Articles Posted in Waiver and Forfeiture

General contractor Kiferbaum Construction was sued by a subcontractor’s employee who was injured at the work site. Kiferbaum was represented by Jacobson & Riseborough. Kiferbaum got excess insurance from Evanston Insurance.

Kiferbaum’s insurers, including Evanston, settled with the employee. The insurers were left to fight about the amounts each would pay the employee. Jacobson & Riseborough committed Kiferbaum to participate in the settlement agreement, which required Kiferbaum to reimburse Evanston for $1 million the insurer put into the settlement pot. But Kiferbaum argued it did not give J&R authority to make the commitment. The trial court agreed and gave Kiferbaum summary judgment against Evanston’s claim for the money.

Unhappy about being saddled with the $1 million payment, Evanston sued J&R. Evanston’s first two complaints were dismissed {because they were premature; i.e., Evanston hadn’t been injured yet], but the trial court gave Evanston a chance to file another complaint that would meet legal standards. Evanston filed a second amended complaint, but the trial court, finding the complaint was filed too late under the statute of repose [six years from the offending act], dismisssed that one too. The trial court then denied Evanston’s request for reconsideration.

Inn the Illinois Supreme Court, Evanston argued (1) its second amended complaint “related back” to its original complaint, which was filed timely, and (2) the original complaint was not premature and should not have been dismissed. But Evanston did not make these arguments in its original opposition to J&R’s dismissal request.

So the Illinois Supreme Court ruled Evanston forfeited those arguments, and refused to consider them. Raising the arguments for the first time in a request for reconsideration was not good enough to preserve them for appeal. Here is the supreme court’s reasoning:

The purpose of a motion to reconsider is to bring to the court’s attention newly discovered evidence that was not available at the time of the original hearing, changes in existing law, or errors in the court’s application of the law … Arguments raised for the first time in a motion for reconsideration in the circuit [trial] court are forfeited on appeal.

The rule is loud and clear: An argument is forfeited if you wait to raise it on reconsideration. Read the whole case, Evanston Insurance v. Riseborough, 2014 IL 114271 (2/21/2014), by clicking here.

Mutual Management Services took an assignment of debts Richard and Kimberly Swalve allegedly owed to three medical providers. Mutual sued the Swalves for the money. But the Swalves asked the court to dismiss because, they asserted, facts existed that undercut Mutual’s complaint as a matter of law. The trial court agreed, and dismissed because Mutual did not give proper notice of the assignments.

Mutual appealed. There are two appellate lessons in this case.

(1) The Swalves asked for dismissal because the facts showed Mutual did not give proper notice of the assignment of debt. But when they got to the appellate court, the Swalves argued their factual motion should be characterized as asking for dismissal as a matter of law, irrespective of facts outside the complaint. The Second District Illinois Appellate Court disagreed, and ruled it would consider the Swalves’ request on the same basis as the trial court. Here is the appellate court’s reasoning:

… [A]s an initial note, the Swalves insist that their section 2–619 motion to dismiss [considering facts not in the complaint] “should have been characterized” as being brought under section 2–615 [which looks only at whether the complaint states a legal cause of action] of the Code. While appellate review of decisions regarding motions to dismiss brought under both sections is de novo … the analysis applied to each is different … Section 2–615 attacks the legal sufficiency of the complaint by alleging defects on the face of the complaint; section 2–619 assumes that a cause of action has been stated but asserts that the claim is defeated by other affirmative matter … These motions differ “significantly.” … We will not consider the application of a Code section that was not raised or argued before the court below and that requires a different analysis.

(2) The appellate court also ruled on a forfeiture question. MMS argued that the dismissal should be reversed because the Swalves did not have the required affidavits to support their request. But the appellate court refused to consider the argument because Mutual had not asserted it in the trial court. This is the way the appellate court viewed it:

According to MMS, since “it is clear that the face of the Amended Complaint did not provide the grounds upon which the Defendants’ Motion was based,” affidavits were mandatory; in the absence of any affidavits, the Swalves “failed to meet their burden on the motion.” However, MMS did not object to the absence of affidavits in the trial court, and thus it forfeited the issue on appeal.

The dismissal of Mutual’s complaint was affirmed. But the appellate court ruled that Mutual could try again after giving the Swalves proper notice of the assignment. The whole case, Mutual Management Services v. Swalve, 2011 IL App (2d) 10077, is available right here.

