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In the Matter of the Estate of

January 25, 2012

IN THE MATTER OF THE ESTATE OF LORRAINE ISBURG FLAWS, DECEASED.


APPEAL FROM THE CIRCUIT COURT OF THE FIRST JUDICIAL CIRCUIT BRULE COUNTY, SOUTH DAKOTA HONORABLE BRUCE V. ANDERSON Judge

The opinion of the court was delivered by: Gilbertson, Chief Justice

CONSIDERED ON BRIEFS ON NOVEMBER 14, 2011

[¶1.] Yvette Herman (Yvette) appeals a partial summary judgment for certain heirs of the estate of Lorraine Isburg Flaws (Lorraine) determining that Yvette does not have standing to maintain her claim that she is an heir of the estate. We reverse and remand.

Facts

[¶2.] Lorraine died testate on February 18, 2010. However, Lorraine was predeceased by her named beneficiaries and her will did not designate contingent beneficiaries.*fn1 Thus, administration of Lorraine's estate was governed by the laws of intestate succession. [¶3.] Lorraine was also predeceased by her parents and her only sibling, Donald Isburg (Donald). Donald died in 1979. His estate was probated by the United States Department of the Interior, Bureau of Indian Affairs, Office of Hearings and Appeals, the office that completes probate matters for Native Americans who reside in Indian Country. Donald had two children from his marriage, Audrey Courser (Audrey) and Clinton Baker (Clinton). Donald's probate was completed in 1981 and an order determining heirs in that proceeding determined that Audrey and Clinton were Donald's sole heirs. [¶4.] Yvette was born in 1970 to Joyzelle Rilling (Joyzelle). At the time Yvette was conceived, Joyzelle was married to Gene Rilling (Gene). However, Joyzelle divorced Gene a month before Yvette's birth. Joyzelle provided a sworn statement in the trial court proceedings in this matter that Donald was Yvette's biological father.

[¶5.] In 2005, Yvette contacted Lorraine about her claim that Donald was her father. At Yvette's request, Lorraine submitted to DNA testing to determine Donald's paternity of Yvette. The testing concluded that there was a 94.82% probability that Donald was Yvette's father. Yvette then petitioned the Crow Creek Sioux Tribal Court for an order of paternity and to correct her birth record. The tribal court entered an order in 2008 declaring that Donald was Yvette's father and ordering the birth record to be changed to include him as Yvette's biological father. Based upon that order, the South Dakota Department of Health, Vital Records Office, issued a new birth certificate naming Donald as Yvette's biological father.

[¶6.] Proceedings to probate Lorraine's estate were commenced by Audrey in March 2010 with the filing of a petition to determine heirs and for her appointment as personal representative. Yvette opposed the petition on the basis that she was Lorraine's niece and was equally entitled to appointment. Yvette nominated herself and Tamara Allen (Tamara), another woman claiming status as Donald's child, to act as co-personal representatives of the estate. Alternatively, Yvette requested appointment of a special administrator.

[¶7.] The trial court appointed an attorney not otherwise involved in the estate proceedings to act as special administrator and set a hearing to determine heirs. Prior to that hearing, a motion for partial summary judgment was filed on behalf of Audrey and Clinton claiming that Yvette did not have standing under the pertinent statutes to assert that she was an heir of the estate. A hearing was held on the motion on July 20, 2010. The trial court issued a memorandum decision (also designated as its findings of fact and conclusions of law) and an order on February 3, 2011, granting Audrey and Clinton partial summary judgment on the basis of Yvette's lack of standing. Yvette obtained the trial court's certification of its order as a final judgment pursuant to SDCL 15-6-54(b) and appealed the order to this Court.

Issue 1

[¶8.] Whether Yvette's appeal should be dismissed for failure to serve the notice of appeal on Tamara.

[¶9.]After the filing of Yvette's notice of appeal, Audrey and Clinton moved to dismissfor failure to serve the notice on Tamara. This Court considered the motion and reserved its ruling, directing the parties to brief the issue as part of the appeal.

[¶10.]This Court held in In re Reese Trust:

SDCL 15-26A-4 sets forth the steps for taking an appeal to this Court. SDCL 15-26A-4(3) provides in pertinent part: "The appellant, or his or her counsel, shall serve the notice of appeal and docketing statement on counsel of record of each party other than appellant, or, if a party is not represented by counsel, on the party at his or her last known address." (Emphasis added). Failure to timely serve and file a notice of appeal is jurisdictionally fatal to the appeal. Hardy v. W. Cent. Sch. Dist., 478 N.W.2d 832, 834 (S.D. 1991) (citing W. States Land & Cattle Co., Inc. v. Lexington Ins. Co., 459 N.W.2d 429, 432 (S.D. 1990)).

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. See Long v. Knight Const. Co., Inc., 262 N.W.2d 207 (S.D. 1978) (citing Morrell Livestock Co. ...


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