The last post covered the mechanics of preparing the Record on Appeal. This one explains what may and may not go in the Record and why it matters.
Submission to Trial Court
In general, the Record on Appeal is supposed to contain the orders, judgments, decrees, decisions, pleadings, transcript, charges, exhibits, and other materials that any party designated be included in the Record. Rule 210(c), SCACR. But this broad provision is expressly limited: “The Record shall not, however, include matter which was not presented to the lower court or tribunal.” Id.
To show that the designated material was presented to the trial court, counsel may consider placing into the Record the file-stamped copies of the pleadings and other exhibits. A few years ago, I was able to convince the Court of Appeals to strike from opposing counsel’s designation exhibits that counsel could not prove were presented to the trial court. File-stamped copies would have cured the problem.
Judicial Notice on Appeal
A narrow exception exists in which the appellate courts may consider materials that were not presented to the trial court. Under Rule 201(f), SCRE, “Judicial notice may be taken at any stage of the proceeding.” The Court of Appeals has construed this to mean that an appellate court may take judicial notice of adjudicative facts that were not presented to the trial court if the adjudicative facts are indisputable. Wise v. Wise, 394 S.C. 591, 716 S.E.2d 117 (Ct.App. 2011).
Matters which may be judicially noticed for the first time on appeal include the trial court’s own records, including statements made in a former opinion in a prior action of the same case. Id. In a recent case, the Supreme Court granted my motion to likewise take judicial notice of materials filed in related proceedings in another court outside South Carolina.
To get such materials in the Record, a party may consider moving the appellate court to take judicial notice even though the materials were not presented to the trial judge. If the motion is granted, the materials may be placed in an Appendix to the Record on Appeal. Rule 212(b-c), SCACR.
Review is Limited to the Record
What may be included in the Record is crucial because the appellate courts will not consider anything outside the Record and any Appendix to the Record. Rule 210(h), SCACR.
Has anyone else caught opposing counsel trying to slip something into the Record that was never presented to the trial court. Please reach me here to discuss it.