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2010-UP-027 - Keith Marshall v. Michael Marshall

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

Keith C. Marshall and Peggy M. Marshall, Appellants,

v.

Michael C. Marshall, Terri M. Shaw, and Mary E. Rutledge, Respondents.


Appeal From Lancaster County
Brooks P. Goldsmith, Circuit Court Judge


Unpublished Opinion No. 2010-UP-027
Submitted October 7, 2009 – Filed January 25, 2010   


AFFIRMED


Kathryne Ann Shelton-Duco, of Columbia, for Appellants.

Philip Wright, of Lancaster, for Respondents.

PER CURIAM:  Keith Marshall and Peggy Marshall (collectively Contestants) filed an action contesting a will, and the circuit court granted summary judgment finding the will valid.  Contestants appeal arguing the circuit court erred in (1) granting summary judgment before they completed discovery or obtained an expert witness; (2) determining the testatrix had the capacity to execute a will without reviewing extensive medical records; and (3) finding even if the will was invalid, the prior will would be in operation.  We affirm[1] pursuant to Rule 220(b)(1), SCACR, and the following authorities:

1. As to whether the circuit court erred in granting summary judgment before Contestants completed discovery or obtained an expert witness: In re Michael H., 360 S.C. 540, 546, 602 S.E.2d 729, 732 (2004) ("An issue may not be raised for the first time on appeal.  In order to preserve an issue for appeal, it must be raised to and ruled upon by the trial court.").

2.  As to whether the circuit court erred in determining the testatrix had the capacity to execute a will: Fleming v. Rose, 350 S.C. 488, 493, 567 S.E.2d 857, 860 (2002) (providing that 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); Rule 56(f), SCRCP ("Should it appear from the affidavits of a party opposing the motion that he cannot for reasons stated present by affidavit facts essential to justify his opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such order as is just."); Baughman v. Am. Tel. & Tel. Co., 306 S.C. 101, 112 n.4, 410 S.E.2d 537, 544 n.4 (1991) ("Although Plaintiffs did not file an affidavit invoking [Rule 56(f)], other courts have not mandated strict compliance with the technical requirements of Rule 56(f) where, as here, the need for further discovery is otherwise made known to the trial court."); Rule 56(c), SCRCP (providing when a party has moved for summary judgment, "[t]he adverse party may serve opposing affidavits not later than two days before the hearing"); McQuaig v. Brown, 270 S.C. 512, 516-17, 242 S.E.2d 688, 690 (1978) (finding when an affidavit was not timely submitted and not considered by the trial court in granting a summary judgment motion, the affidavit was not properly before the supreme court on appeal); In re Estate of Weeks, 329 S.C. 251, 263, 495 S.E.2d 454, 461 (Ct. App. 1997) ("The test of whether [a] testatrix had the capacity to make a will is whether she knew (1) her estate, (2) the objects of her affections, and (3) to whom she wished to give her property."); Gaddy v. Douglass, 359 S.C. 329, 345, 597 S.E.2d 12, 21 (Ct. App. 2004) (finding in order to invalidate a will, a testator's insanity should be established at the time of execution, unless the insanity is of a permanent or chronic nature); Hembree v. Estate of Hembree, 311 S.C. 192, 196, 428 S.E.2d 3, 5 (Ct. App. 1993) (noting the similarity of a contested will to a prior will "establishes that the testator recognized who his loved ones were and to whom he wished the majority of the estate to go"); In re Estate of Weeks, 329 S.C. at 265, 495 S.E.2d at 462 (finding contestants of a will presented absolutely no evidence of insanity or any sort of mental illness but rather showed testatrix was an 81-year-old woman experiencing a gradual but irreversible decline in her mental faculties due to aging). 

3.  As to whether the circuit court erred in finding if the will was invalid, the prior will would be in operation:  Futch v. McAllister Towing of Georgetown, Inc., 335 S.C. 598, 613, 518 S.E.2d 591, 598 (1999) (holding an appellate court need not review remaining issues when its determination of a prior issue is dispositive of the appeal).

AFFIRMED.

HEARN, C.J., and KONDUROS and LOCKEMY, JJ., concur.


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