Illinois Appellate Lawyer Blog

K4 Enterprises sued Grater, Inc. and James Zavacki During the trial, the parties met with the judge, but without attorneys, to discuss settlement of the case. The case was settled, at least everyone thought so at the time. But over the following weeks, the parties could not agree on the terms of a written agreement.

K4 asked the trial judge to enforce the oral agreement made during the settlement discussions in the court’s chambers. Grater and Zavacki opposed the motion, and asked for an evidentiary hearing. They wanted to question the judge as a witness to the settlement negotiations. The judge denied the request for an evidentiary hearing, and said he would not give testimony. Instead, the judge ruled that Grater and Zavacki could make an offer of proof to show what their other witnesses would say. Grater and Zavacki declined to make the offer of proof, saying they were unable to do so without the testimony of the trial judge. The court then granted K4’s request to enforce the oral settlement agreement.

On appeal, Grater and Zavacki claimed the trial court was wrong to refuse to hold an evidentiary hearing. But the First District Illinois Appellate Court disagreed, and ruled that Grater and Zavacki forfeited the argument by declining to make an offer of proof. Here’s how the appellate court explained it:

Generally, when a trial court refuses evidence, no appealable issues remain unless a formal offer of proof is made … The purpose of an offer of proof is to inform the trial court, opposing counsel, and a reviewing court of the nature and substance of the evidence sought to be introduced … An adequate offer of proof is the key to preserving a trial court’s error in excluding evidence.

… The trial judge stated that he would not be a witness, but offered defendants an opportunity to make an offer of proof regarding the testimony of other witnesses … Defense counsel had an opportunity to place on the record, for review by this court, what other witnesses, namely, his client, James Zavacki, would testify to with regard to what occurred during the oral settlement negotiations in the judge's chambers. Defense counsel refused to do so and cannot now be heard to complain that the trial court's recollection of those settlement negotiations was inaccurate. Therefore, because defendants refused to make an offer of proof when given the opportunity to do so, we find that they forfeited their objection to the trial court's denial of an evidentiary hearing …

The appellate court affirmed the order to enforce the settlement, a sum of $2 million plus interest. Read the whole case, K4 Enterprises v. Grater, Inc., No. 1-07-2792 (8/19/09), by clicking here.

Gina Hampton appealed a ruling that terminated her parental rights to her 11-year old child. Hampton wanted an independent opinion after a court-appointed psychologist diagnosed the child with reactive attachment disorder. Among her arguments on appeal was a claim of trial court error by denying her request for an independent medical examination of her child.

The record on appeal contained Hampton’s motion for the independent exam, but not a resulting court order. The Fourth District Illinois Appellate Court rejected Hampton’s argument of error by the trial court because there was no way to establish from the record how, if at all, the trial court ruled. Hampton thus failed her obligation to provide a complete record from which the appellate court could review the trial court’s action. Here’s how the appellate court explained it:

“To determine whether a claimed error occurred, a court of review must have before it a record of the proceedings below." … "The appellant [Hampton] bears the burden to present a sufficiently complete record, and this court will resolve any doubts that arise from an incomplete record against the appellant." … Further, "[a] movant [Hampton] has the responsibility to obtain a ruling from the court on his motion to avoid waiver on appeal." …

“Here, the record does not contain a ruling by the trial court on respondent's [Hampton] motion. It is unclear whether the record is simply incomplete, in that the court ruled on the motion but the ruling is absent, or whether respondent failed in her duty to bring her motion to the court's attention and no ruling was ever obtained. In either event, we find the court committed no error.”

Get the whole case, In re M.R., No. 4-09-0110 (7/20/09), by clicking here.

Michael Carey and James Fann owned a mixed-use building (residential and dental office) in Chicago, Illinois. The building was substantially damaged in a fire. Carey and Fann made a claim to their insurer, American Family Insurance, but the company denied coverage. Carey and Fann sued American Family. After a bench trial, Carey and Fann were awarded more than $427,000.

American Family appealed. At trial, Carey’s and Fann’s damages expert neglected to put in evidence of depreciation of the building, a required element under Illinois law. Carey and Fann argued that American Family waived the argument that the damages evidence was deficient. Their argument relied on the “invited error” doctrine − American Family’s acceptance of the damages calculation and the company’s failure to put in its own evidence of depreciation.

The First District Illinois Appellate Court rejected Carey’s and Fann’s position. The court ruled there had been no “invited error” or waiver: American Family sufficiently reserved the right to dispute damages and it was not the insurer’s responsibility to assure the building owners’ damages evidence was appropriate. Here is the court’s rationale:

It is true that defendant [American Family] agreed to waive all foundational requirements regarding the admission of Spoerlein's [Carey’s and Fann’s damages expert] testimony and report. However, defendant specifically reserved objection to the testimony and report on all other bases. Further, defendant subjected Spoerlein to cross-examination regarding her estimate and in particular the lack of a calculation considering depreciation. During closing argument, defendant specifically argued that plaintiffs [Carey and Fann] failed to sustain their burden of proving damages to the subject building under the policy because the only evidence submitted concerning damage to the subject building was Spoerlein's testimony of replacement cost rather than actual cash value called for by the policy.

Plaintiffs' [Carey and Fann] argument regarding defendant's American Family] failure to produce evidence of depreciation is similarly unpersuasive. As noted, it is a plaintiff's burden to prove damages to a reasonable degree of certainty … Defendant had no burden of proof and was not required to prove plaintiffs' case.

Even though the damages evidence was inadequate, instead of an outright reversal the appellate court sent the case back to the trial court for a new trial on damages. Read the whole case, Carey v. American Family Brokerage, No. 1-07-3261 (5/11/09), by clicking here.

Michael Ready was killed at a work site when a wooden truss that was being rigged for scaffolding fell eight floors and struck him. Michael’s widow, Terry, as administrator of Michael’s estate, sued the contractor, BMW Constructors, and United/Goedecke Services, the scaffolding subcontractor. After BMW and United filed third-party complaints for contribution against Michael’s employer, Midwest Generation, Terry also sued Midwest.

Terry settled with BMW and United for more than $1.1 million. She went to trial against United. After subtracting offsets for Michael’s comparative negligence and the settlement, Terry was awarded $8.137 million.

An appellate court affirmed the judgment and ruled that United forfeited the right to challenge the amount of the award. United forfeited the issue, the appellate court stated, because the company mentioned it only in a “concluding remarks” section of its brief. Violating Illinois Supreme Court Rule 341(h)(7), United “failed to set forth in its brief ‘specific reasons or argument as to why the damage award was excessive or unreasonable’ and failed to ‘specifically argue that the damage award was improper.’”

