Court of Appeals says email notice is notice

In an order designed to terrify civil, domestic and appellate lawyers, the South Carolina Court of Appeals, in an August 26, 2015 order in the case of Wells Fargo Bank, N.A. v. Fallon Properties, SC, LLC, 413 S.C. 642, 776 S.E.2d 575 (Ct. App. 2015), dismissed an appeal as untimely because it determined that the notice requirement to set the deadline to appeal began when the appellant received email notice that the order had been filed. Evidently, email notice is now sufficient notice for the deadline requirement of Rule 203(b)(1), SCACR–the rule which governs appeals from circuit court. Since the provision regarding appeals from family court, Rule 203(b)(3), SCACR, is identical (except for juvenile proceedings), email notice is now apparently sufficient for family court appeal deadlines too.

Under 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.” The issue in Wells Fargo Bank was whether email receipt of the filed order (or even notice that the order has been filed) was sufficient to trigger this deadline. Appellant received email notice of the filed order on December 15, 2014 and mailed notice of the filed order on December 18, 2014. It served the notice of appeal on January 15, 2015, twenty-eight days after receipt of the mailed notice but thirty-one days after receipt of the emailed notice. The Court of Appeals’ order dismisses the appeal as untimely.

While I have cautiously taken the position that email notice starts the deadline for the purpose of my filing a notice of appeal, my personal belief is that email notice is probably not sufficient under the Rules of Civil Procedure. Rule 5(b)(1), SCRCP lists numerous methods that orders may be served. Facsimile and email are not among those listed methods. The problem is particularly acute in Charleston County, where the Courtplus system sends email notifications to attorneys who subscribe to it when orders have been filed. An email like the following is now sufficient notice to trigger the deadline:

Download (PDF, 96KB)

This is true even though it might be days before I receive the actual order unless I take affirmative steps to go online and download the order (which is usually not available until the next business days and may never be available online if the file is sealed, as it is in adoption actions).  Note too that this email was received after 5:00 p.m. on a Friday, meaning it will be three or more days before I can even retrieve it online.

Because the Court of Appeals’ interpretation of Rule 203(b)(1), SCACR may conflict with the service rules of Rule 5(b)(1), SCRCP, it is possible the Supreme Court may reverse this determination. Until it does, attorneys and litigants should treat email notice as triggering deadlines and should obtain orders promptly if they receive Courtplus notifications.

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