Illinois Appellate Lawyer Blog

This automobile accident case resulted in one defendant (COSCO) suing another (Frontline) for express indemnity. One of the issues was the scope of indemnity agreement. But Frontline, which took the appeal to the Illinois Supreme Court, did not raise that question in its petition to the Supreme Court for leave to appeal. The Illinois Supreme Court ruled that the failure to raise it in the petition for leave to appeal resulted in forfeiture of the issue.

Courts and practitioners routinely confuse “forfeiture” and “waiver.” In this opinion, the Illinois Supreme Court distinguished the terms. “As this court has noted, there is a difference between waiver and forfeiture. While waiver is the voluntary relinquishment of a known right, forfeiture is the failure to timely comply with procedural requirements … These characterizations apply equally to criminal and civil matters … [A] party's failure to raise an issue in its petition for leave to appeal may equally be deemed a forfeiture of that issue.”

Frontline argued the “scope” question in its brief, but that did not cure the forfeiture. Read the whole case, Buenz v. Frontline Transportation Co., No. 103562 (1/25/08), by clicking here.

Glen Howard had an argument with his roommate, Bethany Firmand. After Bethany brought two order of protection proceedings against Glen, he sued Bethany for malicious prosecution. A summary judgment was entered in Bethany’s favor because she “had probable cause as a matter of law to initiate the underlying civil proceedings against Howard.”

The First District Illinois Appellate Court disagreed with that conclusion, but affirmed the summary judgment because Glen could not show that he suffered “special injury,” an element of a cause of action for malicious prosecution.

Even though the trial court did not rule on the “special injury” question, it was proper for the appellate court to consider. “Although the trial court did not rule on this argument, Firmand did raise special injury in her motion for summary judgment. The issue is properly before the [appellate] court … [A]ppellee may advance any argument in support of the judgment on appeal regardless of whether the trial court ruled on that argument, so long as the factual basis for the argument was before the trial court.”

Read the whole case, Howard v. Firmand, No. 1-06-2019 (12/17/07), by clicking here.

In this intercontinental visitation battle, Alixio Khazal claimed “plain error” was grounds for reversal of the trial court’s decision to permit the mother visitation of their child in the United Arab Emirates. The dispute centered on the guardian ad litem’s oral report given at a pretrial conference, which included a recommendation to allow visitation in the UAE. Alixio claimed he was surprised by the guardian ad litem’s oral report, that the report should have been in writing, and that he was thus deprived of the opportunity to cross-examine the guardian. But because the father did not assert an objection at the pretrial conference or request the guardian’s testimony, cross-examination, or written report, the appellate court ruled that those positions were waived on appeal.

Alixio claimed it was “plain error” to allow the guardian ad litem’s oral report and not to allow cross-examination. He argued that the plain error doctrine trumped the waiver rule. The First District Court of Appeals reviewed the use of the plain error doctrine in a civil case.

The plain error doctrine does permit an appellate court to review errors not properly preserved at the trial level … "But this doctrine is applied in civil cases only where the act complained of was a prejudicial error so egregious that it deprived the complaining party of a fair trial and substantially impaired the integrity of the judicial process."

Before an error can rise to the level of a plain error, there must first be a "threshold-level showing" of prejudice … The father has not explained what he would have done differently if he had received the guardian's recommendation earlier and in writing. Thus, this court finds both that the father waived this issue for appeal and that it did not rise to the level of a plain error.

Read the whole case, IRMO Saheb, No. 1-06-3304 (11/13/07), by clicking here.

Heather Addis sued Exelon for retaliatory discharge. Unhappy with the jury’s defense verdict, Addis moved for judgment notwithstanding the verdict and for a new trial. After those motions were denied, Addis appealed.

The First District Illinois Appellate Court ruled that the two issues had different standards of review on appeal. A motion for judgment notwithstanding the verdict is reviewed de novo. A motion for a new trial, the court stated, is reviewed for a clear abuse of discretion. In this case, Addis’s appellate brief argued only for judgment notwithstanding the verdict. Even though she appealed from the order denying her motion for a new trial, her failure to argue that position in her appellate brief resulted in waiver of her new trial position.

This opinion muddies the “abuse of discretion” standard by defining it with “manifest weight” language. The court stated: “In determining whether the trial court abused its discretion, we consider whether the jury’s verdict was against the manifest weight of the evidence.” So which is it − abuse of discretion or manifest weight?

