Article Title: Affirming the Untested - Affirming a Trial Court Based on Issues Raised Sua Sponte

• Publication year: 2001
• Pages: 10-0

Utah Bar Journal Volume 10.

10-0 (2001). Article Title: Affirming the Untested - Affirming a Trial Court Based on Issues Raised Sua Sponte

October, 2001

Article Title: Affirming the Untested - Affirming a Trial Court Based on Issues Raised Sua Sponte

Author: D. Scott Crook

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The judge pushed open the door to his chambers, took off his robe, folded it around the wooden hanger, and hung it in the closet. Walking to his desk, he stretched his arms over his head and yawned. It had been another long, tiring morning of summary judgment hearings.

He pulled his chair back from his desk and sat down noticing as he did so that he had new mail in his in box. An envelope caught his eye. It was from the Utah Supreme Court He opened the envelope, read the caption, and turned to the last page. With a smile he noted the last sentence, "Accordingly, the trial court's order granting summary judgment to the defendant is hereby affirmed."

He returned to the first page and began skimming through the opinion. Soon, however, he began to read more slowly, his wrinkled forehead becoming clouded. At footnote number one, he paused:

Appellant accurately notes that the district court improperly granted the defendant's motion based on its express conclusion below. However, it is a well-established rule of appellate review that the lower court may be affirmed on any grounds, even if not relied upon below. See White v. Deseelhorst, 879 P.2d 1371, 1376 (Utah 1994); Limb v. Federated Milk Producers Ass'n, 461 P.2d 290 (Utah 1969).

He read further. The Utah Supreme Court had disagreed with his conclusion that the statute of limitations barred the plaintiff's claim, but it had independently determined that there was no acceptance of the contract at issue. Finishing the opinion, he sat thinking about the Supreme Court's alternative basis for affirmance; he could not recall that the defendant had ever raised the acceptance issue on which the Supreme Court's decision rested. Troubled, he set aside the opinion and turned to more pressing matters: whether he had been mistaken or not, the case had been disposed of.

Across town, the appellant's lawyer nervously removed the opinion from its textured sheath. His hands shaking slightly, he opened the opinion, and turned to the last page. With a frown he read the last sentence of the opinion. "How? The judge was clearly wrong," he grumbled. As he returned to the first page, he too paused at footnote number one and then, with mounting frustration, continued on through the appellate court's acceptance-of-contract analysis. "The defendants never argued that," he roared at the office wall. As he continued reading the opinion, he began noting the affidavits and deposition testimony that he could have filed - testimony that almost certainly would have changed the appellate court's opinion. Finally, he picked up the telephone and sheepishly punched his client's telephone number.

In the next building, after opening the envelope she had just received from the Supreme Court, the appellee's attorney yelled with delight when her eyes fell on the word "affirmed" at the end of the opinion.

For many years, Utah's appellate courts have adhered to the rule that they can affirm a trial court's determination on any grounds, even if those grounds were never raised below. Although there may be good policies served by this rule of sua sponte affirmance on any basis, an unfettered, unbridled application of the rule in fact erodes the role of the court and seriously undermines the fairness of the adversarial process. This article suggests a model for sua sponte consideration of issues not raised below that preserves the interests of all parties involved.

I. History of Affirming on Basis of Issue Raised sua sponte

In 1969 the Utah Supreme Court noted in an opinion authored by Justice Ellett and entirely concurred in by only one other justice:

The law is well settled that a trial court should be affirmed if on the record made it can be. . . . "The appellate court will affirm the judgment, order, or decree appealed from if it is sustainable on any legal ground or theory apparent on the record, even though such ground or theory differs from that stated by the trial court to be the basis of its ruling or action, and this is true even though such ground or theory is not urged or argued on appeal by appellee, was not raised in the lower court, and was not considered or passed on by the lower court."

Limb v. Federated Milk Producers Ass'n, 223 Utah 2d 222, 461 P.2d 290, 293 n.2 (1969) (quoting 5 C.J.S. Appeal & Error § 1464(1)) (emphasis added). In a spirited dissent, Justice Henriod argued that

to maintain some modicum of order on appellate review, a healthy, fair and highly practical rule is that which already we have enunciated in many cases, to the effect that if error is not raised at all or is claimed for the first time on appeal, we will not entertain it, - and particularly should this prevail where anyone on the court sua sponte and for the first time on appeal raises a point that cannot be sustained anywhere in the record by any amount of searching.

Id. at 295 (Henriod, J., dissenting) (emphasis added). Noting that the quotation from C.J.S. upon which the majority opinion relied was "an easy generalization of principles," Justice Henriod maintained that to do as the Supreme Court had done - raising an issue sua sponte and affirming on that basis - was to "cast[ ] the appellate court in the role of advocate and counselor for one side in derogation of equal empathy for the other. Such procedure at least suggests some sort of preferential treatment." Id. at 295.

Although Limb has been consistently applied to affirm a trial court's decision when an issue raised below by a party is offered as an alternative ground for affirmance, it has been inconsistently applied when such an issue has not been raised below by any party. For instance, in Buehner Block Co. v. UWC Associates, 7752 P.2d 892, 894-95 (Utah 1988), and Branch v. Western Petroleum, Inc., 657 P.2d 267, 276 (Utah 1982), the Utah Supreme Court affirmed a lower court's decision by applying an argument raised for the first time on appeal. However, in American Coal Co. v. Sandstrom, 689 P.2d 1, 44 (Utah 1984), overruled on other grounds, State v. South, 924 P.2d 354 (Utah 1996), and L&M Corp. v. Loader, 688 P.2d 448, 449-50 (Utah 1984), the Utah Supreme Court refused to affirm a lower court's decision when the party did not raise the argument below.

Both Utah appellate courts have recently expressed discomfort with this inconsistency. In State v. South, 9924 P.2d 354, 355 n.3 (Utah 1996), the Utah Supreme Court recognized the inconsistency in these prior rulings and carefully limited the scope of its decision to the narrow question before it without answering the question of "whether an appellee may raise an argument in defense of the lower court's judgment when that argument was not presented in the lower court. This same question came before the Utah Court of Appeals in State v. Montoya, 937 P.2d 145 (Utah Ct. App. 1997): the State raised arguments on appeal that it had not...