The Illinois Supreme Court let the forfeiture decision stand. Because the appellate court briefs were not made a part of the record, the supreme court could not determine whether the forfeiture question had been properly decided. Here’s what the supreme court stated:

Before this court, United argues that the appellate court erred by applying the doctrine of procedural default. A review of the appellate court's application of the doctrine would necessarily require that we examine the briefs filed in the appellate court. However, United has failed to utilize Supreme Court Rule 318(c), which provides: "If it is important for the Supreme Court to know the contentions of any party in the Appellate Court, copies of the pertinent Appellate Court briefs certified by the clerk of that court may be filed in the Supreme Court." … Because the briefs filed by the parties in the appellate court are not a part of the record provided to this court, we are unable to review whether the appellate court erred in applying procedural default.

Read the whole case, Ready v. United/Goedecke Services, No. 103474 (3/23/09), by clicking here.

Richard Martis, a chiropractor, treated Water Management Corp.’s employee for an on-the-job injury. Water Management’s worker compensation insurer was Grinnell Mutual Reinsurance Company. Martis was not in Grinnell’s preferred provider network. He submitted his bill to Grinnell for the treating the employee. Grinnell discounted the bill and paid Martis as if he had preferred provider agreement with Grinnell.

Apparently angered for being shorted, Martis sued Grinnell. He alleged actions for conspiracy, unjust enrichment, violation of the Illinois Consumer Fraud Act, and breach of contract, and asked the trial court to certify the case as a class action. The trial court dismissed everything except the contract action, and also certified class action status.

Grinnell appealed, aguing that the class should not have been certified because Martis’s breach of contract claim did not state a proper cause of action. The Third District Illinois Appellate Court ruled that Martis was not a third-party beneficiary of Water Management’s worker compensation insurance policy with Grinnell, so Martis could not sue for breach of that contract.

With nothing left of his lawsuit, Martis asked the appellate court to review the trial court’s dismissal of his unjust enrichment claim. But Martis had not filed a cross-appeal asking for review of the dismissal, so the appellate court refused to consider the subject. Here’s the appellate court’s analysis:

Appellees [Martis] may not argue alleged errors unless they timely file a cross-appeal … In the absence of a cross-appeal, an appellee will not be permitted to challenge or ask the reviewing court to modify a portion of the trial court's order … When an appellee does not file a cross-appeal, the reviewing court is confined to the issues presented by the appellant … Because plaintiff did not file a cross-appeal, we may not address his argument that the trial court improperly dismissed his unjust enrichment claim.

Read the whole opinion, Martis v. Grinnell Mutual Reinsurance Co., No. 3-08-0004, by clicking here.

Christine Siwek had an accident when she was driving Jerrold Erickson’s car. Christine told the Illinois Department of Transportation about the accident, and identified American Access Casualty Company as her insurer.
American told the Department that Christine’s policy had been canceled.

Christine claimed she never received a policy cancellation, so she sued American Access. She asked the trial court for a declaration that her policy with American Access covered her for the accident.

American Access raised affirmative defenses, claiming essentially that Christine hadn’t paid for the policy. Christine asked the court to dismiss American’s defenses, which it did four times.

When American filed its fourth amended affirmative defenses, Christine made a motion to dismiss the defenses. She also asked the trial court for summary judgment and for an award of attorney fees under Section 155 of the Illinois Insurance Code.

On the day of the hearing on Christine’s requests, American Access presented a letter conceding that Christine’s policy was in effect at the time of the accident. The trial court then entered judgment against American Access, and awarded Christine her attorney fees.

American Access appealed. The company claimed the trial court should not have dismissed the affirmative defenses, should not have awarded summary judgment, and should not have awarded attorney fees to Christine.

Pointing to the doctrine of “invited error,” the First District Illinois Appellate Court ruled that American waived its arguments concerning its affirmative defenses and Christine’s summary judgment. So the appellate court refused to consider them. Here is the court’s analysis:

[T]he doctrine of invited error prohibits any party from complaining of an error on appeal "'which that party induced the court to make or to which that party consented.'"

It is quite clear that American made the strategic decision not to appeal from the dismissal of its affirmative defense, not to further challenge the plaintiffs' contention that they were entitled to insurance coverage for Siwek's accident, and to affirmatively certify to the Secretary of State that such insurance was indeed in effect. It was only after American took these actions that the trial court granted the plaintiffs' summary judgment motion, and only then did the plaintiffs and the Secretary of State seek an agreed order from the trial court dismissing the remaining count of the complaint. Under such circumstances, we refuse to further consider American's assertions that the trial court committed any error in dismissing its affirmative defenses or in ultimately granting summary judgment to the plaintiffs.

Read the whole opinion, Siwek v. White, No. 1-07-2600 (2/27/09), by clicking here.

James S. appealed from a trial court order that allowed psychotropic drugs to be administered to James against his wishes.

A basis of James’s appeal was that the order should be reversed because the circuit court did not state findings of fact to support emergency administration of psychotropic drugs, and therefore did not comply with the statutory requirement. “The respondent [James] argues that the circuit court's error here is particularly problematic because the evidence does not obviously reveal nor did the circuit court clarify under what provision of section 2-107.1(a-5)(4)(B) of the Code (405 ILCS 5/2-107.1(a-5)(4)(B) (West 2006)) the circuit court authorized the involuntary administration of psychotropic medication, i.e., whether the respondent exhibited deterioration in ability to function, suffering, or threatening behavior.”

The State argued that James waived the argument because he did not raise it in his motion for reconsideration.

The Fifth District Illinois Appellate Court ruled that waiver did not apply. The court invoked the plain error doctrine and considered James’s argument because it raised a fundamental liberty interest. Here is the appellate court’s ruling:

The respondent failed to raise this issue in his posttrial motion. An issue is waived on review if it is not raised both at the trial and in a posttrial motion … However, pursuant to the plain error doctrine, this court may address a waived issue if the evidence is closely balanced or the error affects substantial rights … The involuntary administration of medication for mental health purposes involves fundamental liberty interests. … Further, the waiver rule is a limitation on parties and not on reviewing courts …. Accordingly, we will consider this issue on the merits.

The appellate court reversed the order permitting involuntary administration of psychotropic drugs. Read the whole opinion, In re James S., No. 5-07-0567 (3/13/09), by clicking here.

