When “five days” is seven days (and can be ten days)

South Carolina Family Court Rule 21(a) allows Motions for Temporary Relief to “be served not later than five days before the time specified for the hearing….”  Many litigants and some family court attorneys read “five days” and naturally think that means five days.  Have a hearing on June 6, 2011?  Service on June 1st would appear to be fine.

Not so fast.  “[F]ive days” in the South Carolina Rules of Procedure doesn’t actually mean five days.  Basically it means ‘five business days.” Technically, it means one needs to refer to South Carolina Rule of Civil Procedure 6(a):

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. When the period of time prescribed or allowed is less than seven days, intermediate Saturdays, Sundays and holidays shall be excluded in the computation. A half holiday shall be considered as other days and not as a holiday.

This rule of procedure is made applicable to the family court under Family Court Rule 2(a).  When there is a time period less than seven days, intermediate Saturdays, Sundays and holidays (Just Federal holidays?  Federal and State holidays?) don’t count.  Under SCRFC 21(a), “five days” always means at least seven days.

And the hearing on June 6, 2011?  It would need to be served by May 27, 2011–ten days beforehand–as May 28th and June 4th don’t count (they’re Saturdays), May 29th and June 5th don’t count (they’re Sundays) and May 30th doesn’t count (it’s Memorial Day).

 

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  • Pete

    Greg: I love the fact that some attorneys file a Motion that may be 3 to 6 weeks before the hearing, receive the filed copies shortly after filing and wait until 5 or 6 days before the hearing to have the other party served. Trying to gain an advantage for their client only causes them to lose whatever respect the opposing attorney may have for them and certainly get talked about by their colleagues.

    • Pete:

      In that situation, I typically ask the court for additional time to file supplemental affidavits, noting opposing counsel has weeks to prepare and there’s no reason I shouldn’t be given additional time. Unless my client was ducking service, I’ve never had a court deny that request yet.

      Thus, as an added bonus for opposing counsel sandbagging my client, I get a chance to respond to his or her affidavits before the judge rules.

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