Category Archives: How to Lose an Appeal Before it Begins

Withdrawn 59 Motion Tolls Time to Appeal

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Judges of the SC Court of Appeals

Judges of the SC Court of Appeals

Say your client lost on summary judgment and you moved to reconsider. You know that the motion is a long shot, and now want to withdraw it so that you may go ahead and appeal. But you are concerned that withdrawing the motion means that you lose the motion’s normal tolling effect on the time to appeal. Do you?

The South Carolina Court of Appeals grappled with this issue last week. In Drexler v. CitiMortgage, Inc., Op. No. 2013-UP-164 (S.C. Ct.App. filed April 24, 2013), Drexler filed a Rule 59(e) motion for the trial court to reconsider a summary judgment order. As earlier posts explain (here and here), timely Rule 59 motions normally toll the 30-day time to appeal until a ruling on the motion.

Drexler then created a wrinkle. While her motion was pending, she submitted a consent order that the trial court believed withdrew the Rule 59 motion. Drexler then appealed over 30 days after the summary judgment order’s entry but within 30 days of the Judge’s ruling that she withdrew her motion. On appeal, Citimortgage argued in part that a withdrawn Rule 59 motion does not toll the time to appeal. It contended, in essence, that the withdrawn motion never existed.

The Court of Appeals disagreed. It ruled in part that the 30 day period to appeal did not begin to run until Drexler received written notice of the ruling that the Rule 59 motion was withdrawn. The Court of Appeals reasoned that the Rule 59 motion could not be withdrawn until the court ruled it was withdrawn, and that the time to appeal is tolled until then.

Anyone else been caught in the same bind? Drexler suggests a way out  — make a formal motion to withdraw the Rule 59 motion, wait until the trial judge rules on the motion to withdraw, and then appeal within 30 days of that ruling.

Do you see another way out? Please leave me a reply or reach me at www.attorneyroberthill.com.

 

SC Workers Comp: What Must the Notice of Appeal Say?

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South Carolina Statehouse

South Carolina Statehouse

Almost all post-2007 notices of appeal in South Carolina workers compensation cases are defective. I know, I know, it is a bold statement. But the workers comp statute says what it says, and it says, “Notice of Appeal must state the grounds of the appeal or the alleged errors of law.” S.C. Code Ann. § 42-17-60. Hardly any do.

To understand why, a brief look at the workers comp statute and the Administrative Procedures Act is helpful.

Brief History of the Workers Comp Statutes on Notices of Appeal

Once upon a time, S.C. Code Ann. § 1-23-380 of the APA required that notices of appeal state the grounds for the appeal and § 42-17-60 of the workers comp statutes did not. In Pringle v. Builder’s Transp., 298 S.C. 494, 381 S.E.2d 731 (1989), the Court held that the APA governed because the content requirement conflicted with the workers comp statute’s silence.

At the time, appeals under both statutes were to the circuit court and not the Court of Appeals.

The Legislature then did something funny. In 1990, it put the content requirement into § 42-17-60, and in 2006 took it out of § 1-23-380. And when it took the requirement out of § 1-23-380, it provided for appeals directly to the Court of Appeals. But it did not then amend the workers comp statute. The workers comp statute continued to require for appeals to the circuit court and that the notice state the grounds.

That next year, the Legislature in 2007 amended the workers comp statute to provide for a direct appeal to the Court of Appeals — without altering the requirement that the notice of appeal state the grounds for appeal.

So where are we now?

Judge Cureton says no need to state grounds

This issue came up in appeal I took a while back. I filed a notice of appeal for a claimant and dutifully stated the grounds in the notice. The employer filed a cross-appeal without stating the grounds. I moved to dismiss, arguing that the notice was defective under § 42-17-60 and that the workers comp statute applied because:

  • The APA and workers comp statutes compliment each other in that the APA deals with the notice of appeal’s service and filing but not its content, and the workers comp statute deals with content but not service and filing.
  • The statutes compliment each other because a party may comply with both (like I did in my notice of appeal).
  • The workers comp statute controlled because it was the Legislature’s last word.

Alas, Judge Cureton disagreed. He ruled that the two statutes conflict and that the Legislature — in 2006 — said that the APA controls when there is a conflict. The order does not address the workers comp statute’s subsequent amendment in 2007.

And the panel ruled against me on the merits, thus allowing it to side-step the issue.

Anyone else face this issue? Please leave a reply or a comment, or reach me at www.attorneyroberthill.com.

