When Does the Time to Appeal Begin?
Rule 203(b)(1), South Carolina Appellate Court Rules (SCACR), requires notice of appeal be served within thirty days after receiving written notice of entry of an order or judgment. While the notice of appeal must be served upon parties, there is no such requirement as to the written notice of entry of a judgment.
Nearly twenty years ago, the Court of Appeals held a fax from opposing counsel advising judgment had been entered constituted receipt of written notice sufficient to trigger time to appeal. Now, the SC Supreme Court expands that holding to provide that an email from the court, an attorney of record or a party, giving written notice of entry of a judgment, triggers the time for serving notice of appeal, for purposes of Rule 203(b)(1) SCACR. Wells Fargo Bank, N.A. v. Fallon Properties South Carolina, LLC, et al 2018 WL 1075861 (February 28, 2018).
In Fallon, the master in equity filed an order denying a motion filed by the Fallons. That day, the master’s assistant emailed a signed and stamped copy of the order to the parties. The Fallons received the same order, by mail, three days later and based the timing of their notice of appeal on receipt of the mailed copy. In response to the Bank’s motion to dismiss the appeal, the Fallons argued the notice of entry had to be served by mail or hand delivery. Finding the Fallon’s reliance on Rule 5, SCRCP misplaced, the court held there is nothing in the appellate rules suggesting receipt of notice of entry of a judgment is limited to methods used to effectuate service.
It is important to note this ruling is to be applied prospectively. While the court found the Fallon’s notice of appeal was untimely, the court also found because of the novelty of this issue, the frequency with which it is likely to occur and previous inconsistent treatment of Rule 203, SCACR, fairness requires only a prospective application.
It is also critical to note what the court found to be previous inconsistent case law surrounding Rule 203, SCACR. Specifically, more than a decade after finding a fax provided notice of the filing of a judgment so as to trigger the time for service of notice of appeal, the Court of Appeals applied different treatment in determining the timeliness of a notice of appeal from a decision of the Administrative Law Court (“ALC”), in which Rule 203(b)(6) applied. Rule 203(b)(6) provides, in pertinent part, when a statute allows a decision of the ALC to be appealed directly to the Supreme Court or the Court of Appeals, the notice of appeal shall be served within thirty days after receipt of the decision. Thus, the focus when an appeal is from the ALC is the date the party actually receives the decision, not the party’s receipt of written notice that a judgment has been entered. White v. South Carolina Department of Health and Environmental Control. In White, the Court of Appeals found receipt of the decision required service and nothing in the rules authorized service of an ALC decision by email. In Fallon, the Supreme Court overruled White to the extent it interpreted receipt of the decision to require mail or hand delivery. While Rules 203(b)(1) and 203(b)(6) indeed require the receipt of different things necessary to trigger the time to appeal that does not mean the manner of receipt must differ.
Fallon provides a significant expansion to Rule 203, SCACR. Going forward, an email from the court, an attorney of record or a party providing written notice of entry of judgment triggers the time for serving a notice of appeal. So, practitioners, check your email.
Cheryl D. Shoun is a trial attorney and certified mediator whose experience includes construction law, insurance defense, personal injury defense, employment litigation and medical malpractice. As a frequent writer, she serves as editor for Nexsen Pruet's TIPS: Torts, Insurance and Products Blog.
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