NOTE: Preserve Your Right to Appeal At Every Opportunity

on April 14, 2014 by James Hunt

Jim hunt picA recent New York appellate decision provides a reminder on how important it is to properly preserve appealable issues at trial, so that a party is not foreclosed from appealing in the case of an adverse verdict. The New York Supreme Court, Second Department, rendered its decision in Goldman & Associates v. Golden on March 26, 2014. The action was filed by a law firm seeking to recover legal fees. The defendants, Beth and Adam Golden, appealed a jury verdict in favor of the law firm against each defendant in the amount of $34, 525.02.

The Second Department affirmed the lower court’s decision, with one exception. It found that the defendants failed to preserve their right to raise issues on appeal and failed to object at critical points in the case, including (i) at the close of evidence, (ii) the jury charge, (iii) the verdict sheet, and (iv) the form of the verdict.

However, Adam Golden was successful on one count. The defendants contended that they were entitled to judgment as a matter of law dismissing the cause of action to recover damages in quantum meruit because an express contract covered the same subject matter. But the issue was not preserved for appellate review. The defendants failed to raise this argument when they moved for judgment as a matter of law at the close of evidence during the trial. Nevertheless, the Second Department pointed out that questions of law may be raised for the first time on appeal. Thus, it was determined that Mr. Golden’s motion pursuant to CPLR 4404(a) for judgment as a matter of law dismissing the cause of action to recover damages in quantum meruit should have been granted. The jury verdict against Adam Golden was set aside and his motion for judgment as a matter of law was granted, and the complaint was dismissed insofar as asserted against the defendant Adam Golden.

Defendants’ other arguments regarding jury confusion over joint and several liability and the unenforceability of the fee-shifting provision for attorney’s fees in the contract were unsuccessful. The court held that the jury was never charged on joint and several liability, so the record did not support substantial confusion among the jurors. The jury failed to outline in its verdict what portion of the damages consisted of the law firm’s attorney’s fees, and the defendants failed to object to the jury charge, the verdict sheet and the form of the verdict, so allegations that the fee-shifting provision was unenforceable were waived on appeal.

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