Issues That May Be Raised For The First Time On Appeal

By Megan Coleman

Every appellate attorney is familiar with the rule that the appellate courts will not consider arguments raised for the first time on appeal. My experience doing criminal appeals informs me that I better make sure my issues were raised below, otherwise I can expect the Office of the Attorney General to begin their response brief with an argument that the issue was not preserved and therefore should not be considered on appeal. 

Where an issue was not raised below, normally the only recourse is to ask the appellate court to exercise plain error review pursuant to Maryland Rule 8-131(a). That is an uphill battle that usually results in the appellant rolling backwards a long way down.

However, there are certain issues that may properly be raised for the first time on appeal. Appellate attorneys reviewing the trial record should keep a lookout for these issues as they may be dispositive to the appeal.

1. Jurisdiction

Lack of subject matter jurisdiction by the trial court is an issue that can be raised at any time, and may even be raised sua sponte by the appellate court. This applies to civil as well as to criminal cases. County Council of Prince George’s County v. Dutcher, 365 Md. 399 (2001); Lane v. State, 348 Md. 272 (1997). The first sentence of Rule 8-131(a) provides that “[t]he issues of jurisdiction of the trial court over the subject matter, and unless waived under Rule 2-322, over a person may be raised in and decided by the appellate court whether or not raised in and decided by the trial court.”

In a criminal case, a court is without power to render a verdict or impose a sentence under a charging document which does not charge an offense within its jurisdiction prescribed by common law or by statute. When reviewing a common law conviction on appeal, ensure that the common law has not been abrogated by statute. When reviewing a statutory conviction on appeal, ensure that the conduct falls within the purview of the statute.

In civil cases, it has been determined that the failure to exhaust administrative remedies is jurisdictional in nature and thus may be raised for the first time on appeal by the parties or sua sponte by the appellate court. Furnitureland South, Inc. v. Comptroller of Treasury of State, 364 Md. 126 (2001).

Similarly, the question of a circuit court’s authority to receive additional evidence in an administrative appeal, or to receive the administrative appeal itself, is a question of jurisdiction which may be raised at any time, or by the appellate court sua sponte. Breedon v. Maryland State Dept. of Ed., 45 Md. App. 73 (1980).

2. Failure to Join a Necessary Party

In civil cases, the failure to join a necessary party constitutes a defect in the proceeding that cannot be waived by the parties, and may be raised at any time, including for the first time on appeal. See Maryland Rule 2-322(b)(3); 2-324(a). See also Southern Management Corp. v. Kevin Willes Const. Co., Inc., 382 Md. 524 (2004).

3. Motion to Correct an Illegal Sentence

Maryland Rule 4-345(a) permits an illegal sentence to be corrected at any time, even if the issue is not raised in the trial court. An illegal sentence may be a sentence that is greater than the statutory maximum, outside of the binding plea agreement, one in which a court does not recognize the State’s ability to withdraw an enhancement notice, one in which the court did not merge sentences for separate counts of conviction, or a sentence that is unconstitutional because it is excessive. The appellate court may vacate an illegal sentence sua sponte. State v. Griffiths, 338 Md. 485 (1995).

4. The Issue of Appealability

The issue of appealability is a threshold one and therefore may be raised at any time by a party, even on appeal. Office of State Prosecutor v. Judicial Watch, Inc., 356 Md. 118 (1999); In re: Joseph N., 407 Md. 278 (2009). This issue generally arises when a party seeks an interlocutory appeal where the judgment is not yet final.  

5. The Issue of Sovereign Immunity

The issue of sovereign immunity may be raised for the first time on appeal. Dept. of Public Safety and Correctional Services v. ARA Health Services, Inc., 107 Md. App. 445 (1995). This is because sovereign immunity may only be waived by an act of the Legislature or a constitutional amendment.

6. The Law of the Case Doctrine

In Maryland, the law of the case doctrine applies to both questions that were decided and questions that could have been raised and decided. Holloway v. State, 232 Md. App. 272 (2017). The law of the case doctrine is not the same as res judicata, but allowing law of the case to be raised on appeal is in line with Maryland’s approach to res judicata. This is a purely legal issue that may be addressed in a reply brief by the appellant if it is first raised by the appellee as grounds to dismiss the appeal.

Whether you represent the appellant or the appellee, it is important to remember that these issues may be argued on appeal, even if they were not raised below. If you represent the appellant, one of these issues may actually be your saving grace if your initial review of the record only turned up harmless errors. If you represent the appellee and your initial read of the appellant’s brief left you feeling bewildered, you may be able to quickly turn that feeling around by arguing that the case should not even be here in the first place.