Wells Fargo Bank, N.A. v. Fallon Props. S.C., LLC ( 2018 )

THE STATE OF SOUTH CAROLINA
In The Supreme Court
Wells Fargo Bank, N.A., successor-by-merger to
Wachovia Bank, N.A., Respondent,
v.
Fallon Properties South Carolina, LLC, Timothy R.
Fallon, Susan C. Fallon, Fallon Luminous Products
Corporation, GE Business Capital Corporation, formerly
Transamerica Business Capital Corporation, and FSD
Repurchase Solutions, LLC, and South Carolina
Department of Revenue, Defendants,
Of Whom Fallon Properties South Carolina, LLC,
Timothy R. Fallon and Susan C. Fallon are the
Petitioners.
Appellate Case No. 2015-002018
ON WRIT OF CERTIORARI TO THE COURT OF APPEALS
Appeal From Spartanburg County
Gordon G. Cooper, Master-in-Equity
Opinion No. 27773
Heard April 12, 2017 – Filed February 28, 2018
AFFIRMED AS MODIFIED
Alexander Hray, Jr., of Spartanburg, for Petitioners.
Robert L. Widener, of Columbia and Weyman C. Carter,
of Greenville, both of McNair Law Firm, PA, for
Respondent.
CHIEF JUSTICE BEATTY: We granted a writ of certiorari to review the
Court of Appeals' decision in this case, which raises the novel issue of whether an
email that provides written notice of entry of an order or judgment triggers the time
for serving a notice of appeal for purposes of Rule 203(b)(1) of the South Carolina
Appellate Court Rules ("SCACR"). As will be discussed, we hold that such an
email, if sent from the court, an attorney of record, or a party, triggers the time to
serve a notice of appeal. Because the email giving rise to this appeal was from a
master-in-equity's administrative assistant and provided written notice of the entry
of an order, we find the email triggered the time to appeal. Since the notice of appeal
was not served until thirty-one days after the parties received the email, we agree
with the Court of Appeals that the service of the notice of appeal was untimely.
However, given the novelty of the issue, the frequency in which the issue is likely
to arise, and the inconsistent case law interpreting Rule 203, SCACR, fairness
dictates that our ruling on this issue be applied prospectively. Accordingly, we
affirm as modified and remand to the Court of Appeals to allow the appeal to proceed
on its merits.
I. Factual and Procedural History
On December 15, 2014, the master filed an order denying Fallon Properties
South Carolina, LLC, Timothy R. Fallon, and Susan C. Fallon's ("Petitioners")
petition for an order of appraisal. That same day, the master's administrative
assistant emailed a signed and stamped copy of the order and Form 4 to both
Petitioners and Wells Fargo Bank ("Respondent"). The email provided: "Please see
attached copy of signed and clocked Form 4 and Order. I have also mailed a copy
to all listed on the Form 4." Three days later, Petitioners received a copy of both
documents in the mail.
Believing the time to appeal commenced on the day they received the copy of
the order and Form 4 in the mail, Petitioners served their notice of appeal on January
15, 2015, which was thirty-one days after they received the email and twenty-eight
days after they received the documents in the mail. Respondent subsequently filed
a motion to dismiss, arguing the email triggered the time to appeal; therefore,
Petitioners' notice of appeal was untimely served. The Court of Appeals agreed with
Respondent and dismissed the appeal.
II. Discussion
Petitioners argue the Court of Appeals erred in determining the email
triggered the time to serve their notice of appeal. We disagree.
Rule 203(b)(1), SCACR sets forth the procedures for appealing a decision of
the court of common pleas and, by way of Rule 203(b)(4), SCACR,1 a decision of a
master-in-equity. This rule provides, in pertinent part: "A notice of appeal shall be
served on all respondents within thirty (30) days after receipt of written notice of
entry of the order or judgment." Rule 203(b)(1), SCACR (emphasis added). Thus,
the time to serve the notice of appeal from a master's decision begins on the day the
party receives written notice that an order or judgment has been entered.
