Opinion
No. FST CV04 400 1719 S
July 11, 2008
MEMORANDUM OF DECISION ON MOTION TO REARGUE
The defendant moved to reargue the court's decision of May 22, 2008, which denied the plaintiff's motion to terminate the appellate stay subject to the defendant making current interest payments and keeping taxes current. To date, the defendant has made no payments to the plaintiff since the closing in June 2004. The court, after considering the parties' arguments, employed the necessary balancing test and concluded that it could only achieve justice and protect the status quo by the imposition of a mandate that the defendant make current interest and tax payments. In fact, the defendant's own counsel actually invited the court to take the position that the defendant now claims was error.
I.
After inducing the court to take the position the defendant now complains of, the defendant's present argument that the trial court lacks the authority to impose this mandate amounts to trial by ambush. In fact, both counsel and the court were in agreement that the conditions imposed were equitable and appropriate under the circumstances.
The plaintiff's brief of June 18, 2008, stated: "indeed by balancing the equities, this court acted precisely as it should have . . ."
The following comments were made by defendant's attorney, Mr. Lerner: (Transcript of May 12, 2008, pp. 12-16).
Mr. Lerner . . . And what I am suggesting is an order issued that the defendant be required to make the tax payments by the end of the month. and to make all interest payments commencing June 1. (p. 12)
The court order gave the defendant a June 1, date, thus giving him an extra month to comply.
Mr. Lemer: . . . I can't argue that it should get worse. I can't come in here with a straight face and argue, given the equity situation, it should 11579 be made any worse. (p. 12-13.)
"Mr. Lerner I suggested, that he start making current payments to June 1 for the May interest. that he have to pay the taxes by the end of the month and make every payment starting June 1 on a monthly basis . . . I don't know . . . any other way to ask the court not to terminate the stay but to keep it current at this point." (Emphasis added.) (p. 15) "The court could craft an order that . . . [default] would only have to be done by affidavit . . . the plaintiff isn't prejudiced then because if they don't get the payment June 1 . . . They could immediately . . . get that . . ."
Mr. Lerner: The order I would suggest is that the payment is due on the first of the month. If it is not made with a bank check by the fifth of the month, the plaintiff's counsel by affidavit immediately effectuates a relief from the stay. (p. 16.)
In the plaintiff's brief and in argument, the plaintiff also asked for current payments to be made, as an alternative argument. The parties were obviously in agreement.
After the above comments, the court suggested the parties might confer and draw up a proposed order, and counsel for both parties agreed to try.
The defendant cannot invite the court to take a position, and later attack that position once taken as error. Our appellate courts have long frowned upon — indeed heavily criticized — such trial by ambush.
"[I]nduced error, or invited error, has been defined as [a]n error that a party cannot complain of . . . because the party, though conduct, encouraged or prompted the trial court to make the erroneous ruling . . . It is well established that a party who induces an error cannot be heard to later complain about that error . . . This principle [applies to] induced nonconstitutional and induced constitutional error. State v. Brunetti, 279 Conn. 39, 59 n. 32, 901 A.2d 1 (2006); see State v. Rowe, 279 Conn. 139, 150, 900 A.2d 1276 (2006)." (Citations omitted; internal quotation marks omitted.) State v. Maskiell, 100 Conn.App. 507, 514, 918 A.2d 293, cert. denied, 282 Conn. 922, 925 A.2d 1104 (2007). The doctrine has been adopted where appellants challenged the trial court's application of legal principles or procedures that they requested be applied at trial. See, e.g., Harty v. Cantor Fitzgerald Co., 275 Conn. 72, 90 n. 9, 881 A.2d 139 (2005); State v. Alston, 272 Conn. 432, 456, 862 A.2d 817 (2005); E. Udolf, Inc. v. Aetna Casualty Surety Co., 214 Conn. 741, 752, 573 A.2d 1211 (1990).
See also, State v. Edwards, 39 Conn.App. 242, 251, 665 A.2d 611, 666 A.3d 1186 (1995). In State v. Edwards, the court recognized that the trial court, in deciding that particular evidence should be admitted, had relied upon counsel's concession that the defendant would not be prejudiced by the admission of that evidence. Id. The court stated that for the defendant to later claim "that he was prejudiced by the admission of the evidence is trial by ambuscade." Id. The analysis consistently asks whether the party "through conduct, encouraged or prompted the trial court to make the erroneous ruling." (Internal quotation marks omitted.) State v. Brunetti, 279 Conn. 39, 59 n. 32, 901 A.2d 1 (2006), cert. denied, 127 S.Ct. 1328, 167 L.Ed.2d 85 (2007).
Further, the court is entitled to rely upon the representation of an officer of the court concerning such matters. "Attorneys are officers of the court, and when they address the judge solemnly upon a matter before the court, their declarations are virtually made under oath." (Internal quotation marks omitted.) State v. Webb, 238 Conn. 389, 420, 680 A.2d 147 (1996).
The doctrine holds when one party acquiesces to conduct by the court. Vendelin v. Costco Wholesale Corp., 140 Idaho 416, 433-34, 95 P.3d 34 (2004). The Indiana appellate court has also held that a party may not take advantage of something he invites or which is the natural consequence of his own doing. Williamson v. Williamson, 825 N.E.2d 33, 48 (Ind.App. 2005) See also 5 Am.Jur.2d 381, App. Review § 713 (1995) to the same effect.
