l am privileged to help defend a multimillion-dollar judgment against an appeal. When my friends who tried the case asked for help, I first looked to see what issues were in play. In South Carolina, that means locating those issues that were raised and ruled on in the trial court. So I worked through opposing counsel’s lengthy post-trial motion and the order denying it.
So far so good. But then the opening brief came in. Smack in the middle of it was a brand new attack on the judgment. Surprised, I went to double-check the post-trial motion, thinking the issue was buried in there somewhere, but then I saw that the opening brief described the point as an “additional sustaining ground.” And I smiled, confident that the issue will not be heard.
I’On, L.L.C. v. Town of Mt. Pleasant, 338 S.C. 406, 526 S.E.2d 716 (2000), is the South Carolina case on additional sustaining grounds. In it, the Court It held that Rule 208(b)(2) and Rule 220(c) of our appellate rules ushered in a new procedure in which respondents may ask an appellate court to affirm on grounds that were never raised before.
I’on also noted that this ability is limited:
- The new ground must appear in the record. Courts decline to rely on a new ground if the facts were not fully developed below. Penza v. Pendleton Station, LLC, 404 S.C. 198, 743 S.E.2d 850 (Ct.App. 2013).
- Respondents must on appeal raise the new ground specifically. Grier v. AMISUB of South Carolina, 397 S.C. 532, 540 n. 2, 725 S.E.2d 693 n. 2 (2012).
- Courts may avoid the new ground if relying on it is unfair or unwise. Semken v. Semken, 379 S.C. 71, 664 S.E.2d 493 (Ct.App. 2008).
- Courts may avoid the new ground if the court affirms on grounds that the trial court relied on. I’On, 338 S.C. at 420 n. 9.
But back to my case. In my case, I represent the respondent, the trial-court winner who wants the appellate court to affirm. Opposing counsel represents the appellant, the trial-court loser who wants the appellate court to reverse.
I’On dealt with them too: “In contrast, different preservation rules apply to an appellant — the losing party in the lower court. An appellate court may not, of course, reverse for any reason appearing in the record.” To reverse, the Court continued, “the losing party generally must both present his issues and arguments to the lower court and obtain a ruling.” Id.
So I answered opposing counsel’s new argument by noting that it was new, confident that the Court of Appeals will see through mislabeling an unpreserved ground to reverse as an additional sustaining ground to affirm.
We will see. Has anyone else had opposing counsel confuse additional sustaining grounds? Please leave a reply. Would love to hear from you.