Creighton Case - Transcript of Hearing of April 6, 2004


Plaintiff, ) Motion to Dismiss Appeal
) 03-CP-02-1681
-vs- )
Defendant ) ORIGINAL

April 6, 2004

Held Before the Honorable
James Williams

For the Plaintiff: For the Defendant:
Catherine Kennedy, Esquire Pro Se

Court Reporter:
Hilda M. Jordan, CVR

THE COURT: All right, I think what we're hearing in this case is a Motion to Dismiss the Appeal on the grounds that it was untimely filed; is that not right?

MS. KENNEDY: Yes, sir. That's correct.

I'm Catherine Kennedy representing Creighton Sloan.

THE COURT: Yes, ma'am.

Mr. Sloan., I've looked at the file, and it appears to me that she's right:

MR. SLOAN: Your Honor, first I want to address a point. We had a hearing last -- on February 4, in which Judge William Keesley said -- nearly as close as I heard him, Judge Keesley said he's not prepared to decide that motion until the transcript or the record of the proceeding below him have been filed. I received a letter in the mail indicating that the transcript had been filed. I came up here to Court yesterday -- I came from New York, and I was surprised to look and there's no transcript in the record, there's no tape recordings in the record. There is no -- usually -- I understand when there is no transcript or tape recordings that the lower court makes of the parties. There were about sixty-five exhibits, I think, made by the Defendant in there, but the Judge below him didn't like what these exhibits are all about. He didn't -- described the positions of the parties. He didn't really tell me anything about what this case is really all about.

THE COURT: All right.

MR. SLOAN: Judge Keesley said --

THE COURT: All right, sir. I appreciate all that. I don't see where that has anything to do with the issue before me, which is that you didn't file your appeal under the time limits required by the statute.

MR. SLOAN: Well, I disagree, Your Honor, because I came down here right after a year before we were -- I came down here in April, but the hearing was in March, and I asked the time to appeal, I spoke with Barbara Riggs, and she told me the time to appeal the case was thirty days.

After the hearing on February 4th, appeared before Judge Barbara Riggs -- before Barbara Riggs and again I asked the same question again, she said the time to appeal was thirty days.

Now, I disagree with you especially she's like it's based on the time the decision is received. Well, I don't know what time the decision was received. I don't think anybody knows what time the decision is received. But the thirty days is pretty well standard.

I filed -- I came back in thirty days and-the reason why I waited until the thirteenth day was because I was hoping my brother would take some steps to comply with the Court order and, in fact, he didn't do anything to comply with the court order and he had thirty days he could have gotten the Order and finalized the whole thing in thirty days if he wanted to do so. He didn't raise even the first finger towards trying to (inaudible) decision. He has gotten in his control and bank account -- the minute they signed this Order he got $250,000.00. All he has to do is write checks for the money. He doesn't have to anything. I don't -

THE COURT: All right.

MR. SLOAN: -- need -- realize that those checks

THE COURT: All right. Have a seat over there. That's your table.

MR. SLOAN: Right. Yes, sir.

THE COURT: And let me hear from Ms. Kennedy.

Just put the dates on the record. Please

Now, listen to these very carefully, Mr. Sloan. And let me know if you disagree with anything that she's reciting into the record.

MS. KENNEDY: Your Honor, Judge Hocker issued an order -- he was appointed as a Special Probate Judge in Aiken County, he issued an Order on November 3, 2003, the affidavit from the clerk of Judge Hocker indicates that she mailed the order on November 4, 2003, together with a statement of costs concerning tapes for the hearing. She mailed that both to Mr. Sloan and, to myself. Thereafter, sometime between November 5, 2003 and November 10, 2003, Samuel Sloan called her regarding the statement of cost, clearly indicating that he had received the statement from her, which again, was included in the Order.

THE COURT: All right.

MS. KENNEDY: Was included in the package of the Order.

THE COURT: All right. Hold on one second.

