The Scrivener
| Publication year | 2020 |
| Pages | 56 |
THE SCRIVENER
Opinions That Made A Difference, Part 2
By Scott Moise
The last Scrivener column covered some significant opinions that have made a lasting difference in South Carolina's history. This column covers more decisions, all suggested by readers who have seen the effect of these opinions in their own practices and lives. I have more cases than SC Lawyer has space for, so I will return to this to this survey in future columns. Please keep your ideas coming.
The case of the two-judge rule, the scope of appellate review, and the girl who hated pop quizzes. Townes Associates, Ltd. v. City of Greenville, 266 S.C. 81, 221 S.E.2d 773 (1976).
A judicial clerk suggested that the Townes case should be included as one of South Carolina's cases that made a difference because it solved the mystery of standards of state court appellate review and created the two-judge rule. The case is important to me personally for another reason. When I was a 3L at the University of South Carolina School of Law, several of my friends and I took a class called Advanced Legal Writing, the same class that I now teach in a different form as an adjunct faculty member. The late Julius B. "Bubba" Ness taught this class, and he had a five-question "pop quiz" every week. The tests were never announced, but we had them every single Thursday of the semester, so it did not take a genius to figure out that the test was coming. Almost every weekly test had a question based on the Townes decision, which Justice Ness said was THE most important decision we law students should know and understand because it set forth the standard of appellate review for all civil cases. And, of course, he was right, but I could not seem to force myself to memorize those Townes rules. As a result .... Well, what happened in Advanced Legal Writing, stays in Advanced Legal Writing.
Although I just assumed that Justice Ness wrote the opinion, it was actually written by Justice C. Bruce Littlejohn (a fact that I would have known had I just read the opinion carefully like we were asked to do). Justice Littlejohn had a long and storied career as an Army veteran, legislator, trial judge, Associate and Chief Justice on the S.C. Supreme Court, and active judge on the S.C. Court of Appeals after his retirement. He wrote Laugh With The Judge, a book of anecdotes from his career on the bench that was so funny that my non-lawyer mother gave it to my non-lawyer father as an anniversary present, and it now sits on my office shelf.
Like many of the opinions that have had a lasting impact on our jurisprudence, the underlying case decision (in this case, whether the City of Greenville had breached two construction contracts) was not what made it lastingly important. Instead, Townes ' importance is that it simply and clearly stated what had formerly been an enigma to appellate lawyers, who frequently misunderstood and misapplied the standards of review for appellate courts:
1. Action at law, tried by jury:
The appellate court's jurisdiction extends only to correcting errors of law, and the jury's factual findings will not be disturbed unless a review of the record discloses that there is no evidence that reasonably supports the findings.
2. Action at law, tried without jury: The judge's findings of fact will not be disturbed on appeal unless found to be without evidence that reasonably supports the findings (in other words, the judge's findings are the equivalent of a jury's findings in an action at law). The rule is the same whether the judge's findings are made with or without a reference.
3. Action in equity tried by a judge alone, tried without a reference: The appellate court has jurisdiction to find facts in accordance with its own views of the preponderance of the evidence. Note, however, that an appellate court still affords a degree of deference to the trial court because it was in the best position to judge the witnesses' credibility. See In re Estate of Kay, 423 S.C. 476, 480, 816 S.E.2d 542, 544-45 (2018).
4. Action in equity, master and judge concur (two-judge rule): The...
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