ULRIKA BJORKSTAM and JOSEPH DANIEL DRAY, Plaintiffs-Appellants, v. MPC PRODUCTS CORPORATION, d/b/a Woodward MPC, a Corporation, and WOODWARD, INC., a Corporation, Defendants-Appellees.
No. 1-13-3710
Appellate Court of Illinois, First District, Fourth Division
November 13, 2014
2014 IL App (1st) 133710
JUSTICE EPSTEIN delivered the judgment of the court, with opinion. Justices Howse and Taylor concurred in the judgment and opinion.
Decision Under Review: Appeal from the Circuit Court of Cook County, No. 13-L-007339; the Hon. Jeffrey Lawrence, Judge, presiding. Judgment: Affirmed.
(Note: This syllabus constitutes no part of the opinion of the court but has been prepared by the Reporter of Decisions for the convenience of the reader.)
In an action for the injuries plaintiffs suffered as bystanders during a plane crash in Mexico City based on the claim that the crash was caused by faulty parts, including a part manufactured by defendants, the trial court properly dismissed the complaint plaintiffs refiled in Illinois after their initial Illinois complaint was dismissed for forum non conveniens based on the trial court‘s finding that a Texas court was a more convenient forum and the complaint plaintiffs filed in the Texas court was dismissed for want of prosecution on the ground that plaintiffs failed to exercise diligence in serving defendants with the Texas suit, since plaintiffs violated
Counsel on Appeal: Floyd A. Wisner, of Wisner Law Firm, P.C., of Chicago, for appellants. Michael G. McQuillen, John M. Kelly, Austin W. Bartlett, Gina M. Diomedi, and Christine M. Niemczyk, all of Adler Murphy & McQuillen LLP, of Chicago, for appellees.
¶ 1 This appeal addresses whether plaintiffs Ulrika Bjorkstam and Joseph Daniel Dray were entitled to reinstate their complaint against defendants MPC Products Corporation (MPC) and Woodward, Inc. (Woodward), in the circuit court of Cook County, Illinois, after it had been dismissed for forum non conveniens. Plaintiffs filed their initial complaint in the circuit court of Cook County. The court dismissed plaintiffs’ suit for forum non conveniens, finding that Harris County, Texas, was a more convenient forum. Plaintiffs then filed suit in Texas. In Texas, Woodward moved to dismiss plaintiffs’ complaint for want of prosecution, alleging that plaintiffs failed to exercise diligence in serving it with the lawsuit. The Texas district court granted Woodward‘s motion and plaintiffs refiled their complaint against both defendants in Illinois.
¶ 2 The Illinois circuit court granted defendants’ motion to dismiss the complaint pursuant to
I. BACKGROUND
¶ 4 Plaintiffs were bystanders injured during a plane crash in Mexico City, Mexico, on November 4, 2008. On November 3, 2009, plaintiffs filed a lawsuit in the circuit court of Cook County, alleging that the plane contained faulty parts, including the horizontal stabilizer actuator manufactured by defendants, whose principal place of business was in Illinois.
¶ 5 On December 10, 2010, the Cook County circuit court granted defendants’ motion to dismiss plaintiffs’ complaint for forum non conveniens, finding that Harris County, Texas, was a more appropriate forum. Reflecting the conditions to dismissal for forum non conveniens listed in
“Defendants’ Motions to Dismiss on the basis of forum non conveniens are hereby granted upon the conditions that:
(1) If Plaintiff elects to file the action in another forum within six months of after the dismissal, including joining Defendants to the case *** Pending in the District Court of Harris County, Texas, all defendants named in the instant matter must accept service of process from that court. [Citation.];
(2) Defendants must waive the statute of limitations defense if the statute has run in the other forum. [Citation.];
(3) The case pending before this Court may be reinstated if any Defendant refuses to abide by the mandatory conditions for dismissal [citation]; and
(4) The case pending before this Court may be reinstated if the Court in the other forum refuses to accept jurisdiction and Plaintiff requests reinstatement within 30 days after final order refusing jurisdiction.”
Plaintiffs did not appeal this order.