Now, Mr. Sloan, Ms. Kennedy is saying that you called her --

MS. KENNEDY: No, sir. I'm sorry. He called the clerk.

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 --

THE COURT: Okay. So your answer is no, you don't remember that?

MR. SLOAN: No, I don't remember that.

THE COURT: All right. That's fine. Thank you, sir. You may be seated.

All right. Continue, please, ma'am.

MS. KENNEDY: Your Honor, on December 1st, he dated his Notice of Intent to Appeal. I received it on December 3rd, and it was also filed in the Probate Court on December 3rd. It was not filed in Circuit Court until some time thereafter, I believe December 18th, because of failure to pay the filing fee it was returned to him. And then thereafter it came back with the appropriate filing fee.

That was the Notice of Intent to Appeal untimely filed, but also the grounds for appeal was -- it's dated January 15th. It was filed in the Probate Court on January 28th. South Carolina Code Section 62-1-308(a) governs appeals from the Probate Court requiring that the Intent to Appeal be filed within ten days of the date he received the Order.

We know he received it at least by November 10th. That would have thereafter,, at least, November 20th or 21st to file it. It was not even dated until December 1, and the forty-five day time frame for filing grounds for appeal and those were not actually filed with the Court until January 28th, some seventy-seven days after he actually could have pursued the order.

There are three cases in South Carolina that deal with this -- the Court of Appeals decision from 1996 mirrors a Supreme Court decision from 1985, in a Court of Appeals decision from 2002; all are cited in my memorandum, and I do have copies for both you and Mr. Sloan, if you would like to see them, indicating that the statutory time frame for appealing from a Probate Court is the time frame and in that the grounds must be file and the Notice of Intent must be filed in accordance with that statutory time frame. If it's not, then the appellate court lacks subject matter jurisdiction to deal with the appeal. And therefore I'm asking for this appeal to be dismissed and I have submitted to the Court a statement of costs, and I would ask that you direct that costs in the amount of $1,046.75 be assessed against Mr. Sloan. .

MR. SLOAN: Your Honor, may I respond to that?

THE COURT: Yes, sir.

MR. SLOAN: Okay. Your Honor, first place, about the costs I -- like I say, after the hearing was held before Judge Hocker I drove down there from Laurens to Aiken, and I went to the Clerks office, and I asked them exactly about how much was the filing fee to file an appeal. I told them I was going to file an appeal, but I wanted to give my brother a little bit of time to comply with the Court Order in case -- in the off-chance he would decide to comply with it. They told me that they did not know what the filing fee was. But what I should just do was go ahead and file a Notice of Intent to Appeal and then if they -- once they found out what the filing fee was they would send it back to me and they would notify me as to what the filing fee was. So I did exactly what -- what they told me to do. You can ask them in the Clerk's office and I'm sure they remember the conversation that we had about this filing fee.

Now, I'd also like to point out that Ms. Kennedy was in default for one year in this case. My mother died in May -- in May 16th of 2002. I filed -- as soon as I found out my brother didn't file anything, I'm the one who filed the death certificate and started this whole proceeding. My brother did not appear in this case until January 2003, nine months later. And that appearance wasn't served on my either I didn't finally get service on the proceedings until August of 2003, and then finally this case was transferred around to several different judges, and finally wound up here. So they are one year late in appearing in this case. They are in default a couple of months after my mother died in May 2002. So here they come in saying I'm two days late. Another thing about the transcript is, Judge Hocker made the statement in open court that he was not ready to receive any filings from me by mail. As a matter of fact, I had sent him a pleading and he -- he had the envelop in open court and -- in Laurens. He said, I received this in the mail, I'm not going to open any envelops from you at all. And he handed it back to me in the presence of Ms. Kennedy, my adversary. And here he's making a statement that he's not willing to open any mail that I send him about the case; any pleadings, any motions, any affidavits, anything like that. He wouldn't even open the letter. So how can he suddenly come around and say that I'm two days late for filing the grounds for appeal when he isn't even -- he's on record, and that's why, again, I say that the transcripts of this case is very necessary, because if the transcript is here I can show you exactly where he said this.

