In praise of the additional sustaining ground

Posted Thursday, May 25th, 2017 by Gregory Forman
Filed under Appellate Procedure, Of Interest to Family Law Attorneys, South Carolina Specific

The Supreme Court opinion of Walker v. Brooks, 414 S.C. 343, 778 S.E.2d 477 (2015) was unique for my appellate experience in a number of disappointing ways. While I have lost a number of appeals, this was the first time I have lost when representing the respondent (it is much harder to lose when one is defending the lower court decision). Prior to Walker, I was three-for-three in obtaining reversals when the Supreme Court had granted me certiorari; after Walker I was three-for-four. Walker is my first state court appeal to have a dissenting opinion, making the loss a bit more heartbreaking–I convinced one justice; if only I’d convinced two more.

However the granting of certiorari by the Supreme Court did provide one benefit. While the Court of Appeals refused to even address an additional sustaining ground I raised on appeal, the Supreme Court remanded the matter back to the lower court for consideration of that additional ground. My client and his trial counsel rode that additional ground to victory and my client informed me today that the time to appeal that victory has passed without an appeal being filed by Brooks. What appears to be a loss in the Supreme Court was ultimately a victory–a victory that would not have been possible without my raising an additional sustaining ground on appeal and obtaining certiorari from the Supreme Court.

On appeal, a “Respondent’s brief may also contain argument asking the court to affirm for any ground appearing on the record…” Rule SCACR 208(b)(2).“

[A] respondent–the “winner” in the lower court–may raise on appeal any additional reasons the appellate court should affirm the lower court’s ruling, regardless of whether those reasons have been presented to or ruled on by the lower court. It would be inefficient and pointless to require a respondent to return to the judge and ask for a ruling on other arguments to preserve them for appellate review. It also could violate the principle that a court usually should refrain from deciding unnecessary questions.

I’On, L.L.C. v. Town of Mt. Pleasant, 338 S.C. 406, 526 S.E.2d 716, 723 (2000).

In Walker, Mr. Walker raised both equitable mortgage and contract principals to argue that property his father deeded to his aunt [his father’s sister] actually belonged to him as the beneficiary of his father’s estate. The lower court found an equitable mortgage existed, and ruled in Walker’s favor, without addressing his contract claim. Brooks appealed and both the Court of Appeals and Supreme Court ruled against Walker on the equitable mortgage claim. However because we raised the contract claim as an additional sustaining ground at both levels of appeal, Walker preserved that argument. The same factual findings that the lower court used–apparently incorrectly–to find an equitable mortgage were equally valid in finding a contract. On remand the lower court found a contract and Brooks didn’t see fit to appeal that ruling.

Walker v. Brooks remains in the South Carolina and Southeastern reporters as a published loss. However, thanks to the additional sustaining ground, Walker ultimately achieved victory–if in a lengthy and roundabout way.  As I often remind my colleagues: knowledge of appellate procedure is vital even if one doesn’t do appeals. The little known and rarely used doctrine of additional sustaining ground saved Mr. Walker’s case and allows me to save face.

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