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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. 

Standards of Review on Appeal – Administrative Agencies

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This post finishes up the discussion on standards of review — how much deference the appellate courts pay to the rulings being appealed. Earlier posts discussed de novo  review for questions of law, the any evidence review of factual findings in actions at law, the preponderance review for factual findings in actions in equity, and the abuse of discretion review for most pre-trial and trial rulings.

This post covers appeals from administrative agencies, particularly the Workers Compensation Commission. As with trial courts, the Commission’s legal conclusions are reviewed de novo. Grant v. Grant Textiles, 372 S.C. 196, 200-201, 641 S.E.2d 869, 871 (2007).

The Commission’s factual findings are reviewed for “substantial evidence.” This substantial evidence standard forbids judicial fact-finding or substituting judicial judgments for the agency’s judgment. Review is limited to whether reasonable minds could reach the conclusion that the agency reached: “Substantial evidence is not a mere scintilla of evidence, but evidence which, considering the record as a whole, would allow reasonable minds to reach the conclusion the agency reached.” Holmes v. Nat’l Serv. Ind., Inc., 395 S.C. 305, 308-309, 717 S.E.2d 751, 752 (2011).

The same standard applies when reviewing an Administrative Law Judge’s factual findings. Hill v. South Carolina Dep’t of Health and Envtl. Control, 389 S.C. 1, 698 S.E.2d 612 (2010).

As I explained in an earlier post, a Workers Compensation appeal that I argued earlier this year turned on whether the issue raised involved a question of law or an issue of fact. I argued from the record that de novo review applied because the Commission misconstrued and misapplied a statute. The Court of Appeals considered the issue as an issue of fact and deferred to the Commission as the fact-finder.

Has anyone else had a similar experience? We would love to hear from you. You may reach me at www.attorneyroberthill.com.

 

 

Standards of Review on Appeal: Pre-Trial and Trial Rulings

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The posts on standards of review have covered the difference between questions of law and issues of fact, and between actions that are tried at law and in equity. This post explains the standards of review for certain pre-trial and trial rulings. The next one covers factual findings by administrative agencies.

Rule 12(b)(6) Motions to Dismiss

In 2007 and 2009, the United States Supreme Court issued decisions that overruled the 50-year old standard for reviewing a federal Rule 12(b)(6) motion to dismiss for failure to state a claim. A plaintiff in federal court must now plead sufficient facts to show that liability is plausible. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

South Carolina has not addressed whether it will adopt the federal plausibility standard. The test has drawn strong criticism, and state high courts are split on whether to adopt it. See, e.g., Hawkeye Foodservice Distrib. Inc. v. Iowa Educators Corp., No. 08-2056 (Iowa Feb. 24, 2012)(declining to adopt Iqbal and citing decisions in accord); Webb v. Nashville Area Habitat for Humanity, Inc., 346 S.W.3d 422 (Tenn. 2011)(same).

Until South Carolina weighs in, the older and familiar standard should continue to apply. Under it, the appellate courts independently review the complaint to determine if the facts alleged and the inferences reasonably deducible therefrom will entitle the plaintiff to any relief on any theory of the case. If so, the Rule 12(b)(6) motion must be denied. Grimsley v. South Carolina Law Enforcement Division, 396 S.C. 276, 281, 721 S.E.2d 423, 426 (2012).

Motions for Summary Judgment

The appellate courts also independently review the record to determine if summary judgment was proper. If the non-movant carries the burden of proof by the normal preponderance of the evidence, he or she can defeat summary judgment by pointing to a mere scintilla of evidence in his or her favor. Hancock v. Mid-South Management Co., Inc., 381 S.C. 326, 673 S.E.2d 801 (2008).

Trial motions

Much more deference is paid to the trial judges when they rule on discovery and trial motions. Such rulings are generally reviewed only for an abuse of discretion. And an abuse of discretion does not occur unless the trial judge’s ruling is controlled by an error of law or is without evidentiary support. See, e.g., Fairchild v. South Carolina Dep’t of Transp., 398 S.C. 90, 727 S.E.2d 407 (2012)(rulings on discovery); Wilder v. Blue Ribbon Taxicab Corp., 396 S.C. 139, 719 S.E.2d 703 (Ct.App. 2011)(evidentiary rulings); Winters v. Fiddie, 394 S.C. 629, 716 S.E.2d 316 (Ct.App. 2011)(jury instructions).

Has anyone asked the South Carolina trial courts to adopt or reject the federal Iqbal standard?  Please let us hear from you. You can reach me at www.attorneyroberthill.com.

Standards of Review on Appeal: Actions at Law or In Equity?

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A recent post covered the South Carolina courts’ differing standards of review for a trial judge’s legal conclusions and the fact-finder’s findings of fact. The universe of factual findings further breaks down into two more categories.

Actions at Law vs. Actions in Equity

The standard of review of factual findings differ if the findings are made in an action at law and in an action in equity. Townes Assoc., Ltd. v. City of Greenville, 266 S.C. 81, 85-86, 221 S.E.2d 773, 775-776 (1976), has become the classic decision on this difference.  It held:

  • in an action at law, factual findings will not be disturbed unless there is no evidence which reasonably supports the finding. This is true whether the case is tried to a jury or to the trial judge.
  • in an action in equity, the Supreme Court may find facts in accordance with its views of the preponderance of the evidence. This is true if the case is tried to a judge alone or if the case is tried to a master and the master and trial judge later disagree.
  • in action in equity, tried first by a master and concurred in by the judge, the factual findings will not be disturbed unless the finding lacks any evidentiary support or is against the clear preponderance of the evidence.

