WE ARE A VETERAN-OWNED BUSINESS
WE ARE A VETERAN-OWNED BUSINESS
Appellate courts can affirm on any ground in the record—even one no party raised. South Carolina’s Supreme Court has warned this can be “unfair or unwise” but hasn’t said where the line is. Drawing on courts nationwide, we propose three limits that protect appellants without sacrificing finality.
Welcome to the first “thought piece” post of Nil Ultra, a South Carolina legal blog with an appellate focus. Why did we choose Nil Ultra? It means “None Higher” and is our Supreme Court’s motto. The name is a natural fit for what we will share. Stay tuned for more articles and notable updates from our firm.
To kick things off, I want to address a unique power of appellate courts: the ability to affirm for any reason appearing in the record. We call this an “additional sustaining ground.” Here’s a textbook example: a defendant moves for summary judgment on two independent grounds, and the trial court grants judgment on one without reaching the other. If the appellate court finds the trial court was wrong on that ground, it can still affirm—this time on the ground the trial court skipped. So far, so good.
But what happens when the appellate court affirms for a reason that no one previously raised? That’s where it gets tricky.
There’s an inherent problem with deciding an issue that the losing party never had a chance to address or build a record on. Sometimes the parties had good reasons not to raise the issue. Sometimes, the court reaches the wrong answer when it rules without hearing from both sides. And the court never has the full picture.
Our Supreme Court has recognized that it is “unfair or unwise to resolve a case on a ground never mentioned by the respondent prior to appeal,” so “the appellate court is likely to ignore” it. I’On, LLC v. Town of Mt. Pleasant, 338 S.C. 406, 421, 526 S.E.2d 716, 724 (2000); see also Alexander v. Houston, 403 S.C. 615, 620 n.4, 744 S.E.2d 517, 520 n.4 (2013) (“[W]e are reticent to invoke an alternative sustaining ground where the ground is not raised in the appellate brief. Invoking an additional sustaining ground under such circumstances would generally be unfair to an unaware appellant.”).
Despite that caution, appellate courts reach new additional sustaining grounds fairly often. Yet our courts have not clarified when the practice becomes “unfair or unwise.”
We almost had an answer, though. A few years ago, the Court agreed to review this issue in one of my cases. The Court ultimately resolved the case on a different ground, so the question remains open in South Carolina. But courts elsewhere have drawn sound limits that balance the finality of judgments, judicial economy, the rights of appellants, and the proper role of an appellate court.
Here is where I argued the courts should draw the line.
First, the additional sustaining ground must be “within the power of the appellate court to formulate.” Silver v. Greater Balt. Med. Ctr., Inc., 248 Md. App. 666, 719, 243 A.3d 576, 607 (2020) (quoting City of Frederick v. Pickett, 392 Md. 411, 424, 897 A.2d 228, 236 (2006)). An appellate court can answer questions of law. See Fabian v. Lindsay, 410 S.C. 475, 482, 765 S.E.2d 132, 136 (2014). A South Carolina appellate court can make findings of fact in cases in equity. See Lewis v. Lewis, 392 S.C. 381, 385–86, 709 S.E.2d 650, 651–52 (2011).
But some matters belong to the trial court alone, such as finding facts in cases at law and making discretionary calls like admitting evidence. See State v. Commander, 396 S.C. 254, 262, 721 S.E.2d 413, 417 (2011); Jordan v. Holt, 362 S.C. 201, 205, 608 S.E.2d 129, 131 (2005).
Unpreserved discretionary issues therefore should not serve as additional sustaining grounds. E.g., Silver, 248 Md. App. at 719, 243 A.3d at 607; City of Kodiak v. Kodiak Pub. Broad. Corp., 426 P.3d 1089, 1096 (Alaska 2018); Wagner v. Strickland, 908 So. 2d 549, 551 n.1 (Fla. Dist. Ct. App. 2005). Reaching them for the first time on appeal raises several problems:
These unanswered questions—and many others—show why an unpreserved discretionary issue should not serve as an additional sustaining ground.
