Professional Group Travel, Ltd. v. Professional Seminar Consultants, Inc.

SUPPLEMENTAL OPINION ON REHEARING

JUSTICE LINDBERG

delivered the opinion of the court:

Following our opinion in this case, plaintiffs filed a petition for rehearing which this court allowed. Defendants filed an answer to the petition, and plaintiffs have filed their reply. Plaintiffs argue that this court should remand this cause to permit them to take certain discovery, to amend their complaint, and to establish other bases for personal jurisdiction. After considering the arguments of the parties, we agree with defendants that plaintiffs have waived their arguments in support of a remand by failing to make them in their appellate briefs.

In their notice of cross-appeal, defendants requested that “this action be dismissed for lack of personal jurisdiction,” and in their initial brief filed on cross-appeal, defendants clearly relied upon the Weisberg affidavit in asserting the absence of personal jurisdiction. Despite this notice which apprised plaintiffs that the questions of personal jurisdiction and the adequacy of plaintiffs’ showing on this issue would be in dispute on appeal, plaintiffs maintained as their sole argument in their cross-appellees’ reply brief that “the evidence in the record on appeal demonstrates that Illinois courts have personal jurisdiction over defendants.” Because plaintiffs now argue for the first time to this court in their petition for rehearing that they should be given an additional opportunity to present evidence designed to refute Weisberg’s affidavit, we conclude they have waived this argument. Village of Mundelein v. Taylor (1985), 130 Ill. App. 3d 819, 825, 474 N.E.2d 843, 847. Accord, People v. Mallett (1970), 45 Ill. 2d 388, 397-98; Chicago Park District v. Kenroy, Inc. (1978), 58 Ill. App. 3d 879, 888-89, 374 N.E.2d 670, 677, aff’d in part, rev’d in part (1980), 78 Ill. 2d 555; Sobina v. Busby (1965), 62 Ill. App. 2d 1, 25-26, 210 N.E.2d 769, 781.

Plaintiffs next maintain that this case should be remanded to allow plaintiffs an opportunity to amend their complaint “to more specifically allege that defendants, through their agent De Almeida committed tortious acts by sending to and publishing a defamatory letter in Illinois.” Although defendants argued in their brief filed on cross-appeal that plaintiffs’ complaint as drafted was inadequate to establish personal jurisdiction, plaintiffs, in their cross-appellees’ brief, never argued that they ought to be allowed to amend their complaint, but instead asserted that their complaint, liberally construed, established personal jurisdiction. We are unpersuaded by plaintiffs’ argument that one sentence in their cross-appellees’ reply brief raised to this court the necessity for a remand to afford plaintiffs an opportunity to present additional facts on the relationship between defendants and De Almeida. Fairly read, that sentence was offered to support plaintiffs’ assertion that liberal construction of its complaint permitted the conclusion that personal jurisdiction was established over defendants. Therefore, we reject as waived plaintiffs’ argument, raised for the first time in their petition for rehearing, that this court should order a remand to allow plaintiffs to amend their complaint.

As their final argument, plaintiffs maintain this cause should be remanded to permit the trial court to consider whether other bases for personal jurisdiction exist. As with their two prior arguments, plaintiffs were put on notice that defendants were challenging plaintiffs’ basis for asserting personal jurisdiction. Nonetheless, plaintiffs in their cross-appellees’ brief did not identify other grounds for personal jurisdiction or even assert that other grounds existed, but rather contended that the ground raised by their complaint and considered by the trial court did, in fact, establish personal jurisdiction. Now, in their petition for rehearing, plaintiffs assert they should be allowed to demonstrate the existence of bases for jurisdiction other than that raised by plaintiffs at trial and argued on appeal. Because this argument is substantively different from that made to this court in their cross-appellees’ brief, we conclude the argument has been waived. (See Village of Mundelein v. Taylor (1985), 130 Ill. App. 3d 819, 825, 474 N.E.2d 843, 847.) We adhere to our original opinion in this cause.

REINHARD and UNVERZAGT, JJ., concur.