August 26th, 2015

Email is “written notice” under Rule 203(b)(1), SCACR

by Kathleen Barnes in Appellate Procedure, Practice Pointers

On August 26, 2015, the Court of Appeals issued an Order finding that an email with an attached copy of the filed order triggered the thirty-day time period to serve a notice of appeal under Rule 203(b)(1), SCACR. Wells Fargo Bank, N.A. v. Fallon Props. S.C., LLC, Order No. 2015-08-26-01.  Rule 203(b)(1) requires an appellant to serve a notice of appeal “on all respondents within thirty (30) days after receipt of written notice of entry of the order or judgment.”  Prior to this Order, the common understanding of “receipt of written notice” was receipt in the mail of a physical copy of the order.  In Wells Fargo, the appellants served the notice of appeal within twenty-eight days of receiving a mailed copy of the order but within thirty-one days of receiving the emailed copy.   In support of its ruling, the Court of Appeals cites to a 1999 case that it interprets as holding a fax constitutes written notice. Canal Ins. Co. v. Caldwell, 338 S.C. 1, 524 S.E.2d 416 (Ct. App. 1999).  In Canal, the appellant’s attorney asked opposing counsel the status of an order from the court, and opposing counsel informed him via fax and mail that the court entered an order three months earlier.  Appellant’s counsel then waited a month to ask the court for a copy of the order and filed a motion to reconsider ten days after getting the filed copy.  The Canal court held that the motion to reconsider was not timely because the attorney waited a month to request a copy of the order.  Therefore, the motion to reconsider did not toll the time for filing a notice of appeal under Rule 203(b)(1).

Based on that case, the Court of Appeal states in the Wells Fargo order that “the parties are on notice that a fax is written notice for initiating the time for service a notice of appeal under Rule 203(b)(1).”  The Court applied Canal to support its holding that the appellants should have served the notice of appeal within thirty days of receiving the emailed copy of the order.  Given that the timely filing of the notice of appeal is jurisdictional, the Court of Appeals dismissed the case.

This Order will likely have a significant impact on appellate practice.  It may even affect appeals currently pending.  The Order may prompt parties to simply email a copy of a filed order rather than mailing a copy to the opposing party.  The Order may also impact an attorney on vacation, sick leave, or otherwise without access to email.  In that situation, an attorney may need to check email while away from the office or delegate that task to someone else.  Regardless, an attorney should calendar the date he or she receives a copy of the filed order in any medium as the trigger for the thirty-day time period in Rule 203(b)(1).