dissenting:
I respectfully dissent from the opinion of the majority. First, the Court chooses to address an issue raised for the first time on appeal. This runs counter to the traditional rule that “an appellate court does not give consideration to issues not raised below.... This is essential in order that parties may have the opportunity to offer all the evidence they believe relevant to the issues which the trial tribunal is alone competent to decide; it is equally essential in order that litigants may not be surprised on appeal by final decision there of issues upon which they have had no opportunity to introduce evidence.” Hormel v. Helvering, 312 U.S. 552, 556, 61 S.Ct. 719, 721, 85 L.Ed. 1037 (1941). See Brown v. Collins, 402 F.2d 209, 213 (D.C.Cir.1968). This rule, of course, is not inflexible, and where the interest of substantial justice is at stake, a court of appeals will consider issues raised for the first time on appeal. No such injustice exists or has been demonstrated here. While it is true that the central case relied upon by the majority, Hackney v. Morelite Construction, 418 A.2d 1062 (D.C.App.1980), was decided subsequent to the judgment below, the holding of that case certainly is not novel. See, e.g., Restatement (Second) of Contracts, § 133 comment d (1981); 2 Corbin on Contracts § 519 (1950); Uniform Commercial Code § 2-201(3)(b). Appellant could have raised at trial the waiver-in-pleading theory relied upon by the majority.
On the other hand, the appellee in this case, who was not given an opportunity to argue this point, cannot but be surprised by the majority’s holding.
The second point which compels this dissent concerns the merits of the majority’s holding. The majority holds that a “technical admission” by a party can operate to satisfy the written “memorandum or note” requirement. This novel holding goes much further than the holding in Hackney. The Restatement (Second) of Contracts states plainly that “a failure to deny an allegation, though given the procedural effect of an admission, is not the equivalent of a signed writing for the purposes of the Statute of Frauds,” Restatement, supra, at § 133 comment d (emphasis added). Although we have here a failure to respond to a request for admissions, the principle stated in the Restatement applies in an identical manner to the present case. The failure to respond to the request for admissions simply does not amount to a signed admission which is the equivalent of a memorandum. Cf. Corbin on Contracts, supra, § 519; 37 C.J.S. Frauds, Statute of § 176 at 656 (1943) (“A deposition stating the contract and voluntarily made by the party to be charged is a sufficient memorandum”) (emphasis added).
Principles developed under the Uniform Commercial Code § 2-201(3)(b) can be used by analogy. Thus, we have a hornbook rule stating that “[o]f course, merely procedural admissions do not qualify” as in-court admissions of the existence of a contract, J. White & R. Summers, Handbook of the Law Under the Uniform Commercial Code § 2-5 at 66 (2d ed. 1980). See U.S.C. § 2-201 comment 7.
For the above-mentioned reasons, I would affirm the judgment of the district court.