kansas appellate practice handbook - Kansas Judicial Branch

8- Standards and Scope of Appellate Review
§ 8.3 Requirements for Appellate Briefs
Under the Kansas Supreme Court Rules, an appellant must begin
each issue with a citation to the appropriate standard of review and a
reference to the specific location in the record on appeal where the issue
was raised and ruled upon. Rule 6.02(a)(5). An appellee also has a duty to
cite to the appropriate standard of review and must either concur in the
appellant’s citation to the standard of review or offer additional authority.
Rule 6.03(a)(4).
§ 8.4 Issues Must be Preserved for Appeal
In an appeal, the record is everything. Any potential error must
be preserved for the record on appeal. The “central premise of error
preservation is simple but of great consequence: if it’s not in the record
developed in the trial court, it did not happen for the purposes of appeal.”
Bratvold and Penny, The Importance of Error Preservation, 53 No. 3 DRI For
the Defense 8 (March 2011). Rule 6.02(a)(5) requires that an appellant’s
brief contain a reference to the specific location in the record on appeal
where each issue on appeal was raised and ruled upon. This requirement
is consistent with the general rule that an appellant cannot raise an issue
on appeal that was not raised below. See In re Care & Treatment of Miller,
289 Kan. 218, 224-25, 210 P.3d 625 (2009) (civil); State v. Leshay, 289 Kan.
546, 553, 213 P.3d 1071 (2009) (criminal).
The rationale for this rule is simple: a trial court cannot wrongly
decide an issue that was never before it. See State v. Williams, 275 Kan.
284, 288, 64 P.3d 353 (2003). There are several exceptions to the rule
that a new legal theory cannot be raised for the first time on appeal. The
appellate courts may consider an issue that was not properly preserved
when: (1) The newly asserted claim involves only a question of law arising
on proved or admitted facts and is finally determinative of the case; (2)
consideration of the claim is necessary to serve the ends of justice or to
prevent the denial of fundamental rights; and (3) the district court is right
for the wrong reason. See In re Estate of Broderick, 286 Kan. 1071, 1082,
191 P.3d 284 (2008), cert. denied 555 U.S. 1178 (2009) (civil); State v. Gomez,
290 Kan. 858, 862, 235 P.3d 1203 (2010) (criminal).
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