 

Preserving Error in SC Appeals – Feb. 2013 Update

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Judges of the SC Court of Appeals

Judges of the SC Court of Appeals

The South Carolina Court of Appeals applied error preservation rules several times this month. Here is a summary of three decisions:

In Carpenter v. Measter, Op.No. 2013-UP-066 (S.C. Ct.App. filed February 6, 2013), the Court declined to consider issues where:

  • the record did not show that the precise issue raised on appeal was raised in the trial court
  • the trial court did not rule on the issue
  • the appellant acquiesced in the trial court’s ruling
  • the issue was not raised in the Statement of Issues on Appeal

The decision up updates earlier posts on raising error in the trial court with specificity and making sure that the Statement of Issues is complete.

The Court this month also twice dealt with when a post-trial motion will and will not toll the time to appeal. In one, the Court held that a post-trial motion did not toll the time to appeal because the motion was never served on the opposing party. It reasoned that only a timely post-trial motion tolls the time, and a motion that was never served is not timely. Lake Marion Regional Water Authority v. Goodwin, No. 2013-UP-088 (S.C. Ct.App. filed February 27, 2013).

In the other case, the Court held that a second post-trial motion, which was served, did not toll the time because it was successive. Peterson v. Peterson, No. 2013-UP-085 (S.C. Ct.App. filed February 20, 2013). This decision updates an earlier post on successive post-trial motions.

Has anyone else recently convinced an appellate court that an issue was not preserved for an appeal? Please share your story by leaving a reply or a comment. You may also reach me at www.attorneyroberthill.com.

 

 

 

 

Zoning Board Review Not Required to Appeal Its Decision

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In South Carolina, those who may have a substantial interest in a local zoning board’s decision may appeal the decision without first raising their objections to the board.

In Bevivino v. Town of Mt. Pleasant Board of Zoning Appeals, Op No. 5080 (S.C. Ct. App. filed Feb. 6, 2013), a town’s zoning administrator permitted a telecommunications company to put up a cell phone tower. Some adjoining land owners appealed the decision to the town’s Zoning Board. Others simply showed up at the hearing to voice their concerns. After the Board affirmed the Administrator’s decision, both those who appealed to the Board and those who did not petitioned the circuit court for review.

The circuit court held that those who only showed up to voice their concerns lacked standing to appeal because their failure to initially appeal the Administrator’s decision to the Board rendered the decision the law of the case as to them.

The Court of Appeals disagreed. It held that any person who may have a substantial interest in a zoning board’s decision has statutory standing to appeal to the circuit court without ever stating his or her concerns to the board. The only error-preservation requirement for a first-level appeal of a zoning board’s decision, the Court held, is that the appellant set forth his or her issues in a written petition to the circuit court within 30 days of the board’s decision.

Has anyone else appealed a zoning board’s decision to the circuit court without first appealing to the board? Please leave a reply or reach me at www.attorneyroberthill.com.

 

 

 

 

 

South Carolina Error Preservation – January 2013 Update

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Judges of the SC Court of Appeals

Judges of the SC Court of Appeals

This month, the South Carolina Court of Appeals issued a series of unpublished opinions that apply the state’s various error preservation rules:

Hope these are helpful.

 

 

Preserving Error in SC Magistrate’s Court

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Judges of the SC Court of Appeals

Judges of the SC Court of Appeals

A fundamental rule in South Carolina law is that one may not raise an issue for the first time on appeal. Previous posts here and here explained how this works on appeals from the circuit court to the South Carolina Court of Appeals and Supreme Court.

Today, the Court of Appeals reaffirmed that the same rule applies on appeals from magistrate courts to the circuit court. In such cases, the issue must first be presented to the magistrate to later raise it on appeal. The case is Greenville County v. Brooks, Op. No. 2013-UP-002 (S.C. Ct. App. filed January 2, 2013).

Has anyone else caught opposing counsel trying raise a new issue? Please leave me a reply or reach me at www.attorneyroberthill.com.

 

Specifically Request a Ruling to Appeal

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Today, the Court of Appeals strictly applied a familiar principle of South Carolina error-preservation law:  a party must get a trial-court ruling on the issue that he or she seeks to appeal or make a Rule 59(e) motion to ask for a ruling.

In Sprott v. Brookdale Senior Living, Inc., Op.No. 2012-UP-679 (S.C. Ct.App. filed Dec. 28, 2012), Sprott brought suit against a nursing home. The nursing home moved to compel arbitration and either dismiss or stay the action. The circuit court enforced the arbitration clause and dismissed the action. Sprott appealed, arguing that trial court should have instead issued a stay.

The Court of Appeals concluded that the issue was not preserved. It found the trial court never ruled on whether the action was properly stayed rather than dismissed, and that Sprott failed to specifically ask the trial court for a stay in a Rule 59(e) motion.

One could think that a trial court, confronted with a motion asking for either a dismissal or a stay, denied the stay by granting a dismissal. Lesson – when in doubt, make the Rule 59(e) motion.

Has anyone else faced a similar situation? Please leave a reply or reach me at www.attorneyroberthill.com.