Dinerstein v. Evanston Athletic Clubs, Inc.
2016 IL App (1st) 153388
Ill. App. Ct.2016Background
- Dinerstein I: Plaintiffs sued Evanston Athletic Clubs for injuries from a rock-climbing fall; negligence count was involuntarily dismissed based on an exculpatory agreement, while willful-and-wanton and loss-of-consortium counts remained.
- Trial was set for April 13, 2015; an agreed motion to continue was denied on April 10, 2015.
- After the denial, counsel discussed voluntary dismissal under section 2-1009(a); plaintiffs voluntarily dismissed the remaining counts without prejudice on April 13, 2015.
- Plaintiffs refiled (Dinerstein II) 18 days later, alleging the same willful-and-wanton and loss-of-consortium claims (no negligence count).
- Defendant moved to dismiss Dinerstein II under section 2-619(a)(9) as barred by res judicata; plaintiffs produced affidavits saying defense counsel agreed to permit refiling, while defense counsel filed a contrary affidavit.
- The trial court dismissed Dinerstein II as barred by res judicata without reaching exceptions; the appellate court vacated and remanded for an evidentiary hearing on whether an exception applies.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether involuntary dismissal of negligence count in Dinerstein I was a final judgment on the merits for res judicata | Dinerstein: Not final because order didn't say "with prejudice" and plaintiffs voluntarily dismissed remaining counts without prejudice | Evanston: Rule 273 deems involuntary dismissals (absent specified exceptions) adjudications on the merits; therefore final | Held: Dismissal of negligence count was a final adjudication on the merits under Rule 273 and res judicata elements are met |
| Whether refiling Dinerstein II is barred by claim-splitting/res judicata | Dinerstein: Even if technical elements met, exceptions apply because defendant agreed or acquiesced to refiling; equity favors refiling | Evanston: No agreement or acquiescence; it raised res judicata promptly in the refiled action | Held: Res judicata bars Dinerstein II unless an exception applies; genuine factual dispute exists about whether defendant "agreed in terms" or "agreed in effect" to permit claim-splitting |
| Applicability of "acquiescence" exception (Restatement §26(1)) | Dinerstein: Defendant acquiesced by discussing voluntary dismissal and not objecting earlier | Evanston: Acquiescence means failure to object after refiling; defendant timely objected upon refiling | Held: Acquiescence does not apply because defendant asserted res judicata in the refiled action; acquiescence occurs when defendant fails to object post-refiling |
| Whether court should have dismissed without an evidentiary hearing on the agreement/acquiescence issue | Dinerstein: Affidavits show defense counsel agreed in terms/effect; trial court should not have resolved conflicts on affidavits alone | Evanston: Trial court implicitly resolved credibility and denied exceptions | Held: On a section 2-619 motion decided on competing affidavits, disputed material facts require an evidentiary hearing; appellate court vacated dismissal and remanded for hearing on agreement in terms/effect |
Key Cases Cited
- Rein v. David A. Noyes & Co., 172 Ill.2d 325 (superseding doctrine on claim-splitting and Restatement exceptions)
- Hudson v. City of Chicago, 228 Ill.2d 462 (res judicata bars claims that could have been decided; voluntary dismissal does not automatically protect refiling)
- Richter v. Prairie Farms Dairy, Inc., 2016 IL 119518 (interpretation of involuntary-dismissal finality under Rule 273)
- Dubina v. Mesirow Realty Development, Inc., 178 Ill.2d 496 (Rule 304(a) timing vs. finality; appealability after voluntary dismissal)
- Saxon Mortgage, Inc. v. United Financial Mortgage Corp., 312 Ill. App.3d 1098 (conduct implying agreement in effect to split claims may justify exception)
- Piagentini v. Ford Motor Co., 387 Ill. App.3d 887 (distinguishing agreement, agreement in effect, and acquiescence under Restatement §26)