The Supreme Court today issued an opinion on preserving appeals from the denial of a motion for a JNOV. RFT Management Co. v. Tinsley & Adams, L.L.P., 399 S.C. 322, 732 S.E.2d 166 (2012). In this legal malpractice case, the Appellant challenged the denial of its motion for a JNOV on two grounds. The Supreme Court held that the party failed to preserved either ground for appeal.
The first ground challenged whether a unwaivable conflict of interest exists is an issue of fact or a question of law. On appeal, RFT argued that the issue is a question of law. At trial, however, it did not contest that the issue is a question of fact. The Supreme Court concluded that this ground was thus not preserved because one cannot ordinarily complain of an error that he invited.
The last ground concerned whether the law firm mislead RFT. The Court concluded that this ground was not preserved because the issue was not initially raised in the motion for a directed verdict.
Under South Carolina procedure, a party must move for a directed verdict to later move for a JNOV, and the motion must state the grounds specifically. Rule 50(a), SCRCP. Only those grounds specifically stated in the motion for a directed verdict may be later reasserted in the motion for a JNOV. Applying this rule, the Court concluded that RFT failed to preserve its challenge to the denial of the JNOV because it failed to raise the challenge in its motion for a directed verdict.
Not raised in the directed verdict motion = not before the trial court on JNOV = not preserved for appeal from the denial of a JNOV.
Has anyone else caught opposing counsel trying to appeal an issue that he or she conceded below, or raise a new issue in a motion for a JNOV? Please let us know. You can reach me here.