THIRD DIVISION

January 22, 2003

JUSTICE WOLFSON delivered the opinion of the court:

On October 9, 2001, Lucyna Zawadzka filed a sexualmisconduct lawsuit against Father Walter Strus, The CatholicBishop of Chicago, and Five Holy Martyrs Catholic Church, amongothers. Part of her claims against The Catholic Bishop and FiveHoly Martyrs was based on the doctrine of respondeat superior.

On April 26, 2002, the trial court dismissed with prejudiceall counts against The Catholic Bishop and Five Holy Martyrs thatwere based on the doctrine of respondeat superior. On May 2,2002, Zawadzka filed an amended complaint that contained norespondeat superior claims against The Catholic Bishop or FiveHoly Martyrs. No mention was made in the amended complaint ofthe dismissed claims or an intent to appeal. On May 23, 2002,Zawadzka filed a notice of appeal.

On appeal, Zawadzka contends the trial court erred indismissing the claims based on respondeat superior. We do notreach the merits of her appeal because Zawadzka waived our reviewof this issue.⁽¹⁾

BACKGROUND

According to Zawadzka's original complaint filed on October9, 2001, The Catholic Bishop owned and operated a Catholic parishcommonly known as Five Holy Martyrs. The Catholic Bishop alsoemployed Father Walter Strus as the parish priest assigned toFive Holy Martyrs.

Sometime before October 15, 1999, Father Strus convincedZawadzka to move from her family home in Poland to the UnitedStates. He promised to sponsor her and assist her in findinghousing and employment and obtaining permanent residence in theUnited States. Father Strus arranged for Zawadzka's housing andemployment upon her arrival.

When Zawadzka arrived in the United States, she became amember of Five Holy Martyrs. She had contact with Father Strusas a parishioner of Five Holy Martyrs. She would seek his adviceand counsel regarding problems or concerns. Father Strus wasaware he was Zawadzka's only contact in the United States.

On October 15, 1999, Father Strus visited Zawadzka at herhome and forced unwanted sexual intercourse on Zawadzka. Zawadzka became pregnant. When she told Father Strus about thepregnancy, he said he would arrange for an adoption throughCatholic Charities. He told her to keep the pregnancy secret foras long as possible, and keep secret that he was the father ofthe child. Father Strus threatened to have Zawadzka deported ifshe refused to cooperate.

When her pregnancy became apparent, Zawadzka was unable tocontinue her employment. Father Strus then provided Zawadzkawith living arrangements and payments for living expenses.

Zawadzka provided false information regarding the father ofthe child to Catholic Charities at Father Strus' demand. FatherStrus provided the signature of the "father" on the adoptionapplication.

In July 2000, when the child was born, Zawadzka decided notto go through with the adoption. Around October 2000, she soughtassistance from the archdiocese and informed it of her positionand Father Strus' role.

When Father Strus was confronted by his superiors about theallegations, he denied paternity and suggested Zawadzka wasromantically involved with another priest at Five Holy Martyrs.

In late October 2000, Father Strus submitted to DNA testing. The results confirmed that Father Strus is the father of thechild.

Zawadzka's complaint contained counts alleging negligence,intentional infliction of emotional distress, battery, invasionof privacy/false light, defamation per se, and defamation perquod. All counts appeared to allege Chicago Bishop and Five HolyMartyrs were vicariously liable under the doctrine of respondeatsuperior. Zawadzka also alleged The Catholic Bishop and FiveHoly Martyrs were directly negligent.

On November 20, 2001, The Catholic Bishop and Five HolyMartyrs moved to dismiss Zawadzka's claims against them pursuantto section 2-615 of the Code of Civil Procedure. 735 ILCS 5/2-615 (West 2000).

On April 26, 2002, Zawadzka's claim of direct negligenceagainst The Catholic Bishop and Five Holy Martyrs was strickenwith leave to amend. Her claims of vicarious liability based onthe respondeat superior were dismissed with prejudice. The courtalso found that under Supreme Court Rule 304(a) there was "nojust reason for delay of enforcement or appeal" from thedismissal of the respondeat superior claims. See 155 Ill. 2d R.304(a).

