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South Carolina
JUDICIAL DEPARTMENT
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2001-05-29-02

The Supreme Court of South Carolina


ORDER


By Orders dated January 26, 2001, the attached amendments to the South Carolina Appellate Court Rules, the South Carolina Rules of Civil Procedure, the Circuit Court Alternative Dispute Resolution Rules, and the Family Court Mediation Rules were submitted to the Chairmen of the House and Senate Judiciary Committees. The amendments have not been disapproved by the General Assembly in the manner provided by Article V, § 4A, of the South Carolina Constitution. Accordingly, the amendments shall become effective on September 1, 2001.

s/Jean H. Toal                                    C.J.

s/James E. Moore                             J.

s/John H. Waller, Jr.                           J.

s/Costa M. Pleicones                        J.

s/Donald W. Beatty                            J.

Columbia, South Carolina
May 29, 2001


AMENDMENTS TO THE
SOUTH CAROLINA APPELLATE COURT RULES


(1) The last sentence of Rule 222(e), SCACR, is amended by replacing the phrase "Rule 226(i)" with Rule 226(j).

(2) The second sentence of Rule 226(j)(2), SCACR, is amended to read: "Additionally, the party may, to the extent the party actually incurred these costs, recover: (1) the filing fee paid under Rule 226(c); (2) the cost of printing the Appendix under Rule 226(e); and (3) the cost of printing the party’s brief(s) under Rule 226(i)."

(3) Rule 238 (f), SCACR, is amended by deleting the phrase "Clerk of the Supreme Court" and replacing it with "clerk of the appellate court."

(4) Rule 239(c)(1), SCACR, is amended by adding the following:

(a) Rules of Professional Conduct, Rule ___, RPC, Rule 407, SCACR.

(b) Rules for Lawyer Disciplinary Enforcement, Rule ___, RLDE, Rule 413, SCACR.

(c) Code of Judicial Conduct, Rule ___, CJC, Rule 501, SCACR.

(d) Rules for Judicial Disciplinary Enforcement, Rule ____, RJDE, Rule 502, SCACR.

(5) Rule 239(c)(6), SCACR, is amended to read:

(6) South Carolina Rules of Magistrates Court, Rule ___, SCRMC.


AMENDMENTS TO THE
SOUTH CAROLINA RULES OF CIVIL PROCEDURE

(1) Rule 5(b)(2), SCRCP is amended to read:

(b)(2) Service on Sunday. Civil process may be served on Sundays, provided that no person may be served going to or from or attending a regularly or specially scheduled church or religious service on Sunday.

(2) The following is added after the Note to Rule 5(b)(2), SCRCP.

Note to 2001 Amendment

Rule 5(b)(2) is rewritten to reflect the enactment of S.C. Code Ann. § 15-9-17, 2000 S.C. Acts No. 360, which allows for the service of process on Sundays with the stated exceptions.

(3) Rule 29, SCRCP, is amended to read:

Unless the court orders otherwise, the parties may by written stipulation (1) provide that depositions may be taken before any person, at any time or place, upon any notice, and in any manner and when so taken may be used like other depositions, and (2) to the extent allowed by Rule 6(b), modify the procedures provided by these rules for other methods of discovery.

(4) The following Note is added to Rule 29, SCRCP:

Note to 2001 Amendment

The 2001 amendment eliminates the requirement of court approval for requests for extensions regarding discovery procedure where the parties agree to the extension in writing. Extensions are limited by Rule 6(b) which allows the parties to stipulate to only one extension and for the original time provided.

(5) The second sentence of the second paragraph of Rule 36(a), SCRCP, is amended to read:

The matter is admitted unless, within 30 days after service of the request, or within such shorter or longer time as the court may allow or as stipulated in writing by the parties pursuant to Rules 29 and 6(b), the party to whom the request is directed serves upon the party requesting the admission a written answer or objection addressed to the matter, signed by the party or by his attorney, but, unless the court shortens the time, a defendant shall not be required to serve answers or objections before the expiration of 45 days after service of the summons and complaint upon him.

