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April 6th, 2015

Settlement on Appeal

Settling a case on appeal may involve any one of numerous filings with the court, depending on the stage of the appeal.  This post discusses the most common filings.

Abeyance

The parties may file a motion to hold an appeal in abeyance while negotiating and finalizing a settlement.  An abeyance stays the appeal rather than simply extending filing deadlines.  This motion should follow the general guidelines in Rule 240, SCACR, and include the grounds for holding the appeal in abeyance, as well as whether all parties consent to the motion.  State in the motion the time period needed for the parties to settle or the particular event tied to the abeyance, such as an appeal deciding the same issue or settlement of a companion case.  The court may advise the parties to dismiss the appeal with leave to file the notice of appeal again rather than holding the appeal in abeyance.

Settlement Agreement and Dismissal

The procedure for dismissing a case on appeal depends on whether court approval of the settlement is required by law or agreed to by the parties.

If circuit court approval is required for a settlement, such as in a wrongful death action, the parties must submit the proposed settlement agreement to the appellate court and move to have the case remanded to the circuit court for a settlement hearing. Rule 261(b), SCACR.  The circuit court cannot approve a settlement of a matter affected by an appeal unless the case is remanded.  Once the case is remanded and the circuit court approves the settlement, the parties must then notify the appellate court of the approval and file a motion to dismiss the appeal. Rule 260(b), SCACR.

If court approval is not required for a settlement, the parties do not need to submit the settlement agreement to the appellate court.  Rather, the parties will notify the court of the settlement and file a joint motion to dismiss the appeal.

Vacate an Opinion

A motion to vacate an opinion arises if the parties reach a settlement either while the case is on appeal from an opinion by the Court of Appeals or shortly after the Supreme Court issues an opinion.  Filing a motion to hold an appeal in abeyance is one way to engage in settlement discussions without the possibility of the court issuing an opinion.

Under Rule 261(d), SCACR, the parties may include a request to vacate an opinion in a settlement agreement submitted to the court or a motion to dismiss if approval of the settlement agreement is not required.  The request must include “facts that warrant this extraordinary relief.” Rule 261(d), SCACR.  Some facts to consider are whether the opinion is published, addresses a novel issue of law, or is based on unique facts.