Appellate Law

Veterinarian Forfeits Moorman Defense In Illinois Supreme Court

By Steven R. Merican

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.

Freeman raised the Moorman Doctrine in his petition for leave to appeal, but he did not sufficiently brief the question. Here?s what the supreme court said:

Defendant's petition for leave to appeal lists "Moorman Doctrine" as one of the points relied upon for reversal. However, the doctrine is only briefly referred to in the remainder of the petition ? He concludes that he "firmly believes that the Moorman Doctrine applies to this set of facts ? In defendant's brief to this court, he did not provide argument in support of these conclusory remarks ? Counsel for defendant made no mention of Moorman at oral argument.

In throwing out Freeman?s Moorman Doctrine defense, the court stated it was ?entitled to have issues clearly defined with relevant authority cited.?

We first reported on this case after the appellate court ruled in December 2006. The whole opinion, Loman v. Freeman, No. 104289 (4/17/08), is available by clicking here. Be sure to read J. Freeman's strong and well-written dissent.

Full post as published by Illinois Appellate Lawyer Blog on September 08, 2008 (boomark / email).