(6) The following Note is added to Rule 36(a), SCRCP.

Note to 2001 Amendment

The second sentence of the second paragraph of Rule 36(a) is amended to reflect the change in Rule 29 allowing the parties, under certain circumstances, to stipulate to extensions.

(7) The third sentence of Rule 30(j)(8), SCRCP, is amended to read:

If the documents have not been so provided or identified, then counsel and the witness may have a reasonable amount of time to privately discuss the documents before the witness answers questions concerning the document.

(8) The following Note is added to Rule 30, SCRCP.

Note to 2001 Amendment

Rule 30(j) is amended to clarify that any consultation between lawyer and client permitted by Rule 30 will be private.

(9) Rule 40, SCRCP, is amended as follows:

(a) Rule 40(d) and (e)(1) are amended to read:

(d) Transfer to Jury Roster Within Six to Nine Months of Filing.

(1) Agreement or Objection. No earlier than 180 days after the date the case was filed, any party may file and serve upon all other parties a Request to Transfer that case from the General Docket to the Jury Trial Roster. Within 10 days of the service of the Request to Transfer all other parties shall file and serve either an Agreement to Transfer, or, an Objection to the Request to Transfer. Absent a timely filing indicating a position, the same shall be waived. If all parties have agreed to the transfer, the requesting party shall notify the clerk in writing of the agreement and the clerk shall place the case on the Jury Trial Roster, and it may be called for trial as provided in paragraph (b). If any party files an Objection to Transfer, the case may not be transferred to the Jury Trial Roster within 9 months of filing of the complaint except by agreement or as provided in (d)(2) below.

(2) Objection Shall State Proposed Date of Transfer. Any party who objects to the transfer to the Jury Trial Roster shall also state in its Objection to Transfer whether it will consent to the transfer of the case to the Jury Trial Roster within 9 months of the date of the filing of the complaint, and the date on which it will consent to the transfer. Absent a timely filing indicating a position, the same shall be waived. If all non-moving parties specify a date within 9 months of the filing of the action on which the case may be transferred, the requesting party shall notify the clerk in writing of the agreement to transfer the case to the Jury Trial Roster on the latest date specified by any party that is less than 9 months after filing.

(e) Transfer to Jury Roster Nine Months to Twelve Months After Filing.

(1) Request and Response. No earlier than 9 months after the case was filed, any party in any case on the General Docket may file or re-file and serve upon all other parties a Request to Transfer to the Jury Trial Roster. Within 10 days of the service of the Request to Transfer all non-moving parties shall file and serve either an Agreement to Transfer on the date requested, or a Request for a Scheduling Order as provided in (e)(2) below. No other response is permitted. Absent a timely filing indicating a position, the same shall be waived. If all counsel of record have agreed to the transfer, the moving party shall notify the clerk in writing of the agreement, and the clerk shall place the case on the Jury Trial Roster and it may be called for trial as provided in (b).

(b) Rule 40(f) is amended to read:

(f) Automatic Transfer. The clerk shall review the General Docket and shall transfer to the Jury Trial Roster all cases which have remained on the General Docket for 12 months and in which the court has not entered a Scheduling Order setting the date when the case is to be transferred to the Jury Trial Roster or in which there is no pending motion for a Scheduling Order in the file. The clerk shall notify counsel of record of the transfer, but publication of the Jury Trial Roster also shall be deemed notice of the automatic transfer.

(c) Rule 40(k) is amended to read:

(k) Alternate Method of Transfer to Jury Roster. Notwithstanding any other provision of this rule, any party may file and serve on all other parties a Request to Transfer that case from the General Docket to the Jury Trial Roster no earlier than 120 days after the case was filed. The Request must certify that the party is ready to go to trial and must indicate any outstanding pre-trial matters. Within 10 days after service of the Request to Transfer, any party may file a Response to the Request. If the Response opposes the transfer, it shall indicate in what respect the case is not ready for trial. Once the time to file Responses has expired, the clerk shall promptly set the Request for Transfer for a hearing before the Chief Judge for Administrative Purposes. The hearing shall be given priority as provided by subdivision (h) of this rule. After a hearing, the Chief Judge may, as a matter of discretion, transfer the case to the Jury Trial Roster.

(10) The following Note is added to Rule 40, SCRCP.

Note to 2001 Amendments

Rule 40(d), (e)(1), (f), and (k) are amended to shorten the time period before cases move to the Jury Trial Roster.

(11) Rule 53(d), SCRCP, is amended to read:

(d) Compensation of Special Referees. The compensation of the special referee shall be paid by the parties in such amount as shall be set by the special referee, subject to review by the circuit court upon objection by any party within ten (10) days of receipt of the order.

(12) The following Note is added to Rule 53, SCRCP.

Note to 2001 Amendment

Rule 53(d) is amended to provide that fees for special referees are set by the special referee subject to review by the circuit court if a party timely objects.

(13) Rule 71.1(c), SCRCP, is amended by adding the following sentence:

The caption in all post-conviction relief actions shall read: Full Name and Prison number (if any) of Applicant v. State of South Carolina.

(14) Rule 71.1(g), SCRCP, is deleted and Rule 71.1(f), SCRCP, is amended to read:

(f) Appellate Review; Continuing Representation. A final decision entered under the Act shall be reviewed according to the procedure specified by Rule 227, SCACR. If an applicant represented by counsel desires to appeal, counsel shall serve and file a Notice of Appeal as required by Rule 227,
SCACR, and shall continue to represent the applicant on appeal unless automatically relieved under Rule 602, SCACR, or allowed to withdraw under Rule 235, SCACR. If the applicant is indigent, counsel shall assist the applicant in obtaining representation by the Office of Appellate Defense.

(15) The following Note is added to Rule 71.1, SCRCP.

Note to 2001 Amendments

These amendments consolidate former Rule 71.1(f) and (g) and change the method of appointment of counsel for indigents on appeal to conform to Rule 602, SCACR.



AMENDMENTS TO THE CIRCUIT COURT ALTERNATIVE DISPUTE
RESOLUTION RULES AND THE FAMILY COURT MEDIATION RULES

(1) Rule 7(d) of the Circuit Court Alternative Dispute Resolution Rules is amended to read as follows:

(d) Judgment Entered on Award. If the case is not terminated by agreement of the parties, and no party files a demand for trial de novo under Rule 7(c), the prevailing party shall submit to the Chief Judge for Administrative Purposes a proposed order directing the entry of judgment on the award which, when entered, shall have the same effect as a Consent Judgment in the action and may be enforced accordingly.

(2) Rule 10(a)(1) of the Family Court Mediation Rules is amended to read:

(1) Be admitted to practice law in this State for at least three (3) years and be a member in good standing of the South Carolina Bar.

(3) Rule 10(a)(2) of the Family Court Mediation Rules is amended to read:

(2) Be admitted to practice law in the highest court of another state or the District of Columbia for at least three (3) years and meet the following qualifications:


(4) Rule 10(a)(3) of the Family Court Mediation Rules is amended to read:

(3) Be a licensed psychologist, licensed master social worker, licensed independent social worker, licensed professional counselor, licensed associate counselor, licensed marital and family therapist or a licensed physician specializing in psychiatry for at least three (3) years under Tile 40 of the 1976 Code of Laws, as amended.

(5) Rule 10(b) of the Family Court Mediation Rules is amended to read:

(b) Have completed a minimum of forty (40) hours in a family court mediation training program approved by the Supreme Court or its designee, or any other training program attended prior to the promulgation of these rules or attended in other states and approved by the Supreme Court or its designee;

(6) Rule 10(e) of the Family Court Mediation Rules is amended to read:

(e) Has not within the last five (5) years been disbarred or suspended from the practice of law or a profession set forth in Rule 10(a)(3), been denied admission to a Bar or denied a professional license for character or ethical reasons or been publically reprimanded or publically disciplined for professional conduct.