Category Archives: Noteworthy Cases

Settlements During an Appeal: A Catch-22?

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Did the SC Supreme Court Create a Catch-22?

Did the SC Supreme Court Create a Catch-22?

The South Carolina Supreme Court recently clarified how to get trial-court approval of a  settlement while the case is on appeal. It may have also created a Catch-22.

In Lancaster v. Georgia-Pacific Corp., Op. No. 2013-000175 (S.C. Sup.Ct. May 20, 2013)(Shearouse Ad.Sh. No. 23), a case filed as a class action was before the South Carolina Supreme Court on a petition for a writ of certiorari and another party’s request for additional time to seek certiorari. While the petition and request were pending, the parties reached a tentative settlement. They then moved the Supreme Court to stay the appellate deadlines so that they could seek the trial court’s approval of the class-action settlement.

The Supreme Court issued a stay but ruled that the trial court was powerless to approve the settlement before the case’s remand. The Court explained that Rule 205, SCACR, grants the appellate court exclusive jurisdiction over the appeal except for matters not affected by the appeal. This exclusive jurisdiction lasts until the appellate court remits the case to the lower court.

Applying this rule, the Lancaster order states, “[W]e remind the bench and bar that action on a settlement may not be taken by the lower court, except with regard to matters not affected by the appeal, while the matter is pending before this Court. The parties must first seek to have the matter remanded to the lower court.”

This is a potential problem. For a remand, the appellate court normally issues a remittitur. But that does not happen under Rule 221(b), SCACR, until the appellate court finally disposes of the appeal. So what happens if you get the appellate court to remit and remand for trial-court approval of the settlement and, on remand, the trial court refuses to approve the settlement? The earlier appeal is gone — having been finally disposed of by agreement.

I guess the parties could try to resurrect the earlier appeal, or take a new appeal of the order refusing the settlement. The Supreme Court did not say.

Rule 261(b), SCACR, may offer an answer. It envisions that the parties may agree to modify the Appellate Courts Rules if the appellate court approves the modification. Parties who need trial-court approval to settle may thus want to consider seeking a conditional remand, for the trial court to approve the settlement, with the understanding that the appeal will be reinstated if the settlement is not approved.

Anyone else see a way around this possible Catch-22? Please leave me a reply or reach me at www.attorneyroberthill.com.

 

 

 

 

SC Appeals Begin Before the Beginning

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Justice Kittredge of the SC Supreme Court

Justice Kittredge of the SC Supreme Court

The South Carolina Supreme Court recently reaffirmed that an appeal begins long before a party files the notice of appeal.

Berry v. South Carolina Dep’t of Health and Environmental Control, Op. No. 27237 (S.C. Sup.Ct. filed March 27, 2013)(Shearouse Ad.Sh. No. 14), involves a dispute over a bulkhead. DHEC granted a permit for some property owners to build a replacement bulkhead but required that it be built where the existing one was located. DHEC later ruled that the property owners built the bulkhead in a different place, and issued two administrative orders: (1) a revocation order undoing the permit; and (2) an enforcement order imposing civil penalties for violating the permit.

The property owners appealed the enforcement order to the circuit court rather than the Administrative Law Court. They argued that S.C. Code Ann. § 48-39-180 authorized the circuit court to review the DHEC order. Yet the circuit court, and ultimately the Supreme Court, disagreed.

The problem is that S.C. Code Ann. § 48-39-180 provides for circuit court review when DHEC revokes permits but not when it enforces a permit violation. Speaking for the Court, Justice Kittredge distinguished between the two and noted that the property owners never sought review of DHEC’s revocation order. They appealed only the enforcement order.The Administrative Law Court reviews enforcement orders.

The Supreme Court bound the property owners to their limited appeal, and held that the circuit court lacked jurisdiction to hear it.

It is anyone guess what would have happened had the property owners appealed the revocation order to the circuit court. The circuit court could have heard that appeal, and may have effectively erased the penalties by reversing the revocation. The theory is that no basis for revocation = no violation = no penalties. But the property owners appealed the wrong order.

