#26498-dismissed-JKK

2013 S.D. 14

                           IN THE SUPREME COURT

                                     OF THE

                           STATE OF SOUTH DAKOTA

                                     * * * *

                         IN THE MATTER OF THE
                GUARDIANSHIP AND CONSERVATORSHIP OF
                SHIRLEY M. MURPHY, A PROTECTED PERSON

                                     * * * *

                     APPEAL FROM THE CIRCUIT COURT
                    OF THE SEVENTH JUDICIAL CIRCUIT
                   PENNINGTON COUNTY, SOUTH DAKOTA

                                     * * * *

                   THE HONORABLE THOMAS L. TRIMBLE
                               Judge

                                     * * * *


JOHN M. FITZGERALD
KELLY PETERSON
of Fitzgerald Law Firm
Rapid City, South Dakota                           Attorneys for appellant
                                                   Shirley Ferguson.

PATRICK M. GINSBACH
of Farrell, Farrell & Ginsbach, PC
Hot Springs, South Dakota                          Attorneys for appellee
                                                   Claudia Murphy

                                     * * * *
                                                   CONSIDERED ON MOTION
                                                   ON DECEMBER 26, 2012

                                                   OPINION FILED 02/06/13
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KONENKAMP, Justice

[¶1.]         Claudia Murphy moves to dismiss Shirley Ferguson's appeal in this

guardianship and conservatorship case. Because the appeal is untimely, we grant

the motion.

                          Facts and Procedural History

[¶2.]         Shirley Murphy (Mrs. Murphy) is a ninety-year-old resident of Rapid

City. According to the trial court’s findings, Mrs. Murphy has four adult daughters:

Delilah (Dee), Shirley, Claudia, and Mary. In recent years, Mrs. Murphy has

suffered physical and mental ailments related to her advancing age that have

rendered her unable to care for herself or to manage her personal and business

affairs. Accordingly, in May 2012, Mrs. Murphy’s daughter, Claudia, obtained an

appointment as Mrs. Murphy’s temporary guardian and conservator and petitioned

to serve as permanent guardian and conservator. Another of Mrs. Murphy’s

daughters, Shirley, petitioned to discharge Claudia as temporary guardian and

conservator and for her own appointment as permanent guardian and conservator.

A court trial was held in August 2012, and the circuit court subsequently entered

findings of fact, conclusions of law, and an order appointing Claudia permanent

guardian and conservator.

[¶3.]         Notice of entry of the order appointing Claudia was served by mail on

September 5, 2012. The notice was served on all four of Mrs. Murphy’s daughters:

Dee, Shirley, Claudia, and Mary. Shirley served a notice of appeal of the order of

appointment on Claudia by mail on October 2, 2012. The notice of appeal and

certificate of service were filed on October 3, 2012.

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[¶4.]         On October 10, 2012, Shirley served the notice of appeal by mail on all

the parties to the action including: Mrs. Murphy, Dee, Shirley, Claudia, and Mary.

On November 16, 2012, Claudia moved to dismiss Shirley’s appeal as untimely.

                               Analysis and Decision

[¶5.]         “‘Failure to serve a notice of appeal on a party before the time for

taking an appeal has expired is fatal to the appeal and requires its dismissal.’”

Rabo Agrifinance, Inc. v. Rock Creek Farms, 2012 S.D. 20, ¶ 7, 813 N.W.2d 122, 125

(quoting In re Reese Trust, 2009 S.D. 111, ¶¶ 5, 14, 776 N.W.2d 832, 833, 836). 1 The

thirty-day time period for taking an appeal in this matter commenced with service

of the notice of entry of the order appointing Claudia guardian and conservator on