In this product liability case, Ford Motor Co. was sued by the estate of a driver who died in a rear-end auto accident. After trial, a jury reached a verdict for the estate.

At trial, the parties fought about the correct way to instruct the jury to determine whether Ford was liable under a product liability theory. The estate argued that the jury should be instructed to use the “consumer expectation test.” Ford argued for a “risk-utility test.” The trial court gave the jury only the “consumer expectation test.”

The issue for the Illinois Supreme Court was whether Ford preserved this argument for the appeal. The supreme court stated the general rule to preserve an argument that the trial court improperly refused a jury instruction. “A party forfeits the right to challenge a jury instruction that was given at trial unless it makes a timely and specific objection to the instruction and tenders an alternative, remedial instruction to the trial court … These requirements ensure that the trial court has the opportunity to correct a defective instruction and to prevent the challenging party from gaining an unfair advantage by failing to act when the trial court could remedy the faulty instruction and then obtaining a reversal on appeal.”

In this case, Ford did object to the estate’s instruction, and did tender an alternative “risk-utility” instruction. In addition, there was sufficient evidence at the trial to support giving the “risk-utility” instruction. “Further, we are not persuaded by plaintiff's argument that the tendered nonpattern instruction is so flawed or confusing that it did not meet the [correct] standard … Defendants, therefore, have properly preserved for appeal the question of whether the evidence presented was sufficient to entitle them to have the jury instructed on the risk-utility test.”

In the end, the Illinois Supreme Court ruled that the trial court’s refusal to give the “risk-utility” instruction deprived Ford of a fair trial. The estate’s judgment was vacated and a new trial was ordered. Read the whole case, Mikolajczyk v. Ford Motor Co., No. 104983 (10/17/08), by clicking here.

Karen Gillespie, as administrator of Kenyudra Gillespie’s estate, sued the University of Chicago Hospitals and a number of doctors for medical malpractice. Karen settled with or dismissed all of the defendants except Dr. Glynis Vashi. The case went to trial, and after Karen put in her evidence, the trial court granted a directed verdict for Dr. Vashi.

Karen appealed. She claimed she was deprived of a fair trial because the trial court refused to admit certain evidence, including “an affidavit by Dr. Vashi, the hospital's rules and regulations, plaintiff's expert's testimony that Dr. Vashi was Kenyudra's ‘attending physician,’ and plaintiff's expert's testimony regarding the Joint Commission on Accreditation of Hospitals' rules and regulations.”

Dr. Vashi claimed that Karen waived the argument for appeal because she did not file a post-trial motion contesting the trial court’s evidentiary rulings. Karen argued that she didn’t have to because the case was resolved on Vashi’s motion for a directed verdict, so it never went to a jury.

Generally, in a jury case, a party has to make a post-trial motion to the trial court to preserve an issue for trial. But when the case is tried without a jury, a post-trial motion is not necessary to preserve an issue for appeal.

In this case, the First District Illinois Appellate Court ruled that Karen had to make the post-trial motion to properly preserve the evidence disputes for appeal. Here’s what the appellate court said:

Plaintiff [Karen] also argues that because the case ended with a directed verdict rather than a jury verdict, no posttrial motion was necessary to preserve the evidentiary issues for appeal.

Plaintiff neither cites to any case law to support her assertions nor did our research reveal any. We conclude that because plaintiff did not file a posttrial motion, her claims of evidentiary errors are waived on appeal.

The appellate court did not state whether Vashi had authority for her side of the proposition. Nor did the court state why its decision was the better rule. So even though the case never made it to the jury, Karen was held to the waiver rule for a jury case.

Read the whole case, Gillespie v. University of Chicago Hospitals, No. 1-07-1962 (12/31/08), by clicking here.

Seven year old Linnea Johnson was kicked by Gambler, a horse that was being boarded at Top Brass Horse Farm. Linnea suffered permanent kidney damage. She and her mother sued William and Ramona Johnson, Gambler’s owners. After a trial, a jury ruled in favor of William and Ramona, so Linnea and her mother appealed.

At trial, William and Ramona’s expert testified that Linnea probably approached Gambler’s “kick zone,” an area directly behind the horse that the horse instinctively kicks when surprised. In the appellate court, Linnea argued that the expert’s testimony was inadmissible because it was speculative. William and Ramona asserted that the “speculation” argument had been waived because it was not properly preserved in the trial court.

The First District Illinois Appellate Court agreed with William and Ramona. Although Linnea made a pre-trial objection based on speculation, she did not assert the “speculation” objection during the expert’s testimony at trial. Here’s what the court said:

Initially, we find that plaintiffs have waived their argument that Jahiel's [expert’s] testimony was improperly admitted because it was based on speculation. Plaintiffs asserted five objections during the course of Jahiel's testimony. At no time in the trial court did plaintiffs object to Jahiel's testimony based on the purported speculative basis of her testimony … Although plaintiffs filed a motion in limine seeking to prevent Jahiel from "[d]irectly or indirectly disclosing, discussing or suggesting in any manner … that the horse Gambler was provoked since [she] does not know what the plaintiff was doing at the time of the kick," plaintiffs failed to object to Jahiel's testimony on the grounds of speculation at trial and thus failed to properly preserve this issue for appeal

Linnea got a new trial nonetheless because the trial court mistakenly allowed the jury to consider whether she was guilty of comparative fault. Read the whole case, Johnson v. Johnson, Nos. 1-06-2759, 1-07-0029 (11/5/08), by clicking here.

Traci Hanson-Suminski bought a Honda from Rohrman Midwest Motors. The car salesman told Traci that the car had not been in an accident. Traci found out otherwise when she tried to sell the car.

Unable to reach a satisfactory agreement with the Rohrman, Traci sued for common law fraud and under the Illinois Consumer Fraud and Deceptive Business Practices Act. A jury gave Traci a favorable verdict for the common law fraud action. The court, without the jury, gave Traci a favorable verdict under the Consumer Fraud Act. Rohrman appealed.

One of Rohrman’s issues was that the common law fraud action was against the manifest weight of the evidence. Traci argued that Rohrman waived the argument for appeal because the dealership did not file a motion in the trial court attacking the common law verdict. Rohrman argued that it “clearly attacked the sufficiency of the common law fraud judgment and asked for a judgment not withstanding the verdict on the common law fraud claim” in other pleadings in the trial and appellate courts, including a response to Traci’s motion to strike the appeal.

