Tag Archives: South Carolina

Unappealable Order? Consider Certiorari

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wax-sealLast Friday’s post noted that the South Carolina Supreme Court may review trial-court orders on certiorari even if the order is not appealable before final judgment. This post describes how this works.

Initially, a writ to review a trial-court order is a common law writ. It differs from writs of certiorari to review final decisions from the Court of Appeals or final decisions in cases for post-conviction relief. Rules 242 and 243, SCACR, govern those writs.

Rather the common law writ allows the Supreme Court to step in and review trial-court orders before the case in the trial court is over. The Supreme Court enjoys this authority under the constitution and by statute. S.C. Const. art. V, § 5; S.C. Code Ann. § 14-3-310.

Standards for Issuing the Writ

But the Court applies stringent standards on its discretion:

  • the Court only corrects errors of law and will not review findings of fact unless the findings are wholly unsupported by the evidence. Jacoby v. South Carolina Bd. of Naturopathic Exam’rs, 219 S.C. 66, 88-89, 64 S.E.2d 138, 148-149 (1951).
  • the Court will not review errors or mistakes in matters of discretion. Jacoby, 219 S.C. at 88, 64 S.E.2d at 148.
  • the Court will not review the order unless exceptional circumstances overcome its general rule against substituting certiorari for a later appeal. In re Breast Implant Product Liability Litig., 331 S.C. 540, 543 n. 2, 503 S.E.2d 445, 447 n. 2 (1998).

“Exceptional circumstances” include:

  • novel questions of law on
  • issues of significant public interest that
  • arise in numerous actions where
  • review would eliminate numerous inevitable appeals.

Laffitte v. Bridgestone Corp., 381 S.C. 460, 471-472, 674 S.E.2d 154, 160-161 (2009); In re Breast Implant., 331 S.C. at 543 n. 2, 503 S.E.2d at 447 n. 2.

Examples

Compelling discovery – The Supreme Court has issued common law writs of certiorari to review trial-court orders compelling discovery. See Laffitte (trade secrets); Hollman v. Woofson, 384 S.C. 571, 683 S.E.2d 495 (2009)(medical information from non-parties); Oncology and Hematology Assoc. of S.C., LLC, v. South Carolina Dept. of Health and Envtl.Control, 387 S.C. 380, 692 S.E.2d 920 (2010)(irrelevant and abusive discovery requests).

But the Court cautioned, “Our willingness to review a discovery order by way of a writ of certiorari will be as rare as the proverbial ‘hen’s tooth.’” Oncology and Hematology Assoc. of S.C., 387 S.C. at 388, 692 S.E.2d at 924.

Subject-matter jurisdiction -  The Court has also stated that one of the writ’s most important functions is to see whether the lower court has subject matter jurisdiction. City of Columbia v. South Carolina Public Serv. Comm’n, 242 S.C. 528, 532, 131 S.E.2d 705, 707 (1963).

Product Liability – The Supreme Court used the writ to review the liability standards for breast-implant manufacturers, reasoning that the legal issued were novel, of great public interest, and were present in many cases. In re Breast Implant., 331 S.C. at 543 n. 2, 503 S.E.2d at 447 n. 2.

Constitutional Issues – In contrast, the Court has stated that certiorari does not ordinarily lie to decide a statute’s constitutionality because further developments may moot the constitutional issue. Floyd v. Thornton, 220 S.C. 414, 424-425, 68 S.E.2d 334, 339 (1951).

Mechanics of Petitioning

Because a common law writ of certiorari is an extraordinary writ within the Supreme Court’s original jurisdiction, Rule 245, SCACR, applies. It provides that the petition shall comply with Rule 240, SCACR. Rule 240, SCACR, in turn, specifies a petition’s form, content, and filing.

Has anyone successfully petitioned the South Carolina Supreme Court to review an unappealable trial-court order? Please let us hear how you did it. You can leave a reply or reach me at www.attorneyroberthill.com.

 

So Lead with Conjunctions

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What do Chaucer, Einstein, and the Grammar Girl have in common? They begin sentences with conjunctions. And they are not alone.

Matthew Salzwedel, a blogger over at The Lawyerist, recently collected some of the authorities which agree that it is perfectly proper to begin sentences with conjunctions. His scholarly post lists among other authorities Bryan A. Garner, John Trimble, H.W. Fowler, William Zinsser, and The Chicago Manual of Style.

The Chicago Manual of Style puts it this way -

There is a widespread belief — one with no historical or grammatical foundation — that it is an error to begin a sentence with a conjunction such as and, but, or so. In fact, a substantial percentage (often as many as 10 percent) of the sentences in first-rate writing begin with conjunctions. It has been so for centuries, and even the most conservative grammarians have followed this practice.