To be clear, Petitioners do not dispute that the email constituted written notice
of entry of the order or judgment. Rather, Petitioners take issue with the manner in
which they received written notice. Petitioners contend the time to serve a notice of
appeal is only triggered at the time the parties receive written notice of the entry of
an order or judgment by mail or hand delivery. As a result, Petitioners posit the time
to serve their notice of appeal did not commence until the day they received the copy
of the order and Form 4 in the mail.
In support of their position, Petitioners erroneously rely on Rule 5 of the South
Carolina Rules of Civil Procedure ("SCRCP"), which requires, inter alia, all written
notices be served by mail or hand delivery. However, because we are concerned
with an appellate procedure, that is, the service of a notice of appeal, the South
Carolina Appellate Court Rules control; therefore, the South Carolina Rules of Civil
Procedure are inapplicable to the outcome of this case. See Rule 101(a), SCACR
(mandating that the appellate court rules govern the practice and procedure in
appeals before the Supreme Court or Court of Appeals); Rule 73, SCRCP (providing
the procedure on appeal to the South Carolina Supreme Court or the South Carolina
Court of Appeals must be in accordance with the appellate court rules); Rule 81,
SCRCP (limiting the application of the rules of civil procedure to trial courts of civil
1
See Rule 203(b)(4), SCACR ("The notice of appeal from an order or judgment
issued by a master or special referee shall be served in the same manner as provided
by Rule 203(b)(1).").
jurisdiction as well as to magistrate's courts, probate courts, and family courts to the
extent they are not inconsistent with the statutes and rules governing those courts).
Accordingly, we will proceed to address the issue before us under the relevant
appellate court rules.
Rule 203(b)(1), SCACR requires the notice of appeal be served within thirty
days after receiving written notice of entry of the order or judgment. When
determining whether the service of the notice of appeal is timely, which is the issue
before us in this case, we look to the date the parties received written notice of entry
of an order of judgment. Unlike the notice of appeal, there is no requirement that
the written notice of entry of an order or judgment be served upon the parties. All
that is required to trigger the time to appeal is that the parties receive such notice.
Moreover, there is nothing in our appellate court rules suggesting that the manner in
which a party may receive notice is limited to the methods used to effectuate service,
that is, by mail or hand delivery. Thus, in determining the email did trigger the time
to appeal, we find the Court of Appeals properly relied on Canal Insurance Company
v. Caldwell, 338 S.C. 1, 524 S.E.2d 416 (Ct. App. 1999), wherein the court held that
a fax from opposing counsel explaining judgment had been entered and providing
the judgment roll number constituted receipt of written notice of entry of the
judgment for purposes of Rule 203(b)(1), SCACR and triggered the time to appeal.
In Canal, the trial court granted summary judgment in favor of the respondent
on March 17, 1997. Canal, 338 S.C. at 4, 524 S.E.2d at 417. Two days later, a form
judgment was entered, indicating copies were mailed to all parties. Id. On June 24,
1997, appellants' counsel wrote opposing counsel inquiring about the status of the
final order, which he allegedly did not receive. Id. On July 8, 1997, respondent's
counsel faxed and mailed appellants' counsel informing him judgment was entered
on March 19, 1997 and providing him with the judgment roll number. Id. One
month later, appellants' counsel wrote the clerk's office requesting a copy of the
judgment, which he received on August 12, 1997. Id. at 4-5, 524 S.E.2d at 417. Ten
days after receiving the copy of the judgment, appellants' counsel filed a motion to
reconsider. Id. at 5, 524 S.E.2d at 417. After determining the motion to reconsider
was timely, the trial court withdrew its original order and substituted a revised order
from which appellants appealed to the Court of Appeals. Id. at 5, 524 S.E.2d at 417-
18. Respondent contended the Court of Appeals lacked subject matter jurisdiction
to hear the appeal because appellants' service of the notice of appeal was untimely.
