Fischer v. Fischer, 348 S.W.3d 582

Background

Two brothers, Joseph and John Fischer, dispute an alleged oral agreement where Joseph would care for their Alzheimer’s mother in exchange for John receiving 13% of the estate.
The mother was incompetent at the time of the agreement; she had a will leaving the estate equally to both sons; no written agreement was made.
Joseph provided full-time care to their mother in his home and did not charge the estate; he testified he would have cared for her regardless of the agreement.
After the mother’s death and probate, the brothers disputed whether John’s 13% referred to the entire estate or only stocks; probate proceedings lagged and Joseph was removed as executor for neglect.
Joseph and Cindy Fischer sued in Jefferson Circuit Court in 2006 for breach of the alleged oral agreement and quantum meruit; John defended on multiple grounds including statute of frauds and lack of consideration.
The trial court directed a verdict for the appellants on the contract claim; the Court of Appeals reversed, based on an issue not preserved at trial, prompting this discretionary review.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Preservation of unraised trial grounds	John argues preservation allowed broader review on contract validity.	Fischer argues only trial-ground issues may be reviewed; unraised grounds cannot be considered.	Appellate cannot review unraised issues absent palpable error.
De novo contract review can reach unraised legal theories	Court of Appeals' review of contract validity encompassed unpreserved theories.	Such unraised theories were not decided by the trial court and cannot be reviewed.	No; de novo review cannot substitute for unraised trial grounds.
Statute of frauds applicability to oral agreement	The agreement may be enforceable despite lack of writing; some grounds preserved.	Oral agreement involving real property is barred by the statute of frauds; whole agreement unenforceable.	unenforceable under the statute of frauds; Court of Appeals' result upheld on this basis.
Taub cross-motion/discretionary review rule	Taub required cross-motions; issues not addressed should be reviewed.	Taub applies to who bears risk of not cross-moving; complex procedural rule.	Taub overruled to extent it requires cross-motions; review may proceed when appropriate grounds are raised.
Alternative grounds to affirm the Court of Appeals	Other grounds in record could affirm if properly argued.	Only grounds raised below should be considered; but can rely on record if properly raised.	Court affirms the Court of Appeals on the statute of frauds ground; other raised grounds unnecessary.

Key Cases Cited

Hunt v. Smith, 230 S.W. 936 (Ky. 1921) (preservation of trial-ground issues required)
McCall's Adm'r v. Hampton, 32 S.W. 406 (Ky. 1895) (preservation principles in appellate review)
Gulf Oil Corp. v. Vance, 431 S.W.2d 864 (Ky. 1968) (CR 50.01 specificity and preservation)
Springer v. Commonwealth, 998 S.W.2d 439 (Ky. 1999) (new theory of error cannot be raised for the first time on appeal)
Harrison v. Leach, 323 S.W.3d 702 (Ky. 2010) (standing and preservation principles in appellate review)
Ten Broeck Dupont, Inc. v. Brooks, 283 S.W.3d 705 (Ky. 2009) (preservation and appellate review standards)
Brown v. Barkley, 628 S.W.2d 616 (Ky. 1982) (cross-appeals and when a respondent may rely on alternative grounds)
Taub, Com. Transp. Cabinet Dept. of Highways v. Taub, 766 S.W.2d 49 (Ky. 1988) (cross-motion for discretionary review requirement)
Com. Corrections Cabinet v. Vester, 956 S.W.2d 204 (Ky. 1997) (affordability of cross-appeals and alternative grounds)