Twenty-three years ago this month, I started work on my first cert petition to the US Supreme Court. I worked hard at it, was proud of it, and got it out a day late. I had looked at the blocks of days on the calendar wrong and miscounted by one day. A docket clerk at the US Supreme Court called to explain that the Court does not accept untimely cert petitions.
From then on, I always triple check deadlines and the rules governing how to compute them. This review uncovered five quirks in the rule for South Carolina appeals.
Rule 262(b), SCACR, provides, “Service is complete upon mailing.” Rule 263(a), SCACR, similarly says that you don’t get extra time because a party serves by mail. Unlike the trial court, where you get five extra days, service by mail gets you “no additional time” once the case is on appeal.
So the date that the certificate of service says the filing was dropped in the mail is the date that starts the ball rolling, not when you actually get the mailing.
The clock starts at zero, not one
This does not mean that the date of the mailing is day one. It is day zero. Under Rule 263(a), SCACR, you don’t count the day of the act, event, or default which starts the clock ticking. The day after the date of mailing is day one.
The same is true for personal service. The day after service is day one.
Intervening days include weekends and holidays
Once the clock starts, count intervening Saturdays, Sundays, and holidays unless you are going to reply to a response to your motion.
Rule 263(a), SCACR, excludes intervening weekends and holidays if — but only if — the deadline is 7 days or less. Only replies to motions, which carry a five-day deadline, qualify for this special treatment. Rule 240(f), SCACR.
Last days exclude weekends and full-day holidays
Do not count Saturdays, Sundays, or full-day holidays if we are talking about the last day. If the last day falls on a weekend or full-day holiday, you can wait until that next Monday (or the next Tuesday if that Monday is a holiday).
In re Robert R., 340 S.C. 242, 531 S.E.2d 301 (Ct.App. 2000), shows how this works. In that case, a juvenile had 10 days to serve a notice of appeal and did not get it served until the twelfth day. But the tenth day was a Sunday and the eleventh day was Memorial Day. The Court held that the notice was timely because that Sunday and Monday did not count.
Only full-day holidays enjoy this special treatment. Half day holidays are not considered holidays.
Last days generally end at midnight
South Carolina’s mailbox rule, which starts the clock running from the date of mailing, helps on the back-end. While you lose the days it takes to get the mailing, you generally do not have to respond in time for the Court and the other side to receive it before the deadline. You can drop your response in the mail on the last day.
This arguably gives you until midnight. South Carolina’s default rule is that a “day” means a calendar day, beginning and ending at midnight, when the deadline only mentions the passage of days. Town of Summerville v. City of North Charleston, 378 S.C. 107, 662 S.E.2d 40 (2008).
So you are arguably timely if you drop the papers in a mailbox on the last day at 11:59 pm.
There is, however, one caveat: the mailbox rule does not apply to petitions for rehearing and motions to reinstate an appeal. The Court must actually receive them by the last day. Rules 221 and 260, SCACR. Because the Court lacks a deposit box for after-hours filings, you need to get those to the Court by the close of business.
And if you find yourself short of time, just ask for an extension. An earlier post explains that South Carolina grants extensions liberally if you ask before the deadline passes.
What do you all think? Ever caught opposing counsel miscounting days? Please let us know.