In concluding it did not have subject matter jurisdiction over the case, the
Court of Appeals determined: "[e]ven if [appellants'] counsel did not in fact receive
the trial court's original form order, there is no question that he received written
notice of entry of the judgment . . . on July 8, 1997," which was the day opposing
counsel sent the fax. Id. at 5, 524 S.E.2d at 418 (emphasis added). According to the
court, because counsel waited a month to request a copy of the order, his motion to
reconsider was not timely and, thus, did not stay the time for appeal. Id. at 6, 524
S.E.2d at 418. As a result, the court found counsel should have served the notice of
appeal on or before August 7, 1997. Id.
Similarly, we hold an email providing written notice of entry of an order or
judgment for purposes of Rule 203(b)(1), SCACR triggers the time to appeal as long
as the email is received from the court, an attorney of record, or a party. Here, it is
undisputed the email Petitioners received came from the master's administrative
assistant and provided written notice of the entry of the order. Consequently, we
find Petitioners' receipt of the email triggered the time to appeal. Although
Petitioners also received written notice by mail three days after receiving the email,
the time to serve the notice of appeal commenced at the time the parties first received
written notice of entry of the order. Accordingly, we find the Court of Appeals
correctly determined the time to appeal was triggered on the day the parties received
the email; therefore, the notice of appeal served thirty-one days thereafter was
untimely.
Nevertheless, fairness dictates that our holding on this issue be applied
prospectively given the novelty of the issue, the frequency in which the issue is likely
to arise, and the inconsistency in the case law interpreting Rule 203, SCACR, which
creates confusion as to whether receipt of electronic correspondence is sufficient to
trigger the time to appeal. Specifically, we take issue with the Court of Appeals'
decision in White v. South Carolina Department of Health and Environmental
Control, 392 S.C. 247, 708 S.E.2d 812 (Ct. App. 2011), wherein the court
determined an email received from opposing counsel containing a signed and filed
copy of an order did not trigger the time to appeal under Rule 203(b)(6), SCACR.
By way of background, unlike this case and Canal, White concerned, inter
alia, the timeliness of a notice of appeal from a decision of the Administrative Law
Court ("ALC"). Because the appeal arose out of the ALC, Rule 203(b)(6), SCACR
controlled, not Rule 203(b)(1), SCACR. Rule 203(b)(6) provides: "When a statute
allows a decision of the administrative law court . . . to be appealed directly to the
Supreme Court or the Court of Appeals, the notice of appeal shall be served on . . .
the administrative law court . . . and all parties of record within thirty (30) days after
receipt of the decision." Rule 203(b)(6), SCACR (emphasis added). Therefore,
when determining whether the service of a notice of appeal from the ALC is timely,
the court is concerned with the date the party actually receives the decision, not the
date the party receives written notice that an order or judgment has been entered.
The ALC order that gave rise to the appeal in White was entered on January
28, 2009. White, 392 S.C. at 252, 708 S.E.2d at 814. On February 9, 2009,
appellant's counsel received an email containing a signed and filed copy of the order
from the counsel of appellant's co-defendant. Id. at 252, 708 S.E.2d at 814-15.
Appellant subsequently served its notice of appeal on March 12, 2009. Id. at 252,
708 S.E.2d at 814. In arguing its notice of appeal was timely served, appellant
contended the "receipt of the decision" requirement in Rule 203(b)(6), SCACR,
necessitates service by mail or hand delivery; therefore, the time to file and serve the
notice of appeal did not commence on the day it received the email containing the
ALC's order. Id. at 253, 708 S.E.2d at 815.
The Court of Appeals agreed, finding "receipt of the decision" requires service
and "there is nothing in the current applicable rules that authorizes service of a
decision of the ALC by electronic mail." White, 392 S.C. at 253-54, 708 S.E.2d at
815. The court distinguished White from Canal, stating "Receipt of notice was the
critical event in . . . Canal, whereas receipt of the order itself is the critical event
under Rule 203(b)(6), SCACR, in the present case. Therefore, . . . Canal [is] not
instructive in analyzing the 'receipt' of an ALJ's decision within the meaning of Rule
203(b)(6), SCACR."2 Id. at 254-55, 708 S.E.2d at 816.
