In Re the Guardianship & Conservatorship of Murphy
827 N.W.2d 369
S.D.2013Background
- Claudia Murphy obtained appointment as permanent guardian and conservator for Shirley Murphy after an August 2012 trial.
- Notice of entry of Claudia's appointment order was served by mail on September 5, 2012 to all four daughters: Dee, Shirley, Claudia, and Mary.
- Shirley served a notice of appeal on Claudia by mail on October 2, 2012, and filed the notice of appeal and certificate on October 3, 2012.
- Shirley later served the notice of appeal by mail on all parties on October 10, 2012.
- Claudia moved to dismiss Shirley’s appeal as untimely on November 16, 2012.
- The Supreme Court dismissed Shirley’s appeal for failure to timely serve the notice of appeal on all parties.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was the appeal timely served on all required parties? | Shirley argues service complied with requirements. | Claudia argues some parties were served late. | Untimely service on all required parties; dismissal. |
| Does SDCL 15-6-6(e) extend the deadline when service is by mail? | Extension applies, offsetting some delay. | Extension applies but cannot save lateness to all parties. | Thirty-three day period applied; but other parties remained untimely. |
| Is Mary a required party entitled to notice under SDCL 29A-5-308? | Mary’s status as daughter listed in petition is disputed. | Mary was listed and thus must be served. | Mary was a party; service to Mary required. |
| Can a jurisdictional defect be cured by waiver or consent? | Waiver should permit late service or cure jurisdiction. | Waiver cannot cure jurisdictional service defects. | Jurisdictional defect cannot be waived; dismissal proper. |
Key Cases Cited
- Rabo Agrifinance, Inc. v. Rock Creek Farms, 813 N.W.2d 122 (2012 S.D. 20) (failure to serve notice timely fatal to appeal)
- In re Reese Trust, 776 N.W.2d 832 (2009 S.D. 111) (timeliness considerations for notices of appeal)
- In re Estate of Flaws, 811 N.W.2d 749 (2012 S.D. 3) (statutory time computations and extensions)
- In re Estate of Geier, 809 N.W.2d 355 (2012 S.D. 2) (application of time rules in appeals)