September 5, 2012. See SDCL 15-26A-6. The thirty days expired on October 5,

2012. But SDCL 15-6-6(e) adds three days to the thirty-day period because notice of

entry of the order of Claudia’s appointment was served by mail. 2 With that

addition, the time for taking an appeal expired on October 8, 2012. Because




1.      Accord In re Estate of Flaws, 2012 S.D. 3, ¶ 10, 811 N.W.2d 749, 751; In re
        Estate of Geier, 2012 S.D. 2, ¶ 17, 809 N.W.2d 355, 360; In re B.C., 2010 S.D.
        59, ¶ 3, 786 N.W.2d 350, 351; Long v. Knight Const. Co., Inc., 262 N.W.2d
        207, 208-09 (S.D. 1978); Morrell Livestock Co. v. Stockman's Comm’n. Co., 77
        S.D. 114, 118-20, 86 N.W.2d 533, 535-36 (1957).
2.      The general provisions on time in SDCL chapter 15-6 apply to SDCL chapter
        15-26A by virtue of SDCL 15-24-1 making the rules of practice and procedure
        in the circuit courts applicable in this Court unless “otherwise indicated by
        statute or rule[.]” See Ripple v. Wold, 1997 S.D. 135, ¶ 10, 572 N.W.2d 439,
        441-42 (applying circuit court procedural rules on substitution of parties to
        the substitution of appellate parties in the absence of a separate appellate
        rule on the topic).
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October 8 was a legal holiday, however, the parties had until October 9, 2012, to

take an appeal. 3 See SDCL 15-6-6(a).

[¶6.]         Based on these calculations, Shirley had until October 9, 2012, to serve

all the parties with her notice of appeal. SDCL 29A-5-308 defines the parties

entitled to notice in a guardianship and conservatorship proceeding as, “the person

alleged to need protection,” and, “all . . . individuals age ten or older whose names

and post office addresses appear in the petition.” In this case, this consisted of:

Mrs. Murphy, Dee, Shirley, Claudia, and Mary. Shirley was the appellant and,

therefore, was not required to serve herself. Shirley did timely serve Claudia on

October 2. Moreover, Claudia was acting as Mrs. Murphy’s temporary guardian

and conservator at the time and was presumably entitled to accept service for Mrs.

Murphy. But Dee and Mary were not served with the notice of appeal until October

10, 2012, one day late. Thus, on the face of this record and based on the authorities

cited above, Shirley failed to timely serve her notice of appeal on all the parties to

the action and her appeal must be dismissed.

[¶7.]         Shirley offers several arguments against this result. First, she seeks

to expand the three days added to the time for serving her notice of appeal by SDCL

15-6-6(e). 4 As noted, that rule adds three days to take an action when the

triggering notice is served by mail. Shirley argues that three days are less than

eleven days and, therefore, intermediate weekends and holidays should be excluded


3.      Native American Day. See SDCL 1-5-1 (listing South Dakota’s legal
        holidays).

4.      Under Shirley’s calculations, the expansion of the three-day period would
        make her service of the notice of appeal on all parties on October 10, 2012,
        timely.
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from the three day computation under SDCL 15-6-6(a): “When the period of time

prescribed or allowed is less than eleven days, intermediate Saturdays, Sundays,

and legal holidays shall be excluded in the computation.” However, the period of

time “prescribed or allowed” that is at issue here is the period for serving a notice of

appeal. Under SDCL 15-26A-6, that period is thirty days plus three days because

the triggering notice of entry was served by mail. SDCL 15-6-6(e). Since this

thirty-three day period is greater than eleven days, the provision in SDCL 15-6-6(a)

excluding intermediate weekends and holidays from the computation is

inapplicable.

[¶8.]           Second, Shirley argues that Mary was not a party in this case required

to be served with the notice of appeal. Yet SDCL 29A-5-308 requires that notice in

a guardianship and conservatorship case be served on, “all . . . individuals age ten

or older whose names and post office addresses appear in the petition.” Mary’s

name and post office address appeared in the petition and, therefore, she should

have been served as a party with the notice of appeal. Shirley argues that Mary’s

name and address were improperly listed in the petition, but this does not appear to

be a factor under the plain language of SDCL 29A-5-308. Even if it was, SDCL 29A-

5-305(2)(a) provides that the petition should list the “children” of “the person

alleged to need protection.” The trial court here found as a fact that Mary was one

of Mrs. Murphy’s “four adult daughters,” and at least three of its subsequent

findings refer to Mary as Mrs. Murphy’s “daughter.” Although Shirley contends

these findings are clearly erroneous, they are binding until held clearly erroneous

by this Court. See Finck v. Nw. Sch. Dist. No. 52-3, 417 N.W.2d 875, 878 (S.D.


