In re Estate of Deas
| Decision Date | 04 February 2015 |
| Docket Number | 2015-UP-059 |
| Court | South Carolina Court of Appeals |
| Parties | In the Matter of the Estate of Willie Rogers Deas Carolyn Deas, Respondent, v. Marvadine Giles a/k/a Marvdine Giles, Willie Deas, Jr., Michelle Deas, Rodney Branton, Moya Branton, Whitney Beaufort, Of whom Marvadine Giles a/k/a Marvdine Giles is the Appellant. Appellate Case No. 2013-000550 |
UNPUBLISHED OPINION
Heard October 8, 2014
Appeal From Georgetown County Benjamin H. Culbertson, Circuit Court Judge
Charles S. Goldberg, of Charles S. Goldberg, LLC, of Charleston; James K. Holmes and Malcolm M. Crosland, Jr. both of the Steinberg Law Firm, LLP, of Charleston, for Appellants.
Gregory Lynn Hyland, Andrew T. Shepherd, and Katherine H Hyland, of Hart Hyland Shepherd, LLC, of Summerville, for Respondent.
Marvadine Giles (Appellant) appeals the circuit court's order granting Carolyn Deas's (Respondent) motion to dismiss. Appellant contends the circuit court improperly concluded her notice of appeal was not timely filed when she submitted satisfactory proof that her notice was delivered by the United States Postal Service to the clerk of court's Post Office Box prior to the filing deadline. We agree and reverse.
On August 28, 2012, the probate court issued an order finding Respondent was the surviving spouse of Willie Rogers Deas (Decedent) and had priority for appointment as the personal representative of his estate.[1] Appellant received written notice of the court's order on August 29, 2012, thereby making September 10, 2012, [2] the deadline for filing and serving her notice of appeal. As set forth in section 62-1-308 of the South Carolina Code (Supp. 2012), [3] Appellant mailed a letter via registered mail, return receipt requested, containing her notice of appeal to the clerk of the circuit court, the clerk of the probate court, and opposing counsel on September 6 2012. Appellant also filed a Rule 59(e), SCRCP, motion to reconsider with the probate court on September 7, 2012. The probate court received and filed Appellant's notice of appeal on September 7, 2012. Opposing counsel received Appellant's notice of appeal on September 10, 2012.
Appellant presented evidence that she sent her notice of appeal via registered mail, return receipt requested, to the address listed by the Georgetown County clerk of court's office in the South Carolina Bar Directory. However, the Postal Service initially misdelivered the notice to the clerk of court's office in Walterboro, South Carolina, on September 7, 2012. The Postal Service then forwarded Appellant's notice of appeal to the Post Office Box for the Georgetown clerk of court on September 10, 2012, the deadline to file Appellant's notice of appeal. However, the clerk of court's office did not stamp Appellant's notice of appeal as filed until September 14, 2012.
Respondent moved to dismiss Appellant's appeal, arguing Appellant failed to file her notice of appeal in a timely manner, which deprived the circuit court of appellate jurisdiction. At the hearing on Respondent's motion to dismiss, Appellant submitted proof that the Post Office in Georgetown received her notice of appeal the morning of September 10, 2012. The Georgetown clerk of court opined the notice of appeal may have been placed in Georgetown County's general Post Office Box instead of the clerk's Post Office Box and, therefore, was not picked up by the clerk's courier on the afternoon of September 10, 2012. The clerk of court also testified that, because the notice of appeal was not received in the clerk's office until September 11, 2012, it was not filed by the clerk's office until September 14, 2012, four days after the deadline. After the hearing, the circuit court issued an order dismissing Appellant's appeal based on her failure to timely file her notice of appeal. This appeal followed.
Appellant contends the circuit court erred in concluding the Postal Service's delivery of her notice of appeal to the Georgetown clerk of court's Post Office Box did not satisfy the requirements of section 62-1-308. In response Respondent argues the plain language of section 62-1-308 requires the notice of appeal to be filed in the clerk's office, not merely placed in the clerk's Post Office Box.[4]
Section 62-1-308 controls the appeal of a probate court order to the circuit court. The statute in effect[5] when Appellant filed her notice of appeal provides in pertinent part:
A person interested in a final order, sentence, or decree of a probate court and considering himself injured by it may appeal to the circuit court in the same county. The notice of intention to appeal to the circuit court must be filed in the office of the circuit court and in the office of the probate court and a copy served on all parties within ten days after receipt of written notice of the appealed from order, sentence, or decree of the probate court. The grounds of appeal must be filed in the office of the probate court and a copy served on all parties within forty-five days after receipt of written notice of the order, sentence, or decree of the probate court.
S.C. Code Ann. § 62-1-308(a) (Supp. 2012).
We disagree with the circuit court and hold Appellant sufficiently demonstrated that she timely filed her notice of appeal. On September 5, 2012, Appellant mailed her notice of appeal to the Georgetown clerk of court's office using the street address listed by the clerk of court in the South Carolina Bar Directory. Through no fault of Appellant's, the Postal Service initially misdelivered the notice of appeal to the clerk of court's office in Walterboro, South Carolina, on September 7, 2012. When the notice of appeal was eventually delivered to the Post Office in Georgetown on September, 10, 2012, the Georgetown clerk of court opined the Postal Service placed the notice of appeal in the general Post Office Box for Georgetown County, as opposed to the specific Post Office Box for the Georgetown clerk of court.
Further, because Appellant sent her notice of appeal by certified mail and requested a return receipt, she possessed proof that the notice of appeal arrived at the Post Office in Georgetown at 9:45 a.m. on September 10, 2012, the date the notice of appeal was due. Although the clerk of court testified the court's courier comes twice a day to pick up mail from the clerk's Post Office Box, the notice of appeal was not physically taken to the clerk's office until the following day, September 11, 2012. Whether the Postal Service mistakenly delivered it to the wrong Post Office Box or the clerk of court's courier did not timely retrieve the mail from the clerk of court's Post Office Box, Appellant established that no authorized recipient was available to sign for the mailing on the date it arrived.
We are aware that our courts have strictly interpreted section 62-1-308 regarding the timely filing of a notice of appeal. See In re Estate of Cretzmeyer, 365 S.C. 12, 14, 615 S.E.2d 116, 116-17 (2005) (); State v. Brown, 358 S.C. 382, 387, 596 S.E.2d 39, 41 (2004) (); First Carolina Nat'l Bank v. A & S Enters., Inc., 272 S.C. 339, 340, 251 S.E.2d 762, 762 (1979) ( appeal for lack of jurisdiction when appellants failed to give notice of their intention to appeal within the statutory ten-day period). We are also aware that mailing does not constitute filing in South Carolina. See Gary v. State, 347 S.C. 627, 629, 557 S.E.2d 662, 663 (2001) ("It is clear under South Carolina law that mailing does not constitute filing.").
However, we find these cases distinguishable because Appellant clearly and convincingly demonstrated that she promptly mailed and carefully ensured the timely delivery of her notice of appeal. Cf. In re Cretzmeyer, 365 S.C. at 13, 615 S.E.2d at 116 (); Brown, 358 S.C. at 387, 596 S.E.2d at 41 (); First Carolina Nat'l Bank, 272 S.C. at 340, 251 S.E.2d at 762 (); Gary, 347 S.C. at 629, 557 S.E.2d at 663 ( application for post-conviction relief was not timely filed when petitioner introduced no evidence to support his claim, instead stating he mistakenly sent his application to "the wrong place" and "by the time it came back, it was too late").
Although we recognize mailing does not constitute filing, we find that when a notice of appeal is undisputedly and timely...
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