Don’t Forget To Object To Unpreserved ArgumentsPosted: July 16, 2014
Notwithstanding significant recent developments in the law concerning appellate review of unpreserved arguments and issues, the general rule remains that a party cannot raise an issue on appeal unless she has preserved it in the trial court. That rule, however, is not self-executing; it can be waived. If a party raises an issue for the first time on appeal and the opposing party does not object, the Appellate Court can go right ahead and review the unpreserved issue on its merits.
That’s what happened in Mueller v. Tepler (an interesting decision the state Supreme Court released today concerning loss of consortium claims). The appellee raised an unpreserved argument as an alternate ground for affirming the judgment below. The appellant, in her reply brief, did not object to the argument on the ground that it was unpreserved. The Appellate Court affirmed the trial court’s judgment on the unpreserved alternate ground. On further appeal to the Supreme Court, the appellant complained that the Appellate Court considered an unpreserved argument. Here’s the Supreme Court’s response:
We agree with the defendants that, as a general rule, a party may not raise a claim in a certified appeal to this court that it failed to raise in the Appellate Court. State v. Fauci, 282 Conn. 23, 26 n.1, 917 A.2d 978 (2007) (in certified appeal, ‘‘[w]e ordinarily decline to consider claims that [were] not raised properly before the Appellate Court’’). [The appellee] had not explained, and we see no reason, why this rule should not apply to claims raised in a certified appeal to this court concerning the reviewability of unpreserved claims raised by the opposing party in the Appellate Court. It would undermine the interests of judicial economy, the orderly administration of justice and principles of fairness to allow a party to stand silent when the opposing party raises an unpreserved claim in the Appellate Court and then, after the unpreserved claim has been resolved in favor of the party that raised it, to allow the party that stood silent to object to review of the claim for the first time on appeal to this court.
So, folks, if a party raises an unpreserved argument on appeal, make sure you object!