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Employer?s Failure To Sufficiently Raise Position In Trial Court Results Waiver On Appeal

By Steven R. Merican

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.

The rule that failure to raise a claim for recovery in the trial court results in waiver of the position on appeal is well known. This opinion is notable because it digs a little deeper than most and provides the underlying policy for the waiver rule.

Underlying the doctrine of waiver is a desire to "to preserve finite judicial resources by creating an incentive for litigants to bring to trial courts' attention alleged errors, thereby giving trial courts an opportunity to correct their mistakes." ? Another key purpose of the waiver doctrine is to prevent unfair prejudice to an opposing party: If one party neglects to raise an argument at the trial level, the adversary may be forestalled from presenting evidence in rebuttal, and thus it is proper to bar the first party from springing the argument at the appellate level where the presentation of evidence is no longer possible.

Cambridge did mention the nonsolicitation clause in the complaint. But that passing reference was not enough to avoid waiver. The court ruled that Cambridge did not present the nonsolicitation clause as a separate ground for relief, as it argued in the appellate court.

Read the whole case, Cambridge Engineering, Inc. v. Mercury Partners 90 BI, Inc., No. 1-06-0789 (12/7/07).

Full post as published by Illinois Appellate Lawyer Blog on February 24, 2008 (boomark / email).