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Bilut v. Northwestern University and Gerald Canter

March 26, 1998

MARILYN BILUT, PLAINTIFF-APPELLANT,
v.
NORTHWESTERN UNIVERSITY AND GERALD CANTER, DEFENDANTS-APPELLEES.



APPEAL FROM THE CIRCUIT COURT OF THE HONORABLE JOHN W. GUSTAFSON, JUDGE PRESIDING. COOK COUNTY.

The opinion of the court was delivered by: Justice South

Plaintiff, Marilyn Bilut, filed a two-count complaint against defendant Northwestern University alleging that Northwestern had breached an implied contract in refusing to award her a Ph.D. degree and sought an injunction ordering Northwestern to award her a Ph.D. degree as well as monetary damages. Thereafter, plaintiff amended her complaint to add two counts against defendant professor Gerald Canter, alleging tortious interference and seeking compensatory and punitive damages.

Defendants moved to strike the first amended complaint or to dismiss Canter and counts III and IV. The circuit court never ruled on defendants' motion. Rather, the court ordered a trial as to plaintiff's equitable claim, count I for injunctive relief, and stated that plaintiff's legal claims, counts II, III and IV, would be transferred to the law division.

The matter proceeded to trial on count I, and in a written opinion, the circuit court rejected plaintiff's request for injunctive relief, finding that it could not compel issuance of plaintiff's doctoral degree. However, the court issued a mandatory injunction against Northwestern, requiring it to give plaintiff an additional two years to complete her degree.

The court also ruled on the legal claims, counts II, III and IV of plaintiff's first amended complaint, finding in favor of plaintiff on all three counts, i.e., that defendant Northwestern had breached an implied contract, that defendant Canter had maliciously interfered with that contract and that defendant Canter's actions were willful and wanton. In support of this finding, the court held that Northwestern's faculty and officials were "arbitrary and capricious, and/or motivated by bad faith, in their dealings with plaintiff" and that defendant Canter was "exceedingly arbitrary and capricious." The circuit court then transferred the matter to the law division solely for a determination of damages. Defendants appealed.

This court reversed and remanded the mandatory injunction, finding that plaintiff failed to establish all of the required elements to justify its imposition. Bilut v. Northwestern University, 269 Ill. App. 3d 125, 645 N.E.2d 536 (1994). This court further found that the circuit court erred in finding defendant's academic Judgement of plaintiff was arbitrary and capricious and held that Northwestern's decision not to award plaintiff a Ph.D. degree was based on the independent scholarly and academic judgments of several professors, including defendant Canter. Bilut, 269 Ill. App. 3d 125, 645 N.E.2d 536.

Thereafter, plaintiff filed a petition for leave to appeal to the Illinois Supreme Court. The Illinois Supreme Court denied plaintiff's petition for leave during its March term of 1995. On May 11, 1995, this cause was remanded back to the circuit court.

On remand, defendants moved for summary Judgement on counts II, III and IV of plaintiff's first amended complaint pursuant to section 2-1005 of the Code of Civil Procedure (735 ILCS 5/2-1005 (West 1994)). Defendants argued that according to the law of the case doctrine, this court had conclusively determined, as a matter of law, that defendant's academic Judgement of plaintiff was not arbitrary and capricious. Therefore, there could be no breach of implied contract by Northwestern, and since there was no breach by Northwestern, defendant Canter could not have tortiously interfered with the contract. Thus, defendants concluded, plaintiff could not prevail on any of her claims.

Following a hearing, the circuit court agreed that plaintiff could not prevail and entered an order granting summary Judgement in favor of defendants as to counts II, III and IV of plaintiff's first amended complaint "pursuant to the law of the case doctrine as decided by the appellate court in this cause." The circuit court, over defendants' objection, also granted plaintiff leave to file a second amended complaint against defendants "asserting a cause of action that relates back to the allegations in plaintiff's complaint and that has not been determined by the appellate court." Plaintiff filed a two-count second amended complaint alleging civil conspiracy and conversion of property/plagiarism. Defendants moved to dismiss the second amended complaint pursuant to section 2-619.1 of the Code of Civil Procedure (735 ILCS 5/2-619.1 (West 1994)). In support of their motion, defendants argued that plaintiff's claims were barred by the statute of limitations; the claim for civil conspiracy was insufficient because principals and agents are legally incapable of conspiring with one another, and plaintiff failed to allege that defendants engaged in any particular tortious conduct; and the conversion of property/plagiarism claim was insufficient because Illinois law limits the tort of conversion to tangible property and because any such claim was preempted by the federal Copyright Act (17 U.S.C. §301 (1994)). The circuit court granted defendants' motion to dismiss plaintiff's second amended complaint with prejudice. This appeal followed. We affirm.