In the end, the confusion may not have mattered in this case. The court ruled that there was plenty of evidence for the jury to conclude in Exelon’s favor. “… [W]hen viewing the evidence in the light most favorable to defendant, we cannot find that the evidence so overwhelmingly favors plaintiff that no contrary verdict could stand. Therefore, we conclude that the circuit court properly denied plaintiff's motion for judgment notwithstanding the verdict.” That sounds like a de novo review, which is what the court called for on the motion for judgment notwithstanding the verdict.

Read the whole opinion, Addis v. Exelon Generation Co., No. 1-06-2732 (12/26/07), by clicking here.

A couple of quick hits today.

In a medical malpractice case, the Fifth District Illinois Appellate Court had this to say about the waiver rule: “’It is well established that both an objection at trial and a written post[ ]trial motion raising the issue are necessary to preserve an alleged error for review.’ … ‘Application of the waiver rule, however, is less rigid where the basis for the objection is the trial judge's conduct.’"

In the same case, the court addressed the propriety of plaintiff’s ex parte communication with the trial judge. Ruling there was no reversible error, the appellate court stated: “In the present case … a reversal is unnecessary because there is no suggestion of bias or prejudice on the part of the trial judge, i.e., there is no suggestion that there was any outside influence or that the case was decided on any basis other than the evidence presented in the case. Accordingly, there was no appearance of impropriety. We therefore conclude that, under the circumstances of this case, any error committed by the trial court by conducting this brief ex parte communication was harmless.”

See the whole case, Bauer v. Memorial Hospital, No. 5-06-0291 (11/27/07), by clicking here.

And in a personal injury action, the First District Illinois Appellate Court reiterated the rule that: “While we cannot determine whether the trial court reviewed this document, this court cannot consider documents that were not included in the record.” You can have the whole case, Babich v. River Oaks Toyota, No. 1-05-3728 (11/8/07), by clicking here.

In a lawsuit in Missouri, Cambridge Engineering got an injunction against a former employee from engaging in sales-related activity for his new employer, Mercury Partners. Cambridge then sued Mercury in Illinois for tortious interference with contract.

The trial court (1) entered judgment notwithstanding the verdict against Mercury and (2) directed a verdict in favor of Mercury on Cambridge’s claim for punitive damages.

Cambridge appealed. One of the issues was whether a nonsolicitation clause in Cambridge’s contract with its former employee provided a ground for recovery. The First District Illinois Court of Appeals ruled that Cambridge waived the argument because it was not argued in the trial court.

The rule that failure to raise a claim for recovery in the trial court results in waiver of the position on appeal is well known. This opinion is notable because it digs a little deeper than most and provides the underlying policy for the waiver rule.

Underlying the doctrine of waiver is a desire to "to preserve finite judicial resources by creating an incentive for litigants to bring to trial courts' attention alleged errors, thereby giving trial courts an opportunity to correct their mistakes." … Another key purpose of the waiver doctrine is to prevent unfair prejudice to an opposing party: If one party neglects to raise an argument at the trial level, the adversary may be forestalled from presenting evidence in rebuttal, and thus it is proper to bar the first party from springing the argument at the appellate level where the presentation of evidence is no longer possible.

Cambridge did mention the nonsolicitation clause in the complaint. But that passing reference was not enough to avoid waiver. The court ruled that Cambridge did not present the nonsolicitation clause as a separate ground for relief, as it argued in the appellate court.

Read the whole case, Cambridge Engineering, Inc. v. Mercury Partners 90 BI, Inc., No. 1-06-0789 (12/7/07).

Plaintiff was arrested for shoplifting at a Wal-Mart. After his arrest by the Forest Park Police, he committed suicide in his jail cell. His estate sued the police department and one of the police officers, as well as Wal-Mart and a number of its employees.

The police department and the officer were granted summary judgment. The estate then filed an amended complaint that did not include counts against the department or the officer. More motions ensued, resulting in summary judgment for the remaining defendants.

The estate then appealed the summary judgment granted to the police department and the officer. They in turn moved to dismiss the appeal, arguing that the estate forfeited the right to appeal because the amended complaint did not include them.

The First District Illinois Appellate Court rejected the argument. The court pointed out that waiver is an admonition to the parties, not a limitation on the court. Because (1) there was no “surprise or disadvantage” to the police department or the officer, and (2) “it appears that the trial court required the plaintiff to remove the counts decided by summary judgment from her fourth amended complaint,” the appellate court chose to allow the appeal to proceed.

