Tucci v. Tucci

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
Lenora Whitfield Tucci, Appellant,
v.
April Tucci and Robert D. Ganyard, personal
representatives of the Estate of Francis Paul Tucci, Jr.,
Respondents.
Appellate Case No. 2014-002726
Appeal From Spartanburg County
J. Derham Cole, Circuit Court Judge
Unpublished Opinion No. 2016-UP-526
Heard October 13, 2016 – Filed December 21, 2016
AFFIRMED
Kenneth Philip Shabel, of Campbell & Shabel, LLC, of
Spartanburg, for Appellant.
James W. Shaw, Heather Gwinn Hunter, and Stanley
Michael Pack, Jr., all of Dennis, Shaw, Drennan & Pack,
LLC, of Spartanburg, for Respondents.
PER CURIAM: Lenora Whitfield Tucci appeals the circuit court's order
dismissing her appeal from the probate court because she failed to comply with the
appellate procedure set forth in section 62-1-308 of the South Carolina Code
(Supp. 2015). Tucci argues (1) the circuit court erred in dismissing her appeal
because Respondents were not prejudiced by her failure to comply with the statute,
and (2) the probate court erred in dismissing her elective share petition as untimely
because the time to file such a petition should have been tolled pending the
resolution of a family court action. We affirm pursuant to Rule 220(b), SCACR,
and the following authorities:
1. As to Issue 1: Rule 74, SCRCP ("Except for the time for filing the notice of
appeal, the procedure on appeal to the circuit court from the judgment of an
inferior court or decision of an administrative agency or tribunal shall be in
accordance with the statutes providing such appeals."); S.C. Code Ann. § 62-1-
308(b) (Supp. 2015) ("Within forty-five days after receipt of written notice of the
order, sentence, or decree of the probate court, the appellant must file with the
clerk of the circuit court a Statement of Issues on Appeal (in a format described in
Rule 208(b)(1)(B), SCACR) with proof of service and a copy served on all
parties."); State v. Brown, 358 S.C. 382, 387, 596 S.E.2d 39, 41 (2004) ("[T]he
failure to comply with procedural requirements for an appeal divests a court of
appellate jurisdiction . . . ."); In re Estate of Cretzmeyer, 365 S.C. 12, 13-14, 615
S.E.2d 116, 116-17 (2005) (affirming the circuit court's dismissal of an appeal
from the probate court because the appellant failed to comply with the procedural
requirements of section 62-1-308); id. at 14, 615 S.E.2d at 116-17 (declining to
construe section 62-1-308 in a manner inconsistent with its unambiguous terms
because the settled rules of statutory construction mandate the result to be
reached).
2. As to Issue 2: Futch v. McAllister Towing of Georgetown, Inc., 335 S.C. 598,
613, 518 S.E.2d 591, 598 (1999) (noting an appellate court need not address any
remaining issues when its determination of a prior issue is dispositive of the
appeal).
AFFIRMED.
LOCKEMY, C.J., and KONDUROS and MCDONALD, JJ., concur.