In equity cases, the Court’s ability to find facts does not mean that disregards the trial judge’s findings, particularly his or her credibility findings. Factual findings will still be affirmed unless the appellant satisfies the Court that the preponderance of the evidence is against the finding of the court. Lewis v. Lewis, 392 S.C. 381, 709 S.E.2d 650 (2011).

A real-world application

I am currently relying on the differing standards of review for actions at law and in equity to defend a jury verdict in a car crash case. The trial judge and Court of Appeals reviewed the evidence and agreed that the evidence supports the amount of the verdict. Curtis vs. Blake, 392 S.C. 494, 709 S.E.2d 79 (Ct.App. 2011). The Supreme Court recently granted certiorari.

To argue that the verdict is excessive, the defendant contends that the victim and the victim’s wife lied about the extent of his pain and suffering, mental anguish, and loss of enjoyment of life. He also fails to address the medical evidence that the physical injuries are permanent.

This directly implicates the standard of review. Because a tort action for damages is an action at law, the Supreme Court’s review is limited to whether any evidence supports the verdict. Arguments over the evidence’s weight or credibility are misplaced. My brief explaining this is detail is here:  Curtis v. Blake – Respondent’s Supreme Court Brief. 

Has anyone else caught their opposing counsel misstating the standard of review? Or not saying what the standard is and using the wrong one?  Please let me know if so. You can reach me at www.attorneyroberthill.com.

 

Standards of Review on Appeal: Questions of Law or Fact?

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This post and the next three explore the South Carolina appellate courts’ varying degrees of deference to trial court rulings.This post addresses divides the universe of possible appellate issues into issues of law and questions of fact, explains why the two are treated differently, and offers a tip on how the use the difference. The next three posts cover the differing standards of review for factual findings made in actions at law and in equity, certain rulings made pre-trial and at trial, and factual findings by administrative agencies.

Issues of law are reviewed de novo.

Appellate courts owe trial courts no particular deference when reviewing legal rulings over questions of law. Moriarity v. Garden Sanctuary Church of God, 341 S.C. 320, 327, 534 S.E.2d 672, 675 (2000). This lack of deference includes reviewing the trial judge’s application of the law to stipulated or undisputed facts. J.K. Const., Inc. v. Western Carolina Regional Sewer Auth., 336 S.C. 162, 166-167, 519 S.E.2d 561, 563 (1999). The South Carolina Supreme Court thus leaves it for itself to say what a statute means or what the law is and how it applies.

Why questions of law are reviewed de novo.

The United States Supreme Court has explained why this independent review of legal issues makes sense.Unless review is de novo, trial judges may set in motion divergent developments in the law. And they, institutionally, may be less capable law-givers than appellate courts.

Trial judges by necessity devote their energies and resources to presiding over individual trials, hearing witnesses, and reviewing evidence. They thus lack the structural advantages that appellate judges and Justices enjoy from their extended time for reflection, their benefit of honed appellate briefs, and their ability to collaborate with the other appellate judges or Justices on the court. See Salve Regina College v. Russell, 499 U.S. 225, 231-235 (1991)(explaining basis for de novo review).

Practical application of the distinction.

Appellants can use the distinction between questions of law and of fact to their advantage because they choose and frame which issues to appeal. If possible, each issue should be framed as an issue of law because de novo review for issues of law increases the likelihood of a reversal. Respondents should if possible characterize every issue on appeal as an issue of fact. Deferential review of issues of fact increases the likelihood of an affirmance.

I recently lost such a battle. Earlier this year, I argued to the Court of Appeals that the Workers Compensation Commission misconstrued and misapplied a statute when it declined to consider certain evidence on causation. Review was de novo, I contended, because the record showed that the fuss was over the statute’s construction and application. The Court, however, seemed to think that the issue was really a factual one over how much weight the evidence deserved. By considering the issue as factual, it deferred to the Commission as the fact-finder and affirmed. Thigpen v. Lexington Medical Center, No. 2012-UP-196 (S.C.App. filed March 21, 2012). Oh well.

Has anyone else successfully defended an appeal by characterizing issues of law as issues of fact? We would love to hear from you. You can reach me at www.attorneyroberthill.com.

Substitution Order Immediately Appealable in South Carolina

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This week, the Supreme Court held that an order requiring a plaintiff to substitute and replace the defendant sued with other defendants is immediately appealable. The Court concluded that such an order affects a plaintiff’s right to choose her defendant and effectively discontinues the action against the defendant ordered out of the case. The order is thus appealable under S.C. Code Ann.§  14-3-330(2)(a).

In reaching this conclusion, the Court relied in part on Chester v. South Carolina Dep’t of Pub. Safety, 388 S.C. 343, 698 S.E.2d 559 (2010). In that case, I was able to persuade the Court to reaffirm a plaintiff’s common law right to pick among potential defendants to sue.

Neeltec Enterprises, Inc. v. Long, 397 S.C. 563, 725 S.E.2d 926 (2012).