When is a South Carolina appeal filed? Is it when the notice of appeal is sent, received, or something in between? For appeals to the South Carolina Court of Appeals and Supreme Court, the notice of appeal is filed when it is dropped in the mail. Rule 262, SCACR. But other appeals are handled differently. I once learned this the hard way.
A decade ago now, a friend asked me to help with an appeal from a probate-court order from Georgetown County. The day after his office received the order, and nine days before the notice of appeal was due, his secretary mailed a notice of appeal to the probate court of Georgetown County, the circuit court of Georgetown County, and to opposing counsel. Everyone got their copies within a day or two—except the circuit court.
At the time, the Georgetown County circuit court and the Georgetown County probate court shared the same post office box. The circuit court had no record of getting its copy even though the probate court got the copy that was separately mailed to it at the same time to the same post office box that the two courts shared.
The Supreme Court held that the appeal was untimely because the notice was not “delivered to and received by” the circuit court within 10 days. In re Cretzmeyer, 365 S.C. 12, 615 S.E.2d 116 (2005). When the term “filing” is undefined, this is the Court’s default rule. Id.
Lightning struck twice. Another friend faced a nearly identical situation in In re Estate of Deas, Op.No. 2015-UP-059 (S.C.App. Feb. 4, 2015).
He mailed out a notice of appeal from a Georgetown probate-court order four days before the notice was due. The one to the circuit court was properly addressed to the court’s street address. The probate court and opposing counsel got their copies on time. The circuit court did not because the post office initially delivered it to another clerk of court in another county.
Even so, the post office caught its mistake and delivered the notice addressed to the Georgetown circuit court’s street address to that court’s post office box. The notice made it into the post office box the last day it was due.
The problem was that the circuit court did not retrieve the notice from the post office box until the next day. The clerk then waited yet another day before stamping it filed. So the file stamp indicated that the notice was two days late. The circuit court, relying on the file stamp, dismissed the appeal as untimely.
Thankfully, the Court of Appeals reversed. It held that the notice of appeal was timely filed and properly delivered to the circuit court when it made it into the post office box that the clerk of court specifically designated for time-sensitive mail. The Court refused to fault my friend for the 2-day delay in retrieving the mail and getting it filed stamped.
The distinction between Deas and Cretzmeyer is that my friend sent his notice out by registered mail, return receipt requested. So he was able to prove exactly what happened to the mailing and when. This gave the Court comfort that the notice was in fact in the circuit court’s post office box on time.
Update – the Supreme Court reviewed Deas and reversed without further briefing. The Court reaffirmed Cretzmeyer and held that getting the notice into the correct post office box is not enough. It actually be received by the proper officer—period. In re Estate of Deas, 2015-MO-049 (S.C. Sup.Ct. Aug. 26, 2015).
Lesson: check and double check whether the term “filing” is defined in the statutes or rules governing your particular appeal. If is not, get the notice hand delivered and a clocked copy showing that it was delivered on time.
Has anyone else been caught by the mailbox rule?