On first-rate writing from centuries ago, the Manual could have cited Chaucer, Shakespeare, Swift, and Shelley. All used conjunctions to begin sentences. In Garner on Language and Writing, Garner reports that Jonathon Swift began his sentences with conjunctions more than one-fifth of the time.

Yet the purported prohibition lingers (see here and here). Why? And where did the rule against it come from?

Salzwedel notes that writing authorities are unsure how the purported prohibition started. The simplest reason seems best, and that is the rule was created to avoid sentence fragments. But you can begin with a conjunction without creating a sentence fragment. And it makes writing powerful.

Because a danger exists, however, the technique should be used sparingly. Garner reports that contemporary journalism begins sentences with conjunctions in about 15% of sentences. That seems right. Using conjunction-starters more often may render the writing too choppy. Or it may not.

Does anyone have thoughts on using conjunctions? Please leave me a reply or reach me at www.attorneyroberthill.com. In the meantime, please enjoy the video –

Briefs on Appeal: Where’s the Theme?

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I recently read almost 10 pages of an appellate brief before learning what the appeal was about. Even then, I did not know why the author thought his client should win.

It took me a little longer to realize that the problem was the brief’s lack of a theme. There was no underlying focus or theory of the case that came through, at least not clearly.

Senior Circuit Judge Ruggero J. Aldisert’s treatise, Winning on Appeal: Better Briefs and Oral Argument, describes the brief’s theme as its unifying focus and heart. It answers the question, “What in the heck is the message?!.”

Judge Aldisert explains that this unifying focus sets the flavor and mood of the argument. “It directs the judge’s attention immediately to where the trial court’s error took place and explains straightaway why the trial court was wrong or, when used by the appellee, why it was right. It tells the appellate court what relief you want.”

You are shooting for an elevator pitch. Could you tell a lay person in a few sentences what the case is about, what relief you want, and why you should get it?  That is your theme.

You sometimes have choices. In a recent appeal, I was blessed with a sympathetic plaintiff, favorable statutory language, and abundant case law construing the statute my way. What is the theme? Should the focus be on the parties, thus pitting a greedy defendant against the sympathetic plaintiff? Or is the focus on the rules, pitting the defendant against the statutory text and stare decisis?

It was a tough call. In the end, I chose to focus on the statute’s text and the decisions construing it favorably. This was a judgment call based on my knowledge of my audience. The South Carolina Supreme Court has held, “Legislative intent, once determined, is ‘permanently settled’ absent subsequent action by the General Assembly to effect a change in the statutory law.” Wehle v. The South Carolina Retirement System, 363 S.C. 394, 403, 611 S.E.2d 240, 244 (2005).

I have my fingers crossed that stare decisis will win the day

How do you all decide on a theme for your appeal? Please leave me a reply or reach me at www.attorneyroberthill.com.

 

 

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.

 

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.

 

 

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 Supremes: Cite the Entire Ruling

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Last month, I posted on attorneys who create accidents with contextomy. Sounds weird, I know, without defining the terms.

“Accident,” in this sense, is a logical fallacy in which one advocates a general rule without acknowledging any exceptions. Contextomy means taking something out of context. The post noted that the two often go together.

State v. Dawson, Op. No. 27238 (S.C. Sup.Ct. filed April 3, 2013)(Shearouse Ad.Sh. 15 at 14), shows the two at work.

At issue on appeal was whether a defendant is sentenced under the law in effect at the crime’s commission or the law in effect at the defendant’s sentencing. Defense counsel argued for the common law rule and cited a case saying that the common law governed.

Problem was that the case counsel cited held that the common law rule governed “in the absence of a controlling statute.” And counsel neglected to mention that part of the holding.

The omission did not escape notice. The Supreme Court pointedly observed that counsel omitted the qualifier about controlling statutes, and concluded that a statute did indeed control.

Truncating quotes is not new, and happened often enough for the courts to create safeguards. During trial, for example, a party may use Rule 106, SCRE, to get opposing counsel to introduce other parts of a writing or recorded statement into evidence once counsel introduces part of a  writing or recording. Rule 32(a)(4), SCRCP, likewise allows a party to require opposing counsel to introduce into evidence other parts of a deposition once counsel introduces any part of the deposition. Both rules make sure that counsel is not creating an accident with contextomy  — otherwise known as quoting out of context.

Has anyone else had opposing counsel truncate quotes on appeal? Please leave a reply or a comment, or reach me at www.attorneyroberthill.com.