Articles Posted in Waiver and Forfeiture

In a lawsuit in Missouri, Cambridge Engineering got an injunction against a former employee from engaging in sales-related activity for his new employer, Mercury Partners. Cambridge then sued Mercury in Illinois for tortious interference with contract.

The trial court (1) entered judgment notwithstanding the verdict against Mercury and (2) directed a verdict in favor of Mercury on Cambridge’s claim for punitive damages.

Cambridge appealed. One of the issues was whether a nonsolicitation clause in Cambridge’s contract with its former employee provided a ground for recovery. The First District Illinois Court of Appeals ruled that Cambridge waived the argument because it was not argued in the trial court.

Plaintiff was arrested for shoplifting at a Wal-Mart. After his arrest by the Forest Park Police, he committed suicide in his jail cell. His estate sued the police department and one of the police officers, as well as Wal-Mart and a number of its employees.

The police department and the officer were granted summary judgment. The estate then filed an amended complaint that did not include counts against the department or the officer. More motions ensued, resulting in summary judgment for the remaining defendants.

The estate then appealed the summary judgment granted to the police department and the officer. They in turn moved to dismiss the appeal, arguing that the estate forfeited the right to appeal because the amended complaint did not include them.

James Gallagher injured his back in a truck collision. James settled his workers’ compensation claim with his employer, Terminal. He also sued the driver of the other truck and that driver’s employer. After the lawsuit settled, Terminal attempted to enforce its workers’ compensation lien against the settlement proceeds. The trial court ruled that Terminal had waived its lien when it settled the comp claim with James.

Terminal appealed the trial court’s ruling. The court of appeals reversed the trial court, and held that Terminal had not waived the lien. James then appealed to the Illinois Supreme Court, which affirmed the appellate court.

As part of the worker’s comp settlement, James signed a resignation agreement. Terminal argued that James forfeited an argument that relied on the resignation agreement. James had not raised that argument either in the trial or appellate courts.

I wrote about this case, Bergman v. Kelsey, on October 15, 2007, and pointed out an inconsistency between the stated standard of review (de novo) and the court’s actual analysis (deferential review of a jury verdict). The case is instructive for another reason: reiterating the rule on how to preserve an order barring evidence for appellate review.

Katherine Bergman filed a medical malpractice case against the doctor and the hospital after her newborn son died from a streptococcus infection. Katherine got a verdict for more than $1.5 million. Defendants appealed, asking for a judgment notwithstanding the verdict or for a new trial.

One of the evidentiary issues on appeal bears repeating because so many trial lawyers overlook it: If your evidence is barred at trial, to preserve a prejudice argument on appeal, you must make an offer of proof.

This case involved a dispute between a buyer and a seller of a 3-flat building. The buyer claimed the seller knew about and hid structural defects in the building. He sued for breach of contract and fraud. After a bench trial, the buyer received a favorable judgment on the contract claim, and seller got a favorable ruling on the fraud claim.

The seller argued that Count I of the buyer’s Second Amended Complaint should have been dismissed for failure to state a cause of action. That count asked for damages for seller’s breach of good faith and fair dealing. But that is not a recognized cause of action in Illinois.

However, the seller did not move to dismiss that part of the buyer’s complaint in the trial court. He relied on a summary judgment motion, which was denied, as laying the foundation for appeal.

The State petitioned for a finding of parental unfitness because, it argued, (1) the mother’s repeated incarceration prevented her from performing her parental responsibilities and (2) the father failed to make reasonable progress toward reunification with the child.

After the trial court denied the State’s petition, the child’s guardian ad litem took an interlocutory appeal, claiming that the trial court’s ruling was against the manifest weight of the evidence. The First District Illinois Appellate Court reversed the order as to the mother, but affirmed as to the father.

After that decision by the appellate court, the trial court issued a new permanency order, which changed the child’s permanency goal from termination of parental rights to private guardianship. On a petition for rehearing, the mother argued that the changed permanency goal rendered the GAL’s appeal moot.

A bank claimed defendants wrongfully sold a portfolio of loans. The bank sued the defendants under several equity theories. The complaint and an amended complaint were dismissed. When the bank filed a second amended complaint, it did not reallege or incorporate the dismissed legal theories from the first two complaints.

The second amended complaint was dismissed with prejudice. The bank’s appeal sought review of the orders that dismissed the first two complaints. The appellate court ruled that the bank had waived appeal of all issues except those raised in the second amended complaint.

“A plaintiff desiring to preserve for appeal the previous dismissal of claims either must stand on the dismissed counts and challenge the ruling at the appellate level or reallege or incorporate the dismissed counts in subsequent complaints.” … A party who files an amended complaint waives any objection to the trial court’s ruling on the former complaint … Where an amended pleading is complete and does not refer to or adopt the prior complaint, the earlier complaint ceases to be a part of the record, being in effect abandoned and withdrawn … Once an amended pleading has been filed, allegations of error in dismissing a prior pleading are waived.…

Steve Townsend injured himself when he fell through a hole in the floor of a building he was painting. Much of the pretrial proceedings focused on Townsend’s employment status with the defendants and his worker’s compensation issues. The case was tried to a jury, which returned a verdict of more than $1.9 million to Townsend.

On appeal, defendants argued that testimony concerning suspension of Townsend’s worker’s compensation benefits was unduly prejudicial. The appellate court ruled that defendants waived the argument, even though defense counsel did object at trial to testimony about a conversation concerning the suspension of benefits.

However, the objection was made “only on the ground that defendants were not parties to the conversation. Moreover, defense counsel then expressly asked the court for a limiting instruction telling the jury that defendants were not bound by that conversation. Defendants’ specific objection to the admission of evidence waives their current argument … Further, because defense counsel asked for a limiting instruction, he cannot argue that the instruction was inadequate to cure the error.”

Scott Jackson was injured when his car was rear-ended by David Seib. A jury trial resulted in a verdict for Seib. Apparently the jury did not believe that this accident caused Jackson to suffer the injuries he claimed. Jackson appealed, but the Fifth District Illinois Appellate Court affirmed the defense verdict. The case is chock full of evidentiary and appellate questions, but we’ll focus on the lesson arising from Trooper Connor’s testimony.

The defense had Trooper Connor testify about the accident from his accident report. But on cross-examination, he admitted he had no independent recollection of the incident. The appellate court recognized the error in allowing the testimony.

However, Seib claimed — and the appellate court agreed — that plaintiff waived the argument for appeal by his failure to raise it in his post-trial motion. The appellate court reiterated the rule: “In order to properly preserve an issue for an appeal, a party must both make a contemporaneous objection and raise the issue in a posttrial motion … In addition, Supreme Court Rule 366(b)(2)(iii) provides, ‘A party may not urge as error on review of the ruling on the party’s post[ ]trial motion any point, ground, or relief not specified in the motion.’ 155 Ill.2d R. 366(b)(2)(iii). The failure to raise an issue in a posttrial motion constitutes a waiver of that issue on appeal.”