Partner, Quarles & Brady LLP
The appellate court has again warned litigants and practitioners that when filing an amended complaint after the dismissal of a claim, in order to preserve appellate review of the claim’s dismissal, the claim must be, at a minimum, referred to in all subsequent amended complaints. In Rubin and Norris, LLC v. Panzarella, 2016 IL App (1st) 141315, ¶¶ 27-33, the First District Appellate Court held that plaintiff, Rubin and Norris, LLC, forfeited review of the dismissal of its breach of contract count because its amended complaint did not refer to or adopt the dismissed count. In doing so, the court, citing the Second District’s holding in Gaylor v. Campion, Curran, Rausch, Gummerson & Dunlop, P.C., 2012 IL App (2d) 110718, described three methods for preserving appellate review of a dismissed claim in a multi-count complaint.
First, the plaintiff may stand on the dismissed counts, take a voluntary dismissal of the remaining counts, and argue the matter on appeal. Rubin and Norris, LLC, 2016 IL App (1st) 141315, ¶ 30. Second, the plaintiff may file an amended pleading that re-alleges, incorporates by reference, or refers to the dismissed counts. Id. As noted in Rubin and Norris, LLC, “[a] simple paragraph or footnote in the amended pleadings notifying defendants and the court that plaintiff is preserving the dismissed portions of the former complaints for appeal is sufficient.” Id. (quoting Tabora v. Gottlieb Memorial Hospital, 279 Ill. App. 3d 108, 114 (1996)). Third, the plaintiff may perfect an appeal from the dismissal order prior to filing an amended pleading that does not refer to or adopt the dismissed counts. Id.
In Rubin and Norris, LLC, the trial court dismissed plaintiff’s breach of contract claim in its original complaint with prejudice (id. ¶ 17), and plaintiff filed an amended complaint asserting only a quantum meruit claim and did not refer to or adopt the breach of contract claim. Id. ¶ 33. By doing so, the appellate court held plaintiff had “abandoned and withdrawn” the breach of contract claim, eliminating it from consideration on appeal. Id.
The appellate court followed the Foxcroft forfeiture rule: “[w]here an amendment is complete in itself and does not refer to or adopt the prior pleading, the earlier pleading ceases to be a part of the record for most purposes, being in effect abandoned and withdrawn.” Foxcroft Townhome Owners Ass’n v. Hoffman Rosner Corp., 96 Ill. 2d 150, 153-54 (1983). In addition to promoting the efficient and orderly administration of justice, the court explained, the forfeiture rule also preserves fairness for defendants and aids the court. Rubin and Norris, LLC, 2016 IL App (1st) 141315, ¶ 31.
When a plaintiff files an amended complaint that does not reference claims from an earlier complaint, a defendant can expect that those allegations are no longer at issue. And the appellate court should not have to guess whether or not claims are preserved for appeal. As the court noted, “[h]ad [plaintiff] intended to abandon the breach of contract claim that was dismissed with prejudice from the original complaint, the record in this case might very well look exactly the same.” Id. ¶ 33.
The court’s reminder is an important one. Something as small as a simple paragraph or footnote in the plaintiff’s amended complaint would have preserved the dismissal of the breach of contract count for appeal.
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