In the Matter of the Estate of Willie Rogers Deas

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

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

Appeal From Georgetown County
Benjamin H. Culbertson, Circuit Court Judge

Opinion No. 2015-UP-059
Heard October 8, 2014 – Filed February 4, 2015

REVERSED

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.

PER CURIAM: 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.

FACTS/PROCEDURAL HISTORY
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

1
Appellant claimed she was Decedent's surviving spouse, as opposed to
Respondent, because she was separated, but not divorced, from Decedent at the
time of his subsequent marriage to Respondent. The probate court disagreed,
finding Appellant and Decedent were divorced and both Appellant and Decedent
were remarried at the time of his death.
2
Pursuant to section 62-1-308 of the South Carolina Code (Supp. 2012), the notice
of appeal must be filed within ten days after receipt of the written notice of the
appealed order. See infra n.3. Because the tenth day, September 8, 2012, was a
Saturday, Appellant was permitted to file her notice on Monday, September 10,
2012. See Rule 6(a), SCRCP ("The last day of the period so computed is to be
included, unless it is a Saturday, Sunday or a State or Federal holiday, in which
event the period runs until the end of the next day which is neither a Saturday,
Sunday nor such holiday.").
3
Section 62-1-308 states "[t]he 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
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.

LAW/ANALYSIS
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

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."
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 effect5 when Appellant filed her notice of appeal provides in
pertinent part:

4
As an additional sustaining ground, Respondent claims Appellant simultaneously
filed a Rule 59(e) motion as well as a notice of appeal; therefore, it was incumbent
upon Appellant to refile her notice of appeal once the probate court ruled upon her
Rule 59(e) motion. Because Appellant failed to do so, Respondent claims
dismissal of Appellant's appeal was warranted. We first note that this court has the
discretion whether to rule on an additional sustaining ground raised by the
prevailing party on appeal. See I'On, L.L.C. v. Town of Mt. Pleasant, 338 S.C.
406, 420, 526 S.E.2d 716, 723 (2000) ("It is within the appellate court's discretion
whether to address any additional sustaining grounds."); id. ("An appellate court
may not rely on Rule 220(c), SCACR, . . . when the court believes it would be
unwise or unjust to do so in a particular case."). Aware of our discretion, we
nevertheless decline to address this additional sustaining ground. See I'On, 338
S.C. at 420 n.9, 526 S.E.2d at 723 n.9 (stating an appellate court may or may not
wish to address additional sustaining grounds when it reverses a lower court's
decision (citing Smith v. Haynsworth, Marion, McKay & Geurard, 322 S.C. 433,
438, 472 S.E.2d 612, 615 (1996))).
5
The General Assembly amended section 62-1-308 in June 2013, and this
amendment went into effect on January 1, 2014. See 2013 S.C. Acts 100 § 1. The
current version of section 62-1-308(a) of the South Carolina Code (Supp. 2014)
reads as follows:

A person interested in a final order, sentence, or decree
of a probate court may appeal to the circuit court in the
same county, subject to the provisions of [s]ection 62-1-
303. 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 not in default within ten days after receipt of
written notice of the appealed from order, sentence, or
decree of the probate court.
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) (dismissing an appeal from the probate court to
the circuit court and holding "[o]ur settled rules of statutory construction mandate
[dismissal], for the statute is clear that the notice of appeal must be filed in the
circuit court within the ten-day period" (internal quotation marks omitted)); State v.
Brown, 358 S.C. 382, 387, 596 S.E.2d 39, 41 (2004) (noting that failure to comply
with the procedural requirements for an appeal divests the court of appellate
jurisdiction); First Carolina Nat'l Bank v. A & S Enters., Inc., 272 S.C. 339, 340,
251 S.E.2d 762, 762 (1979) (dismissing 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 (finding no record existed that a notice of appeal had been filed in
the circuit court outside of an affidavit of the appellant's attorney's secretary);
Brown, 358 S.C. at 387, 596 S.E.2d at 41 (finding the court of appeals erred in
considering affidavits, which were not included in the record on appeal, to
determine the appellant timely filed his notice of appeal); First Carolina Nat'l
Bank, 272 S.C. at 340, 251 S.E.2d at 762 (finding dismissal warranted when there
was clear proof that appellants missed the deadline to serve the notice of appeal);
Gary, 347 S.C. at 629, 557 S.E.2d at 663 (finding 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 delivered to and received in the Post
Office Box specifically designated by the clerk of court's office for receipt of time-
sensitive mail, an aggrieved party's appeal should not be dismissed for failure to
timely file the notice of appeal. Allowing Appellant's claim to be dismissed under
these circumstances elevates form over substance, and we decline to construe the
filing requirement of section 62-1-308 in such a manner. See Liberty Mutual Ins.
Co. v. S.C. Second Injury Fund, 318 S.C. 516, 518, 458 S.E.2d 550, 551 (1995)
("The real purpose of the [General Assembly] will prevail over the literal import of
the words."); see generally S.C. Second Injury Fund v. Am. Yard Prods., 330 S.C.
20, 23-24, 496 S.E.2d 862, 863-64 (1998) (finding denial of reimbursement to
employer in workers' compensation claim inappropriate when the Fund and
Commission had actual, timely notice of employer's claim and the Fund failed to
prove it was prejudiced by employer's failure to satisfy the precise requirements of
the statute regarding notice). Accordingly, under the specific facts of this case, we
find the circuit court erred in dismissing Appellant's appeal.

CONCLUSION
For the foregoing reasons, the decision of the circuit court is

REVERSED.

WILLIAMS, GEATHERS, and McDONALD, JJ., concur.