SC Time to Appeal – 59(e) v. 59(g)

In South Carolina, a timely motion to reconsider a judgment postpones the time to appeal the judgment. An untimely one does not. So exactly what must you do to delay the appeal?    

You have 30 days to appeal from the day you get written notice of the entry of the order that you want to appeal. But you can get more time if you make a “timely motion” to alter or amend the order. If you make a timely motion, you get 30 days from the day you get written notice of the entry of the order granting or denying the motion. Rule 203(b)(1), SCACR; Rule 59(f), SCRCP.

These deadlines are strict. If you miss one or the other, the Court must dismiss the appeal. The courts lack the authority or discretion to rescue you. Elam v. S.C. Dep’t of Tranp., 361 S.C. 9, 602 S.E.2d 772 (2004).

So what does a “timely motion” require?

Serve Motion Within 10 Days

Rule 59(e), SCRCP, requires that a motion to alter or amend be “served not later than 10 days after receipt of written notice of the entry of the order.” So service within 10 days is crucial to getting the extra time to appeal.

imgres In one case, a gentleman waited until the trial court ruled on his post-trial motion before appealing the underlying judgment. He forgot, however, to serve the post-trial motion on his opposing party. The Court of Appeals dismissed the appeal because he did appeal within 30 days from getting the initial judgment. The Court reasoned no service = no timely motion to reconsider = no tolling of initial 30 day period. South Carolina Dept. of Social Serv. v. Dowdle, Op. No. 2015-UP-463 (S.C. Ct.App. filed Sept. 22, 2015).

A more common issue is when you wait too long to serve. In the Canal Ins. Co. case, a party served a motion to alter or amend within 10 days of getting a copy of an order but well over a month from receiving written notice of the order’s entry. He then appealed within 30 days from the order on reconsideration.

The Court held that the appeal was untimely because the motion to reconsider was untimely. The Court reasoned that the time to serve is triggered by written notice of the order’s entry, not the written order. So the motion to reconsider, being untimely served, did not toll the initial 30-day time to appeal. Canal Ins. Co. v. Caldwell, 338 S.C. 1, 524 S.E.2d 416 (Ct.App. 1999).

Much more recently, the Court held that a motion to reconsider did not toll to time to appeal because the motion was untimely. In dismissing the appeal, the Court noted that trial courts lack the ability to extend the time to serve a Rule 59(e), SCRCP, motion. Overland, Inc. v. Nance, Op. No. 2016-UP-368 (S.C. Ct.App. filed July 20, 2016).

File the Motion Within 5 days of Service

Rule 59(e), SCRCP, by its terms, only requires timely service. But you need to read Rule 5(d), SCRCP, along with it. It generally requites that a motion be filed with the court within 5 days after you serve the motion. Rule 5(d), SCRCP.

And this means making sure that the motion actually gets to the Clerk of Court within 5 days of service. Unlike service, which is complete upon mailing, the rule does not say that filing is complete upon mailing. Compare Rule 5(b(1)(defining service) with Rule 5(e)(defining filing). Absent an express “mailbox rule,” a paper is not filed until it is actually delivered to and received by the Clerk of Court.  Sending it does not count. A post on this is available here.

If you forget to file the motion or the filing is untimely, the court may “proceed as though the same had not been served.” Rule 5(d), SCRCP. So the failure to timely file may be deemed as the failure to serve. And that throws you back into the Dowdle situation where no service = no timely motion to reconsider = no tolling of the initial 30-day period to appeal.

This may be forgivable, however, in that the trial judge may permit a late filing of a timely served motion. Rule 5(d), SCRCP. But who knows what the trial judge will do? Much better, of course, to go ahead and timely file the motion as soon as you serve it.

Give the Judge a Copy of the Motion within 10 days of Filing

Lastly, Rule 59(g), SCRCP, requires that a party filing a Rule 59 motion “shall provide” a copy of the motion to the judge within 10 days from the filing.

This may raise a much more common issue in that parties often believe that serving and filing the motion is enough, and forget to send a copy of the motion to the judge.

depositphotos_13984579-Cartoon-Man-Jumping-for-JoyThis is wholly forgivable. A timely-served motion to reconsider tolls the time to appeal until after the motion is decided even if the party forgets to timely send a copy of the motion to the judge. Coon v. Coon, 356 S.C. 342, 588 S.E.2d 624 (Ct.App. 2003), aff’d on other grounds 364 S.C. 563, 614 S.E.2d 616 (2005); Gallagher v. Evert353 S.C. 59, 577 S.E.2d 217 (Ct.App. 2003).

Have any of you caught opposing counsel failing to timely serve, file, or send the judge a copy of a motion to reconsider? Please let us know.

Copyright © 2016 by the Law Office of Robert Hill • Email • 877-407-6457

 

 

 

 

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