SC Lawyer, July 2012, #5. Leveling the playing fieid.

• Author: By Kevin Eberle

South Carolina BAR Journal

2012.

SC Lawyer, July 2012, #5.

Leveling the playing fieid

South Carolina LawyerJuly 2012Leveling the playing fieidSouth Carolina Standards of ReviewBy Kevin EberleIn 1976, the S.C. Supreme Court found the lack of familiarity with appellate standards of review so frustrating that it added a special discussion of the topic to an opinion: "An apparent misunderstanding, on the part of the appellate bar, of the jurisdiction of the Supreme Court prompts us to set out the scope of review available upon appeal in civil cases." Townes Assocs., Ltd. v. City of Greenville, 221 S.E.2d 773, 775 (S.C. 1976). The general framework of Townes Associates, Ltd. remains intact, but statutory changes, alterations to court structure and new judicial guidance have cropped up. Because the identification of the proper standard of review remains one of the most important tactical issues in appellate practice, a refresher is in order.

Choosing the right standard

Litigants are entitled to a fair trial, not a perfect one. Smoak v. Seaboard Coast Line R.R. Co., 193 S.E.2d 594, 598 (S.C. 1972). Standards of review keep cases moving by recognizing that, even if the lower court erred, there is no reason to think that an appellate court would do any better on a second try. A standard of review essentially asks: Just how wrong can a decision be before corrective action is required?

The standard of review must be woven into the law and facts when writing an appellate brief, but the proper standard has to be understood before tackling an appeal. If an appellate court has little flexibility and is bound by a lower court's conclusions, the respondent is already nearing victory before the first argument on the merits is even read. On the other hand, if an appellate court has a relatively free hand to disagree with the lower court, an appeal is far more likely to succeed.

Picking a standard of review can sound complex because of overlapping tests and inconsistent phrasings, but at least the process is well-settled in South Carolina. For some appeals, a context-specific standard has been created by state statute that trumps the ordinary selection process. Otherwise, for the vast majority of rulings in South Carolina, the standard turns on a combination of three characteristics: What sort of error was involved? Who made the error? In what sort of case did the error occur? The following discussion of the differ ent forks in the road can help guide a researcher to the correct standard. Fo additional guidance, see the flowchart at www.scbar.org/sclawyer.

Context-specific standards

If the legislature has spoken, then defining the standard of review is simple. A statutory standard is sometimes one of the existing standards, just imposed by statute. For example, in zoning cases, title 6, chapter 29, section 840 of the S.C. Code requires factual findings by a zoning commission to be treated just like a jury's factual findings and reviewed with a commonplace "any evidence" standard discussed below.

Elsewhere, the statutory standard might be a modified standard from another setting or a new standard altogether. In administrative cases, the use of the "substantial evidence" standard is required. S.C. Code Ann. 1-23-380(5) (Supp. 2011). A decision is supported by "substantial evidence" if a reasonable person could have reached the same conclusion. Miller v. State Roofing Co., 441 S.E.2d 323, 324 (S.C. 1994). A decision does not lack substantial evidence just because a reasonable mind might also have disagreed. A reasonable choice will be upheld even if the appellate court would not have made that same choice. Palmetto Alliance, Inc. v. S.C. Pub. Serv. Comm'n, 319 S.E.2d 695, 696 (S.C. 1984).

Likewise, appeals from arbitration enjoy a unique standard of review. Following arbitration, the trial court will not fix factual errors even if convinced of their existence but will look only to whether the arbitrator exceeded his or her powers. See Pittman Mortg. Co. v. Edwards, 488 S.E.2d 335, 338 (S.C. 1997) (applying S.C. Code Ann. 15-48-130 (Supp. 1996)). Even legal errors will not be corrected unless the arbitrator consciously applied the wrong law. Batten v. Howell, 389 S.E.2d 170, 172 (S.C. 1990).

These special, context-specific standards are the exception. They apply largely to decisions made by other-than-traditional tribunals. In most other cases, there is no statutory or specialized standard, and the selection process considers the characteristics of the alleged error.

Law or fact?

The most important characteristic is the nature of the error: Does the issue present a question of law or a question of fact? A "question of law" involves declaring a principle that is true not just for the case being tried, but for every subsequent case. For instance, whether a public figure must prove actual malice in a libel suit is a question of law. Whether that principle, in the end, applies to a case might be debated, but its truth is a matter of law. The facts of the particular case are inconsequential, and the principle could be given by a judge without ever hearing any testimony.

"Questions of fact," on the other hand, are questions of evidence. They require the review of testimony in a specific case to decide their truth. See Sawyer, Wallace Co. v. Macauly, 18 S.C. 543, 548 (1883). They normally answer the who, what, when and where of a case. For example, was the traffic light red or green? How long had the water been on the floor? Questions of fact have definite answers even if they require circumstantial proof (e.g., Was the landlord motivated by the defendant's having a child in refusing to rent the apartment?). Any competent person could listen to the testimony and decide which side to believe, and no amount of legal training makes the decision any more reliable.

If an error raises a question of law, the analysis for the standard of review stops, and the de novo standard applies. N. Am. Rescue Prods., Inc. v. Richardson, 720 S.E.2d 53, 58 (S.C. Ct. App. 2011). The de novo standard is the most appellant-friendly standard on the spectrum. A court examines the issue with a fresh set of eyes using the same analytical framework the lower court used, but the lower court's own resolution gets no deference. Lewis v. Lewis, 709 S.E.2d 650, 654-55 (S.C. 2011).

Some advocates mistakenly describe the de novo standard of review as a de...