So you want to File a Writ of Supersedeas (September 2011)

Material for South Carolina Bar “Hot Tips” Lecture, September 2011

A writ of supersedeas is a motion asking an appellate court to modify the lower court’s order pending resolution of the underlying appeal.

“[T]he purpose of a supersedeas is to stay proceedings in the trial court, to preserve the status quo pending the determination of the appeal and to preserve to appellant the fruits of a meritorious appeal where they might otherwise be lost to him.  As a rule, a supersedeas does not reverse, annul, or undo what has already been done, or impair the force of the judgment, order, or decision of the trial court. [A] supersedeas suspends the judgment but does not annul the judgment itself.” Graham v. Graham, 301 S.C. 128, 130 390 S.E.2d 469, 470 (Ct. App. 1990) (citations omitted).

“Generally, the effect of a supersedeas or stay is to suspend proceedings and preserve the status quo pending the determination of the appeal or proceeding in error.” Melton v. Walker, 209 S.C. 330, 336, 40 S.E.2d 161, 164 (1946).

In determining whether an order should issue pursuant to this Rule, the lower court, administrative tribunal, appellate court, or judge or justice of the appellate court should consider whether such an order is necessary to preserve jurisdiction of the appeal or to prevent a contested issue from becoming moot. Rule 241(c)(2), SCACR.

The granting of supersedeas or the lifting of the automatic stay under this Rule may be conditioned upon such terms, including but not limited to the filing of a bond or undertaking, as the lower court, administrative tribunal, appellate court, or judge or justice of the appellate court may deem appropriate.  Further, where it appears that the granting or lifting of a stay, or the issuance of a writ of supersedeas is insufficient to afford complete relief, the lower court, administrative tribunal, appellate court, or judge or justice of the appellate court may order other affirmative relief upon such terms as are deemed appropriate.  Rule 241(c)(3), SCACR.

First bit of advice: Think twice before filing.  A writ of supersedeas is not designed to correct all legal errors.

Practitioners, and some family court judges, often believe that to grant a petition for supersedeas, the petitioner must show “likelihood of success on appeal” and “irreparable harm” if the supersedeas is not granted.   This legal standard is taken from Rule 65(b), SCRCP, regarding temporary restraining orders.  There is no case law, statute or rule of procedure setting a similar standard for the granting of writs of supersedeas.  Discussion with staff in the Court of Appeals indicates that this is not the standard that is applied to considerations of such writs.  However, the petition will be stronger if the petitioner can demonstrate these two elements in the petition.

As a general rule, one doesn’t need a writ of supersedeas to modify or stay a family court order if the order is automatically stayed under the South Carolina Rules of Appellate Procedure. Rule 241(a), SCACR. What types of family court orders are not stayed by appeal?:

Family court orders regarding a child or requiring payment of support for a spouse or child as provided in S.C. Code Ann. § 63-3-630. Rule 241(b)(6), SCACR;

Family court orders awarding temporary suit costs or attorney’s fees as provided in S.C. Code Ann. § 63-3-530(A)(2). Rule 241(b)(9), SCACR [by inference, final orders regarding attorney’s fees are stayed by appeal];

Bakala v. Bakala, 352 S.C. 612, 631, 576 S.E.2d 156, 166 (2003) cites In re Decker, 322 S.C. 212, 471 S.E.2d 459, 461 (1995) for the proposition that civil contempt is not automatically stayed by the filing of a notice of appeal and that the giving of a bond may be required.

What does a grant of supersedeas do?

The effect of the granting of a supersedeas is to suspend or stay the matters decided in the order, judgment, decree or decision on appeal and, where a prior order or decision was in effect at the time the appealed order, judgment, decree or decision was filed, to revive the terms of the prior order or decision. Rule 241(c)(1), SCACR.

What are the requirements for filing the petition for a writ of supersedeas?

The notice of appeal must be served first.  Rule 241(c)(1) SCACR.  The Court of Appeals will not accept a notice of appeal until the order being appealed from is filed with the lower court.  One cannot appeal a memo ruling of the court.  “An order is not final until it is entered by the clerk of court; and until the order or judgment is entered by the clerk of the court, the judge retains control of the case.” Upchurch v. Upchurch, 367 S.C. 16, 22, 624 S.E.2d 643, 646 (2006).