I also asked him questions about the time to appeal. He said, well, I'm not here to give legal advice. Very strange that a judge would say of the time limits and not admitting -- things like that, that he would say he's not going to give legal advice. That's not legal advice, that's procedure. Procedure varies from courtroom to courtroom from state to state. I live in New York. In New York the time to appeal starts with service of a Notice - an affidavit of service with Notice of Entry. That's - Affidavit of Service with Notice of Entry starts the time limit of thirty days to run an appeal in New York. That's a case I'm familiar with.

By the way, you may not know this about me, but I once argued orally before the United States Supreme Court. It's a famous case. I'm the last non-lawyer ever to argue and win a case in the United States Supreme Court.

THE COURT: And I hope you stuck to the subject matter before the Supreme Court in Washington better than you're doing today. Because most of what you said doesn't have anything to do with the issue before the Court.

MR. SLOAN: Well, I get -- that Judge Keesley - we had a hearing; we can get a transcript of that hearing. On February 4, he said he was not going to rule on the motion that Ms. Kennedy filed until he had received a transcript. We haven't got the transcript. I'm willing to pay for the cost of the transcript: It's not a question of costs. I keep calling over and over again, calling the clerks of these Courts trying to find out what is the procedure and they keep saying you'll have to ask the Judge about that. So now you're the judge, two months ago it was a different judge, Judge Keesley, who made a different ruling than you seem like you're heading for right now. So it's a very difficult situation, especially me being out of state, to deal with.

THE COURT: Did Judge Keesley take this matter under advisement or something like that?

MS. KENNEDY: Your Honor, Judge Keesley issued an order directing the Probate Court to submit documentation to the Circuit Court regarding this matter, which Judge Hocker did. He submitted all the original exhibits that were submitted, he submitted his court order and you should have that order issued by Judge Keesley -

THE COURT: But, he did not deal with this issue, he did not deal with the time limits of the filing?

MS. KENNEDY: He indicated that he could not deal with it until the return and transmittal of the record was entered by the Probate Court. That is in his of February 3, 2004. And thereafter Judge Hocker on February 20, 2004, filed the Probate Court Return. That's a letter to the clerk here in Aiken County. So the Return was filed with this Court in accordance with Judge Keesley's Order on February 20th.

MR. SLOAN: Your Honor, may I say something about this?

THE COURT: Yes, sir.

MR. SLOAN: Okay.

THE COURT: Could you pass me up a copy of that order. I mean, the file's about four inches thick. You can probably do that before I can find it in this file. I mean, everything is very neatly organized and all of that. It's just so big that I don't know where to look for it. Is that his handwritten order?

MS. KENNEDY: Yes, sir.

THE COURT: Of February 4th?

MS. KENNEDY: Yes, sir.

THE COURT: Okay. I've got it. It's right here.

MS. KENNEDY: Okay. The next thing in my file, Your Honor, is a letter of February 20th, with a return signed by Donald B. Hocker, Special Probate Judge for Aiken County. I have a copy of that if Your Honor would like to see that?

THE COURT: No, ma'am.

Yes, sir?

