Get Ground for Appeal in the Record

The South Carolina Court of Appeals recently agreed with me that a record on appeal was insufficient for the Court to tell whether an issue argued on appeal was preserved. The case is 21st Mortgage Corp. v. Youmans, Op. No. 2015-UP-112 (S.C. Ct. App. filed March 4, 2015). 

The Case

Youmans involves a consumer’s statutory right to offset a debt buyer’s claim for payment with claims that the consumer has against the seller. The issue arose when a debt buyer tried to repossess a mobile home for nonpayment of the debt. The mobile home’s buyer defended by raising an unpaid default judgment that he had against the mobile home’s seller.

The trial judge ruled that S.C. Code Ann. § 37-2-404(1) applied to the default judgment and that the judgment offset the claim for payment. So the trial court granted the consumer summary judgment, ruling that the case was a wash with neither party owing anything to the other.

The debt buyer appealed, arguing that it was not bound by the default judgment. But it never put into the record any of the arguments that it made to the trial court about S.C. Code Ann. § 37-2-404(1) before the trial court ruled that the statute applied.

The debt buyer in its opening appellate brief then argued collateral estoppel principles without mentioning the governing statute. Later, during oral argument, it argued due process for the first time.

The Court of Appeals summarily affirmed, agreeing with me that the challenge to the statute and the statute’s application was not preserved. Youmans.

Get into the Record the Grounds Argued on Appeal

The Court of Appeals first reaffirmed that appellants must give the Court a record that is sufficient for the Court to tell that the ground raised on appeal was raised in the trial court.

The rule on this is pretty clear. See Rule 208(b)(4), SCACR (“References [in the initial brief] shall also be made to where relevant objections and rulings occurred in the transcript.”); Prescott v. Farmers Tel. Co-op 335 S.C. 330, 338, 516 S.E.2d 923 (1999)(“record must show issue was raised to the trial court”).

You Can’t Shift Grounds on Appeal

The Court of Appeals also reaffirmed that you may not shift ground on appeal. See, e.g., McLeod v. Starnes, 396 S.C. 647, 657, 723 S.E.2d 198 (2012)(“A party may not argue one ground at trial and an alternate ground on appeal.”).

To opposing counsel’s credit, he conceded during oral argument that he had not argued due process in the trial court but tried to say that his collateral estoppel arguments embodied due process principles. The Court disagreed, holding that you cannot raise due process claims for the first time on appeal.

Concluding Thoughts

The Court of Appeals more recently entered a similar ruling. In Duke Energy Carolinas, LLC. v. Hiller, OIp. No. 2017-UP-204 (S.C. Ct.App. filed May 17, 2017), the Court likewise affirmed in part becausethe party taking the appeal did not put its Rule 59(e) motion into the record. Without the motion, the Court could not tell whether a ground rasied on appeal was properly raised in the trial court.

The tip here is clear. Parties taking an appeal need to make sure that they get their trial-court arguments into the record and show that the arguments raised on appeal were argued in the trial court. Parties defending against an appeal need to check whether the record is complete and whether the appeal raises new issues. In defending against an appeal, it is pleasurable to argue that an issue is not preserved as well as that it lacks merit.

Anyone else caught an appellant failing to provide a sufficient record?

Copyright © 2015 by the Law Offices of Robert Hill • Email • 803-520-4370


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