Wednesday, May 18, 2005

Reminder on Error Preservation

In Cowburn v. Leventis, (Opinion No. 3990), released on May 16, the South Carolina Court of Appeals gives another reminder on just how important and tricky error preservation can be:

Cowburn argues the trial court failed to consider the affidavit from his expert, Thomas Mason, in resolving the motion for summary judgment, asserting the affidavit creates an issue of material fact as to the duties Fidelity owed to Cowburn. We find Cowburn did not preserve this issue for our review.

In order for an issue to be preserved for appellate review, with few exceptions, it must be raised and ruled upon by the trial judge. Lucas v. Rawl Family Ltd. P’ship, 359 S.C. 505, 511, 598 S.E.2d 712, 715 (2004). When a trial court makes a general ruling on an issue, but does not address the specific argument raised by a party, that party must make a Rule 59(e) motion asking the trial court to rule on the issue in order to preserve it for appeal. See Noisette v. Ismail, 304 S.C. 56, 58, 403 S.E.2d 122, 124 (1991).

Leventis and Fidelity objected at the summary judgment motion hearing to Mason’s affidavit on the grounds that it did not establish Mason as an expert, was not timely, was not notarized, and contained legal conclusions. Although the record includes discussions during the motion hearing concerning Mason’s affidavit and Cowburn’s assertions that it should be considered, the trial court never indicated whether it would consider it. In addition, the trial court did not specifically address Mason’s affidavit in its written order granting summary judgment. We find the trial court did not rule upon this issue, and thus, whether or not the court erred in failing to consider the affidavit is not preserved for appeal. See id.

No comments: