Elam v. SOUTH CAROLINA DEPT. OF TRANSP., No. 25869.

CourtUnited States State Supreme Court of South Carolina
Citation602 S.E.2d 772,361 S.C. 9
Decision Date13 September 2004
Docket NumberNo. 25869.
PartiesHattie Rose ELAM, Respondent, v. SOUTH CAROLINA DEPARTMENT OF TRANSPORTATION, Petitioner.

361 S.C. 9
602 S.E.2d 772

Hattie Rose ELAM, Respondent,
v.
SOUTH CAROLINA DEPARTMENT OF TRANSPORTATION, Petitioner

No. 25869.

Supreme Court of South Carolina.

Heard November 19, 2003.

Decided September 13, 2004.


361 S.C. 12
Pete Kulmala, of Harvey & Kulmala, of Barnwell, for Petitioner

H. Woodrow Gooding, Jr. and Mark B. Tinsley, of Gooding and Gooding, of Allendale, for Respondent.

361 S.C. 13
Justice BURNETT

We granted the petition for a writ of certiorari to review the Court of Appeals' unpublished order dismissing the appeal of the South Carolina Department of Transportation (SCDOT) as untimely. Elam v. South Carolina Dep't of Transp., S.C. Ct.App. Order dated July 25, 2002. We reverse.

FACTUAL AND PROCEDURAL HISTORY

Respondent Hattie Rose Elam (Elam) sued Petitioner (SCDOT) under the South Carolina Tort Claims Act1 for personal injuries and property damage sustained by Elam in a single-car accident which occurred in March 1998. Elam alleged the accident was caused by SCDOT's improper maintenance of a highway, which allowed excessive rain water to accumulate on the highway.

At the conclusion of Elam's case, SCDOT moved for a directed verdict on various grounds. The trial court denied the motion and submitted the case to the jury on January 10, 2001. The jury returned a verdict for Elam for $250,000. Immediately thereafter, SCDOT made oral motions for judgment notwithstanding the verdict (JNOV) and a new trial absolute, or in the alternative, for a new trial nisi remittitur. SCDOT's motions were denied by the trial judge in an oral ruling from the bench, and a one-page Form 4 order was filed with the clerk on January 11, 2001, effecting entry of the jury's verdict.

SCDOT timely filed a written motion pursuant to Rule 59(e), SCRCP. The trial court denied the Rule 59(e) motion in a written order dated April 6, 2001. SCDOT served its notice of appeal on April 27, 2001, and in its appeal contested the trial court's denial of its motions for JNOV and new trial.

The Court of Appeals, sua sponte, raised the issue of the timeliness of SCDOT's appeal in light of Quality Trailer Products v. CSL Equipment Co., 349 S.C. 216, 562 S.E.2d 615 (2002), and directed the parties brief the issue. The Court of Appeals subsequently concluded SCDOT's Rule 59(e) motion merely repeated grounds previously raised to and ruled on by the trial judge as a result of SCDOT's oral JNOV/new trial

361 S.C. 14
motions. Therefore, the Rule 59(e) motion did not stay the running of the thirty-day deadline to appeal and SCDOT's appeal was dismissed as untimely

ISSUES

I. Did the Court of Appeals err in finding SCDOT's appeal untimely because its written Rule 59(e) motion, which repeated grounds previously raised to and ruled on by the trial judge as a result of oral JNOV/new trial motions made immediately after the jury's verdict, did not stay the time to appeal?
II. Did the trial court err in denying SCDOT's motion to amend its answer and its post-trial motions?

DISCUSSION

I. Timeliness of SCDOT's appeal

We take this opportunity to clarify the limits and rationale of Quality Trailer, supra, and two Court of Appeals' opinions, Coward Hund Const. Co. v. Ball Corp., 336 S.C. 1, 518 S.E.2d 56 (Ct.App.1999), and Collins Music Co. v. IGT, 353 S.C. 559, 579 S.E.2d 524 (Ct.App.2002). We conclude the Court of Appeals in the present case and in Matthews v. Richland County School Dist. One, 357 S.C. 594, 594 S.E.2d 177 (Ct.App.2004) has extended the holdings and rationale of those three cases in a manner which unnecessarily complicates post-trial and appellate practice.

Post-trial motions such as a JNOV or new trial motion "shall be made promptly after the jury is discharged, or in the discretion of the court not later than 10 days thereafter." Rules 50(e) and 59(b), SCRCP. In actions tried without a jury or with an advisory jury, a party may move the court to amend its findings or judgment or for a new trial not later than 10 days after receipt of written notice of entry of judgment. Rule 52(a), SCRCP.

