Articles Posted in Waiver and Forfeiture

A baby sustained serious injuries at birth. His parents sued the doctor who performed the delivery for medical malpractice. The parents got a favorable trial verdict, so the doctor appealed.

In the appellate court, the doctor claimed he should have been awarded a directed verdict by the trial court “because there was a total failure of proof on the element of proximate causation.” But the doctor’s brief asked for a new trial, but did not ask the appellate court to reverse based on insufficient evidence.

The Second District Illinois Appellate Court ruled that the doctor forfeited “in [his] brief” the argument that the judgment should be reversed for lack of evidence. The court then reviewed the doctor’s notice of appeal, which did ask to “vacate or reverse the judgment, to enter judgment notwithstanding the verdict in their [parent’s] favor … and to grant any other relief warranted by the applicable law and record on appeal.”

Leland Stahelin and JES Ventures owned property that bordered the Morton Arboretum in DuPage County, Illinois. The county forest preserve and the arboretum wanted to preserve the property in its undeveloped state. After purchase negotiations failed, the forest preserve sued the owners in a condemnation suit, then withdrew the suit. At the same time, the forest preserve passed an ordinance that stated “the acquisition of the property in the future would be important to furthering the statutory purposes of the [District].”

The owners claimed they could not develop the property for commercial purposes because the ordinance stated the government’s intention to condemn it. So the owners sued the forest preserve and the arboretum under the due process clause of the Fifth Amendment of the U.S. Constitution for engaging in a conspiracy to take the land. The trial court dismissed that lawsuit. The arboretum then asked the trial court to award attorney fees. Meanwhile, the owners appealed the dismissal, but the appellate court affirmed. The owners’ petition for leave to appeal to the Illinois Supreme Court was denied. The arboretum then asked for an award of its attorney fees incurred in defending the owners’ appeal.

The trial court awarded the arboretum its fees under Section 1988 [federal civil rights statute] for defending the appeal, but not for defending the case in the trial court. The owners then appealed the award of attorney fees.

This opinion is useful because it reiterates the point that a favorable pre-trial evidentiary ruling may not be sufficient to preserve the issue for appeal if your opposing counsel violates the ruling at trial. You must object at trial when the evidence is offered.

In this medical malpractice case, the defendant and a non-party witness testified that the aggrieved patient wanted to continue the allegedly negligent medical treatment despite reported problems. On appeal, the patient argued the testimony violated a pre-trial order that prohibited “testimony that Ms. Hardy [plaintiff] was comparatively negligent.” Unfortunately for Ms. Hardy, she neither objected to the testimony nor moved to strike it.

The Third District Illinois Appellate Court ruled that Ms. Hardy forfeited appeal of the argument. Here’s what the court said:

Jill Hamer was touring Chicago on a Segway, a mechanical device with wheels that transports riders while they stand on the machine. Jill fell and injured herself while riding the Segway up a hill. So she sued City Segway Tours of Chicago for compensation for the injuries.

City Segway asked the trial court for summary judgment based on a release Jill signed before taking the tour. Jill opposed City Segway’s request. She also asked for leave to file an amended complaint to allege willful and wanton conduct by City Segway. But Jill did not attach her proposed amended complaint to her request. The trial court gave City Segway summary judgment and denied Jill’s request to file an amended complaint. So Jill appealed.

The First District Illinois Appellate Court affirmed the order denying Jill’s motion to file an amended complaint. The court explained: “… [B]y failing to include the amended complaint in the record on appeal, Hamer has forfeited her right to have this court review the trial court’s denial of her motion for leave to amend her complaint.”

After a collective bargaining agreement expired, a school board decreased health care benefits to teachers who took early retirement under the agreement. The teachers sued the school board for the full benefits. The trial court gave the teachers summary judgment, and the school board appealed.

The school board did not raise a federal preemption defense in the trial or appellate courts. The Second District Illinois Appellate Court ruled that preemption was subject to forfeiture because “this preemption affects only the applicable law, not the appropriate forum or jurisdiction …”

But in this case, the appellate court ignored the forfeiture because “[W]e believe that the interests of justice and the development of a sound body of precedent require the application of federal common law here … We observe with respect the United States Supreme Court’s statements regarding the importance of a uniform body of law in cases involving the interpretation of collective bargaining agreements … Accordingly, throughout this opinion we look to federal law in addressing the substantive issues raised by the parties, although we include citations to Illinois law where the issue is purely procedural or reference to state law may be helpful.”

Falcon Funding owned land in Elgin, Illinois. Elgin agreed to annex the land in 1991. The property never was developed. In 2005, Falcon asked the trial court to order the property disconnected from Elgin.

Falcon and Elgin both asked the trial court for a summary judgment. The court denied Elgin’s request, and gave Falcon summary judgment, disconnecting the property.

Elgin appealed, and raised equitable estoppel [reliance by one party — here, the city — on the word or conduct of another so that the party (city) changes his position and subsequently suffers harm] as an affirmative defense to Falcon’s request for disconnection. Falcon argued that Elgin forfeited its equitable estoppel argument because the city had not specifically stated it as an affirmative defense to the complaint. Elgin asserted the argument was not forfeited because it was raised as a defense to Falcon’s summary judgment request.

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:

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.” …

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:

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.’”

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