Leow v. a & B Freight Line, Inc.

update his or her circulator’s inadvertent failure registration may voter address cancel the otherwise sign signatures petition of the who valid voters sheet, thereby nullifying right voters’ to endorse those Bass, App. Ill. the candidate of their choice. See cautiously 1113. need to at We are mindful tread statutory which construing language when restricts right people’s to endorse and nominate the candidate See, Tully e.g., Edgar, their choice. v. Ill. 2d (1996) (legislation right which people’s limits implicates right the fundamental nominate candidates vote). legisla of a Accordingly, the absence clear hold the Elec contrary, tive statement we in the require Code the address tion does nominating petition pur on a filed circulator’s affidavit where to the address suant to section 7—10 identical registered the circulator to vote. judgment we reverse the foregoing

For reasons of the appellate judgment court and affirm the circuit court. reversed;

Appellate judgment circuit court affirmed. (No. 80438. LEOW, v. A&B FREIGHT Appellant,

HAROLD S. (A&B Inc., INC., Line, Appel- LINE, al. et lee). February 1997.

Opinion filed McMORROW, J., joined by FREEMAN, JJ., MILLER and specially concurring. J. Slaga, Joseph

Sandra Morrissey A. & Associ- ates, Rockford, appellant. for Devine, P. McCarthy,

James of Williams & Rockford, appellee. for Coladarci, Ltd., of Chicago,

Peter R. for amicus cu- riae Trial Lawyers Illinois Association. opinion

JUSTICE HARRISON delivered court: Leow, 11, 1992,

On plaintiff, March Harold suffered injuries in a At the of the loading dock accident. time accident, using a plaintiff was forklift load skids containing products manufactured onto semi-trailer Line, Inc., truck A&B Freight owned defendant by its Keith operated employee, defendant Pasch. Pasch alleges warning, Plaintiff that without drove dock, away loading causing truck from the semi-trailer fall operating the forklift which was from the Leow floor loading dock to the concrete below. 8, 1994, single-count

On March Leow com- filed Line, Inc., defen- plaint naming Freight sole alleged dant. count that Keith Pasch committed The injury which negligent various acts resulted alleged further that A&B plaintiff. Line, Pasch, employee, liable through its was injuries respondeat superior under the doctrine of 14, 1994, Leow by September Leow. On filed suffered adding against count complaint amended second complaint Pasch. I of amended named A&B Count Freight original Line and remained identical com- II, Pasch, against his plaint. alleged negligent Count that operation perma- of the semi-trailer truck resulted in injuries nent to Leow. filed a to count

Subsequently, Pasch motion dismiss 619(a)(5) II, the Code of Civil pursuant to section 2— (735 619(a)(5) (West 1994)), claim Procedure ILCS 5/2 — two-year run as ing statute limitations had that motion to dismiss granted to him. The trial court Pasch’s as properly named a defen finding that Pasch was not Septem filed on the amended was dant until 1994, years the accident' 14, more than two after ber to ruling appealable pursuant The was made place. took (155 304(a)) 304(a) on R. Supreme Court Rule Ill. 2d 28, appeal ruling. 1994. Leow did not this September 1, 1994, Freight Line filed a mo- On November A&B I plaintiff's complaint tion to dismiss count on the of an grounds prejudice that a dismissal with action Freight’s Pasch, ac- against employee, any A&B barred against tion A&B on the doctrines of re- based and The trial spondeat superior judicata. court granted Freight’s A&B to on motion dismiss count I January ruling The for this 1995. basis was that involuntary II, Pasch, dismissal of count acted a prior adjudication on the merits therefore doctrine of res barred claim against Leow’s Freight. A&B

Leow asked the trial to court reconsider its order of 31, 1995, January dismissing count I his complaint. relief, his motion for reconsideration and other Leow requested that the trial court amend its first order of September dismissing II inserting count language Pasch was not an adjudication on the merits of the action A&B Freight. The trial court denied Leow’s motion reconsider. appellate affirmed, justice one with

specially concurring. App. 276 Ill. 3d 985. The court held II, dismissal of count on stat ute grounds, of limitations a prior was (134 pursuant the merits Supreme Court Rule 273 Ill. 273), 2d R. and therefore the dismissal acted as res to Leow’s claim against Freight. Ill. 3d at App. granted 988. We petition Leow’s leave appeal. follow, Ill. 2d R. 315. For reasons which we reverse.

At issue in appeal whether Pasch’s involun- dismissal, tary grounds, on statute of limitations oper- 180 adjudication barring the

ates an on merits Leow’s timely against defendant, claim respondeat superior Freight. prior judgment is A&B We look to whether a adjudication an on merits to whether it the determine against be accorded res effect another should judicata defendant to the action. provides adjudi an

The doctrine judicata res by competent a cation on the merits "rendered court rights jurisdiction parties is as to of the conclusive privies.” and their ex rel. Burris v. People Progressive (1992). Ill. 294 An 2d Inc., Developers, Land is an bar subse on merits absolute raising quent and actions the same claims or demands involving parties privies. same or their Progressive Land, 151 Ill. 2d at 294. Courts have determined subsequent action, to bar a three criteria for res judicata (1) judgment a must met: there must be final be (2) jurisdiction; competent merits rendered (3) identity identity action; of causes of and parties privies. Land, 151 Ill. 2d at or their Progressive 294. element in seri

In this res concerning dispute is the element whether ous first granting in favor of Pasch of the barring a final on the merits constitutes Freight. remaining ele A&B second claim clearly present since Leow is su ment of injuries ing Freight and Pasch the same A&B both arising Furthermore, Leow’s of the same accident. out theory Freight A&B is based on of vicari claim employer theory liability and such ous under " de and the same’ are 'one considered Ill. Authority, fendant.” Downing Chicago Transit v. (1994),quoting Ill. Co., 2d v. Cab Towns Yellow purposes, Therefore, for res judicata privity ele- with and the third is in Pasch only remaining present. dispute ment is whether the first element was established.

Therefore, we to determine whether the invol need Pasch, of untary two-year of due to the statute dismissal running, adjudication as an operate limitations should suit barring against employer. on the merits Pasch’s Plaintiff contends that the the

Pasch could not be considered an on the merits because actual Leow’s claim were merits only the never examined. Plaintiff notes that the issue court when it Pasch that was resolved dismissed was he a party named to the lawsuit after the statute of limita had run. that a prior judgment tions Plaintiff contends effect, judicata against should not be res an accorded action, other judgment defendant unless the support, reached the actual merits of the suit. In Leow cites to v. Downing Chicago Authority, Transit 162 Ill. (1994), a recent decision of this court. Downing, summary judg- this court held that a order, ment entered in favor a bus on driver statute grounds, limitations was judicata not a res bar to timely respondeat Chicago suit the superior (CTA), Authority employed Transit which him. In Down- a CTA ing, bus driven defendant Williams struck plaintiff, bicyclist. Plaintiff suit against filed the CTA agent.” and its "unknown As in employee and the case bar, plaintiff naming at his amended both employer as defendants after the two- First, year expired. statute of limitations had the trial Williams, granted court in summary judgment favor reasoning that he properly was not named defendant years until more than two after the place. accident took Subsequently, the trial granted court the CTA’s motion summary judgment appellate and the court affirmed. rulings by The basis for these lower courts was summary judgment "the prior favor of Williams was a merits, adjudication and therefore the doctrine of plaintiffs barred claims present Ill. 2d Downing, CTA.” at 73. determined,

This court reversed. The court as we here, have element of res dispute releasing was whether the em adjudication on ployee liability from was considered an determining 2d at 74. In Downing, the merits. Ill. summary judgment as to was an whether Williams merits, it "cannot adjudication on the stated summary judgment which was ignore the basis on 162 Ill. 2d at 77. court went on granted.” Downing, This judgment in granting summary to examine the basis for summary judg reasoned that: "When Downing has ment the statute of limitations granted because run, the are never examined.” the merits of action at 77. The court held that Downing Ill. 2d Downing, summary judgment when bears granting the basis for case, "it relationship of the no to the actual merits of res inappropriate apply be to the doctrine would party Downing, to the action.” judicata to another that to label Finally, Ill. this court concluded 2d at 77. order, Downing, as the in summary judgment such one quintes be the adjudication on the merits "would exalting Downing, act of form over substance.” sential 162 Ill. 2d at 77. virtually to decision seems identical Downing

The cases, timely were employers bar. In both the the case at not added named, employees the were but claims expired. Both the of limitations had until after statute involuntary dismissal or received either an employees in their based on their statute summary judgment favor employers Subsequently, the defenses. of limitations claimed release their in that the remaining both suits operated grounds, of limitations on statute employees, barring the the claims on merits adjudications At issue both was whether these them. cases prior given judgments with should effect respect remaining the defendants. Downing stated,

