What May Trial Judges Do After an Appeal?

South Carolina appeals generally oust a trial judge’s jurisdiction. This makes sense if the appeal is from a final judgment because there is little left for the trial judge to do. But even then the trial court still has a say on when the judgment becomes enforceable, and retains an even greater say when the appeal is interlocutory.   

Upon service of the notice of appeal, the appellate court shall have exclusive jurisdiction over the appeal[.] Rule 205, SCACR. 

To work through jurisdiction, you should start with the rule that trial courts lose jurisdiction when a party appeals. You can then check to see if one of these four exceptions applies.

Enforcing or staying a final judgment 

Trial courts retain jurisdiction to enforce a judgment or stay enforcement. This power is grounded in Rule 241, SCACR, which allows trial courts to change the default rules on when a judgment is enforceable.

An appeal automatically stays some orders. For those, trial courts retain jurisdiction to lift the stay so that parties may enforce the orders while the appeal is pending.

Other orders are not automatically stayed. As an earlier post explains, an appeal does not block efforts to collect a money judgment. Judgment debtors must get a supersedeas to stay collection efforts. So trial judges may help enforce money judgments, or stay enforcement, while the appeal is pending.

Appealing unappealable orders

Things get a little trickier if party appeals before a final judgment.

If the interlocutory order is not appealable, jurisdiction never transfers to the appellate court. The trial court has plenary jurisdiction because it never lost it. Brown v. Greenwood Sch. Dist. 50 Bd. of Tr., 344 S.C. 522, 524-525, 544 S.E.2d 642, 643 (Ct.App. 2001).

Collateral issues

If the interlocutory order is appealable, and some are, the trial judge retains jurisdiction over “matters not affected by the appeal.” Rule 205, SCACR.

Two decisions show how this works. In one, the Supreme Court held that the trial judge properly retained jurisdiction over discovery matters while an appeal was pending on whether the defendant could amend its answer and third-party complaint. The discovery issues were separate enough that the appeal would not affect them. Cousar v. New London Eng’g Co., Inc., 306 S.C. 37, 40, 410 S.E.2d 243, 245 (1991).

In Jackson v. Speed, 326 S.C. 289, 311, 486 S.E.2d 750, 761 (1997), the Court concluded that the trial judge retained jurisdiction to determine the amount of an attorneys-fee award while the underlying judgment was on appeal. The Court held that the appeal from the underlying judgment did not affect the fee award because the appellants failed to also appeal the propriety of fees.

In contrast, the Court of Appeals has held that a family court lacked jurisdiction to enforce a temporary order over property taxes while the final order, over the same property taxes, was pending on appeal.  Kinsale v. Kinsale, Op. No. 2017-UP-271 (S.C. Ct.App. filed July 5, 2017).

Timely post-judgment motions  

Lastly, the trial courts retain jurisdiction to hear timely post-trial motions.

The Supreme Court reaffirmed this just last week. In Holmes v. East Cooper Comty. Hosp., Inc., 408 S.C. 138, 758 S.E.2d 483 (2014), the plaintiff quickly appealed an order dismissing her case. A few days later, her opponent timely moved the trial court for sanctions. On appeal, the plaintiff responded that the trial judge should have delayed ruling on sanctions until after her appeal on the merits.

The argument makes some sense. If the Supreme Court reversed on the merits, sanctions would be inappropriate. The appeal could thus affect the trial court proceedings. Still, why should a trial-court loser be able to delay a trial-court winner’s ability to get sanctions?

The Supreme Court held that the trial court retained jurisdiction to consider the post-trial motion for sanctions. It reached back to a 1986 case that dealt with a party who moved the trial court to reconsider an order that the party had already appealed.

In that case, the Court held that the appeal did not oust the trial court’s jurisdiction to alter or amend its order. The Court would instead dismiss the appeal without prejudice to allow the trial court to rule on the motion to reconsider. If the motion to reconsider is denied, the appellant could then re-appeal without paying another filing fee. Hudson v. Hudson, 290 S.C. 215, 349 S.E.2d 341 (1986).

This procedure makes sense if a party tries to use an appeal to block her opponent. But I would not rely on it too much if you are the one appealing and filing the post-trial motions. The Court has cautioned parties to choose between a Rule 59 motion and a notice of appeal, and not attempt to avoid the choice by simply filing both. Elam v. South Carolina Dept. of Transp., 361 S.C. 9, 361 S.E.2d 772 (2004).

Have you all ever had to go back to your trial judge while an appeal was pending? How did you or your opposing counsel overcome the general rule on the lack of jurisdiction?

Copyright © 2014 by the Law Offices of Robert Hill · Email · 803-520-4370




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