Anna Wiggen sold a painting to Brian and Kayla Roughton. At the time, Anna was married to Patricia Wiggens’s brother. After Anna and Patricia’s brother divorced, Patricia claimed (1) she was the owner of the painting, and (2) the painting was sold without her consent. Patricia demanded return of the painting, but the Roughtons refused to give it back. So Patricia, who lived in Illinois, sued the Roughtons, who lived in Texas, in an Illinois court.
The Roughtons asked the trial court to dismiss them from the lawsuit because, they claimed, they were not subject to personal jurisdiction by the Illinois court. The trial court first denied the Roughtons’s request to dismiss.
The Roughtons then asked the court to reconsider. They attached Anna’s affidavit to their request for reconsideration, which indicated the Roughtons had limited contacts with Illinois. The trial court ruled in favor of the Roughtons on the reconsideration try and dismissed them from the case.
Patricia appealed. She argued that Anna’s affidavit should not be considered by the appellate court because the affidavit could have been presented in the Roughtons’s original request for dismissal.
But the Second District Illinois Appellate Court disagreed. The appellate court ruled that Patricia forfeited the argument because she raised it only in her reply brief, not her original appellate brief. Plus, Patricia did not submit a transcript of the reconsideration hearing into the appellate record, so the appellate court assumed there was sufficient basis to accept Anna’s affidavit. This is how the appellate court explained it:
In her reply brief, Patricia contends for the first time that we should not consider Anna’s affidavit, because there was no showing that it could not have been provided as an exhibit with the Roughtons’ original motion. However, points not argued in the appellant’s brief are forfeited.
Here, without a transcript of the hearing on the motion to reconsider or a substitute, we assume that Patricia did not object, that the affidavit was accepted at the hearing as newly discovered evidence, or that the trial court otherwise had ample grounds to support its determination about the affidavit. This is particularly appropriate when the motion for reconsideration was based in part on the court’s indications that it would be open to learning of additional facts that arose, and when new case law arose during the pendency of the proceedings. Accordingly, we consider Anna’s affidavit.
In the end, the appellate court ruled the Roughtons did not have the minimum contacts required for an Illinois court to exercise personal jurisdiction. Read the whole case, Wiggen v. Wiggen, 2011 IL App (2d) 10098, by clicking here.