SC Lawyer, July 2007, #1. Should I Stay or Should I Go? Deciding Whether to Appeal or File a Motion to Reconsider.

• Author: By David Proffitt

South Carolina Lawyer

2007.

SC Lawyer, July 2007, #1.

Should I Stay or Should I Go? Deciding Whether to Appeal or File a Motion to Reconsider

South Carolina LawyerJuly 2007Should I Stay or Should I Go? Deciding Whether to Appeal or File a Motion to ReconsiderBy David ProffittNext time you find yourself stuck between the rock of wondering whether you should promptly serve a notice of appeal to meet the drop-dead deadline to appeal and the hard place of filing of a Rule 59(e) motion to ensure you've met the drop-dead requirement of preserving an issue for appellate review, you can thank the S.C. Supreme Court for a much needed cushion.

In Elam v. South Carolina Department of Transportation, 361 S.C. 9, 602 S.E.2d 772 (2004), the S.C. Supreme Court held that a party in most cases may file a Rule 59(e), SCRCP, motion without fear of missing the deadline to appeal. Any lawyer who has ever faced such a dilemma will appreciate this decision.

Let's set the scene. Suppose Jim, our indefatigable lawyer extraordinaire, just wrapped up a five-day trial, asking dagger-sharp questions of the adverse witnesses and vigorously arguing points of law to the judge. Jim made a closing argument that resounded through the halls of justice like Abe Lincoln giving his Gettysburg address at the foot of his own memorial. Sadly, jurors fell for his opponent's bogus arguments and returned a verdict against Jim's client.

Jim was tired, frazzled and disappointed. He requested 10 days to prepare written post-trial motions to set aside the judgment notwithstanding the verdict (JNOV) or for a new trial, as allowed by Rules 50(e) and 59(b), SCRCP. But the judge, who was also tired and wanted to put this case to bed, directed Jim to make his motions immediately.

Jim complied, gathered his thoughts as best he could and duly tried to repeat all the salient points he had made throughout the case. "Motions denied," the judge intoned. Case closed. Next. Move along, little dogie.

Driving back to the office, Jim's tired brain continued to churn. "Did I argue that the daughter never properly executed that contract and so, as a matter of law, there was no contract binding her, and only mom was bound if anybody was bound? I know I brought that up in my directed verdict motion, but did the judge rule on only my 'mom's not bound' argument or also the 'daughter's not bound' argument? Did I raise it again in the oral post-trial motion I just made? Hmm. I'm not certain I did. But if I did, did the judge actually rule on it?"

The next day, Jim pondered the matter further. "Should I appeal or file a Rule 59(e) motion? I sure would like to see the transcript before I decide what to do," he mused. Jim asked his paralegal, but she couldn't recall exactly when he had raised the issue or if the judge actually had ruled on it.

Jim did know three things for sure.

One, South Carolina appellate courts, with very limited exceptions, have "consistently refused to apply the plain error rule. . . . Instead, it is the responsibility of trial counsel to preserve issues for appellate review." Jackson v. Speed, 326 S.C. 289, 306-07, 486 S.E.2d 750, 759 (1997). A party must raise his issues and arguments in the trial court and obtain a ruling. When a party raises an issue and the judge does not rule on it, the party must file a Rule 59(e), SCRCP, motion in order to preserve the issue for appellate review. E.g. I'On, L.L.C. v. Town of Mt. Pleasant, 338 S.C. 406, 421, 526 S.E.2d 716, 724 (2000) (in discussion of additional sustaining grounds, Court reiterated the "important principle that all parties should raise all necessary issues and arguments to the lower court and attempt to obtain a ruling"); Wilder Corp. v. Wilke, 330 S.C. 71, 76, 497 S.E.2d 731, 733 (1998) ("It is axiomatic that an issue cannot be raised for the first time on appeal, but must have been raised to and ruled upon by the trial judge to be preserved for appellate review."); Summer v. Carpenter, 328 S.C. 36, 43, 492 S.E.2d 55, 58 (1997) (where trial judge did not rule on issue at trial and party did not make Rule 59(e) motion for a ruling, issue is not preserved for review); Rule 210(c), SCACR (record on appeal shall not include matter which was not presented to lower court).

Two, in a civil appeal, a party has 30 days from receipt of the written entry of the order denying post-trial motions and entering the judgment to serve a notice of appeal. Rule 203(b)(1), SCACR. "Service of the notice of intent to appeal is a jurisdictional requirement, and the Court has no authority to extend or expand the time in which the notice of intent to appeal must be served." Conner v. City of Forest Acres, 348 S.C. 454, 461, 560 S.E.2d 606, 609 (2002) (citing Mears v. Mears, 287 S.C. 168, 337 S.E.2d 206 (1985)).

And three, the filing of a Rule 59(e) motion or other timely post-trial motion generally tolls the deadline for serving a notice of appeal for all parties until receipt of written notice of entry of the order granting or denying such motion. See Rule 203(b)(1), SCACR; Rules 50(e), 52(c), and 59(f), SCRCP.

Jim decided to file a written Rule 59(e) motion to ensure all his issues were properly preserved. The trial judge, as expected, denied the motion...