Reich v. Gendreau

• Decision Date: 09 November 1999
• Docket Number: No. 2-99-0315.,2-99-0315.
• Citation: 242 Ill.Dec. 355,721 N.E.2d 634,308 Ill. App.3d 825
• Court: United States Appellate Court of Illinois
• Parties: Frank REICH, Plaintiff-Appellee, v. Jerry GENDREAU, Vicky Gendreau and Clifford Saxby, Indiv. and d/b/a The Antique Eatery, Defendants-Appellants.

721 N.E.2d 634

308 Ill. App.3d 825

242 Ill.Dec. 355

Frank REICH, Plaintiff-Appellee, v. Jerry GENDREAU, Vicky Gendreau and Clifford Saxby, Indiv. and d/b/a The Antique Eatery, Defendants-Appellants.

No. 2-99-0315.

Appellate Court of Illinois, Second District.

November 9, 1999.

Edward R. Telling, III, Brendan A. Maher, Williams & McCarthy, Rockford, for Jerry Gendreau, Vicky Gendreau, Clifford Saxby.

Howard H. Prestwich, Freeport, for Frank Reich.

Presiding Justice BOWMAN delivered the opinion of the court:

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 loquitur 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 loquitur. 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 loquitur.

On March 22, 1996, the trial court granted a motion by defendants to dismiss the count based on res ipsa loquitur 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 loquitur.

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 loquitur.

This court determined that plaintiff waived the issues related to res ipsa loquitur by failing to include a count based on res ipsa loquitur in the amended complaints he filed after the dismissal of the count based on res ipsa loquitur. Reich v. Gendreau, 288 Ill.App.3d 1114, 238 Ill.Dec. 442, 711 N.E.2d 829 (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 loquitur 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 loquitur.

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 loquitur prior to trial and this court's determination in Reich I that plaintiff waived the issues related to res ipsa loquitur 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 loquitur.

After a hearing on the matter, the trial court initially granted the Gendreaus' motion to dismiss count III of the postappeal 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 loquitur 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 loquitur. Defendants assert that both the trial court's dismissal before trial of the res ipsa loquitur count and this court's determination in Reich I that plaintiff waived issues related to res ipsa loquitur became the law of the case. Defendants argue that under the law of the case doctrine plaintiff should therefore be barred from filing a complaint on remand that contains a count based on res ipsa loquitur.

In response, plaintiff does not address the trial court's dismissal of the res ipsa loquitur count before trial or his subsequent failure to include a count based on res ipsa loquitur in later amended complaints that he filed before trial. As to Reich I, plaintiff takes the position that this court "did not rule on anything except the propriety of the directed verdict." Plaintiff then asserts that the law of the case does not apply in this case. Plaintiff next cites section 2-616 of the Code of Civil Procedure (Code) (735 ILCS 5/2-616 (West 1998)) and several cases that allowed a party to file an amended complaint on remand after an appeal. Based on these authorities, plaintiff argues that he should now be allowed to file an amended complaint that includes a count based on res ipsa loquitur.

Generally, the scope of our review in an interlocutory appeal brought under Rule 308 is strictly limited to the question certified by the trial court. In re Detention of Anders, 304 Ill. App.3d 117, 120, 237 Ill.Dec. 845, 710 N.E.2d 475 (1999). Our standard of review in such an appeal is de novo. Weatherman v. Gary-Wheaton Bank, 186 Ill.2d 472, 480, 239 Ill.Dec. 12, 713 N.E.2d 543 (1999).

Contrary to the position taken by plaintiff, we believe that in Reich I this court not only decided that the trial court erred in directing a verdict for defendants but also decided that plaintiff waived his right to raise issues based on res ipsa loquitur. As the court explained in Reich I, plaintiff waived issues related to res ipsa loquitur:

"When an amendment to a pleading is `complete in itself' and does not make reference to or adopt a prior pleading, the prior pleading is `in effect abandoned and withdrawn.' Pfaff v. Chrysler Corp., 155 Ill.2d 35, 61 [182 Ill.Dec. 627, 610 N.E.2d 51] (1992), citing Bowman v. County of Lake, 29 Ill.2d 268, 272 (1963). `Allegations in a former complaint, not incorporated in the final amended complaint, are deemed waived; when a party files such an amended complaint, he thereby waives any objection to the trial court's ruling on the former complaint.' Pfaff, 155 Ill.2d at 61 [182 Ill.Dec. 627, 610 N.E.2d 51], citing Foxcroft Townhome Owners Ass'n v. Hoffman Rosner Corp., 96 Ill.2d 150, 153 [70 Ill.Dec. 251, 449 N.E.2d 125] (1983)." Reich I, slip op. at 9.

Thus, the question before us is whether under Reich I, where...