It has frequently been held that the theory upon which a case is tried in the lower court cannot be changed on review, and that an issue not presented to or considered by the trial court cannot be raised for the first time on review.
Appellant adjoining landowner contended that he was a bona fide purchase of the contiguous parcel and the trial court's award of the contiguous parcel to the appellee landowner should not have included the easement that the adjoining landowner received from the prior owner, and that the landowner had no easement rights under the 1977 contract. The adjoining landowner contended he was a bona fide purchaser. The adjoining landowner had not raised this defense until his appeal. On appeal, the court affirmed the judgment of the lower court.
Did appellant waive the application of the doctrine of equitable conversion?
The court determined that he had waived this argument. The record shows that appellant did not contend in the trial court that he had already owned the Contiguous Parcel prior to the June 1986 notice. Rather, he argued that the June 1986 notice, in the context of all of the circumstances, was insufficient to deny him the status of a bona fide purchaser. To permit appellant to change his defense theory on review would not only weaken the adversarial process and our system of appellate jurisdiction, but may also prejudice appellee.