The South Carolina Court of Appeals recently ruled that email notice triggers the time to appeal from the court of common pleas. See Wells Fargo Bank, N.A. v. Fallon Properties, South Carolina, LLC, Case # 2015-000157 (S.C. Ct.App. filed Aug. 26, 2015)(Shearouse Ad. Sh. 33 at 55).
“[R]eceipt of written notice of entry of the order” triggers the time to appeal from the court of common pleas. Rule 203(b)(1), SCACR. For years, this notice came by first class mail in that the rule governing notices required the clerk of court to mail out an order immediately upon the order’s entry. Rule 77(d), SCRCP.
This may have changed in October 2011. The Supreme Court that month amended the general rule governing the South Carolina Bar. The amended rule provides, “The mailing and email address shown in the AIS [Attorney Information System] shall be used for all purposes of notifying and serving the member.” Rule 410(e), SCACR.
I say the snail mail rule may have changed because Rule 77, SCRCP, does not fully track the amendment to Rule 410(e), SCACR. Rule 77 was not amended to provide for any email notice until April 2014. Even then, the change applied only to parties proceeding in the SCE-File electronic filing system: “Any party or the attorney for a party who is a traditional filer and not proceeding in the electronic filing system must be served by first class mail as provided in paragraph (d).” Rule 77 (d), SCRCP (Official Note).
So which rule applies to those who are not proceeding under the SCE-filing system? Is it the general rule that an attorney’s email address shall be used for all purposes, or the more specific rule which suggests that traditional filers may continue to rely on snail mail?
In Wells Fargo Bank, the Court of Appeals sided with email notice. The appellant on December 15, 2014 got an email from the court’s clerk that informed counsel about an order’s entry and attached a clocked copy of the order. Counsel on December 18, 2014 then received the mailed copy. On January 15, 2015, the appellant served the notice of appeal. So the appeal was untimely if the email triggered the deadline but timely if the appellant could wait until it received the mailing.
The Court of Appeals held that the appeal was untimely, reasoning that the email notice was similar to its earlier blessing of a faxed notice of the entry of an order. See Canal Ins. Co. v. Caldwell, 338 S.C. 1, 524 S.E.2d 416 (Ct.App. 1999).
The Court also distinguished its decision holding that email notice did not trigger the time to appeal from an order of the Administrative Law Court. See White v. South Carolina Dep’t of Health and Envtl. Control, 392 S.C. 247, 708 S.E.2d 812 (Ct.App. 2011). The Court reasoned that ALC appeals require actual “receipt of the decision,” and not just notice of the order’s entry, and that the case lacked the due process concerns raised in the White decision.
Wells Fargo has caused a stir among some troubled by having to rely on email. But federal practitioners have done it for years. Yet it is a little unsettling for such a change to come in a Court of Appeals’ order and not an amendment to the rules.
What do you all think?