Preserving Issues for Appeal – Revisited

Last September, I wrote about  Atlantic Coast Builders and Contractors, LLC. v. Lewis, 396 S.C. 479, 722 S.E.2d 213 (2011). At the time, the Court addressed how specific a ground for appeal must be to preserve the issue for appeal. The Court reissued the opinion. Atlantic Coast Builders and Contractors, LLC v. Lewis, 398 S.C. 323, 730 S.E.2d 282 (2012). It is now a treasure trove of error preservation rules.

For background, the case involves a commercial tenant that sued its landlord for negligent misrepresentation, breach of contract, and unjust enrichment. The landlord counterclaimed for breach of contract. The master in equity entered judgment in the tenant’s favor. On appeal, various error preservation rules prevented the Court from reaching most of the issues.

     The error preservation rules apply on their own

The Court concluded that it was free to apply its error preservation rules even if the parties did not argue error preservation.

     Make the trial-court motion

In dissent, Justice Pleicones noted a wrinkle for motions to reconsider. If one party moves the Court to alter or amend, and the trial judge rules on a new issue in ruling on the motion to alter or amend, then the other party must respond with its own motion to alter or amend the new ruling. The majority disagreed that the relevant ruling was on a new issue.

      Raise the issue on appeal

The Court re-affirmed that it will not address an issue for the first time on appeal. In an oft-quoted observation, it noted that it, like well-behaved children, will not speak unless spoken to and does not answer questions that are not asked.

The Court then acknowledged an exception to this rule — it will address a contract’s legality for the first time on appeal because the court will not lend its assistance to carry of the terms of a contract that violates statutory law or public policy.

     Appeal all grounds

The Court next applied the two-issue rule. Under this rule, an appellate court must affirm unless an appellant appeals every ground upon which the decision is based. The theory is that, right or wrong, the unappealed ground becomes the law of the case and will independently support the decision. Here,the Court affirmed on the merits because the appellant failed to appeal the unjust enrichment claim. In dissent, Chief Justice Toal concluded that the trial court did not base its decision on the unappealed claim.

      Develop the argument

The Court also held that the landlord abandoned her appeal on her breach of contract claim by arguing it too summarily. She cited no legal authority and concluded baldly that the facts showed a breach of contract.

Has anyone caught their opponent breaching one of these rules? Please let us hear from you. You may reach me at






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