Get the whole case, Luss v. Village of Forest Park, Nos. 1-06-0731, 1-06-2839 (11/5/07), by clicking here.

James Gallagher injured his back in a truck collision. James settled his workers’ compensation claim with his employer, Terminal. He also sued the driver of the other truck and that driver’s employer. After the lawsuit settled, Terminal attempted to enforce its workers’ compensation lien against the settlement proceeds. The trial court ruled that Terminal had waived its lien when it settled the comp claim with James.

Terminal appealed the trial court’s ruling. The court of appeals reversed the trial court, and held that Terminal had not waived the lien. James then appealed to the Illinois Supreme Court, which affirmed the appellate court.

As part of the worker’s comp settlement, James signed a resignation agreement. Terminal argued that James forfeited an argument that relied on the resignation agreement. James had not raised that argument either in the trial or appellate courts.

The Illinois Supreme Court ruled that James had not waived the argument. Here is the court’s rationale: “It is well established that where the appellate court reverses the judgment of the circuit court, and the appellee in that court brings the case before this court as an appellant, that party may raise any issues properly presented by the record to sustain the judgment of the circuit court, even if the issues were not raised before the appellate court.”

The Illinois Supreme Court also seized the occasion to clear up the distinction between “waive” and “forfeit,” commonly used interchangeably. “As this court has stated, ‘[w]aiver arises from an affirmative act, is consensual, and consists of an intentional relinquishment of a known right.’ … Forfeiture, strictly defined, is different from waiver, as we have noted in the criminal context … Rather than an intentional relinquishment of a known right, forfeiture is the ‘failure to make the timely assertion of the right.’”

Get the whole case, Gallagher v. Lenart, No. 103522 (8/9/07), by clicking here.

I wrote about this case, Bergman v. Kelsey, on October 15, 2007, and pointed out an inconsistency between the stated standard of review (de novo) and the court’s actual analysis (deferential review of a jury verdict). The case is instructive for another reason: reiterating the rule on how to preserve an order barring evidence for appellate review.

Katherine Bergman filed a medical malpractice case against the doctor and the hospital after her newborn son died from a streptococcus infection. Katherine got a verdict for more than $1.5 million. Defendants appealed, asking for a judgment notwithstanding the verdict or for a new trial.

One of the evidentiary issues on appeal bears repeating because so many trial lawyers overlook it: If your evidence is barred at trial, to preserve a prejudice argument on appeal, you must make an offer of proof.

In this case, defendants claimed they were improperly prohibited from putting on evidence of Katherine’s two subsequent pregnancies. Plaintiff’s motion in limine to preclude the evidence was granted. Defendants did not ask to make an offer of proof, so the First District Illinois Appellate Court ruled that the argument was waived for appeal.

The appellate court spelled out the rule. “‘Whether granted or denied, a motion in limine itself does not preserve the issue for appellate review … Rather, to preserve an error in the exclusion of evidence, the proponent of the evidence must make an adequate offer of proof in the [circuit] court … Failure to make such offer of proof results in waiver of the issue on appeal Here, defendants failed to make a specific offer of proof regarding the testimony at issue and the issue is therefore waived.’”

Get the whole case, Bergman v. Kelsey, No. 1-06-1296 (8/2/07), by clicking here.

Alex T. was involuntarily admitted for mental health treatment. However, at the time the circuit court granted the State’s petition to have Alex admitted, a felony charge was pending against him. Alex argued that the order admitting him for mental health treatment was void. He based his argument on the Illinois Mental Health and Developmental Disabilities Code, which grants circuit court jurisdiction “over persons not charged with a felony.”

The Second District Illinois Appellate Court ruled, by virtue of the legislative limit, that the circuit court did not have jurisdiction over Alex T. In addition to its substantive position, the State also argued that (1) the appeal was moot because the term of admission had expired by the time the appellate court reviewed the case, and (2) the appellate court should not have taken judicial notice of the felony complaint against Alex because it was not submitted to the trial court and thus was not part of the record on appeal. The appellate court rejected both arguments.

As to mootness, the court stated that “… Illinois courts have generally held that review of an involuntary admission order is appropriate despite its expiration, because ‘the collateral consequences related to the stigma of an involuntary admission may confront [the] respondent in the future.’ … This policy is a recognition that the reversal or vacation of an involuntary admission order is, in the real world, often an effective form of relief.”

