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2008-UP-605 - Brinton v. Halsey

THIS OPINION HAS NO PRECEDENTIAL VALUE, IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 239(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

Margaret Tavish Halsey Brinton, Appellant,

v.

The Estate of Ashley Halsey, Jr., Respondent.


Appeal From Lexington County
 James W. Johnson, Jr., Circuit Court Judge


Unpublished Opinion No.  2008-UP-605
Submitted November 3, 2008 – Filed November 6, 2008


AFFIRMED


James Ross Snell, Jr. and Richard J. Breibart, both of Lexington, for Appellant.

Mark D. Bower, of Columbia, for Respondent.

PER CURIAM:  Margaret Tavish Halsey Brinton filed a claim against the estate of Ashley Halsey, Jr. (the Estate), requesting reimbursement for storing a mobile home owned by the Estate.       Following a hearing, the probate court issued an order denying Brinton’s claim and modifying and approving final settlement of the Estate.  Brinton appealed to the circuit court, and the circuit court affirmed.  This appeal followed.  We affirm[1] pursuant to Rule 220(b), SCACR, and the following authorities: 

1.       As to the question whether the circuit court erred in affirming the probate court’s finding that Brinton’s claim against the Estate was untimely: Camp v. Camp, 378 S.C. 237, 240, 662 S.E.2d 458, 459-460 (Ct. App. 2008) (stating a motion to reconsider, alter, or amend judgment under Rule 59(e), SCRCP, that fails to specifically set forth the grounds for the motion is insufficient under Rule 7(b)(1), SCRCP); Jones v. State Farm Mut. Auto. Ins. Co., 364 S.C. 222, 235, 612 S.E.2d 719, 726 (Ct. App. 2005) (holding an issue is not preserved for appellate review where the trial court does not explicitly rule on it and the appellant does not raise it in a Rule 59(e) motion to alter or amend the judgment); In re Timmerman, 331 S.C. 455, 460, 502 S.E.2d 920, 922 (Ct. App. 1998) (“The South Carolina Rules of Civil Procedure are applicable in the probate court to the extent they are not inconsistent with the Probate Code or probate court rules. S.C. Code Ann. § 62-1-304 (1987); Rule 81, SCRCP. A motion to alter or amend a judgment pursuant to Rule 59(e), SCRCP, is not inconsistent with the Probate Code and is therefore applicable.”).

2.       As to the question whether the circuit court erred in affirming the probate court’s approval of the sale of the mobile home for approximately $7,000, the distribution of the antique firearms, and the personal representative’s fees: Rule 7(b)(1), SCRCP (stating a motion presented in writing “shall state with particularity the grounds therefor, and shall set forth the relief or order sought”); Owners Ins. Co. v. Clayton, 364 S.C. 555, 563, 614 S.E.2d 611, 615 (2005) (“Error without prejudice does not warrant reversal.”); Camp v. Camp, 378 S.C. 237, 240, 662 S.E.2d 458, 459-460 (Ct. App. 2008) (stating a motion to reconsider, alter, or amend judgment under Rule 59(e), SCRCP, that fails to specifically set forth the grounds for the motion is insufficient under Rule 7(b)(1), SCRCP); Jones v. State Farm Mut. Auto. Ins. Co., 364 S.C. 222, 235, 612 S.E.2d 719, 726 (Ct. App. 2005) (holding an issue is not preserved for appellate review where the trial court does not explicitly rule on it and the appellant does not raise it in a Rule 59(e) motion to alter or amend the judgment).    

3.    As to the question whether the transcript of the probate court hearing was sufficient to allow proper review of the issues raised in this appeal: State v. Ladson, 373 S.C. 320, 324-25, 644 S.E.2d 271, 273 (Ct. App. 2007) (holding generally the inability to prepare a complete transcript, in and of itself, does not necessarily present a sufficient ground for reversal); see also State v. Williams, 629 A.2d 402, 406 (Conn. 1993) (holding appellant must show “specific prejudice that results from having to address his claims on appeal with the reconstructed record”); Harris v. Comm’r of Corr., 671 A.2d 359, 363 (Conn. App. 1996). (“[B]efore a defendant can establish that he is entitled to a new trial on the basis of an inadequate reconstructed record, he must identify a specific appellate claim that this court would be unable to review effectively using the reconstructed record.”); Jones v. State, 923 So.2d 486, 489 (Fla. 2006) (noting appellant must point to prejudice resulting from missing portions of trial transcript); Simpson v. Commonwealth, 759 S.W.2d 224, 228 (Ky. 1988) (holding a showing of “prejudicial error” in having to proceed using substitute transcript is required); State v. Bolling, 246 S.E.2d 631, 637-638 (W.Va. 1978) (“Generally, the failure to report some part of the proceeding will not alone constitute reversible error.  Some identifiable error or prejudice must be shown by the defendant.”).

AFFIRMED.

HEARN, C.J., SHORT and KONDUROS, JJ.


[1] We decide this case without oral argument pursuant to Rule 215, SCACR.