As court concluded summary granting basis for bore no relation- ship Therefore, to the actual merits of the the court case. summary judgment refused to label a order statute grounds limitations on the merits. In present apply reasoning if we Down- from ing and look to the basis on which the dis- granted, missal was we must also conclude actual merits of the action were never examined. only cases, both issue lower courts decided was timely employees whether the were named as defen- Downing, granting dants. As the basis for employee’s relationship motion bears no to the actual reasoning, merits of Leow’scase. Under this it would be improper apply the doctrine of res to an- party other to the action. which distinction can be drawn between type procedural

the two cases is the used device employees the defendant their assert statute of limi Downing, tations defenses. As stated in the driver filed summary judgment, a motion for while in the case at bar, Pasch filed section 2—619 motion to dismiss. De fendant A&B contends that the difference be procedural summary tween the choice a motion judgment over a to is motion dismiss critical. Defendant pursu asserts that such a distinction is critical because (134 Supreme ant to Illinois Court Rule Ill. 2d R. 273) involuntary an dismissal of an action an is deemed adjudication purposes invoking on the for merits the "[ujnless judicata. doctrine Rule 273 states that the order a of dismissal or statute of this State otherwise specifies, involuntary action, an of an dismissal other jurisdiction, improper than a dismissal for lack of for join indispensable party, oper venue, to an or failure adjudication upon as an the 134 Ill. R ates merits.” involuntary the 273. Defendant asserts that since dis excep not missal of Pasch did fall under one of these Rule and the tions outlined in order dismissal specify otherwise, did operated in favor Pasch adjudication

as an on the merits. argues Downing supports Defendant that this inter pretation Downing recognize Rule 273. court did involuntary an distinction between dismissal and summary granting judgment, stating that order Rule only applies as when to dismissals such a motion to granted. Downing, under section 2—615 or 2—619 is dismiss Furthermore, 75.

162 Ill. 2d at applied that if Rule had court stated in dicta compel opposite Downing, it result would because "involuntary operate dismissals do indeed as certain judgments Downing, 2d at on the merits.” 162 Ill. 75.

Following Downing, applied Rule this court Noyes Co.,& Rein v. David A. 172 Ill. 2d 335-36 (1996), hold of a claim on statute of operated grounds on the limitations barring plaintiffs asserting claim in a merits from against Rein, the same defendants. successive action distinguishable. case, however, Unlike that mat separate ter us involves claim differ before ent defendant. is critical. Where a different defen-

This distinction present involved, as in the Rule 273 cannot dant is mechanically, doing yield applied would be because so unjust results. If rule be invoked absurd and could precluded seeking plaintiff here, from redress would Freight, employer, simply he from A&B because attempt join employee. Pasch, the made a belated join attempted employee, the ac- Had he never proceeded would have nor- tion

185 molly. Considering a even nec that the employer essary party litigation in (see cases 135 such as City Chicago, v. McCottrell (1985)), App. 517, Ill. 519 dismissal A&B plaintiff's delay adding based on in Pasch makes no sense at all. anomalies, such

To avoid we must look to the purpose determining intent and of Rule 273 whether a dismissal one based statute defendant on adjudica grounds limitations should be deemed to be tion on the merits as to a different defendant. Rule 273 adopted was in 1975and was modeled after Federal Rule 41(b). 273, of Civil Ill. Procedure 58 2d R. Committee 41(b) Therefore, Comments. we will examine Rule history guide interpretation its to our Rule 273. At grounds law, common a dismissal on other than the actual merits of the case would not constitute res later 169, in a case. F.2d 264 v. Perry, Madden (7th 1959); 175 Cir. 91 States, U.S. v. United Haldeman Supreme 584, 585-86, 433, 23 L. Ed. The 41(b) Court has stated that it did not discern in Rule "a purpose change principle to this common-law with re spect to dismissals in which merits could not be plaintiff satisfy precondi reached for failure of the 265, 286, tion.” States, 365 U.S. L. v. Costello United (1961). According 565, 534, Ed. 2d 81 S. Ct. 41(b) Supreme Court, the effect of Rule apply dismissals was intended to to situations where a preparing defendant had to incur the inconvenience of controversy. Costello, to meet the merits of 365 U.S. at 2d at L. Ed. 81 S. Ct. at 545. Applying principles, Supreme Court, these previous complaint Costello, held the dismissal of proceeding, in a denaturalization for failure file an good cause, affidavit was not on the 41(b). merits under Court Rule reasoned when provided determining dismissals, not otherwise whether adjudications operate rule, for under them to those merits, to confine "it seems reasonable policy the enumerated behind where situations grounds applicable.” equally 286, at 365 U.S. Costello, further 565, at 545. The Court at 81 S. Ct. 5 L. Ed. 2d govern- obtaining dismissal, a due reasoned put affidavit, did failure to file ment’s petitioner preparing and defense to the trouble of meeting 287, at 365 U.S. Costello, merits of the case. Therefore, the 565, at 81 S. Ct. 545. 5 L. Ed. 2d at 41(b) policy Supreme Rule that the behind Court held by treating fail- dismissal be furthered would not merits. on the as an file an affidavit ure to at 81 S. Ct. L. Ed. 2d at U.S. at Costello, 546.