Gerald Morisch claimed his Veteran’s Administration Hospital doctors were negligent because they did not determine Gerald was on the verge of having a stroke, and so did not take action to minimize his injury. Gerald sued for medical malpractice under the Federal Tort Claims Act. The government got a judgment in its favor after a trial. So Gerald appealed.

The Seventh Circuit Appellate Court ruled that Gerald forfeited his appeal because he did not submit enough of the trial transcript for the court to assess Gerald’s arguments. Here is what the court said:

An overarching procedural problem with Gerald’s appeal limits our ability to address his claim. The only transcript from the bench trial that Gerald ordered and included in the record on appeal was the testimony of government expert witness Dr. Terrence Riley. This incomplete appellate record hinders our ability to conduct a meaningful review of the district court’s findings. As such, we find that Gerald forfeited his appeal.

In any event, the appellate court assessed Gerald’s appeal based on the limited record. The appellate court agreed that Gerald “failed to show that the VA’s conduct was the proximate cause of his injury.” Read the whole case, Morisch v. U.S.A., No. 09-3953 (7/29/11), by clicking here.

Three corporate taxpayers disputed the amount of property taxes they owed Cook County, Illinois. So they sued the county collector for refunds plus interest. The taxpayers settled the property valuation part of their disputes, but left the interest issues (power to award, rate, and period the interest accumulated) for the trial court to decide. The trial court awarded the taxpayers interest at a favorable rate and period.

The Collector appealed before the trial court decided the interest rate to be applied to two of the property valuation judgments. The first question was whether the trial court had jurisdiction to award interest even though the Collector already appealed.

The general rule is that a trial court loses jurisdiction over a case as soon as a notice of appeal is filed. The chief exception to the rule is that a trial court still can issue orders that are collateral to the judgment. In this case, the Illinois Supreme Court ruled that the interest awards were collateral to the valuation judgments, so the trial court kept jurisdiction to award interest. Here’s how the supreme court explained it:

This award of judgment interest was not part of the judgment itself, but incidental thereto, and imposed on a specific sum contained in the underlying orders with a rate of interest set forth in the Code of Civil Procedure. Interest on the fixed judgment amounts simply allowed for the preservation of the economic value of the awards while the matter was stayed pending appeal. The judgment interest resulted from the stay requested by the collector, and like the stay order, it did not affect or alter the issue from which the collector filed her notices of appeal on August 13, 2007. Accordingly, we find the circuit court retained jurisdiction to enter the judgment interest awards on behalf of SBC and Newcastle [two of the taxpayers] after the notices of appeal were filed.

Having filed her notice of appeal before two of the interest awards were made, there also was a question of whether the appellate court had jurisdiction to consider those awards. The Collector had not filed a second notice of appeal nor amended her existing notice to include those awards. The Collector argued there still was appellate jurisdiction because she identified the questions in her docketing statement, the issues were fully briefed, and the taxpayers were not prejudiced.

No matter. The Illinois Supreme Court ruled there was no appellate jurisdiction for the later awards because the notice of appeal referred only to the earlier award, “an entirely different matter” than the interest awards that were made later.

Nor did it did matter, the supreme court ruled, that the questions were identified in the Collector’s docketing statement because “a docketing statement does not confer jurisdiction on the appellate court …”

The supreme court also addressed whether the Collector forfeited her right to dispute the earlier interest award because she had not objected to the award in the trial court. That “would generally result in forfeiture of the issue on appeal.” But the supreme court was most interested in resolving a conflict in the appellate courts over the proper measure of interest. So the court invoked its power to “overlook any forfeiture in order to provide a unified body of case law.”

Read the whole case, General Motors v. Pappas, No. 108893 (5/19/11), by clicking here.

Benjamin Juday’s pickup truck was damaged when it crashed into a cow owned by David Albers. The truck was insured by American Family Mutual Insurance. American Family, as subrogee of Juday [stood in Juday’s shoes], sued Albers under the Illinois Domestic Animals Running At Large Act to get compensation for the damage to the truck.

During the trial, American’s lawyer argued that Albers did not show he acted reasonably to restrain the cow. Albers argued just the opposite. A jury returned a verdict in favor of Albers. American Family asked the trial court for judgment notwithstanding the verdict. The trial court denied American’s request, so the insurer appealed.

