Arthurs v. Brown

THIS OPINION HAS
NO PRECEDENTIAL VALUE.  IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN
ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 239(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA

In The Court of Appeals

Janet Elgin Arthurs, Personal Representative of the Estate of Betty B.
Stephens, Deceased,        Appellant,

v.

Sue H. Brown,       
Respondent.

Appeal From Greenville County

John C. Few, Circuit Court Judge

Unpublished Opinion No. 2004-UP-216

Submitted March 8, 2004 – Filed March
30, 3004

APPEAL DISMISSED

James Daniel Bailey, of Aiken and Richard Edwin Miley, of
N. Augusta, for Appellant.

Phillip E. Reeves and Jennifer D. Eubanks, both of Greenville,
for Respondent.

PER CURIAM:  Janet Elgin Arthurs, as the
personal representative of the estate of her deceased mother, Betty B. Stephens,
appeals from the denial of her post-trial motions for judgment notwithstanding
the verdict (JNOV), new trial, and to alter or amend the judgment in these actions
for wrongful death and survival against Sue. H. Brown.  We find this court lacks
subject matter jurisdiction to review the case because the notice of appeal
was untimely.

FACTS

At the center of this case is
a fatal car accident that occurred on Thanksgiving Day in 1998.  Stephens was
traveling in the northbound lane of Highway 19 in Aiken County.  Brown was traveling
on the same road in the southbound lane.  As the two vehicles approached each
other, the car driven by Brown crossed the centerline of the two-lane road and
collided with Stephens’s car.  Stephens died at the scene of the accident. 
Brown survived.

Stephens’s daughter brought this
action against Brown, claiming Brown’s negligence in the operation of her vehicle
was the proximate cause of her mother’s death.  At the conclusion of the trial
on August 7, 2001, the jury rendered verdicts in favor of Brown.  Arthurs then
made oral motions for JNOV and a new trial.  Specifically, she argued there
was no evidence to support the jury’s conclusions on the issue of negligence
and that the trial judge erred in instructing the jury on the law of “unavoidable
accident” as a defense to negligence charges.  The circuit court entered an
order denying these motions on November 19, 2001, which was subsequently received
by Arthurs on November 27, 2001.  Arthurs then filed a motion, dated November
30, 2001, to alter or amend the judgment pursuant to Rule 59(e), SCRCP.  In
the motion, Arthurs merely restated the arguments she made orally and in memoranda
filed with her first post-trial motions and requested the trial court provide
a “factual or legal basis for denying the Plaintiff’s Motion for Judgment Notwithstanding
the Verdict and New Trial.”  This motion was denied by the trial court on February
7, 2002.  Arthurs served her notice of appeal on March 11, 2002.

LAW/ANALYSIS

As an initial consideration,
this court is obligated to evaluate our jurisdiction to hear this matter even
though neither party raised it as an issue on appeal.  See Ness v.
Eckerd Corp., 350 S.C. 399, 402, 566 S.E.2d 193, 195 (Ct. App. 2002).  We
conclude that the appeal to this court is untimely and, as a result, we lack
jurisdiction to consider the merits of the case.

According to Rule 203(b)(1), SCACR, the notice of appeal
from a civil action “shall be served on all respondents within thirty days (30)
after receipt of written notice of entry of the order or judgment.”  Timely
motions for JNOV, to alter or amend the judgment, or for a new trial stay the
time for appeal until receipt of written notice of entry of the order granting
or denying the motions.  Id.  However, a subsequent motion for JNOV,
to alter or amend, or new trial does not expand the time for appeal when, as
in the present case, it merely restates the arguments made in previous motions.

This court recently considered successive
post-trial motions in Collins Music Co. v. IGT, 353 S.C. 559, 579 S.E.2d
524 (Ct. App. 2002), cert. denied, 124 S. Ct. 303 (2003).  In Collins,
the jury returned a verdict for Collins, and IGT made timely motions for JNOV,
new trial, and new trial nisi remittitur.  Id. at 560, 579 S.E.2d
at 524.  The court denied all of IGT’s motions and IGT received a copy of the
order on September 5, 2001.  Id.

On September 12, 2001, IGT served a motion
to alter or amend pursuant to Rule 59(e), SCRCP, and the motion merely restated
the arguments made in the post-trial motions.  Collins at 561, 579 S.E.2d
at 524.  IGT received written notice of the entry of the order denying its motion
to alter or amend on November 5, 2001, and served its notice of appeal on November
21, 2001.  Id.   

This court held that because IGT’s Rule
59(e) motion did not raise new issues, but rather restated the arguments made
in earlier motions, it was not a proper Rule 59(e) motion and thus, did not
toll the time to serve notice of appeal.  Collins, 353 S.C. at 566, 579
S.E.2d at 527, (citing Coward Hund Constr. Co. v. Ball Corp., 336 S.C.
1, 518 S.E.2d 56 (Ct. App. 1999) and Quality Trailer Products, Inc. v. CSL
Equip. Co., 349 S.C. 216, 562 S.E.2d 615 (2002)).  Therefore, because the
issues raised in IGT’s subsequent motions were ripe for appellate review after
the court’s first post-trial ruling, the time to appeal lapsed while IGT awaited
a ruling on its subsequent Rule 59(e) motion.  Id.  

The facts of the present
case warrant the same result.  Arthurs moved for JNOV and new trial immediately
following the jury’s verdict on the grounds the evidence did not support the
jury’s conclusion on the issue of negligence and that the trial court should
not have instructed the jury on the law regarding the defense of unavoidable
accident.  The trial court denied these motions.  Arthurs received a written
copy of the trial court’s order denying these motions on November 27, 2001,
and then moved to alter or amend the judgment under Rule 59(e) on the same grounds—that
the evidence did not support the jury’s ruling on negligence and that the trial
court improperly instructed the jury on unavoidable accident.  The trial court
opined that it had “again carefully considered all of Plaintiff’s arguments”
and denied the motion.

The issues raised by
Arthurs’ initial post-trial motions for JNOV and new trial were preserved and
ripe for appellate review when they were denied by the trial court in November
2001.  Because Arthurs’ subsequent Rule 59(e) motion merely restated the arguments
made in her initial post-trial motions, it did not stay the time to file notice
of appeal.  Therefore, because Arthurs did not file her notice of appeal until
March 11, 2002, we find the appeal is untimely.

Accordingly, for the
reasons stated above, the present appeal is

DISMISSED.

HEARN, C.J., ANDERSON,
and BEATTY, JJ., concur.