Tag Archives: notice of appeal

SC Workers Comp: What Must the Notice of Appeal Say?

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South Carolina Statehouse

South Carolina Statehouse

Almost all post-2007 notices of appeal in South Carolina workers compensation cases are defective. I know, I know, it is a bold statement. But the workers comp statute says what it says, and it says, “Notice of Appeal must state the grounds of the appeal or the alleged errors of law.” S.C. Code Ann. § 42-17-60. Hardly any do.

To understand why, a brief look at the workers comp statute and the Administrative Procedures Act is helpful.

Brief History of the Workers Comp Statutes on Notices of Appeal

Once upon a time, S.C. Code Ann. § 1-23-380 of the APA required that notices of appeal state the grounds for the appeal and § 42-17-60 of the workers comp statutes did not. In Pringle v. Builder’s Transp., 298 S.C. 494, 381 S.E.2d 731 (1989), the Court held that the APA governed because the content requirement conflicted with the workers comp statute’s silence.

At the time, appeals under both statutes were to the circuit court and not the Court of Appeals.

The Legislature then did something funny. In 1990, it put the content requirement into § 42-17-60, and in 2006 took it out of § 1-23-380. And when it took the requirement out of § 1-23-380, it provided for appeals directly to the Court of Appeals. But it did not then amend the workers comp statute. The workers comp statute continued to require for appeals to the circuit court and that the notice state the grounds.

That next year, the Legislature in 2007 amended the workers comp statute to provide for a direct appeal to the Court of Appeals — without altering the requirement that the notice of appeal state the grounds for appeal.

So where are we now?

Judge Cureton says no need to state grounds

This issue came up in appeal I took a while back. I filed a notice of appeal for a claimant and dutifully stated the grounds in the notice. The employer filed a cross-appeal without stating the grounds. I moved to dismiss, arguing that the notice was defective under § 42-17-60 and that the workers comp statute applied because:

  • The APA and workers comp statutes compliment each other in that the APA deals with the notice of appeal’s service and filing but not its content, and the workers comp statute deals with content but not service and filing.
  • The statutes compliment each other because a party may comply with both (like I did in my notice of appeal).
  • The workers comp statute controlled because it was the Legislature’s last word.

Alas, Judge Cureton disagreed. He ruled that the two statutes conflict and that the Legislature — in 2006 — said that the APA controls when there is a conflict. The order does not address the workers comp statute’s subsequent amendment in 2007.

And the panel ruled against me on the merits, thus allowing it to side-step the issue.

Anyone else face this issue? Please leave a reply or a comment, or reach me at www.attorneyroberthill.com.

 

Update on SC Trigger for Notice of Appeal

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Judges of the SC Court of Appeals

Judges of the SC Court of Appeals

The South Carolina Court of Appeals this month reaffirmed that the time to serve a notice of appeal does not begin to run until written notice of the order’s entry. It does not matter when a judge signs the order, or when a party gets notice that the judge signed the order, because the order is not effective until the clerk of court later enters it. Portee v. Always Precise Protection Agency, Op. No. 2012-UP-649 (S.C.Ct. App. filed Dec. 5, 2012).

The decision is unfortunately unpublished, thus limiting its value as precedent. For a discussion on unpublished orders, please see this post. Earlier posts here and here also further discuss the South Carolina trigger on the time to appeal.

Has anyone else used the gap between an order’s signing and its later entry in taking an appeal? Please leave a reply or reach me at www.attorneyroberthill.com.

 

 

Notice of Appeal: Service v. Filing

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Previous posts have discussed how long you have to file and serve your Notice of Appeal. This post covers the difference:  timely serving the Notice is mandatory; timely filing is not. If the Notice is not timely filed, the appeal shall be dismissed but may be reinstated for good cause shown. Rule 203(d)(3), SCACR. The Court may also grant an extension of time to file the Notice in that the prohibition against granting an extension applies only to serving the Notice and not filing it. Rule 263(b), SCACR.

What is service? Dropping the Notice in the mail. In appeals to the Court of Appeals or the Supreme Court, service of the Notice of Appeal is complete “upon mailing.” Rule 262(b), SCACR. The Notice thus does not have to be timely received but only timely mailed.And dropping the Notice into any designated mail depository box will do if the envelope is correctly addressed and sufficient postage is attached. Green v. Green, 320 S.C. 347, 465 S.E.2d 130 (Ct.App. 1995)(construing similar “mail box” rule under Rule 59(e), SCRCP).

It may, however, need to be placed in an official post office box. In Southbridge v. Jones, 292 S.C. 198, 355 S.E.2d 535 (1987), the Notice of Appeal was timely delivered to a third-party private company for mailing but the mailing was not placed in the United States Mail until after the time expired. The Court dismissed the appeal because the Notice was actually placed in the United States Mail too late.

Rule 262(a), SCACR, likewise has a “mailbox rule” for the date of filing. It provides that the “date of filing” shall be “the date of mailing” or delivery – again assuming that the mailing is properly addressed to the clerk with sufficient postage attached.

Be careful, however, in that this “mailbox rule” for filing applies only to appeals to the Court of Appeals and the Supreme Court. In an appeal from the probate court to the circuit court, the Supreme Court construed “filing” to mean that the Notice must actually be received by the clerk before the time runs. It thus dismissed an appeal where the Notice was timely mailed but there was no record of its timely receipt. In re Cretzmeyer, 365 S.C. 12, 615 S.E.2d 116 (2005).

Anyone out there caught opposing counsel for serving or filing a Notice of Appeal too late? Please let us hear from you. You may reach me through the comment box or at www.attorneyroberthill.com.