In the appellate court, American Family argued that Albers could not argue he acted reasonably because (1) Albers’s reasonableness was an affirmative defense to American’s claim under the Animals Running At Large Act, and (2) Albers had not submitted a written affirmative defense.

The Third District Illinois Appellate Court rejected American’s waiver argument. Even though Albers had not submitted a written affirmative defense, the question of Albers’s reasonableness was central to the trial, and American Family had not made the objection in the trial court. Here’s how the court explained it:

Here, the plaintiff [American Family] has waived any objection to the defendant’s failure to plead reasonable care as an affirmative defense by failing to object at trial. The record indicates that the defendant’s theory throughout trial was that the plaintiff’s claim would be defeated because he had used reasonable care to restrain his cattle. The issue of whether the defendant exercised reasonable care was discussed by both parties in opening statements and in their closing arguments. Further, the plaintiff questioned the defendant as part of its own case-in-chief on the issue of the defendant’s use of reasonable care. Both parties argued the issue in the context of the motions for directed verdict. Moreover, the plaintiff did not object to the defendant’s proffered jury instructions discussing reasonable care. There was no surprise in the defendant’s assertion of reasonable care as a defense.

So while American argued that Albers waived a reasonableness defense, the appellate court ruled that American waived that argument because it had not raised it in the trial court. In the end, the appellate court affirmed Albers’s judgment. Read the whole case, American Family Mutual Insurance Company v. Albers, No. 3-09-0839 (2/10/11), by clicking here.

While warming up his son for a baseball game, Thomas Vilardo threw batting practice from behind a pitching screen provided by the Barrington Community School District. Vilardo’s son hit a pitch that Vilardo claimed went through a hole in the screen and hit him in the eye, causing injury.

Vilardo sued, claiming the School District was guilty of negligence and of willful and wanton conduct. The School District asked the trial court to dismiss Vilardo’s claims. The trial court dismissed Vilardo’s negligence claim because the School District was statutorily immune from a plain negligence claim.

The trial court dismissed the negligence count with prejudice (can’t re-plead it), and dismissed the willful and wanton claim without prejudice (can re-plead it). Vilardo filed an amended complaint that alleged only willful and wanton conduct against the School District. The amended complaint did not re-allege or refer to the plain negligence claim that had been dismissed.

After some discovery, the trial court ruled that the School District did not have actual or constructive knowledge of a defect in the screen. So the School District could not be guilty of willful and wanton conduct, and its request for summary judgment was granted.

Vilardo appealed from the dismissal of the negligence claim and the summary judgment on the willful and wanton action. But the School District argued that Vilardo forfeited his right to appeal the dismissal of the plain negligence claim because he did not re-plead it in the amended complaint. Vilardo argued that he was not permitted to because the trial court dismissed it with prejudice.

The Second District Illinois Appellate Court agreed with the School District. The appellate court ruled that Vilardo had forfeited an appeal of the order dismissing the negligence action because he did not re-plead it or refer to it in the amended complaint. Here is the appellate court’s thinking.

[A] party wishing to preserve a challenge to an order dismissing with prejudice fewer than all of the counts in his complaint has several options … First, the plaintiff may stand on the dismissed counts and argue the matter at the appellate level … Second, the plaintiff may file an amended complaint realleging, incorporating by reference, or referring to the claims set forth in the prior complaint … Third, a party may perfect an appeal from the order dismissing fewer than all of the counts of his or her complaint prior to filing an amended pleading that does not include reference to the dismissed counts … Plaintiff [Vilardo] pursued none of these options, and thus has forfeited review of the negligence count in this appeal.

The appellate court also agreed that Vilardo’s willful and wanton claim had no merit. So Vilardo lost the appeal because he forfeited the appeal of his negligence dismissal and the there was no evidence to sustain his willful and wanton action.

Read the whole opinion, Vilardo v. Barrington Community School District 220, No. 2-10-0045 (12/20/10), by clicking here.

Timothy Cooper stole Terry Williams’s car. When Cooper tried to get away, he ran the car into Nikola Pritza’s car. Pritza, a police officer with the Village of Lansing, Illinois, injured his neck in the crash. He filed for and received Workers’ Compensation benefits.

