Appellate Law

Elgin?s Estoppel Defense To Property Owner?s Disconnection Case Not Forfeited

By Steven R. Merican

Falcon Funding owned land in Elgin, Illinois. Elgin agreed to annex the land in 1991. The property never was developed. In 2005, Falcon asked the trial court to order the property disconnected from Elgin.

Falcon and Elgin both asked the trial court for a summary judgment. The court denied Elgin?s request, and gave Falcon summary judgment, disconnecting the property.

Elgin appealed, and raised equitable estoppel [reliance by one party ? here, the city ? on the word or conduct of another so that the party (city) changes his position and subsequently suffers harm] as an affirmative defense to Falcon?s request for disconnection. Falcon argued that Elgin forfeited its equitable estoppel argument because the city had not specifically stated it as an affirmative defense to the complaint. Elgin asserted the argument was not forfeited because it was raised as a defense to Falcon?s summary judgment request.

The Second District Illinois Appellate Court ruled there was no forfeiture, even though Elgin had not stated it in its response to Falcon?s complaint. The court stated that ?? a challenge to the sufficiency of the pleading of any affirmative defenses can be raised in a response to a summary judgment motion. There is also authority suggesting that a defective pleading may be brought to the trial court's attention for the first time in a posttrial motion and that the assertion of such error is not forfeited on appeal.?

Elgin won the forfeiture battle, but lost the substance of the appeal. In the end, the appellate court affirmed the disconnection because Elgin did not prove all of the elements of equitable estoppel. Read the whole opinion, Falcon Funding v. City of Elgin, No. 2-09-0367 (3/11/10), by clicking here.

Full post as published by Illinois Appellate Lawyer Blog on June 13, 2010 (boomark / email).