I read a case for class today (not civpro) that contained a procedural quirk that has been bothering me.
A dispute is filed in state court and is appealed through the supreme court of that state. The case contains a Constitutional issue and is heard by the SCOTUS, which ultimately remands the case back to the state supreme court. At this point the state supreme court decides the case for the plaintiff on a theory not pleaded by the plaintiff at the trial level (P sued for breach of contract, but recovers on a promissory estoppel theory).
From the editing of my casebook I can't tell at what point the new theory was introduced, how, or by whom. How can this occur? Obviously I read the case for contracts so the book isn't going to focus on procedure. And I don't really care about specifics. I am just wondering, in general, how a new legal theory might be introduced by or for a plaintiff at any appellate level.