(concurring in result).
I concur in the reversal on the issue of the propriety of the entry of summary judgment, but I can only concur in the result with respect to the treatment of the question of review of Poland Ranch’s claim of immunity by virtue of SDCL 20-9-5.
*183The majority opinion notes that Foland Ranch relied on the statute in its motion for summary judgment, but the trial court granted judgment solely on the doctrine of respondeat superior. From this procedural background, the majority states: “Since the circuit court never reached SDCL 20-9-5, we hold that it is not an issue before us on appeal.” In support of that statement, the opinion cites us to two cases which I find particularly inappropriate to support that contention. In Sioux Valley Hosp. Ass’n. v. Bryan, 399 N.W.2d 352, 356 n. 2 (S.D.1987), it was held that County’s challenge to the adequacy of a filing by Hospital, not raised in the trial court but raised for the first time on appeal, would not be treated. Likewise, in Romey v. Landers, 392 N.W.2d 415, 420 (S.D.1986), an administrative appeal case, where Landers contended on appeal that he was denied a jury trial, we merely said that his failure to raise that issue on appeal to the circuit court precluded his raising it on appeal to this court.
The rule was perhaps best stated by Justice Porter, writing in Estate of Assmus, 254 N.W.2d 159, 163 n. 8 (S.D.1977), wherein it was stated:
A review of the settled record, including the transcript of the October 10 hearing, establishes that such contention was never presented by appellants to the trial court by ‘request for findings, or other apt motion, offer, objection or exception ... ’ SDCL 15-26-20, nor under SDCL 15-6-59(a). ‘Since our function is that of review, issues not presented to the trial court are not before us on appeal.’ (Citation omitted.)
Thus, it is obvious that the rule relied on by the majority is grossly inappropriate for application where the decision acknowledges that the settled record discloses that a motion advancing the statute as a basis for the summary judgment was duly presented to the trial court. There is a big difference between “the trial court not reaching an issue,” and “an [appellee] not presenting an issue below.”
I would arrive at the same result, however, because Foland Ranch failed to file a notice of review under the provisions of SDCL 15-26A-22, asking for review of the trial court’s failure to grant summary judgment on that theory.
SDCL 15-26A-22 provides appellee with the right to obtain review of a judgment or order entered in the same action which may adversely affect him. This requirement is nothing new. In Orr v. Kneip, 287 N.W.2d 480, 484 (S.D.1979), we wrote: “While counsel for [appellee] assiduously made his record to preserve the issue, we must decline to address it since it has not been properly presented to us due to [appellee’s] failure to cross-appeal.”
In Application of Northwestern Bell, 326 N.W.2d 100, 104 (S.D.1982), where Bell argued before the circuit court that the PUC lacked authority to adopt a certain emergency standard, we nevertheless refused to consider that contention on appeal because Bell had failed to comply with the notice of review requirements contained in SDCL 15-26A-22. See also Gratzfeld v. Bomgaars Supply, 391 N.W.2d 200, 202 (S.D.1986); Gridley v. Engelhart, 322 N.W.2d 3, 5-6 (S.D.1982).
Obviously, where a party relies on alternative theories, and the trial court grants judgment on only one, the successful party, the appellee on appeal has the choice of only defending the trial court’s decision on the one theory, or, of also pursuing the right of appeal on the other theory in the event that the trial court should be reversed on the decision he made. In this context, the trial court’s failure to rule in his favor on the alternative theory is obviously adverse to him.
Also, it is a party’s right to have an issue which was indeed submitted to the lower court decided by the appellate tribunal regardless of whether or not the trial court decided it, but only if the proper procedures are followed. The filing of the notice of review puts the appellant on notice that he had better adequately brief and argue the issue raised by such notice; whereas, to permit appellees to raise issues without notice, as Foland Ranch tried to do in this case, places appellant in a quandary, does he have to meet it or not? Nor does re*184quiring the filing of a notice of review place any great burden on appellees. It only requires a little foresight and the filing of the requisite notice and docketing statement.