But Rohrman’s assertions were not supported by the appellate record, which, as the party appealing, it was responsible to file. So the First District Illinois Appellate Court sided with Traci and ruled that Rohrman had waived the argument of insufficient evidence on the common law fraud claim.

After a thorough review of the record, however, we have found no indication that plaintiff [Traci] filed a motion to strike this appeal or a response from defendant [Rohrman] to that motion to strike. Furthermore, defendant failed to include such documents in the appendix to its brief and did not cite to these documents within its reply brief. Because “an appellant has the burden to present a sufficiently complete record of the proceedings at trial to support a claim of error.” We find that defendant, as appellant, has failed to meet his burden.

Read the whole case, Hanson-Suminski v. Rohrman Midwest Motors, Inc., No. 1-07-0755 (11/7/08), by clicking here.

In this confusing mortgage foreclosure case, a default judgment was entered in favor of Washington Mutual Bank against Archer Bank. About six months later, Archer asked the court to vacate the default. Archer’s motion to vacate relied on two sections of the Illinois Civil Procedure Code − § 2-1301(e) (setting aside default judgments); § 2-1401 (relief from judgments).

The trial court denied Archer’s motion to vacate. Eventually, a final and appealable order distributing the proceeds of the sale of the property was entered. Archer appealed and argued that the default should have been vacated under § 2-1401. In the appellate court, Archer dropped its § 2-1301(e) argument.

Appeals from § 2-1401 petitions are governed by Illinois Supreme Court Rule 304(b). The rule requires an appeal to be filed within 30 days. Although Archer filed an appeal within 30 days of the final distribution order, it came long after the court ruled on the § 2-1401 petition.

We have no doubt that Archer's notice of appeal gives us jurisdiction to review the outcome of the foreclosure case. But Archer's brief complains only of the trial court's dismissal of Archer's request to vacate the default in that request's aspect as a section 2--1401 petition. Under Supreme Court Rule 304(b)(3) … an order resolving a section 2--1401 petition is immediately appealable. When rule 304(b) makes an order immediately appealable, that appeal is not elective--any claim of error is lost if not raised then … Indeed, because a section 2--1401 petition begins a separate action … the resolution of the petition ends the entire action, so no other time to appeal could exist.

But Archer got another bite at the apple anyway. The appellate court ruled that Archer’s § 2-1301 petition became reviewable after the final distribution order was entered, so Archer’s appeal was timely. And although Archer did not brief its § 2-1301 argument, the Second District Illinois Appellate Court took the case on that basis anyway. In the end, the appellate court sent the case back to the trial court to consider Archer’s § 2-1301 petition.

Read the whole opinion, Washington Mutual Bank v. Archer Bank, No. 2-07-0074 (9/15/08), by clicking here.

Travelers Casualty & Surety sued the Bowmans for payment on performance bonds. The Bowmans raised statute of limitations defenses, but one of the statutes was not raised in the trial court. Nonetheless, that defense was fully briefed and argued to the appellate court. When the case reached the Illinois Supreme Court, Travelers argued that the Bowmans’ waived the defense of that statute because they hadn’t argued it to the trial court.

The Illinois Supreme Court considered the Bowmans’ defense anyway. The supreme court was persuaded because the argument was fully briefed and argued twice, and the record contained all of the facts necessary for a decision. Here’s what the supreme court said:

We note that defendants did not raise this argument in the trial court. Defendants raised the statute of limitations in section 13-204 for the first time in the appellate court … [A]lthough a defense not raised in the trial court may not be raised for the first time on appeal by an appellant, "the appellee may urge any point in support of the judgment on appeal, even though not directly ruled on by the trial court, so long as the factual basis for such point was before the trial court." Here, defendants were the appellees, urging the appellate court to affirm the circuit court's decision. Defendants argued section 13-204 as an alternate basis for affirming the circuit court's dismissal of plaintiff's cause of action as untimely.

If applicable, section 13-204 would support the circuit court's dismissal of plaintiff's cause of action. While the trial court in this case did not rule on the applicability of section 13-204, the issue was fully briefed, argued, and decided in the appellate court and also briefed and argued before this court. The Bowmans raised a statute of limitations defense and the complaint filing date is in the record. The Bowmans contend that it was not filed within two years of when Travelers' cause of action accrued. Thus, all the facts necessary for a legal determination of whether section 13-204 is the proper statute of limitations applicable to this cause of action are present in the record.

Read the whole case, Travelers Casualty & Surety Company v. Bowman, No. 103759 (7/24/08), by clicking here.

Stephen Wartalski, a pipefitter, was injured while doing construction work at a Panera restaurant. He claimed that a glass shield over a temporary lighting fixture broke, exposing him to ultraviolet radiation. The radiation, he said, caused facial contractions and traumatic dystonia.

Wartalski sued the construction contractors for negligence, and a jury awarded him $975,700. The contractors appealed. They argued that Wartalski’s expert witnesses should not have been allowed to testify at the trial because their opinions were not generally accepted.

Wartalski countered that the contractors waived their argument because they did not first raise it in a post trial motion. He pointed to Section 2-1202(b) of the Illinois Code of Civil Procedure, which requires a party to make a motion to the trial court for relief following a jury verdict.

The First District Illinois Appellate Court rejected Wartalski’s argument. The ruling that allowed the expert testimony was made by the judge, not a jury, so the post trial motion was not necessary to preserve the question for appeal or to establish appellate jurisdiction. “Wartalski's reliance on section 2-1202 is in error; section 2-1202 does not apply to nonjury matters such as Frye [expert evidence] rulings, nor does section 2-1202 establish or limit the appellate court's jurisdiction. No postjudgment motion is required to preserve matters determined without a jury for review.”

In the end, the appellate court ruled that the expert evidence was neither new nor novel, so the experts could testify. Wartalski’s judgment was affirmed. Read the whole case, Wartalski v. JSB Construction and Consulting, Nos. 1-07-0954, 1-07-0955 (7/10/08), by clicking here.

David Loman owned a race horse that he brought to the College of Venterinary Medicine at the University of Illinois for treatment. David Freeman performed surgery on the horse. But Loman said the surgery left the horse unable to race. So Loman sued Freeman.

Loman’s claims for negligence and conversion were dismissed by the trial court. The appellate court reversed and reinstated Loman’s complaint. The Illinois Supreme Court affirmed the appellate court.

Freeman asserted that the Moorman Doctrine (economic damages — i.e., contract damages — not available in a tort action) blocked Loman’s negligence case. But first there was the question of whether Freeman forfeited the Moorman defense in the Illinois Supreme Court.

