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Telford v. Bradeen

United States District Court, D. South Dakota, Western Division

May 31, 2019

HOLLI TELFORD personally and as assignee of the claims of Brenda Burton, Plaintiff,
v.
RON A. BRADEEN, BRADEEN REAL ESTATE, JEFF STORM, FALL RIVER COUNTY SHERIFF ROBERT EVANS and SA DANE RASMUSSEN, in their official capacities, Defendants.

          ORDER

          JEFFREY L. VIKEN CHIEF JUDGE

         INTRODUCTION

         This case centers on an online sale of land in South Dakota to plaintiff Holli Telford.[1] See Docket 51 at pp. 3-6. The court dismissed plaintiff's claims against all defendants. (Dockets 51 & 120). Plaintiff appealed the court's judgment to the United States Court of Appeals for the Eighth Circuit. (Docket 134). The Eighth Circuit remanded the case to this court for the limited purpose of determining the date plaintiff filed her notice of appeal. (Docket 140). The court held an evidentiary hearing on this question on April 24, 2019. (Docket 148). Plaintiff refused to attend the hearing. At the hearing, defendants called four witnesses and the court received nine exhibits into evidence. (Dockets 148 & 149). Based on the evidence the court received at the hearing, it concludes plaintiff filed her notice of appeal on December 20, 2018, and that the notice contains a fraudulent stamp dated December 10, 2018.

         DISCUSSION

         I. Hearing Evidence

         The following factual recitation is derived from this case's procedural history and evidence presented at the April 24 hearing. (Dockets 148 & 149).

         The court dismissed the last of plaintiff's claims and entered judgment in favor of the last remaining defendants on August 29, 2018. (Dockets 120 & 121). Plaintiff had 30 days to file a notice of appeal after the date the court entered judgment. Fed. R. App. P. 4(a)(1)(A). The appeal deadline passed on September 28. However, plaintiff timely filed a motion for an extension of time in which to appeal on October 4. Docket 122; see Fed. R. App. P. 4(a)(5)(A)(i). The court granted the motion and extended plaintiff's appeal deadline until December 12. (Docket 133).

         The docket sheet for this case does not record any document filed between November 28, when the court entered its order extending plaintiff's appeal deadline, and the passing of that deadline on December 12. On December 10, however, plaintiff did file a document in a separate federal case. Lundahl et al. v. JP Morgan Chase Bank et al., Civ. 17-5069 (Docket 72); see also Evidentiary Hearing Ex. 101. Because plaintiff is not permitted to file documents electronically, she typically hand-delivers them to the clerk's office in Rapid City, South Dakota.[2] (Docket 151 at p. 17). Deputy Clerk Sandra Thielen assisted plaintiff on December 10 when she delivered the document she wished to file in the Lundahl case. Id. Ms. Thielen testified at the evidentiary hearing and the court finds her credible.

         Ms. Thielen files documents for plaintiff and is familiar with her and her typical practices when bringing documents to file. Id. at pp. 14-15, 17-18. Plaintiff would typically make a copy of the first page of a document she wished to file and ask the clerk assisting her to stamp the copied page with a “copy filed” stamp. Id. at p. 18. The copy filed stamp was a mechanical stamp used by the clerk's office to memorialize the date the original was filed. Id. at p. 24. It contained a changeable date stamp. Id. The clerk's office decided to discontinue use of the copy filed stamp and the Rapid City stamp was destroyed. Id. at p. 44. Ms. Thielen does not have a specific memory of stamping a copy of the document plaintiff delivered for filing on December 10 with the copy filed stamp, but testified she would have stamped it upon request. Id. at pp. 20-21.

         On Sunday, December 16, plaintiff e-mailed Ms. Thielen and stated she brought a notice of appeal in this case to the clerk's office on December 10 for filing. Id. at pp. 34-35; Evidentiary Hearing Ex. 109. Plaintiff stated she received a stamped copy of the notice of appeal. Ex. 109. Attached to the e-mail was a scanned copy of a notice of appeal with a copy filed stamp bearing the date December 10, 2018. Docket 151 at pp. 39-40; Evidentiary Hearing Ex. 103; Docket 134. Ms. Thielen forwarded the e-mail to Tammy Ludeman, the Deputy in Charge of the Rapid City clerk's office. (Docket 151 at p. 32). Ms. Ludeman testified at the evidentiary hearing and the court finds her credible.

         Ms. Ludeman asked plaintiff to bring the original document to the clerk's office and plaintiff agreed to do so on Thursday, December 20. Id. at pp. 37-38. The document bore a copy filed stamp dated December 10, 2018. Evidentiary Hearing Ex. 106; Docket 134. Ms. Ludeman filed plaintiff's notice of appeal on December 20. (Docket 151 at p. 29). When she filed the notice of appeal, Ms. Ludeman included a note on the docket entry stating the notice was received on December 20 and that the clerk's office had no record of receiving the document on December 10. Id. at p. 46; Evidentiary Hearing Ex. 104.

         Ms. Thielen has no recollection of receiving a notice of appeal when she assisted plaintiff on December 10. (Docket 151 at p. 25). She would have recalled receiving a notice of appeal because they are time sensitive and require additional work. Id. After plaintiff contacted the clerk's office regarding the notice, Ms. Thielen checked the shred pile of original documents she keeps after scanning them and did not find the notice. Id. at p. 26. The original copy of the document plaintiff brought to file in the Lundahl case on December 10 was in Ms. Thielen's shred pile. Id.

         The Eighth Circuit remanded this case for an evidentiary hearing to determine the date the notice was filed. (Docket 140). The court contacted the parties via e-mail to schedule a suitable time for the hearing. (Docket 151 at pp. 5-6). In that e-mail conversation, plaintiff made clear she did not intend to appear at any evidentiary hearing. Id. at pp. 6-9; see also Dockets 141 & 142 (copies of e-mails from plaintiff to the court). The court decided to proceed with the hearing without plaintiff, given her repeated declarations that she would not appear at any evidentiary hearing. (Docket 151 at pp. 8-9).

         Before the hearing, defendants moved for leave to inspect the notice of appeal plaintiff brought to the clerk's office on December 20. (Docket 144). They proposed that Wendy Carlson, a document examiner, inspect the notice. Id. The court granted the motion. (Docket 147). Ms. Carlson examines documents and handwriting to determine authenticity of authorship. (Docket 151 at p. 57). She possesses certification from the International School of Forensic Document Examination and West Virginia University. Id. at p. 55. She has examined more than 20, 000 documents since 2008 and testified as an expert witness ...


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