With regard to preservation of an issue for appeal, how close is close enough? This issue was examined in a recent decision by the Fourth Circuit Court of Appeals in
CoreTel Virginia, LLC v. Verizon Virginia, LLC, No. 15-1008, 2015 WL 7075479 (4th Cir. Nov. 13, 2015). In
CoreTel, the court found that the appellant waived a statute of limitations argument by failing to cite to, and discuss below, the limitations statute subsection it was pursuing on appeal, 47 U.S.C. § 415(a). Instead of arguing section 415(a), CoreTel pressed subsection (b), which the lower court found inapplicable. On appeal, CoreTel asserted its defense under 415(a) was preserved in the following manner:
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by including a blanket statement in its answer that Verizon’s claims are “barred by the statute of limitations”;
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by generally referencing section 415 without specifying a subsection in its proposed post-trial findings of fact; and
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by citing a case applying 415(b), but whose reasoning, according to CoreTel, was equally applicable to subsection (a).
In rejecting these arguments, the circuit court stated that: “[i]t is not enough for a party to raise ‘a non-specific objection or claim’”; rather, “[i]f a party wishes to preserve an argument for appeal, [i]t must press and not merely intimate the argument during the proceedings before the district court.” Id. at *8 (citations omitted). Here, CoreTel failed to “invoke section 415(a) with anything close to the specificity that would have been required to alert the district court that it needed to analyze whether that statute might bar certain damages Verizon sought.” Id.
Preservation Issue:
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Careful consideration of defenses to raise in the trial court is important, and the failure to identify applicable defenses with sufficient specificity may lead to waiver of those defenses on appeal.
Tips: While counsel may press hard on one issue or subsection of a statute, as was the case in CoreTel, it is important not to forget to assert additional grounds to dismiss an action or limit damages where applicable.
When deciding which defenses to raise in the trial court, it is best to engage in a thorough analysis of potential defenses, including both common law and statutory ones. Once potential defenses are identified, they should be systematically analyzed in light of the facts and circumstances of the case and accepted or rejected, as appropriate. This process is aided by a set of fresh eyes from a colleague or, better yet, an experienced appellate/trial support professional.
It is also important to re-examine the defenses pled as the matter progresses in case it is necessary to amend pleadings in light of new evidence.
