Vol. 10, No. 5, Pg. 14. Issue Preservation at Trial: Back to the Basics.

AuthorBy the Hon. Jean H. Toal, Robert A. Muckenfuss and Shahin Vafai

South Carolina Lawyer

1999.

Vol. 10, No. 5, Pg. 14.

Issue Preservation at Trial: Back to the Basics

14Issue Preservation at Trial: Back to the BasicsBy the Hon. Jean H. Toal, Robert A. Muckenfuss and Shahin VafaiFor many trial lawyers, appellate law is an unfamiliar and confusing area of practice. The rules governing appellate practice are often viewed as esoteric or even counter-intuitive. One area where this is especially true is issue preservation. This article attempts to clear away some of the confusion surrounding this topic by going back to the basics. In the process, it also discusses some of the most recent developments in issue preservation.

Four Basic Elements

Appellate courts by definition exist to review judgments rendered below. However, the ability of a litigant to raise an issue on appeal directly depends on whether the issue was properly preserved at trial. In this sense, appellate preparation must begin at trial.

Understandably, it can be a daunting task for a litigator to juggle the dual responsibilities of advocating the client's position at trial while, at the same time, ensuring arguments are protected for a possible appeal. It is therefore essential that lawyers have a firm grasp of the rudiments of issuepreservation. In general, there are four basic elements to preserving an issue for review. The issue must be raised to and ruled on by the lower court, raised by the appellant, raised in a timely manner and raised with sufficient specificity. Each of these elements is discussed below.

1. Raised to and Ruled on by the Lower Court.The first step of preserving an issue for appellate review is to actually raise it to the trial court. An issue that is not raised to the trial court will not be considered by the appellate court. Wilder Corp. v. Wilke, 330 S.C. 71, 497 S.E.2d 731 (1998); Butler v. Town of Edgefield, 328 S.C. 238, 493 S.E.2d 838 (1997).

The idea is to give the trial court a chance to resolve the issue before it is presented to the appellate court. Thus, the trial courtmust also rule on the issue for it to be preserved for review. Id. Such an approach promotes judicial economy and engenders fairness within the system.

Occasionally, the trial court may fail to rule on an issue that was properly raised during trial. When this occurs, the party raising the issue must raise it again by way of post-trial motion. Wilder Corp., supra. Post-trial motions are also required to raise issues that could not have been raised during trial. See, e.g., Pelican Bldg. Centers of Horry-Georgetown, Inc. v. Dutton, 311 S.C. 56, 427 S.E.2d 673 (1993) (although the trial court's oral and written orders were inconsistent in that the written order afforded additional alternative relief, the issue was not preserved because it was not raised in a post-trial motion). It is important to remember,

16however, that a party may not use a post-trial motion to raise an issue that could have been raised at trial. Patterson v. Reid, 318 S.C. 183, 456 S.E.2d 436 (Ct. App. 1995). Moreover, post-trial motions are not necessary to preserve issues that have already been ruled on at trial. Wilder Corp., supra.

There are a few limited exceptions to the rule that an issue must be raised below. The most notable exception involves subject matter jurisdiction. A lower court's lack of subject matter jurisdiction may be raised at any time, even for the first time on appeal. Carter v. State, 329 S.C. 355, 495 S.E.2d 773 (1998); Bardoon Properties, NV v. Eidolon Corp., 326 S.C. 166, 485 S.E.2d 371 (1997). In fact, the appellate court has a duty to raise the issue on its own motion if it is not first raised by either of the parties. Amisub of South Carolina, Inc. v. Passmore, 316 S.C. 112, 447 S.E.2d 207 (1994). Further, a court's lack of subject matter jurisdiction may not be waived by consent of the parties. Id.

A recent development involving issue preservation and subject matter jurisdiction occurred in the criminal context. In State v. Johnston, Op. No. 24874 (S.C. Sup. Ct. filed Jan. 4, 1999) (Shearouse Adv. Sh. No. 2 at 7), the Supreme Court addressed the distinction between a trial court's subject matter jurisdiction and sentencing authority.

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