In The Court of Appeals

The Estate of Rosa Tucker, by and through her Personal Representative, Ernest Tucker, Respondent,


Roy Tucker, Appellant.

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

Unpublished Opinion No.† 2008-UP-284
Heard June 3, 2008 Ė Filed June 4, 2008


Mark D. Cauthen and T. Jeff Goodwyn, Jr., both of Columbia, for Appellant.

Donald E. Rothwell, of Irmo and Jan L. Warner and Matthew E. Steinmetz, both of Columbia, for Respondent.

PER CURIAM:† Rosa Tucker filed this complaint in 2003 against her oldest son, Roy Tucker (Tucker), alleging fraud, conversion, constructive trust, intentional infliction of emotional distress, negligence per se for violation of the Omnibus Elderly Abuse Statute, and unfair trade practices.† Rosa died in 2004 and the action was continued on behalf of the Estate of Rosa Tucker (the Estate) by the personal representative, Ernest Tucker.† After a bench trial, the circuit court issued an order finding the Estate was entitled to a constructive trust in the amount of $22,000.† The court denied the Estateís remaining claims.† The circuit court thereafter denied Tuckerís post-trial motion to alter or amend the judgment.† Tucker appeals.

On appeal, Tucker asserts (1) the circuit court erred in imposing a constructive trust, (2) even if the constructive trust was properly imposed, the circuit court erred in establishing the amount of the trust as $22,000, and (3) the circuit court erred in denying his motion for a new trial or a new trial nisi remittitur.

1.† Imposition of Constructive Trust.

This dispute arises out of Tuckerís purchase of two residences that his mother lived in located at 3626 Hydrangea Street and 3601 Edmond Drive in Columbia, South Carolina.† The Estate alleges Tucker used money advanced to him by his mother to make the purchases, but he did not repay the amounts loaned to him.† The circuit court granted a constructive trust to the Estate pertaining to the Hydrangea Street property.†

In his appeal, Tucker first alleges the circuit court erred in finding a constructive trust should be imposed.† Tucker contends (a) there has been no finding of fraud, bad faith, abuse of confidence, or violation of a fiduciary duty that would give rise to an obligation in equity to make restitution, (b) the Estate has not established its entitlement to a trust by clear and convincing evidence, and (c) the Estateís complaint did not seek the establishment of a trust for the Hydrangea Street property.†

"A constructive trust arises entirely by operation of law without reference to any actual or supposed intentions of creating a trust."† McNair v. Rainsford, 330 S.C. 332, 356, 499 S.E.2d 488, 501 (Ct. App. 1998).† "It is resorted to by equity to vindicate right and justice or frustrate fraud."† Id.† Because an action to declare a constructive trust is in equity, this Court may find the facts in accordance with its own view of the evidence.† Lollis v. Lollis, 291 S.C. 525, 530, 354 S.E.2d 559, 561 (1987).

"A constructive trust will arise whenever the circumstances under which property was acquired make it inequitable that it should be retained by the one holding the legal title."† Lollis, 291 S.C. at 529, 354 at 561.† "A constructive trust results from fraud, bad faith, abuse of confidence, or violation of a fiduciary duty which gives rise to an obligation in equity to make restitution."† Id.† "A constructive trust arises whenever a party has obtained money which does not equitably belong to him and which he cannot in good conscience retain or withhold from another who is beneficially entitled to it as where money has been paid by accident, mistake of fact, or fraud, or has been acquired through a breach of trust or the violation of a fiduciary duty."† SSI Med. Servs., Inc. v. Cox, 301 S.C. 493, 500, 392 S.E.2d 789, 793-94 (1990).

The burden is on the plaintiff to establish a constructive trust by clear and convincing evidence.† McNair, 330 S.C. at 357, 499 S.E.2d at 501; see also Lollis, 291 S.C. at 530, 354 S.E.2d at 561 ("In order to establish a constructive trust, the evidence must be clear, definite, and unequivocal.").† Although fraud is generally cited as an element to establish a constructive trust, a party need not show actual fraud.† McNair, 330 S.C. at 357, 499 S.E.2d at 501.† Further, "equity is less than demanding and quite flexible in prescribing the elements essential to a constructive trust."† Whitmire v. Adams, 273 S.C. 453, 458, 257 S.E.2d 160, 163 (1979).

