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March 16th, 2015

Writing Proposed Orders with Appeal in Mind

by Kathleen Barnes in Practice Pointers

It is common in South Carolina state court for a judge to request one or both parties to submit a proposed order on a motion or bench trial.  Included in this post are several ideas for drafting an order to withstand a challenge on appeal.  Below is a list of suggested sections of a proposed order:

  1. Procedural history
  2. Facts (note in whose favor they are stated, if applicable)
  3. Court’s jurisdiction or authority for the proposed ruling
  4. At least two, independent bases for the ruling
  5. Reasons for rejecting the other party’s arguments

Procedural History

This seems simple enough, right?  “Plaintiff filed a complaint on August 1, 2013, asserting negligence arising out of a motor vehicle accident.  Defendant filed a motion for summary judgment on September 4, 2014.”  Although procedural history does involve reciting filing dates, it is also a good place to prove (or disprove) issue preservation.  For example, if a party raised an issue for the first time in a motion to reconsider, draft the order denying the motion to include that specific procedural finding by the court.

Court’s Jurisdiction or Authority

The order should show the court has the jurisdiction and power to grant the relief requested.  This often arises in motions for discovery sanctions or contempt.  A quick recitation of Rule 37, SCRCP, or the standard for contempt assures the circuit court it may rule in your favor and tells the appellate court that the lower court acted properly in reaching its decision.

Facts

There are two main points to keep in mind when drafting the facts section of a proposed order: (1) which party is entitled to a favorable inference and (2) what is the appellate court’s standard of review on factual findings in this case.

State the inference used in the court’s factual analysis before reciting the findings of fact.  “In making the findings of fact stated below, the Court ‘viewed the evidence and all reasonable inferences that may be drawn from the evidence in the light most favorable to the non-moving party.’ Bass v. Gopal, Inc., 395 S.C. 129, 134, 716 S.E.2d 910, 912 (2011).”  This shapes how the reader interprets the facts and assures the circuit and appellate courts that the order follows the applicable standard.

The appellate court’s standard of review may affect how a proposed order is drafted.  For example, on appeal from a bench trial, the appellate court must affirm the circuit court’s factual findings if there is “any evidence” to support them.  Include numerous facts to support the critical factual findings.  “Defendants had actual knowledge of the slippery floor.  Defendants increased the number of times a day the custodian cleaned that area of the store, received verbal and written complaints from numerous customers, and placed a request for maintenance to patch the roof above the site of the fall two days before the accident.”  This list of “any evidence” supports the credibility of the circuit court’s actual knowledge finding.

At Least Two, Independent Bases for the Ruling

As the winning party below and Respondent on appeal, draft the proposed order to include as many independent bases for the court’s ruling as possible.  This strengthens the argument for affirming because the Respondent can tell the appellate court it may affirm for any one of multiple, independent reasons.  For example, if the circuit court granted summary judgment for a defendant in a negligence action, draft the order to find the plaintiff failed to present evidence of multiple elements of negligence.  The appellate court will only need to agree on one element to affirm.

Reasons for Rejecting the Other Party’s Arguments

Finally, include reasons the circuit court rejected the other party’s arguments.  Citing to unfavorable facts or distinguishing a case relied on by the opposing party should be sufficient.  Explain enough to ensure the appellate court will understand why the circuit court disagreed with the opposing party’s arguments.