The petition must first be made to the lower court unless “extraordinary circumstances which made it impracticable to make such an application.” Rule 241(d)(4)(D). “The issuance of an ex parte order or decision, or an unnecessary delay by the lower court or administrative tribunal in ruling on this application shall constitute an extraordinary circumstance.” Rule 241(d)(1), SCACR. After the lower court or administrative tribunal has ruled, any party may petition the appellate court where the appeal is pending or an individual judge or justice for review of this order.  The individual judge or justice may grant or deny the relief on a temporary basis, and refer the matter to the full appellate court to hear and determine the matter, or he or she may issue a final order.  Upon the issuance of a final order by an individual judge or justice, an aggrieved party may petition the full appellate court for review of that decision. Rule 241(d)(2), SCACR.

The petition must be verified by the client. Rule 241(d)(3), SCACR.

The petition shall contain: (A) the factual background necessary for an understanding of the petition.  If the facts are subject to dispute, the petition shall be supported by affidavits or other sworn statements; (B) the grounds for the petition, and legal arguments with supporting points and authority; (C) a showing that an application for this relief was made to the lower court or administrative tribunal, and was unjustifiably denied or that the relief granted failed to afford the relief which the petitioner requested.  A certified copy of the lower court’s or administrative tribunal’s ruling must be included.  If no application was made to the lower court or administrative tribunal, then the petition shall state the extraordinary circumstances which made it impracticable to make such an application.  Rule 241(d)(4), SCACR.

The petition and accompanying documents shall be served on the opposing party(ies).  Upon application to the full appellate court, one original and six copies, and a certificate of service shall be filed with the clerk of the appellate court.  If the relief is sought from an individual judge or justice, the original and two copies must be filed with the judge or justice.  The individual judge or justice shall forward the original documents, including a copy of any order issued by the judge or justice in the matter, to the clerk of the appellate court as soon as possible. Rule 241(d)(5), SCACR.

A supersedeas or order lifting the automatic stay may be issued ex parte only where exigent circumstances require that action be taken before there is time for a hearing.  An ex parte order shall issue only if: (A) it clearly appears from specific facts shown by affidavits or included in the verified petition that immediate and irreparable injury, loss or damage will result before the opposing party can respond;  and (B) the moving party’s attorney certifies in writing, as an officer of the court, the efforts which have been made to give notice, or the reasons supporting the claim that notice should not be required. Rule 241(d)(6), SCACR.

Can the petition contain information that was not presented to the lower court?  Rule 241, SCACR does not appear to impose this limitation. But see Rule 210(c), SCACR (“The Record [on Appeal] shall not, however, include matter which was not presented to the lower court or tribunal”).

Important case law regarding petitions for supersedeas:

Owens v. Owens, 278 S.C. 356, 296 S.E.2d 338 (1982) (there is no procedure that allows a petition for rehearing on the granting–and presumably for the denial–of a petition for supersedeas).

Berry v. Ianuario, 281 S.C. 21, 314 S.E.2d 308 (1983) (granting supersedeas on father’s appeal from termination of his parental rights and ordering visitation for father so that his appeal would not become moot).

“An order staying proceedings pending appeal to the Supreme Court, as it seems to me, should be made only when it appears that the party making the application has just reason to apprehend that without a stay he would be deprived of the benefit of the favorable result of the appeal. I express no opinion as to the facts of the case, but careful consideration of the record fails to impress me that there will be any serious difficulty in restoring the status of the parties as it existed under Judge Shipp’s decree, in the event that the plaintiff’s appeal is sustained. ” Porter v. Lesesne, 85 S.C. 399, 67 S.E. 453 (1910).

“This Court has not previously had an opportunity to interpret the qualified privilege given to news media under S.C.Code Ann. § 19-11-100 (Supp.1994). Nor has this Court had the opportunity to consider if a qualified privilege exists under the First Amendment to the United States Constitution, and if so, how such a privilege is to be applied. In light of these novel questions, we believe that it would be inappropriate to incarcerate appellant during the pendency of this appeal. Accordingly, we grant a writ of supersedeas staying appellant’s incarceration during the pendency of this appeal.” In re Decker, 322 S.C. 212, 214, 471 S.E.2d 459, 461, 23 Media L. Rep. 2542 (1995).

“One circuit judge cannot supersede the order of another. The appellant led his honor into error. The appellant says it was obliged to have relief, and the proceeding was taken almost under duress. This does not avail. The new rule provides an expeditious way for procuring a supersedeas.” Duncan v. Union-Buffalo Mills Co., 110 S.C. 302, 96 S.E. 522, 524 (1918).