MR. SLOAN: Yes. In the hearing before Judge Keesley, I think that's his name -- anyway. I'm sorry. I brought up the point that when this case -- the - guardianship case appeal had been heard -- there was an appeal in the guardianship case back in 1991 before Judge Peeples, and Judge Peeples had said that he had spent several hours reviewing the tapes of the hearings in the guardianship case. He had actually had the tape recorder running, listening to the testimony of the guardianship case. And I was wondering if Judge Keesley is going to do that again, and his reply was that he doesn't have time to be listening to lengthy tape recordings, specially case like this which was back over two days, probably about eight hours of testimony; he didn't have time to be listening to lots of tapes. He wanted a typed transcript made -- and -- that was his ruling in this court, we could probably get a transcript of what he said back then on February 4th, and you'll see that he said that he specially wanted a typed transcript made. Now, here we have a record coming with no tape recording. They have the tape recordings. I have a copy of -- Ms. Kennedy also purchased a copy of the tapes -- of the thing -- so that we know they have the tapes, but he did not send those tapes to this Court. So you cannot listen to -- all these things I'm talking about, Judge Hocker said this, Judge Hocker said that, I can verify that if I have the transcript before or if I have the tapes before me. I can show you exactly where he said these things, and, for example, he said_ that he's not willing to receive anything in the mail from me. He's not willing to even open the envelops that I sent to the Courthouse. That's certainly relevant on the question of time limits. So he said he's not even going to open any mail I send him. So -- I submit that without those transcripts and tapes or any kind of statement from the Court about what I -- what took place, what witnesses were called, all the other things that lower court judges usually transfers to the higher courts you can't rule on this thing, and I'd also like to point out again, we have a million and a-half dollars involved in this case. This is not a small case. This is a very big case.

I happen to be walking down the street yesterday and it was a lawyer standing in front of his new office, and I had exchanged pleasantries with him, you know, how's the building -- this kind of stuff. And then I happen to notice he's a lawyer. And I said, let me tell you about -as long as you're a lawyer, let me tell you about my case. My mother is a child psychiatrist -- my mother was kidnapped from Bangkok, Thailand and she was brought here to Aiken, South Carolina in 1991. He said, oh, I know exactly this case. Your mother was Dr. Marjorie Sloan, she was a child psychiatrist, and I wish you the best of luck and by the way, I'm not willing to take this case and no lawyer in Aiken will take this case, because every lawyer in Aiken knows that this case is such a mess that nobody will touch it. You'll notice that Ms. Kennedy comes from Columbia. The lawyer that was on this case back in 1991, his office is directly across the street from this courthouse, Mr. Tucker, he's two minutes walk from here. He's is not going to come for this case because he knows this terrible mess. My brother has been stealing money from my mother for the last -- this case has been going on for eighteen years. And my brother has been stealing money -- he stole a million and a-half from us -- from my mother. He's got it hidden in various places. We don't know where it is. He stole my mother's house in 1993, even though a conservator was appointed in 1991. He had no right to sell her house. He took money out of her bank account, he took her social security check for $6,000.00 a month over a period of eleven years. Now, that money was supposed to go to the court appointed conservator. A conservator he had appointed. He had the conservator appointed. And he turns around and he doesn't give any money to the conservator. He keeps all the money himself, a million and a-half dollars. And that's what we're talking about is a million and a-half dollars. Plus I've got eight children to take care of including this one sitting right here. And -- and he's got all the money and nobody knows where it is. He's not going to tell the lawyer where it is.

She's expecting to get paid from the proceeds of this estate, and by the way, I got news for her, he's not getting any money. She's not going to get paid if that's the way she's going to get paid if by him. She's just so much out of luck. That's what this case is all about -and I -

THE COURT: All right, sir.

MR. SLOAN: -- and I'm convinced that we have to have that transcript here and the record according to the ruling of Judge Keesley in order to proceed on -- to rule on her motion.

THE COURT: All right. Thank you, sir.

I've read Judge Keesley's Order. I've -- I don't know what the purpose of his order was, but there's nothing in his Order that prohibits me from hearing this Motion to Dismiss the Appeal, and the very narrow issue that's been raised before me in this Court. I would certainly not tread on Judge Keesley's turf. I will not attempt to make an order contradictory to his, but -- I find that the appeal was untimely filed, the appeal is dismissed. That order is granted.

