Introduction

In Schutt v. Foster, the Kansas Supreme Court sets a clear and enforceable rule of appellate practice: when an appellant raises an issue for the first time on appeal, Kansas Supreme Court Rule 6.02(a)(5) obligates the appellant to identify and brief a recognized exception to the issue-preservation rule in the opening brief. The Court further holds that appellants may not invoke preservation exceptions for the first time in a reply brief.

The underlying dispute began as a landlord–tenant conflict. Landlord John Schutt leased a residence to tenant Sherri Foster at $1,900 per month with a $20-per-day late fee for untimely rent. After Foster missed three monthly payments in 2020, the district court ultimately awarded Schutt $5,700 in unpaid rent and $21,240 in late fees—calculated as $20 per day over 1,062 days until judgment—while also awarding Foster offsets for construction services she performed and for mishandling of her security deposit, resulting in a small net award to Foster after setoff.

On appeal, Foster first argued that the late fee award was unconscionable under the Residential Landlord and Tenant Act (RLTA), K.S.A. 58-2540 et seq.—a theory she had not presented to the district court. The Court of Appeals reached the merits of that new claim and deemed the late fees unconscionable in part. The Kansas Supreme Court granted review, but resolved the case purely on procedural grounds, clarifying and enforcing the pleading and briefing requirements governing unpreserved issues on appeal.

Summary of the Opinion

The Kansas Supreme Court reverses the Court of Appeals and vacates its opinion, affirming the district court’s judgment. The Court holds:

• Rule 6.02(a)(5) requires appellants who raise an issue for the first time on appeal to explain in their opening brief why the issue is properly before the court, i.e., to identify and brief a recognized exception to the preservation rule.
• Appellants may not raise preservation exceptions for the first time in a reply brief; Rule 6.05 does not authorize that practice.
• The Court of Appeals abused its discretion by reaching the merits of the unconscionability claim after Foster failed to comply with Rule 6.02(a)(5) in her opening brief.

Because this threshold error is dispositive, the Supreme Court declines to reach the merits of unconscionability under K.S.A. 58-2544(a), whether a hearing under K.S.A. 58-2544(b) was required, or any other issues. The district court’s award—including the $21,240 late fee—stands on procedural grounds.

Factual and Procedural Background

• Lease terms: $1,900 monthly rent due on the first; $20-per-day late fee for delinquent rent.
• Additional relationship: Foster also performed construction services for Schutt on other properties.
• Default and suit: Foster failed to pay rent for July, August, and September 2020. Schutt filed a forcible detainer action seeking unpaid rent and late fees, plus ongoing rent and fees accruing during the action.
• Bench trial and judgment (May 2023): District court awarded $5,700 in unpaid rent and $21,240 in late fees, calculated as $20 per day over 1,062 days until judgment. It also awarded Foster amounts for construction work and for mishandling the security deposit. After offsetting, Schutt owed Foster $544.98.
• Appeal: Foster challenged (1) the sufficiency of Schutt’s pleading on late fees, (2) the unconscionability of the late-fee provision, and (3) the accrual of late fees after she invoiced for construction work and after she vacated the property.
• Preservation dispute: Schutt argued Foster failed to preserve her late-fee challenges and violated Rule 6.02(a)(5) by not briefing an exception in her opening brief. Foster first invoked preservation exceptions in her reply brief.
• Court of Appeals: Reached the merits based on the exceptions invoked in the reply brief; held late fees unconscionable under K.S.A. 58-2544(a) once Foster vacated; remanded to cap late fees at $2,460 (123 days × $20).
• Supreme Court: Granted review; resolved the case on the preservation/briefing issue alone; reversed and vacated the panel’s opinion; affirmed the district court.

