Error Preservation for Appeal (January 2006)

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Material for Trial & Appellate Advocacy Annual Convention CLE– January 2006

Attorneys who try cases without thinking about appeal issues are doing their clients a disservice. Often a case that resolves with a poor outcome at trial can be reversed or remanded on appeal–but only if the errors the lower court made were preserved for appeal. Error preservation, though often intellectually complex, is actually procedurally simple.

There are four basic requirements for error preservation: 1) the issue must be raised and ruled upon by the trial court; 2) the issue must be raised by the appellant; 3) the issue must be raised in a timely manner; and 4) the issue must be raised with specificity. Jean Hoefer Toal, Shahin Vafai & Robert A. Muckenfuss, Appellate Practice in South Carolina, Second Edition, 57-68 (South Carolina Bar–CLE Division, 2002).

The basic concept behind error preservation is that the lower court should have the opportunity to correct its errors before a litigant appeals an issue. Further, the basis of the court’s alleged error needs to be made known to the lower court at the time the error is alleged. Thus, the rules of error preservation are designed to make sure that the error is first brought to the lower court’s attention (and thus one cannot appeal an issue that has not first been brought to the lower court’s attention) and that the basis of the court’s error is made apparent to the lower court (and thus one cannot raise a basis for error on appeal that was different than the basis alleged in the lower court).

Error preservation often falls into one of four broad categories. One important area of error preservation regards the introduction of improper evidence, argument, voir dire or jury charges. The introduction of improper evidence or jury charges can be a basis for a reversal and remand. See State v. Taylor, 356 S.C. 227, 589 S.E.2d 1, 3 (2003) (remanding criminal case based on improper jury charge); Webb v. CSX Transp., Inc., 364 S.C. 639, 615 S.E.2d 440, 448 (2005) (improper admission of subsequent remedial measures constituted reversible error).

To warrant reversal, the improperly admitted evidence or improper jury charge must be both “erroneous and prejudicial.” Taylor, supra (remand based on improper jury charge); Woodward v. South Carolina Farm Bureau Ins. Co., 277 S.C. 29, 282 S.E.2d 599, 600 (1981) (remand based on improperly admitted evidence).

“[T]o preserve an issue for appellate review, the issue must have been raised to and ruled upon by the trial court.” Whaley v. CSX Transp., Inc., 362 S.C. 456, 609 S.E.2d 286, 299 (2005). In Whaley the appellant raised an evidentiary objection on appeal. At trial, that evidentiary issue had been ruled upon at sidebar; however, the contents of the sidebar were not made part of the record. Thus the Supreme Court would not consider this issue on appeal. Id , 609 S.E.2d at 299-300.

To preserve for appeal the introduction of improper evidence, jury charges or voir dire, counsel must make a contemporaneous objection to the introduction of such matter or matters, state all bases upon which the matter is objectionable. “[T]o warrant reversal, a trial judge’s refusal to give a requested charge must be both erroneous and prejudicial.” State v. Burkhart, 350 S.C. 252, 565 S.E.2d 298, 303 (2002). If the objection is sustained but the appellant does not move for a curative instruction or request a mistrial, he has received what he has asked for and cannot be heard to complain on appeal. McKisick v. J.F. Cleckley & Co., 325 S.C. 327, 479 S.E.2d 67 (Ct. App. 1996).

Another area where error preservation is necessary is the introduction of improper evidence or the exclusion of proper evidence. In order to be successful on appeal, the introduction or exclusion of evidence must be both erroneous and prejudicial. State v. Taylor, 333 S.C. 159, 508 S.E.2d 870, 876 (1998). The party opposing the admission or exclusion of evidence must object and state the specific grounds for the objection. Roberts v. Roberts, 299 S.C. 315, 384 S.E.2d 719 (1989). “If an objection has once been made at any stage to the admission of evidence, it shall not be necessary thereafter to reserve rights concerning the objectionable evidence.” Rule 43(c)(1), SCRCP. Where a question is answered before an objection is made and the objection is overruled, a motion to strike is necessary to preserve error. State v. Bryant, 311 S.C. 442, 429 S.E.2d 816 (Ct. App. 1993), aff’d in part, rev’d in part, 316 S.C. 216, 447 S.E.2d 852 (1994).

A ruling on a motion in limine is not the ultimate disposition of the admissibility of evidence. State v. Floyd, 295 S.C. 518, 369 S.E.2d 842 (1988). Since a ruling on a motion in limine is preliminary and subject to change based on developments at trial, a contemporaneous objection must be made again when the evidence is presented at trial. Samples v. Mitchell, 329 S.C. 105, 495 S.E.2d 213 (Ct. App. 1997).

Trial judges will sometimes try to cut off argument on the introduction or exclusion of evidence. See Rule 43(i), SCRCP (“No argument shall be made on objections to admissibility of evidence or conduct of trial unless specifically requested by the court.”); Rule 9(b), SCRFC (“Counsel shall not attempt to further argue any matter after he has been heard and the ruling of the court has been pronounced. No argument shall be made on objections to admissibility of evidence or conduct of trial unless specifically requested by the court.”).

