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2004-UP-216 - 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Unpublished Opinion No. 2004-UP-216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 remittiturId. 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.