Appellate Law

Illinois Supreme Court Considers Limitations Defense Raised For First Time On Appeal

By Steven R. Merican

Travelers Casualty & Surety sued the Bowmans for payment on performance bonds. The Bowmans raised statute of limitations defenses, but one of the statutes was not raised in the trial court. Nonetheless, that defense was fully briefed and argued to the appellate court. When the case reached the Illinois Supreme Court, Travelers argued that the Bowmans? waived the defense of that statute because they hadn?t argued it to the trial court.

The Illinois Supreme Court considered the Bowmans? defense anyway. The supreme court was persuaded because the argument was fully briefed and argued twice, and the record contained all of the facts necessary for a decision. Here?s what the supreme court said:

We note that defendants did not raise this argument in the trial court. Defendants raised the statute of limitations in section 13-204 for the first time in the appellate court ? [A]lthough a defense not raised in the trial court may not be raised for the first time on appeal by an appellant, "the appellee may urge any point in support of the judgment on appeal, even though not directly ruled on by the trial court, so long as the factual basis for such point was before the trial court." Here, defendants were the appellees, urging the appellate court to affirm the circuit court's decision. Defendants argued section 13-204 as an alternate basis for affirming the circuit court's dismissal of plaintiff's cause of action as untimely.

If applicable, section 13-204 would support the circuit court's dismissal of plaintiff's cause of action. While the trial court in this case did not rule on the applicability of section 13-204, the issue was fully briefed, argued, and decided in the appellate court and also briefed and argued before this court. The Bowmans raised a statute of limitations defense and the complaint filing date is in the record. The Bowmans contend that it was not filed within two years of when Travelers' cause of action accrued. Thus, all the facts necessary for a legal determination of whether section 13-204 is the proper statute of limitations applicable to this cause of action are present in the record.

Read the whole case, Travelers Casualty & Surety Company v. Bowman, No. 103759 (7/24/08), by clicking here.

Full post as published by Illinois Appellate Lawyer Blog on October 31, 2008 (boomark / email).