Accordingly, separate in- are defendants where 41(b),only types those Rule volved, that as with we hold policy behind that serve dismissals of Supreme adjudica- as should be treated Rule 273 Court after 273 was modeled Since Rule on the merits. tions 41(b), policy the rules is behind Rule Federal 41(b) ef- dismissals, the res Rule same. As with apply to to also intended was of Rule 273 dismissals fect put the inconve- are to where defendants situations preparing Rule of the case. meet the merits nience of relitigat- protect designed a defendant from 273 was again ing or the defendant after matter over the same proceeding. prior privy in a was dismissed his Freight dismissing policy A&B is not served That analysis, appar- previous it is From our this case. from inconve- incur the had to never that A&B ent meeting preparing merits of defense nience of Freight’s controversy. Pasch, A&B In this reason agent, the sole action for from this was dismissed properly after until a defendant named was not he expired. statute of limitations had Such an order of decides the merits of Pasch’s section 2—619 motion and was not a determination of the merits of the underlying claim. Since the merits were examined, never A&B Freight put was never to the in- convenience of preparing a defense. A&B Freight merely dismissal, asserted that Pasch’s involuntary grounds not even in controversy suit, in A&B Freight’s acted as plaintiffs claim against Freight. effect, Pasch’s defense simply was transferred to A&B Freight, and no issues between Leow and A&B Freight were actually ever decided. We conclude that the policy model, behind Rule and its 41(b), Federal Rule would not be by treating furthered an involuntary dis- missal on statute of grounds limitations an adjudica- tion on the merits under these circumstances.

We further find that the fact that the employee in this case utilized a section dismiss, 2—619 motion to rather than a motion for summary judgment, does not warrant a different result from that reached in Down- ing. The policy behind Rule 273 and its federal counter- part supports a decision consistent with the reasoning in Downing. To adhere policy behind Rule an involuntary dismissal as to the employee, like a sum- mary judgment, should not automatically labeled judgment on the merits with respect to the employer. rather, But as directed in Downing, the basis on which the judgment granted was should be examined to determine whether the merits of the case were ever considered.

Moreover, on a dismiss, section 2—619 motion to trial court has even less of an opportunity to examine the real a plaintiffs merits of case than a on motion for summary judgment. On summary motions for judgment, trial courts normally pleadings, examine depositions, file, admissions on and affidavits to determine whether to be tried issue of material fact any general there is 156 Ill. Sycamore Hospital, jury. Municipal Gilbert v. dismiss, Section 2—619 motions to 517-18 hand, for courts to a mechanism provide on the other defects and de of law based on certain dispose of issues (West fenses, in the statute. 735 ILCS outlined 5/2 —619 1994). that already determined the court Downing, agent, on summary judgment granting an order the ac not a bar to grounds, limitations was statute of being reason that when principal, tion for failure to meet granted summary are limitations, actual merits of the suit statute of The stan 162 Ill. 2d at 77. Downing, never examined. dismissals, 2—619 higher for section dard should not be look at the merits less chance to where a court has even We conclude cause of action. underlying a section 2—619 motion to treat there is no reason summary judg a motion for differently than dismiss the same granted were both motions ment when grounds. case, Pasch was dismissed Downing, as in

In this relationship to bearing no suit for reasons from the dis- merits. conclude actual We merits on the was not missal of Pasch was res judicata first element of Freight. The as to A&B therefore, grant case; it was error present in the in Downing, As motion to dismiss. Freight’s was principal action plaintiff’s present Accordingly, judicata. by the doctrine of res not barred appellate the circuit and judgments we reverse the for further circuit court remand to the courts and proceedings. reversed;

Appellate reversed; circuit remanded. cause McMORROW, specially concurring: JUSTICE against A&B agree plaintiff’s I Freight not be dismissed under the doctrine should by for the reasons offered the ma- judicata, res but not view, analysis is flawed and jority. my majority’s In in future cases. I likely unnecessary to cause confusion reasons, and write reach this conclusion several separately to address each turn.

