Appellate Law

Failure To Cite To Record Ruins Invited Error and Judicial Estoppel Defenses To Appeal

By Steven R. Merican

Gloria Sakellariadis had an automobile accident with Steven Campbell. Three months later Gloria was in another accident, that time with Bruce Walters. Gloria injured her neck, shoulders, and back in both accidents. There was one trial against both Campbell and Walters. While the jury was deliberating, Gloria settled with Campbell for $150,000. The jury returned a verdict for Gloria of $518,000, and found Campbell and Walters each liable for 50 percent.

The court awarded Gloria $259,000 from Walters ? his 50 percent of the full $518,000 award. Gloria thought Campbell and Walters were jointly and severally liable for the whole verdict, so she appealed and asked for an award of $368,000 from Walters ($518,000 minus the $150,000 settlement).

Certain of the medical providers held liens against Gloria?s judgment. There was a hearing in the trial court to adjudicate those liens. Walters argued that Gloria?s appeal was barred because she ?represented to [the] lienholders that she would accept the judgment.? Walters argued that the doctrines of invited error (?a party cannot complain of error which that party induced the court to make or to which that party consented??), and judicial estoppel (?a party who assumes a particular position in a legal proceeding is estopped from assuming a contrary position in a subsequent legal proceeding?) doomed Gloria?s appeal.

But the First District Illinois Appellate Court disagreed. The appellate court ruled that Walters had not supported his factual assertion about Gloria?s representation to the lienholders with citation to the record on appeal. Here?s what the appellate court stated:

Walters has not provided in his brief specific citations to the record showing plaintiffs affirmative representation in the lien proceedings that she would not challenge the judgment on appeal. To the contrary, the record contains plaintiffs memorandum of law dated more than three months before the adjudication of the liens, arguing that the judgment should have been calculated based on joint and several liability. The trial court was on notice when the liens were adjudicated that plaintiff intended to challenge the judgment. We do not believe the doctrine of invited error, waiver or estoppel bar this appeal. Plaintiff did not affirmatively take a position in the lien proceedings that conflicts with her position on appeal.

In the end, the appellate court affirmed and ruled that joint and several liability did not apply to Gloria?s judgment. Read the whole case, Sakellariadis v. Campbell, No. 1-07-2845 (5/29/09), by clicking here.

Full post as published by Illinois Appellate Lawyer Blog on August 09, 2009 (boomark / email).