Issue Preservation, 0114 SCBJ, SC Lawyer, January 2014, #3

• Author: Kathleen Chewning Barnes

Issue Preservation

Vol. 25 Issue 4 Pg. 20

South Carolina Bar Journal

January, 2014

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0Lessons Learned from Lewis and How to Put Issue Preservation Concerns to Rest in an Appellate Brief

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0 Kathleen Chewning Barnes

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0The Supreme Court's recent split decision in Atlantic Coast Builders & Contractors, LLC v. Lewis, ¹ serves as a reminder that appellate courts can, and will, raise issue preservation sua sponte. The most effective way for an appellant or respondent to avoid being caught off guard with issue preservation is to directly address it in his or her brief. This article analyzes and explains the Court's decision in Lewis, lists the basic elements of issue preservation and provides advice for strategically writing and arguing issue preservation in an appellate brief.

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0Lewis—An unlikely issue preservation opinion

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0Lewis involved a landlord-tenant dispute in which Atlantic Coast Builders & Contractors rented property from Laura Lewis for use as its office.² Two months after Atlantic moved into the office, it learned the property was not zoned for commercial use and brought suit against Lewis for negligent misrepresentation, unjust enrichment, breach of contract and return of its security deposit.³ The master-in-equity found for Atlantic on all causes of action and awarded $6, 660.79 in damages, but did not make a finding regarding the security deposit.⁴ The parties filed cross Rule 59(e), SCRCP, motions for reconsideration. The master granted Atlantic's request to add the $3, 500 security deposit to the damages award, and the Court of Appeals affirmed.⁵]

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0On appeal to the Supreme Court, Lewis raised only the issue of whether the Court of Appeals erred in affirming the master's rulings on the negligent misrepresentation and breach of contract causes of action.⁶ Neither the parties nor the Court of Appeals raised or addressed a preservation issue. Justice Hearn, writing for the majority, found the two-issue rule barred the arguments because Lewis did not challenge the master's ruling on unjust enrichment.⁷ Chief Justice Toal dissented because she concluded the master did not award damages for unjust enrichment, making the two-issue rule inapplicable, and because the majority's use of the two-issue rule was an over-zealous application of the issue preservation rules.⁸ Justice Pleicones also dissented on preservation grounds because he determined Lewis should have filed a Rule 59(e) motion to dispute the master's amended order awarding the security deposit as damages.⁹

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0The split decision in Lewis illustrates two competing principles of issue preservation—strictly adhering to the requirement that an issue be raised to and ruled upon by the trial court for appellate review to be proper versus resolving questionable preservation matters in favor of preservation. The majority applied the strict view that, when the record shows an issue is not preserved, the court should find the issue unpreserved and decline to reach the merits.¹⁰ The majority "place[d] no weight on the fact that neither the parties nor the court of appeals raised" a preservation issue but, instead, raised the issue sua sponte.¹¹ Chief Justice Toal, on the other hand, would have found the issue preserved "where the question of preservation is subject to multiple interpretations."¹² According to Chief Justice Toal's dissent, it is not the court's place "to scour the records ... for the purpose of avoiding issues ..."¹³ Chief Justice Toal agreed with the majority that the court may raise issue preservation sua sponte but believed the parties' silence indicated that preservation was questionable and, therefore, should be resolved in favor of preservation.¹⁴

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0Regardless of whether you agree with the majority or Chief Justice Toal's dissent, we can all agree on one thing—issue preservation is a threshold consideration in any appeal, both for an appellant and a respondent. To effectively address this threshold matter, an attorney must understand what is required for an issue to be preserved and plan for how to strategically write a brief and create a record on appeal that shows the court that an issue is or is not preserved.

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0The elements of issue preservation

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0Prior opinions and scholarly articles have listed numerous elements of issue preservation. Most of those elements focus on what happens in the lower court. A full list of the elements of issue preservation should also include what happens on appeal. This comprehensive list is useful for appellate brief writing because it contains not only the issue preservation elements that should be included in the record, but also additional elements that must appear in a brief. To be preserved, an issue must be:

1. Raised to the trial court,

2. Raised by the appellant,

3. Raised in a timely manner,

4. Raised with specificity,

5. Ruled on by the trial court,

6. If not ruled on, raised in a Rule 59(e) motion,

7. Raised in the Appellant's Statement of the Issues on Appeal in the initial brief,

8. Discussed in an argument of the appellant's brief, including citation to authority,

9. Supported by a substantive argument that is not conclusory, and

10. Included in a timely filed petition for rehearing to the Court of Appeals.

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0The first six are self-explanatory. Numbers seven through...