The last post outlined seven hurdles to preserve appellate issues. The first is that the party raising an issue on appeal be the one who raised it in the trial court. Generally speaking, an “appellant cannot bootstrap an issue for appeal by way of a co-defendant’s objection.” Tupper v. Dorchester County, 326 S.C. 318, 324 n. 3, 487 S.E.2d 187, 190 n. 3 (1997).
But the rule may not be ironclad.
Another line of decisions holds that parties need not repeat objections after a trial court has ruled. In Staubes v. City of Folly Beach, 339 S.C. 406, 529 S.E.2d 543 (2000), a landowner alleged a takings claim. The City argued that the claim was actually a negligence claim. The trial court granted the City summary judgment on both takings and negligence. On appeal, the City argued that the issues raised about the negligence claim were not preserved because the court did not grant the landowner leave to amend to allege negligence. The Court disagreed, holding that an amendment adding the negligence claim would be futile given the trial court’s ruling granting summary judgment on the claim.
This futility exception seems tailor-made for co-party objections. See United States v. Baker, 458 F.3d 513, 518 (6th Cir. 2006)(applying cases holding that co-party objections will preserve issues when repetitive objections would be futile); Loose v. Offshore Navigation, Inc., 670 F.2d 493, 497 (5th Cir. 1982)(holding that the federal counterpart to Rule 103, S.C.R.Evid., allows co-party objections to preserve evidentiary issues).
But a word of warning – the futility exception may not work for claimed errors in jury charges. Rule 51, SCRCP, provides, “No party may assign as error the giving or the failure to give an instruction unless he objections thereto . . ..” This “he objects thereto” provision seems to require an objection at trial come from the party assigning the error on appeal.
Has anyone out there successfully argued that a co-party’s objection preserved an issue for appeal? If so, please leave a reply or reach me at www.attorneyroberthill.com.