Error Preservation in South Carolina: Beware the "Two Issue" Rule.


Because I am an appellate lawyer, error preservation is the bane of my existence. I don't care if the trial judge excluded your evidence, kicked a puppy, or made the jury deliberate through the Clemson-Carolina game. If you don't preserve the error, I can't help you.

As of Monday, I no longer care if the judge awarded the plaintiff damages for breach of contract. We'll be appealing the unjust enrichment claim, too.

"But wait!" I hear you cry. "Breach of contract and unjust enrichment are mutually exclusive! If the plaintiff has a remedy at law, equity doesn't apply!" You are right, of course. (And also, you can stop shouting now.) And when the judge awards damages for actual pecuniary loss, rather than for the increase in the fair market value of the property, it certainly looks like the plaintiff won on its legal theories rather than its equitable one.

But as I said, after Monday that doesn't matter, because on Monday the South Carolina Supreme Court decided Atlantic Coast Builders v. Lewis. In Lewis, the plaintiff sued on theories of breach of contract, negligent misrepresentation, and unjust enrichment. The judge found for the plaintiff on all three theories and awarded damages as measured at law.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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