The appellate court also ruled that it could take judicial notice of evidence that was not in the record. The court concluded that “the caution against allowing new evidence on appeal via judicial notice is simply a part of the doctrine of waiver,” which is not a limitation on the court’s jurisdiction. The court ruled that “Relaxing the doctrine of waiver here is appropriate because the State did not object to the consideration of the charge and, indeed, incorporated the charge in its own arguments. Further, an ‘argument that an order or judgment is void is not subject to waiver.’”

This opinion also contains good discussion about the legislature’s power to limit trial court jurisdiction in light of Article VI Section 9 of the Illinois Constitution (“Circuit Courts shall have original jurisdiction of all justiciable matters except when the [Illinois] Supreme Court has original and exclusive jurisdiction.”)

You can read the whole opinion, In re Alex T., No. 2-06-0049 (8/15/07), by clicking here.

This case involved a dispute between a buyer and a seller of a 3-flat building. The buyer claimed the seller knew about and hid structural defects in the building. He sued for breach of contract and fraud. After a bench trial, the buyer received a favorable judgment on the contract claim, and seller got a favorable ruling on the fraud claim.

The seller argued that Count I of the buyer’s Second Amended Complaint should have been dismissed for failure to state a cause of action. That count asked for damages for seller’s breach of good faith and fair dealing. But that is not a recognized cause of action in Illinois.

However, the seller did not move to dismiss that part of the buyer’s complaint in the trial court. He relied on a summary judgment motion, which was denied, as laying the foundation for appeal.

The appellate court ruled that the summary judgment motion was an insufficient basis to save the argument for appeal. “In this case, the defendants did not move to dismiss the breach of contract claim asserted in Count I of the second amended complaint. Although the defendants attempted to challenge the sufficiency of Count I in their motion for summary judgment, this was procedurally improper … A summary judgment motion may not be used as a substitute for a section 2-615 motion asserting defects appearing on the face of the pleading … Objections to the sufficiency of the complaint must be made specifically under section 2-615.”

The seller then argued that an exception to the waiver rule — failure to allege a recognized cause of action — defeated the waiver. The First District Appellate Court rejected that argument. Although imperfectly asserted, the court stated there were enough allegations of traditional breach of contract to avoid the exception to the waiver rule.

In applying the waiver rule, Illinois courts have distinguished between a complaint that defectively or imperfectly alleges a good cause of action and a complaint that entirely fails to state a cause of action … Only the former is waived by the failure to object in the trial court … The exception to the waiver rule applies only when a complaint fails to state a recognized cause of action, and it does not apply when the complaint states a recognized cause of action, but contains an incomplete or otherwise insufficient statement of that cause of action …

Here, Count I of the second amended complaint sought recovery for breach of contract, which is a recognized cause of action in Illinois. The defendants have attempted to challenge the sufficiency of Count I by arguing that the underlying allegations on which the breach of contract claim was premised do not state a valid claim upon which relief could be granted. The alleged deficiencies cited by the defendants go to the adequacy of the factual allegations in Count I. Thus, the defendants' argument essentially asserts that the breach of contract claim was defectively pled because the factual allegations in Count I were insufficient to state such a claim. The question of whether Count I adequately pled a breach of contract claim was an issue that should have been raised in a section 2-615 motion in the trial court. The exception to the waiver rule does not apply in this case, and, therefore, the defendants are precluded from challenging the sufficiency of Count I on appeal.

You can read the whole opinion, Fox v. Heimann, Nos. 1-06-0414, 1-06-0697 (7/10/07), by clicking here.

The State petitioned for a finding of parental unfitness because, it argued, (1) the mother’s repeated incarceration prevented her from performing her parental responsibilities and (2) the father failed to make reasonable progress toward reunification with the child.

After the trial court denied the State’s petition, the child’s guardian ad litem took an interlocutory appeal, claiming that the trial court’s ruling was against the manifest weight of the evidence. The First District Illinois Appellate Court reversed the order as to the mother, but affirmed as to the father.

After that decision by the appellate court, the trial court issued a new permanency order, which changed the child’s permanency goal from termination of parental rights to private guardianship. On a petition for rehearing, the mother argued that the changed permanency goal rendered the GAL’s appeal moot.

The appellate court ruled that the matter was not moot because a permanency goal is a nonfinal order that is subject to review and change. Here is the court’s thinking:

"An appeal is considered moot where it presents no actual controversy or where the issues involved in the trial court no longer exist because intervening events have rendered it impossible for the reviewing court to grant effectual relief to the complaining party."