I Analysis A. Flawed dispositive appeal issue in this is whether an employer may assert dismissal of its employee, grounds, obtained on statute of limitations by basis for its own dismissal virtue the doctrine of judicata. provides judg res That doctrine that a final a subsequent ment on the merits bars action between parties privies the same or their on the same cause of ex People action. rel. Burris v. Land Progressive Develop ers, Inc., 151 Ill. 2d requirements Three (1) must be met for res judicata apply: there must be a final judgment by on the merits rendered a court of (2) jurisdiction; competent identity there must be an (or (3) defenses); causes of action and there must be identity parties Land, privies. Progressive or their Ill. 2d at 294. majority begins its analysis not

ing that "the element of serious dispute concerning is first element whether granting the involuntary in favor of [the employee] constitutes final on the merits barring remaining Freight.” claim elements, Ill. 2d at 180. As to the final two majority concludes: clearly present

"The second element of res is [plaintiff] suing since both A&B em- [its arising ployee] injuries for the same out same ac- of the 190 Furthermore, [plaintiff’s]

cident. claim theory liability is based on a of vicarious and theory employer under such a are ' ” considered to be "one and the same” defendant.’ 175 Ill. 180, quoting at Downing Chicago Authority, 2d v. Transit (1994). 162 Ill. 2d 74 Despite early this conclusion that the same claim satisfied, party requirements and same have been majority later that insists "the matter before us involves a claim separate against a defendant.” (Empha different added.) sis Ill. at majority 184. The then uses fact, i.e., defendant, the existence of a different ultimately conclude that the first element of res ("where has not been satisfied. See 175 Ill. 2d at 186 *** involved, separate defendants are we hold that types those dismissals that serve the policy behind Court Supreme Rule should be treated merits”). adjudications majority as on the supports by theory suggesting Supreme this novel further provides Court Rule which that all involuntary operate adjudications dismissals as on the merits unless lack jurisdiction, improper dismissal was for venue, join an indispensable party, or failure to should interpreted differently depending upon party According majority, which the rule. invokes "[wjhere involved, pres defendant is as in the different mechanically applied ent Rule 273 cannot be ***.” added.) (Emphasis 175 Ill. 2d at 184.

I interpreted do not believe that Rule 273 should be differently merely because different defendant contrary, whether a is or is involved. On not an on the merits under 273 does adjudication Rule depend upon identity parties, whether there is an Rather, solely it judicata. depends as in the case of res within of the on whether the dismissal at issue falls one three in the rule. See Towns v. Yel exceptions specified (1978) Co., in- (holding Ill. 2d low Cab speci for reasons other than those voluntary dismissals merits). Where, by adjudications fied Rule 273 are here, exceptions apply, none of the three adjudication on the merits. Rein v. David operates as Co., Noyes A. & 172 Ill. 2d 325 Rein, we held that a dismissal of an action based running on the statute of limitations constituted an Rein, on the merits virtue of Rule 273. case, plaintiffs eight- 172 Ill. 2d at 335-36. In that filed an count a securities dealer and its alia, agents, seeking, agreement inter to rescind an purchase certain bonds. The circuit court dismissed 619(a)(5) complaint pursuant to section of the Code 2— (735 619(a)(5) (West 1994)). of Civil Procedure ILCS 5/2 — The court held that by ap action was barred plicable statute of After an ap unsuccessful limitations. peal, plaintiffs returned to the circuit court and at tempted to replead the rescission counts. The court again action, dismissed the this time ruling that by claims were barred the doctrine of judicata. We ruling affirmed that on appeal, noting prior that the dis missal on statute of grounds limitations served as an adjudication Miller, writing on the merits. Justice a for court, unanimous held as follows: that, "Supreme provides Court Rule 273 the or '[u]nless der of dismissal or a speci statute of this State otherwise fies, involuntary action, an dismissal of other than a jurisdiction, venue, improper dismissal for lack of for or join indispensable party, for failure to operates as an adjudication upon the merits.’ 134 Ill. 2d R. 273. As this stated, previously applies only court has Rule 273 to an involuntary action, dismissal anof such as that which oc curs when a motion to dismiss under section 2—615 or granted. Downing, 2—619 the Code is 162 Ill. 2d at 74- Therefore, 273, judge’s 75. under Rule the trial decision to grant defendant’s motion to dismiss the rescission counts I applicable Rein based on the statute of limitations adjudication a final operates on the merits and as a final purposes judicata. on the merits for of res See Rein, Downing, 162 Ill. 2d at at 74-75.” 172 Ill. 2d 335-36. holding wholly Our in Rein is consistent with the plain language of Rule 273. That rule specifies (i) jurisdiction, dismissals based on lack of (ii) (iii) venue, improper join necessary or failure to merits, party operate adjudications shall not on the unless order of dismissal or statute states other exempt wise. 134 Ill. 2d R. 273. The rule does not invol untary running dismissals based on the of the statute of dismissals, therefore, adjudica limitations. Such are Co., on the tions merits. Towns v. Yellow Cab 73 Ill. 2d (1978). 113, by That was the conclusion reached Rein, and that has been the unanimous conclu appellate sion reached our court. v. Ray Greenfield (1993) Stamm, Inc., 242 Ill. App. (holding 3d that dismissal based on statute of limitations consti merits); Brothers, adjudication Sankey tutes an on the Guilliams, (1987); App. Inc. v. 152 Ill. 3d Mas Voltz, care v. 107 Ill. App. Conse quently, type there can be no over whether the dispute case, i.e., of dismissal involved in this failure to file a within the limita applicable period, tions constitutes an on the merits pursuant to Rule 273. above,