Initially, we find Tuckerís argument that the circuit court erred in imposing a constructive trust because the Estate did not seek the establishment of a constructive trust as to the Hydrangea Street property, but only claimed a constructive trust for the Edmond Drive property, is not properly before us.† Tucker did not raise this alleged error to the circuit court in a post-trial motion.† Where a trial court grants relief that was not requested, the proper procedure for the party alleging error is to make a post-trial motion to the trial court to alter or amend the order.† See, e.g., Pelican Bldg. Ctrs. of Horry-Georgetown, Inc. v. Dutton, 311 S.C. 56, 60, 427 S.E.2d 673, 675 (1993); Godfrey v. Heller, 311 S.C. 516, 520-21, 429 S.E.2d 859, 862 (Ct. App. 1993).† An alleged error may not be raised for the first time on appeal; rather, it must be both raised to and ruled upon by the trial court to be preserved for appellate review.† Pye v. Estate of Fox, 369 S.C. 555, 564, 633 S.E.2d 505, 510 (2006) ("It is well settled that an issue cannot be raised for the first time on appeal, but must have been raised to and ruled upon by the trial court to be preserved."); see Staubes v. City of Folly Beach, 339 S.C. 406, 412, 529 S.E.2d 543, 546 (2000) ("Error preservation requirements are intended Ďto enable the lower court to rule properly after it has considered all relevant facts, law, and arguments.í " (quoting IíOn, L.L.C. v. Town of Mt. Pleasant, 338 S.C. 406, 422, 526 S.E.2d 716, 724 (2000))).† Thus, this allegation is not preserved.

We next consider Tuckerís argument that a constructive trust was not proper in this case because the Estate made no showing of fraud, a confidential relationship, or any other qualifying element by clear and convincing evidence.† The Estate contends the circuit court did specifically find "that [Tucker] and his mother were clearly in a confidential relationship, [Tucker] was the dominant party in the transactions complained of, that [Tuckerís] mother relied upon him and trusted him, and [Tucker] provided little evidence that the transactions were fair or equitable."†††

We have previously noted that "a precise definition of a confidential relationship is elusive . . . ."† Chapman v. Citizens & S. Natíl Bank, 302 S.C. 469, 475, 395 S.E.2d 446, 450 (Ct. App. 1990).†"Confidential relations are deemed to arise whenever two persons have come into such a relation that confidence is necessarily reposed by one and the influence which naturally grows out of the confidence is possessed by the other, and this confidence is abused or the influence is exerted to obtain an advantage at expense of confiding party."† Id. at 476, 395 S.E.2d at 451.† In Chapman we quoted the following definition from Blackís Law Dictionary:

Confidential relation.† A fiduciary relation.† It is a peculiar relation which exists between client and attorney, principal and agent, principal and surety, landlord and tenant, parent and child . . . .† In these and like cases, the law, in order to prevent undue advantage from the unlimited confidence or sense of duty which the relation naturally creates, requires the utmost degree of good faith in all transactions between the parties.† It is not confined to any specific association of parties.† It appears when the circumstances make it certain that the parties do not deal on equal terms, but on the one side there is an overmastering influence, or, on the other, weakness, dependence, or trust, justifiably reposed. The mere existence of kinship does not, of itself, give rise to such relation.† It covers every form of relation between parties wherein confidence is reposed by one in another, and [the] former relies and acts upon representations of the other and is guilty of no derelictions on his own part.

Id. at 476, 395 S.E.2d at 450-51 (quoting Blackís Law Dictionary 270 (5th ed. 1979)).

We agree with the Estate that the circuit court did, in fact, find a confidential relationship existed between Tucker and his mother.† Although the circuit court did not expressly use the phrase "confidential relationship," it is clear the court made this determination after reviewing the courtís findings as follows:† (1) Tucker "has benefited from his relationship with his mother by taking money from her by way of an $8[,]000.00 loan, by selling property to her for stated consideration of $14,000.00, and then having her re-convey the property for love and affection"; (2) Tucker "was the dominant party in these transactions and a businessman who, by his own testimony, buys and sells real estate, sells life insurance, and owns rental houses"; (3) Tucker "also prepared the deeds that were signed by his mother"; and (4) Tuckerís mother "never graduated from high school and relied upon and trusted Roy Tucker in these transactions."†††

