Articles Posted in Waiver and Forfeiture

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: