Kantner v. Waugh, 2017 IL App (2d) 160848

In 2008 Kantner sued Mercy and Dr. Waugh for injuries from bariatric surgery, asserting informed-consent and negligence claims; the informed-consent claim was dismissed in 2009 and negligence proceeded to trial.
On the morning of trial in December 2015 plaintiff’s counsel sought a continuance due to being recently battered and visibly injured; defense counsel objected because of potential expert cancellation fees.
The court indicated it would grant a continuance only if plaintiff paid cancellation fees, and suggested as an alternative that plaintiff voluntarily dismiss and refile; defense counsel did not contradict this suggestion and offered to prepare a dismissal order.
The court assured plaintiff’s counsel that if she voluntarily dismissed and refiled the case it would likely be set for trial in roughly the same September 2016 timeframe and that dismissal could be done “with no costs assessed.”
Kantner voluntarily dismissed the negligence claim and refiled in February 2016; defendants moved to dismiss the refiling based on res judicata (claim-splitting).
The trial court dismissed with prejudice, reasoning that only an express agreement to waive res judicata would allow refiling; the appellate court reversed, holding defendants’ conduct created an "agreement in effect" not to object to refiling.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether res judicata bars Kantner’s refiling after a prior final judgment on a different claim	Kantner conceded claim-splitting but argued the agreement-in-effect exception (defendants implied they would not object to refiling) applies	Defendants argued no express waiver was made and under Matejczyk an express reservation/agreement is required	Held: Agreement-in-effect exception applied; conduct by defendants (suggesting dismissal+refiling, offering to draft order, not correcting court’s assurances) implied they would not object to refiling, so dismissal reversed and case reinstated.

Rein v. David A. Noyes Co., 172 Ill. 2d 325 (Ill. 1996) (adopts Restatement (Second) of Judgments § 26(1) exceptions to rule against claim‑splitting)
Hudson v. City of Chicago, 228 Ill. 2d 462 (Ill. 2008) (res judicata bars splitting claims; requirements for claim preclusion)
Matejczyk v. City of Chicago, 397 Ill. App. 3d 1 (Ill. App. 2009) (discusses limits on exceptions to claim‑splitting; focuses on express reservation by the court)
Severino v. Freedom Woods, Inc., 407 Ill. App. 3d 238 (Ill. App. 2010) (treats trial court’s leave to refile as potentially sufficient to allow refiling despite prior final judgment)