¶ 6 On March 11, 2011, plaintiffs filed a petition1 in the district court of Harris County, Texas, naming defendants. On March 15, 2011, plaintiffs’ counsel mailed a copy of the petition to defendants’ counsel. The cover letter accompanying the petition listed defendants’ counsel‘s address as, “1 North La Salle Street, Suite 2300, Chicago, Illinois 30302.”
¶ 7 On January 31, 2013, plaintiffs issued a citation2 to Woodward, but not MPC, notifying it of the Texas petition. The citation indicated that Woodward was served with a copy of the citation and plaintiffs’ petition. On March 1, 2013, Woodward moved to dismiss the petition for want of prosecution, asserting that plaintiffs had failed to exercise due diligence in serving Woodward.
¶ 8 On June 14, 2013, the Texas district court held a hearing on Woodward‘s motion to dismiss plaintiffs’ petition. In support of the motion, Woodward argued that it had not been formally served for two years after plaintiffs filed their petition. Woodward‘s counsel asserted that he never received the copy of the petition mailed to his offices on March 15, 2011 because plaintiffs listed the wrong ZIP code on their letter. Plaintiffs argued that Woodward was aware of the litigation, as Woodward and MPC were involved in the Illinois litigation, plaintiffs mailed Woodward‘s counsel a copy of the petition, and Woodward and MPC had participated in depositions and mediation before being served with the petition.
¶ 9 On June 21, 2013, the Texas district court entered a one-paragraph order granting Woodward‘s motion to dismiss for want of prosecution. The court‘s order indicated that plaintiffs’ suit against Woodward was dismissed with prejudice. It did not relate any findings regarding the forum non conveniens order.
¶ 10 On June 26, 2013, plaintiffs filed a new complaint in the circuit court of Cook County, Illinois, naming both defendants. The complaint‘s allegations mirrored those of the lawsuits
¶ 11 The circuit court of Cook County held a hearing on defendants’ section 2-619(a)(4) motion on November 1, 2013. Plaintiffs asserted that defendants had violated the forum non conveniens order by challenging plaintiffs’ service of process in Texas. The circuit court found that plaintiffs’ refiled complaint constituted a collateral attack on the Texas district court‘s judgment. Although the circuit court suggested that the Texas district court “failed to enforce [the forum non conveniens] order,” it declined to alter the judgment of the Texas district court dismissing plaintiffs’ petition. The circuit court granted defendants’ section 2-619(a)(4) motion. Plaintiffs appeal.
II. ANALYSIS
¶ 13 Plaintiffs challenge the circuit court‘s grant of defendants’ section 2-619(a)(4) motion to dismiss, asserting that the trial court erred in concluding that the Texas district court‘s dismissal order barred plaintiffs from reinstating their lawsuit in Illinois. Plaintiffs contend that they were entitled to reinstate their suit because defendant violated the Illinois circuit court‘s forum non conveniens order by challenging the efficacy of plaintiff‘s service of process in Texas. Defendants assert that the Texas district court‘s order precluded plaintiffs from reinstating their suit and they were entitled to challenge plaintiffs’ defective service of process in the Texas district court. While we agree with plaintiffs that res judicata did not preclude the Illinois circuit court from deciding whether they were entitled to reinstate their complaint, plaintiffs were ultimately not entitled to reinstate their complaint because defendants did not violate the forum non conveniens order or
¶ 14 “A motion to dismiss under
¶ 15 We first address whether res judicata precluded the Illinois circuit court from determining whether plaintiffs were entitled to reinstate their suit. We then turn to whether plaintiffs were entitled to reinstate their suit in Illinois.
A. Res Judicata
¶ 17 Plaintiffs contend that the circuit court erred in granting defendants’ section 2-619(a)(4) motion because the Texas district court‘s dismissal of plaintiffs’ Texas petition did not bar
¶ 18 Under the full faith and credit clause of the United States Constitution, we must “give the judgment of a sister state at least the res judicata effect that the sister state rendering the judgment would give to it.” Morris B. Chapman & Associates, Ltd. v. Kitzman, 193 Ill. 2d 560, 565 (2000); see
¶ 19 Under Texas law, “[r]es judicata precludes relitigation of claims that have been finally adjudicated, or that arise out of the same subject matter and that could have been litigated in the prior action.” Amstadt v. United States Brass Corp., 919 S.W.2d 644, 652 (Tex. 1996). To establish that res judicata applies, the party asserting it must prove the existence of three elements: “(1) a prior final judgment on the merits by a court of competent jurisdiction; (2) identity of parties or those in privity with them; and (3) a second action based on the same claims as were raised or could have been raised in the first action.” Id.
