Gillin v. Carrows Restaurants, Inc.

HARTZ, Judge

(Specially Concurring).

For the reasons stated in Judge Donnelly’s opinion, I agree that Carrows was not entitled to summary judgment. I write separately only because I cannot fully join in the majority’s view regarding preservation in the district court of the argument that prevails on appeal.

Proceedings for summary judgment in the district court should not be a mere rehearsal for the real hearing that will later be conducted in an appellate court. If the party opposing summary judgment has a valid theory or pertinent evidence that would defeat summary judgment, that party should be required to alert the district court to the theory or evidence relied upon. See Waldridge v. American Hoechst Corp., 24 F.3d 918 (7th Cir.1994).

In the present case I find nothing to indicate that Plaintiff alerted the district court to the theory that Carrows had a duty to Plaintiff arising from Paragraph 31 of the lease agreement between Carrows and the Landowner. On the contrary, Plaintiff contended that notwithstanding any provision in the lease Carrows had a duty to Plaintiff arising from Carrows’ exercise of control over the premises.

Nevertheless, it is appropriate for us to review on appeal whether the lease imposed a duty on Carrows, because the district court specifically addressed the issue. As noted in the majority opinion, the district court wrote that “the lease agreement between Carrows and the [Landowner] clearly places responsibility for the parking lot [with the Landowner].” Thus, even though Carrows did not alert the district court to the issue, the district court considered it. The issue was thereby preserved for appeal.

APPENDIX

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