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Unpublished Opinion No. 2011-UP-187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.