Overland, Inc. v. Nance , 815 S.E.2d 431 ( 2018 )

THE STATE OF SOUTH CAROLINA
In The Supreme Court
Overland, Inc., d/b/a Land Rover Greenville, Petitioner,
v.
Lara Marie Nance, Charlie Andrew Nance, Roger Fields,
Synovus Financial Corporation d/b/a NBSC, Branch
Banking and Trust Company, Bank of America
Corporation, and SunTrust Banks, Inc., Defendants,
of which Bank of America Corporation and SunTrust
Banks, Inc. are the Respondents.
Appellate Case No. 2016-002151
ON WRIT OF CERTIORARI TO THE COURT OF APPEALS
Appeal from Greenville County
Letitia H. Verdin, Circuit Court Judge
Opinion No. 27800
Heard May 2, 2018 – Filed May 23, 2018
AFFIRMED
Carl F. Muller, of Carl F. Muller, Attorney at Law, P.A.,
and T. Hunt Reid, of Howard Howard Francis & Reid,
both of Greenville, for Petitioner.
James W. Sheedy and Susan E. Driscoll, both of Driscoll
Sheedy, P.A., of Charlotte; Zachary Lee Weaver and W.
Howard Boyd Jr., both of Gallivan, White & Boyd, PA, of
Greenville, for Respondents.
JUSTICE FEW: Overland, Inc., filed this lawsuit against Lara Marie Nance, Bank
of America, SunTrust Banks, and other defendants seeking damages arising out of
Nance's embezzlement of $1,282,000 from the Land Rover dealership Overland
operated in the city of Greenville. Nance pled guilty in federal court to wire fraud
for stealing the money and was sentenced to 46 months in prison. Overland's theory
of liability against Bank of America and SunTrust was that allowing Nance to
deposit forged checks into fraudulent accounts she created breached duties the banks
owed to Overland. The banks made motions for summary judgment on the ground
they owed no duty to Overland, who was not a customer of either bank. The circuit
court granted the motions for summary judgment, stating, "Overland [was] unable
to demonstrate that [the banks] owed it any duty . . . ." The circuit court denied
Overland's Rule 59(e) motion. Overland filed a notice of appeal, which the court of
appeals dismissed in an unpublished opinion. Overland, Inc. v. Nance, Op. No.
2016-UP-368 (S.C. Ct. App. filed July 20, 2016). We granted Overland's petition
for a writ of certiorari.
This Court may affirm the trial court on any ground appearing in the record. Rule
220(c), SCACR. After carefully reviewing the record and the parties' briefs to this
Court and the court of appeals, we affirm on the merits the circuit court's order
granting summary judgment. See Rule 220(b)(1), SCACR; Oblachinski v. Reynolds,
391 S.C. 557, 560, 706 S.E.2d 844, 845 (2011) ("A motion for summary judgment
on the basis of the absence of a duty is a question of law for the court to determine.");
S.C. Code Ann. § 36-3-103(a)(9) (Supp. 2017) ("In the case of a bank that takes an
instrument for processing for collection or payment by automated means, reasonable
commercial standards do not require the bank to examine the instrument if the failure
to examine does not violate the bank's prescribed procedures and the bank's
procedures do not vary unreasonably from general banking usage not disapproved
by this chapter or Chapter 4."); Kerr v. Branch Banking & Tr. Co., 408 S.C. 328,
333, 759 S.E.2d 724, 727 (2014) (holding a bank's limited duty of care to customers
does not extend to non-customers where the non-customer's claims are premised on
disputed contractual obligations between a bank and its customer, but the non-
customer is not an intended third-party beneficiary to that contract).
We clarify, however, a point of confusion that appears to have existed between the
parties and the circuit court.1 Rule 6(b) of the South Carolina Rules of Civil
Procedure gives trial courts limited authority to extend deadlines set forth in the
Rules. However, Rule (6)(b) explicitly excludes Rule 59 and certain other rules from
that authority. Rule 6(b) states, "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." Rule 59(e) does not have any "conditions stated" which
would allow such an extension. Rather, Rule 59(e) states, "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."
We have previously held that the ten-day limit for serving a Rule 59(e) motion is an
absolute deadline. In Leviner v. Sonoco Prods. Co., 339 S.C. 492, 530 S.E.2d 127
(2000), the circuit court entered a dispositive order on January 10, 1997. 339 S.C.
at 493, 530 S.E.2d at 127. "Neither party filed a Rule 59(e), SCRCP, motion within
the ten day period allowed by that rule." Id. Nevertheless, on February 10, the
circuit court issued another dispositive order completely reversing itself from the
January 10 order. We held,
the trial judge's . . . order filed February 10, 1997, more
than thirty days later, was patently untimely. Under Rule
59(e), SCRCP, the trial judge has only ten days from entry
of judgment to alter or amend an earlier order on his own
initiative . . . . When no timely Rule 59 motion was made
nor timely sua sponte order filed under Rule 59(e), the
January . . . order "matured" into a final judgment. The
order filed on February 10 was a nullity because the trial
judge no longer had jurisdiction over the matter.
339 S.C. at 494, 530 S.E.2d at 128; see also Russell v. Wachovia Bank, N.A., 370
S.C. 5, 20, 633 S.E.2d 722, 730 (2006) ("Generally, a trial judge loses jurisdiction
over a case when the time to file post-trial motions has elapsed."); Doran v. Doran,
288 S.C. 477, 343 S.E.2d 618 (1986) (on appeal from an order entered just before
the effective date of the Rules of Civil Procedure, holding the trial court lost the
1
Although we affirm the circuit court order pursuant to Rule 220(b)(1), the
discussion following this footnote is not in the nature of a memorandum opinion
pursuant to Rule 220(b)(1), and is intended to be precedential in all future civil
litigation in this State.
power to modify the final order after end of the term of court, and noted that under
Rule 59(e) the trial court would have the power to alter or amend such an order for
a ten-day period after entry of judgment).
In light of these authorities, we repeat that the ten-day deadline in Rule 59(e) is an
absolute deadline. A trial court does not have the power to alter or amend a final
order if more than ten days passes and no Rule 59(e) motion has been served,
Leviner, 339 S.C. at 494, 530 S.E.2d at 128, nor does a trial court have any power to
grant the moving party an extension of time in which to file a Rule 59(e) motion, see
Alston v. MCI Commc'ns Corp., 84 F.3d 705, 706 (4th Cir. 1996) ("It is clear . . . that
the district court was without power to enlarge the time period for filing a Rule 59(e)
motion."). The failure to serve a Rule 59(e) motion within ten days of receipt of
notice of entry of the order converts the order into a final judgment, and the
aggrieved party's only recourse is to file a notice of intent to appeal.
The order of the circuit court granting summary judgment to the banks is
AFFIRMED on the merits.
BEATTY, C.J., KITTREDGE, HEARN and JAMES, JJ., concur.