The South Carolina Court of Appeals recently ruled that my opposing counsel had raised unpreserved claims of error. The cases are Johnson v. Sam English Grading, Inc., 412 S.C. 433, 772 S.E.2d 544 (Ct.App. 2015) and Tucker v. Doe, 413 S.C. 389, 776 S.E.2d 121 (Ct.App. 2015). Together, the cases center on three rules.
Johnson is a wrongful death case involving a motorcycle accident. On appeal, the defendant challenged my co-counsel’s opening statement to the jury and the trial judge’s failure to direct a verdict or grant it a jnov. The Court identified three error-preservation problems with the arguments.
Tucker is a “John Doe” action for uninsured motorists benefits. On appeal, the defendant challenged the trial judge’s application of the governing statute, the sufficiency of the evidence, and the ability to use a statutory violation to prove punitive damages. The Court identified six error-preservation problems with the arguments.
Raising Issue for First Time on Appeal
Opposing counsel in Johnson challenged the opening statement to the jury for the first time on appeal. He conceded this in his opening brief but argued that it was an additional sustaining ground. After I noted that he was trying to reverse the judgment, not sustain it, counsel argued that the issue involved subject matter jurisdiction which can be raised at any time. The Court was not persuaded and ruled that the issue was not preserved.
In Tucker, opposing counsel raised six issues for the first time on appeal. This included an issue raised for the first time during oral argument; two statutory construction issues; two evidentiary issues over an expert’s testimony; and an issue over whether evidence of a statutory violation supports a punitive damages award.
The Court held that these issues were not preserved because they were raised for the first time on appeal and also relied on corollaries to this rule. Because you can’t raise new arguments on appeal, you also can’t raise issues that you conceded in the trial court or wait and later argue new stuff during oral argument.
And the rule against raising new issues applies even if you are arguing against precedent. On appeal, opposing counsel in Tucker asked the Court of Appeals to overrule decisions on whether evidence of a statutory violation supports a punitive damages award. It argued that the issue was preserved, despite not raising in the trial court, because the trial judge was bound by the precedent. The Court disagreed and held that the issue must still be raised and ruled on by the trial judge to raise the issue on appeal.
Failing to Complete the Record
Going back to Johnson, opposing counsel failed to put his trial-court motion for a jnov into the record. The Court of Appeals declined to rule on the jnov because, without the motion, it could not tell whether the arguments were preserved.
Failing to Cite Any Authority
Lastly, the Court in Johnson held that the arguments over the directed verdict were abandoned because opposing counsel failed to cite any authority in support.
Other posts on these error preservation principles are available here.
Has anyone else caught opposing counsel raising something new on appeal? Or state arguments ipse dixit?