Waiver and Forfeiture

June 20, 2009

Chiropractor Waives Unjust Enrichment Claim For Failure To File Cross-Appeal

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.

June 15, 2009

American Access Casualty Appeal Waived By Invited Error

by Steven R. Merican

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.

June 6, 2009

Plain Error Doctrine Prevents Waiver Of Appellate Argument Against Involuntary Administration Of Psychotropic Drugs

by Steven R. Merican

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.

April 13, 2009

Ford Motor Preserves Risk-Utility Jury Instruction Argument For Appeal

by Steven R. Merican

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.”

March 10, 2009

Post-Trial Motion Necessary To Preserve Appeal Issue In Directed Verdict Case

by Steven R. Merican

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.

February 11, 2009

Objection To Expert Waived Where “Speculation” Argument Not Asserted During Testimony

by Steven R. Merican

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:

February 7, 2009

Car Dealership Waives Fraud Argument Because Of Insufficient Record

by Steven R. Merican

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.

December 10, 2008

Bank’s Petition To Vacate Default Judgment Untimely But Court Hears Appeal Anyway

by Steven R. Merican

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.

October 31, 2008

Illinois Supreme Court Considers Limitations Defense Raised For First Time On Appeal

by Steven R. Merican

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.

October 5, 2008

Post Trial Motion Not Necessary To Preserve Issue Of Expert Testimony For Appeal In Jury Case

by Steven R. Merican

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.