Articles Posted in Law of the Case

The Drapers owned and lived on a property in a historic area north of Chicago. The property was subject to a conservation easement. The Drapers were allowed three amendments to the easement to alter the property and the home.

Their neighbors, the Bjorks, took offense to the amendments and the alterations, so they sued the Drapers. The Bjorks asked for declaratory judgment that the conservation easement could not be amended. The trial court ruled that two of the amendments were valid.

The Bjorks appealed, and the appellate court ruled (1) the conservation easement could be amended, (2) the two amendments the trial court said were valid in fact were not because they directly conflicted with the easement, and (3) the Drapers’ violations of the easement were not intentional or culpably negligent. The appellate court directed the trial court “to equitably consider all of the alterations that had been made to the property and, in its discretion, determine ‘which alterations, if any, must be removed and which if any, may be retained.’”

After another hearing, the trial court ruled that one of the three alterations could be retained. The Bjorks appealed again. The Bjorks arguments included: (1) the trial court should not have balanced the equities to decide which property alterations could remain; (2) the appellate court’s mandate from the first appeal did not require the trial court to accept the appellate ruling that the Drapers were not culpably negligent.

The Second District Illinois Appellate Court rejected both arguments.

Relying on the law-of-the-case doctrine, the appellate court ruled the trial court was obligated to balance the equities. The court stated: “… [T]he law-of-the-case doctrine bars relitigation of an issue previously decided in the same case … Questions of law that are decided on a previous appeal are binding on the trial court on remand as well as on the appellate court in subsequent appeals … The two recognized exceptions to the law-of-the-case doctrine are: (1) when a higher reviewing court makes a contrary ruling on the same issue subsequent to the lower court’s decision, and (2) when a reviewing court finds that its prior decision was palpably erroneous.”

In this case, there was no ruling from a higher court and the appellate court “declined plaintiffs’ [Bjorks’s] invitation” to find its earlier ruling to be erroneous. So the law-of-the-case doctrine required the trial court to apply a balancing test to the Drapers’s property alterations.

The appellate court also ruled that its mandate required the trial court to accept the appellate ruling that the Drapers were not culpably negligent. Here is how the appellate court explained it:

When a judgment of a trial court is reversed and the cause is remanded by this court with specific directions as to the action to be taken, it is the duty of the trial court to follow those directions … Generally, the correctness of a trial court’s action on remand is to be determined from our mandate, as opposed to our opinion … This proposition, however, is based upon the assumption that the direction contained in our mandate is precise and unambiguous.

The appellate court ruled the trial court “did not have discretion to reassess whether the defendants’ [Drapers] actions were intentional or culpably negligent” because the appellate court’s earlier mandate already disposed of the question.

In the end, the appellate court affirmed the trial court. Read the whole opinion, Bjork v. Draper, No. 2-09-1345 (9/22/10), by clicking here.

John Miller sued a real estate broker and the seller of a residential property over a dispute that arose when Miller thought he had bought a house. Miller claimed the seller breached a contract. He claimed that the brokerage was guilty of interference with prospective business advantage.

The trial court had entered summary judgment for the seller on the basis that there was no enforceable contract. Miller appealed that ruling. But he settled with the seller before the appellate court considered the contract question.

The trial court also entered summary judgment for the brokerage on Miller’s claim for interference with prospective business advantage. In the appellate court, the brokerage argued that the claim failed because the law-of-the-case doctrine established that there was no contract, which the brokerage asserted was an essential element of Miller’s action.

The First District Illinois Appellate Court ruled that the law-of-the-case doctrine did not bar the appellate court from considering the contract question. The trial court ruling was not sufficient to establish law-of-the-case. “… Plaintiff and Kariodimedjo [seller] settled prior to any consideration of the issue by this court. Kariodimedjo was subsequently dismissed from the instant action. As is evident here, the law-of-the-case doctrine does not operate in the case at bar, as there was no determination of the issue of whether the contract between plaintiff and Kariodimedjo was enforceable by a reviewing court.”

