Last month the South Carolina Court of Appeals issued over a dozen decisions on how you may lose an appeal without getting to the merits. This ranged from appealing unappealable orders, to raising issues that were not preserved at trial or that were resolved in a prior appeal, to improperly briefing issues in your appellate brief.
Do not appeal unappealable orders
Before you appeal, please double-check that the order you want to appeal is immediately appealable. Not all orders are.
In HHH Ltd. Of Greenville v. Hiller, Op No. 2016-UP-338 (S.C. Ct. App. filed June 29, 2016), Hiller tried to appeal an order denying summary judgment and ordering a reference.
The Court made quick work of the denial of summary judgment, reaffirming that it is not appealable. See also Hoffman v. Seneca Specialty Ins. Co., Op. No. 2016-UP-248 (S.C. Ct. App. filed June 1, 2016)(the denial of summary judgment is not appealable).
The order of reference was more complicated because an order is immediately appealable if it deprives a party of a mode of trial to which he is entitled. So the Court had to decide whether Hiller was entitled to a jury trial to decide whether to dismiss the appeal. The Court concluded that the order was not immediately appealable, and dismissed the appeal, because Hiller was not entitled to a jury trial as a matter of right. HHH Ltd. Of Greenville v. Hiller, Op No. 2016-UP-338 (S.C. Ct. App. filed June 29, 2016)
Do not raise new, different, or conceded issues
A more prevalent misstep is trying to argue issues that were not preserved in the trial court.
To appeal an issue, the issue must first be raised in the trial court. In Green v. Ford, Op. No. 2016-UP-279 (S.C. Ct. App. filed June 8, 2016), a party challenged the sufficiency of the evidence. The Court held that the challenge was not preserved because the party failed to raise the issue in the trial court in a motion for a directed verdict.
And don’t try to raise a related but different issue. To appeal, you must first raise the issue in the trial court with sufficiently clarity to bring its precise nature into focus. If not, the Court of Appeals will likely find that you are shifting ground. You may not argue one ground at trial and an alternate ground on appeal. Carroll v. Causey, Op. No. 2016-UP-233 (S.C. Ct. App. filed June 1, 2016); Chitwood v. Chitwood, Op. No. 2016-UP-312 (S.C. Ct. App. filed June 22, 2016); Passailaigue v. Kuznik, Op. No. 2016-UP-311 (S.C. Ct. App. filed June 22, 2016).
The issue raised must also be raised—by you. It is not enough for the trial judge to address the issue if you did not raise it. Deutsche Bank National Trust Co. v. Morrow, Op. No. 2016-UP-264 (S.C. Ct. App. filed June 8, 2016).
Please also raise the issue before the ruling, not after. Deutsche Bank (“An issue may not be raised for the first time in a motion to reconsider.”).
An issue properly raised must also be ruled on. If the trial judge fails to rule, you must make a Rule 59 motion and ask for a ruling. Myers v. Christensen, Op. No. 2016-UP-226 (S.C. Ct. App. filed June 1, 2016).
And, a particular pet peeve of mine, please do not appeal an issue that you earlier conceded or acquiesced in. See Hoffman v. Seneca Specialty Ins. Co., Op. No. 2016-UP-248 (S.C. Ct. App. filed June 1, 2016)(“A litigant cannot concede an issue at trial and then raise it on appeal.”); Hines v. Alexander, Op. No. 2016-UP-339 (S.C. Ct. App. June 29, 2016)(issue not preserved where party acquiesced in the trial court’s ruling).
Do not appeal issues resolved in a prior appeal
Say an issue was properly preserved and resolved on appeal. If so, you may not relitigate it in a second appeal. The first ruling on appeal is “the law of the case” after a remand. Brown v. South Carolina Dept. of Probation, Parole, and Pardon Serv., Op. No. 2016-UP-304 (S.C. Ct. App. June 15, 2016).
Do not raising an issue without arguing it fully
Even if you jump through all these hurdles, such that an issue is properly before the Court of Appeals, you must then argue it properly in your opening appellate brief.
This means that you have to cite authority supporting your view and give the court reasons to agree with you. See Freeman v. Carver, Op. No. 2016-UP-235 (S.C. Ct. App. filed June 1, 2016)(“An issue is deemed abandoned if the argument in the brief is not supported by authority or is only conclusory.”); HSBC Mortgage Serv. Inc. v. Lucas, Op. No. 2016-UP-262 (S.C. Ct. App. filed June 8, 2016)(argument must be supported by authority); Townes at Pelham Owner’s Assoc., Inc. v. Boyd, Op. No. 2016-UP-266 (S.C. Ct. App. filed June 8, 2016)(issue raised but not argued is abandoned).
And you must cite the supporting authority and develop the argument in your opening brief. You cannot wait until your reply brief. By then it is too late. Haynie v. The City of Forest Acres, Op. No. 2016-UP-246 (S.C. Ct. App. filed June 1, 2016).
Have you all dealt with similar missteps? Please leave a comment and share your experience.