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.
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This month, the South Carolina Court of Appeals issued a series of unpublished opinions that apply the state’s various error preservation rules:
- the issue appealed must first be raised and ruled on in the trial court, be the trial court a circuit court, a master, or an administrative law court. Bryant v. Sipsis, Op. No. 2013-UP-060 (S.C. Ct.App. filed Jan. 30, 2013); Hemingway v. South Carolina Dep’t of Corrections, Op. No. 2-13-UP-055 (S.C. Ct.App. filed Jan. 30, 2013); Thomas v. Bolus & Bolus, Op. No. 2013-UP-034 (S.C. Ct.App. filed Jan. 16, 2013); City of Clover v. Broome, Op. No. 2013-UP-018 (S.C. Ct.App. filed Jan. 16, 2013); Berry v. Stokes Import Collision Center, Op. No. 2013-UP-007 (S.C. Ct.App. filed Jan. 9, 2013).
Hope these are helpful.
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.
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.
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.
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.
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.