A series of lawsuits and letters followed. Among them, Pritza sued IMLRMA, Lansing’s insurer, for a declaratory judgment, seeking uninsured motorist coverage and damages for vexatiously withholding insurance policy benefits. The trial court dismissed Pritza’s case because the car Cooper stole and ran into Pritza was insured ― so there could not be a proper uninsured motorist claim.

The trial court gave Pritza a chance to file an amended complaint. He did, this time asking that IMLRMA’s policy be reformed to include coverage for underinsured motorist insurance coverage. The amended complaint did not repeat the request for uninsured coverage, and Pritza did not then appeal from the dismissal of his declaratory judgment action. Two months after the first dismissal, the trial court gave IMLRMA summary judgment, ruling that the IMLRMA policy did not have to include underinsured motorist coverage.

Pritza then appealed from the dismissal of his original declaratory judgment case and from the summary judgment in favor of IMLRMA on the amended complaint. IMLRMA argued that the appellate court did not have jurisdiction to consider the dismissal of Pritza’s first complaint for uninsured coverage. The First District Illinois Appellate Court agreed for two reasons:

1. Pritza waived the uninsured motorist claim by not realleging it in his amended complaint. “Allegations in a former complaint, not incorporated in the final amended complaint, are deemed waived. Thus, when a party files such an amended complaint, he thereby waives any objection to the trial court’s ruling on the former complaint.”

2. Pritza’s appeal of the uninsured motorist claim was too late because a denial of a declaratory judgment must be filed within 30 days.
“… [H]ere the court’s judgment order of October 2, 2008, fixed absolutely the rights of plaintiff and defendants on plaintiff’s claim for declaratory judgment for uninsured motorist coverage. Consequently, if plaintiff wished to appeal that judgment, he was required to do so within 30 days … The fact that plaintiff was allowed leave and amended his complaint, and that there was further briefing on another claim for declaratory judgment based on underinsured motorist coverage, avails plaintiff nothing.”

In the end, the appellate court agreed that IMLRMA did not have to provide underinsured coverage. The lesson here for practitioners is: Unless you intend to waive it, your amended complaint must reallege the dismissed cause action, or at least refer to it. And you cannot wait until the end of your case to appeal from a dismissal of a declaratory judgment action.

Read the whole case, Pritza v. Village of Lansing, 1-10-0100 (11/24/10), by clicking here.

Parkway Bank and Trust filed a lawsuit to foreclose on a construction mortgage. Beta Electric, one of the defendants, counterclaimed and argued its mechanic’s lien had priority over Parkway’s mortgage.

Parkway asked the trial court for judgment on Beta’s counterclaim. Beta’s brief in opposition to the motion was late by one day, so the court struck it. The trial court then granted Parkway judgment on the pleadings on Beta’s counterclaim.

Beta appealed, but Parkway argued that Beta waived an objection to Parkway’s request for judgment. Parkway’s theory was that the waiver resulted from Beta’s failure to file a written objection.

The First District Illinois Appellate Court ruled there was no waiver. Beta’s opposition memorandum was stricken from the record, but that did not mean Beta did not preserve its objection to Parkway’s request for judgment. Here is how the court explained it: “[I]t is not the case that Beta failed to object to Parkway’s motion. Rather, it did object but its objection was stricken as untimely … [W]e find Beta’s failure to file a response within the time allowed for that response served to waive its right to file that response, but not its objection to or right to contest the motion.”

Beta won the waiver argument, but lost the appeal. The appellate court affirmed Parkway’s judgment on the pleadings. Read the whole case, Parkway Bank and Trust v. Meseljevic, 1-09-3396 (12/7/10), by clicking here.

A.J. Bos got approval from the Department of Agriculture to build a “megadairy” in Nora, Illinois. A few citizens in the area did not want the dairy to be constructed because they felt the location was susceptible to groundwater contamination by seepage of animal waste. They formed an organization, Helping Others Maintain Environmental Standards, referred to as HOMES, to oppose the dairy.

HOMES sued Bos, and asked the trial court for a preliminary injunction to prevent the dairy from being built. The trial court enjoined Bos from operating a livestock management facility at that location. Bos felt the injunction was improperly entered because HOMES greatly overstated its case and withheld evidence favorable to Bos. Bos asked the trial court to dissolve the injunction, and to award him damages for HOMES’s conduct, but the court denied Bos’s requests. So Bos appealed.

