Who You Gonna Believe – the Lawyer or the Post Office?

Earlier posts here and here cautioned that factual statements by lawyers are not evidence and will not be considered on appeal. But there may be an exception.

The exception revolves around the trigger for the time to appeal. In civil cases and family court cases, the 30-day clock starts upon “receipt of written notice of the entry of the order.”  Rule 203, SCACR. A timely Rule 59(e) motion to alter or amend tolls the time, but its 10-day clock likewise starts running on “receipt of written notice of the entry of the order.” Rule 59, SCRCP.

Okay. How do you prove when this occurs?

The issue came up in Elkachbendi v. Elkachbendi , Op. No. 2014-MO-035 (S.C.Sup.Ct. Sept. 17, 2014). The Clerk of the family court promptly mailed out written notice of the entry of the judgment to the attorneys of record.  Husband’s counsel made a Rule 59(e) motion to alter or amend the order over 10 days after the mailing. Wife’s counsel challenged the timeliness of the motion. The family court agreed and ruled that the motion was untimely.

The Court of Appeals affirmed. The clerk of court was able to show that the notice was properly mailed and when. The Husband, in contrast, failed to offer any evidence on the date he received the mailing. Elkachbendi v. Elkachbendi , Op. No. 2012-UP-479 (S.C.Ct.App. Aug. 15, 2012). So the Court affirmed the family court. In doing so, the Court pointedly distinguished an earlier case where a husband produced credible evidence on when he belatedly recieved the mailed notice. See Green v. Green, 320 S.C. 347, 350-351, 465 S.E.2d 130, 132-133 (Ct.App. 1995). 

Because the Rule 59(e) motion was untimely, the Court of Appeals continued, the motion did not toll the time to appeal. So the appeal of the underlying order was also untimely. Elkachbendi.

Receiving MailThe Supreme Court viewed the record differently. It reversed and remanded for the family court to hear the Rule 59 motion. Elkachbendi, 2014-MO-035 (S.C.Sup.Ct. Sept. 17, 2014).

The Supreme Court pointed to counsel’s statement on when he got the notice in the mail, and presumed that counsel was being truthful. It relied on counsel’s ethical duty of candor to the tribunal and an earlier case where a family court found, at least implicitly, that counsel was credible on when counsel received the required notice. USAA Property and Cas. Ins. Co. v. Clegg, 377 S.C. 643, 661 S.E.2d 791 (2008).

The Supreme Court also noted that the post office is not infallible, suggesting that the Court attributed the delay to the post office’s failure to promptly deliver the mail to counsel.

Relying on counsel makes perfect sense in this context. The clerk’s written notice of the entry of the judgment goes to counsel when the party is represented by counsel. See Rule 77(d), SCRCP (clerk must serve notice of the entry of the order on a party); Rule 5(b)(1), SCRCP (service on a party is made by service on the party’s attorney unless the court orders otherwise). Who better than counsel to say when the mailing addressed to counsel was received?

And it is also the way the appellate rules treat the time to appeal. Rule 203(e)(1)(c), SCACR, provides that the notice of appeal may confirm its timeliness by stating when the order being appealed was received. The statement does not need to be under oath. Counsel’s signature is enough.

So lawyer talk may be evidence, at least when we are talking about when the lawyer got written notice of a judgment’s entry.

Has opposing counsel ever challenged your representations on when you or your office got notice of a judgment? What happened?

Copyright © 2015 by the Law Offices of Robert Hill · Email · 877-407-6457 

 

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