On May 2, 2002, Zawadzka filed an amended complaint thatalleged direct negligence against The Catholic Bishop and FiveHoly Martyrs, but did not raise or otherwise mention the claimsbased on respondeat superior.

On May 23, 2002, Zawadzka filed her notice of appeal.

DECISION

Waiver

A party who files an amended complaint waives any objectionto the trial court's ruling on the former complaints. FoxcroftTownhome Owners Ass'n v. Hoffman Rosner Corp., 96 Ill. 2d 150,153, 449 N.E.2d 125 (1983). Where the amended complaint iscomplete in itself and does not refer to or adopt the priorcomplaint, the prior complaint " 'ceases to be a part of therecord for most purposes, being in effect abandoned andwithdrawn.' " Foxcroft, 96 Ill. 2d at 154, quoting Bowman v.County of Lake, 29 Ill. 2d 268, 272, 193 N.E.2d 833 (1963).

In Tabora v. Gottlieb Memorial Hospital, 279 Ill. App. 3d108, 114, 664 N.E.2d 267 (1996), the plaintiff, a doctor, suedthe defendant, a hospital, after the defendant revoked theplaintiff's staff privileges. Tabora, 279 Ill. App. 3d at 110. On February 26, 1993, the plaintiff filed a second amendedcomplaint. Tabora, 279 Ill. App. 3d at 111. On September 22,1993, the trial court dismissed with prejudice portions of thesecond amended complaint. Tabora, 279 Ill. App. 3d at 111. OnOctober 5, 1993, the plaintiff filed a third amended complaintthat made no mention of the dismissed portions of the secondamended complaint. Tabora, 279 Ill. App. 3d at 111, 114.

On January 21, 1994, the trial court dismissed withprejudice portions of the plaintiff's third amended complaint andspecified that there was no just reason for delaying enforcementor appeal of the dismissed portions. Tabora, 279 Ill. App. 3d at112. On February 16, 1994, the plaintiff filed a fourth amendedcomplaint that made no mention of the dismissed portions of thethird amended complaint. Tabora, 279 Ill. App. 3d at 112, 114. On February 17, 1994, the plaintiff filed a notice of appeal fromthe trial court's January 21, 1994, order. Tabora, 279 Ill. App.3d at 112.

The trial court issued an order on March 21, 1994, makingits order of September 22, 1993, final and appealable. Tabora,279 Ill. App. 3d at 112. On March 31, 1994, the plaintiff fileda notice of appeal from the trial court's March 21, 1994, order. Tabora, 279 Ill. App. 3d at 112. The two appeals wereconsolidated. Tabora, 279 Ill. App. 3d at 112.

We concluded the plaintiff waived any objection to the trialcourt's rulings on the second amended complaint and the thirdamended complaint under the Foxcroft rule. Tabora, 279 Ill. App.3d at 113-14. After each ruling, the plaintiff filed an amendedcomplaint that "did not reallege, refer to, incorporate, orpreserve the stricken portions of his [previous] complaint[s]." Tabora, 279 Ill. App. 3d at 114. By doing so, the plaintiffwaived our review of the trial court's ruling even though hefiled a timely notice of appeal in each case. Tabora, 279 Ill.App. 3d at 114.

Zawadzka's amended complaint did not refer to or adopt herprevious complaint or the claims based on respondeat superior. As we said in Tabora, "A simple paragraph or footnote in theamended pleadings notifying defendants and the court thatplaintiff was preserving the dismissed portion of his formercomplaints for appeal would have been sufficient to avoid theconsequences of the Foxcroft rule." Tabora, 279 Ill. App. 3d at114.

Zawadzka contends that, despite the Foxcroft rule, she hasnot waived our review of this issue for two reasons.

First, she says Brown Leasing, Inc. v. Stone, 284 Ill. App.3d 1035, 673 N.E.2d 430 (1996) supports her contention that weshould reach the merits of her case. In Brown Leasing, Inc., thetrial court dismissed some of the plaintiff's claims. After theplaintiff filed its notice of appeal, it filed an amendedcomplaint that did not refer to the dismissed claims. BrownLeasing, Inc., 284 Ill. App. 3d at 1041-43.