Detailed Analysis

Precedents and Rules Cited

• Rule 6.02(a)(5) (2025 Kan. S. Ct. R. at 36): The appellant’s opening brief must provide the “arguments and authorities relied on,” with a pinpoint citation to where the issue “was raised and ruled on,” and “if the issue was not raised below, there must be an explanation why the issue is properly before the court.” The Court reads this to require appellants to identify and brief the particular exception(s) to the preservation rule in the opening brief.
• Rule 6.05 (2025 Kan. S. Ct. R. at 37): A reply brief is limited to rebutting “new material” in the appellee’s brief and may not introduce new arguments beyond that scope. The Court holds that Rule 6.05 does not permit first-time invocation of preservation exceptions in a reply brief.
• Rule 6.01(b) (2025 Kan. S. Ct. R. at 35): Defines the permissible briefs and filing sequence, underscoring that the appellate rules do not contemplate further briefing after the reply brief—another fairness reason not to allow new preservation arguments at that stage.
• In re A.S., 319 Kan. 396, 555 P.3d 732 (2024): The decision to reach an unpreserved issue is reviewed for abuse of discretion; discretion is abused if the decision is arbitrary, based on legal error, or based on factual error.
• State v. Allen, 314 Kan. 280, 497 P.3d 566 (2021): Recites the general preservation principle—issues not raised below are ordinarily not reached on appeal.
• In re N.E., 316 Kan. 391, 516 P.3d 586 (2022): Summarizes the three recognized exceptions to the preservation rule and affirms that failure to properly invoke them results in waiver and abandonment:
  • Purely legal, determinative issues arising on proved or admitted facts;
  • Necessary to serve the ends of justice or prevent the denial of fundamental rights;
  • Right-for-the-wrong-reason affirmance.
• State v. Godfrey, 301 Kan. 1041, 350 P.3d 1068 (2015): Clarifies that an appellant who does not invoke an exception to preservation as required by Rule 6.02(a)(5) is deemed to have waived and abandoned the unpreserved claim.
• State v. Ochoa-Lara, 312 Kan. 446, 476 P.3d 791 (2020): Emphasizes that appellate courts cannot “divine” preservation theories and that implicit or delayed arguments do not satisfy the rule.
• State v. Williams, 298 Kan. 1075, 319 P.3d 528 (2014): Establishes strict adherence to Rule 6.02(a)(5)—noncompliance is “at a litigant’s own peril.”
• Russell v. Treanor Invs., 311 Kan. 675, 466 P.3d 481 (2020): Distinguished; there the district court itself raised and ruled on the issue, satisfying Rule 6.02(a)(5) without the appellant being the one who raised it. In Schutt, the district court neither raised nor ruled on unconscionability.
• Statutes noted:
  • K.S.A. 58-2544(a)–(b) (RLTA unconscionability and evidentiary hearing requirement) — not reached on the merits because the issue was procedurally barred.
  • K.S.A. 20-3018(b) and 60-2101(b) — jurisdiction for review of Court of Appeals decisions.
  • Rule 8.03(i)(1) — scope of review tied to issues raised in the petition or cross-petition for review.

Legal Reasoning

The Court adopts a textual and structural reading of the appellate rules. It begins with the plain language of Rule 6.02(a)(5): if an issue was not raised below, the opening brief must explain why the issue is properly before the court, which, in practice, means invoking and briefing a recognized exception to the preservation rule. Reading Rule 6.02(a)(5) together with Rule 6.05, the Court concludes that reply briefs are not a vehicle to introduce preservation exceptions for the first time.

The Court underscores two policy justifications for strict compliance:

• Development of issues: Requiring exception briefing in the opening brief ensures that both parties and the appellate court have a complete, adversarial presentation on preservation. Appellate courts should not be left to guess at an appellant’s preservation theory.
• Fairness: Allowing appellants to invoke exceptions in the reply brief would deprive appellees of a fair opportunity to respond, as further briefing is generally not contemplated after the reply brief.

Applying these principles, the Court finds that Foster did not raise unconscionability below and failed to identify any preservation exception in her opening brief. Her attempt to cure the defect by invoking exceptions in the reply brief violated Rule 6.02(a)(5) and could not be saved by Rule 6.05. Accordingly, the Court of Appeals abused its discretion by reaching the merits based on exceptions first raised in the reply brief.

Impact and Implications

1) Immediate procedural rule for Kansas appellate practice

• Clear directive: If an appellant presents a new issue on appeal, the opening brief must explicitly:
  • Identify that the issue was not raised below;
  • Invoke a specific recognized exception to the preservation rule; and
  • Explain why that exception applies on the record presented.
• No reply-brief rescue: Appellants cannot wait until the reply brief to unveil preservation exceptions—even if the appellee’s brief is the first to highlight preservation problems. The obligation lies with the appellant at the opening-brief stage.
• COA practice constrained: Panels may not rely on exceptions first raised in a reply brief to reach the merits of unpreserved issues. Failure to comply with Rule 6.02(a)(5) in the opening brief results in waiver and abandonment.

2) Broader effects across civil and criminal appeals

• Uniform application: The decision reiterates and strengthens a line of authority (Williams, Godfrey, Ochoa-Lara, In re N.E.) that applies across subject-matter domains. Expect heightened enforcement of Rule 6.02(a)(5) in both civil and criminal dockets.
• Strategic drafting: Appellants should anticipate and address preservation in the opening brief, even for issues they believe are “purely legal” or concern “fundamental rights.” Explicitly name the exception and explain applicability.
• Appellee responses: Appellees should continue to raise preservation defects. If the opening brief omits the necessary exception, appellees can argue waiver per Rule 6.02(a)(5) and this decision. Because the reply brief cannot cure, appellees are positioned to seek affirmance without reaching the merits.

3) Substantive landlord–tenant law remains unsettled

• No merits ruling on RLTA unconscionability: The Supreme Court did not decide whether a $20-per-day late fee that accrues long after vacatur is unconscionable under K.S.A. 58-2544(a), nor whether an evidentiary hearing under K.S.A. 58-2544(b) was required in this case.
• Practical takeaway for RLTA litigants: Parties wishing to challenge fee provisions as unconscionable should raise the issue in the district court and request the statutory evidentiary opportunity under K.S.A. 58-2544(b) to build a record on the “setting, purpose, and effect” of the clause.

