Specificity on Appeal – An Example

A post earlier this month discussed that an issue must be raised in the trial court with specificity to later raise it on appeal. This issue recently fractured the Court.

In Atlantic Coast Builders and Contractors, LLC v. Lewis, 396 S.C. 479, 722 S.E.2d 213 (2011), a lessor leased property that was zoned rural to a business for commercial use. After the County enforced the zoning, the business vacated the property, sued the lessor, and sought in part the return of its security deposit. The lessor’s Answer generally denied that she should return the deposit. The lessor also presented trial testimony and argument explaining why she was entitled to keep the security deposit.

The master in equity initially failed to address the security deposit, and the business filed a Rule 59(e) motion asking for a ruling. The lessor did not respond to the motion and never argued to the trial court post-trial that she should retain the deposit. The master ordered the deposit’s return. The lessor appealed.

The Court rendered three opinions on whether this and another issue was properly preserved for review. In two opinions, Chief Justice Toal and Justices Hearn and Kitteridge held that the security deposit issue was preserved because the lessor presented trial testimony on the issue and argued the issue to the trial court prior to its initial ruling. In their view, the lessor was thus not raising an issue for the first time on appeal. They further concluded that the lessor was not required to respond to the Rule 59(e) motion or repeat post-trial the arguments that the lessor earlier made during trial.

Justice Pleicones and Acting Justice Cooper viewed the record differently. They concluded that the lessor had not made the specific argument to the trial court that she was raising on appeal, and that the Answer’s general denial was not specific enough to preserve the arguments that they believed were raised for the first time on appeal.

The dissent then applied the piggy-backing prohibition and concluded that the lessor could not rely on her opponent raising the issue over the deposit and getting a ruling on it from the trial court. She had to be the one who raised the argument in the trial court to later argue it on appeal.

Preservation thus turned on whether the deposit issue was argued with sufficient specificity in the trial court to later argue the point on appeal.

Any thought? Comments? Please let me hear from you on whether you have ever caught your opposing counsel up short for failing to argue with specificity. You can reach me through the comment box or at www.attorneyroberthill.com.

Update – the Court later refiled the Atlantic Coast Builders decision. The updated decision is discussed here.

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