Freeman raised the Moorman Doctrine in his petition for leave to appeal, but he did not sufficiently brief the question. Here’s what the supreme court said:

Defendant's petition for leave to appeal lists "Moorman Doctrine" as one of the points relied upon for reversal. However, the doctrine is only briefly referred to in the remainder of the petition … He concludes that he "firmly believes that the Moorman Doctrine applies to this set of facts … In defendant's brief to this court, he did not provide argument in support of these conclusory remarks … Counsel for defendant made no mention of Moorman at oral argument.

In throwing out Freeman’s Moorman Doctrine defense, the court stated it was “entitled to have issues clearly defined with relevant authority cited.”

We first reported on this case after the appellate court ruled in December 2006. The whole opinion, Loman v. Freeman, No. 104289 (4/17/08), is available by clicking here. Be sure to read J. Freeman's strong and well-written dissent.

Efrain Torres injured his shoulder when he slipped on property owned by Midwest Development Company. Torres sued Midwest, claiming the company caused an unnatural accumulation of ice on the property. Michael Eiben, Torres’s roofing expert, was barred from testifying at trial, because, the trial court ruled, Eiben had “no rational basis for his opinions.”

After a jury verdict in favor of Midwest, Torres appealed. He argued that Eiben should have been allowed to tell the jury his opinions about ice damming and proper roof construction. That raised the question of whether plaintiff’s failure to make an offer of proof to the trial judge resulted in waiver of the argument that Eiben should have been permitted to testify.

The First District Illinois Appellate Court ruled there was no waiver. The court acknowledged that “when a trial court refuses evidence, no appealable issue remains unless a formal offer of proof is made.”

But this case fell into the exception that “an offer of proof is not required where it is apparent that the trial court clearly understood the nature and character of the evidence sought to introduced … A review of the record demonstrates that the trial court had before it Eiben’s written report and lengthy deposition testimony, which contained with them all of the opinions that he would have provided at trial. The trial court also heard extensive argument from both parties regarding Eiben’s qualifications, opinions and lack of a factual basis for those opinions.”

Read the whole case, Torres v. Midwest Development Co., No. 1-06-3698 (5/19/08), by clicking here.

MD Electrical Contractors subcontracted to do work at defendants’ home. The homeowners did not pay for the work, so MD sued for the money. Because there was not a written contract, MD’s complaint used a theory of quantum meruit (that MD should be paid for the value of the work it performed). The homeowners moved to dismiss MD’s complaint, claiming that MD did not comply with the Illinois Home Repair and Remodeling Act. The trial court agreed with the homeowners and dismissed the case. But the appellate court reversed, ruling that the Repair and Remodeling Act applied only to contractors, not subcontractors.

The homeowners took the case to the Illinois Supreme Court, which agreed with MD that the Act did not apply to subcontractors. The Act, the court ruled, could not be used as a defense to a quantum meruit suit by the electrical subcontractor.

In their petition for leave to appeal to the Illinois Supreme Court, the homeowners raised only one issue, the applicability of the Repair and Remodeling Act. But in their brief to the court, the homeowners also argued that the Illinois Mechanics Lien Act restricted MD’s claim for compensation, and that MD’s request for quantum meruit damages went beyond the Mechanics Lien Act. MD in turn argued that the homeowners forfeited their Mechanics Lien argument because it was not raised in the petition for leave to appeal, as required by Illinois Supreme Court Rule 315.

The supreme court agreed that the homeowners forfeited the argument because the “question was not properly presented in the defendants' petition for leave to appeal …” The homeowners argued that forfeiture did not apply because they raised the Mechanics Lien argument in the appellate court. But the supreme court said that was a “red herring.” The relevant question was “whether the issue is properly raised by the trial court record and can now be utilized to support the finding of the trial court.”

The whole case, MD Electrical Contractors v. Abrams, No. 104000 (4/3/08), is available by clicking here.

Unhappy with the treatment she received from her dentist, Jill Caywood sued him for malpractice. The dentist moved to dismiss Jill’s complaint for lack of compliance with the statute of limitations. The trial court granted the dentist’s motion, and Jill moved for reconsideration. In her reconsideration motion, Jill argued for the first time “that she suffered from mental incapacitation and was unable to appreciate that she had been injured by defendants' wrongful treatment.” The trial court disregarded the argument and denied the motion.

On appeal, Jill claimed it was reversible error for the trial court not to address the argument. The First District Illinois Appellate Court affirmed the dismissal for two reasons: (1) the evidence of Jill’s incapacitation existed, and should have been raised, in defense to the motion to dismiss; (2) “arguments raised for the first time in a motion for reconsideration in the circuit court are waived on appeal.”

Get the whole case, Caywood v. Gossett, No. 1-06-2458 (4/11/08), by clicking here.

This case involves a dispute over the sale of land. Wheeler-Dealer asked the court to reform or rescind of the deed. Defendant Roger Christ won after a bench trial. Wheeler-Dealer appealed the verdict.

One of Wheeler-Dealer’s arguments to the First District Illinois Appellate Court was that parol evidence improperly was admitted at the trial. Wheeler-Dealer claimed that it objected to “the admission of any oral statements going to the intent of the parties at the time that they entered into the real estate contract and that it again objected to such evidence in its brief filed with the circuit court prior to the commencement of trial.”

Not good enough, according to the appellate court. The court ruled that the pretrial objections did not save the issue for appeal. “Timeliness requires that an objection be made when the evidence is offered at trial … Although a party may have objected to the evidence at some pre-trial stage in the proceedings or unsuccessfully moved to bar the evidence prior to trial, it must still renew its objection at the time that the evidence is offered … Failure to renew the objection when the evidence is offered at trial results in a waiver of any challenge to the circuit court's consideration of that evidence.”

The lesson bears repeating. To assure an evidentiary objection is preserved for appeal, no matter how many pre-trial objections were made, you should object to it at trial. Otherwise you risk waiving the objection in the appellate court.

Get the whole case, Wheeler-Dealer, Ltd. v. Christ, No. 1-07-0970 (3/4/08), by clicking here.

Members of an insurance pool were sued for failure to pay extraordinary assessments. The pool members in turn brought a third-party complaint against a number of parties alleging breach of contract and numerous torts. The trial court dismissed a significant part of the third-party complaint with prejudice and without leave to file an amended pleading.

