Say your client lost on summary judgment and you moved to reconsider. You know that the motion is a long shot, and now want to withdraw it so that you may go ahead and appeal. But you are concerned that withdrawing the motion means that you lose the motion’s normal tolling effect on the time to appeal. Do you?
The South Carolina Court of Appeals grappled with this issue last week. In Drexler v. CitiMortgage, Inc., Op. No. 2013-UP-164 (S.C. Ct.App. filed April 24, 2013), Drexler filed a Rule 59(e) motion for the trial court to reconsider a summary judgment order. As earlier posts explain (here and here), timely Rule 59 motions normally toll the 30-day time to appeal until a ruling on the motion.
Drexler then created a wrinkle. While her motion was pending, she submitted a consent order that the trial court believed withdrew the Rule 59 motion. Drexler then appealed over 30 days after the summary judgment order’s entry but within 30 days of the Judge’s ruling that she withdrew her motion. On appeal, Citimortgage argued in part that a withdrawn Rule 59 motion does not toll the time to appeal. It contended, in essence, that the withdrawn motion never existed.
The Court of Appeals disagreed. It ruled in part that the 30 day period to appeal did not begin to run until Drexler received written notice of the ruling that the Rule 59 motion was withdrawn. The Court of Appeals reasoned that the Rule 59 motion could not be withdrawn until the court ruled it was withdrawn, and that the time to appeal is tolled until then.
Anyone else been caught in the same bind? Drexler suggests a way out — make a formal motion to withdraw the Rule 59 motion, wait until the trial judge rules on the motion to withdraw, and then appeal within 30 days of that ruling.
Do you see another way out? Please leave me a reply or reach me at www.attorneyroberthill.com.