Notwithstanding majority asserts that [Rein], sepa the matter before us involves a "[u]nlike rate claim a different 175 Ill. 2d at defendant.” is "criti majority 184. The believes that this distinction involved, a cal” because different defendant "[w]here case, applied in cannot be present as the Rule 273 mechanically, doing yield so would absurd and because Thus, Ill. 2d at 184. from the unjust results.” view, majority’s of the existence of different de point purportedly fendant in this case is relevant because it way interpret aifects the in which we should Rule 273. I argument majority’s validity question on this of point. majority

Although agree that the exis I with the separate defendant dis and a different of a claim tence tinguishes Rein, I not think from do

the instant case we in terms of how is relevant this distinction my view, this distinction Rule 273. In should construe simply applica nothing rule or its to do with that has separate a dif claim and Rather, the existence of tion. determining whether is relevant ferent defendant been satisfied. have final two elements of res all, and not Rule it is the doctrine of res After judicata, separate speaks claims and dif in terms of which require above, Indeed, three ferent defendants. as noted apply the doc be satisfied before courts will ments must a final trine of there must be judicata: identity actions, merits, and an of causes identity parties privies. or their ex rel. Burris People Inc., 151 Ill. 2d Developers, v. Land Progressive applicability contrast, 273 does not Rule parties separate different or ex turn on whether claims plain language A of that rule reveals ist. review of Rule is the determination of that the sole concern of treated as an whether an order of dismissal will be language Nothing on the merits. supports of differ the rule the notion that the existence interpreta in a different ent defendants should result majority’s Thus, conten there is no basis for the tion. analysis vary, 273 should or tion that our Rule "mechanically” applied, be less than the rule should separate simply defen claim or a different because dant is involved. my colleagues

Accordingly, view to the extent that factually distinguishable from the instant Rein as agree. not, however, is distin- I believe that Rein I do major- construing guishable in terms of Rule ity erroneously posits. Unlike majority, I think that Rein is distinguishable only in the context of the doc- judicata. Rein, trine of res we any barred further lit- igation between parties because all three elements of res were satisfied. In this not all of the elements of res present. are majority As the repeatedly out, points the case at bar involves a sepa- rate claim defendant; and a therefore, different the doc- trine of res judicata does not apply. Inapposite

B. Federal Precedent Because of its insistence on deciding this case in terms of Rule 273 rather than on the basis of the final two judicata, elements of res majority is forced to continue analysis by its relying inapposite case law in an attempt plain circumvent language of Rule Noting 273. that our own rule shares a common heri- tage with Federal Rule 41(b), of Civil Procedure the ma- jority cites to the United State’s Supreme Court’s deci- States, sion in 265, Costello v. United 365 U.S. 5 L. Ed. 551, Costello, however, S. Ct. 534 did not involve a dismissal of an action based on the running of Instead, statute of limitations. the Court in Costello merely held that a dismissal of a in a proceeding denaturalization for the failure to file an af- good fidavit of cause did not constitute an 41(b). on the merits under In reaching Rule that conclu- sion, the Court specifically noted that such dismissals equivalent were jurisdiction.” dismissals for "lack of Costello, 285, 564, 365 U.S. at 5 L. Ed. 2d at 81 S. Ct. at Supreme 544. The Court further observed that dismiss- jurisdiction als for lack of expressly were exempt from 41(b), which, the effect of 273, Rule like our Rule " provides pertinent part: 'Unless the court in its or- der for specifies, dismissal otherwise a dismissal under any this subdivision and provided dismissal not for in rule, other than a jurisdiction dismissal for lack of venue, adjudication upon operates as improper or for ” added.) Costello, at U.S. (Emphasis the merits.’ Fed. R. quoting at 81 S. Ct. at 5 L. Ed. 2d 41(b). had no Supreme Court Consequently, P. Civ. for in that the difficulty finding affidavit, which it likened to requisite failure to file the adjudica- not jurisdiction, lack of was an dismissal for tion on the merits. persuasive resolving in the