The notice of appeal in a case appealed from the Court of Common Pleas must be served on all respondents within thirty 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

361 S.C. 15
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. Mears v. Mears, 287 S.C. 168, 337 S.E.2d 206 (1985). A timely post-trial motion, including a motion to alter or amend the judgment pursuant to Rule 59(e), SCRCP, stays the time for an appeal for all parties until receipt of written notice of entry of the order granting or denying such motion. See Rule 203(b)(1), SCACR; Rules 50(e), 52(c), and 59(f), SCRCP.

The Court of Appeals in 1999 took the first step toward Quality Trailer in Coward Hund, 336 S.C. 1, 518 S.E.2d 56. In that case, the trial court by written order granted summary judgment to the defendants. Appellant Coward Hund timely served a written "motion for reconsideration" pursuant to Rule 59(e), SCRCP. The trial court heard oral arguments on the Rule 59(e) motion and issued a written order denying the motion. Coward Hund subsequently filed a second, written motion for reconsideration pursuant to Rule 59(e), seeking clarification of the court's ruling on an issue on which the court had ruled. After a telephone conference, the trial court issued a supplemental written order again denying Coward Hund's Rule 59(e) motion. Coward Hund served its notice of appeal within thirty days of receipt of written notice of entry of the order denying its second Rule 59(e) motion. The issue, then, was whether Coward Hund's filing of a second, written Rule 59(e) motion stayed the time for serving a notice of appeal.

Finding no South Carolina case directly on point, the Court of Appeals endorsed the prevailing view espoused by federal courts that a second motion for reconsideration under Rule 59(e) is appropriate only if it challenges something that was altered from the original judgment as a result of the initial motion for reconsideration. The Court of Appeals reasoned nothing in the written order denying Coward Hunds first Rule 59(e) motion altered anything in the written summary judgment order. Thus, the finality of the summary judgment order was restored and the time for serving a notice of appeal began to run upon Coward Hunds receipt of written notice of entry of the order denying its first Rule 59(e)

361 S.C. 16
motion. The Court of Appeals held Coward Hunds second Rule 59(e) motion did not stay the time for appeal and consequently dismissed the appeal as untimely. Coward Hund, 336 S.C. at 4, 518 S.E.2d at 58.

In Quality Trailer, decided three years later, a jury returned a verdict in favor of Quality Trailer. Appellant I Corp. timely served a written post-trial motion for JNOV and a new trial. The trial court issued a written order denying the motion and explaining the reasons for the denial. I Corp. then filed a written motion pursuant to Rules 52, 59, and 60, SCRCP, which was virtually identical to its written JNOV/new trial motion. The only changes I Corp. made were to caption the Rule 59(e) motion differently and to change the relief sought in the Rule 59(e) motion's final paragraph to coincide with the Rule 59(e) motion's caption. I Corp.'s Rule 59(e) motion did not identify a single issue raised but not ruled on, but merely recited, verbatim, the arguments made in the written JNOV/new trial motion.

We held the filing of a written, successive, virtually identical post-trial motion — raising issues which already had been raised to and ruled on by the trial court in a previous written order — does not stay the time for serving notice of appeal. "The time for filing appeal is not extended by submitting the same motion under a different caption." Quality Trailer, 349 S.C. at 220, 562 S.E.2d at 618. We dismissed I Corp's appeal as untimely because its written, successive, virtually identical post-trial motion did not stay the time for serving a notice of appeal.

Thus, Quality Trailer took Coward Hund a step further. Coward Hund barred as untimely an appeal from a second, written Rule 59(e) motion raising the same issues on which a ruling had been obtained by virtue of a previous, written Rule 59(e) motion; Quality Trailer barred as untimely an appeal from a first, written Rule 59(e) motion raising the same issues, verbatim, on which a ruling had been obtained in a previous, written JNOV/new trial motion.

The Quality Trailer view of successive post-trial motions has been applied in only two other published opinions by the Court of Appeals: Collins Music, 353 S.C. 559, 579 S.E.2d 524, and Matthews, 357 S.C. 594, 594 S.E.2d 177.

361 S.C. 17
In Collins Music, the Court of Appeals found that an appeal was not timely by relying on Quality Trailer and Coward Hund. From a verdict in favor of Collins, appellant IGT timely filed and served written post-trial motions for JNOV, new trial, and new trial nisi remittitur, asserting twenty-eight grounds as support for its requested relief. The trial court denied all IGT's post-trial motions in a written order "after carefully reviewing the matter."

