Failure To Proffer Proposed Amended Pleading Forfeits Right To Appeal

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.

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