Parties in South Carolina who respond to an appeal may defend the trial court order with any ground appearing in the record. Myers v. Titlemax of South Carolina, Inc., Op. No. 2017-UP-098 (S.C. Ct.App. March 8, 2017), shows how this works.
Myers involves an arbitration clause in a loan contract between Joyce Meyers and Titlemax of South Carolina. After Titlemax gave Myers the loan, Titlemax separately hired Affordable Recovery Solutions (ARS) to repossess her car. Myers sued over the repossession, claiming that the repo men assaulted and battered her while trespassing on her property. ARS moved to compel arbitration based on Myers’s contract with Titlemax.
Reasons not to arbitrate
In response, Myers raised four arguments against arbitration:
- Neither she nor Titlemax intended to arbitrate the type of claims that Myers alleged against ARS. Myers submitted her and Titlemax’s affidavits on their intent when they contracted.
- Chassereau v. Global Sun Pools, Inc., 373 S.C. 168, 644 S.E.2d 718 (2007), shows that the arbitration clause was unenforceable because the conduct alleged was too outrageous to be foreseeable in the course of normal business dealings.
- ARS was not a party to the arbitration agreement.
- ARS waived any arbitration rights it had. Myers in support submitted an affidavit from her attorney on ARS’s litigation activities after ARS moved to compel arbitration.
Trial court ruling and appeal
After hearing all four arguments, the trial court denied the motion to compel arbitration for the first two reasons. It did not address on Myers’s further points about the lack of privity or waiver.
ARS appealed. Its opening brief did not talk about the lack of privity or waiver.
I argued on Meyer’s behalf in the South Carolina Court of Appeals. I asked the Court to affirm for any one of the four reasons that Myers gave the trial court, including the grounds that the trial court did not rule on.
The Court of Appeals affirmed the order denying arbitration, agreeing that ARS waived any right to arbitrate. Myers v. Titlemax of South Carolina, Inc., Op. No. 2017-UP-098 (S.C. Ct.App. March 8, 2017).
See how this works? You may ask the appellate court to affirm for any reason appearing in the record—regardless of whether you argued the point in the trial court or whether the trial court ruled on it.
But this warrants warnings.
Parties who are appealing an order can’t take advantage of the rule. Rule 220(c), SCACR, allows an appellate court to use any ground in the record to affirm, not reverse. To reverse, the issue must almost always first be raised and ruled on in the trial court. I’On, L.L.C. v. Town of Mt. Pleasant, 338 S.C. 406, 526 S.E.2d 716 (2000)(distinguishing between appellants and respondents). I once faced an appellant that described a belated attack on a trial court judgment as an additional sustaining ground. It did not work.
The ground must be in the record. I’On, L.L.C. v. Town of Mt. Pleasant, 338 S.C. 406, 526 S.E.2d 716 (2000). So I could not have argued waiver in the Court of Appeals if my co-counsel had not been thoughtful enough to give the trial court an affidavit on ARS’s litigation activities. Because the affidavit was presented to the trial court, I could later get it in the record on appeal.
Also reconsider any temptation to sandbag opposing counsel. While you don’t have to first raise an additional sustaining ground in the trial court, it helps. The appellate court may likely ignore issues that were raised for the first time on appeal. I’On, L.L.C.
Lastly, be prepared to tell the appellate court why it should consider your additional sustaining ground. Rule 220(c), SCACR, says that an appellate court “may affirm” on any ground in the record, not that it must do so. So appellate courts enjoy the discretion to reverse an order or judgment without considering everything that you think sustains it.
In one case, for example, I was able to convince the Supreme Court to reverse the trial court without addressing all the reasons that opposing counsel raised to affirm. Vaught v. A.O. Hardee & Sons, Inc., 366 S.C. 475, 623 S.E.2d 373 (2005).
Has anyone else successfully raised an additional sustaining ground on appeal? Warded one off? Please tell us about it.