Anasti v. Wilson

THIS OPINION HAS NO PRECEDENTIAL VALUE. IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 268(d)(2), SCACR. THE STATE OF SOUTH CAROLINA In The Court of Appeals James A. Anasti, Respondent, v. Lance Wilson, Willis Goodwin, Gina L. Anasti Lee, and Richland County Clerk of Court, Defendants, Of Whom Gina L. Anasti Lee is the Appellant. Appeal from Richland County L. Casey Manning, Circuit Court Judge Unpublished Opinion No. 2011-UP-187 Submitted April 1, 2011 – Filed April 28, 2011 APPEAL DISMISSED Tony R. Megna, of Columbia, for Appellant. Douglas N. Truslow and Thomas George Earle, both of Columbia, for Respondent. PER CURIAM: In January 2008, Appellant filed a notice of appeal from an order granting Respondent partial summary judgment and from the order denying reconsideration. In March 2008, this court remanded the appeal to the circuit court for an evidentiary hearing regarding the timeliness of Appellant's notice of appeal. After a hearing,[1] and after reviewing "all previous submissions to the [circuit] court by or on behalf of Appellant, including pleadings, affidavits, evidence, memoranda and evidence presented," the circuit court found that because Appellant received the order granting partial summary judgment more than ten days prior to filing her motion for reconsideration, her motion for reconsideration did not toll the time for filing her notice of appeal; thus, her notice of appeal was untimely.[2] Appellant moved for reconsideration, which was denied.[3] In its order denying reconsideration, the circuit court noted that "nothing credible, believable, or favorable to Appellant ha[d] been presented that would compel [the circuit court] to reverse the findings and conclusions set forth in [its prior order."[4] Because the circuit court's factual findings regarding timeliness are supported by evidence, we dismiss[5] this appeal pursuant to Rule 220(b)(1), SCACR, and the following authorities: Canal Ins. Co. v. Caldwell, 338 S.C. 1, 5, 524 S.E.2d 416, 418 (Ct. App. 1999) ("Rule 203(b), SCACR, requires a party to serve his notice of appeal within thirty days after receiving written notice of the entry of a final order or judgment, and failure to do so divests this court of subject matter jurisdiction and results in dismissal of the appeal."); Elam v. S.C. Dep't of Transp., 361 S.C. 9, 15, 602 S.E.2d 772, 775 (2004) (citing Rule 203(b)(1), SCACR, and Rules 50(e), 52(c), and 59(f), SCRCP) ("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."); Coward Hund Constr. Co. v. Ball Corp., 336 S.C. 1, 3, 518 S.E.2d 56, 57 (Ct. App. 1999) ("A motion under Rule 59(e) is timely if it is 'served not later than ten days after receipt of written notice of the entry of the order.'"); Pollard v. Cnty. of Florence, 314 S.C. 397, 402, 444 S.E.2d 534, 536 (Ct. App. 1994) (reviewing the circuit court's ruling on a Rule 59(e) motion pursuant to an abuse of discretion standard); Stearns Bank Nat'l Ass’n v. Glenwood Falls, LP, 373 S.C. 331, 336, 644 S.E.2d 793, 795 (Ct. App. 2007) ("An abuse of discretion arises where the judge issuing the order was controlled by an error of law or where the order is based on factual conclusions that are without evidentiary support.") (citation and quotation marks omitted); USAA Prop. & Cas. Ins. Co. v. Clegg, 377 S.C. 643, 651, 661 S.E.2d 791, 795 (2008) (deferring to the circuit court's credibility determinations regarding the timeliness of a motion for reconsideration and declining to reverse the circuit court's decision); Reed v. Ozmint, 374 S.C. 19, 24, 647 S.E.2d 209, 211 (2007) (noting the circuit court judge, who saw and heard the witnesses, is in a better position to evaluate their credibility and assign comparative weight to their testimony). APPEAL DISMISSED. FEW, C.J., and CURETON and GOOLSBY, A.J., concur. [1] Neither Appellant nor her counsel attended the hearing; however, the trial court found Appellant received notice of the hearing. [2] Specifically, the circuit court found the order granting summary judgment was mailed to the parties on October 29, 2007, and received by Respondent's attorney on November 1, 2007. Giving Appellant the benefit of the doubt, and tacking on an additional five days for service by mail pursuant to Rule 6(e), SCRCP, the circuit court deemed Appellant's receipt of the order as being effective on November 3, 2007. Because November 3, 2007, was a Saturday, Appellant had ten days from Monday, November, 5, 2007, to file her motion for reconsideration. Appellant's motion for reconsideration was served and filed on November 20, 2007; therefore, the circuit court found it was untimely. The circuit court noted that Appellant did not contest that the order was properly mailed or that she actually received the order. The circuit court found Appellant's counsel was "not credible as to any contested issue" and, specifically, as to the date he claimed he received the order granting summary judgment. [3] Appellant's counsel was present for the hearing on Appellant's motion for reconsideration. [4] In a footnote, the circuit court stated Appellant's counsel failed to produce the envelope in which the October 29, 2007 order was mailed to him or a date stamp or any other record establishing a date of receipt. [5] We decide this case without oral argument pursuant to Rule 215, SCACR.