…

However, the supreme court has made clear that a permanency goal is not a final determination on the merits but, rather, is an intermediate procedural step taken for the protection and best interests of the child … Instead, the permanency goal looks to the future status of the child … In fact, section 2-28(2) of the [Adoption] Act further provides that the permanency order must be reviewed and reevaluated at a minimum of every six months until the court determines that the goal has been achieved … Thus, all of the rights and obligations set forth in the permanency order remain open for reexamination and possible revision until the permanency goal is achieved.

Here, the circuit court's January 25, 2007 order clearly indicates that the permanency goal of private guardianship has not been attained. Therefore, it is subject to change. As a result, it is not impossible for this court to grant the GAL the relief it seeks and the appeal is not moot.

Get the whole case, In re Reiny S., No. 1-06-2155 (6/29/07), by clicking here.

A bank claimed defendants wrongfully sold a portfolio of loans. The bank sued the defendants under several equity theories. The complaint and an amended complaint were dismissed. When the bank filed a second amended complaint, it did not reallege or incorporate the dismissed legal theories from the first two complaints.

The second amended complaint was dismissed with prejudice. The bank’s appeal sought review of the orders that dismissed the first two complaints. The appellate court ruled that the bank had waived appeal of all issues except those raised in the second amended complaint.

“A plaintiff desiring to preserve for appeal the previous dismissal of claims either must stand on the dismissed counts and challenge the ruling at the appellate level or reallege or incorporate the dismissed counts in subsequent complaints." … A party who files an amended complaint waives any objection to the trial court's ruling on the former complaint … Where an amended pleading is complete and does not refer to or adopt the prior complaint, the earlier complaint ceases to be a part of the record, being in effect abandoned and withdrawn … Once an amended pleading has been filed, allegations of error in dismissing a prior pleading are waived.…

The bank argued for a rule like that observed in the 7th Circuit Court of Appeals, which does not require a plaintiff to replead a dismissed cause of action to preserve it for appeal. But the Second District Illinois Appellate Court rejected the argument and deferred to Illinois precedent that requires repleading.

Get the whole case, Ottawa Savings Bank v. JDI Loans, No. 2-06-0671 (6/25/07), by clicking here.

Steve Townsend injured himself when he fell through a hole in the floor of a building he was painting. Much of the pretrial proceedings focused on Townsend’s employment status with the defendants and his worker’s compensation issues. The case was tried to a jury, which returned a verdict of more than $1.9 million to Townsend.

On appeal, defendants argued that testimony concerning suspension of Townsend’s worker’s compensation benefits was unduly prejudicial. The appellate court ruled that defendants waived the argument, even though defense counsel did object at trial to testimony about a conversation concerning the suspension of benefits.

However, the objection was made “only on the ground that defendants were not parties to the conversation. Moreover, defense counsel then expressly asked the court for a limiting instruction telling the jury that defendants were not bound by that conversation. Defendants’ specific objection to the admission of evidence waives their current argument … Further, because defense counsel asked for a limiting instruction, he cannot argue that the instruction was inadequate to cure the error.”

Get the whole case, Townsend v. Fassbinder, No. 2-06-0226 (3/30/07), by clicking here.

Scott Jackson was injured when his car was rear-ended by David Seib. A jury trial resulted in a verdict for Seib. Apparently the jury did not believe that this accident caused Jackson to suffer the injuries he claimed. Jackson appealed, but the Fifth District Illinois Appellate Court affirmed the defense verdict. The case is chock full of evidentiary and appellate questions, but we’ll focus on the lesson arising from Trooper Connor’s testimony.

The defense had Trooper Connor testify about the accident from his accident report. But on cross-examination, he admitted he had no independent recollection of the incident. The appellate court recognized the error in allowing the testimony.

However, Seib claimed — and the appellate court agreed — that plaintiff waived the argument for appeal by his failure to raise it in his post-trial motion. The appellate court reiterated the rule: “In order to properly preserve an issue for an appeal, a party must both make a contemporaneous objection and raise the issue in a posttrial motion … In addition, Supreme Court Rule 366(b)(2)(iii) provides, ‘A party may not urge as error on review of the ruling on the party's post[ ]trial motion any point, ground, or relief not specified in the motion.' 155 Ill.2d R. 366(b)(2)(iii). The failure to raise an issue in a posttrial motion constitutes a waiver of that issue on appeal.”

Read the whole case, Jackson v. Seib, No. 5-05-0545 (4/10/07), by clicking here.