Get the whole opinion, Miller v. Lockport Realty Group, No. 1-06-3603 (11/19/07), by clicking here.

This wrongful death action grew out of a private airplane crash. The estates of the four people who died in the crash, sued the municipal owners and operators of the airport, Alberto-Culver, the owner of the plane, and Aon Aviation (a service provider). The municipal defendants moved for, and were granted, summary judgment on the basis of sovereign immunity. But the appellate court reversed, and the Illinois Supreme Court denied leave to appeal.

While the municipal defendants’ appealed, the case went to trial against Alberto-Culver and Aon. One of the estates was awarded a judgment, but there was a mistrial in the pilot’s case. The municipal defendants were brought back into the case, and the pilot’s estate retried the case against the private and municipal defendants. The retrial resulted in a judgment for the estate.

The municipal defendants appealed again, and again argued a sovereign immunity defense. The appellate court did not consider the argument because it was rejected in the first appeal and thus became law of the case. The court defined “law of the case” and its exceptions.

. . . [T]he law of the case doctrine provides that “where an issue has been litigated and decided, a court’s unreversed decision on that question of law or fact settles that question ‘for all subsequent stages of the suit” . . . There are two exceptions to this doctrine. The first applies when a higher reviewing court, subsequent to the lower reviewing court’s decision, issues a contrary ruling on the same issue. “The second exception allows the reviewing court to depart from the doctrine of law of the case if the court finds that its prior decision was palpably erroneous, but only when the court remanded the case for a new trial on all issues.”

Actually, there is another exception, although the courts do not view it as a “law of the case” issue. It arises when an appellee moves to dismiss an appeal for lack of jurisdiction. Even when the motion is unsuccessful, appellees may raise the motion again in their response brief. And appellate courts have revisited the entire motion and granted it. In that case, there has been an unreversed decision that does not fall within either of the two exceptions to the law of the case doctrine. Yet the courts are more than happy to reassess the motion. So the law of the case doctrine in reality has another exception.

In any event, you can see the whole airplane crash case, Alwin v. Village of Wheeling, No. 1-04-0154 (3/12/07), by clicking here.

Plaintiff’s vacation to Africa was ruined by rain storms. He sued the travel agent, claiming the agent had a fiduciary responsibility to disclose his financial interest in assuring plaintiff did not postpone the trip. The case took two trips to the appellate courts.

The first time on appeal, the appellate court (1) reversed a summary judgment that had been entered in defendant’s favor and (2) ruled that defendant must show plaintiff acted in bad faith as a prerequisite to obtaining attorney fees under the Consumer Fraud and Deceptive Businesses Act.

On remand, after a bench trial, the trial court entered judgment for defendant, but granted plaintiff’s motion to strike defendant’s fee petition. Both parties appealed. The appellate court affirmed.

The agent then appealed to the Illinois Supreme Court. He argued it was error to require him to show bad faith by plaintiff as a condition to obtaining attorney fees under the Consumer Fraud Act. Plaintiff argued that the appellate court already ruled on that question the first time the case was appealed. Because defendant did not appeal to the Supreme Court at that time, plaintiff asserted, the law of the case doctrine prevented defendant from raising the question on this second trip to through the appellate courts.

The Illinois Supreme Court rejected the idea that the law of the case doctrine precluded it from considering defendant’s position “. . . [T]he law of the case doctrine is inapplicable to this court in reviewing the decision of the appellate court . . . Rather, ‘since this is the first time this case has been before us, we may review all matters which were properly raised and passed on in the court of the litigation.’”

After defining “bad faith” for purposes of defendant’s fee petition, the Supreme Court declined to remand the case to consider the petition. Instead, the court chose to conduct its own review. An evidentiary hearing was “unnecessary,” the court concluded, because all of the allegations upon which defendant relied were in the record.

The opinion is important also for its discussion of what constitutes bad faith by a plaintiff in bringing a Consumer Fraud Act claim. Read the whole opinion, Krautsack v. Anderson, No. 101718 (12/21/06), by clicking here.