Imagine that the South Carolina Court of Appeals just ruled against you. You are not happy but you know, you just know, that the Supreme Court will straighten this out if you ask. How do you ask? And when?
Asking the South Carolina Supreme Court to review an opinion from the South Carolina Court of Appeals is a two-step process. You must first petition the Court of Appeals to rehear its decision. Rule 221, SCACR, governs these petitions. Once rehearing is denied, you then petition the Supreme Court to issue a writ of certiorari. Rule 242, SCACR, governs these petitions.
Petitions for Court of Appeals Rehearing
You can’t seek Supreme Court review of a Court of Appeals order unless you first petition the Court of Appeals to rehear its opinion. Rule 242(d)(1), SCACR.
Rule 221(a), SCACR, requires that the petition for rehearing “state with particularity the points supposed to have been overlooked or misapprehended by the court.” Now this does not say points that the litigant overlooked. It says points overlooked or misapprehended by the court.
A court cannot overlook or misapprehend a point that was never raised before it. So you cannot raise new issues for the first time in a petition for rehearing. Kennedy v. South Carolina Retirement System, 349 S.C. 531, 564 S.E.2d 322 (2001).
The petition must also actually be received by the Court of Appeals within 15 days from the date the opinion was filed. The normal mailbox rule, which provides that the document is filed when it is dropped in the mail, does not apply.
At the same time you petition for a panel rehearing, you may also petition the full Court of Appeals to rehear the panel decision banc. Rule 219(a), SCACR, provides that these petitions are not favored. And they mean it. An earlier post suggests that you can forget about an en banc rehearing.
Certiorari Petitions to Supreme Court
Once the Court of Appeals finally rules on the petition for rehearing, you have 30 days from the date of the order on the rehearing to petition for Supreme Court review. Rule 242(c), SCACR.
You must limit the cert petition to the questions previously raised in the Court of Appeals and in the petition for rehearing.
Before filing the petition, you also need to prepare an appendix similar to the way you prepare a record on appeal. The appendix must contain the Court of Appeals’ decision that you want reviewed, a copy of the Court of Appeals’ denial of your petition for rehearing, your petition for rehearing, and the briefs that the parties filed in the Court of Appeals.
This new appendix, along with the Record on Appeal filed in the Court of Appeals, must be filed with the cert petition.
After you petition, your opposing party has 30 days to respond and you then have 10 days to reply.
The Supreme Court has tightened down on these deadlines, warning counsel that the press of other business will not justify an extension of time. Order on Extensions.
A Wrinkle in the Process
This seems more straightforward than it may be. Say you timely petition the Court of Appeals for a rehearing and the Court amends its opinion without changing the result. Do you have to file another petition for rehearing from the amended opinion? And does the second petition toll the time to petition for cert?
The Supreme Court raises this issue in its review of Parsons v. John Wieland Homes and Neighborhoods of the Carolinas, Inc., Op. No. 2013-UP-296 (S.C.Ct.App. filed Aug. 28, 2013).
Parsons is an appeal involving the denial of a motion to compel arbitration. The Court of Appeals initially affirmed on two grounds. It first affirmed because the evidence supported the trial court’s finding that the claims fell outside the arbitration agreement’s terms. It then alternatively affirmed because the claims alleged conduct that was too outrageous to be foreseeable even if the claims otherwise fell within the agreement’s terms.
John Wieland Homes petitioned for rehearing. In response, the Court of Appeals filed a substituted order which affirmed the denial of arbitration only on the first ground. This time, the Court declined to say on whether the claims alleged conduct that was too outrageous to be foreseeable. This was the only change.
John Wieland Homes filed a second petition, asking the Court of Appeals to rehear the amended opinion. It then waited until after the Court of Appeals denied this second petition before it sought certiorari.
The cert petition was filed more than 30 days from the date of the amended opinion on the first petition for rehearing but within 30 days from the date of the order denying the second petition for rehearing. The Supreme Court granted certiorari but asked the parties to address whether the cert petition untimely.
The Supreme Court ultimately issued a decision on the merits without directly addressing whether the cert petition was timely. Parsons v. John Wieland Homes, 418 S.C. 1, 791 S.E.2d 128 (2016).
The video of the Parsons oral argument is here —
Has anyone else dealt with a Court of Appeals’ decision to alter an opinion without changing the result? How did you deal with it?