Ever had opposing counsel tie you up on appeal with endless extensions after extensions? I once got tied up on an appeal taken before a final judgment where the appellant’s counsel got four extensions of time to file the opening brief. Over a year and a half passed before he filed the first brief. The case settled shortly after we responded.
Appellate Rule 263(b) of the South Carolina Rules of Appellate Procedure governs extensions of time. There is really only two requirements, one written and the other from older cases.
The written requirement is that the parties may not agree to extend the time on their own. Consent from the other party is helpful, but an extension requires a court order.
The second unwritten but common sense requirement is that you must seek an extension before the time expires. This comes from older cases like Wade v. Gore, 154 S.C. 262, 151 S.E. 470 (1930). The Court in Wade set forth enduring procedures:
- seek an extension early enough, and before the time has expired, to get opposing counsel’s consent to the extension;
- seek an extension early enough for the court to rule on it before the time expires.
What makes Wade more interesting is its warning about what happens if you let the deadline slip by without moving for an extension. The Court concluded that the appeal will be dismissed and not reinstated unless the appellant shows that he or she sought an extension or had some “especially good reason” not to. Wade, 151 S.E. at 472 (emphasis in original).
Several decisions follow Wade and refuse to reinstate appeals where an appellant let the time go by without moving for an extension. Southland Mobile Homes of South Carolina, Inc. v. Assoc., 270 S.C. 525, 244 S.E.2d 211 (1978)(failure to timely serve proposed case and exceptions); Sellars v. Nicholson, 243 S.C. 340, 133 S.E.2d 837 (1963)(failure to timely docket appeal).
Rule 260, SCACR, seems to say the same thing. It provides that an appeal shall be dismissed if an appellant fails to comply with the Rules, which would include missed deadlines, and that the appeal may not be reinstated “except by leave of the court for good cause shown.” It is only a step away to say that you can’t show good cause to reinstate the appeal if you never moved for an extension.
The Second Circuit Court of Appeal reached this conclusion last May, denying a motion to reinstate an appeal that the Court dismissed for missing an already extended deadline.
The lesson – move for an extension before the filing is due, and do it early enough seek consent from opposing counsel. I have never heard tell of the court denying an extension when the movant had opposing counsel’s consent.
One last wrinkle — the Court cannot extend the time to serve the notice of appeal. Timely service of the notice of appeal is jurisdictional. Letting that deadline pass is one of the few unpardonable sins.
What is you experience with getting appellate extensions of time? Ever had a request turned down? Please leave a reply of reach me here.