Stds of Review – Appeals: Raising issues first time on appeal (Grant v. Warren County, COA, NPO, 8/10/2012)

As a general rule, a party is not permitted to raise an issue for the first time on appeal. “The Court of Appeals is one of review and is not to be approached as a second opportunity to be heard as a trial court. An issue not timely raised before the circuit court cannot be considered as a new argument before this Court.” Lawrence v. Risen, 598 S.W.2d 474, 476 (Ky. App. 1980). However, there are circumstances where unpreserved issues may be raised, such as in situations addressing subject-matter jurisdiction. See Hisle v. Lexington– Fayette Urban County Gov’t, 258 S.W.3d 422, 430–31 (Ky. App. 2008) (because subject-matter jurisdiction concerns the nature and origin of a court’s power to act, it may not be waived and may be raised at any time in the proceeding). While Kentucky has not directly addressed this point, it has been stated in the federal context that sovereign immunity is a type of subject-matter jurisdiction. F.D.I.C. v. Meyer, 510 U.S. 471, 476, 114 S.Ct. 996, 127 L.Ed.2d 308 (1994). Nevertheless, because of the circumstances by which Appellant’s claim against the County was dismissed, we decline to review the matter herein and believe it is best remanded to the lower court for proper consideration of the merits of the County’s motion to dismiss.