Second, due process requires that the appellant have both notice of and an opportunity to be heard on the additional sustaining ground. See Kurschner v. City of Camden Planning Comm’n, 376 S.C. 165, 171, 656 S.E.2d 346, 350 (2008); see also Kaufman v. Kaufman, 133 N.Y.S.3d 54, 86 (App. Div. 2020) (“It would not be appropriate for us to decide this appeal on a distinct ground that we winkled out wholly on our own, without affording the parties notice and an opportunity to be heard.”) (internal quotation marks and citations omitted); Ala. Psychiatric Servs., P.C. v. 412 S. Court St., LLC, 81 So. 3d 1239, 1249 (Ala. 2011) (holding that an additional sustaining ground is improper “where due-process constraints require some notice at the trial level, which was omitted, of the basis which would otherwise support an affirmance”); cf. Grier v. AMISUB of S.C., Inc., 397 S.C. 532, 540 n.2, 725 S.E.2d 693, 698 n.2 (2012) (holding that a general request to affirm under Rule 220(c), SCACR, constitutes abandonment of any additional sustaining grounds); I’On, 338 S.C. at 420, 526 S.E.2d at 723 (holding that a respondent abandons an additional sustaining ground by failing to raise the issue in its brief).
The appellant must have some notice of the ground for affirmance—whether at trial, from the respondent’s brief, from the appellate court, or by operation of law because the appellant bears the burden on that issue. Only then can the appellant build a sufficient record demonstrating error and be meaningfully heard on that ground. See First Sav. Bank v. McLean, 314 S.C. 361, 363, 444 S.E.2d 513, 515 (1994) (noting the appellant bears the burden of showing error and prejudice).
Third, and dovetailing with the notice requirement, the additional sustaining ground must sufficiently appear in the record. See Rule 220(c), SCACR. While our courts have not defined what “appear in the record” means, other courts have developed a three-part test:
[I]f the question presented is not purely one of law, then the evidentiary record must be sufficient to support the proffered alternative basis for affirmance. That requires: (1) that the facts of record be sufficient to support the alternative basis for affirmance; (2) that the trial court’s ruling be consistent with the view of the evidence under the alternative basis for affirmance; and (3) that the record materially be the same one that would have been developed had the prevailing party raised the alternative basis for affirmance below. In other words, even if the record contains evidence sufficient to support an alternative basis for affirmance, if the losing party might have created a different record below had the prevailing party raised that issue, and that record could affect the disposition of the issue, then we will not consider the alternative basis for affirmance.
Outdoor Media Dimensions Inc. v. State, 331 Or. 634, 659–60, 20 P.3d 180, 195–96 (2001); accord Prancing Antelope I, LLC v. Saratoga Inn Overlook Homeowners Ass’n, Inc., 478 P.3d 1171, 1182 (Wyo. 2021); 5 Am. Jur. 2d Appellate Review § 630; cf. State v. Hoskins, 165 Idaho 217, 226, 443 P.3d 231, 240 (2019) (refusing to consider an unpreserved additional sustaining ground because “the record suggests that the proceedings developed in such a way that [the appellant] had neither the incentive nor the opportunity to present evidence or argument” on that issue).
Additional sustaining grounds serve a legitimate purpose. But they can work an injustice—however well-intentioned—when a court affirms on an issue no party ever raised. These three limits preserve that purpose while protecting appellants’ rights.
What is an additional sustaining ground in South Carolina appellate law?
An additional sustaining ground is an alternative legal basis an appellate court may use to affirm a lower court’s decision, even if the trial court relied on a different reason. Under South Carolina law, an appellate court may affirm a ruling on a ground supported by the record.
Can an appellate court affirm a decision based on an argument neither party raised?
South Carolina appellate courts have the authority to affirm on grounds appearing in the record, but the South Carolina Supreme Court has cautioned that relying on an argument never raised by the respondent may be unfair or unwise. The precise limits of this authority remain an open question.
What is Rule 220(c) of the South Carolina Appellate Court Rules?
Rule 220(c), SCACR, addresses an appellate court’s ability to affirm a judgment on any ground appearing in the record. The rule is central to the doctrine of additional sustaining grounds in South Carolina appellate practice.
Why does notice matter when an appellate court considers an additional sustaining ground?
Notice gives the appellant an opportunity to respond to an alternative basis for affirmance and develop a relevant record. Without that opportunity, the appellate court risks deciding an issue without hearing both sides or considering evidence that could affect the outcome.
Thank you for reading our first Nil Ultra think-piece article. Our goal is to discuss important cases, flag significant questions, and provide insight into South Carolina law and appeals. We’re excited to share more going forward.
Have you run into an additional sustaining ground you never saw coming or another appellate issue you’d like us to discuss? Reach me at whumphrey@whdlawyers.com.