#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 29A5-305(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.