Collins Music Co., Inc. v. IGT, No. 2002-OR-405.

• Court: Court of Appeals of South Carolina
• Writing for the Court: PER CURIAM.
• Citation: 579 S.E.2d 524,353 S.C. 559
• Parties: COLLINS MUSIC CO., INC., Respondent, v. IGT a/k/a IGT-NORTH AMERICA, Appellant.
• Docket Number: No. 2002-OR-405.
• Decision Date: 04 September 2002

353 S.C. 559
579 S.E.2d 524

COLLINS MUSIC CO., INC., Respondent,
v.
IGT a/k/a IGT-NORTH AMERICA, Appellant

No. 2002-OR-405.

Court of Appeals of South Carolina.

September 4, 2002.

353 S.C. 560

Ronald E. Boston, of Columbia, and R. Wayne Byrd, of Florence, for appellant

George M. Hearn, Jr., of Conway; James B. Van Osdell and Cynthia Graham Howe, both of Myrtle Beach; James R. Gilreath, of Greenville; and Scott M. Mongillo, of Mt. Pleasant for respondent.

PER CURIAM.

Collins Music Company ("Collins Music") brought suit against IGT a/k/a/ IGT-North America ("IGT") in the circuit court. A jury awarded a fifteen million dollar judgment to Collins Music. IGT appeals the trial court's denial of its motions for judgment notwithstanding the verdict ("JNOV"), new trial, and new trial nisi remittitur. We dismiss the appeal as untimely.

FACTS/PROCEDURAL BACKGROUND

Collins Music filed suit against IGT asserting numerous causes of action arising out of a contract dispute. The parties had previously entered into a video machine distributorship agreement. A jury found in favor of Collins Music and awarded it a judgment of fifteen million dollars in actual damages.

On August 13, 2001, IGT timely filed and served post-trial motions pursuant to Rules 50(b) and 59, SCRCP. Specifically, IGT moved for JNOV, new trial, and alternatively, new trial nisi remittitur. IGT delineated twenty-eight grounds as support for its request for relief. The circuit court judge issued a written order denying all of IGT's post-trial motions, "[a]fter carefully reviewing the matter." IGT was served with a copy of this order on September 5, 2001.

353 S.C. 561

Seven days later, on September 12, 2001, IGT served a Rule 59(e) motion to alter or amend the judgment. In the motion, IGT merely restated the arguments it made in the material filed with its first post-trial motions and requested the circuit judge to "make specific rulings, and the basis therefore [sic], as to each ground raised" in the earlier motions. On October 29, 2001, the circuit judge issued a written order denying the Rule 59(e) motion and specifically stating IGT failed to raise any issue not already considered. IGT received written notice of entry of the order on November 5, 2001. IGT served its notice of appeal on November 21, 2001

ISSUE

Did IGT's second motion toll the time for serving an appeal?

LAW/ANALYSIS

Rule 203(b)(1), SCACR provides that a notice of appeal from a judgment of the Court of Common Pleas

shall be served on all respondents within thirty (30) days after receipt of written notice of entry of the order or judgment. When a timely motion for judgment n.o.v. (Rule 50, SCRCP), motion to alter or amend the judgment (Rules 52 and 59, SCRCP), or a motion for a new trial (Rule 59, SCRCP) has been made, the time for appeal for all parties shall be stayed and shall run from receipt of written notice of entry of the order granting or denying such motion.

IGT moved for relief under Rules 50(b) and 59 within ten days of the verdict, which the circuit judge denied. Following the circuit judge's denial, IGT filed and served a Rule 59(e) motion to alter or amend the judgment. The circuit judge denied this motion.

Collins Music argues this Court lacks subject matter jurisdiction because IGT's notice of appeal was not timely served. Collins Music contends IGT's Rule 59(e) motion did not toll the time for appeal because the Rule 59(e) motion was nothing but a restatement of the arguments IGT made in its initial post-trial motions.

353 S.C. 562

A. Coward Hund Construction Company v. Ball Corporation

In Coward Hund Construction Company v. Ball Corporation, 336 S.C. 1, 518 S.E.2d 56 (Ct.App.1999), this Court addressed successive Rule 59(e) motions and the tolling of the time for appeal.

Coward Hund sued Ball and Carolina Glass, alleging claims for negligence, breach of express and implied warranties, and breach of contract. Coward Hund additionally sought indemnification arising from allegedly defective building repairs. The defendants moved for summary judgment.

The court granted summary judgment to both defendants on all of Coward Hund's claims. Coward Hund filed a motion for reconsideration, which was denied.

Thereafter, Coward Hund filed a second motion for reconsideration "seek[ing] clarification of the issue raised before the trial court on two occasions regarding Plaintiffs indemnity claim against Defendants." Id. at 2, 518 S.E.2d at 57. In response, the circuit court issued a supplemental order stating: "[T]he court granted summary judgment to Defendants Carolina Glass and Ball Corp. without the court referencing any prejudice regarding Coward Hund's indemnity claims, if any." Id. Coward Hund served its notice of appeal within thirty days of receiving written notice of the order denying the second motion for reconsideration but more than thirty days after receiving written notice of the order denying the first motion for reconsideration.

This Court concluded:

"The purpose of Rule 59(e), SCRCP, to alter or amend the judgment[,] is to request the trial judge to `reconsider matters properly encompassed in a decision on the merits.'" Arnold v. State, 309 S.C. 157, 172, 420 S.E.2d 834, 842 (1992)(quoting Budinich v. Becton Dickinson and Co., 486 U.S. 196

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