Law of the Case

January 22, 2011

Law-Of-The-Case Doctrine And Appellate Mandate Direct Trial Court’s Actions On Remand

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.’”

January 23, 2008

Law-Of-The-Case Doctrine Does Not Bar First District Illinois Appellate Court From Considering Existence Of Contract

by Steven R. Merican

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.

June 7, 2007

First District Illinois Appellate Prevents Second Bite At The Apple. “Law Of The Case” Prevails.

by Steven R. Merican

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.

March 20, 2007

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

by Steven R. Merican

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.