SC Issue Preservation – Tie Goes to the Runner

South Carolina appellate courts hardly ever resolve an issue that appellants raise for the first time on appeal. The issue must almost always have been “raised and ruled on” in the trial court. But what happens when whether the issue was raised is unclear? The Court of Appeals recently gave the appellant the benefit of the doubt.

Johnson v. Roberts, Op. No. 5535 (S.C. Ct.App. filed February 7, 2018), involves the six-year statute of repose for medical malpractice actions.

Johnson filed suit in 2011 over a series of treatments that she received from December 2003 to June 2008.  She argued in the trial court that each treatment was an independent tort such that she could sue on the treatments that occurred within the six-year statute of repose. The trial court disagreed, ruling that the course of treatment was one occurrence which began in 2003. The trial court entered summary judgment for the doctor and hospital on the statute of repose.

Johnson somewhat shifted gears on appeal. She argued on appeal that none of the treatments caused her any identifiable injury until 2009. From there she argued that the statute of repose did not bar claims based on injuries that she had received within the six-year statute of repose from negligent acts that occurred within the six-year statute of repose.

The doctor and hospital complained that Johnson was improperly raising a new issue on appeal.

The Court of Appeals agreed that Johnson’s factual theory on appeal was not identical to the factual theory that she presented to the trial court. The Court of Appeals even agreed that it could not be said that her argument was clearly preserved. The Court then ruled, however, that it also could not be said that her argument was clearly unpreserved.

So what happens when an issue is neither clearly preserved nor clearly unpreserved? The Court gave Johnson the benefit of the doubt.

The Court of Appeals gleaned this rule from Atl. Coast Builders & Contractors, LLC v. Lewis, 398 S.C. 323, 730 S.E.2d 282 (2012). In that case, then Chief Justice Toal stated in a separate opinion that “where the question of issue preservation is subject to multiple interpretations, any doubt should be resolved in favor of preservation.”  Id. at 333, 730 S.E.2d at 287. Answering this view, the majority agreed that this “may be good practice” when error preservation is doubtful yet held that the issue at issue “clearly is unpreserved.”  Id. at 329, 730 S.E.2d at 285.

The Court of Appeals has since relied on this dictum to resolve issues when preservation is doubtful. See State v. Williams, 417 S.C. 209, 228-229, 789 S.E.2d 582, 593 (Ct.App. 2016); State v. Jenkins, 408 S.C. 560, 568 n. 7, 759 S.E.2d 759, 763 n. 7 (Ct.App. 2014); State v. Price, 400 S.C. 110, 113-114, 732 S.E.2d 652, 653 (Ct.App. 2012).

So don’t give up hope if your opposing counsel argues that you did not do what you needed to do to raise an issue on appeal. You may be argue that the issue is not “clearly” unpreserved and that you thus get the benefit of the doubt.

Thoughts? Comments?

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