Tag Archives: appellate practice

Withdrawn 59 Motion Tolls Time to Appeal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 On appeal, Citimortgage argued in part that a withdrawn Rule 59 motion does not toll the time to appeal. It contended, in essence, that the withdrawn motion never existed.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period to appeal did not begin to run until Drexler received written notice of the ruling that the Rule 59 motion was withdrawn. The Court of Appeals reasoned that the Rule 59 motion could not be withdrawn until the court ruled it was withdrawn, and that the time to appeal is tolled until then.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.

 

Video of Michael Tigar’s Tips for Appeals

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Michael E. Tigar

Michael E. Tigar

Michael Tigar, co-author of Federal Appeals: Jurisdiction and Practice, offers his class at Duke University 12 tips on handling appeals. The video is below.

 

 

An earlier post also describes some of Tigar’s tips for brief writing. Anyone have other tips to add? Please leave a reply or reach me at www.attorneyroberthill.com.

Video of Judge Clifton’s Tips for Appeals

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Judge Richard Clifton

Judge Richard Clifton

Judge Richard Clifton of the Ninth Circuit recently offered tips for oral argument in an appeal. The hour-long video of his and two attorneys’ CLE is below.

Five of Judge Clifton’s many points are:

  • Simplify – be able to tell a non-lawyer in a few sentences why you should win and why your conclusion makes sense.
  • Know the record and the cases - be able to answer “Where is that in the record?” “What is your best case?”
  • Answer the question – listen closely to the judge’s question, answer it directly, and then explain if necessary.
  • Engage in an informed conversation - speak as if you were talking to a knowledgeable friend and not as making an emotional plea to a jury.
  • Maintain credibility – admit you don’t know the answer if you don’t know. Do not say “I wasn’t trial counsel” or “That question isn’t our case.” The judges know that their hypothetical is not your case; that is why it is a hypothetical.

Anyone else have other tips to add? Please leave a reply or reach me at www.attorneyroberthill.com.

 

 

 

 

Taxing Costs on SC Appeal – When to Move, What to Request

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17740423.cmsToday, April 15th, is of course tax day. This prompted thoughts about an experience I had when an opposing counsel moved to tax costs after a single Court of Appeals’ judge denied my motion to dismiss an appeal.

What? I planned to pursue the motion to dismiss with the full panel. What happened if I ultimately won? Would that wipe out an award of costs?

A little research confirmed that the motion was premature, and that Rule 222, SCACR, sandwiches strict time limits on motions to tax costs.

The motion is premature until the appeal is over.

Rule 222(a) provides when the motion can first be made. Costs are taxed when “the appeal is dismissed,” the “judgment is affirmed,” the “judgment is reversed,” “an appeal is affirmed or reversed in part,” or when the an appeal “is vacated.” These terms require finality before costs are taxed.

The subsection on the motion’s timing bolsters this view. Under Rule 222(d) and (e), the motion shall be filed and served within 15 days of the remittitur, with the cost award added to the remittitur. These provisions show that the remittitur must precede the motion to tax costs, and it does not exist until the appeal is over. Rule 221(b), SCACR.

Older case law similarly holds that costs should not be taxed on a case’s first appeal until after the case’s second appeal fully resolved the case. Black v. B.B. Kirkland Seed Co., 163 S.C. 222, 161 S.E.2d 489 (1931).

After I pointed this out to my opposing counsel, he agreed that his motion was premature and withdrew the motion until the appeal was over.

The motion is untimely if not made within 15 days of remittitur.

Again, Rule 222(d), SCACR, requires that a motion to tax costs shall be made within 15 days of the Court issuing the remittitur.  The Court will likely deny the motion summarily if untimely.

What is taxable? How to Request?

Rule 222(d) requires a formal motion to tax costs, and that the motion attach a form attesting to the costs incurred. The form helpfully lays out the various items of taxable costs, including filing fees, copy and printing costs, and an attorneys fee set at $1000. Under “other” on the form, you should consider adding the costs of any supersedeas bonds. Other items are likely not taxable.

Does anyone have any war stories about taxing costs? Though ordinarily automatic, I have had some requests for costs denied without explanation. Anything similar happen to you? Please leave a reply or reach me at www.attorneyroberthill.com.

 

 

Brief-writing Tips from Judge Greenaway

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Judge Joseph A. Greenaway, Jr., of the Third Circuit

Joseph A. Greenaway, Jr.

Judge Joseph A. Greenaway, Jr., of the federal Third Circuit Court of Appeals has recorded some of his thoughts on brief writing. His theme is that appellate briefs are too often written like boring fact pieces and not engaging op-ed pieces. Judge Greenaway argued that the brief should be like an op-ed piece which states a point of view, employs supporting facts, and ultimately persuades the reader to agree.

Judge Greenaway then offered five tips on what to do and six tips on what not to do.

Tips on How to Write Briefs on Appeal

Judge Greenaway’s five tips to persuade:

  • Tell an engaging story in the Fact Statement.
  • Set priorities in the Summary of Argument.
  • Create a precis in the Table of Contents by using complete sentences and clear headings.
  • Start with best arguments to start and finish strong.
  • Master the record.

Tips on What Not to Do in Writing Briefs on Appeal

He then commented on brief-writing errors:

  • Use inaccurate citation form, grammar, and spelling.
  • Miscite the record and the case law.
  • Throw in the kitchen sink without conceding anything.
  • Avoid adverse authority.
  • Overuse string cites and, when used, don’t add parentheticals and quotes
  • Rehash arguments in the Reply Brief

Earlier posts emphasized some of these same tips, including story telling; using the Table of Contents persuasively; limiting the issues and the case citations; and handling bad facts and adverse authority.

Thanks to Judge Greenaway for sharing his tips.  Does anyone have other tips that they would like to share? Please leave 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.

 

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.