Can an Email Trigger the Time-Clock for Notice of Appeal?

Here’s an issue that potentially may affect every SC attorney at some point in the future – the time to serve a notice of appeal begins when you receive an email telling you that an order or judgment has been entered in your case…

This decision could easily slip under the radar for many attorneys – most are used to waiting for the order to arrive in the mail then calendaring their deadline with the clock beginning on that day.

If you are reading this, make sure that every attorney you know hears about this rule.

Wells Fargo v. Fallon, decided by the SC Supreme Court last week, makes it clear that an email is written notice for purposes of filing and serving notices of appeal if it is sent from the court, an attorney of record, or a party to the case. It’s not exactly a rule change, but it’s a clarification of an issue that has confused many attorneys and that others have not even considered.

How does this affect appellate practice in SC’s different types of courts?

Notices of Appeal in Common Pleas (Civil) Court in SC

Fallon was based on an appeal from a decision of the master-in-equity. Although the master-in-equity is not Common Pleas Court, Appellate Court Rule 203(b)(4) says that “an 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).”

Rule 203(b)(1) is the rule for Common Pleas Court and governs any appeals from civil lawsuits or other matters heard in Common Pleas Court, and it says that notice must be served “within thirty (30) days after receipt of written notice of entry of the order or judgment.”

If you are waiting for the judge’s order to arrive in the mail, and you receive an email from opposing counsel letting you know that the order has been filed, that email is written notice that triggers the 30-day deadline for appeal.

Notices of Appeal in Family Court in SC

Rule 203(b)(3) says that “[a] notice of appeal in a domestic relations action shall be served in the same manner provided by Rule 203(b)(1).”

Like appeals from the master-in-equity, any notice of appeal from a family court order follows the same rules as notices of appeal in the Court of Common Pleas, and an email can serve as written notice of entry of the order or judgment.

Administrative Law Courts (White is overruled)

Notices of appeal from a decision of an administrative law court (for example, an appeal from an implied consent license suspension hearing) follow a slightly different rule – Rule 203(b)(6) says that the notice of appeal must be served “within thirty (30) days after receipt of the decision,” as opposed to “receipt of written notice of entry of the order or judgment.”

Nevertheless, Fallon is also clear that an email giving notice of the decision will trigger the time-clock for filing the notice of appeal from an administrative court’s order or judgment.

The Supreme Court expressly overruled White v. South Carolina Department of Health and Environmental Control, 392 S.C. 247, 708 S.E.2d 812 (Ct. App. 2011), where the Court of Appeals held that an email did not trigger the time for filing notice of appeal.

General Sessions Court

Although Fallon does not address criminal appeals from the Court of General Sessions, it is clear that the “email rule” will also be applied in criminal cases.

Rule 203(b)(2) governs criminal cases and says that the notice of appeal must be served within 10 days after sentence is imposed – in many criminal cases, there is no written order following a conviction and sentencing, so the clock begins to run on the day that the plea was entered or the verdict was reached.

In some cases, the court may delay sentencing and entry of the judgment or the attorney may file post-trial motions asking for a new trial, reconsideration, or other relief. In these situations, Rule 2013(b)(2) says:

  1. The notice of appeal must be served “within ten (10) days after receipt of written notice of entry of the order or judgment;” and
  2. When post-trial motions are filed, “the time to appeal shall be stayed and shall begin to run from receipt of written notice of entry of an order granting or denying such motion.”

In either case, it is now clear that an email from the prosecutor or the court informing defense counsel of 1) entry of the order or judgment or 2) entry of an order granting or denying the post-trial motions will begin the time-clock for serving the notice of appeal.

Juvenile Criminal Defense Cases in Family Court

Although juvenile criminal cases are heard in the Family Court, Rule 203(b)(3) says, ”notice of appeal in a juvenile action shall be served in the same manner as provided by Rule 203(b)(2),” which means that the time limits are the same as in General Sessions Court and that an email can trigger the time-clock for notice of appeal.

SC Criminal Defense, Family Court, and Plaintiff’s Lawyer in Myrtle Beach

Don’t let a “technicality” cause you to lose your case because your appeal is dismissed – have a look at the Fallon opinion and stay abreast of new SC case law as it comes out.

Attorney Daniel A. Selwa, II is a SC criminal defense lawyer who represents clients in Myrtle Beach, Conway, Horry County, and the surrounding area. Call today at (843) 492-5449 or fill out our online contact form to set up a free consultation to discuss your case.


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