Davis v. Dipino

CHASANOW, Judge.

We are called upon in this case to determine whether an appellate court reviewing a trial court’s grant of summary judgment may, after ruling that summary judgment was improperly granted, nevertheless affirm a trial court’s judgment based on the plaintiffs failure to plead any claim upon which relief can be granted even though the defendants never argued that the complaint was defective. For the reasons set forth below, we hold that an appellate court should not undertake to review whether a plaintiff failed to state a claim upon which relief can be granted when the only…