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08/15/89 Frank K. Phelps Et Al., v. Michael J. O'malley

August 15, 1989

FRANK K. PHELPS ET AL., PLAINTIFFS-APPELLEES

v.

MICHAEL J. O'MALLEY, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

543 N.E.2d 311, 187 Ill. App. 3d 150, 135 Ill. Dec. 76 1989.IL.1251

Appeal from the Circuit Court of Du Page County; the Hon. S. Keith Lewis, Judge, presiding.

APPELLATE Judges:

JUSTICE DUNN delivered the opinion of the court. INGLIS and LINDBERG, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE DUNN

This case comes on appeal for a second time. Defendant, Michael O'Malley, appeals from a $379,000 judgment entered against him on remand from this court. In entering this judgment, the trial court followed our mandate to enter judgment for the plaintiff for $379,000. The trial court made the judgment effective from June 26, 1986, the date of the original judgment, thus requiring defendant to pay statutory interest from this earlier date.

O'Malley first appealed after the trial court entered judgment against him for $387,500 for breach of a real estate contract. We upheld the lower court's finding that defendant breached a contract, but ruled the court erred in allowing plaintiffs' expert to testify as to the market value of the properties subject to sale because plaintiffs failed to comply with Supreme Court Rule 220. (Phelps v. O'Malley (1987), 159 Ill. App. 3d 214, 226.) We then ruled that, rather than remand the cause for damages, we would, pursuant to Supreme Court Rule 366 (107 Ill. 2d R. 366), set plaintiffs' damages according to the evidence of actual sales prices introduced by defendant. We ordered the trial court to enter judgment against defendant for $379,000. (Phelps, 159 Ill. App. 3d at 226.) Defendant filed a petition for rehearing which we denied. Defendant's petition to the supreme court for leave to appeal was also denied. Phelps, 159 Ill. App. 3d 214, appeal denied (1987), 117 Ill. 2d 553.

On this appeal, defendant raises two issues: (1) whether this court exceeded its authority in setting a damage award; (2) whether the trial court erred when it made judgment on remand effective as of the first judgment date, thus allowing for statutory interest from this date. Plaintiffs respond that defendant's first issue is barred by law of the case. For the reasons set forth below, we affirm.

The facts that brought about this lawsuit are outlined in our first decision and need not be set out again for this appeal. See Phelps, 159 Ill. App. 3d 214.

Initially, we address plaintiffs' motion on appeal asking this court to supplement the record with defendant's petition for rehearing and petition for leave to appeal. Defendant objects to this motion; however, we find no merit to this objection. Both of these petitions are relevant to the issue on appeal. Under Supreme Court Rule 329 (107 Ill. 2d R. 329), this court may order any corrections in the record that will aid the presentation of the questions involved on appeal. Thus, plaintiffs' motion is granted. Secondly, plaintiffs' motion to strike from the record the testimony of Clarence Bruckner, which this court ruled should have been debarred, need not be decided in light of the Disposition of this case.

Defendant's first contention on appeal is that the appellate court exceeded its authority under Supreme Court Rule 366 (107 Ill. 2d R. 366) when we set damages against defendant based on evidence introduced by defendant of the sales prices of the properties which were to be sold under the contract. Plaintiffs correctly respond that this issue of appeal is improper. Defendant is improperly using a second appeal to ask this court to reconsider its earlier decision. The earlier holding established the law of the case, and an appellate court is bound by its holding on an appeal from the judgment of the circuit court entered on remand. (PSL Realty Co. v. Granite Investment Co. (1981), 86 Ill. 2d 291, 312; see also Krentz v. Johnson (1978), 59 Ill. App. 3d 791; Foss Park District v. First National Bank (1974), 19 Ill. App. 3d 553.) When an appellate court reverses and remands the cause with a specific mandate, the only proper issue on a second appeal is whether the trial court's order is in accord with the mandate. (Anundson v. City of Chicago (1973), 15 Ill. App. 3d 1032, 1037.) Ordinarily, a party seeking review of an appellate decision in an Illinois court has two options which do not include a second appeal. The party may file a petition for rehearing, and the party may also petition for leave to appeal to the Illinois Supreme Court. Krentz, 59 Ill. App. 3d at 792.

Defendant contends the law of the case does not apply here because he has not had an opportunity to fully and fairly litigate the issue decided by the appellate court. Defendant states that the issue of whether retail sales prices were an adequate measure of fair market value was not raised at the trial level or in the appellate briefs. Since it was not until the appellate court set damages on this basis that this became an issue, defendant contends he should be given the opportunity to address this issue in this appeal. Defendant cites Mid-State Savings & Loan Association v. Illinois Insurance Exchange, Inc. (1988), 175 Ill. App. 3d 265, for this proposition, but this case does not address defendant's contention. In this case, the issue of whether a party had a fair opportunity to litigate an issue decided on appeal was never discussed. The case merely stands as an example of an appellate court using its power under Supreme Court Rule 366 (107 Ill. 2d R. 366).

Defendant fails to recognize that he has not been denied an opportunity to address his contentions to this court. This opportunity is provided to all parties of appeal through a petition for rehearing. Defendant filed a petition for rehearing and argued that striking plaintiffs' expert's testimony left the record without sufficient evidence to determine fair market value of the property. Defendant also contended that he would not have introduced the evidence of the sales prices had the expert been debarred. Furthermore, he argued that evidence of the lots' sales prices did not reveal the fair market value at the time of breach because the sales, with the exception of one, occurred after the breach, some almost two years later. Defendant also argued that the gross sales figure used by this court should have been reduced by the costs involved in the sales and contended that these costs would reduce plaintiffs' award to $48,648. It is clear from defendant's petition that he took full advantage of the opportunity to present his contentions to this court. Though defendant did not make the argument made in this appeal that the trial court exceeded its authority, defendant clearly had an opportunity to make this argument and failed to do so. Defendant's arguments in his petition for rehearing were considered and denied. Defendant also took advantage of his right to petition the supreme court, and this was denied. Thus, defendant has had his opportunities. At some point, there must be an end to litigation. PSL, 86 Ill. 2d at 313.

In his reply brief, defendant cites two exceptions where an appellate court may disregard the law of the case: (1) where, subsequent to the first appeal, the supreme court makes a contrary ruling on the precise issues of law on which the appellate court based its decision; and (2) where the appellate court remands for a new trial on all the issues and the appellate court determines that its first decision was palpably erroneous. (Yonan v. Oak Park Federal Savings & Loan Association (1975), 27 Ill. App. 3d 967, 971; Weiland Tool & Manufacturing Co. v. Whitney (1968), 100 Ill. App. 2d 116, rev'd on other grounds (1969), 44 Ill. 2d ...


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