Robertson v. Mitchell

THE STATE OF SOUTH CAROLINA

In The Court of Appeals

Barbara S. Robertson, in her capacity as
conservator for Samuel E. Smalls, Jr.,       
Appellant,

v.

Patricia Mitchell; John Doe and Jane Doe,
Fictitious names designating any unknown persons who claim to be heirs
of Samuel E. Smalls; Richard Roe and Susan Roe, Fictitious names designating
any unknown persons who claim to be heirs of Daisy Smalls; Boisey Gray,
Lucky Wheeling and Zebedee Smalls, if they be alive; and All other persons
unknown or having or claiming any rights, title, estate, or interest in
or lien upon the real property described in the complaint being designated
collectively as Mark Coe and Mary Coe, including all heirs, distributes,
or devisees of any unknown persons in the Armed Forces of the United States
of America, any minors and including persons non-compos mentis and all
other persons under any disability of any kind or nature who might have
claim to or any right, title, estate or interest in or lien upon the real
estate described in the complaint,       
Respondents.

Appeal From Georgetown County

Benjamin H. Culbertson, Circuit Court
Judge

Opinion No.    2003 - UP- 365

Submitted May 12, 2002 - Filed May 21,
2003

APPEAL DISMISSED

George E. Graham, of Conway, for Appellant.

Mary Mitchell, of Brooklyn, New York, and Robert J. Moran,
Jr., of Murrells Inlet, South Carolina, for Respondents.

Louis R. Morant, of Georgetown, South Carolina, for the Guardian
ad Litem.

PER CURIAM:  This is an action to quiet
title to three parcels of land brought by Barbara Robertson against Patricia
Mitchell and unnamed heirs.  The matter was heard by the master-in-equity. 
Robertson was awarded damages for unjust enrichment and a third person, Mary
Mitchell, the mother of the named defendant, was found to be an heir entitled
to an interest in one of the parcels.  Mary Mitchell filed a post-trial motion
to alter or amend the judgment, which the master denied.  Robertson appealed. 
We find the appeal is untimely and therefore dismiss for lack of jurisdiction.
[1]

The master’s order on the merits was filed June
18, 2001.  Robertson’s attorney sent a copy of the order to Patricia Mitchell’s
attorney on June 22, 2001. 

Mary Mitchell, who was pro
se at the hearing in this matter, filed a post-trial motion to alter
or amend the judgment in mid-July.
[2]   The master denied the motion in a form order dated September 25, 2001
on the basis (1) it was untimely, and (2) because Mary Mitchell sought to introduce
new evidence. 

Robertson did not serve her
notice of appeal until October 26, 2001.  Patricia Mitchell thereafter moved
to dismiss the appeal on the ground it was untimely and this Court did not have
jurisdiction.  Because the initial briefs were already in, Patricia Mitchell
was asked to address the timeliness issue in the Respondent’s Brief, and Robertson
was to address it in her Reply Brief. 

In her brief, Patricia Mitchell essentially contends
the post-trial motion filed by her mother, Mary Mitchell, was untimely and only
a timely post-trial trial motion stays the time for appeal for all parties. 

In the Reply Brief, Robertson argues only that the time for
appealing technically has not started to run because the Georgetown County clerk
of court never served the parties with notice of the entry of judgment as required
by Rule 77(d), SCRCP.  She has submitted an affidavit from the clerk’s office
verifying there is no indication in the court records that notice was sent from
the clerk’s office.   

Under Rules 52(b) and 59(e), SCRCP, a motion to alter or
amend the judgment must be served no later than ten days after receipt of written
notice of the entry of the order.  When a timely post-trial motion is
made, it stays the time for appeal for all parties until receipt of written
notice of entry of the order granting or denying the motion.  Rule 203(b)(1),
SCACR.

The timeliness of the current appeal depends on whether Mary
Mitchell’s post-trial motion was timely made.  The problem in this case is we
cannot tell from the record or any other documents, however, when Mary Mitchell
received notice of the entry of judgment in order to verify when the time for
appeal began to run.   

This question is not addressed by Robertson, the appellant,
in her brief.  Rather, Robertson’s only argument in support of her assertion
that the appeal is timely is that the time for appeal has not started to run
because the clerk never mailed out a notice of the entry of judgment as required
by Rule 77(d), SCRCP.  This rule provides in relevant part as follows:

Immediately upon the entry of an order or judgment the clerk
shall serve a notice of the entry by first class mail upon every party affected
thereby . . . .  Such mailing shall not be necessary to parties who have
already received notice.

Rule 77(d), SCRCP (emphasis added).

Contrary to Robertson’s assertion, the time for
the appeal has not failed to start running merely because the clerk did not
mail out notice of the original entry of judgment.  As noted above, the rule
expressly provides that notice from the clerk is not necessary where the parties
have already received notice.  See Rosen, Rosen & Hagood v. Hiller,
307 S.C. 331, 334, 415 S.E.2d 117, 118 (Ct. App. 1992) (noting Rule 77(d) “further
provides that the clerk need not give notice to parties who already have notice”). 

At this point, Robertson has shown no error in the master’s
determination that the post-trial motion was untimely.  The only argument Robertson
makes for finding the appeal is timely is her incorrect statement that the time
for appeal has never started to run.  She does not otherwise specifically challenge
the master’s finding.  Because the ruling that Mary Mitchell’s post-trial motion
is untimely stands, the time for appeal was not stayed.  Robertson’s time for
appeal therefore began to run no later than June 22, 2001, the date she had
notice of entry of the judgment as indicated by the fact that her attorney sent
the order to the opposing attorney in this case.  Accordingly, her notice of
appeal served on October 26, 2001 was too late and this Court does not have
jurisdiction to consider the appeal.  See, e.g., Mears v. Mears,
287 S.C. 168, 337 S.E.2d 206 (1985) (stating the time for service of the notice
of appeal is a jurisdictional requirement and the time for service may not be
extended by an appellate court).

APPEAL DISMISSED.

GOOLSBY and HOWARD, JJ., and BEATTY, A.J., concur.

[1]   We decide this case without oral argument pursuant to Rule 215,
SCACR.

[2]   The motion is dated July 11, 2001.  The cover letter actually sending
the motion to the court is dated July 16th, however, and there are two certificates
of service indicating it was served on the attorneys for Robertson and Patricia
Mitchell, the named parties, on July 17th.