However, one must still make a proffer as to why the introduced evidence is objectionable or the excluded evidence is admissible. Further, in order to preserve excluded evidence for appeal, that evidence must be proffered. The purpose of a proffer is to adequately develop the record in order to allow the appellate court a chance to determine whether the appellant was prejudiced by the trial court’s refusal to admit the evidence. Appellate Practice in South Carolina, 69. The procedure for a proffer is simple and contained in Rule 103, SCRE:

(1) Objection. In case the ruling is one admitting evidence, a timely objection or motion to strike appears of record, stating the specific ground of objection, if the specific ground was not apparent from the context; or

(2) Offer of Proof. In case the ruling is one excluding evidence, the substance of the evidence and the specific evidentiary basis supporting admission were made known to the court by offer or were apparent from the context.

In a jury trial, the proffer should be done outside the jury’s presence. Rule 103(c), SCRE.

In preserving excluded documentary evidence for appeal, the best method is simply to have the excluded exhibit marked. In preserving excluded testimonial evidence for appeal, counsel may either make a brief statement of what the testimony desired to be elicited would be or may have the witness provide the testimony outside the presence of the jury.

A third area where error preservation becomes an issue are challenges to the sufficiency or insufficiency of the evidence. In order to preserve sufficiency of the evidence issues for appeal, one must first raise the issue to the trial court, through a motion for a directed verdict and a motion notwithstanding the verdict (JNOV). In civil cases, a party must move for a directed verdict as a prerequisite for a JNOV motion. Rule 50(b), SCRCP; Benton &. Rhodes, Inc. v. Boden, 310 S.C. 400, 426 S.E.2d 823 (Ct. App. 1993). A ground not included in a directed verdict motion cannot be raised in a JNOV motion. Stroud v. Elliott, 316 S.C. 242, 449 S.E.2d 261 (Ct. App. 1994).

In a bench trial, a motion for a directed verdict is not appropriate. Dorchester County v. Branton, 286 S.C. 20, 331 S.E.2d 377 (Ct. App. 1985). Thus, no directed verdict motion is required to preserve for appeal an issue regarding the sufficiency of evidence.Norell Forest Products v. H & S Lumber Co., 308 S.C. 95, 417 S.E.2d 96 (Ct. App. 1992); See Rule 52(b), SCRCP.

In civil cases a motion for a directed verdict must be made at the close of the opposing party’s evidence and must state the specific grounds for the motion. Rule 50(a), SCRCP.

To consider issues raised in a directed verdict motion made after the Plaintiff’s case, the motion must be renewed at the close of all evidence. Evans v. Wabash Life Ins. Co., 247 S.C. 464, 148 S.E.2d 153 (1966).

In criminal cases, a motion for a directed verdict can be made after the close of the State’s case or at the close of all evidence. Rule 19(a), SCRCrimP. If the Defendant makes the motion at the close of the State’s case and then presents evidence, he must renew the motion at the close of all evidence and he loses the right to have the appellate court review the sufficiency of the evidence based on the State’s evidence alone. State v. Harry, 321 S.C. 273, 468 S.E.2d 76 (Ct. App. 1996).

A final common area of error preservation is obtaining a ruling on contested issues. When the court makes rulings that are not on the record, counsel must make sure the ruling becomes part of the lower court record. “An objection made during an off-the-record conference which is not made part of the record does not preserve the question for review.” State v. Fletcher, 363 S.C. 221, 609 S.E.2d 572, 591 (Ct. App. 2005). To preserve the issue counsel must merely note, on the record, at the next available time what the court’s off the record ruling was. This preserves the issue for appeal.

Often in trials, especially bench trials, issues will have been raised but not explicitly ruled upon. In such circumstances a motion must be brought under Rules 52(b) and 59 (e), SCRCP, asking the court to rule upon the issue. Otherwise the issue is not preserved for appeal. When a trial court does not explicitly rule on an argument raised, and appellant makes no Rule 59(e) motion to obtain a ruling, the appellate court may not address the issue. Noisette v. Ismail, 304 S.C. 56, 58, 403 S.E.2d 122, 124 (1991).

The purpose of a Rule 59(e), SCRCP, to alter or amend the judgment is to request the trial judge to reconsider matters properly encompassed in a decision on the merits. Arnold v. State, 309 S.C. 157, 172, 420 S.E.2d 834, 842 (1992). Thus, once the issue has been properly raised in a Rule 59(e) motion, it is preserved and a second motion is not required if the trial court does not specifically rule on the issue raised. Coward Hund Const. Co. v. Ball Corp., 336 S.C. 1, 518 S.E.2d 56 (Ct. App. 1999), citing James F. Flanagan, South Carolina Civil Procedure 475 (2d ed. 1996).  If the issue was raised and ruled upon at trial, a Rule 59(e) motion is not required. Wilder Corp. v. Wilke, 330 S.C. 71, 497 S.E.2d 731 (1998). A party cannot raise an issue in a post-trial motion that could have been raised at trial. Patterson v. Reid, 318 S.C. 183, 456 S.E.2d 436 (Ct.App 1995). However, challenges to subject matter jurisdiction can be raised at any time.

Two books published by the South Carolina Bar are extremely useful for researching error preservation issues: Appellate Practice in South Carolina, Second Edition (2002) and Alex Sanders and John S. Nichols, Trial Handbook for South Carolina Lawyers, Third Edition (2005). Many of the case citations in this material come from these books.