We held no waiver occurred because the plaintiff filed theamended pleading after it had perfected the appeal. BrownLeasing, Inc., 284 Ill. App. 3d at 1044. Once the notice ofappeal was filed, the trial court lacked jurisdiction to allowthe filing of an amended pleading that could moot the appeal. Brown Leasing, Inc., 284 Ill. App. 3d at 1044.

Brown Leasing, Inc. does not apply here. Zawadzka filed heramended complaint before she filed her notice of appeal. At thetime Zawadzka filed the amended pleading, the trial court hadjurisdiction to allow her to file an amended pleading thatabandoned or withdrew the previous claims.

Zawadzka contends Brown Leasing, Inc. applies herenonetheless because the trial court's order giving her the rightto appeal -- the Rule 304(a) language -- predated the amendedcomplaint. Zawadzka, in essence, is contending her appeal wasperfected when the trial court entered its order.

She is incorrect. The appeal is perfected when a timelynotice of appeal is filed with the trial court, Robertson v.Winnebago County Forest Preserve Dist., 301 Ill. App. 3d 520,528, 703 N.E.2d 606 (1998), not when the trial court issues anappealable order. Because Zawadzka filed the amended complaintbefore she perfected her appeal, she has waived our review of thetrial court's ruling.

Second, Zawadzka says she has taken "steps to address anyconcerns this court may have about whether [she] adequatelypreserved her right to appeal these issues." (Zawadzka's ReplyBr. at 7.) On November 8, 2002, the trial court granted Zawadzka"leave to file her motion for leave to file her third amendedcomplaint at law." She did so the same day. To her motion,Zawadzka attached a copy of her proposed third amended complaint. In the proposed complaint, she reasserts the claims against TheCatholic Bishop and Five Holy Martyrs based on respondeatsuperior. The record does not show whether the trial courtgranted Zawadzka's motion. Nor does the record show whetherZawadzka ever filed the third amended complaint.⁽²⁾

Zawadzka waived this resuscitation argument by failing tocite relevant authority. Estate of Strocchia v. City of Chicago,284 Ill. App. 3d 891, 901, 672 N.E.2d 919 (1996) (failure to citeto authority in support of an argument as required by SupremeCourt Rule 341(e)(7), (188 Ill. 2d R. 341(e)(7)), waives theargument). In addition, once Zawadzka perfected her appealpursuant to Rule 304(a), the trial court had no jurisdiction overany matter relating to claims that are the subject of thisappeal. See Brown Leasing, Inc., 284 Ill. App. 3d at 1044.

Motion to Dismiss

Zawadzka contends the trial court erred in dismissing herclaims based on respondeat superior. The underlying issue --whether a priest's employer is liable under the doctrine ofrespondeat superior for the sexual assault of a parishioner bythe priest -- is an interesting and sensitive issue, particularlygiven the recent, heightened attention to sexual misconduct bymembers of the clergy. Because Zawadzka waived our review of themerits of her appeal, we believe the posture of this case doesnot allow us to properly answer the questions posed by the trialcourt's dismissal. For this reason, we do not address the meritsof Zawadzka's appeal.

CONCLUSION

For the foregoing reasons, we find Zawadzka waived(forfeited) our review of the merits of her appeal. We affirmthe trial court's order granting The Catholic Bishop and FiveHoly Martyrs' motion to dismiss.

Affirmed.

HOFFMAN, and HALL, JJ., concur.

1. The pleading-over cases use the word "waiver." But waiveris the "intentional relinquishment of a known right." IllinoisValley Electric Co-Operative, Inc. v. City of Princeton, 229 Ill.App. 3d 631, 638, 594 N.E.2d 347 (1992). It would be moreaccurate to use the word "forfeiture" since it is obvious that noactual waiver was intended by Zawadzka. We will, however, usethe word "waiver" to be consistent with the language in thedecisions.

2. Zawadzka had filed a second amended complaint on October30, 2002. It, too, did not allege respondeat superior, nor didit refer to earlier complaints.