The Fourth District Illinois Appellate Court refused to rule on the members’ argument that they were entitled to amend their third-party complaint. The court ruled that the members’ failure to proffer the amended third-party complaint to the trial court resulted in forfeiture of the question. “The pool members did not include a proposed amended complaint with supporting facts in the trial court. The failure to do so ‘significantly diminishes our ability to determine whether the proposed amendment’ would provide them with a viable theory against RMA and Murray [third party defendants] … The failure to tender the proposed amendment forfeits review of the trial court's decision.”

So the lesson is: to assure there is a complete record for appeal, always proffer your proposed amended pleading to the trial court. Failing to do so may be a forfeiture of an argument on appeal that you improperly were not allowed leave to amend.

You can read the whole case, Illinois Non-Profit Risk Management Assn. v. Human Service Center of Southern Metro-East, No. 4-07-0472 (1/9/08), by clicking here.

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.

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.

Rhonda Gilley broke her ankle when she slipped on unsecured carpeting in an apartment building. She sued the landlord for negligently maintaining the property. The landlord moved for summary judgment, and prevailed. Rhonda moved for reconsideration and to file an amended complaint. Her reconsideration motion was denied, but she was allowed to file an amended pleading.

Rhonda’s amended complaint did not incorporate or refer to her first complaint. The landlord moved to dismiss the amended complaint. He won, so Rhonda appealed both the summary judgment and the dismissal.

The Second District Appellate Court ruled that the summary judgment in favor of the landlord was not properly before the court. “[T]he issue of the propriety of the trial court's grant of summary judgment is not properly before this court, for when an amendment is filed that is complete in itself and that does not refer to or adopt by reference the prior pleadings, the earlier pleadings are effectively withdrawn and cease to be a part of the record for most purposes . . . Thus, the filing of an amended pleading waives any objection to the trial court's ruling on any former complaint . . . Here, by filing an amended complaint, plaintiff was precluded from appealing the order on her original complaint, and we restrict our review to the court's dismissal of plaintiff's amended complaint.”

Get the whole case, Gilley v. Kiddel, No. 2-06-0505 (3/21/07), by clicking here.

Plaintiff, a pedestrian, was injured in a car accident that happened when the police chased a stolen rental car. Plaintiff was hit by the rental car. She sued the rental car company and the security company that had been hired to secure the rental car company’s car lot. The rental company moved for, and was granted, summary judgment. Plaintiff appealed.

Plaintiff was required to plead “special circumstances” because the car was on private property when it was stolen. Plaintiff argued “special circumstances” on appeal. But the issue was whether it was sufficiently preserved in the trial court. The First District Appellate Court ruled that plaintiff’s “special circumstances” argument was waived.

Plaintiff, however, merely alleged that Budget [car rental company] was negligent for failing to restrict access to its vehicles and in its administration of its NRT [nonrevenue transport ticket] process without alleging any special circumstances, i.e., previous vehicular thefts at the O’Hare Budget facility. Although plaintiff referenced special circumstances in her response to Budget’s motion for summary judgment and asserted therein that Budget took security precautions, she made none of the special circumstances arguments in the circuit court that she proffers in her briefs before this court. As such, those arguments are waived.

Get the whole case, Phillips v. Budget Rent-A-Car Systems, No. 1-05-2950 (2/8/07), by clicking here.

A student suffered a spinal cord injury when he used a mini-trampoline during a school extracurricular tumbling program. The student sued the board of education, the youth center, and the center’s instructor. The trial court granted summary judgment to defendants. The appellate court affirmed. The Illinois Supreme Court affirmed the first time it considered the case. But on rehearing, the supreme court reversed.

The student’s amended Complaint alleged a “failure to guard or warn of a dangerous condition” exception to the immunity defense. But the appellate court did not expressly address the propriety of the exception. The supreme court declined to address the question because “this issue was not fully briefed and argued . . .”

See the whole case, Murray v. Chicago Youth Center, No. 99457 (2/16/07), by clicking here.

An appellate opinion from the Illinois Fifth District raises two waiver questions that are notable for appellate practitioners. The case grows from Joyce Cretton’s treatment at Memorial Hospital of Belleville. She was admitted already with advanced stage chronic obstructive pulmonary disease. She died about two weeks later. Her estate sued the hospital, alleging that she “had been allowed to fall or was dropped and that as a result Joyce suffered a subdural hematoma that ultimately resulted in her death.”

After trial, a jury (1) awarded the estate just under $1 million on a survival action, and (2) found in favor of defendant on the wrongful death claim. A sanction of nearly $130,000 was entered against the hospital. The hospital appealed the jury award and the sanction. Ultimately, the appellate court affirmed the verdict and the sanction.

The following waiver issues are notable:

• Defendant argued that the $950,000 judgment was excessive. Defendant pointed out that plaintiff asked for only $500,000 in its closing argument. The appellate court ruled the argument was waived because “the defendant does not develop any cogent argument in its opening brief that, assuming an award of damages was permissible, the amount awarded was excessive . . .”

• The court took the hospital to task for its position that plaintiff made prejudicial comments during closing argument requiring a new trial. “. . . [T]he defendant has presented absolutely no evidence or argument regarding any allegedly ‘prejudicial and inappropriate’ comments during the trial and has therefore waived the issue on appeal.” The court was frustrated by the hospital’s failure “to include any of the pages of the report of proceeding cited by the defendant in support of this argument . . .” Nonetheless, the appellate court considered the argument because plaintiffs did not “raise the issue of the missing pages and do not contest the accuracy of the remarks to which the defendant takes exception.”

The whole case, Cretton v. Protestant Memorial Medical Center, No. 5-05-0474 (2/28/07), is right here.

Contrast this case with Goldberg v. Rush University, directly below. In Fuller Family Holdings v. Northern Trust Co., 1-06-1533 (2/13/07), the same First District Court of Appeals (but a different panel) decided to overlook a party’s lack of citation to authority in its spoliation of evidence argument and rejected a waiver argument. The court fell back on the mantra that waiver is “an admonition to the parties and not a limitation on the jurisdiction of this court . . . Therefore, in order to provide a just result and to maintain a sound and uniform body of precedent, a court of review may exercise its discretion to disregard considerations of waiver that stem from the adversarial nature of our system.” Having hung its hat on this language, the court then, without analysis, “declined” to find waiver and stated it “believed” it was appropriate to decide the issue.

