CRM of the Carolinas, LLC v. Trevor W. Steel ( 2023 )

THIS OPINION HAS NO PRECEDENTIAL VALUE. IT SHOULD NOT BE
CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING
EXCEPT AS PROVIDED BY RULE 268(d)(2), SCACR.
THE STATE OF SOUTH CAROLINA
In The Court of Appeals
CRM of the Carolinas, LLC, Appellant,
v.
Trevor W. Steel, Respondent.
Appellate Case No. 2020-000597
Appeal From Georgetown County
Joe M. Crosby, Master-in-Equity
Unpublished Opinion No. 2023-UP-178
Heard February 16, 2023 – Filed May 11, 2023
DISMISSED
Joseph Clay Hopkins, of Charleston, for Appellant.
Roger Philip Giardino, Jr., of Giardino Law Firm, LLC,
of Pawleys Island, for Respondent.
PER CURIAM: In this breach of contract action, Appellant CRM of the Carolinas,
LLC (Employer) appeals an order of the master-in-equity denying Employer's
request for damages and attorney's fees. We dismiss the appeal for lack of appellate
jurisdiction.
Respondent Trevor W. Steel (Employee) argues Employer failed to timely
serve the notice of appeal on Employee and, thus, deprived this court of appellate
jurisdiction. 1 We agree.
"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. "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." Elam v. S.C. Dep't of Transp.,
361 S.C. 9, 14–15, 602 S.E.2d 772, 775 (2004).
Here, the master electronically filed his order with the Georgetown County
circuit court on March 12, 2020. Based on this date, Employer concedes the deadline
for serving the notice of appeal on Employee was Monday, April 13, 2020.2 On
April 3, 2020, Employer electronically filed the notice of appeal with the
Georgetown County circuit court and received an automated reply from
efiledonotreply@sccourts.org acknowledging the filing and stating that two named
attorneys representing Employee had been "served electronically." 3 Three days
1
Employee did not file a separate motion to dismiss before filing his appellate brief.
2
The thirtieth day fell on the preceding Saturday, April 11, 2020. Rule 263(a),
SCACR states:
In computing any period of time prescribed or allowed by
these Rules, by order of court, or by any applicable statute,
the day of the act, event, or default after which the
designated period of time begins to run is not to be
included. The last day of the period so computed is to be
included, unless it is a Saturday, Sunday or a state or
federal holiday, in which event the period runs until the
end of the next day which is neither a Saturday, Sunday[,]
nor such holiday.
Therefore, the deadline for serving the notice of appeal fell on Monday, April 13,
2020.
3
Various supreme court orders provide for E-Filing and electronic service in the
court of common pleas for several counties for certain documents that must be filed
later, an assistant to one of those attorneys sent an email to a paralegal for Employer's
counsel requesting a copy of the notice of appeal. On that same day, the paralegal
for Employer's counsel sent a reply email, attaching a copy of the notice of appeal
in PDF format.
Additionally, the paralegal executed a certificate of service stating that the
paralegal had "caused a . . . copy of the notice of appeal . . . to be served on all
counsel of record via regular U.S. Mail, postage pre-paid, addressed" to Employee's
counsel. (emphasis removed). However, the number of the post office box listed on
the certificate, 4416, was incorrect because the number for Employee's counsel is
actually 4413. Therefore, this particular copy of the notice of appeal was returned
or served under the South Carolina Rules of Civil Procedure (SCRCP). See In re
S.C. Elec. Filing Pol'ys & Guidelines (SCEF), Section 4(e)(2), (3), 415 S.C. 1, 7–8,
780 S.E.2d 600, 603 (2015); see also Re Expansion of Elec. Filing Pilot Program-
Ct. of Common Pleas, 419 S.C. 262, 262, 797 S.E.2d 720, 721 (2017). On the other
hand, the South Carolina Appellate Court Rules govern the filing and service of a
notice of appeal, and the sole method of electronic service under these rules is by
email. See Wells Fargo Bank, N.A. v. Fallon Properties S.C., LLC, 422 S.C. 211,
215, 810 S.E.2d 856, 858 (2018) (stating that the South Carolina Appellate Rules,
rather than the South Carolina Rules of Civil Procedure, govern issues concerning
appellate procedure); Section (g)(3), RE: Operation of the Appellate Courts During
the Coronavirus Emergency (March 20, 2020) ("During th[e Coronavirus]
emergency, this Court authorizes a lawyer admitted to practice law in this state to
serve a document on another lawyer admitted to practice law in this state using the
lawyer's primary e-mail address listed in the Attorney Information System (AIS).").
When the Georgetown Clerk of Court accepted Employer's filing of the notice
of appeal, the Clerk's statement that opposing counsel had been served electronically
was not tailored to the specific document filed (a notice of appeal to this court).
Rather, the statement was automatically generated to indicate the filing and service
protocols under the SCEF. See § 4(e)(2) & (3), SCEF (providing that when the
parties are proceeding in the E-Filing system and a document must be filed or served
under the SCRCP, the e-filing of the document, with the transmission of a notice of
electronic filing (NEF), constitutes proper service as to all other parties who are E-
Filers in that case). Because service of a notice of appeal is governed by our
appellate court rules, service on opposing counsel pursuant to the SCEF protocols is
not effective to confer appellate jurisdiction on this court.
to Employer's counsel on April 15, 2020, and counsel mailed another copy to
opposing counsel on the following day, which fell after the April 13 deadline.
Employee's counsel states that he did not receive the hard copy of the notice
of appeal until April 20, 2020. We note, however, that he has not denied receiving
an electronic notice from the Georgetown County Clerk of Court on April 3, 2020,
which was presumably delivered to his AIS email address and indicated that
Employer had filed a notice of appeal in the case. 4 Likewise, Employee's counsel
has not denied receiving an electronic copy of the notice of appeal on April 6, 2020,
via the e-mail address of his assistant, who used this particular email address to
request the copy.
Employee's counsel correctly maintains that under our appellate court rules,
electronic service of a copy of the notice of appeal is effective only when it is sent
to opposing counsel's primary e-mail address listed in AIS. See Section (g)(3), RE:
Operation of the Appellate Courts During the Coronavirus Emergency (March 20,
2020) ("During th[e Coronavirus] emergency, this Court authorizes a lawyer
admitted to practice law in this state to serve a document on another lawyer admitted
to practice law in this state using the lawyer's primary e-mail address listed in the
[AIS]."). We acknowledge that the paralegal of Employer's counsel sent the notice
of appeal to the email address of the assistant for Employee's counsel, and as an
officer of the court, Employee's counsel has represented that his assistant's e-mail
address is not the address he designated to be listed in AIS.
Based on the foregoing, Employer effected neither timely service by regular
mail nor electronic service in the manner required by the rules binding this court.
Therefore, we do not have appellate jurisdiction over the present case and must
dismiss it. See Elam, 361 S.C. at 14–15, 602 S.E.2d at 775 ("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.").
4
See § 3(a)(2), SCEF (providing that an attorney's "email address for E–Service shall
be the same email address(es) the attorney provided in AIS . . . ."); § 4(e)(2) & (3),
SCEF (providing that when the parties are proceeding in the E-Filing system and a
document must be filed or served under the SCRCP, the e-filing of the document,
with the transmission of a notice of electronic filing (NEF), constitutes proper
service as to all other parties who are E-Filers in that case).
CONCLUSION
Accordingly, we dismiss Employer's appeal for lack of appellate jurisdiction.
DISMISSED.
WILLIAMS, C.J., and GEATHERS and VERDIN, JJ., concur.