Vol. 6, No. 5, Pg. 14. Preserving Error for Appeal A Special Case-Rule 59(e) Motions.

• Author: By Charles E. Carpenter Jr.

South Carolina Lawyer

1995.

Vol. 6, No. 5, Pg. 14.

Preserving Error for Appeal A Special Case-Rule 59(e) Motions

14Preserving Error for Appeal A Special Case--Rule 59(e) MotionsBy Charles E. Carpenter Jr.Most of the time lawyers tell war stories, but some of the time they tell fish stories. Rule 59(e) stories are about fish--the ones the lawyer has already landed in the boat that may jump back out.

A Rule 59(e) motion is essentially a post-trial or post-judgment motion asking the trial court to reconsider a ruling. For present purposes, the concern is with a particular kind of Rule 59(e) motion, one which asks the trial court to reconsider and decide an issue it has not ruled on. The Supreme Court and the Court of Appeals of South

16Carolina have held that a Rule 59(e) motion is mandatory to preserve any issues not ruled on in the trial court's initial order.

This is commonly referred to as a "Rule 59(e) motion," although this motion also may have applicability to Rule 52(b) and Rule 60. What is important is that the lawyer ask for the right relief on the right grounds and in compliance with the mandatory time limitations.

If a party wishes to appeal a decision of a trial court, the lawyer needs to consider whether a Rule 59(e) motion is necessary. If the motion is necessary, it must be made within 10 days. This 10 day time limitation can cause trouble if the lawyer loses sight of the possible need for a Rule 59(e) motion and relies on the 30 day time period in which to file a notice of appeal.

When a trial judge has perhaps "been wrong but not in doubt," the lawyer may feel that the only consequence of a motion to reconsider will be to unnecessarily irritate the trial judge.

It Is a Real Problem

The importance of Rule 59(e) can be seen from the sheer volume of cases that have been decided under it in the last few years. An inordinate number of appeals have been lost because of the lack of a proper Rule 59(e) motion. This small avalancheof cases is powerful evidence that the need for more and better Rule 59(e) motions is real.

Everyone has read and heard time and time again about the need to protect the record and to timely object or raise issues in order to preserve them for appeal. Lawyers can do this correctly and yet lose the benefit of their good efforts if the order that rules against them does not address their issue and they fail to go back to the trial judge with a Rule 59(e) motion.

When a trial judge has perhaps "been wrong but not in doubt," the lawyer may feel that the only consequence of a motion to reconsider will be to unnecessarily irritate the trial judge. It is easy to have visions of a busy trial judge becoming an angry trial judge who says, "Counsel, didn't you understand me the first time? I've already ruled on this case."

If there is an issue that is not clearly dealt with in the trial court's order, the lawyer needs to risk this reaction from the trial court. In most cases, the trial judge knows exactly why the motion is necessary. The judge will recognize that the lawyer is complying with the mandates of case law and giving the trial judge a second opportunity to look at the issue in order to preserve it for appeal. It is analogous to giving the Court of Appeals such an opportunity through a petition for rehearing before seeking a writ of certiorari from the Supreme Court.

Notice that the motion is giving the court a second chance. The lawyer must have already raised the issue before asking for reconsideration of an issue. At this stage of a case, it is a matter of preserving issues, not raising them. There are several procedural stages where litigants must preserve, protect and defend their issues. Appellate courts may decline to reach and decide an issue because it was:

(1)

Not raised in the trial court;

(2)

Not ruled on by the trial court;

(3)

Not preserved for appeal by a Rule 59(e) motion;

(4)

Not appealed from;

(5)

Not raised on appeal;

(6)

Not argued on appeal.

Rule 59(e) Cannot be Used for the First Time on Appeal

Rule 59(e) cannot be used to add a new ground that was not previously raised below. An example of this appears in Arnold v. State, 309 S.C. 157, 420 S.E.2d 834 (1992), cert. denied, 113 S. Ct. 1302 (1993), where a petitioner in a post-conviction relief action filed a motion under Rule 59(e) attempting to amend a petition for post-conviction relief to add additional grounds for relief. The Court did not allow this amendment and pointed out that the purpose of Rule 59(e) is to request the trial judge to "reconsider matters properly encompassed in a decision on the merits." Budinich v. Beckton, Dickinson & Co., 486 U.S. 196, 200, 108 S.Ct. 1717, 1720, 100 L. Ed. 2d 178, 184 (1988) (citing White v. New Hampshire Department of Employment Sec., 455 U.S. 445, 451, 102 S.Ct. 1162, 1166, 71 L. Ed. 2d 325, 330-331 (1982)). Both the Supreme Court and the Court of Appeals have reached the same result in several other contexts, saying that a party cannot raise an issue for the first time in a motion to reconsider. C.A.H. v. L.H., S.C. ___, 434 S.E.2d 268 (1993); Anderson Memorial Hosp., Inc. v. Hagen, _S.C._, 443 S.E.2d 399 (Ct. App. 1994).

If Rule 59(e) cannot be used to raise new issues for consideration, then when can the motion be used? It is used in several circumstances where the trial court does not decide in its written order the issue a litigant hopes to succeed on and

17wishes to raise on appeal. The lawyer is trying to avoid asking an appellate court to...