Tag Archives: federal court

What May Go in the Record on Appeal?

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The last post covered the mechanics of preparing the Record on Appeal. This one explains what may and may not go in the Record and why it matters.

Submission to Trial Court

In general, the Record on Appeal is supposed to contain the orders, judgments, decrees, decisions, pleadings, transcript, charges, exhibits, and other materials that any party designated be included in the Record. Rule 210(c), SCACR. But this broad provision is expressly limited:  “The Record shall not, however, include matter which was not presented to the lower court or tribunal.” Id.

To show that the designated material was presented to the trial court, counsel may consider placing into the Record the file-stamped copies of the pleadings and other exhibits. A few years ago, I was able to convince the Court of Appeals to strike from opposing counsel’s designation exhibits that counsel could not prove were presented to the trial court. File-stamped copies would have cured the problem.

Judicial Notice on Appeal

A narrow exception exists in which the appellate courts may consider materials that were not presented to the trial court. Under Rule 201(f), SCRE, “Judicial notice may be taken at any stage of the proceeding.” The Court of Appeals has construed this to mean that an appellate court may take judicial notice of adjudicative facts that were not presented to the trial court if the adjudicative facts are indisputable. Wise v. Wise, 394 S.C. 591, 716 S.E.2d 117 (Ct.App. 2011).

Matters which may be judicially noticed for the first time on appeal include the trial court’s own records, including statements made in a former opinion in a prior action of the same case. Id. In a recent case, the Supreme Court granted my motion to likewise take judicial notice of materials filed in related proceedings in another court outside South Carolina.

To get such materials in the Record, a party may consider moving the appellate court to take judicial notice even though the materials were not presented to the trial judge. If the motion is granted, the materials may be placed in an Appendix to the Record on Appeal. Rule 212(b-c), SCACR.

Review is Limited to the Record

What may be included in the Record is crucial because the appellate courts will not consider anything outside the Record and any Appendix to the Record. Rule 210(h), SCACR.

Has anyone else caught opposing counsel trying to slip something into the Record that was never presented to the trial court. Please reach me www.attorneyroberthill.com to discuss it.

 

 

 

State Rule 11 Applies to Vexatious Removals

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“We take this opportunity to state definitively that vexatious removal is sanctionable conduct, and parties will be held accountable for the unnecessary expense and delay caused by abuses of the right to removal.” So said the Court in Ex Parte: Bon Secours-St. Francis Xavier Hospital, 393 S.C. 590, 713 S.E.2d 624 (2011).

In that case, the Hospital and others waited to the eve of trial to file a second notice of removal to federal court. The Plaintiff, Dr. Thomas R. Wieters, moved to remand yet did not ask the federal court to impose sanctions. He instead informed the federal court that the state court could take up sanctions after remand. The federal court remanded without ruling on whether the removal met the 28 U.S.C. § 1447(c) standard for sanctioning improper removals..

After remand, the state trial judge found that the second removal was based on the same grounds as the first removal, was without merit, and was interposed solely for delay. The court ordered a variety of sanctions, including costs and fees to Dr. Wieters and others.

On appeal, the Supreme Court agreed with the trial court that the second removal was patently without merit, was interposed for delay, and that the trial court could use South Carolina Rule 11 to sanction the removal. It also described the awards to Dr. Wieters as appropriate and reversed only the more unconventional awards to others. Justice Pleicones would not have reached the trial judge’s authority to impose a state sanction where the federal court chose not to impose a § 1447(c) sanction..

The Court left open whether South Carolina Rule 11 applies to removals that are not sanctionable under § 1447(c). Absent unusual circumstances, § 1447(c) sanctions do not apply if the removal is objectively reasonable. Martin v. Franklin Capital Corp., 546 U.S. 132 (2005). In contrast, South Carolina Rule 11 applies to all papers interposed for delay. What then about a removal that passes the reasonableness test yet is interposed for delay?

Courts are split. The New Mexico Court of Appeals reversed a state sanction for an improper removal that was entered without finding a violation of the federal standard. Barela v. Barela, 95 N.M. 207, 619 P.2d 1251 (N.M.App. 1980). In contrast, the Court in Nodier v. Ungarino & Eckert, L.L.C., No. 2006 CA 1461, 2007 WL 1300805 * 6 (La.App. May 4, 2007), reasoned that a defendant is answerable for each notice of removal filed in the respective state and federal courts, according to the law applicable to each court.

This issue did not arise in Bon Secours because the Court majority concluded that the removal was patently without merit. This, of course, satisfies both the federal and state standards for sanctions.

What do you think? Will the case deter improper removals? Please leave a reply or reach me at www.attorneyroberthill.com.