Christmas v. Enos

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

Jennifer Lynn
Christmas and Jay Christmas, Respondents,

v.

Dale Eugene
Enos, Jr. and A Rainbow of Carpets, Inc., Appellants.

Appeal From Berkeley County

 Kenneth G. Goode, Circuit Court Judge

Unpublished Opinion No. 2008-UP-099

Heard November 6, 2007 – Filed February
11,2008

APPEAL DISMISSED

Michael J. Ferri, of Charleston, for Appellants.

James G. Christmas, of N. Charleston, for Respondents.

PER CURIAM:  Dale
Eugene Enos, Jr. and A Rainbow of Carpets (Appellants) appeal from the trial
court’s denial of their motion for a new trial and subsequent denial of their
motion to alter and amend the judgment pursuant to Rule 59, SCRCP, following a
jury’s verdict in favor of Jennifer Christmas for $30,000.  Holding Appellants’
successive motion pursuant to Rule 59, SCRCP, did not toll the time for serving
the notice of appeal, we dismiss the appeal as untimely. 

FACTS

This
action arises from a motor vehicle accident that occurred when the vehicle in
which Jennifer Christmas was a passenger was struck from behind by a vehicle
driven by Dale Eugene Enos, Jr.  Jennifer and her husband Jay Christmas brought
this action against Enos and his employer A Rainbow of Carpets, Inc., alleging
causes of action for negligence, negligent entrustment, negligent hiring,
supervision, and training, and loss of consortium. 

On
November 30, 2005, the jury returned a general verdict in favor of Jennifer
Christmas in the amount of $30,000.  It awarded no damages to Jay Christmas. 
Appellants filed a motion for a new trial on December 12, 2005.  The trial
court denied this motion in an order filed December 22, 2005.  Appellants
received this order on December 29, 2005 and on January 8, 2006, filed a motion
to reconsider or to alter or amend judgment pursuant to Rule 59(e), SCRCP.  The
trial court denied this motion February 22, 2006 in a form order.  Appellants
received written notice of the entry of this order on February 28, 2006.  They
served their notice of appeal on March 29, 2006. 

LAW/ANALYSIS

“The requirement of service of the notice of appeal is
jurisdictional, i.e., if a party 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.”  Elam v. South Carolina Department of
Transportation, 361 S.C. 9, 14-15, 602 S.E.2d 772, 775 (2004).  An
appellant must serve the notice of appeal in a case appealed from the Court of
Common Pleas on all respondents within thirty days after receipt of written
notice of entry of the order or judgment.  Rule 203(b)(1), SCACR.  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.  Elam, 361 S.C. at 15, 602 S.E.2d at 775.  However, a successive
post-trial motion, where a party simply recaptions a written motion for
judgment notwithstanding the verdict (JNOV) or new trial, which has been ruled
on, and resubmits it as a virtually identical, written Rule 59(e) motion does
not stay the time for the service of the notice of appeal.  Quality Trailer
Products v. CSL Equipment Co., 349 S.C. 216, 220, 562 S.E.2d 615, 618
(2002).Appellants’ motion to alter or amend is virtually identical to their
motion for a new trial other than the caption and opening paragraphs setting
forth the procedural history.  In the motion to alter or amend, Appellants did
not request the trial court rule on an issue raised in the prior motion and not
ruled on nor did they challenge a new ruling.  Thus, as in Quality Trailer
Products, this successive motion did not stay the time for serving the
notice of appeal.  Appellants received the trial court’s order denying their
written motion for new trial on December 29, 2005.  They had thirty days from
this date in which to serve their notice of Appeal on the Christmases. 
Appellants, however, did not serve the notice of appeal until March 29, 2006. 
As the service of the notice of appeal was untimely, this court lacks
jurisdiction to consider the appeal. 

Accordingly, the appeal is

DISMISSED.

HUFF AND PIEPER, JJ., and GOOLSBY, A.J., concur.