Complex Concepts Simplified

• Preservation: The requirement that an issue be raised and ruled upon in the trial court before it can be argued on appeal. The goal is fairness and a complete record.
• Exceptions to the preservation rule: Limited, recognized pathways that allow appellate courts to consider new issues:
  • Purely legal and determinative: No new facts needed, and the issue decides the case.
  • Ends of justice/fundamental rights: Necessary to avoid injustice or protect fundamental rights.
  • Right for the wrong reason: The trial court’s judgment can be affirmed on alternative grounds supported by the record.
• Rule 6.02(a)(5) compliance: In the opening brief, if the issue was not raised below, the appellant must identify the exception and explain why it applies, with pinpoint record citations where appropriate.
• Reply brief limits (Rule 6.05): A reply brief can only address new material in the appellee’s brief; it is not the place to introduce brand-new arguments like preservation exceptions.
• Abuse of discretion review: An appellate standard asking whether the lower appellate court’s decision was arbitrary, legally erroneous, or factually unsupported.
• Vacate vs. reverse vs. affirm:
  • Reverse: Overturn the judgment or holding.
  • Vacate: Nullify the opinion so it has no legal effect.
  • Affirm: Uphold the lower court’s judgment.
• Unconscionability (RLTA): A doctrine allowing courts to refuse to enforce terms that are so unfair they “shock the conscience,” assessed with regard to the setting, purpose, and effect of the agreement (and, under K.S.A. 58-2544(b), after affording parties a reasonable opportunity to present evidence on those factors).
• Forcible detainer: A statutory eviction process used by landlords to regain possession and collect sums due.
• Setoff/offset: Netting opposing monetary awards between parties to arrive at a final balance due.
• Pinpoint citation: A precise record reference (page/line) showing where an issue was raised and ruled upon, or, if not, why it is nonetheless properly before the appellate court.

What the Court Did Not Decide

• Whether $20-per-day late fees that continue post-vacatur are unconscionable under K.S.A. 58-2544(a).
• Whether K.S.A. 58-2544(b) mandated an evidentiary hearing in this case before ruling on unconscionability.
• Other issues Foster raised in the Court of Appeals but did not preserve or did not bring forward in a cross-petition.

Practice Pointers

For appellants

• When asserting any issue not raised below, expressly state in the opening brief:
  • That the issue was not preserved;
  • Which preservation exception applies (name it); and
  • Why the exception applies to the existing record (with citations).
• Do not rely on the reply brief to raise preservation exceptions for the first time. It will not cure the omission.
• If an intervening legal development occurs after filing the opening brief, consider seeking leave for supplemental briefing or using the court’s procedure for supplemental authorities; do not assume a reply brief can inject new preservation theories.

For appellees

• Scrutinize the opening brief for preservation defects; argue waiver under Rule 6.02(a)(5) and this decision if the appellant fails to identify and brief a preservation exception.
• If the appellant attempts to introduce preservation exceptions in a reply, note that Rule 6.05 forbids new arguments and urge the court to disregard them.

For trial counsel (issue preservation at the source)

• Raise unconscionability (or any dispositive theory) in the district court and request the statutory evidentiary opportunity (RLTA K.S.A. 58-2544(b)) to build a solid record.
• Use posttrial motions for additional findings or to alter or amend to close preservation gaps before appeal.

Sample language for an opening brief when relying on a preservation exception

“Preservation: Appellant acknowledges this issue was not raised below. Appellant invokes the ‘purely legal and determinative’ exception recognized in In re N.E., 316 Kan. 391, 407-08, 516 P.3d 586 (2022). The issue presents a question of statutory interpretation based solely on the undisputed record (R. Vol. II at 123-27) and is outcome-determinative because [explain]. Appellant therefore explains why the issue is properly before the court consistent with Rule 6.02(a)(5).”

Conclusion

Schutt v. Foster crystallizes an important procedural principle in Kansas appellate practice: appellants who raise an issue for the first time on appeal must, in their opening brief, identify and substantively brief a recognized exception to the preservation rule under Rule 6.02(a)(5). The attempt to invoke an exception for the first time in a reply brief is foreclosed by Rule 6.05 and will be deemed a waiver and abandonment of the unpreserved claim. Enforcing this bright-line requirement promotes fairness, enables full development of issues, and provides clear guidance to practitioners and appellate courts alike.

On the merits of landlord–tenant law, the Supreme Court left open important questions about the unconscionability of compounding late fees—especially post-vacatur—under the RLTA. Those issues await a future case properly preserved and presented. For now, Schutt stands as a definitive directive on how, when, and where to make preservation arguments in Kansas appellate briefing—and what happens if parties fail to do so.