It is a well-known rule among Kentucky appellate litigators that “an appellate court may affirm a trial court for reasons other than those relied on by the trial court, so long as such is sustainable under the record….” Brewick v. Brewick, 121 S.W.3d 524 (Ky. App. 2003). For instance, in Keaton v. G.C. Williams Funeral Home, Inc., 436 S.W.3d 538 (Ky. App. 2013), the Court of Appeals found that the trial court’s basis for granting summary judgment in favor of the defendant was incorrect, but noted an alternative basis for summary judgment existed in the record and therefore affirmed.
In fact, “[i]f an appellate court is aware of a reason to affirm the lower court’s decision, it must do so, even if on different grounds.” Mark D. Dean, P.S.C. v. Commonwealth Bank & Trust Co., 434 S.W.3d 489, 496 (Ky. 2014) (citing Fischer v. Fischer, 197 S.W.3d 98, 103 (Ky. 2006)).
Thus, lawyers defending appeals should not confine themselves to arguing solely the issues raised by the appellant, but should scour the record for other bases on which to argue that the trial court should be affirmed. If the appellee fails to do so, the appellate court may nevertheless affirm if it finds an alternative basis for affirmance in the record.
NOTE: The foregoing post includes commentary reprinted from the forthcoming 2018 supplement to 7 Philipps & Kramer, Rules of Civil Procedure Annotated, 6th ed. (Kentucky Practice Series), by David V. Kramer, with permission of the author and publisher. Copyright (c) 2017 Thomson Reuters. For more information about this publication click here.
David Kramer is a Partner and Chair of the Litigation Section in the law firm of Dressman Benzinger LaVelle psc, with offices in Cincinnati, Ohio, and Crestview Hills and Louisville, Kentucky.
