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South Carolina: Email Constitutes Written Notice to Trigger Time to Appeal

Posted By USFN, Tuesday, April 17, 2018
Updated: Monday, April 16, 2018
April 17, 2018

by Ronald Scott and Reginald Corley
Scott & Corley, PA – USFN Member (South Carolina)

In the South Carolina Supreme Court case of Wells Fargo Bank v. Fallon Properties,1 the issue was raised as to whether an email that provides an entry of an order or a judgment triggers the commencement of the time required to provide written notice for serving a notice of appeal for purposes of Rule 203(b)(1), South Carolina Appellate Court Rules (SCACR). The Supreme Court determined that an email sent from the court, an attorney of record, or a party triggers the time to serve a notice of appeal.

Briefly, the facts are that, on December 15, 2014, the master-in-equity judge filed an order denying Fallon Properties’ petition for an order of appraisal pursuant to the post-foreclosure sale, deficiency judgment statute. Later that same day, the master’s office emailed a signed and stamped copy of the order to both parties of record. The email stated that a copy of the documents had also been mailed. Fallon Properties (the petitioner) served its notice of appeal on January 15, 2015 — 31 days after receiving the email, and 28 days after receiving the documents by mail. The respondent filed a motion to dismiss, asserting that the notice of appeal was untimely.

The Supreme Court applied the pertinent rule from Rule 203(b)(1), SCACR which states, “A notice of appeal shall be served on all respondents within thirty (30) days after receipt of written notice of entry of the order or judgment” (emphasis added). The petitioner conceded that an email does constitute written notice of entry of an order or judgment, although it contended that the written notice that an email provides can only be triggered under the rule if it is received by mail or hand delivery. In support of this argument, the petitioner looked to Rule 5, South Carolina Rules of Civil Procedure (SCRCP). The Supreme Court found, however, that because the service of a notice of appeal is an appellate procedure, the SCRCP are inapplicable.2

The case law surrounding this issue has not been in agreement. The Supreme Court found that the Court of Appeals properly relied on Canal Insurance Company v. Caldwell3 where it was determined that a fax sent from one of the party’s counsel to another’s was sufficient to commence the notice period. On the other hand, the Supreme Court distinguished this case from White v. South Carolina Department of Health and Environmental Control4 where that court incorrectly determined that an email received from opposing counsel, containing a signed and filed copy of an order [of the Administrative Law Court], did not trigger the time to appeal under Rule 203(b)(6), SCACR.

Given that the case law was inconsistent in the application of Rule 203, SCACR, and the novelty of the question, the Supreme Court held that fairness required that the ruling on this issue be applied prospectively. Furthermore, the Supreme Court affirmed the Court of Appeals’ decision as modified and allowed the appeal to proceed on its merits. To reiterate, the prospective standard that this case establishes is that an email sent from the court, an attorney of record, or a party triggers the time to serve a notice of appeal.

1 Wells Fargo Bank v. Fallon Properties, Op. No. 27773 (S.C. Feb. 28, 2018).
2 See Rule 101(a), SCACR (mandating that the appellate court rules govern the practice and procedure in appeals before the Supreme Court or Court of Appeals); Rule 73, SCRCP (providing the procedure on appeal to the South Carolina Supreme Court or the South Carolina Court of Appeals must be in accordance with the appellate court rules).
3 Canal Insurance Company v. Caldwell, 338 S.C. 1, 524 S.E.2d 416 (S.C. Ct. App. 1999).
4 White v. South Carolina Department of Health and Environmental Control, 392 S.C. 247, 708 S.E.2d 812 (S. C. Ct. App. 2011).

 

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