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SOUTH CAROLINA COURT OF APPEALS ISSUES AN ORDER CHANGING THE LANDSCAPE OF TRIAL AND APPELLATE PRACTICE

August 29, 2015 at 4:49 pm

In an Order representing a sea change in the way that attorneys must handle appellate filings, the South Carolina Court of Appeals held this week that the time period for filing an appeal starts running upon receipt of an email referencing or attaching a filed copy of the order or judgment.

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On Wednesday, August 26, 2015, the Court of Appeals issued an Order dismissing an appeal based on a new interpretation of the South Carolina Appellate Court Rules (SCACR). Rule 203(b)(1), SCACR, requires a party seeking to appeal an order or judgment to serve a copy of the notice of appeal on opposing parties within “thirty (30) days after receipt of written notice of entry of the order or judgment.” This rule has been commonly understood to begin the thirty-day time period when a party receives a copy of the order or judgment in the mail.

In Wells Fargo Bank, N.A. v. Fallon Properties South Carolina, LLC et al., the master-in-equity sent the attorneys in a foreclosure action an email on December 15, 2014 stating: “Please see attached copy of signed and clocked Form 4 and Order. I have also mailed a copy to all listed on the Form 4.” The losing party’s attorney received a hard copy of the Order in the mail on December 18, 2014. Following the traditional interpretation of Rule 203(b)(1), SCACR, the losing party’s attorney filed a notice of appeal on January 15, 2015—thirty-one days after the attorney received the email but only twenty-eight days after the attorney received a hard copy of the Order in the mail. Opposing counsel filed a motion to dismiss the appeal as untimely, which was granted by the Court of Appeals.

In addition to altering the way attorneys must handle appellate filings, the broad language in the Order also has wide-ranging repercussions for trial lawyers who file motions for reconsideration under Rule 59(e), SCRCP, which contains identical “receipt of written notice of entry of the order or judgment” language. Although it is entirely possible that the South Carolina Supreme Court will reverse the Court of Appeals’ Order and revert to the traditional method of calculating timelines, in the meantime this Order is bound to cause confusion among practicing attorneys of all experience levels.

This case is a stark reminder that attorneys must be familiar with court rules and diligent in maintaining their files in order to effectively advocate for their clients.

All of the attorneys at Simmons Law Firm have experience clerking for state or federal judges and are intimately familiar with the rules for handling state and federal appeals. When considering your appellate options, time is of the essence so it is vital to contact a qualified appellate attorney as soon as possible. If you or someone you know would like to discuss your appellate options, please contact the Simmons Law Firm at 803-779-4600, toll-free at 888-715-8818, or online at http://www.simmonslawfirm.com/contact.php for a free initial consultation.

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