Vol. 5, No. 4, Pg. 38. APPELLATE SCOPE or REVIEW IN CIVIL CASES.

• Author: By Curtis G. Shaw

South Carolina Lawyer

1994.

Vol. 5, No. 4, Pg. 38.

APPELLATE SCOPE or REVIEW IN CIVIL CASES

38APPELLATE SCOPE or REVIEW IN CIVIL CASESBy Curtis G. Shawreviewing court's function is to determine whether a trial court committed error of sufficient magnitude to require that its judgment be reversed or vacated. Excepting jurisdictions in which appellate courts must search the record for error, the reviewing court's role is inexorably intertwined with the performance of the advocates.An appellate court may, under certain conditions, consider matters sua sponte, but generally when an appellate court considers questions raised by an appellant alleging error, it relies on the issues and legal arguments set forth by the advocates. Thus, with the possible exception of the Supreme Court--which is a general policy articulator--appellate courts are generally decisionmakers or lawmakers, confined to the case or controversy presented by the advocates.

In 1877 a reviewing court stated; "The court erred in some of the legal propositions announced to the jury; bit .all the errors were harmless. Wrong directions which do not put the traveler out of his way, furnish no reason for repeating the journey." Cherry v. Davis, 59 GA. 454, 456 (1877). Many would regard this as a literary epigram but not as a legal principle, for the question of whether wrong directions put the traveler out of his or her way is a very troublesome one. The very difficult question is to decide-when trial error becomes reversible error. If we recognize the doctrine, as we must today, that one is not entitled to a perfect trial, but only to a fair one, it, becomes neces sary to fashion a method of ascertaining the circumstances under which the results of admittedly imperfect trials will be disturbed. Ruggero J. Aldisert, The. Judicial Process (1976).

The Townes Legacy

The standard of review on appeal M South Carolina civil cases was set out in Townes Associates, Ltd. v. City ofGreenville, 266 S.C. 81, 221 S.E.2d 773 (1976), and can be summarized as follows:

Action at Law, Tried by Jury: In an action at law, on appeal of a case tried by a jury, the jurisdiction of the Court extends merely to correction of errors of law, and a factual finding of the jury will not be disturbed'unless a review of the record discloses that there is no evidence that reasonably supports the jury's findings.

Action at Law, Tried Without Jury: In an action at law, on appeal of a case tried without a jury, the findings of fact of the judge Will not be disturbed on.appeal Unless found to be without evidence that reasonably supportsthe judges findings. The rule is the same Whether the judge's findings are made with or without a reference. The judge's findings are equivalent to a jury's findings in a law action.

"If we recognize the doctrine, as we must today, that one is not entitled to a perfect trial but only to a fair one, it becomes necessary to fashion a method of ascertaining the circumstances under which the results of admittedly imperfect trials will be disturbed."Action in Equity, Tried Without a Reference: In an action in equity, tried by the judge alone, without a reference, on appeal the Supreme Court has jurisdiction to find facts in accordance with its views of the preponderance of the evidence. This broad scope of review does not require the appellate court to disregard the findings below. Stevenson v. Stevenson, 276 S.C. 475, 279 S.E.2d 616 (1981).

Nor is it required to ignore the fact that the trial judge, who saw and heard the witnesses, is in a better position to evaluate their credibility. Cherry. v. Thomasson, 276 S.C. 524, 280 S.E.2d 541 (1981). Moreover, the appellant is not relieved of his burden of convincing the Court that the trial judge committed error in his findings. Stevenson v. Stevenson, supra.

Action in Equity, Master and Judge Concur (Two Judge Rule): In an action in equity, tried first by the master or a special referee and concurred in by the judge, the findings of fact will hot be disturbed on appeal unless found to be without39 evidentiary support or against the clear preponderance of the evidence. Action in Equity, Master and Judge Disagree: In an action in equity where the master, or the special referee, is in disagreement with the judge on a factual finding, this court may make findings in accordance with its own views of the preponderance or greater weight of the evidence, the same as if the case had been tried by the judge without reference to the matter or a referee.

Note that on appeal from the final judgment of a master or special referee, the reviewing court has the same scope of review as if the appeal has been from the circuit court to the Supreme Court. Tiger, Inc. v. Fisher Agro, Inc., 301 S.C. 229, 391 S.E.2d 538 (1989) (equity appeal direct to Supreme Court); Wiajall v. Fobbs, 295 S.C. 59,367 S.E. 2d 156 (1988) (law appeal direct to Supreme Court); May v. Hopkinson, 289 S. C. 549, 347 S.E. 2d 508 (Ct. App. 1986) (appeal to circuit court).

Determining Whether an Action Is in Law or Equity

The character of an action is determined by the complaint in its main purpose and broad outlines and not by allegations that are merely incidental. Insurance Financial Services. Inc. v. S.C. Ins. Co, 271 S.C. 289, 247 S.E.2d 315 (1978). The nature of the issues as raised by the pleadings or the pleadings and proof; and the character of the relief sought under them, determines the character of an action as legal or equitable. Bell v. Mackey, 191 S.C. 105,'3 S.E2d 816 (1939); Rogers v. Nation, 284 S.C. 330, 326 S.E. 182 (Ct. App. 1985).

In Floyd v. Floyd, 306 S.C.376, 412 S.E.2d 397 (1991) the Supreme Court emphasized that the "main purpose rule" is designed to reduce the complexity of litigation and should not be used to deprive a litigant of a jury trial. If the character of the action appears with sufficientclearness in the body of the complaint, it must control, unaffected by the prayer for relief or the intention or characterization of the pleader. However, the prayer may be...