South Carolina Appeals – Flip Flops Not Allowed

Last Monday, I posted about a case that dealt with over nine unpreserved claims of error. This post deals with the inability to appeal an issue that you conceded in the lower court.

In an appeal I am handling, a friend at trial relied on the familiar South Carolina rule that a statutory violation creates a jury issue on punitive damages. See, e.g., Wise v. Broadway, 315 S.C. 273, 433 S.E.2d 857 (1993).

The point was charged to the jury without objection. After the jury returned a verdict for punitive damages, the defendant submitted a trial-court memorandum on punitive damages. Citing Wise, the defendant stated that a statutory violation is evidence of recklessness. The trial court relied on the concession when the court later denied the defendant’s post-trial motion for a jnov on punitive damages.

Flip FlopsThen new counsel was brought in for the appeal. They argued that Wise should be overruled without mentioning the earlier concession or that the trial court relied on it. I enjoyed responding because the courts have many times and many different contexts held that you can’t flip-flop this way.

Here are just a few examples –

Austin v. Stokes-Craven Holding Corp., 387 S.C. 22, 691 S.E.2d 135 (2010)(party cannot argue on appeal that a vehicle was titled in another’s name when his counsel admitted in the trial court that it was titled in his client’s name).

TNS Mills, Inc. v. South Carolina Dep’t of Revenue, 331 S.C. 611, 503 S.E.2d 471 (1998)(party cannot argue for an exemption on appeal when his brief before the Commission conceded that his tax returns never claimed the exemption).

Tupper v. Dorchester County, 326 S.C. 318, 487 S.E.2d 187 (1997)(party cannot argue on appeal that the writings did not create an easement when he told the trial court that some type of easement was created).

Ex Parte McMillian, 319 S.C. 331, 461 S.E.2d 43 (1993)(party cannot argue on appeal that the Tort Claims Act does not apply when counsel told the trial court that it applied in part).

Collins v. Bisson Moving & Storage, Inc., 3322 S.C. 290, 504 S.E.2d 347 (Ct.App. 1998)(party cannot claim lack of causation on appeal when his opening statement told the jury that his client caused at least some injury to the plaintiff).

Has anyone else run across flip floppers?

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