Illinois Appellate Lawyer Blog

James Foster claimed he was beaten by Corpsman Kirk Hill at a Naval Training Center. Foster sued Hill in the Illinois state court. Invoking the Westfall Act (United States shall be substituted as a party when a federal employee is sued in tort for actions in course of employment, if the Attorney General agrees), Hill petitioned for the United States to take his place as a party. When the Attorney General declined, Hill petitioned the state court to find that his actions were within the scope of his employment.

The United States then filed a petition for removal, as the Westfall Act permits. The federal district court agreed that Hill was not acting within the scope of his employment duties. The federal court thus dismissed Hill’s petition for substitution and, as required by the Westfall Act, remanded the case to state court. However, the district court’s opinion did not specifically state the basis for remand.

Hill appealed the district court’s ruling. The 7th Circuit Court of Appeals dismissed the appeal for lack of appellate jurisdiction. The general basis for the dismissal was 28 U.S.C. § 1447(d), which states that a remand order to the state court, based upon lack of subject matter jurisdiction, is not reviewable on appeal. In the absence of a statement stating the basis for remand, the appellate court ruled that it would presume lack of subject matter jurisdiction.

The appellate court identified the problems caused by its ruling: “… [A] federal employee [Hill] will now resume defending litigation even though there is a chance that the Westfall Act purports to grant him immunity from suit. If we were permitted to consider that claim of immunity, the question could be settled once and for all. But whether this defendant should be immune from suit is a question that Congress and our circuit precedent prevent us from even considering. Meanwhile, the plaintiff has waited five years for a legal remedy, which today is no closer than it was in 2005 when the case was first removed to the district court.…”

You can read the whole opinion, Foster v. Hill, 497 F.3d 695, No. 06-2651 (8/13/07), by clicking here.

In this procedurally complicated case, Draper and Kramer sued Dalan/Jupiter and Trammel Crow for breach of contract. Draper prevailed in a bench trial, but its judgment was reversed, without remand, on appeal.

Nonetheless, back in the trial court, Dalan moved for its attorney fees. The trial court concluded that it did not have jurisdiction to rule because Dalan filed the motion too late. Dalan then filed another lawsuit that requested the same attorney fees it expended defending the original lawsuit. The trial court granted summary judgment in favor of Draper and Kramer in that second lawsuit, ruling that the earlier denial of Dalan’s fee petition precluded the second lawsuit. Dalan appealed from that summary judgment.

The appellate court ruled that the trial court did not have jurisdiction even to consider Dalan’s petition for fees in the first case because the case had not been remanded from the appellate court. Thus, it did not have power to rule that Dalan’s motion was untimely. The appellate court explained:

[W]here a judgment is reversed with no order remanding the case, "it cannot be reinstated in the court which entered the judgment from which the appeal was taken* * * " (Emphasis added.) . . . In other words, following a reversal without remand, the trial court is not revested with jurisdiction over the case.

The appellate court ruled that Dalan’s lawsuit was precluded, but for reasons different from the trial court dismissal. You can read the whole case, Dalan/Jupiter v. Draper and Kramer, Nos. 1-06-1274, 1-06-2637 (3/30/07), 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.