I do not find Costello Indeed, in case at bar. precise presented issue opinion in contains not one reference to statutes Costello them, limitations, through or dismissals obtained 41(b). Costello sole their effect under Rule Yet is the by majority case and it is majority, federal cited law, federal rather state which believes that case than if precedent, precedent law is Even federal controlling. my controlling, were research reveals the federal uniformly dis judiciary has held that grounds missal obtained on statute of limitations consti 41(b). an adjudication tutes on the merits under Rule (10th Tools, Inc., Murphy See Klein 935 F.2d Cir. v. 1127 1991) (dismissal grounds on limitations constitutes merits) alia, (citing, on the inter Steve D. Inc., Trailers, Inc. 870 Thompson Trucking, Dorsey v. (5th 1989), Harwich, F.2d 1044 Cir. v. Town 778 Rose (1st 1985), 77 and v. F.2d Burnley, F.2d Cir. Johnson 887 (4th 1989)); see v. & Howell Schoup 471 Cir. also Bell (4th 1989) Co., (citing City Cir. Nilsen v. F.2d (5th Point, Harris, 1983), F.2d 556 Cir. PRC Moss (2d Co., 1983), v. Cir. and Boeing Inc. F.2d 894 (6th 1981)). Rowan, fact, v. 651 F.2d 1223 Cir. In Nathan very today’s was analysis by majority utilized rejected Appeals the Fourth Circuit Court (4th Co., Cir. Schoup v. Bell & Howell 872 F.2d 1178 1989), unsuccessfully plaintiffs apply where tried question. Costello rationale to the statute of limitations sum, I do agree with the majority that proper resolution of the res judicata presented issue this case turns upon the meaning of my Rule 273. In view, it is not the first element of res (adjudica- merits) tions on the which here, is at issue but rather the final two elements (identity of parties). claims and But even if I agree did with the majority in respect, I would not swayed by their citation to federal case law. reasons, For these I place do not any credence on majority’s reliance on Costello.

II outset, At the I pointed out the internal inconsis tency in the majority’s analysis of the presented issue for our hand, review. On the one the majority holds that the final of two elements have been satis (i) fied because plaintiff suing injuries the same (ii) arising accident, out of the same and " its are considered to be 'one and the same’ defendant.” 175 Ill. 2d at hand, 180. On the other the majority spends the remainder opinion its argu ing that this case actually separate involves a claim against a different defendant. I would now like to offer an explanation as to Iwhy think that the majority, perhaps unwittingly, falls victim to its own analysis, why my approach the res judicata issue resolving merits future consideration this court.

The record in the instant case plaintiff reveals that filed a timely complaint against A&B Freight on March 8, 1994. The complaint alleged that plaintiff suffered injuries as a result of certain negligent acts committed by one of Freight’s A&B employees. Plaintiff later filed amended in which he attempted to add the employee as a party defendant. Because this second complaint was not filed within applicable limita- period, tions the employee moved to dismiss the com- 619(a)(5) plaint pursuant to section of the Code of 2— granted motion to Procedure. The circuit court Civil Shortly Freight thereafter, A&B also moved to dismiss. Freight argued plaintiff's complaint. A&B that dismiss longer theory of respon it could no be liable under the employee since its had been dismissed from deat superior support argument, Freight the case. of this A&B upon relied trine, what is now referred to as the Towns doc after in which it

named the case finds its most prominent expression. 73 Ill. Co., Towns v. Yellow Cab may 2d 113 This doctrine be summarized as fol lows: brought against

"When an action is master based on the servant, alleged negligent independent acts of his and no wrong charged master, liability is on behalf of the his is derivative, entirely being upon founded the doctrine of re spondeat superior. regard, In this it has been said liability of the master and servant for the acts of the ser vant is deemed that of one tortfeasor and is a consolidated *** judgment, therefore, or unified one. A adjudicating liable, judgment the master not contrary where finding could have resulted from a the servant wrong against committed an plaintiff, actionable is a legal effect that the servant is not liable.” Towns, 73 Ill. 2d at 123-24. Relying granted doctrine, on this the circuit court Freight’s ruling dismiss, A&B motion to that the order dismissing any barred further action Freight principles A&B under the judicata. appellate finding affirmed, that all of the ele App. ments of res judicata had been met. 276 Ill. 3d 985. appeal again court, On before this A&B once Unfortunately, major invokes Towns doctrine. ity summarily accepts Freight’s argument without fully considering the ramifications of that decision. As majority compelled result, to hold that A&B " employee and its are deemed 'one and the (175 180) despite same’ defendant” at Ill. 2d the fact actually majority that the later realizes that this case See, involves different Ill. 2d at e.g., defendants.1 184-85. view, however, my