After a full hearing, the trial court refused HOMES’s request for a permanent injunction against Bos’s proposed dairy farm. The court ruled that HOMES had not proven its case by a preponderance of the evidence. So HOMES appealed.

HOMES also asked the appellate court to dismiss Bos’s appeal. HOMES argued that the Illinois Citizen Participation Act prohibited Bos’s appeal. The purpose of the Act is to prevent lawsuits and intimidation against citizens and organizations who get involved in public affairs.
But the Second District Illinois Appellate Court refused to dismiss Bos’s appeal because HOMES had not raised the Act in the trial court, and the Act did not authorize a party to bring it up for the first time on appeal. This is the appellate court’s explanation:

Generally, a party who does not raise an issue in the trial court forfeits the issue and may not raise it for the first time on appeal … Moreover, the Act does not contemplate a party bringing the motion for the first time on appeal. The Act refers to discovery and a hearing and decision on the motion within 90 days, as well as to a clear and convincing standard for ruling on the motion … These procedural mechanisms and the evidentiary standard clearly pertain to the trial court rather than the appellate court … Accordingly, we deny plaintiffs’ motion to dismiss.”
In the end, Bos beat back HOMES’s appeal, but he lost his attempt to get damages for having to defend the preliminary injunction motion.

Read the whole case, Helping Others Maintain Environmental Standards v. Bos, Nos. 2-09-1283, 2-19-0162 (12/22/10), by clicking here.

The opinion in this medical malpractice case addresses a question trial lawyers often ask me about preserving evidence issues for appeal. If you
believe an entire subject should not be allowed into evidence, but the trial court permits it, do you have to object to all the questions to assure you preserve the entire issue for appeal?

Charles Cetera sued one of his doctors, Mary DiFilippo, for failing to diagnose and treat an infection Charles developed after surgery. Charles’s expert witness, Dr. Carl Bakken, testified that Dr. DiFilippo’s diagnosis and treatment did not meet the appropriate standard of care.

About a year before the trial, Dr. Bakken had been reprimanded by the Illinois Department of Professional Responsibility for not making a proper diagnosis of a different patient’s problem. Charles objected when Dr. DiFiloppo advised the court she intended to examine Dr. Bakken about the reprimand. But the trial court overruled the objection. Charles also objected when the examination of Dr. Bakken’s reprimand began at the trial, and he asked for a side conference with the court to raise the objection again. The court did not allow the side conference, but told Charles he could make his record later.

Charles did not raise the matter again until he appealed after the jury decided in favor of Dr. DiFilippo. Charles argued to the appellate court that the examination of Bakken’s reprimand should not have been allowed. Dr. DiFilippo argued that Charles waived the issue for appeal “by failing to object to the question about the reprimand itself and only interposing an objection after the answer was given and the defense asked the witness about the basis for the reprimand.”

The First District Illinois Appellate Court ruled that the argument was not waived. Here’s the court’s explanation.

Generally, a contemporaneous objection to the evidence at the time it is offered is required to preserve the issue for review … On the other hand, to save a question for review, an objection need not be repeated each time similar matters are presented where the court has previously ruled … Once the court has ruled, a party is entitled to assume that the trial judge will continue to make the same ruling and that he need not repeat the objection.

In this case, during recess of Dr. Bakken’s direct examination, defendant [DiFilippo] advised the circuit court of her intent to cross-examine Dr. Bakken regarding the reprimand from the Illinois Department of Professional Responsibility. Plaintiffs [Charles Cetera] objected at that time and argued the evidence was irrelevant. The circuit court ruled that defendant would be allowed to ask Dr. Bakken whether he received a reprimand. Then during the cross-examination, the circuit court denied plaintiffs’ request for a side bar regarding evidence of the reprimand and the court explained that plaintiffs had “45 minutes on this.” The court concluded by telling plaintiffs to “make your record later.” While plaintiffs did not make a further record after this exchange, based on this record, plaintiffs were entitled to conclude that the circuit court would continue to make the same ruling and were not required to repeat the objection.

Although there was no waiver, the appellate court ultimately ruled the trial court did not abuse its discretion in allowing the examination of Bakken’s reprimand. DiFilippo’s favorable judgment was affirmed. The whole case, Cetera v. DiFilippo, No. 1-09-0691 (8/4/10), is available here for the clicking.