Lofchie v. Washington Square Ltd. Partnership , 1990 D.C. App. LEXIS 234 ( 1990 )

SCHWELB, Associate Judge,

concurring:

I join Judge Terry’s opinion for the court, but I think it appropriate to add a few observations.

On June 7, 1986, Lofchie vacated the premises, thus taking the question of the landlord’s right to possession out of the case. The only issue that remained was the amount, if any, of Lofchie’s liability for rent arrearages. The case went to trial on June 24, and there were two days of testimony at that time. Lofchie, a lawyer, did not breathe a word about insufficient service. The landlord expended time, money and counsel fees litigating the landlord’s right to back rent, and the court devoted substantial and precious judicial resources to that issue. Three months later, Lofchie filed his motion for summary judgment, raising for the first time the lack of personal service.

Surely it would be unconscionable to allow the tenant to hold back a defense of this kind, to wait until the landlord and the court had gone to trial on the remaining issues in the case, and then to spring his trap and render all of the prior proceedings superfluous. The doctrine of equitable es-toppel prevents a party from asserting his rights where it would be inequitable and unconscionable to permit him to do so. Savonis v. Burke, 241 Md. 316, 317-21, 216 A.2d 521, 522-23 (1966); see also Hardison v. Shirlington Trust Co., 148 A.2d 88, 89-90 (D.C.1959). The independent doctrine of judicial estoppel precludes a litigant from playing fast and loose with a court of justice by changing his position according to the vicissitudes of self-interest, for such conduct is an affront to judicial dignity. See Scarano v. Central Railroad Co. of New Jersey, 203 F.2d 510, 513 (3d Cir.1953); Duplan Corp. v. Deering Milliken, Inc., 397 F.Supp. 1146, 1177-79 (D.S.C.1975); 1B J. Moore, Moore’s Federal Practice § 0.405[8], at 239-47 (1988).

In light of our holding that Lofchie effectively asserted a defense of recoupment in his answer,¹ I agree with my colleagues that it is not necessary for us to determine with finality whether he would otherwise be estopped to assert lack of personal service as a defense.² I write separately, however, to dispel any notion that defenses can be withheld without risk until after the adversary and the court have expended resources in reliance on the litigant’s initial position. Equitable considerations are not alien to our jurisprudence, nor is common sense a luxury which courts are or should be too ascetic to invoke.

1 . In my opinion, Lofchie’s oral assertion of re-coupment defenses was also sufficient to give the court authority to award rent in arrears. See Super.Ct. L & T R. 5(a).

2 . In the present case, one might reasonably question the reasonableness of the landlord’s reliance on the non-assertion of the defense of lack of personal service in light of the provisions of Super.Ct. L & T R. 3.