Illinois Supreme Court Rules Law Of The Case Doesn’t Apply. Court Decides No Remand In Favor Of Its Own Review.

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.