Hernandez v. Bernstein
2011 IL App (1st) 102646
Ill. App. Ct.2011Background
- In 2005, Hernandezes filed legal malpractice claims against their former attorneys ( Bernstein, Grazian, Volpe, and Bernstein & Grazian, P.C.) for failing to pursue non-employer third-party claims and to advise on additional potential claims.
- Defendants argued the underlying third-party claims expired before representation began, with a two-year statute of limitations starting in 1995 during Jesse Hernandez’s prior Social Security proceedings.
- In August 2007, the trial court dismissed the complaint without prejudice, and plaintiffs were allowed to amend reasserting the time-barred underlying claims and adding Spector & Lenz allegations.
- In April 2009, Hernandezes voluntarily dismissed the suit without prejudice under 735 ILCS 5/2-1009.
- In September 2009, Hernandezes refiled a single-count legal negligence action reasserting the Spector & Lenz allegations and the time-barred underlying claims; defendants moved to dismiss on statute of limitations and res judicata grounds.
- The trial court dismissed the new suit with prejudice based on res judicata; Hernandezes appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the August Order was final and barred the new suit | August Order was not final and could not bar later litigation | August Order disposed of a separate branch and was final under res judicata | August Order not final; res judicata did not bar the instant litigation |
| Whether the August Order dismissed a separate theory or the entire negligence claim | Dismissal affected only certain allegations, not the whole negligence theory | August Order was final as it disposed of grounds for recovery | Dismissal only narrowed allegations under a single theory; not a final, separate claim |
| Whether voluntary dismissal and lack of finality in the initial suit affects finality under res judicata | Voluntary dismissal prevented a res judicata bar | Dismissal rules and finality would render orders final upon voluntary dismissal | Res judicata does not bar where there was no final order prior to voluntary dismissal; August Order nonfinal |
Key Cases Cited
- Rice v. Burnley, 230 Ill. App. 3d 987 (1992) (finality depends on whether order disposes of separate branch of controversy)
- Piagentini v. Ford Motor Co., 387 Ill. App. 3d 887 (2009) (dismissal of certain allegations under single theory not final)
- Hull v. City of Chicago, 165 Ill. App. 3d 732 (1987) (finality requires disposition of entire controversy or rights of the parties)
- Matejczyk v. City of Chicago, 397 Ill. App. 3d 1 (2009) (multifactor discussion on res judicata and finality; inapposite here)
- Hudson v. City of Chicago, 228 Ill. 2d 462 (2008) (voluntary dismissal terminates suit; not that nonfinal orders become final on dismissal)
- Rein v. David A. Noyes & Co., 172 Ill. 2d 325 (1996) (distinguishable; splits claims after final judgment subject to res judicata)
- Williams v. Ingalls Memorial Hospital, 408 Ill. App. 3d 360 (2011) (nonfinal orders; leave to replead; not final for res judicata)
- DeLuna v. Burciaga, 223 Ill. 2d 49 (2006) (2-619 motion standard and res judicata framework)
- Giannini v. Kumho Tire U.S.A., Inc., 385 Ill. App. 3d 1013 (2008) (2-619 standard; allegations deemed sufficient at the pleading stage)
- Ignarski v. Norbut, 271 Ill. App. 3d 522 (1995) (elements of legal malpractice claim)