¶ 20 In this case, the Texas district court‘s dismissal of plaintiffs’ petition met the first element of res judicata. Under Texas law, an order dismissing a petition for want of prosecution is generally not considered a final judgment on the merits for purposes of res judicata. Christensen v. Chase Bank USA, N.A., 304 S.W.3d 548, 553 (Tex. App. 2009). “But if an order dismissing for want of prosecution erroneously provides that the dismissal is with prejudice and no appeal is taken to correct the error, the order will support the application of res judicata.” Id. In this case, the Texas district court dismissed plaintiffs’ petition for want of prosecution and indicated that the dismissal was with prejudice. At the hearing on defendants’ section 2-619(a)(4) motion in the Illinois circuit court, plaintiffs’ counsel noted that he had not appealed the Texas court‘s dismissal of the petition. Under Texas law, therefore, the Texas district court‘s dismissal order constituted a judgment on the merits for purposes of res judicata.
¶ 21 With respect to the second element, “a former judgment bars a second suit against all who were in ‘privity’ with the parties to the first suit.” Getty Oil Co. v. Insurance Co. of North America, 845 S.W.2d 794, 800 (Tex. 1992) (quoting Benson v. Wanda Petroleum Co., 468 S.W.2d 361, 363 (Tex. 1971)). “A privy is one who is connected in law with a party to the judgment as to have such an identity of interests that the party to the judgment represented the same legal right.” Ayre v. J.D. Buckley Allshouse, P.C., 942 S.W.2d 24, 27 (Tex. App. 1996). Privity is determined on a case-by-case basis. Getty Oil Co., 845 S.W.2d at 800-01. In this case, defendants were named in both the Texas proceedings and the Illinois proceedings. Only Woodward moved to dismiss plaintiffs’ Texas petition, however, not MPC. Although defendants are related corporate entities, the record lacks sufficient facts to determine whether their interests are so aligned that we can consider them to be in privity. We need not resolve whether the same parties were involved in the Texas and Illinois proceedings, however, as the third element of res judicata is not met in this case.
¶ 22 The Texas district court‘s order does not meet the third element of res judicata because this case does not involve a claim that could have been resolved by the Texas district court. In determining whether two claims are the same for purposes of the third prong, Texas applies a “transactional approach” that asks whether “a subsequent suit *** arises out of the same subject matter as the prior suit, and that subject matter could have been litigated in the
¶ 23 Although res judicata did not preclude the circuit court from considering whether plaintiffs could reinstate their complaint, “we may affirm the judgment of the trial court on any basis in the record, regardless of whether the trial court relied upon that basis or whether the trial court‘s reasoning was correct.” Alpha School Bus Co. v. Wagner, 391 Ill. App. 3d 722, 734 (2009). We thus turn to whether plaintiffs were entitled to reinstate their complaint in Illinois because defendants refused to accept service of plaintiffs’ Texas petition.
