An Appeal Begins Before the Trial Ends

An appeal begins with the notice of appeal. Right? Not so fast. By then it may be too late.

The party taking the appeal must describe to the appellate court “the nature of the action or matter” and “the nature of the defense or response.” Rule 208(b)(1)(c), SCACR. The Court of Appeals or Supreme Court will thus know precisely what was alleged before the notice of appeal was filed. And they generally do not consider claims or defenses outside those pleadings. Fraternal Order of Police v. South Carolina Dep’t of Revenue, 352 S.C. 420, 435, 574 S.E.2d 717, 725 (2002).

In a very real sense, the appeal thus begins when the complaint and answer or response are served and filed.

So what to do if you initially failed to plead everything? If you catch it before an appeal, consider moving for leave to amend the pleadings. Such leave is freely granted under Rule 15, SCRCP. Even if the motion is denied, the denial will show the court that the issue was raised and ruled on below. You could also later argue that the issue you want to raise was tried by consent, but that requires a record showing your opposing counsel’s acquiesce.

In either event, the goal is to convince the appellate court that the issue you want heard was raised and ruled on below. What you cannot properly do lose on one issue and then challenge the ruling by raising a new issue.

Has anyone caught opposing counsel up short that way? Have you been able to get an appeal dismissed or an order affirmed because the party appealing raised an issue that was not alleged in the trial court (or tried by consent)?

If so, please let me hear from you. You may leave a reply or reach me here.

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