Appellate Law

Failure To File Written Opposition Not A Basis For Waiver

By Steven R. Merican

Parkway Bank and Trust filed a lawsuit to foreclose on a construction mortgage. Beta Electric, one of the defendants, counterclaimed and argued its mechanic?s lien had priority over Parkway?s mortgage.

Parkway asked the trial court for judgment on Beta?s counterclaim. Beta?s brief in opposition to the motion was late by one day, so the court struck it. The trial court then granted Parkway judgment on the pleadings on Beta?s counterclaim.

Beta appealed, but Parkway argued that Beta waived an objection to Parkway?s request for judgment. Parkway?s theory was that the waiver resulted from Beta?s failure to file a written objection.

The First District Illinois Appellate Court ruled there was no waiver. Beta?s opposition memorandum was stricken from the record, but that did not mean Beta did not preserve its objection to Parkway?s request for judgment. Here is how the court explained it: ?[I]t is not the case that Beta failed to object to Parkway's motion. Rather, it did object but its objection was stricken as untimely ? [W]e find Beta's failure to file a response within the time allowed for that response served to waive its right to file that response, but not its objection to or right to contest the motion.?

Beta won the waiver argument, but lost the appeal. The appellate court affirmed Parkway?s judgment on the pleadings. Read the whole case, Parkway Bank and Trust v. Meseljevic, 1-09-3396 (12/7/10), by clicking here.

Full post as published by Illinois Appellate Lawyer Blog on March 05, 2011 (boomark / email).