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1988); Matter of B.A.M., 290 N.W.2d 498, 502 (S.D. 1980). Because Mary’s name

appeared in the petition and the trial court found Mary’s status to be Mrs. Murphy’s

daughter, Shirley was required to treat Mary as a party in this action entitled to

service of the notice of appeal.

[¶9.]         Third, Shirley argues Dee received actual notice of the appeal on

October 2, 2012, “by way of a phone call” and that by affidavit she waived her right

to receive the notice of appeal by mail before October 9, 2012. This Court, however,

has held that timely service of the notice of appeal is a jurisdictional prerequisite to

an appeal. See Rabo, 2012 S.D. 20, ¶ 11, 813 N.W.2d at 127. Courts following this

view do not generally permit a waiver of the filing or service requirements for the

notice of appeal. 5 Our Court has long adopted this view. See Opening of Gold Street

v. Newton, 3 N.W. 311 (Dakota 1879) (holding counsel for the respondent’s waiver of

the notice of appeal insufficient to prevent dismissal of the appeal because consent

cannot confer jurisdiction). See also Pennington Cnty. v. State ex rel. Unified

Judicial Sys., 2002 S.D. 31, ¶ 17, 641 N.W.2d 127, 133 (“Jurisdiction cannot be




5.      See Luker v. Carrell, 25 So.3d 1148, 1150 (Ala. Civ. App. 2006) (“[A] lack of
        appellate jurisdiction resulting from a party’s failure to timely file a notice of
        appeal ‘cannot be waived’; indeed, ‘this court can raise the issue ex mero
        motu.’” (quoting Carter v. Hilliard, 838 So.2d 1062, 1063 (Ala. Civ. App.
        2002))), rev’d on other grounds, 25 So.3d 1152 (Ala. 2007); Bacon v. Karlin,
        727 P.2d 1127, 1129 (Haw. 1986) (“[A]n appellant’s failure to file a timely
        notice of appeal ‘is a jurisdictional defect that can neither be waived by the
        parties nor disregarded by the court in the exercise of judicial discretion.’”
        (quoting Naki v. Hawaiian Electric Co., 431 P.2d 943, 944 (Haw. 1967)));
        State ex rel. Cooper v. NCCS Loans, Inc., 624 S.E.2d 371, 379 (N.C. Ct. App.
        2005) (“‘Without proper notice of appeal, the appellate court acquires no
        jurisdiction and neither the court nor the parties may waive the jurisdictional
        requirements even for good cause shown . . ..’” (quoting Sillery v. Sillery, 606
        S.E.2d 749, 751 (N.C. Ct. App. 2005))).
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conferred by consent, agreement, stipulation or waiver.” (citing Weston v. Jones,

1999 S.D. 160, ¶ 33, 603 N.W.2d 706, 713 (Sabers, J., dissenting))).

[¶10.]       Finally, Shirley argues that because Claudia received timely service of

the notice of appeal, she cannot assert the rights of the other parties to such notice

and is not the proper party to a motion to dismiss. We take “notice of jurisdictional

questions regardless of whether the parties present them.” In re B.H., Jr., 2011

S.D. 26, ¶ 4, 799 N.W.2d 408, 409. Appellate jurisdiction cannot be presumed, “‘but

must affirmatively appear from the record.’” Id. (quoting Johnson v. Lebert Const.,

Inc., 2007 S.D. 74, ¶ 4, 736 N.W.2d 878, 879). See also Double Diamond Const. v.

Farmers Co-op Elevator Ass’n of Beresford, 2003 S.D. 9, ¶ 6, 656 N.W.2d 744, 746.

“‘[T]his Court is required sua sponte to take note of jurisdictional deficiencies.’”

State v. Brassfield, 2000 S.D. 110, ¶ 5, 615 N.W.2d 628, 629 (quoting State v.

Phipps, 406 N.W.2d 146, 148 (S.D. 1987)). Thus, there is no standing requirement

prohibiting Claudia from challenging jurisdiction over this appeal by a motion to

dismiss.

[¶11.]       For the foregoing reasons, Shirley’s appeal is dismissed for failure to

timely serve her notice of appeal on each party to the action.

[¶12.]       Dismissed.

[¶13.]       GILBERTSON, Chief Justice, and ZINTER, SEVERSON, and

WILBUR, Justices, concur.




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