In the Towns doctrine does not ap Towns, In ply recog to the facts of this case. this court general judgment nized that a principle prior for employee ordinarily employer’s will terminate the liabil ity liability entirely due to the fact that the latter’s de Towns, words, if a rivative. 73 Ill. 2d at 123-25. other employee negli trier of fact determines that an was not gent, employer then the cannot be held liable under the hand, theory superior. On the other if the respondeat employee solely in favor of the is based on a de personal employee, expired fense that is to the such as limitations, employee’s negli statute of then the actual circum gence has never been determined. Under these stances, may still liable employer be found under (Sec theory See, respondeat superior. e.g., Restatement ond) (1982) (judgment against Judgments plaintiff 51§ personal given based on defense to one defendant not subsequent litigation against effect in another liable). may vicariously who In such a sce defendant nario, apply.2 the Towns doctrine would To hold oth an employer erwise would lead to the unsound result that employer employee support and 1To its contention that "defendant,” majority Downing v. are one and the same cites (1994), Chicago Authority, which in Transit 162 Ill. 2d turn Co., quoted Ill. from Towns v. Yellow Cab However, merely employer the court Towns stated employee one the same "tortfeasor” and are considered and (meaning simply employee the acts of the will be attributed theory employer respondeat superior) and not under the "defendant,” suggested by majority. as one and the same Towns, employer remains that the and 73 Ill. 2d at 124. The fact always separate defendants have been treated complaint, litigation purposes. Each must be served with defenses, jointly personal may and each remains each raise severally liable. keep important in mind that the court in Towns did

2It is

199 a timely who was sued would be dismissed from case sim ply because its was sued after the statute of lim employee expired. absurdity had of that scenario stems itations a employee necessary from the fact that the is not even 3 party employer’s litigation. The Nebraska Su preme recently very analysis Court utilized this when considering principles the same issue under identical Harrison, found in those Towns. Kocsis v. 249 Neb. N.W.2d Kocsis, In plaintiffs brought malpractice medical against action employer, doctor and his the Omaha (hereinafter Clinic). Associate, Primary Care P.C. the granted The trial summary judgment in favor of doctor, ruling the that plaintiffs’ complaint was barred by the applicable Subsequently, statute of limitations. granted the trial court the motion summary Clinic’s judgment, concluding that under the doctrine respon- deat superior, longer the Clinic could no be liable plaintiffs’ because the complaint against the doctor was reversing court, time-barred. trial Supreme the the Court of Nebraska acknowledged that an employee "[i]f liable, employer not cannot be liable under the pass upon not have occasion to the effect of a obtained pursuant personal to a defense such as statute of limitations. Accordingly, overruled, suggest merely I do not that Towns but respect judgments. clarified with to such out, majority points plaintiff 3As the had the in this case join employee pending elected not to in his suit A&B (see Freight, prerogative as is his under Illinois law v. McCottrell City (1985)), Chicago, App. 135 Ill. then the statute of limitations defense would have never been raised and his suit uninterrupted would have continued in its plaintiff attempted normal course. It was because to amend employee party his to add the as a defendant that statute of limitations issue arose at all. I do think litigation events; depend outcome of should on such fortuitous rather, upon light cases should be determined their facts in party’s respective legal position. each Kocsis, Neb. at respondeat superior.” doctrine of noted, however, 543 N.W.2d at 169. The court a plaintiff required "it is also well established that is not join employee suing employer when under Kocsis, at respondeat superior.” the doctrine 249 Neb. 280, 543 N.W.2d at 169. The court then stated: plaintiff

"We hold that when a initiates an action under theory respondeat superior against employer be- employee, the statute of limitations has run as to the fore employer plaintiff need not sue both the being prevent his action from time barred. The control- ling applicable employer of limitations to the is that statute Therefore, apply employee. which would to the if the action brought period applies is within the limitations to the conduct, employee’s tortious the action is not time barred as Kocsis, liability solely employer whose vicarious.” Neb. at at 169. N.W.2d Therefore, reasoning I in I persuasive. find the Kocsis plaintiff timely would also hold that when files suit employer join and later seeks to its defendant, party plaintiff’s timely as a simply be dismissed be- employer should not lim- employee successfully cause the raises the statute of I in his or her own defense. would further hold itations situation, apply Towns doctrine does not that the and third elements of res and that the second (identity parties) of claims and have not been satisfied. in a disin- way, engage this court would not have to attempt in a contrived genuous interpretation of Rule 273 on the mer- adjudication characterize that which is not an on the merits. its as reasons, judg- I foregoing For the concur ment of the court. join in this MILLER and FREEMAN

JUSTICES special concurrence.

Case Details

Case Name: Leow v. a & B Freight Line, Inc.

Court Name: Illinois Supreme Court

Date Published: Feb 6, 1997

Citation: 676 N.E.2d 1284

Docket Number: 80438

Court Abbreviation: Ill.