dissenting.
I agree with the majority’s conclusion that plaintiff did not sign the purported settlement agreement in accordance with the statute of frauds and that the Court of Appeals majority erred in determining that the agreement was “in total compliance with the statute of frauds.” Powell v. City of Newton, — N.C. App. —, —, 684 S.E.2d 55, 60 (2009) (majority). I also agree with the concurring opinion that it has long been established, both in this state and throughout this *574country, that land is a special and unique asset, that land’s importance and unparalleled value is a critical factor underlying the writing requirement contained in the statute of frauds, and that because of this, land should not ordinarily be alienated in the summary manner that occurred here. However, I am troubled by the Court of Appeals majority’s creation, for the first time in our jurisprudence, of a judi-ciál estoppel exception to the statute of frauds when neither defendant City of Newton (“the city”) nor third-party defendants raised the issue in the trial court or argued it in the Court of Appeals. Even if we are to announce such an exception, I conclude that the trial court should have the opportunity to apply it, consistent with this Court’s remand to consider the judicial estoppel issue in Whitacre P’ship v. Biosignia, Inc., 358 N.C. 1, 37-39, 591 S.E.2d 870, 894-95 (2004). Moreover, even though plaintiff and his trial attorney testified under oath at the hearing on the “Motion to Enforce Settlement,” the trial judge ruled and left the courtroom before this testimony was presented. As the facts showing the existence, or not, of the settlement remain disputed, I would remand this case to the trial court to conduct a new hearing on the Motion to Enforce Settlement. Therefore, I respectfully dissent.
As noted above, neither the city nor third-party defendants argued judicial estoppel in the trial court. It is well established that a party cannot raise an issue for the first time on appeal. E.g., Higgins v. Simmons, 324 N.C. 100, 103, 376 S.E.2d 449, 452 (1989) (“Because a contention not made in the. court below may not be raised for the first time on appeal, the . . . contention [by the party seeking to raise that issue on appeal] was not properly presented to the Court of Appeals for review and is therefore not properly before this Court.” (internal citation omitted)); see also N.C. R. App. P. 10(a)(1) (“In order to preserve an issue for appellate review, a party must have presented to the trial court a timely request, objection, or motion, stating the specific grounds for the ruling the party desired the court to make .... It is also necessary for the complaining party to obtain a ruling upon the party’s request, objection, or motion.”). Further, even if the city and third-party defendants had raised the issue in the trial court, the trial court’s 27 May 2008 order is not based on judicial estoppel, and the city and third-party defendants failed to cross-assign that issue as error per then-applicable North Carolina Rule of Appellate Procedure 10(d), thus abandoning the issue. See N.C. R. App. P. 10(d) (2009) (“Without taking an appeal an appellee may cross-assign as error any action or omission of the trial court which was properly preserved for appellate review and which deprived the *575appellee of an alternative basis in law for supporting the judgment, order, or other determination from which appeal has been taken.”); State v. Fuller, 196 N.C. App. 412, 418, 674 S.E.2d 824, 829 (2009) (concluding that because the trial court had not denied the defendant’s motion to suppress based on lack of standing and the State had not cross-assigned standing as an “alternative basis for upholding the trial court’s order” under Appellate Rule 10(d), the State failed to preserve its argument for appellate review (citation omitted)). Here not only did the city and third-party defendants fail to raise this issue in the trial court or in a cross-assignment of error, they did not mention judicial estoppel in their arguments to the Court of Appeals. See N.C. R. App. P. 28(a) (“The function of all briefs ... is to define clearly the issues presented to the reviewing court and to present the arguments and authorities upon which the parties rely in support of their respective positions thereon. The scope of review on appeal is limited to issues so presented in the several briefs. Issues not presented and discussed in a party’s brief are deemed abandoned.”). As such, I do not believe this is an appropriate case upon which to base a new exception to the statute of frauds grounded in judicial estoppel.