The Court of Appeals was correct in acknowledging that Rule 203(b)(1) and
Rule 203(b)(6) necessitate the receipt of different things in order to trigger the time
to appeal. As discussed, Rule 203(b)(1) only requires the party receive written notice
that an order or judgment has been entered, whereas Rule 203(b)(6) requires the
party receive a copy of the decision in order to trigger the time to appeal. However,
simply because the rules require the receipt of different things does not necessarily
mean the manner in which a party receives those things must differ in order to trigger
the time to appeal.3
2
In this case, the Court of Appeals determined White did not apply because White
concerned a different appellate court rule than the one at issue in this case.
3
Nevertheless, we recognize that there may be some forms of communication used
to receive written notice for purposes of Rule 203(b)(1) that could not practically be
In effect, the Court of Appeals interpreted the term "receipt" under Rule
203(b)(1) broadly, permitting the receipt of written notice of entry of an order or
judgment by various methods, including fax, email, mail, or hand delivery.
However, the court interpreted the term "receipt" under Rule 203(b)(6) narrowly,
permitting the receipt of a decision only in a manner used to effectuate service, that
is, by mail or hand delivery. In addition to being inconsistent, the court's
interpretation of the term "receipt" in White is unsupported by the controlling
appellate court rules. As discussed, "receipt" under Rule 203, SCACR is not
synonymous with the requirements of service. Therefore, we overrule the court's
decision in White to the extent it holds otherwise and interprets "receipt of the
decision" to require receipt of the decision by mail or hand delivery in order to
trigger the time to appeal under Rule 203(b)(6), SCACR.
III. Conclusion
In conclusion, we hold an email sent from the court, an attorney of record, or
a party that provides written notice of entry of an order or judgment triggers the time
for serving a notice of appeal for purposes of Rule 203(b)(1), SCACR. For the
reasons stated, our holding shall be applied prospectively and Petitioners' appeal is
remanded to the Court of Appeals to proceed on its merits.4 Accordingly, the Court
of Appeals' decision dismissing the appeal as untimely is
AFFIRMED AS MODIFIED.
KITTREDGE, J., and Acting Justices James E. Moore and Howard P.
King, concur. Acting Justice William P. Keesley, concurring in part and
dissenting in part in a separate opinion.
used to receive a decision for purposes of Rule 203(b)(6) due to technological
limitations.
4
It appears that the dissent fails to consider, or give much weight to, the fact
electronic written notification was not contemplated by Rule 203(b), SCACR when
it was promulgated by this Court in 1990. Email did not come into widespread use
until the mid-nineties. The Court of Appeals' attempt to overlay Rule 203, SCACR
to modern practice has resulted in justifiable confusion to the Bench and Bar. Rule
263(b), SCACR notwithstanding, the Supreme Court is the final arbiter of South
Carolina law. The Court's jurisdiction and authority emanates from the South
Carolina Constitution not from rules promulgated by the Court.
ACTING JUSTICE KEESLEY: I respectfully concur in part and dissent
in part. I agree with much of the majority's well-reasoned decision. In particular, I
believe the majority correctly found the thirty-day period in which to file and serve
the notice of appeal began upon the receipt of the emailed copy of the ruling from
the master's administrative assistant. See Rule 203(b)(1), SCACR ("A notice of
appeal shall be served on all respondents within thirty (30) days after receipt of
written notice of entry of the order or judgment." (emphasis added)).5 Likewise, I
agree with the majority that Rule 5 of the South Carolina Rules of Civil Procedure
is not controlling in an appellate proceeding. See Rule 101(a), SCACR; Rule 73,
SCRCP; Rule 81, SCRCP.