Now, Ms. Kennedy your requests for costs and the attorney fees -- I don't have a copy -- It appears to me that the decision has to be set by the Supreme Court and then the Supreme Court set it at a thousand dollars in an order in 1997, did they set it only for Supreme Court Appeals or for any appeal. I don't have a copy of that order.

MS. KENNEDY: Your Honor, I'm just referring to - -

THE COURT: The rule says it has to be set by the Supreme Court, which would indicate to me that it had to be an appeal to the Supreme Court for you to be entitled to attorneys fees.

MS. KENNEDY: Your Honor, I don't know the answer It is in the South Carolina Appellate Court Rules, which may or may not apply to this particular appeal.

THE COURT: Well, I tend to think that the first part of 222(b) applies, but then it says, in addition the parties shall entitled to recover an attorney fee in the amount which shall be set by Order of the Supreme Court.

MS. KENNEDY: Yes, sir. I understand and I don't have the Order. All I've got is the citation in the Rule that just says that the amount of attorneys fees was set at $1,000.00 applicable to any appeal or an exclusion is filed on or after July -

THE COURT: All right. I will take your request under for costs -- I'll grant the $36.75 and I'll take the matter of the $1,000.00 under advisement until I can determine whether that -- I'll get a copy of that order and determine whether it applies.

MS. KENNEDY: Thank you, Your Honor.

THE COURT: Now, Mr. Sloan, when you want legal advice you should contact a lawyer and not somebody on the street. And not somebody in the Clerk's office.

MR. SLOAN: Well, certainly I don't think that particularly matters at this point.

HE COURT: Well, but they're not lawyers and they are not allowed to give you legal advice. So when you get this order that I'm going to sign when Ms. Kennedy has prepared it, and when you get this Order you need to see a lawyer if you want to appeal it.

MR. SLOAN: Okay. Well, I'm going to appeal -I'll tell you right now, I'm appealing. I'll tell you that right now today, before I go back to New York.

THE COURT: Good luck to you.

MR. SLOAN: Your Honor, I believe ultimately, the Court of Common Pleas is going to have to take original jurisdiction over this case. This case is clearly beyond the competence of the Probate Court. It's a lot of money involved in this case; there's kidnapping involved. My brother had my mother kidnapped -- had her kidnapped from Bangkok, Thailand. She never lived in this city at all. She never lived in South Carolina in her entire life. She never even came here in her entire life until my brother had her kidnapped and brought here and had her locked up for twelve years until she died.

He belongs in jail. I can't understand why you -

THE COURT: All right. Thank you very much.

MR. SLOAN: -- he stole all this money, which is perfectly obvious from the documents you have in front of you. Those exhibits show you that he stole money from his money.

THE COURT: Thank you very much.

MR. SLOAN: So anyway, I'm going to get a transcript of this because I'm appealing your ruling to the South Carolina Supreme Court.

THE COURT: Once you get the Order then you will need to contact the court reporter and have a transcript prepared, and I think they require you to make a deposit.

MR. SLOAN: That's no problem about money. This case involves a million and a-half dollars and -

THE COURT: All right.

MR. SLOAN: -- and we know that we will never get a dime from Creighton. He's already told everybody that's his friends that he's never going to give me a single dime. At the very minimal I'm entitled to $150,000.00 out of this deal.

THE COURT: All right, sir. Thank you very much.

MS. KENNEDY: Your Honor, I do have a proposed Order I'd like to sent to you to look at.

THE COURT: I'm not going to sign it today. I've printed it off last night and left my copy at home, but I can't sign it until I look up the statute on costs.

MR. SLOAN: Okay.

THE COURT: But she'll be filing it with the Clerk of Court and then my suggestion is that you contact an attorney.

MR. SLOAN: Well, Your Honor, nobody will take -

THE COURT: Listen -- Attorneys all over the state of South Carolina. The only advice I'm giving you is you need a lawyer. Thank you. Good day.

MS. KENNEDY: Thank you, Your Honor.

(The proceeding was concluded.)

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