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Reich v. Gendreau

November 09, 1999

FRANK REICH,
PLAINTIFF-APPELLEE,
V.
JERRY GENDREAU, VICKY GENDREAU AND CLIFFORD SAXBY, INDIV. AND D/B/A THE ANTIQUE EATERY,
DEFENDANTS-APPELLANTS.



Appeal from the Circuit Court of Carroll County. No. 93--L--16 Honorable David T. Fritts, Judge, Presiding.

The opinion of the court was delivered by: Presiding Justice Bowman

IN THE COURT OF APPEALS OF THE STATE OF ILLINOIS

9 November 1999

This is a permissive interlocutory appeal under Supreme Court Rule 308 (155 Ill. 2d R. 308). The question certified for appeal is whether plaintiff, Frank Reich, "is barred pursuant to the doctrine of 'law of the case' from refiling a res ipsa loquitor count" by a prior decision of this court. We answer the question in the affirmative.

On July 27, 1993, plaintiff filed a complaint against Jerry Gendreau and Vicky Gendreau (the Gendreaus). On August 12, 1993, plaintiff filed a separate complaint against Clifford Saxby, individually and d/b/a Antique Eatery (Saxby), and Walter Nehrkorn. Nehrkorn was later dismissed as a party defendant and the cases were consolidated. The Gendreaus and Saxby are defendants in the consolidated cases.

In his original complaints, plaintiff alleged that he was injured on August 14, 1991, when parts of an elevator crashed down on him while he was using the elevator in a building that was owned by or in the control of defendants. Each of the original complaints contained a count based on the evidentiary theory of res ipsa loquitor. After the cases were consolidated, plaintiff, who was proceeding pro se, filed several unnumbered amended complaints that also contained a count based on res ipsa loquitor.

On March 22, 1996, the trial court granted a motion by defendants to dismiss the count based on res ipsa loquitor in plaintiff's then most-recent amended complaint. Plaintiff did not file a motion to reconsider the dismissal. Plaintiff later filed other amended complaints that were captioned as his fourth and fifth amended complaints. Neither the fourth nor the fifth amended complaint contained a count based on res ipsa loquitor.

The cause went to trial on plaintiff's fifth amended complaint. At the end of plaintiff's case, the trial court directed a verdict in favor of defendants. Plaintiff filed a timely appeal and contended that the trial court erred in directing a verdict in favor of defendants. On appeal, plaintiff also attempted to raise issues related to res ipsa loquitor.

This court determined that plaintiff waived the issues related to res ipsa loquitor by failing to include a count based on res ipsa loquitor in the amended complaints he filed after the dismissal of the count based on res ipsa loquitor. Reich v. Gendreau, No. 2--96--1126 (July 21, 1997) (unpublished order under Supreme Court Rule 23) (Reich I). In Reich I, this court also stated that another reason that plaintiff waived the res ipsa loquitor issues was that "in his notice of appeal, plaintiff specifically appealed only from the trial court's order granting the motion for directed verdict as to the negligence counts." Reich I, slip op. at 9.

In Reich I, this court also determined that the trial court erred when it directed a verdict in favor of defendants. The judgment of the trial court was therefore reversed and the cause was remanded.

On remand, plaintiff filed a "First Amended Complaint After Appeal" (postappeal complaint). Count III of the postappeal complaint was based on the evidentiary theory of res ipsa loquitor.

The Gendreaus responded by filing a motion to dismiss count III of the postappeal complaint. In a memo in support of their motion, the Gendreaus argued that the trial court's dismissal of the count based on res ipsa loquitor prior to trial and this court's determination in Reich I that plaintiff waived the issues related to res ipsa loquitor had both become the law of the case and therefore barred plaintiff from filing an amended complaint on remand containing a count based on res ipsa loquitor.

After a hearing on the matter, the trial court initially granted the Gendreaus' motion to dismiss count III of the post-appeal complaint. Plaintiff then filed a motion to reconsider the dismissal. After additional hearings, the trial court entered an order granting plaintiff's motion to reconsider. In the same order, the trial court certified the following question for interlocutory review under Rule 308: "whether plaintiff, FRANK REICH, is barred pursuant to the doctrine of the 'law of the case' from refilling a res ipsa loquitor count under [Reich I]." We subsequently granted leave to appeal.

On appeal, defendants contend that the trial court erred when it determined that plaintiff could file an amended complaint on remand that included a count based on res ipsa loquitor. Defendants assert that both the trial court's dismissal before trial of the res ipsa loquitor count and this court's determination in Reich I that plaintiff waived issues related to res ipsa loquitor became the law of the case. Defendants argue that under the law of the case doctrine ...


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