Articles Posted in Waiver and Forfeiture

David Loman owned a race horse that he brought to the College of Venterinary Medicine at the University of Illinois for treatment. David Freeman performed surgery on the horse. But Loman said the surgery left the horse unable to race. So Loman sued Freeman.

Loman’s claims for negligence and conversion were dismissed by the trial court. The appellate court reversed and reinstated Loman’s complaint. The Illinois Supreme Court affirmed the appellate court.

Freeman asserted that the Moorman Doctrine (economic damages — i.e., contract damages — not available in a tort action) blocked Loman’s negligence case. But first there was the question of whether Freeman forfeited the Moorman defense in the Illinois Supreme Court.

Efrain Torres injured his shoulder when he slipped on property owned by Midwest Development Company. Torres sued Midwest, claiming the company caused an unnatural accumulation of ice on the property. Michael Eiben, Torres’s roofing expert, was barred from testifying at trial, because, the trial court ruled, Eiben had “no rational basis for his opinions.”

After a jury verdict in favor of Midwest, Torres appealed. He argued that Eiben should have been allowed to tell the jury his opinions about ice damming and proper roof construction. That raised the question of whether plaintiff’s failure to make an offer of proof to the trial judge resulted in waiver of the argument that Eiben should have been permitted to testify.

The First District Illinois Appellate Court ruled there was no waiver. The court acknowledged that “when a trial court refuses evidence, no appealable issue remains unless a formal offer of proof is made.”

Unhappy with the treatment she received from her dentist, Jill Caywood sued him for malpractice. The dentist moved to dismiss Jill’s complaint for lack of compliance with the statute of limitations. The trial court granted the dentist’s motion, and Jill moved for reconsideration. In her reconsideration motion, Jill argued for the first time “that she suffered from mental incapacitation and was unable to appreciate that she had been injured by defendants’ wrongful treatment.” The trial court disregarded the argument and denied the motion.

On appeal, Jill claimed it was reversible error for the trial court not to address the argument. The First District Illinois Appellate Court affirmed the dismissal for two reasons: (1) the evidence of Jill’s incapacitation existed, and should have been raised, in defense to the motion to dismiss; (2) “arguments raised for the first time in a motion for reconsideration in the circuit court are waived on appeal.”

Get the whole case, Caywood v. Gossett, No. 1-06-2458 (4/11/08), by clicking here.

This case involves a dispute over the sale of land. Wheeler-Dealer asked the court to reform or rescind of the deed. Defendant Roger Christ won after a bench trial. Wheeler-Dealer appealed the verdict.

One of Wheeler-Dealer’s arguments to the First District Illinois Appellate Court was that parol evidence improperly was admitted at the trial. Wheeler-Dealer claimed that it objected to “the admission of any oral statements going to the intent of the parties at the time that they entered into the real estate contract and that it again objected to such evidence in its brief filed with the circuit court prior to the commencement of trial.”

Not good enough, according to the appellate court. The court ruled that the pretrial objections did not save the issue for appeal. “Timeliness requires that an objection be made when the evidence is offered at trial … Although a party may have objected to the evidence at some pre-trial stage in the proceedings or unsuccessfully moved to bar the evidence prior to trial, it must still renew its objection at the time that the evidence is offered … Failure to renew the objection when the evidence is offered at trial results in a waiver of any challenge to the circuit court’s consideration of that evidence.”

This automobile accident case resulted in one defendant (COSCO) suing another (Frontline) for express indemnity. One of the issues was the scope of indemnity agreement. But Frontline, which took the appeal to the Illinois Supreme Court, did not raise that question in its petition to the Supreme Court for leave to appeal. The Illinois Supreme Court ruled that the failure to raise it in the petition for leave to appeal resulted in forfeiture of the issue.

Courts and practitioners routinely confuse “forfeiture” and “waiver.” In this opinion, the Illinois Supreme Court distinguished the terms. “As this court has noted, there is a difference between waiver and forfeiture. While waiver is the voluntary relinquishment of a known right, forfeiture is the failure to timely comply with procedural requirements … These characterizations apply equally to criminal and civil matters … [A] party’s failure to raise an issue in its petition for leave to appeal may equally be deemed a forfeiture of that issue.”

Frontline argued the “scope” question in its brief, but that did not cure the forfeiture. Read the whole case, Buenz v. Frontline Transportation Co., No. 103562 (1/25/08), by clicking here.

Glen Howard had an argument with his roommate, Bethany Firmand. After Bethany brought two order of protection proceedings against Glen, he sued Bethany for malicious prosecution. A summary judgment was entered in Bethany’s favor because she “had probable cause as a matter of law to initiate the underlying civil proceedings against Howard.”

The First District Illinois Appellate Court disagreed with that conclusion, but affirmed the summary judgment because Glen could not show that he suffered “special injury,” an element of a cause of action for malicious prosecution.

Even though the trial court did not rule on the “special injury” question, it was proper for the appellate court to consider. “Although the trial court did not rule on this argument, Firmand did raise special injury in her motion for summary judgment. The issue is properly before the [appellate] court … [A]ppellee may advance any argument in support of the judgment on appeal regardless of whether the trial court ruled on that argument, so long as the factual basis for the argument was before the trial court.”