Finally, when the party agrees with the court on the record and all parties agree to try the case on a particular theory or principle of law, the court will not permit the agreeing party to ambush the trial court on appeal. Draper v. Draper, 40 Conn.App. 570, 573-74, 672 A.2d 522 (1996); see also Suffield Bank v. Berman, 228 Conn. 766, 785, 639 A.2d 1033 (1994); State v. Dennison, 220 Conn. 652, 657, 600 A.2d 1343 (1991); State v. King, 216 Conn. 585, 590, 583 A.2d 896 (1990). Here, the parties were in substantial agreement with the court's adoption of the defendant's counsel's suggestion. The court, in this situation, has the right to rely on counsel's statements made on the record.
The fact that the defendant, after agreeing through his former counsel to the conditions imposed, has hired new representation is irrelevant. The "defendant is bound by the acts and omissions of his previous counsel as well as those of his present counsel." State v. Scott, 24 Ariz.App. 203, 205, 537 P.2d 40 (1975). See also Banks v. Dominican College, 35 Cal.App. 4th 1545, 1555, CT Page 11582 42 Cal.Rptr.2d 110, cert. denied, 1995 Cal.LEXIS 5069 (Cal. Aug. 17, 1995) (noting that "parties represented by counsel are bound by the actions of their counsel"); People v. Arsberry, 242 Ill.App.3d 1034, 1038-39, 611 N.E.2d 1285, cert. denied, 151 111.2d 567, 616 N.E.2d 338 (1993) (stating that "[d]efendant is bound by acts of counsel . . . although his assent to the [act] was not specifically manifested"). Accordingly, a mere change of representation should not allow him to avoid the effect of the invited error doctrine.
There are a substantial number of "ambush" cases. See State v. Fabricatore, 281 Conn. 469, 915 A.2d 872 (2007); State v. McDaniel, 104 Conn.App. 627, 934 A.2d 847 (2007), cert. denied, 285 Conn. 912, 953 A.2d 471 (2008); State v. Shepherd, 102 Conn.App. 101, 924 A.2d 880 (2007); State v. Owens, 100 Conn.App. 619, 918 A.2d 1041, cert. denied, 282 Conn. 927, 926 A.2d 668 (2007); State v. Campbell, 99 Conn.App. 86, 912 A.2d 530 (2007); State v. Shiavo, 93 Conn.App. 290, 888 A.2d 1115, cert. denied, 277 Conn. 923, 895 A.2d 797 (2006).
II.
This is an equitable proceeding. Our law has long provided that in equitable actions the court may deal with all the issues between the parties in order to achieve, and serve, the course of fairness and justice.
"It is well established that a foreclosure action constitutes an equitable proceeding . . . In an equitable proceeding, the trial court may examine all relevant factors to ensure that complete justice is done . . . The determination of what equity requires in a particular case, the balancing of the equities, is a matter for the discretion of the trial court." (Internal quotation marks omitted.) Johnnycake Mountain Associates v. Ochs, 104 Conn.App. 194, 208, 932 A.2d 472 (2007), cert. denied, 286 Conn. 906, 944 A.2d 978 (2008). "Because foreclosure is peculiarly an equitable action . . . the court may entertain such questions as are necessary to be determined in order that complete justice may be done." (Internal quotation marks omitted.) CT Page 11580 Ameresco New England II, L.P. v. Colossale, 63 Conn.App. 49, 55, 774 A.2d 1083 (2001). The balancing of the equities is for the trial court to determine. Id.
III.
The defendant's motion to reargue was filed too late. It was untimely filed.
Opening a judgment is a serious matter. The parties and the public have a legitimate interest in the finality of judgments so that the parties can move on with their lives and the courts can address other matters. "The law aims to invest judicial transactions with the utmost permanency consistent with justice . . . Public policy requires that a term be put to litigation and that judgments, as solemn records upon which valuable rights rest, should not lightly be disturbed or overthrown . . ." Lampson Lumber Co. v. Hoer, 139 Conn. 294, 297, 93 A.2d 143 (1952), quoting 1 Freeman, Judgments (5th Ed.) 305, pp. 602-03. Spilke v. Spilke, Superior Court, judicial district of New Haven, Docket No. FA 00-0440636 (July 18, 2007, Frazzini, J.). See also Fort Trumbull Conservancy, LLC v. New London, 282 Conn. 791, 816, 925 A.2d 293 (2007) (recognizing "a strong public interest in the finality of legal proceedings").
Moreover, a motion to reargue "is not to be used as an opportunity to have a second bite of the apple or to present additional cases or briefs which could have been presented at the time of the original argument." (Internal quotation marks omitted.) Opoku v. Grant, 63 Conn.App. 686, 692-93, 778 A.2d 981 (2002).
The plaintiff claims the defendant's tactics are designed to delay. The plaintiff originally asked for a complete termination of the appellant's stay. As the court indicated in its prior memorandum, the court is loathe to interfere with the normal process. Nevertheless, the court recognizes that delay works to drain the equity from the property to the plaintiff's disadvantage. In this situation, equity demands that an appellate stay shall not be allowed to defeat, in fact, what the plaintiff won at trial.
IV.
Considering all the circumstances and the parties' arguments, the court does not believe that allowing a reargument will advance the cause of justice. It will add delay to a case which has already experienced too much delay — while the equity drains out of the real estate in question. This case requires some finality.
The motion to reargue is denied.