B. Illinois Supreme Court Rule 187(c)(2)
¶ 25 As a condition to granting defendants’ motion to dismiss plaintiffs’ first Illinois complaint for forum non conveniens, the Illinois circuit court required that defendants “accept service of process from” the district court of Harris County, Texas, if plaintiffs refiled their suit in six months. The circuit court derived that condition from
¶ 26 Plaintiffs contend that defendants violated
¶ 27
¶ 28 In determining whether defendants refused to accept service under
¶ 29 Plaintiffs first contend that
¶ 30 We find support for this conclusion in Miller v. Consolidated R. Corp., 173 Ill. 2d 252 (1996). In Miller, our supreme court held that the condition that the defendant must accept service from the other forum did not constitute an impermissible waiver of the defendant‘s constitutional right to object to the forum‘s lack of personal jurisdiction over the defendant. Id. at 261. In reaching that conclusion, the court stated, “[t]he condition of acceptance of service of process does not equate with a waiver of personal jurisdictional challenges to another forum.” Id. Service of process is an element of personal jurisdiction. See BAC Home Loans Servicing, LP v. Mitchell, 2014 IL 116311, ¶ 18 (“Personal jurisdiction may be established either by service of process in accordance with statutory requirements or by a party‘s voluntary submission to the court‘s jurisdiction.“). Contrary to plaintiffs’ contention, therefore,
¶ 31 Even though defendants did not waive their right to challenge plaintiffs’ service, we must still address whether defendants refused to “accept service of process from” the Texas district court in violation of
¶ 32 We further conclude that, in this case, the law of Texas dictates what constitutes sufficient “service of process” under
¶ 33 Under Texas law, a “citation” is a formal form of notice given to the defendant upon the initiation of a cause of action. See
¶ 34 In this case, plaintiffs initiated a cause of action in Texas against defendants. In order to effectuate “service of process from” the Texas court, they were thus required to serve defendants with a citation in accordance with the Texas Rules of Civil Procedure. Plaintiffs did not serve MPC with a citation at any point in the Texas proceedings. Although plaintiffs did formally serve a citation upon defendant Woodward on January 31, 2013, the Texas district court determined that this service was ineffective because plaintiffs did not act diligently under Texas law. We are bound to afford preclusive effect to the Texas court‘s ruling on this issue. Morris B. Chapman & Associates, Ltd., 193 Ill. 2d at 565. Plaintiffs cannot claim in this appeal that their January 31, 2013 service constituted valid service of process under Texas law.
¶ 35 Plaintiffs maintain that they served defendants because they mailed defendants’ counsel a copy of the complaint on March 15, 2011 and
¶ 36 Even if plaintiffs’ mailing had been a proper method of service in Texas, plaintiffs did not trigger defendants’ obligation to accept service under the terms of the forum non conveniens order. That order required that plaintiffs serve defendants with process “from [the Texas] court.” (Emphasis added.) This language suggests that the Illinois circuit court intended that defendants accept service via formal judicial order, e.g., a summons or citation, rather than other, informal means. Although the Illinois circuit court arguably could have required defendants to accept service through less formal means as a condition to the forum non conveniens dismissal, it did not. The only service emanating from the Texas district court was plaintiffs’ January 31, 2013 service of Woodward, which the Texas district court found to be insufficient. Plaintiffs’ March 15, 2011 letter did not contain a copy of the citation or any other court order. In sum, plaintiffs did not effectuate service from the Texas district court that defendants would have been obligated to accept under the terms of the forum non conveniens order.
¶ 37 Plaintiffs also contend that defendants were aware of their Texas lawsuit, as they had participated in the Illinois circuit court proceedings, depositions, and an out-of-court mediation. Under Texas law, however, “[t]he propriety of service is evaluated under a strict-compliance standard.” MobileVision Imaging Services, L.L.C. v. LifeCare Hospitals of North Texas, L.P., 260 S.W.3d 561, 565 (Tex. App. 2008) (citing Boreham v. Hartsell, 826 S.W.2d 193, 195 (Tex. App. 1992)). “[M]ere knowledge of a pending suit does not place any duty on a defendant to act.” Wilson v. Dunn, 800 S.W.2d 833, 837 (Tex. 1990); see also MobileVision Imaging Services, L.L.C., 260 S.W.3d at 565 (“The law is clear that reasonable notice or actual notice of a pending lawsuit cannot substitute for proper service of process.“). Regardless of defendants’ knowledge of plaintiffs’ lawsuit, plaintiffs cannot demonstrate that they strictly complied with the requirements of service of process in Texas. Defendants’ knowledge of the lawsuit did not act as a substitute for service of process.
¶ 38 We recognize that, on an equitable basis, this outcome is disquieting. Defendants were fully aware of the pending Texas case, participating in out-of-court actions relating to the litigation. Defendants may have maintained an informed, deliberate silence with respect to plaintiffs’ service of process. Yet the plain language of
III. CONCLUSION
¶ 40 For the reasons stated above, we affirm the trial court‘s dismissal of plaintiffs’ complaint.
¶ 41 Affirmed.