Defendants' Motion for Summary Judgment - Prejudgment Interest
Plaintiff Heller alternately seeks recovery of prejudgment interest from January 20, 1983 to the date of any judgment. Pursuant to the Illinois Interest Act, 85 ILCS 205/2 (1993), this prejudgment interest would be calculated at an annual rate of five percent. Defendants contend that Heller's claims were not liquidated and subject to easy and exact computation on January 20, 1983. Heller argues that Defendants have waived this challenge because they failed to appeal several determinations adverse to Defendants on this issue. In addition, Heller contends the amount due on the bond is ascertainable and subject to calculation.
In order for a party to prevail on a summary judgment motion, "the pleading, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any [must] show that there is no genuine issue as to any material fact and that the moving party is entitled to summary judgment as a matter of law." Fed. R. Civ. P. 56(c). A defendant moving for summary judgment must show, based on the record, an absence of evidence to support the plaintiff's case. Celotex Corp. v. Catrett, 477 U.S. 317, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). "A party opposing summary judgment cannot rest on the pleadings and must affirmatively set forth facts that show that there is a genuine issue of fact." McCarthy v. Kemper Life Ins. Cos., 924 F.2d 683, 687 (7th Cir. 1991). Although the evidence and all reasonable inferences from the record are drawn in the nonmovant's favor, Griffin v. Thomas, 929 F.2d 1210, 1212 (7th Cir. 1991), the non-movant must cast more than "some metaphysical doubt" as to the material facts. LaScola v. US Sprint Communications, 946 F.2d 559, 563 (7th Cir. 1991) (citations omitted). As a practical matter, the test is "whether the non-movant has a fighting chance at trial." Shager v. Upjohn Co., 913 F.2d 398, 403 (7th Cir. 1990).
We first address the issue of waiver. Heller argues that Defendants' failure to appeal the district court's rulings against them on four motions and on a motion for directed verdict at trial precludes them from raising challenges to Heller's attempt to recover prejudgment interest at this time. Defendants respond that they had no reason to appeal an issue on which the Court entered judgment in its favor. Despite some confusing language in both the Seventh Circuit and district court opinions that appears to indicate the jury decided the prejudgment interest issue in Count IV of the Fourth Amended Complaint,
the judgment order does indicate that the Court, not the jury, decided the issue in favor of Defendants. Though the parties have not seen fit to address the issue, the Court is compelled to consider whether or not the issue of prejudgment interest is foreclosed by the prior finding of the district court in Defendants' favor.
At first glance, one might think that the Seventh Circuit's opinion answers this question in Heller's favor. The opinion states that "we grant the plaintiff's appeal on the faulty jury instructions, and vacate the judgment, and remand for a new trial consistent with this opinion . . . ." 974 F.2d at 863. Nowhere in the opinion, however, does it appear that Heller appealed the decision of the district court for Defendants on Counts III and IV of the Fourth Amended Complaint, the counts dealing with prejudgment interest. Despite this appearance, Heller did file a notice of appeal seeking review of the judgment for Defendants on Counts III and IV. The primary issues raised by the parties before the Seventh Circuit concerned the jury instructions regarding "manifest intent", estoppel and waiver of the two year limitations period for suit on the bond. Thus, the Seventh Circuit's opinion did not address, the district court's decision on prejudgment interest.
We, therefore, are squarely presented with a situation calling for an examination of the law of the case doctrine. In other words, having lost once does Heller get a second bite at the apple? The law of the case doctrine is a "rule of practice" based on the recognition that "once an issue is litigated and decided no further litigation should occur on that issue." Estate of Stoller v. Ford Motor Co., 784 F. Supp. 506, 511 (N.D. Ill. 1992); see also Gertz v. Robert Welch, Inc., 680 F.2d 527, 532 (7th Cir. 1982), cert. denied, 459 U.S. 1226, 75 L. Ed. 2d 467, 103 S. Ct. 1233 (1983). We remind the reader that the parties have litigated the issue of prejudgment interest and that issue was decided in Defendants' favor by Judge Parsons.
The Seventh Circuit has recently addressed the application of the doctrine in these circumstances and we find its comments particularly applicable to this case. "If a final judgment had been entered, the case appealed, the judgment reversed, and the case remanded, the trial judge would be required to adhere on remand to the rulings that he had made before the case was first appealed, provided of course that they had not been set aside by the appellate court." Williams v. C.I.R., 1 F.3d 502, 503 (7th Cir. 1993); see also Williamsburg Wax Museum, Inc. v. Historic Figures, Inc., 258 U.S. App. D.C. 124, 810 F.2d 243, 250 (D.C. Cir. 1987). In Williams, the Seventh Circuit also considered the impact of a subsequent change of judges on the law of the case. The court noted:
litigants have a right to expect that a change in judges will not mean going back to square one. The second [in this case, the fourth] judge may alter previous rulings if new information convinces him that they are incorrect, but he is not free to do so even though the time for reconsideration has not expired, merely because he has a different view of the law of the facts from the first judge. In this situation, the doctrine of the law of the case has bite.