Miller, Timothy J. v. Willow Creek Homes , 249 F.3d 629 ( 2001 )

In the
United States Court of Appeals
For the Seventh Circuit
Nos. 00-2496 & 00-3141
TIMOTHY J. MILLER and LESA K. MILLER,
individually and as trustees of the
Timothy Joseph Miller Living Trust,
dated August 11, 1994, and any subsequent
amendments thereto,
Plaintiffs-Appellants,
v.
WILLOW CREEK HOMES, INC., an Illinois
corporation, DAVID F. BAKES, an individual,
CHERI A. BAKES, an individual, and
SHOWCASE HOMES, an Indiana corporation,
Defendants-Appellees.
Appeals from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 98 C 2009--Joan B. Gottschall, Judge.
Argued February 27, 2001--Decided May 1, 2001
Before COFFEY, RIPPLE, and EVANS, Circuit
Judges.
EVANS, Circuit Judge. This case, which
involves the sale of a mobile home
alleged to be defective, was born in
state court in 1995 when the purchasers,
whom we will call the Millers, sued
several individuals and entities
allegedly responsible for the substandard
home. After 3 years of litigation in
state court and six amendments to their
complaint, the Millers filed a seventh
amended complaint which added, for the
first time, two federal claims under the
Magnuson-Moss Warranty Act, a remedial
statute designed to protect the
purchasers of consumer goods from
deceptive warranty practices. See Skelton
v. General Motors Corp., 660 F.2d 311(7th Cir. 1981). With the insertion of
the federal claims, the case was removed
to the United States District Court for
the Northern District of Illinois and
assigned to Judge Joan B. Gottschall.
Later, four of the six claims in the com
plaint--all except the federal Magnuson-
Moss claims--were dismissed, and the
dismissal of those claims is not
challenged on this appeal.
Next, Showcase Homes, the only remaining
defendant in the suit, filed a motion for
summary judgment on the Magnuson-Moss
claims. The basis for the motion was that
Magnuson-Moss applied to consumer goods,
not something like a mobile home, which
is real property. Briefing on the summary
judgment motion was completed in August
of 1999. But the Millers then presented a
motion for leave to file an eighth
amended complaint, and they asked for
more time to conduct discovery. Judge
Gottschall granted the request for more
time, and in December 1999 the Millers
filed another motion for leave to file an
amended complaint, attaching to it a
proposed eighth amended complaint.
In March of 2000 Judge Gottschall
decided the pending summary judgment
motion in favor of Showcase, determining
in a comprehensive, written memorandum
opinion that the Magnuson-Moss Act did
not apply to the transaction because the
mobile home was real property, not a
consumer product. The judge’s decision
eliminated the remaining claims from the
case, and then a series of events took
place which allow us to resolve this
appeal on a very narrow ground. Later
that same month, Showcase filed a motion
questioning the court’s subject matter
jurisdiction (we assume to consider the
motion to again file a new amended
complaint), and in April the Millers
filed a motion for reconsideration of the
court’s grant of summary judgment on the
dismissal of the federal claims.
During the hearing on the motion for
reconsideration, the Millers changed
their position. And that’s the key event
as we see it on this appeal. The Millers’
attorney announced that he intended to
abandon the Magnuson-Moss claims both in
the proposed eighth amended complaint and
on appeal. He requested leave to withdraw
the motion for reconsideration and asked
that the Magnuson-Moss claims be stricken
from the proposed amended complaint. We
quote counsel’s statements on this point:
Attorney for the Millers: After we
. . . filed that motion [for
reconsideration], we have changed our
mind, and we would like to have leave to
withdraw that motion. In a conference
with [my] client yesterday it was decided
that we are not going to pursue the
Magnuson Moss actions any further, so
there’s no need to reconsider it. We’re
not going to be appealing that issue
either.
The Court: Okay. Because there was about
to be a ruling issued on it.
Attorney for the Millers: I’m
withdrawing it. One additional
housekeeping matter that flows from that
is there’s currently a motion on file for
leave to file an amended complaint which
contains a proposed count 3. The proposed
count 3 is based on a violation of the
Magnuson Moss Act. In light of the fact
that the Court has ruled that Magnuson
Moss doesn’t apply, we are withdrawing
that proposed count 3 in the proposed
amended complaint also.
A month later, in May 2000, the court
denied the Millers’ motion to file an
eighth amended complaint and entered a
final judgment dismissing all claims
against Showcase. The Millers, now
changing course once again, appeal the
dismissal of the Magnuson-Moss claims.
A waiver, which can be either expressed
or implied, is an intentional
relinquishment of a known right. See
Havoco of America, Ltd. v. Sumitomo Corp.
of America, 971 F.2d 1332 (7th Cir.
1992). Here, the requirements of waiver
are easily satisfied. In open court, the
Millers’ attorney announced that he had
conferred with the Millers and that they
decided not to proceed with the Magnuson-
Moss claims. He then took three
affirmative steps, showing unambiguously
that the Millers voluntarily wished to
forego an appeal. He withdrew the motion
for reconsideration, notified the court
that he would not appeal the summary
judgment order, and requested that the
Magnuson-Moss claims be stricken from the
proposed eighth amended complaint.
The Millers would have us ignore the
clear statements of their intent
announced by their attorney in open
court. But we cannot do so without
undermining the fundamental principle
that attorneys speak for their clients in
court, and once a position is announced,
backpedaling on appeal cannot be allowed.
See Anderson v. County of Montgomery, 111
F.3d 494, 503 (7th Cir. 1997) ("It is not
up to us to protect attorneys from
promises they later don’t think they can
keep."). Therefore, we hold the Millers
to their attorney’s word and find a valid
waiver of the right to appeal the
dismissal of the two Magnuson-Moss
claims.
Alternatively, the Millers argue that
during the April hearing, the right to
appeal was not ripe and could not be
waived because the final judgment on the
summary judgment decision had not yet
been entered. So, they say, there was
nothing to waive when counsel’s
statements were made. This is a shallow
argument. In March, the district judge
issued a comprehensive summary judgment
order disposing of all remaining claims
on their merits. The entry of a judgment
based on that decision was only a
formality. In March, the Millers knew
they lost and why. With all issues having
been resolved, their decision in April to
give up on the Magnuson-Moss claims was
one that Showcase and the court could
take to the bank.
And by the way, although we need not
reach the merits of this dispute, we feel
safe saying that neither the Millers nor
their counsel made an unreasonable
decision to give up trying to resurrect
the Magnuson-Moss claims, for it seems
doubtful at best that a court would find
the mobile home in question to be a
consumer product covered by the Act.
AFFIRMED.