This updates an earlier post on when South Carolina notices of appeal are filed. Notices of Appeals to the South Carolina Court of Appeals and Supreme Court are filed when the notice is dropped in the mail. Rule 262, SCACR. Appeals from a probate court to the circuit court are not. The Supreme Court recently drove this point home.
Years ago, I lost an appeal on whether a notice of appeal from a probate court to the circuit court was untimely when the notice was mailed out in plenty of time for the court to get it but the court had no record of receiving it. Because probate court appeals don’t have a mailbox rule like Rule 262, SCACR, I conceded that mailing, by itself, did not constitute filing.
I instead argued that the mailing created an evidentiary presumption of receipt. So, absent contrary evidence, the presumption is that the clerk got the notice on time even if the clerk had no record of receiving it. Cases from outside South Carolina have applied this presumption to court filings, including notices of appeal. See, e.g., Gingo v. State Medical Board, 564 N.E.2d 1096 (Ohio App. 1989); In Re Nimtz Transp., Inc., 505 F.2d 177 (7th Cir. 1974); Womack v. United States Fidelity & Guaranty Co., 69 S.E.2d 812 (Ga.App. 1952).
The South Carolina Supreme Court disagreed and held that the appeal was untimely because the notice was not actually “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.
Fast forward a decade. A friend recently faced a nearly identical situation in In re Estate of Deas, Op.No. 2015-UP-059 (S.C.App. Feb. 4, 2015), rev’d Op. No. 2015-MO-049 (S.C. Sup.Ct. Aug. 26, 2015). He mailed out a notice of appeal in time for the clerk to get it, properly addressed to the court’s street address. The Post Office misdelivered the notice but ultimately got it into the clerk’s post office box the last day it was due. The problem was that the clerk did not retrieve the mail until the next day and waited days after that to file stamp it received.
The Court of Appeals held that the appeal was timely because the notice was delivered 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 Post Office’s delay in getting the mail to the clerk’s post office box and the then the clerk’s delay in getting the mail from the post office box.
But the Supreme Court reversed and held that the appeal was untimely. Relying on In re Cretzmeyer, the Court held that the notice is not filed because it was not “delivered to and received by” the clerk on time. Making to the post office box is apparently not enough. In re Estate of Deas.
So please let me revise my tip from my earlier post. Unless you have a rule that defines mailing as filing, like Rule 262, SCACR, never rely on mailing a notice of appeal. Deliver it by hand and get a clocked copy showing that you did.
Any thoughts on this?