Robert

 

 

Notice of Appeal: Tolling for Successive Post-Trial Motions

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The last post discussed how certain post-trial or post-judgment motions toll the 30-day deadline to appeal.This one covers motions that are successive. Say that you make a post-trial motions after the judgment’s entry. The motion is denied and then you make a second post-trial motion. Does the second motion toll the time to appeal?

Whether tolling occurs depends on whether the order denying the first post-trial motion altered the original judgment substantially and whether the second motion simply repeats the first one.Three decisions tell the tale:

If the trial court’s ruling on the first post-trial motion substantially alters the original judgment, a second post-trial motion will toll the time to appeal if the second motion addresses the alteration. Elam, 361 S.C. at 19, 602 S.E.2d at 777.

Tolling also applies if a written motion to alter or amend raises issues that were not raised in an earlier oral JNOV/new trial motion.This is true even if second motion also asks the court to revisit issues raised in the earlier motion. Id. at 26, 602 S.E.2d at 781; Fields, 363 S.C. at 28-29, 609 S.E.2d at 510-511.

In contrast, the second motion will not toll the time to appeal if the denial of the first post-trial motion did not substantially alter the original judgment and the second motion simply repeats the first one.This applies to back-to-back written motions to alter or amend and when a written motion to alter or amend is almost identical to an earlier written JNOV/new trial motion. Elam, 361 S.C. at 20, 602 S.E.2d at 778.

What if you truly cannot tell if tolling applies? A possible way out is to timely file both the second post-trial motion and a protective notice of appeal. If the second motion is improper, you still have your appeal. If not, the appellate court will dismiss the appeal as premature – but without prejudice to take a later appeal. The Supreme Court in Elam cautioned against this when used as a “simple expedient,” but the Notice of Appeal could explain why counsel is legitimately uncertain and not being expedient.

Anyone out there faced successive post-trial motions? Please let us hear from you. You can reach me through the comment box or at www.attorneyroberthill.com.

Robert

 

 

 

 

Notice of Appeal: Tolling for Post-Trial Motions

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The last post discussed how certain form orders toll the the time to appeal. This post and the next one cover how certain post-trial motions also toll the 30-day period.

Rule 203(b)(1), SCRCP, provides, “When a timely motion for judgment n.o.v. (Rule 50, SCRCP), motion to alter or amend the judgment (Rules 52 and 59, SCRCP), or a motion for a new trial (Rule 59, SCRCP) has been made, the time for appeal for all parties shall be stayed and shall run from receipt of written notice of entry of the order granting or denying such motion.”

For this tolling to apply, the motion must be:

  • timely
  • particular
  • non-successive

An untimely motion does not toll the time to take an appeal. And timeliness turns on when one gets written notice of the entry of the judgment or order. In Ackerman v. 3-V Chemical, Inc., 349 S.C. 212, 562 S.E.2d 613 (2002), a party made a Rule 59 motion within 10 days of receiving a copy of the order but over 10 days after receiving written notice of the order’s entry. The Court held that the motion was untimely because the rule was not tolled by the delay in receiving a copy of the order. Id. at 215, 562 S.E.2d at 615.

There may also be legitimate disputes over when written notice of the entry of the order was received. In USAA Property and Casualty Ins. Co. v. Clegg, 377 S.C. 643, 661 S.E.2d 791 (2008), counsel for the insurance company told the trial court that the company’s motion to alter or amend was timely because it did not receive notice of entry of an order until May 16, 2005. The policy holder, however, submitted evidence his counsel on April 19, 2005 telefaxed a letter about the order’s entry to the insurance company’s counsel. The trial court implicitly ruled that the insurance company did not receive notice until the latter date, and the Supreme Court concluded that the record was insufficient to overrule the trial court’s implicit credibility determinations.

Once this written notice is received, counsel need only drop the motion in the mail within 10-days.This “mail box” rule determines when the motion is made. Curtis v. Blake, 381 S.C. 189, 672 S.E.2d 576 (2009).

Besides timeliness, the motion must be particular enough for the court to understand the basis of the motion and deal with it fairly. Absent prejudice to a party, a bare-bones motion will toll the time to appeal if the trial court is able to comprehend it and deal with it fairly. Camp v. Camp, 386 S.C. 571, 689 S.E.2d 634 (2010).

Lastly, the motion must be non-successive to toll the time to appeal. This point requires a post all by itself.

Has anyone out there been able to dismiss an appeal because the post-trial motion was untimely? Please let us hear from you. You can reach me through the comment box or at www.attorneyroberthill.com.

Notice of Appeal: Tolling for Form Orders

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The last two posts covered when the time to file and serve a Notice of Appeal is triggered. This post and the next two cover when the 30-day time to appeal is tolled.

Rule 203(b)(1), SCACR, provides in part, “When a form or other short order or judgment indicates that a more final order or judgment is to follow, a party need not appeal until receipt of written notice of entry of the more complete order or judgment.”

The Supreme Court and Court of Appeals has offered somewhat mixed signals on when this type tolling applies. In Leviner v. Sonoco Products Co., 339 S.C. 492, 493-494, 530 S.E.2d 127, 127-128 (2000), the Court held that a form order did not toll the time to appeal in part because the order did not indicate that a more complete order would follow. But the Court of Appeals in Coker v. Cummings, 381 S.C. 45, 52-53, 671 S.E.2d 383, 387 (Ct.App.2008), suggested that the face of a form order need not say that a full order would follow if the record indicated that the trial judge reserved jurisdiction to enter a more complete order.

Until the Supreme Court clarifies the point, a prudent practice may be to timely appeal the form order and then file and serve a second Notice of Appeal when the more complete order issues.This is recommended in Chief Justice Toal’s treatise. Toal, Vafai, and Muckenfuss, Appellate Practice in South Carolina 121 (2d Ed. 2002).

 

Any questions? Comments? You can reach me through the comment box below or www.attorneyrneyroberthill.com.