In a recent wide-ranging opinion about preservation of issues for appellate review, the Kentucky Supreme Court in an opinion written by Justice Mary Noble noted that:
(1) a reviewing court may reverse a lower court on an issue that was not raised below only for palpable error;
(2) cross-appeals and cross-motions for discretionary review by the prevailing party are required to raise an issue that was previously raised or preserved only where the prevailing party is aggrieved by the lower court’s decision; and
(3) a reviewing court may affirm the lower court where it was right but for the wrong reason.
Fischer v. Fischer, 2009-SC-245 (3/24/2011) (not yet final, to be published).
Fischer gives appellate litigators detailed guidance on such issues, and in particular on navigating between the “Scylla and Charybdis” (in Justice Noble’s notable Homeric metaphor) of conflicting prior case law – Com. Transp. Cabinet Dept. of Highways v. Taub, 766 S.W.2d 49, 51 (Ky. 1988), and Com., Corrections Cabinet v. Vester, 956 S.W.2d 204, 205-06 (Ky. 1997). The opinion would overrule Taub to the extent that Taub requires a prevailing party to file a cross-motion for discretionary review on issues raised in its brief below but not addressed by the Court of Appeals.
The decision ultimately affirmed the Court of Appeals, finding that although it had improperly reversed the trial court on a non-palpable issue that had not been preserved, it had been right but for the wrong reason. The reason relied on by the Supreme Court had been raised by the appellee below and thus preserved for review by the Supreme Court.
The opinion was designated for publication but is not yet final since the appellants have filed a petition for rehearing.
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