The Fuller Family Trust had much better luck than Dr. Goldberg on the same issue in the case I discussed on May 3 (directly below). The two cases illustrate how arbitrary “waiver” is. It’s particularly confounding for the appellate practitioner because most courts do not go beyond the black letter law that supports their conclusion. That’s why a case like Fuller Family Trust is not helpful on this question of waiver. The opinion does not state how overlooking waiver “provide[s] a just result and . . . maintain[s] a sound and uniform body of precedent.” Other than a desire to reach the issue, why is waiver here any different than it was in Goldberg, which came to exactly the opposite conclusion?

In his dispute with Rush University Medical Center, Dr. Goldberg appealed from an order denying him leave to file an amended complaint. He stated his intention to appeal that order in his Notice of Appeal. But his brief did not contain argument or citation to relevant authorities.

Citing Illinois Supreme Court Rule 341, the appellate court ruled that Dr. Goldberg waived this contention. The court used a two-step analysis: Rule 341 requires a party’s arguments to be supported by citation to authorities. Points not argued are waived. So, the court concluded, the lack of citation necessarily meant the argument was waived.

Read the whole case, Goldberg v. Rush University Medical Center, No. 1-06-1005 (2/20/07), by clicking here.

The use of psychotropic drugs again was at issue. The patient was admitted to the Elgin Mental Health Center after she was found to be unfit to stand trial for unauthorized use of a credit card. The patient was treated by Dr. Rosanova, who diagnosed schizophrenia and recommended use of phychotropic drugs.

The patient received an independent evaluation from a clinical psychologist, not a medical doctor. A chief preliminary issue was whether the patient timely demanded an independent evaluation by a physician. The court ruled that the patient’s actions in the trial court sufficiently defeated a waiver argument.

But the appellate court did not stop there. The court also ruled that the plain error doctrine — not often invoked in civil cases — overcame waiver. Here’s what the court said:

The plain-error doctrine allows a reviewing court to address a waived or forfeited issue in two circumstances: (1) where the evidence is so closely balanced that the outcome may have resulted from the error rather than the evidence; or (2) where the error is so serious that the respondent was denied a substantial right, and thus a fair trial . . . In this case, petitioner glaringly overlooks the second circumstance in which the plain-error doctrine may apply. As stated, the Illinois Supreme Court has described the involuntary administration of psychotropic drugs as an act that involves a " ' "massive curtailment of liberty" ' " . . . and an act that is a " 'particularly severe' interference with a person's liberty . . . Therefore, even if respondent waived her right to an independent psychiatric evaluation, the second prong of the plain-error doctrine applies

Get the whole case, In re Dru G., 02-05-1214 (12/20/06), by clicking here.

In a fight between insurers over how to pay an underlying personal injury claimant, Tokio Marine and Fire fought with U.S. Fire Insurance about exhaustion of primary and excess policies. The trial court ordered Tokio to reimburse U.S. Fire for its full $1 million policy limits. Tokio asserted that the trial court should have conducted a hearing on proportionate liability before entering an order to reimburse.

Tokio raised this argument for the first time on a motion for reconsideration in the trial court. U.S. Fire argued to the appellate court that Tokio waived the argument. The appellate court agreed with U.S. Fire and ruled the argument waived. The appellate court was persuaded because the evidence raised by Tokio on reconsideration was available at the time the parties briefed the original motion. “Trial courts should not allow litigants to stand mute, lose a motion, and then frantically gather evidentiary material to show that the court erred in its ruling.”

The entire case, North River Ins. Co. v. Grinnell Mutual Reinsurance, No. 1-05-0606 (12/8/06), is available here.

A contractor obtained performance bonds for three construction projects. The surety company required the president and the owner to sign indemnity agreements to obtain the bonds. When the contractor defaulted on the construction contracts, the surety company became liable on the performance bonds. Using the indemnity agreements, the surety then sued the president and the owner to get the money back.

In the trial court, the president and the owner successfully argued for dismissal based on a four-year statute of limitations. The surety company argued that a 10-year statute applied.

Another option, a two-year limitations statute was not raised by the president or the owner in the trial court. But when the case went up on appeal, they claimed that the two-year statute applied. The surety argued waiver. But the court rejected the waiver argument because “the applicable limitations period was before the trial court,” albeit not the two-year statute. The appellate court indicated that waiver could be avoided as long as the factual basis for the argument — but not necessarily the argument itself — was before the trial court.

You can see the whole opinion in Travelers Casualty and Indemnity v. A.G. Carlson, Inc., No. 2-05-1041 (10/30/06), by clicking here.

Here are some fundamental lessons for practitioners from a recent First District Illinois retaliatory discharge case: (1) Make sure your post-trial motions are sufficiently detailed and specific enough to give the trial court a chance to correct its errors. (2) If you are challenging jury instructions, you’ll need the transcript of the jury instruction conference. (3) Just making a post-trial motion on the admission of evidence isn’t good enough to preserve your appeal. You must also object to the evidence at trial.

You can read about the employee’s difficulties on appeal in Webber v. Wight & Company, No. 1-04-1622 (11/9/06), by clicking here.

Unfit to stand trial for telephone harassment, Leslie H. was admitted to the Elgin Mental Health Center. Her psychiatrist petitioned to involuntarily administer psychotropic medication to her. A public defender represented her on the petition to administer the drugs. Leslie’s attorney in the criminal defense matter was not given notice of the psychiatrist’s petition.

The trial court granted the petition, and Leslie appealed. The Second District Illinois Appellate Court ruled that the dispute was not moot, even though the waiting period after the order authorizing administration of the drugs passed. The court invoked the public interest exception to the mootness doctrine. (Question of a public nature; authoritative ruling could help guide public officers; issue likely to recur.)

Because the public defender did not challenge the lack of notice to Leslie’s criminal defense lawyer at the hearing on the petition, the State argued waiver. The appellate court overlooked the waiver “in order to achieve a just result … especially in a case where the State seeks to involuntarily administer psychotropic medication.”

The State tried to supplement the record on rehearing to show that Leslie’s criminal defense attorney did receive notice of the petition. But the court “simply cannot consider such evidence.” Supreme Court Rule 367 requires a party to state the points the appellate court “overlooked or misapprehended.” The rule does not provide a mechanism for using new evidence that was available at trial and during the appeal.

The order allowing the petition to administer the drugs was reversed. The whole case, In re Leslie H., No. 2-05-0648 (1/5/07), is available right here.

This one falls into the category of “I guess they just wanted to.” It impresses the power of an appellate court to do as it pleases, and for no particular reason.

