SC Lawyer, July 2004, #8. Preserving errors: get your appeal ducks in a row.

• Author: By C. Mitchell Brown and Elizabeth Herlong Campbell

South Carolina Lawyer

2004.

SC Lawyer, July 2004, #8.

Preserving errors: get your appeal ducks in a row

South Carolina LawyerJuly 2004Preserving errors: get your appeal ducks in a rowBy C. Mitchell Brown and Elizabeth Herlong CampbellAt trial, a primary focus of every attorney is to hone motions and arguments into their most persuasive forms. However, trial counsel also needs to remain focused on ensuring the record is protected and that appropriate stepsare taken to preserve errors for appeal. This task is not always easy, and there are quite a number of procedural pitfalls. This article discusses some of the pitfalls (although many others exist), so that hopefullythe trial lawyer can avoid them.

The appeal of the form order

Assume a scenario in which a trial judge rules on a particular motion and indicates orally (on the record) that he is going to send out a form order denying the motion but will follow up with a later, more formal and substantive order. Assume further that the form order arrives, but there is no indication on the form order that a more detailed written order will be forthcoming. Must the lawyer who receives the form order take an appeal of that order? It appears so.

Rule 203(b)(1) of the South Carolina Appellate Court Rules addresses this issue. The rule states, in pertinent part: "When a form or other short order or judgment indicates that a more full and complete order or judgment is to follow, a party need not appeal until receipt of written notice of entry of the more complete order or judgment." Rule 203(b)(1), SCACR. As the plain language of the rule states, the form order must indicate on its face that a more full or complete order is to follow. Therefore, relying upon an oral statement of a judge that a more formal order will follow would be at your peril. See Bayne v.Bass, 302 S.C. 208, 394 S.E. 2d 726 (Ct. App. 1990) (noting that order is not final until reduced to writing and filed with the clerk; trial judge may change oral ruling); see also Leviner v. Sonoco Prods. Co., 339 S.C. 492, 494, 530 S.E.2d 127, 128 (2000) (finding when no indication on form order that formal order was to follow, more formal order issued more than 10 days later was a nullity and appeal from formal order was thus improper).

Appeal of an erroneous jury charge

Assume a scenario where trial counsel complained to the trial judge about a particular jury instruction. Further assume that the aggrieved party believed he had shown the trial judge very clearly that the instruction was erroneous and should not have been charged to the jury. Finally, assume trial counsel made clear arguments regarding the instruction on the record to the trial judge and raised the point in post-trial motions, but included only the allegedly erroneous charge in the record on appeal. Is the issue preserved for appeal? Maybe not.

The Supreme Court of South Carolina has held that when an appellant complains about an allegedly erroneous jury instruction, the appellate court must consider the entire jury charge to determine whether prejudicial error occurred. Because the appellant in the hypothetical did not include the full charge in the record, the issue may not be preserved for review. See D&D Leasing Co. v. Gentry, 298 S.C. 342, 344, 380 S.E.2d 823, 824 (1989) (emphasizing that burden is on appellant to furnish a sufficient record on appeal); Waldrup v. Metro. Life Ins. Co., 274 S.C. 344, 346, 263 S.E.2d 652, 654 (1980) (stating appellate court must view jury charge as a whole before assigning prejudicial error to a discrete portion of the charge); State v. Hicks, 305 S.C. 277, 280, 407 S.E.2d 907, 909 (Ct. App. 1991) (holding that judge's instructions must be considered as a whole when reviewing challenged jury charge; court of appeals will not find error based on isolated excerpt).

You must object at trial or make the motion to preserve the issue for appeal

Assume a scenario in which, after a recess in the midst of trial, the trial judge sua sponte informs all counsel that she knows one of the legal issues that will arise in the case is "issue x." Further assume that the trial judge announces that she has already given careful consideration to "issue x" on her own time and indicates that she is ruling on that issue in a certain way. Assume the trial concludes with an unfavorable result to the defendant, who then takes an appeal. On appeal, the defendant asserts that the judge was wrong in her analysis and decision with respect to "issue x." Has the defendant's counsel preserved "issue x" for appeal? The answer is probably not, because he did not expressly raise the issue at trial.

Because the trial judge, rather than counsel, raised "issue x," "issue x" is most likely not preserved for appeal. See Duncan v. Hampton County School Dist. No. 2, 335 S.C. 535 544 517 S.E. 2d 449, 543 n.6, (Ct. App. 1999) (finding that even though trial court discussed the issue sua sponte, the appellant did not take a position on the issue itself, and thus the issue was not preserved); see also Mains v. K-Mart Corp., 297 S.C. 142, 145, 375 S.E.2d 311, 313 (Ct. App. 1988) (noting the trial court's statement on the record at the close of testimony, "note the usual motions and mark them heard," did not suffice as a directed verdict motion by the appellant).

Similarly, one cannot ordinarily rely upon a co-party to preserve an issue for appeal. If there are multiple defendants in a particular case, for example, and all but one of the defendants raise a particular argument or make a particular motion during trial, the one defendant may not be able to argue that motion or position on appeal because he did not expressly join in the motion or argument. See State v. Brannon, 347 S.C. 85, 89, 552 S.E.2d 773, 774-75 (Ct. App. 2001) (finding that appellant may not rely on co-defendant's objection on appeal).

Successive post-trial motions

Assume a scenario in which trial counsel files a Rule 59(e) motion to alter or amend a judgment. Further assume that the motion is found to be improper or ineffective. Finally, assume the trial attorney delayed filing the notice of appeal until after the second Rule 59(e) motion was found ineffective. Is the right to appeal lost? Maybe so.

The Supreme Court of South Carolina has held that a Rule 59(e) motion must be made in order to preserve error when the appellant has made an argument to the trial judge, but the trial judge has not explicitly ruled on the argument in her order. See, e.g., Talley v. S.C. Higher Educ. Tuition Grants, 289 S.C. 483, 487, 347 S.E.2d 99, 101 (1986). [There does not appear to be a federal case law corollary to this preservation of error requirement with respect to Federal Rule of Civil Procedure 59(e).]

The filing of the Rule 59(e) motion generally has three major effects:

1. the trial judge will be given an opportunity to reconsider her order, consider the points raised in the Rule 59(e) motion and rule on those points;

2. error is preserved by filing the motion; and

3. the filing of the motion stays the time for appeal.

See Rule 203(b)(1), SCACR. Of these effects, the practical reality is that staying the time limit for serving the notice of appeal is the most common because motions to reconsider previous matters are rarely granted.

However, the practitioner should be aware that in some instances a Rule 59(e) motion may be found ineffective and improper, in which case none of the three effects will occur. This is especially important because if the 59(e) motion is found improper and untimely, and if a trial attorney has relied upon the filing of the motion to stay the time limits for taking an appeal of an earlier order or judgment, then the trial lawyer can find himself in a position where the time for appeal of the earlier order/judgment has expired. In such circumstances, not only will the Rule 59(e) motion be of no effect, but also all appeal rights will be lost.

In the cases of Collins Music Co., Inc. v. IGT, 353 S.C. 559, 579 S.E.2d 524 (2002); Quality Trailer Products, Inc. v. CSL Equipment Co., 349 S.C. 216, 562 S.E.2d 615 (2002); and Coward Hund Constr. Co. v. Ball Corp., 336 S.C. 1, 518 S.E.2d 56 (Ct. App. 1999), the South Carolina appellate courts held that in certain settings, a Rule 59(e) motion is ineffective. Specifically, when an attorney has already made post-trial motions upon certain grounds that have been ruled on, and when the Rule 59(e) motion is merely a repetition or expansion of the previously made grounds in the post-trial motions, the Rule 59(e) motion will likely be deemed improperly and "untimely" and will not be considered. In such an instance, the motion does not toll any time limits to perfect the appeal. See Rule 203(b)(1), SCACR (a timely Rule 59 motion tolls the time for appeal). If a substantial period of time passes before the attorney learns that his Rule 59(e) motion was improper, the time limits for appeal of any earlier orders will expire and the client will lose all rights to appeal. The deadline for serving the notice of appeal is jurisdictional. State v. Scott, 351 S.C. 584, 571 S.E.2d 700 (2002).

You must state the grounds for your objection contemporaneously with your objection

Assume improper evidence is introduced and trial counsel objects immediately and moves for a mistrial, which the trial court denies. Assume after the witness's testimony is concluded and the witness leaves, trial counsel sets forth fully and specifically the grounds for the earlier objection and mistrial motion. Assume the trial court again rejects the objection and motion. Is the objection and motion for mistrial preserved for appeal? It may not be. Rule 103(a)(1) of the South Carolina Rules of Evidence eliminates the requirement of objection specificity if the specific ground for the objection is "apparent from the context." Rule 103 (a)(1), SCRE. However, if the specific ground is not apparent from the context, then a preservation of error problem does exist in the above scenario. An objection must be made at the first available opportunity, and specific grounds must be stated at that time, unless Rule 103(a)(1) applies. See State v. Black, 319 S.C. 515, 521-22, 462 S.E.2d 311, 315 (1995) (holding defense counsel failed to properly preserve issue of prosecutorial misconduct for appeal in which counsel objected to statement made during closing argument but did not explain basis for objection until after jury retired to deliberate).

Your Rule 59(e) motion in federal court must be timely in order to defer the time for your notice of appeal

Assume a scenario in which the federal district court enters judgment in favor of the plaintiff, and because the holidays are approaching, the defendant's counsel requests an additional five days (beyond the allotted 10 days) to file his Rule 59(e) motion. Defense counsel files the Rule 59(e) motion within the extended time allowed by the district court, which denies the motion, and the defendant files a notice of appeal to the Fourth Circuit within 30 days of the district court's denial of the Rule 59(e) motion. Is the appeal timely? No. Is the appeal subject to dismissal by the Fourth Circuit? Yes.

The requirement of a timely notice of appeal is "mandatory and jurisdictional." Browder v. Director, Dep't of Corrections of Ill., 434 U.S. 257, 264 (1978). The Federal Rules of Appellate Procedure require a party to file a notice of appeal with the district court clerk "within 30 days after the judgment or order appealed from is entered." Fed. r. app. p 4(a)(1)(A). However, if a party timely files a motion to alter or amend under Rule 59 of the Federal Rules of Civil Procedure, the time to file the notice of appeal runs from the entry of the district court's order disposing of the Rule 59(e) motion. Fed. r. app. p 4(a)(4)(A). The time for filing the notice of appeal is not deferred unless the Rule 59(e) motion is timely. Id.; see also Leviner, 339 S.C. at 128, 530 S.E.2d at 493-94 (noting the same requirement under Rule 59, SCRCP).

Federal Rule 59(e) provides that "[a]ny motion to alter or amend a judgment shall be filed no later than 10 days after entry of the judgment." Fed. r. civ. p. 59(e). Al- though in the above scenario the district court granted the defendant an extension beyond the 10 days, Federal Rule 6 provides that the district court does not have the authority to extend the time for filing a Rule 59(e) motion. Fed. r. civ. p. 6(b); see also Panhorst v. United States, 241 F.3d 367, 370 (4th Cir. 2001). If defense counsel relies upon a district court's grant of an extension of time to file a Rule 59(e) motion and subsequently files a notice of appeal that is calculated to be due 30 days from the district court's order denying the Rule 59(e) motion, the appellate court will likely dismiss the appeal as untimely. See Panhorst, 241 F.3d at 373; Alston v. MCI Communications Corp., 84 F.3d 705, 708 (4th Cir. 1996). Counsel's reliance on the district court's extension is unreasonable because "a litigant 'has a duty to familiarize himself with the [Federal] Rules,' which clearly prohibit an extension of time to in which to file a Rule 59 motion." Panhorst, 241 F.3d at 373 (quoting Certain Underwriters at Lloyds of London v. Evans, 896 F.2d 1255, 1258 (10th Cir. 1990)).

Under these circumstances, the defendant may attempt to seek refuge by arguing for application of the "unique circumstances" doctrine, which "applies only where a party has performed an act which, if properly done, would postpone the deadline for filing his appeal and has received specific assurance by a judicial officer that this act has been properly done." Osterneck v. Ernst & Whinney, 489 U.S. 169, 179 (1989). However, several courts have rejected application of the doctrine and questioned its continued viability. See Panhorst, 241 F.3d at 371; Pinion v. Dow Chem., USA, 928 F.2d 1522, 1529 (11th Cir. 1991); Kraus v. Consol. Rail Corp., 899 F.2d 1360, 1362-63 (3rd Cir. 1990); Parke-Chapley Constr. Co. v. Cherrington, 865 F.2d 907, 913 n.6 (7th Cir. 1989). These courts reject the application of the "unique circumstances" doctrine under the facts of this scenario based upon the United States Supreme Court's instruction in Browder that the timely filing of a notice of appeal is "mandatory and jurisdictional." Browder, 434 U.S. at 264. The "unique circumstances" doctrine is not likely to save the appeal from dismissal.

The time begins to run for filing the notice of appeal in federal court on the date the order is entered on the district court's docket

Assume the federal district court issued an order from the bench granting a defendant's motion for summary judgment and the ruling was later set forth in a written judgment that was entered on the civil docket. Further assume that the parties have not received written notice of the order. When does the order become a final judgment, and when does the time for filing an appeal begin to run? The time for filing an appeal begins to run on the date the order is entered on the docket.

Rule 4 of the Federal Rules of Appellate Procedure provides that the "notice of appeal required by Rule 3 must be filed with the district clerk within 30 days after the judgment or order appealed from is entered." Fed. r. app. p. 4(a)(1)(A). The only exceptions to this rule are when the United States is a party, when certain motions are timely filed and in specified prisoner appeals. Id. A review of Rule 4(a)(7)(A), which contains substantial changes in the 2002 amendments shows that entry of judgment for purposes of calculating the time for filing a notice of appeal is defined as follows:

If Fed. r. civ. p. 58(a)(1) does not require a separate document (Rule 58(a)(1) does not require a separate document for orders disposing of motions for judgment under Rule 50(b), to amend or make additional findings of fact under Rule 52(b), for attorney fees under Rule 54, for a new trial or to alter or amend the judgment under Rule 59 or for relief under Rule 60), entry occurs when the judgment or order is entered in the civil docket under Fed. r. civ. p. 79(a).

However, if Fed. r. civ. p. 58(a)(1) requires a separate document (if the district court fails to set forth the judgment or order in a separate document, new Rule 4(a)(7)(B) provides that such failure "does not affect the validity of an appeal from that judgment or order"), entry occurs when the judgment or order is entered in the civil docket under Federal Rule of Civil Procedure 79(a) AND when the earlier of the following occurs:

* The judgment or order is set forth on the separate document OR

* 150 days have run from entry of the order or judgment in the civil docket under Fed. r. civ. p 79(a).

see Fed. r. app. p. 4(a)(7)(A).

Because the scenario above involves the grant of a motion for summary judgment, a separate document is required and the latter portion of Rule 4(a)(7) referenced above applies. Fed. r. app. p. 4(a)(7)(A)(ii).

Rule 58 of the Federal Rules of Civil Procedure sets forth the procedure for entry of a judgment and was also substantially revised by the 2002 amendments. Fed. r. civ. p. 58. Importantly, "[e]very judgment and amended judgment must be set forth on a separate document," with five exceptions (noted above). Fed. r. civ. p. 58(a). New Rule 58(d) allows a party to request that the judgment be set forth on a separate document as required by the Rule. Fed. r. civ. p. 58(d). Following a general jury verdict or following a court's decision granting a party only a certain sum or denying all relief, and unless the court orders otherwise, the clerk shall prepare and enter the judgment without waiting for direction from the court. Fed. r. civ. p. 58(a)(2)(A). If the court grants other relief (not described above) or the jury returns a special verdict or a general verdict accompanied by interrogatories, "the court must promptly approve the form of the judgment, which the clerk must promptly enter." Fed. r. civ. p. 58(a)(2)(B).

The Federal Rules of Civil Procedure provide the same definition of when a judgment is entered as that provided in the Federal Rules of Appellate Procedure, outlined above. Compare Fed. r. civ. p. 58(b), with Fed. r. app. p. 4(a)(7)(A). Both the civil and appellate rules reference compliance with Rule 79(a), which requires the district clerk to enter all judgments in the civil docket. Fed. r. civ. p. 79(a). Finally, Rule 77(d) provides that "[i]mmediately upon the entry of an order or judgment the clerk shall serve a notice of the entry . . . and shall make a note in the docket of the service." Fed. r. app. p. 77(d). However, "[l]ack of notice of the entry by the clerk does not affect the time to appeal or relieve or authorize the court to relieve a party for failure to appeal within the time allowed, except as permitted in Rule 4(a) of the Federal Rules of Appellate Procedure." Id. Rule 4(a)(6) of the Federal Rules of Appellate Procedure allows a district court to reopen the time for appeal for 14 days if a party does not receive notice of the entry of judgment, but only if all conditions stated in Rule 4(a)(6) are satisfied. Fed. r. app. p. 4(a)(6).

The judgment is final once the district court sets forth the judgment in a separate document and the clerk enters it on the civil docket. The date of entry on the docket is the date a federal order becomes a final judgment, and the time for filing the appeal begins to run on that date. The finality of a federal judgment does not depend upon the parties' receipt of written notice of its entry. Likewise, the time for filing an appeal is not altered by a party's failure to receive written notice of the entry of a final judgment. However, if a party's lack of notice results in his missing the time for filing an appeal, he may move the district court to reopen the time to appeal under certain circumstances. The lesson here is that the federal rules require the attorney to exercise vigilance in following his or her cases.

In conclusion, although preparing a case for trial often results in primary focus on the rules of civil procedure and preparing persuasive arguments and presentations to the fact-finder, the attorney must be aware of the rules and case law regarding appellate procedure and ensure that requirements are met to avoid foreclosing appellate rights.

3. Mitchell Brown and Elizabeth Herlong Campbell both practice in the Columbia office of Nelson, Mullins, Riley & Scarborough, LLP and specialize in appellate practice.

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