__________________________
APPEAL FROM AIKEN COUNTY
Probate Court
Donald B. Hocker, Special Probate Judge for Aiken County
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Case No. 2002ES02-00489
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Creighton W. Sloan ………………………………......... Respondent
VS.
Samuel H. Sloan ……………………………................. Appellant
PETITION FOR REHEARING FROM ORDER DISMISSING APPEAL
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Samuel H. Sloan, being duly sworn, deposes and says:
1. I hereby move for a rehearing of the orders dated April 6 and April 8, 2004 by Hon. James C. Williams dismissing this appeal. The basis for my motion is that unbeknownst to me documents had been placed in this file of this case which were not properly before this court and which should not have been considered by the court. In particular, there was an affidavit 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. Judge Hocker is not a judge of the Aiken County Probate Court. He sits in Laurens County. He never came to Aiken during the course of this case. Therefore, it is difficult to understand what an affidavit from his secretary is doing in the court file. This affidavit was so important that my adversary read it in full during the hearing on April 6. I did not know what she was reading. Had I been quicker on my feet, I would have realized that she was reading from a document which I had never seen, which had never been served upon me and which was not properly part of the record of this case.
2. This affidavit contained hearsay which is barred by the rules of evidence. In essence, the affidavit implied that the secretary, Sherri T. Osborne, had spoken to me on the telephone about a week after Judge Hocker had rendered his decision and that I said that I had received the decision and order of the court. This affidavit was used at the basis for the finding that I had filed my notice of appeal more than ten days after this conversation, and therefore my appeal should be dismissed.
3. Judge Hocker had no right to interfere in this appeal. First he wrote a letter to the appellate court dated January 8, 2004 stating that my appeal should be dismissed and therefore he was not transmitting the return. This was improper. I had filed my notice of appeal and it had been accepted by the appellate court. At that point, Judge Hocker's role in this case should have ended. It is specifically unethical for a lower court judge to try to influence the outcome of an appeal. Indeed, for this reason, Judge Hocker should be removed from this case and the case sent back to the probate court for a new hearing before a different judge.
4. The Code of Judicial Conduct clearly states that a lower court judge is not to interfere with an appeal. Here, Judge Hocker has done four unethical things to try to prevent me from appealing.
i. After I filed my notice of appeal, Judge Hocker wrote a letter stating that he was not transmitting the record to the appellate court because I had only ten days to file my notice of appeal and had not filed it on time and I had also not filed my grounds for appeal.
ii. After Judge Keesley of the Appellate Court ordered Judge Hocker to transmit the record anyway, he still did not transmit the entire record. Instead, he wrote a letter stating that he would transmit the tapes of the proceedings "upon request". Judge William Keesley had already requested more than just the tapes. He had also ordered a transcript of the proceedings of the court below.
iii. Judge Hocker had his secretary, Sherri T. Osborne, write and file an affidavit dated March 23, 2004 which has been put in the record which states that she had a telephone conversation with me sometime between November 5, 2003 and November 10, 2003 concerning a cost sheet I had received from her. This affidavit purports to establish the time by which I had received Judge Hocker's decision. This affidavit was double hearsay and does not belong in the file of this case. Again, Judge Hocker was interfering with the appellate process which he is ethically barred from doing.
In addition, the above affidavit was demonstrably false. It said that I had received the decision of the court between November 5 and November 10, 2003. However, it must be remembered that Judge Hocker was sitting in Laurens County, but as a judge of the Aiken County Probate Court. He made his decision on November 3, 2003. 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. In fact, as far as I can recall, the Aiken County Probate Court never sent me the decision at all. Judge Hocker was very insistent that this case was pending in Aiken, that all court filings must take place in Aiken and that nothing was to be sent to him directly in Laurens. Yet, he claims to know when I received his decision and when the court received my grounds for appeal.
iv. In his return dated February 17, 2004, Judge Hocker states "The appealed order provides a summary of the testimony". This statement is patently false as can be readily seen. There were 65 exhibits entered into evidence. The appealed order makes no mention of any of these exhibits nor does it mention the testimony which took place lasting two full days in Judge Hocker's Court. Many of these 65 exhibits were concerned with the five lawsuits pending between Helen Marjorie Sloan (my mother) and Creighton Wesley Sloan (my brother) in the Lynchburg Virginia Circuit Court. My contention is that Creighton is barred from being the personal representative of his mother because there are still to this day lawsuits pending between them. The fox cannot be allowed to guard the henhouse. Judge Hocker made no mention of this pending litigation and provided no reason why he feels that these matters should be ignored. In addition, the decision by Judge Hocker made no mention of the flagrant falsifications and disobedience of court orders in the guardianship proceedings by my brother, such as the fact that my brother removed money amounting to about one million dollars from my mother's bank accounts by consistently claiming that he was the conservator appointed by the court, whereas the actual conservator was the Bank of America.