I would also note that this Court has been reluctant in the past to recognize exceptions to the statute of frauds. The Court has repeatedly rejected exceptions, like the part performance doctrine, even when they are embraced by the vast majority of jurisdictions. E.g., Grantham v. Grantham, 205 N.C. 363, 366, 171 S.E. 331, 333 (1933) (“The doctrine of part performance . . . has no place in our jurisprudence and will not dispense with the necessity of a writing,” and “a parol contract for the conveyance of land cannot be enforced to the extent of decreeing a specific execution of the agreement.” (citations omitted)); John N. Hutson, Jr. & Scott A. Miskimon, North Carolina Contract Law § 4-34, at 358 (2001) (“North Carolina is one of three states that does not recognize part performance as an exception to the statute of frauds.” (footnote omitted)). Adopting this new exception on this record, particularly such a broad exception, appears inconsistent with our historical respect for the statute of frauds and is thus troubling.
Furthermore, it appears premature to apply this newly-created exception to these parties in that a number of key factual matters are in dispute. Here, evidence showed that if there was an offer by the city on 14 November 2007 (during a recess in the trial), it was conditional. Just before the trial court asked plaintiff if the arrangement was his agreement, the city’s attorney informed the trial court and the *576parties that the city council still had to vote on whether to approve the agreement, that their next meeting was not until 11 December 2007, and that he would “go ahead and get” the money to plaintiff’s then-attorney, but the money could not be “disburse[d]” to plaintiff “until everything is signed.” Some of these conditions may have been satisfied, but the record here does not reflect that they were.
The majority here concludes that the record establishes that the city council voted to approve the agreement because “funds in the amount specified by the agreement were transferred into” the trust account of plaintiff’s then-attorney and because the trial court commented during the 5 May 2008 hearing that the city council had approved the agreement. The majority also concludes that the city council voted to approve the settlement agreement before plaintiff rejected it, thereby satisfying the conditions. Given the city attorney’s statement in court that he would transfer the monies to plaintiff’s attorney’s trust account to await the vote and signing, I do not believe that the transfer of funds alone resolves these issues. Though the trial court’s 27 May 2008 order contains a statement that these monies were deposited into the trust account of plaintiff’s then-attorney, neither this pronouncement nor anything else in the record establishes the date on which the monies were deposited or whether the city council voted to accept the agreement at all, let alone when. Further, the record neither indicates the basis for the trial court’s comment about the city council nor supports it. And, in any event, the trial court’s conclusory statement, made in May 2008, still does not establish that the city council approved the agreement, allegedly reached on 14 November 2007, within the relevant time period. Because these factual issues are still unresolved, I believe a remand is most appropriate.
Even though plaintiff testified under oath, as did other witnesses, including his attorney at the time, it does not appear that the trial court’s 27 May 2008 order was based on this evidence. The record and the order itself indicate the order is based on the arguments of respective counsel and a few pages of transcript from the 14 November 2007 in-court exchange. During the 5 May 2008 hearing, when plaintiff proffered evidence regarding what had transpired on 14 November 2007 and thereafter, the trial court had already ruled and indicated that such presentation was not “necessary.” The sworn testimony was then presented and recorded by the court reporter “in the absence of’ the judge. Counsel for the respective parties took testimony from plaintiff’s trial attorney, from third-party defendant *577Shaver’s trial attorney, and from plaintiff. Under oath, plaintiff stated, inter alia, that he has a hearing problem, and because of this, could not hear much of what was said regarding thé settlement agreement on 14 November 2007 and did not understand that it required him to deed over his land to the city. Plaintiff’s trial counsel testified basically that he believed plaintiff understood the terms of the agreement on 14 November 2007 and reluctantly agreed to them. At the very least, this testimony raises issues of fact about the existence of an agreement and what plaintiff understood it to involve. In my view, the trial court should resolve these factual issues after hearing, or at least reviewing, the testimony.
For these reasons I would reverse the Court of Appeals and instruct that court to remand this case to the trial court to conduct further proceedings, as this Court ordered in Whitacre P’ship, 358 N.C. at 37-39, 591 S.E.2d at 894-95. Thus, I respectfully dissent.