Articles Posted in Waiver and Forfeiture

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in itself and that does not refer to or adopt by reference the prior pleadings, the earlier pleadings are effectively withdrawn and cease to be a part of the record for most purposes .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.”

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.

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:

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.

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.

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.