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

AuthorBy C. Mitchell Brown and Elizabeth Herlong Campbell

South Carolina Lawyer


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...

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