Tag Archives: Record on Appeal

Complete the Record on Appeal

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Earlier posts here and here described how the record on appeal is complied and how important it is to make sure that the record is complete. Last week, the South Carolina Supreme Court drove the point home.

In Dutch Fork Development Group II v. SEL Properties, Op. No. 27139 (S.C. Sup.Ct. filed August 22, 2012)(Shearouse Ad.Sh. 29 at 16), the jury awarded $ 4 million against a manager of a limited liability company for tortiously interfering with his company’s contract with a third party.

On the manager’s appeal, the Court first held that managers of limited liability companies may indeed be held individually liable for wrongfully interfering with their companies’ contracts. But it then concluded that there was no evidence to support the verdict, in part because the company’s operating agreement was not in the record. Without the operating agreement, the Court concluded, it could not tell whether the manager’s purportedly wrongful acts exceeded the scope of his legitimate authority. The Court reversed the $ 4 million verdict on the tortious interference claim.

Wow. Has anyone out there similarly prevailed on appeal because your opponent failed to get the required materials into the record? Please let me know. You can reach me at www.attorneyroberthill.com.

 

 

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.

 

 

 

Preparing the Record on Appeal

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An earlier post explained that the party taking the appeal is responsible to make sure that the Record on Appeal is complete. The appellate courts will likely affirm the lower court ruling if the Appellant does not give the appellate courts an adequate record to review. Beverly S. v. Kayla R., 395 S.C. 399, 718 S.E.2d 224 (Ct.App. 2011).

This post covers how to prepare the Record. The next one discusses what the Record may and may not include.

Mechanics on Preparing the Record

Preparing the record normally begins with ordering the hearing transcript from the court reporter. In appeals from civil cases, the party appealing has 10 days from serving the Notice of Appeal to order the transcripts required to support the appeal. A copy of the letter ordering the transcript must be furnished to the appellate court. Rule 207, SCACR.

Once the transcript is received, the party taking the appeal has 30 days to prepare an Initial Brief and file and serve a Designation of Matter to be Included in the Record on Appeal. Rule 209, SCACR. In preparing this Designation or list of materials to be added, the party taking the appeal needs to include everything that supports the statement of facts and arguments made, including where the arguments were made and ruled on in the trial court. Rule 208(b)(4), SCACR, require that the Initial Briefs cite to the Record, and the materials must normally be designated to cite to it.

After the party responding to the appeal receives the Appellant’s Initial Brief, he or she has 30 days to prepare a Respondent’s Brief and file and serve an additional Designation of Matter that he or she wants in the Record. Rule 209, SCACR.

The party taking the appeal then has 10 days to prepare any Reply Brief and designate  any further materials for the Record.  Rule 209, SCACR. 

After all of the designations are in, the Appellant must gather together all of the materials designated by any of the parties, place these materials in a particular order, paginate the materials consecutively, and prepare a table of contents. Rule 210, SCACR. Counsel must also certify that the record contains all material proposed by any of the parties and not any other material, and include the certification in the Record. Rule 210(g), SCACR.

The parties then use the Record to prepare their Final Briefs. These Final Briefs cite to the new pagination in the Record on Appeal rather than the pagination on the original materials. Rule 211(b)(1), SCACR.

Tips on Preparing the Record

In preparing record designations, the temptation is to designate everything to avoid leaving anything out. Fight the temptation. When designating material, counsel must certify that the designation contains no matter which is irrelevant to the appeal. Rule 209(c), SCACR. It is unlikely that every page of a transcript is relevant, and designating material unnecessarily tees up a motion for costs. Under Rule 222(c), SCACR, a party harmed by having to include irrelevant material may recoup those costs.

Lastly, please make sure that you include the required certifications and that the Record’s cover lists the names, addresses, and telephone numbers of all counsel of record. Unlike briefs, information on all counsel of record must be included. Rule 267(a), SCACR. 

Does anyone have any interesting experiences in pulling together a Record on Appeal? Please let us know. You can reach me at www.attorneyroberthill.com.