The Court observed that all beneficiaries had petitioned for Hanna's removal on the basis of the same acts of fraud, deceit and untrustworthiness, which the Probate Court relied upon in reaching its conclusion.
Limiting Statement: The Court expressly stated it was not declaring that a disbarred attorney is per se disqualified to serve as a named Personal Representative in every case; rather, suitability determinations are made by the Probate Court under § 62-3-203(e) and are reviewable for abuse of discretion.

Holding and Implications

Holding: The Supreme Court of South Carolina affirmed the Probate Court's order terminating Larry L. Hanna's appointment as Personal Representative of the Estate of George Siekmann.

Implications and direct effects:

The Probate Court's removal of Hanna and appointment of attorney David E. Martin as successor Personal Representative was upheld.
The decision affirms that a Probate Court may remove or deny administration to a person found unsuitable based on evidence of dishonesty, fraud, deceit or similar breaches of fiduciary duty; such decisions will be upheld unless there is a clear abuse of discretion.
The Court clarified that disbarment alone does not create an automatic, per se disqualification for service as a named Personal Representative in every case; instead, the suitability question is for the Probate Court under § 62-3-203(e) and is subject to appellate review for abuse of discretion.
No broader new rule or expansion of precedent was announced; the ruling applied existing statutory standards and case law to the facts of this case and affirmed the Probate Court's exercise of discretion.

Disposition: Affirmed. Opinions concurring: Chief Justice Harwell and Justices Finney, Toal and Moore concurred.

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Cheryl PARKMAN, Russell Parkman, Suzanne Parkman and Stephen Parkman,Respondents, v. Larry L. Hanna, Appellant.

CHANDLER, Justice:

We issued a writ of certiorari to review an Order of the Probate Court terminating the appointment of Larry L. Hanna (Hanna) as Personal Representative (PR) of the Estate of George Siekmann (Decedent). We affirm.

FACTS

Hanna was disbarred by this Court on May 7, 1990. In Re: Larry Laverne Hanna, 301 S.C. 310, 391 S.E.2d 728 (1990). Several years prior to disbarment, Hanna drafted a Will for the Decedent, in which he was named Personal Representative of the Estate.

Hanna was also publicly reprimanded in 1987. In the Matter of Hanna, 294 S.C. 56, 362 S.E.2d 632 (1987).

The Decedent died, testate, on February 15, 1991, leaving Respondents (The Parkmans) as the only heirs-at-law. Hanna filed the Will with Probate Court on February 22, 1991, and was appointed PR on the same date.

The Parkmans petitioned Probate Court for Hanna's removal, alleging he was untrustworthy, incompetent and unfit to serve as PR for having committed acts of dishonesty, fraud and deceit which brought about his disbarment.

After a hearing, Probate Court found Hanna unsuitable to serve as PR on the basis of the facts and circumstances giving rise to his disbarment. Attorney David Martin was appointed as successor PR.

ISSUE

We issued certiorari to consider whether Hanna's termination was proper.

DISCUSSION

Under the South Carolina Probate Code, S.C. Code Ann. § 62-3-203 (e) (2) (Cum. Supp. 1991),

(e) No person is qualified to serve as a personal representative who is:

(2) a person whom the Court finds unsuitable in formal proceedings; . . .

We recognized in In Re McClam's Estate, 245 S.C. 315, 319, 140 S.E.2d 478, 479 (1965) that

the Judge of Probate may deny administration to the person first entitled under the statute if upon the showing made before him he is satisfied that such person is not properly qualified for the position, and among other things the court calls attention to the fact that the granting of letters of administration is not automatic, because the law requires the issuance of a citation, to the end that the kindred or creditors of the intestate may show cause why the administration should not be granted to the person applying for it, notwithstanding such person may have the statutory priority. * * *

(Emphasis supplied) [citing Ex Parte Small, 69 S.C. 43, 48 S.E. 40 (1904)].

In Ex Parte Small, we noted that one of the highest causes [upon which to deny a person administration] would be that the person applying was without character upon which to base a trust, or had given by conduct convincing reasons for the conclusion that he designed to divert the assets from the purposes of administration.

69 S.C. at 45, 48 S.E. at 40.

The authority of the Probate Court, derived from the statute and precedent case law, will not be disturbed absent a clear abuse of discretion. Ex Parte: Tolbert In Re: Tolbert's Estate, 206 S.C. 300, 34 S.E.2d 49 (1945).

Here, Probate Court acted well within its discretion in terminating the appointment. It noted, specifically, that Hanna had been found guilty by the Executive Committee of dishonesty, fraud, deceit, and misrepresentation, and that this Court had described his conduct in the disbarment proceeding as "patently shocking" and "manifestly unconscionable." 301 S.C. at 313, 391 S.E.2d at 729.

The court correctly equated the attorney client relationship with that of the PR of an Estate. Given Hanna's violation of his fiduciary relationship as an attorney, Probate Court found him likewise unfit for such a relationship as PR.

Significantly, all beneficiaries petitioned for Hanna's removal based upon his acts of fraud, deceit and untrustworthiness.

In sum, we find ample evidence supporting Hanna's termination as PR in this case and, accordingly, affirm the Order of the Probate Court.

We do not hold that a disbarred attorney is per se disqualified to serve as the named PR in every case. The determination is one for the Probate Court pursuant to the provisions of § 62-3-203(e), reviewable upon a showing of abuse of discretion. Ex Parte: Tolbert, supra.

Affirmed.

HARWELL, C.J., and FINNEY, TOAL and MOORE, JJ., concur.

PARKMAN v. HANNA