stating that the court “perceive[s] no undue burden in requiring a party to incorporate in its final pleading all allegations which it desires to preserve for trial or review” (emphasis added)
How later courts described this case
- stating that the court “perceive[s] no undue burden in requiring a party to incorporate in its final pleading all allegations which it desires to preserve for trial or review” (emphasis added)
- stating that without the Fox-croft rule trial courts would be forced to "speculate as to which legal theories or claims a party intends to advance during trial”
- “For the above-related reasons we adhere to this rule, and conclude that allegations in former complaints, not incorporated in the final amended complaint, are deemed waived.” (Emphasis added.)
- “There is no allegation that the installation of defective siding resulted in physical injury, or damage to other property. Nor was the damage to the defective product itself due to a ‘sudden and dangerous occurrence best served by the policy of tort law’ ”
Written by the judges who cited it.
The opinion
JUSTICE SIMON, concurring in part and dissenting in part:
I concur in the majority’s treatment of count III of the amended complaint, but I dissent from the majority’s decision that the plaintiffs waived any right to appeal the trial court’s dismissal of portions of the original complaint. The rules of waiver are based primarily on a theory of abandonment. As the majority notes, in many cases a party manifests an intention to abandon a claim by filing an amended pleading which makes no reference to a claim dismissed from an earlier pleading. (Bowman v. County of Lake (1963), 29 Ill. 2d 268, 272 .) But pleading over is not a waiver when the plaintiffs have manifested a clear intention to continue reliance on their initial claim. Field Surgical Associates, Ltd. v. Shadab (1978), 59 Ill. App. 3d 991, 994 .
After portions of the amended complaint were dismissed, the plaintiffs filed a motion to reconsider not only that order but the order striking portions of the original complaint as well. This motion, which expressly sought reinstatement of all counts of the original complaint and especially the implied-warranty-of-habitability claim by subsequent purchasers set out in count I and the fiduciary-duties claim set out in count III, was more than sufficient to preserve these issues for appeal. The filing of a new amended complaint relying on these theories would have been a senseless formality in view of the trial court’s recent dismissal of those counts in the original complaint. The motion for reconsideration sufficiently evidenced the plaintiffs’ intention to maintain these claims, and I would allow them to assert these claims on appeal. When plaintiffs have manifested a clear intent to retain a valid claim, we should not allow procedural technicalities to bar or delay their assertion of that claim.
Because I believe that the plaintiffs did not waive their objections to the trial court’s dismissal of count III and portions of count I in the original complaint, I must reach the merits of those objections. For the reasons stated in the appellate court’s opinion ( 105 Ill. App. 3d 951 ), I would affirm the trial court’s dismissal of the breach-of-fiduciary-duties claim contained in count III. However, the trial court erroneously dismissed the warranty-of-habitability claim by subsequent purchasers in count I. Under our decision in Redarowicz v. Ohlendorf (1982), 92 Ill. 2d 171, 183-85 , the subsequent purchasers were entitled to bring this claim. Therefore, I would reverse the judgments of the trial court and the appellate court on this count and remand for trial.