Waiver; The “raise or waive” rule of preservation in civil cases

The court did not reach the merits because defendants’ claim on appeal was waived. The case arose from a contract dispute. This was “the sixth appeal arising from this dispute, and the second one dealing specifically with interpleader attorney fees and costs.” The court noted that when “intervening plaintiffs moved for attorney fees and costs, defendants did not have counsel; a month prior, the trial court had granted” a motion to withdraw by then-defense counsel (L). “Importantly, the trial court sought to ensure that defendants continued to receive notice of proceedings in the action, including by mail or overnight courier and e-mail to addresses provided by [L]. Defendants failed to respond to intervening plaintiffs’ motion and did not attend the hearing.” Nothing in the record suggested they “did not receive notice of the motion or related hearing, and” they did not assert lack of notice on appeal. Rather, they acknowledged “the certificate of service filed along with the motion for attorney fees established that intervening plaintiffs had served defendants in compliance with the trial court order.” But they contended defendant-Dr. Sherrod “did not see the motion ‘[d]espite the interpleader plaintiffs’ compliance with the service instructions.’ Defendants do not provide any evidence to support this factual assertion or any explanation for Dr. Sherrod’s purported failure to receive and respond to the motion.” The court noted they “did not move for reconsideration in the trial court or file a reply brief on appeal, nor have they explained why” the court should consider a matter they failed to address in the trial court. Thus, it affirmed the trial court’s award of reasonable attorney fees and costs.