Articles Posted in Waiver and Forfeiture

This one falls into the category of “I guess they just wanted to.” It impresses the power of an appellate court to do as it pleases, and for no particular reason.

Jeffrey Hicks brought a class-action lawsuit against Airborne Express, claiming that Airborne did not deliver packages at guaranteed times. On appeal, Airborne claimed that Hicks’s contract claim was preempted by the Airline Deregulation Act. Hicks argued that Airborne waived the argument because it failed to raise the defense in the trial court.

The opinion does not state how Airborne defended the waiver argument. Nor does it provide a reason for overlooking it. After stating the rule that waiver limits the parties but not the jurisdiction of the court, the appellate court stated only, “We choose to address the issue.” No reason was provided.

In a procedurally complicated case running its way through the appellate court a second time, the Illinois First District Court of Appeals ruled that an insurer did not waive an argument that the first appellate ruling was palpably erroneous. After the first appeal and remand, the insurer did not argue to the trial court that the appellate ruling was erroneous. In the second appeal, plaintiff argued that the insurer’s silence was grounds for waiver.

The appellate court rejected that argument and ruled there was no waiver. The trial court was bound to follow the appellate court’s instructions on remand. An argument in the trial court that the appellate court’s ruling was erroneous would have been “futile.” See the whole opinion, which also is chock full of discussion about law of the case, Norris v. National Union Fire Insurance Co., No. 1-05-3132 (2006), by clicking here.

A third party drove a car through a wall at a Burger King and killed a customer. The customer’s estate sued Burger King. Burger King won a motion to dismiss in the trial court because, the court ruled, there was no legal duty to the customer. The customer’s estate appealed, and won a reversal in the court of appeals.

Burger King appealed the appellate court’s ruling. In the Illinois Supreme Court, Burger King argued the complaint failed to sufficiently allege proximate cause between its conduct and the customer’s death. That was the first time Burger King raised the insufficiency of proximate cause.

The Illinois Supreme Court ruled that Burger King waived the proximate cause argument. “…[D]efendants moved to dismiss plaintiff’s complaint in the circuit court solely on the basis that they owed no duty of care to the decedent. They did not argue proximate cause in their motion to dismiss, and the trial court’s ruling was limited to the issue of whether plaintiff adequately pleaded the existence of a duty. Therefore, the issue of proximate cause is not properly presented by the record in this case.”

In another grandparent visitation case, the Illinois Second District ruled that a due process argument was not waived even though it had not been raised in the trial court. The trial court ordered the parents not to talk to their daughter about the case. The parents argued that the order violated their due process rights to raise and care for their daughter as they see fit.

The appellate court ruled the argument was not waived. “… [D]efendants failed to make any argument before the trial court that the order prohibiting them from telling their daughter the outcome of the case violated their fourteenth amendment rights. However, the application of the forfeiture rule is less rigid where the basis of the objection is the trial court’s own conduct.”

Take a look at Felzak v. Hruby, 855 N.E.2d 202, 2-05-0848 (2006).

An Illinois First District opinion recently ruled that citation to just one case did not prevent waiver of an argument of unjust enrichment. The court stated there was a failure to discuss the relevancy of the case. The failure to cite relevant authority was a violation of Illinois SCR 341, and the argument therefore was waived. The whole case is here, Fortech LLC v. R.W. Duntemann Co., 852 N.E.2d 541, No. 1-05-1526 (2006).

A legal malpractice action spawned a dispute over whether a law firm waived crucial arguments concerning due process and damages. The firm did not include those points in its petition for leave to appeal. The Illinois Supreme Court has already ruled that failure to raise an issue in the PLA may be deemed a waiver of that issue. (Look at Central Illinois Light Co. v. Home Ins. Co., 213 Ill. 2d 141, 152, No. 96978 (2004). So the client claiming malpractice moved to dismiss the law firm’s appeal of those questions.

But in this appeal, the client filed a separate PLA. The court resorted to Illinois SCR 318, which allows an appellee to “seek and obtain any relief warranted by the record on appeal without having filed a separate petition …” The Illinois Supreme Court denied the motion to dismiss and said the law firm could rest on Rule 318 to raise the issues it did not include in its own PLA. See the whole case here, Tri-G, Inc. v. Burke, Bosselman & Weaver, 222 Ill. 2d 218, Nos. 99584, 99595 (2006).

(Caesura – This is the case that ruled a legal malpractice plaintiff, in its lawsuit against the law firm, cannot obtain punitive damages that may have been available in the underlying case.)