So, You’re Telling Me I Have to Follow the Whole Rule?

November 22, 2017 - Sarah P. Spruill

In Smith v. Fedor, issued today, the South Carolina Court of Appeals found that a judge may dismiss a motion under Rule 59, SCRCP without considering the merits if it is not provided to the judge within ten days of filing.

In the opinion, the Court explained:

The trial court properly denied [the] motion for reconsideration because he failed to provide the motion to the trial judge within ten days of filing. Rule 59(g) would lack any purpose if trial courts committed error by denying the motion for failure to comply with the rule. Further, our language in Gallagher v. Evert, 353 S.C. 59, 63-64, 577 S.E.2d 217, 219 (Ct. App. 2002) implies a trial court may deny the motion solely on the basis of the rule. See 353 S.C. at 63, 577 S.E.2d at 219 ("Because the [trial] court found it appropriate to hear the matter, we find no error in the [trial] court's decision to decide the motion despite [the appellant's] failure to comply with Rule 59(g), SCRCP." (emphasis added)). Accordingly, the trial court properly denied Smith's motion for reconsideration because he did not timely provide a copy of the motion to the judge. Because the trial court did not err in denying Smith's motion for reconsideration, the arguments presented in that motion are unpreserved.

Given this ruling, it makes sense to forward the motion to the trial judge at the time of service to avoid any risk of failure to comply with Rule 59(g). Full opinion available here.

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