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OUTH CAROLINA COURT OF APPEALS
HELEN AND CREIGHTON W. SLOAN)
)
)
Plaintiff,)
)
)Motion for
Reinstatement of Appeal
vs.)
)
)
2003-CP-02-01681
SAMUEL H. SLOAN)
)
Defendant)
____________________________________)
Samuel H. Sloan hereby petitions this court for reinstatement of this
appeal which has apparently been dismissed by the clerk. The grounds
for this motion in summary are as follows:
1. Petitioner could not have perfected this appeal any sooner because
of the persistent failure and refusal of the court reporter to prepare
a transcript of the hearing of February 4, 2004 in this case. This is
the most perplexing and difficult to understand aspect of this case.
Over a period of six months the appellant repeatedly contacted the
court reporter in every way he could in view of the fact that the
court reporter refused to provide a telephone contact number or an
address other than a PO Box. Starting in May 2004, over and over again
petitioner wrote letters and made telephone calls trying to obtain
this transcript. The court reporter just refused to do it. It was not
until after this appeal had been dismissed by the clerk that the court
reported finally produced the transcript, which was only seven pages
long.
2. The decision of the court below is clearly wrong. My notice of
appeal was not late. More than that, Judge Keesley ruled on February
4, 2004 that the motion to dismiss the appeal would not be heard until
the full record was on file with the circuit court. This is the reason
why the transcript of February 4, 2004 is so important, because the
judge made this ruling at that hearing. The probate judge did not
comply with Judge Keesley's order. He did not send the full record to
the Court of Common Pleas. Specifically, he withheld the tapes of the
hearing which lasted three days and he would not permit a typed
transcript to be made of the hearings before him.
3. The reason that Judge Williams made a different decision on April 6
from the decision on February 4 is simply explained. The record before
them was different. In between those two dates, Judge Hocker, the
Probate Court Judge, had his secretary write an affidavit letter to
the appellate court stating that my appeal was late. In particular,
this affidavit appeared in the court file signed by a secretary to
Judge Donald B. Hocker dated March 23, 2004, which formed the basis
for Judge Hocker's claim that my appeal should be dismissed. There is
no affidavit of service attached to this affidavit. Obviously, I never
received it. I still do not have a copy and therefore cannot attach it
here. It should not have been put in the file and Judge Williams
should not have relied on it.
4. Now, let us compare the transcript of the hearing on February 4,
2004 with the transcript of the hearing on April 6, 2004 to see the
difference: On February 4, 2004, the following was stated:
MR. SLOAN: I SEE. ONE THING: THIS CASE WAS HEARD BY JUDGE PEEPLES IN
1991. AND HE HAD -- HE TOLD -- HE SAID IN COURT THAT HE HAD LISTENED
TO THE TAPES OF THE HEARING BELOW AND IT WAS SEVERAL HOURS OF TAPES
AND HE HAD LISTENED TO ALL THOSE TAPES. NOW SINCE THEN I'VE BEEN
TRYING TO GET THOSE TAPES, AND OF COURSE WE CAN'T FIND THEM. MAYBE
THEY'VE BEEN ERASED; MAYBE THEY'VE BEEN WRITTEN OVER. I WAS THINKING
MAYBE JUDGE PEEPLES OR HIS CLERK STILL MIGHT HAVE THEM. I DON'T KNOW.
I DON'T EVEN KNOW IF JUDGE PEEPLES IS STILL AROUND. I HAVE NO IDEA,
BUT I'M NOT FROM HERE, BUT THERE WERE EXTENSIVE TAPES MADE BACK IN
1991, AND I THINK THEY WOULD BE VERY USEFUL TO UNDERSTAND THE
BACKGROUND OF HOW THIS CASE CAME BEFORE THE COURT.
THE COURT: WELL, IF JUDGE PEEPLES SAT AND LISTENED TO TAPES, HE'S
UNUSUAL BECAUSE I DON'T THINK MOST OF THE CIRCUIT JUDGES TODAY ARE
GONNA SIT AROUND AND LISTEN TO HOURS OF TAPES. YOU HAVE TO CONTACT -
JUDGE PEEPLES IS STILL WORKING. HE IS RETIRING. AND IF YOU WANT TO
CONTACT HIS OFFICE IT'S IN THE DIRECTORY. IF YOU GO ON THAT SAME
INTERNET SITE IT'LL HAVE HIS ADDRESS ON IT.
5. Following this, Judge Keesley stated:
THE COURT: YOU UNDERSTAND NOW THAT THIS APPEAL IS GONNA BE PRETTY MUCH
LIMITED TO THE RECORD THAT'S MADE IN THE PROBATE COURT ON THIS MATTER.
MR. SLOAN: OH, I UNDERSTAND THAT, AND I'M READY FOR THAT, AND I THINK
THE RECORD IS VERY MUCH IN MY FAVOR. I THINK ITS WONDERFUL. THAT' S
EXACTLY WHAT I WANT.
THE COURT: ALRIGHT. THANK YOU, SIR. AND YOU'VE GOT THIS MOTION WHICH
SOME JUDGE IS GOING TO HAVE TO HEAR ABOUT YOUR APPEAL BEING TOO LATE.
BUT I'M NOT GONNA GET INTO THAT WITH YOU.
6. From the above colloquy, it is obvious that the intention of Judge
Keesley was that first the record including the typed transcript would
be filed and after that the court would rule on the motion to dismiss.
Judge Keesley stated that the court would not rule on the motion to
dismiss until it had the full record before it.
7. Following this, Judge Hocker failed and refused to provide the full
record to the appellate court. Instead, he had his secretary type an
affidavit dated March 23, 2004, nearly two months after the February 4
hearing.
8. This affidavit spoke about a conversation the secretary had had
with me shortly after the date of Judge Hocker's decision. However,
the secretary could not remember the date of the conversation, only
that she spoke to me on the telephone between November 5 and November
10, 2003 and therefore I knew about Judge Hocker's decision.
9. However, it was impossible for me to have known about Judge Hockers
decision by November 5, 2003, because he made that decision on
November 3, 2005. That decision would have had to have been mailed
from Laurens, South Carolina to Aiken, South Carolina to be entered
and then the clerk of that court would have had to have mailed that
decision to me in Brooklyn, New York. According to mapquest.com the
distance from Laurens to Aiken is 81.6 miles and the driving time is 1
hour 52 minutes. Therefore, the decision would have had to have been
mailed. Therefore, it was impossible for me to have received the
decision in Brooklyn, New York by November 5, 2003.
10. More than that, the affidavit by Judge Hocker's secretary does not
actually state that I acknowledged receipt of Judge Hocker's decision.
Rather, it said that I was inquiring about ordering a transcript of
the hearing. That conversation could have taken place at any time. I
have been trying to order a transcript from the beginning and Judge
Hocker has not allowed me to order one.
11. Here is part of the colloquy before Judge Williams on April 6,
2004. Note the date. The affidavit of Judge Hocker's secretary had
been filed on March 31, 2004, only 6 days earlier and four months
after the events it describes:
THE COURT: You called the Clerk of Court before November 10th and
asked her questions about what the Clerk had mailed you.
Do you recall that?
MR. SLOAN; Yes. I don't remember any dates. I know what I've called
many times the Clerk of this Court, Barbara Riggs. I've called the
Clerk of the Laurens Court. I've also -- this case went through three
other judges before it got here. I mean three other Probate Judges: It
went to -- it went to -- Columbia -- then it went to -- I can't
remember the name of the other county, and then it went to --
12. Please note above that Judge Williams refers to "t
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