Jeffrey Hicks brought a class-action lawsuit against Airborne Express, claiming that Airborne did not deliver packages at guaranteed times. On appeal, Airborne claimed that Hicks’s contract claim was preempted by the Airline Deregulation Act. Hicks argued that Airborne waived the argument because it failed to raise the defense in the trial court.

The opinion does not state how Airborne defended the waiver argument. Nor does it provide a reason for overlooking it. After stating the rule that waiver limits the parties but not the jurisdiction of the court, the appellate court stated only, “We choose to address the issue.” No reason was provided.

Caesura. The appellate court ruled the Airline Deregulation Act did not preempt the contract claim, so Hicks won that battle. But he lost the war. The court affirmed summary judgment in favor of Airborne, ruling that Hicks was limited to the exclusive remedy provision in his contract with Airborne (a free shipment), and not to common law damages.

Click here for the whole case, Hicks v. Airborne Express, 367 Ill. App. 3d 1005, No. 5-04-0793 (7/25/06).

A consulting firm got a default judgment in Maryland against an Illinois law firm. The consulting firm then petitioned to register the judgment in Illinois. The law firm moved to dismiss based on lack of jurisdiction of the Maryland court. The Illinois trial court denied the motion and ruled that the Maryland court did have jurisdiction.

On appeal, the consulting firm argued that the law firm waived the jurisdiction argument because it did not raise it in the Maryland court. The Illinois Third District Court of Appeals ruled there was no waiver. Both the Illinois trial and appellate courts “may inquire into whether a sister state had subject matter and personal jurisdiction in the matter.”

Get the whole opinion in Highway Traffic Safety Associates v. Gomien and Harrop, No 3-05-0786 (11/27/06) here.

In a procedurally complicated case running its way through the appellate court a second time, the Illinois First District Court of Appeals ruled that an insurer did not waive an argument that the first appellate ruling was palpably erroneous. After the first appeal and remand, the insurer did not argue to the trial court that the appellate ruling was erroneous. In the second appeal, plaintiff argued that the insurer's silence was grounds for waiver.

The appellate court rejected that argument and ruled there was no waiver. The trial court was bound to follow the appellate court’s instructions on remand. An argument in the trial court that the appellate court's ruling was erroneous would have been “futile.” See the whole opinion, which also is chock full of discussion about law of the case, Norris v. National Union Fire Insurance Co., No. 1-05-3132 (2006), by clicking here.

A sex offender, who was committed as a sexually violent person, petitioned for release. Three rulings bear upon appellate practice:

• Whether expert testimony that relied on a penile plethysmograph (“PPG”) was admissible under the Frye standard did not require an objection at trial; the motion in limine to exclude was sufficient. So the absence of an objection at trial did not result in waiver of appellate review. The court suggests that a motion in limine alone is sufficient to preserve appellate review when the issue is whether expert evidence meets the Frye standard.
• In conducting a Frye analysis “a court of review is not bound by the record developed during trial and may consider "sources outside the record, including legal and scientific articles, as well as court opinions from other jurisdictions."
• Standard of review to determine whether the person seeking release has made “sufficient progress” is manifest weight of the evidence.

In the end, the State’s expert evidence, which relied upon the PPG, was allowed. The trial court’s ruling of insufficient progress was affirmed. Get the whole case, In re Commitment of Sandry, 857 N.E.2d 295, No. 2-04-0870 (2006), by clicking here.

A third party drove a car through a wall at a Burger King and killed a customer. The customer’s estate sued Burger King. Burger King won a motion to dismiss in the trial court because, the court ruled, there was no legal duty to the customer. The customer’s estate appealed, and won a reversal in the court of appeals.

Burger King appealed the appellate court’s ruling. In the Illinois Supreme Court, Burger King argued the complaint failed to sufficiently allege proximate cause between its conduct and the customer’s death. That was the first time Burger King raised the insufficiency of proximate cause.

The Illinois Supreme Court ruled that Burger King waived the proximate cause argument. “…[D]efendants moved to dismiss plaintiff's complaint in the circuit court solely on the basis that they owed no duty of care to the decedent. They did not argue proximate cause in their motion to dismiss, and the trial court's ruling was limited to the issue of whether plaintiff adequately pleaded the existence of a duty. Therefore, the issue of proximate cause is not properly presented by the record in this case.”

Get the whole case here, Marshall v. Burger King Corp., No. 100372 (Ill. Sup. Ct. 2006).

In another grandparent visitation case, the Illinois Second District ruled that a due process argument was not waived even though it had not been raised in the trial court. The trial court ordered the parents not to talk to their daughter about the case. The parents argued that the order violated their due process rights to raise and care for their daughter as they see fit.

The appellate court ruled the argument was not waived. “… [D]efendants failed to make any argument before the trial court that the order prohibiting them from telling their daughter the outcome of the case violated their fourteenth amendment rights. However, the application of the forfeiture rule is less rigid where the basis of the objection is the trial court's own conduct.”

Take a look at Felzak v. Hruby, 855 N.E.2d 202, 2-05-0848 (2006).

An Illinois First District opinion recently ruled that citation to just one case did not prevent waiver of an argument of unjust enrichment. The court stated there was a failure to discuss the relevancy of the case. The failure to cite relevant authority was a violation of Illinois SCR 341, and the argument therefore was waived. The whole case is here, Fortech LLC v. R.W. Duntemann Co., 852 N.E.2d 541, No. 1-05-1526 (2006).

A legal malpractice action spawned a dispute over whether a law firm waived crucial arguments concerning due process and damages. The firm did not include those points in its petition for leave to appeal. The Illinois Supreme Court has already ruled that failure to raise an issue in the PLA may be deemed a waiver of that issue. (Look at Central Illinois Light Co. v. Home Ins. Co., 213 Ill. 2d 141, 152, No. 96978 (2004). So the client claiming malpractice moved to dismiss the law firm’s appeal of those questions.

But in this appeal, the client filed a separate PLA. The court resorted to Illinois SCR 318, which allows an appellee to “seek and obtain any relief warranted by the record on appeal without having filed a separate petition …” The Illinois Supreme Court denied the motion to dismiss and said the law firm could rest on Rule 318 to raise the issues it did not include in its own PLA. See the whole case here, Tri-G, Inc. v. Burke, Bosselman & Weaver, 222 Ill. 2d 218, Nos. 99584, 99595 (2006).

(Caesura – This is the case that ruled a legal malpractice plaintiff, in its lawsuit against the law firm, cannot obtain punitive damages that may have been available in the underlying case.)