5. I am including the following exhibits to establish the above points:
Exhibit A - Letter from Judge Hocker dated January 8, 2004 stating that he is not transmitting the return of this appeal because my appeal was untimely.
Exhibit B - Affidavit from Sherri T. Osborne dated March 23, 2004 and filed March 31, 2004 stating that she spoke to me on the telephone between November 5 and November 10, 2003 and therefore I knew about Judge Hocker's decision.
Exhibit C - Order from Judge Hocker dated February 17, 2004 stating, "The tapes are available upon request. The appealed order provides a summary of the testimony."
6. The important point here is that I filed my notice of appeal with the Aiken County Probate Court and the Aiken County Court of Common Pleas. Both courts accepted my filing. It is the job of the clerk of the court to decide whether my appeal was timely filed or not. Both clerks decided that my appeal was timely. On the same day as the final hearing before Judge Hocker, I drove from Laurens to Aiken and discussed with the clerks of both courts the procedure for filing my appeal. I asked them what the filing fee was. After consulting with other clerks in the office they came back and said that they did not know what the filing fee was or if there was any fee at all, but I should file my notice of appeal and if a fee was required they would write to inform me. I did exactly as they told me to do. When I sent in my notice of appeal, they wrote back to inform me that a fee of $100 was required. I promptly wrote and paid the $100. Now, this court is using this time delay as the basis to dismiss my appeal even though the clerk of the court accepted my appeal.
7. Opposing counsel did not file her motion to dismiss my appeal until January 22, 2003, which was 14 days after Judge Hocker wrote his letter of January 8, 2004 stating that my appeal should be dismissed. It is fairly obvious that opposing counsel would probably not have filed her motion to dismiss were it not for Judge Hocker's letter. Then, after Judge William P. Keesley initially denied the motion to dismiss on February 4, 2004, Judge Hocker had his secretary file an affidavit dated March 23, 2004 and filed on March 31, 2004 recounting a telephone conversation she said that she had with me between November 5 and November 10, 2003. All this was clearly improper.
8. The affidavit of Sherry T, Osborne filed March 31, 2004 was read in full to the court at the hearing on April 6, 2004. In view of the date of only one week later, it is obvious that I had never seen this affidavit and had no notice of it. As this affidavit was not properly before the court and because this court based its decision to dismiss my appeal on this affidavit whereas the previous judge at the hearing on February 5, 2004 had denied the same motion, therefore, this court should grant a rehearing and upon rehearing the decision should be reversed.
WHEREFORE, for all of the reasons set forth above, this petition for a rehearing should be granted and, upon rehearing, the motion to dismiss this appeal should be denied.
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Samuel H. Sloan
Sworn to before me this 5th
Day of May, 2004
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NOTARY PUBLIC
Respectfully Submitted,
Samuel H. Sloan
920 Belmont Avenue
Brooklyn NY 11208
(718) 277-6957
1-347-351-9352
samsloan@samsloan.com
May 5, 2004
Copy to:
Catherine H. Kennedy
Attorney for Creighton Sloan
Nelson, Mullins, Riley & Scarborough, LLP
1330 Lady Street
PO Box 11070
Columbia, South Carolina 29201
Creighton W. Sloan
102 Indian Creek Trail
Aiken, South Carolina 29803
Patricia L. Harrison
611 Holly Street
Columbia, South Carolina 29205
Affidavit of Service
Samuel H. Sloan, being duly sworn, deposes and says that on May 5, 2004 he mailed the within petition for rehearing from order dismissing appeal to the following addresses:
Catherine H. Kennedy
Attorney for Creighton Sloan
Nelson, Mullins, Riley & Scarborough, LLP
1330 Lady Street
PO Box 11070
Columbia, South Carolina 29201
Creighton W. Sloan
102 Indian Creek Trail
Aiken, South Carolina 29803
Patricia L. Harrison
611 Holly Street
Columbia, South Carolina 29205
__________________________
Samuel H. Sloan
Sworn to before me this 5th
Day of May 2004
______________________________
NOTARY PUBLIC
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