However, I part ways from the majority's argument, compelling and
compassionate though it is, that we should only apply this "new" rule
prospectively. South Carolina follows a bright-line rule: the timely service of the
notice of appeal is a jurisdictional requirement, without which appellate courts lack
the authority to hear and decide cases. See, e.g., Elam v. S.C. Dep't of Transp., 361
S.C. 9, 14–15, 602 S.E.2d 772, 775 (2004). As this Court has previously
explained:
The notice of appeal in a case appealed from the Court of Common
Pleas must be served on all respondents within thirty days after receipt
of written notice of entry of the order or judgment. Rule 203(b)(1),
SCACR. The requirement of service of the notice of appeal is
jurisdictional, i.e., if a party misses the deadline, the appellate court
lacks jurisdiction to consider the appeal and has no authority or
discretion to "rescue" the delinquent party by extending or ignoring the
deadline for service of the notice. Mears v. Mears, 287 S.C. 168, 337
S.E.2d 206 (1985).
Id. (second emphasis added); see also, e.g., Rule 205, SCACR ("Upon the service
of the notice of appeal, the appellate court shall have exclusive jurisdiction over
the appeal." (emphasis added)); Rule 263(b), SCACR ("The time prescribed by
the[ South Carolina Appellate Court] Rules for performing any act except the time
for serving the notice of appeal under Rules 203 and 243 may be extended or
shortened by the appellate court, or by any judge or justice thereof." (emphasis
added)); Hill v. S.C. Dep't of Health & Envtl. Control, 389 S.C. 1, 21, 698 S.E.2d
612, 623 (2010) ("The service of a notice of appeal is a jurisdictional requirement,
5
Petitioners concede electronic communications such as email satisfy the written-
notice requirement of Rule 203(b)(1).
and the time for service may not be extended by this Court." (emphasis added));
Sadisco of Greenville, Inc. v. Greenville Cty. Bd. of Zoning Appeals, 340 S.C. 57,
59, 530 S.E.2d 383, 384 (2000) (per curiam) ("This Court has consistently stated
that service of the Notice of Appeal is a jurisdictional requirement, and this Court
has no authority to extend or expand the time in which the Notice of Appeal must
be served." (emphasis added)); Jean Hoefer Toal et al., Appellate Practice in South
Carolina 122 (3d ed. 2016) ("If a party fails to [timely serve the notice of appeal],
the appellate court has no authority or discretion to rescue the delinquent party by
extending or ignoring the deadline because the appellate court lacks jurisdiction
over the matter." (emphasis added) (collecting cases)). In other words, appellate
courts do not obtain appellate jurisdiction over the matter until after timely service
of the notice of appeal. See Rule 205, SCACR. Accordingly, appellate courts lack
jurisdiction in cases where the notice of appeal was not timely served, and even
this Court cannot rescue an appellant who has not met the service deadline,
including in cases such as this one where missing the deadline is understandable.
Indeed, other than making an appeal to fundamental fairness, the majority makes
no attempt to cite any authority for its ability to do so.
I concede our current precedent creates some confusion as to what type of
written notice triggers the thirty-day window for filing a notice of appeal under
Rule 203(b). As the majority correctly notes, current case law permits a facsimile
from opposing counsel to trigger the thirty-day window under Rule 203(b)(1),
SCACR,6 but prohibits an email from counsel from triggering the window under
Rule 203(b)(6), SCACR.7
Nonetheless, even were I to agree with the majority that the court of appeals
erred in portions of its ruling in White related to triggering the window in appeals
from administrative law courts, I respectfully fail to see how that would give rise to
an exception allowing this appeal to proceed. I simply cannot reconcile the
majority's decision to apply its ruling prospectively with the extensive body of law
holding that appellate courts are not permitted to rescue a litigant from an untimely
notice of appeal. Accordingly, I would affirm the dismissal by the court of
appeals.
6
Canal Ins. Co. v. Caldwell, 338 S.C. 1, 524 S.E.2d 416 (Ct. App. 1999).
7
White v. S.C. Dep't of Health & Envtl. Control, 392 S.C. 247, 708 S.E.2d 812 (Ct.
App. 2011).