Tuesday, May 08, 2007

Court of Appeals reminds us of the importance of a proper appellate record

In Williamson v. Middleton, the en banc court of appeals gives counsel a reminder of why proper creation of an appellate record is critical. Williamson argued that Middleton is not entitled to the attorneys’ fees awarded because he did not meet the requirements of section 39-65-30 of the South Carolina Code. Specifically, Williamson argued that the statute only applied to sales representatives who seek to recover commissions on “wholesale” sales, and the sale Middleton sought commissions from was made to the ultimate consumer. The Court of appeals held that this issue was not preserved for review.

Williamson’s arguments to the Judge on this issue were not reflected in the record on appeal. Williamson's counsel indicated that she had briefed this issue before the judge, but the record on appeal did not contain a copy of the memo. However, the court of appeals acknowledged that the judge addressed the argument in his order awarding attorneys’ fees, which suggested that the argument was set forth in Williamson’s memorandum. In the order, the judge found Williamson’s argument that Middleton was not entitled to attorneys’ fees and costs pursuant to section 39-65-30 came too late because during trial, Williamson never objected to the jury instructions referencing section 39-65-30, nor did Williamson challenge the judge’s initial ruling that Middleton was entitled to attorneys’ fees.

To make the error preservation issue even more difficult, Williamson did not seek a reconsideration of these findings by Judge Pyle in its Rule 59(e) motion. Hence, the attorney fee issue was not properly preserved because it was not raised and ruled upon by the trial court.

No comments: