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SC Supreme Court discusses timeliness of Rule 59 Motion

By Bill Watkins, Esq.

In USAA Property & Casualty Insurance Company v. Clegg, the Supreme Court of South Carolina dealt with a deadline to file a notice of appeal. In essence, the appellant alleged that the respondent?s notice of appeal was untimely because it was filed more than thirty days after written notice of the trial judge?s order. The appellant did file a Rule 59 motion, which if timely, normally tolls the time limits on filing a notice of appeal. A motion under Rule 59 is timely if it is served not later than ten days after receipt of written notice of the entry of the order. Appellant claimed that she did not receive notice of entry of the Circuit Court order until May 16, 2005, and then filed a motion for reconsideration on May 26, 2005, within the requisite ten-day time period. Because an officer of the court has a duty to be truthful with a tribunal, the Supreme Court accepted this representation that notice of entry of the order was not received until May 16.

The Supreme Court put great weight on counsel?s representation that she did not receive the order until May 16. Counsel for the respondent had filed an affidavit and an accompanying fax transmittal sheet which indicated that appellant?s attorney had faxed a letter to respondent?s counsel on April 19, 2005, which stated that a copy of the Circuit Court?s order had been received. Had the Court not given great weight to the representation of appellant regarding receipt of the order, the appeal would have been dismissed as untimely. The requirement of service of the notice of appeal is jurisdictional. If a party misses the deadline the appellate court lacks jurisdiction to consider the appeal and has no authority or discretion to extend or ignore the deadline for service.

Full post as published by South Carolina Appellate Law Blog on May 01, 2008 (boomark / email).