We hold the circuit court did not err in determining the imposition of a constructive trust was appropriate under the circumstances.†† Tucker seeks the imposition of a strict standard that is not required by our case law.† As noted above, South Carolina law provides actual fraud need not be shown to warrant imposition of a constructive trust, and the courts are flexible in determining the circumstances that justify the imposition of a constructive trust.† See Whitmire, 273 S.C. at 458, 257 S.E.2d at 163 ("[E]quity is less than demanding and quite flexible in prescribing the elements essential to a constructive trust.").†

In this case, Tucker had a confidential relationship with his mother and he was able to obtain funds from her based on the reliance and trust she placed in him to direct these business transactions.† Tuckerís mother was an older adult in poor health who did not complete her high school education, and she acquiesced in the decisions of her son.† Tucker prepared the deeds and was in control of the transactions.† Because Tucker has never repaid these funds, we agree with the circuit court that it is only just and equitable that the law provides recovery to his motherís Estate by means of the imposition of a constructive trust.† See, e.g., Devlin v. Devlin, 89 S.C. 268, 271, 71 S.E. 966, 968 (1911) (approving the principle of law that "where confidential relations exist between persons, the law looks with suspicion upon any transaction between them, whereby the superior gains an advantage to himself over the other").

2.† Amount of Constructive Trust.

Tucker further contends that, even if the circuit court properly imposed a constructive trust, the court erred in finding the trust amount should be $22,000.† Tucker argues $14,000 of this amount, which is the sum that was recited in the deed of the Hydrangea Street property, was never actually paid to him by his mother.† He also contends he is entitled to an offset for the unpaid rent, mortgage payments, taxes, insurance, and the amount he expended for repairs.†

In his testimony, Tucker admitted he had not repaid his mother the $8,000 she had advanced for his purchase of the Hydrangea Street home.† Tucker also admitted there is a deed that shows he received $14,000 from his mother and transferred the home to her.† When asked about his receipt of the $14,000 during his testimony, Tucker stated, "Thatís what it says . . . ."† Although Tucker now disputes that he ever received the $14,000 recited as consideration in the deed, we cannot say the circuit court erred in its determination of the amount of the trust.† Under our standard of review, we may take our own view of the evidence, but we are also aware that the circuit court was in the best position to hear the witnesses and evaluate their credibility in this regard.† See Latimer v. Farmer, 360 S.C. 375, 380, 602 S.E.2d 32, 34 (2004) ("We are not required to disregard the findings of the trial judge who saw and heard the witnesses and was in a better position to evaluate their credibility.").† Accordingly, we are not inclined to disturb the circuit courtís finding that Tucker received the sum of $14,000 as recited in the deed regarding the Hydrangea Street property.

Additionally, we find the issue of an offset has been waived.† Tucker did not seek an offset in his pleadings and Tuckerís counsel expressly advised the circuit court at the trial in this matter:† "We do not claim an offset for rent, your Honor, in this case."† Thereafter, the court denied counselís belated, oral motion to amend the pleadings to seek an offset.† Although Tucker filed a motion to reconsider asking for a "remittitur" based on the unpaid rent, we note a remittitur is a term of art and it is distinguishable from establishing the entitlement to an offset that is proven at trial in the first instance.† Moreover, as for the rent, we find any calculation for unpaid rent would be speculative as we do not know what the rent would be after Tuckerís mother moved to the Edmond Street property and Tucker made no offer of proof.†

Finally, we note Tucker is attempting on appeal to expand the items for which he is seeking an offset, as he is now claiming an offset for additional items other than rent, such as taxes, insurance, and repairs.† Consequently, we find no merit to Tuckerís contention that the circuit court erred in failing to grant him an offset against the amount awarded for the constructive trust.† See Wilder Corp. v. Wilke, 330 S.C. 71, 76, 497 S.E.2d 731, 733 (1998) ("It is axiomatic that an issue cannot be raised for the first time on appeal, but must have been raised to and ruled upon by the trial judge to be preserved for appellate review."); Hurst v. Sumter County, 189 S.C. 376, 381, 1 S.E.2d 238, 240 (1939) ("Under the settled law of this State, an essential preliminary to the allowance of an offset is that the offset claimed must be pleaded, and there must be some evidence tending to establish such plea."); Doe v. ATC, Inc., 367 S.C. 199, 205 n.4, 624 S.E.2d 447, 450 n.4 (Ct. App. 2005) ("Issue preservation rules preclude us from expanding the case and issues beyond those argued in the trial court.").

3.† New Trial or New Trial Nisi Remittitur.

Based on our disposition, we need not reach Tuckerís remaining issue seeking a new trial or a new trial nisi remittitur.