Time is NOT on Your Side, 0317 SCBJ, SC Lawyer, March 2017, #18

Author:Elizabeth F. Fulton and Edward K. Pritchard III , J.
 
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Time is NOT on Your Side

Vol. 28 Issue 5 Pg. 18

South Carolina Bar Journal

March, 2017

Avoiding Pitfalls When Filing Motions to Alter or Amend under Rule 59(e), S.C.R.Civ.P.

Elizabeth F. Fulton and Edward K. Pritchard III , J.

A Rule 59(e) motion to alter or amend the judgment, also colloquially referred to as a “motion to reconsider,” is typically no more than a “Hail Mary” attempt to get a judge to change his or her mind and rule in favor of the movant. As those who litigate for a living well know, Rule 59(e) motions are very rarely granted.

If the challenged order is a non-dispositive one, failure to serve a Rule 59(e) motion timely is generally not a mortal blow. If, on the other hand, the challenged order is a dispositive one, failure to timely serve a Rule 59(e) motion can prove fatal. Not only does failure to timely file a Rule 59(e) motion challenging an order disposing of the case divest the trial court of jurisdiction to consider the motion, but, in some circumstances can cause the court of appeals or—if the appeal is directly to the Supreme Court—the Supreme Court to lose jurisdiction over an appeal from an unfavorable decision in the lower court.

Even a novice litigator knows that a Rule 59(e) motion must be fled 10 days following receipt of written notice of the entry of the order. The problem, however, is knowing when to begin counting. With today’s ubiquitous reliance on email, text messages, faxes and electronic court notices, the rules on what constitutes “written notice” has become exceedingly more complicated since the days o f pen and paper. Recent South Carolina appellate court decisions have started to address this, and it is starting to change the status quo on how to calendar deadlines. Nowhere is this currently more relevant than the steps leading up to the notice of an intent to appeal. The purpose of this article is to explore how to avoid the pitfalls associated with fling a Rule 59(e) motion, or in other words, when to start counting.

When to file a motion to alter or amend

The requirements for fling and serving a motion to alter or amend are set forth in Rule 59(e). “A motion to alter or amend the judgment shall be served not later than 10 days after receipt of written notice of the entry of the order.”1 Unlike other deadlines, the time to file a Rule 59(e) motion cannot be enlarged. Some attorneys erroneously think Rule 6(b), S.C.R.Civ.P., permits the time to serve a motion to alter or amend to be expanded. Such reliance on Rule 6(b), however, is misplaced as it expressly provides otherwise, stating: The time for taking any action under rules 50(b), 52(b), 59, and 60(b) may not be extended except to the extent and under the conditions stated in them. The time for fling notice of intent to appeal is jurisdictional and may not be extended by consent or order.2

Simply stated, 10 days means 10 days. Neither opposing counsel nor the trial court can extend the 10-day deadline.

Receipt of written notice of the entry of an order

The deadline for serving a motion pursuant to Rule 59(e) begins to run upon receipt of the notice of the entry of the order south to be altered or amended—not receipt of the actual order. Therein lies the rub.

In

Ackerman v. 3-V Chemical, Inc., the S.C. Supreme Court held that notice is perfected when a petitioner receives written notice of the entry of judgment even in the absence of receipt of the written order, explaining: [U]pon receiving written notice of the entry of an order or judgment, an attorney may immediately call and...

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