Seven days later, IGT served a substantively identical Rule 59(e) motion to alter or amend the judgment, asking the court to make specific rulings on each ground raised in the earlier motions. The trial court issued a written order denying IGT's Rule 59(e) motion and specifically stating IGT failed to raise any issue not already considered. IGT served a notice of appeal within thirty days of receipt of written notice of entry of the order denying its Rule 59(e) motion.

The Court of Appeals concluded IGT's written Rule 59(e) motion merely restated the same twenty-eight...

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338 practice notes
  • Queen's Grant v. Greenwood Development, No. 4101.
    • United States
    • Court of Appeals of South Carolina
    • April 10, 2006
    ...to be properly preserved for appeal, it must have been both raised to and ruled upon by the trial court. Elam v. S.C. Dep't of Transp., 361 S.C. 9, 23-24, 602 S.E.2d 772, 779-780 (2004). Error preservation principles are intended to enable the trial court to rule after it has considered all......
  • Proctor v. Dept. of Health, No. 4098.
    • United States
    • Court of Appeals of South Carolina
    • March 20, 2006
    ...by viewing the evidence and all reasonable inferences in the light most favorable to the nonmoving party." Elam v. S.C. Dep't of Transp., 361 S.C. 9, 27-28, 602 S.E.2d 772, 782 (2004) (citing Strange v. S.C. Dep't of Highways & Pub. Transp., 314 S.C. 427, 445 S.E.2d 439 (1994)); Sabb v. S.C......
  • Wright v. Craft, No. 4181.
    • United States
    • Court of Appeals of South Carolina
    • November 27, 2006
    ...of Health and Envtl. Control, 368 S.C. 279, 292, 628 S.E.2d 496, 503 (Ct.App. 640 S.E.2d 496 2006) (citing Elam v. S.C. Dep't of Transp., 361 S.C. 9, 27-28, 602 S.E.2d 772, 782 (2004)); The Huffines Co., L.L.C. v. Lockhart, 365 S.C. 178, 187, 617 S.E.2d 125, 129 (Ct.App. 2005). On appeal fr......
  • Gause v. Smithers, No. 27261.
    • United States
    • United States State Supreme Court of South Carolina
    • June 5, 2013
    ...precluded from making those arguments before this Court. Accordingly, this issue also is not preserved. See Elam v. S.C. Dept. of Transp., 361 S.C. 9, 23, 602 S.E.2d 772, 780 (2004) (“It is axiomatic that an issue cannot be raised for the first time on appeal, but must have been raised to a......
  • Request a trial to view additional results
329 cases
  • Queen's Grant v. Greenwood Development, No. 4101.
    • United States
    • Court of Appeals of South Carolina
    • April 10, 2006
    ...to be properly preserved for appeal, it must have been both raised to and ruled upon by the trial court. Elam v. S.C. Dep't of Transp., 361 S.C. 9, 23-24, 602 S.E.2d 772, 779-780 (2004). Error preservation principles are intended to enable the trial court to rule after it has considered all......
  • Proctor v. Dept. of Health, No. 4098.
    • United States
    • Court of Appeals of South Carolina
    • March 20, 2006
    ...by viewing the evidence and all reasonable inferences in the light most favorable to the nonmoving party." Elam v. S.C. Dep't of Transp., 361 S.C. 9, 27-28, 602 S.E.2d 772, 782 (2004) (citing Strange v. S.C. Dep't of Highways & Pub. Transp., 314 S.C. 427, 445 S.E.2d 439 (1994)); Sabb v. S.C......
  • Wright v. Craft, No. 4181.
    • United States
    • Court of Appeals of South Carolina
    • November 27, 2006
    ...of Health and Envtl. Control, 368 S.C. 279, 292, 628 S.E.2d 496, 503 (Ct.App. 640 S.E.2d 496 2006) (citing Elam v. S.C. Dep't of Transp., 361 S.C. 9, 27-28, 602 S.E.2d 772, 782 (2004)); The Huffines Co., L.L.C. v. Lockhart, 365 S.C. 178, 187, 617 S.E.2d 125, 129 (Ct.App. 2005). On appeal fr......
  • Gause v. Smithers, No. 27261.
    • United States
    • United States State Supreme Court of South Carolina
    • June 5, 2013
    ...precluded from making those arguments before this Court. Accordingly, this issue also is not preserved. See Elam v. S.C. Dept. of Transp., 361 S.C. 9, 23, 602 S.E.2d 772, 780 (2004) (“It is axiomatic that an issue cannot be raised for the first time on appeal, but must have been raised to a......
  • Request a trial to view additional results

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