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2008-UP-099 - 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Unpublished Opinion No. 2008-UP-099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.