Back in August 2011, one of this blog’s first posts discussed why an appeal begins before a party files the notice of appeal. Berry reaffirms the point.

Has anyone else caught opposing counsel in a similar misstep? Please leave a reply or 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.

 

 

 

 

 

SC Allows Amicus to Raise New Issues

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The South Carolina Supreme Court recently allowed amici to raise new issues on appeal.

In State v. Langford, 400 S.C. 421, 735 S.E.2d 471 (2012), the Court considered whether the solicitor’s statutory right to control the circuit court’s criminal docket violates the circuit court’s power to order its business. The Court held that the statute was unconstitutional, but had to first confront its ability to rule because the issue was raised only in an  amicus curiae brief.

Addressing the issue thus implicated five error preservation rules:

  • constitutional issues must be preserved like any other issue
  • an issue must be raised in the trial court
  • an issue must be ruled on by the trial court
  • an issue must be raised in the appellant’s statement of issues on appeal
  • Rule 213, SCACR, limits amici to the issues presented by the parties.

After noting that all these rules were broken, Langford nevertheless held that it could consider arguments raised only by an amicus when the issue concerns a matter of significant public interest. It stressed that this exception must be applied narrowly, so as not to eviscerate long-standing preservation requirements, yet concluded that the case qualified for special treatment.

Has anyone else had an amicus raise new issues on appeal? Please leave a reply or reach me at www.attorneyroberthill.com.

 

Update on SC Trigger for Notice of Appeal

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Judges of the SC Court of Appeals

Judges of the SC Court of Appeals

The South Carolina Court of Appeals this month reaffirmed that the time to serve a notice of appeal does not begin to run until written notice of the order’s entry. It does not matter when a judge signs the order, or when a party gets notice that the judge signed the order, because the order is not effective until the clerk of court later enters it. Portee v. Always Precise Protection Agency, Op. No. 2012-UP-649 (S.C.Ct. App. filed Dec. 5, 2012).

The decision is unfortunately unpublished, thus limiting its value as precedent. For a discussion on unpublished orders, please see this post. Earlier posts here and here also further discuss the South Carolina trigger on the time to appeal.

Has anyone else used the gap between an order’s signing and its later entry in taking an appeal? Please leave a reply or reach me at www.attorneyroberthill.com.

 

 

Exhausting Administrative Remedies is Not Jurisdictional

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Last Wednesday, the South Carolina Supreme Court reaffirmed that a party’s failure to exhaust administrative remedies is not jurisdictional. Exhausting administrative remedies goes to a case’s prematurity, the Court held. It does not effect subject matter jurisdiction.

In confronting an exhaustion argument, the trial court begins with the general rule that a party must exhaust administrative remedies. It then enjoys the discretion to decide if an exception exists, such as whether:

  • pursuing the administrative remedies was futile
  • the administrative remedies were inadequate; and
  • the case presents issues of important public interests that need to be resolved for judicial economy.

On appeal, the trial court’s decision is reviewed only for an abuse of discretion.

The case is Storm M.H. v. Charleston County Board of Trustees, 400 S.C. 478, 735 S.E.2d 492 (2012).

Has anyone been able to persuade a court that administrative remedies are futile or inadequate? Please let us hear for you. You may leave a reply or reach me at www.attorneyroberthill.com.

 

 

Error Preservation on Appeals Revisited

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The South Carolina Court of Appeals today reaffirmed three familiar principles of error preservation:

  • an issue must be clearly raised in the trial court to raise it on appeal
  • an issue is abandoned if not supported by authority
  • an issue may not be raised for the first time in an appellate reply brief.

The decision is Rivera v. Newton, Op. No. 5055 (S.C.Ct.App. filed Nov. 28, 2012)(Shearouse Ad.Sh. 43 at 44).

Has anyone caught opposing counsel in similar errors? Please let us hear from you. You may reach me through the comment box or at www.attorneyroberthill.com.