Plaintiff has waived her right to appeal from the entry of summary judgment on counts II, III and IV of the first amended complaint because she failed to reallege those counts in her second amended complaint. Foxcroft Townhome Owners Ass'n v. Hoffman Rosner Corp., 96 Ill. 2d 150, 449 N.E.2d 125 (1983), stands for the proposition that "hen a complaint is amended, without reference to the earlier allegations, it is expected that these allegations are no longer at issue." Foxcroft, 96 Ill. 2d at 154, 449 N.E.2d at 127. This rule applies not only to factual allegations, but also to theories of recovery. Foxcroft, 96 Ill. 2d at 155, 449 N.E.2d at 127.

First, plaintiff argues that the circuit court erred in granting defendants' motion for summary Judgement as to counts II, III and IV of her first amended complaint pursuant to the law of the case doctrine as the issues pertaining to those counts were not decided upon their merits by the prior appellate decision and that plaintiff was denied her constitutional right to a trial by jury. The law of the case doctrine provides that issues presented and disposed of in a prior appeal are binding and will control in the circuit court on remand, as well as the appellate court in a subsequent appeal, unless the facts presented are so different as to require a different interpretation. Aardvark Art, Inc. v. Lehigh/Steck-Warlick, Inc., 284 Ill. App. 3d 627, 672 N.E.2d 1271 (1996); Sanders v. Shephard, 258 Ill. App. 3d 626, 630 N.E.2d 1010 (1994). Thus, absent substantially different facts, a party will not be allowed to reargue issues previously decided by the appellate court. Instead, the remedy for a dissatisfied party is to file a petition for rehearing or petition for leave to appeal to the supreme court. Sanders, 258 Ill. App. 3d 626, 630 N.E.2d 1010. In the prior appeal, this court held that defendants' academic Judgement of plaintiff was not arbitrary and capricious because there was a discernable rational basis for the decisions of Northwestern and its faculty regarding plaintiff's dissertation. Bilut, 269 Ill. App. 3d at 135-36, 645 N.E.2d at 542-43. Since the facts in the circuit court on remand and in this subsequent appeal are substantially the same as those in the prior appeal, the facts do not require a different interpretation. Accordingly, this court's decision in the prior appeal was binding on the circuit court on remand and is now binding on this court.

Moreover, despite plaintiff's contention that counts II, III and IV of her first amended complaint were not matters appropriately within the jurisdiction of the appellate court in the prior appeal, the record reflects that plaintiff argued to the circuit court in her motion to vacate dismissal for want of prosecution filed August 2, 1993, that: (1) "Judge Berman's entire order is unquestionably currently subject to appeal"; (2) "the entire underlying merits of the case are currently being reviewed by the appellate court"; and (3) "n this case, the plaintiff has already prevailed on the merits of her case" and "f plaintiff is successful on appeal, the only remaining issues will be for a jury to determine the amount of damages."

Furthermore, contrary to plaintiff's present contention that the appellate court in the prior appeal remanded the case generally for a new trial, plaintiff argued in her petition for leave to appeal to the supreme court that this court reversed the Judgement in favor of defendants without remanding for a new trial. Inasmuch as a party on appeal is bound by her statements, including the statements of her attorney, made in the circuit court, plaintiff is now estopped from presenting argument contrary to her prior statements. In re Marriage of Drewitch, 263 Ill. App. 3d 1088, 636 N.E.2d 1052 (1994).

We turn next to plaintiff's argument that entry of summary judgment denied her the constitutional right to a trial by jury. Section 2- 1105(a) provides that " plaintiff desirous of a trial by jury must file a demand therefor with the clerk at the time the action is commenced. *** Otherwise, the party waives a jury." 735 ILCS 5/2- 1105(a) (West 1994). Careful review of the record makes clear that plaintiff did not file a jury demand in accordance with section 2- 1105(a) at the time she commenced this action in 1989. Further, plaintiff's argument that the circuit court granted her leave to file her jury demand and that, therefore, it was timely filed is not supported by the record. Pursuant to the circuit court's December 16, 1992, order and opinion, which granted the parties 30 days to make a jury demand for "the Law Division matters," plaintiff filed her jury demand for trial of damages on January 13, 1993, nearly four years after she commenced this action. The issue of defendants' liability, however, had already been decided by the circuit court ...


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