ANTONI MATEJCZYK, Plaintiff-Appellant, v. THE CITY OF CHICAGO, Defendant-Appellee.
No. 1-08-1208
First District (1st Division)
December 21, 2009
Mara S. Georges, Corporation Counsel, of Chicago (Benna Ruth Solomon, Myriam Zreczny Kasper, and Julian N. Henriques, Jr., Assistant Corporation Counsel, of counsel), for appellee.
JUSTICE GARCIA delivered the opinion of the court:
The plaintiff, Antoni Matejczyk, appeals from the dismissal of his negligence complaint against the defendant, the City of Chicago (the
Because Matejczyk filed his one-count, second amended complaint after the entry of the order of August 31, 2007, which granted the City‘s motion to dismiss count II on the merits, the voluntary dismissal of his second amended complaint triggered res judicata as to the entire cause of action, barring this subsequent refiling. Consequently, we affirm.
BACKGROUND
On November 15, 2006, Matejczyk filed a one-count negligence complaint against the City, seeking recovery for injuries he allegedly sustained when he fell on November 26, 2005, on a public sidewalk. Matejczyk alleged that he fell in a 1 1/2-inch deep hole left in the sidewalk after a traffic signal installed in the forties was removed on February 8, 1985. He alleged that the City breached its duty by failing to fill the hole, post any warnings, or barricade the area surrounding the hole.
On June 19, 2007, Matejczyk filed a first amended complaint, which contained two counts. Each count repeated the allegations that the City failed to fill the hole, post any warnings, or barricade the area surrounding the hole. However, while count I alleged that the signal was removed “[s]ometime after 1996,” count II alleged that the signal was removed on February 8, 1985.
The City filed a motion to dismiss pursuant to
On September 5, 2007, Matejczyk filed a second amended complaint containing only one count. That count again alleged that the City breached its duty by failing to fill the hole, post any warnings, or barricade the area surrounding the hole, which was allegedly caused by the removal of the signal “prior to November 26, 2005.” The following day, September 6, 2007, Matejczyk moved to voluntarily dismiss the suit. The same day, Judge Lawrence voluntarily dismissed the case without prejudice in what was styled an “agreed order.”
Twelve days later, on September 18, 2007, Matejczyk filed the present action under a new circuit court number. His complaint acknowledged that it was a “re-filing” of the prior case. Matejczyk again alleged that “prior to November 26, 2005,” the City removed the traffic signal, breaching its duty by failing to fill the hole, post any warnings, or barricade the area surrounding the hole. On December 19, 2007, the City filed a motion to dismiss the complaint pursuant to
ANALYSIS
Res judicata bars a subsequent action if (1) a final judgment on the merits was rendered by a court of competent jurisdiction, (2) there is an identity of parties or their privies, and (3) there is an identity of cause of action. Hudson, 228 Ill. 2d at 467, citing Downing v. Chicago Transit Authority, 162 Ill. 2d 70, 73-74, 642 N.E.2d 456 (1994). ”Res judicata bars not only what was actually decided in the first action but also whatever could have been decided.” Hudson, 228 Ill. 2d at 467, citing La Salle National Bank v. County Board of School Trustees, 61 Ill. 2d 524, 529, 337 N.E.2d 19 (1975). Matejczyk concedes that his
A. Ruling on the Merits
Matejczyk first contends that res judicata does not apply because no final order on the merits was entered in the 2006 suit to trigger the doctrine. Matejczyk argues that in both the 2006 and 2007 lawsuits, he alleged only a single cause of action for negligence. He contends it was this single cause of action that he voluntarily dismissed on September 6, 2007, under the 2006 case number, which he refiled on September 18, 2007, as a new action under the 2007 case number, the subject of this appeal.
The City counters that Judge Lawrence‘s August 31, 2007, order granting its motion to dismiss count II was a final adjudication on the merits of that count in the then-pending two-count complaint. While the negligence theory of recovery was shared by the two counts, the respective allegation in paragraph 3 of each count differed. It was Matejczyk that pled his cause of action in two counts, which the City properly addressed as distinct claims. Matejczyk should not be allowed on appeal to recast his first amended complaint into one that seeks to render pointless Judge Lawrence‘s ruling. We agree with the City.
The significance of a dismissal of certain counts in a complaint was the preliminary question in Rein v. David A. Noyes & Co., 172 Ill. 2d 325, 339-40, 665 N.E.2d 1199 (1996). In Rein, actions of various plaintiffs were consolidated; the complaints asserted counts based on common law and counts seeking rescission. Rein v. David A. Noyes & Co., 230 Ill. App. 3d 12, 13-14, 595 N.E.2d 565 (1992) (Rein I). The rescission counts were dismissed by the circuit court as barred by the statute of limitations. Rein I, 230 Ill. App. 3d at 14. Subsequently, the plaintiffs voluntarily dismissed the remaining common law counts and appealed the dismissal of the rescission counts. Rein I, 230 Ill. App. 3d at 14-15. The Second District in Rein I affirmed the dismissal. Rein I, 230 Ill. App. 3d 12. On review of Rein I, the supreme court phrased the initial question as “whether the dismissal of the rescission counts in Rein I was a final judgment on the merits.” Rein, 172 Ill. 2d at 335. The court noted, “The trial judge in Rein I dismissed the rescission counts with prejudice, pursuant to section 2—619(a)(5) of the Code, as being barred by the statute of limitations in section 13(D) of the [Illinois Securities Law of 1953 (Ill. Rev. Stat. 1989, ch. 121 1/2, pars. 137.12 (F), (G))].” Rein, 172 Ill. 2d at 335. As authority that the
We note that count II of Matejczyk‘s 2006 first amended complaint was dismissed by Judge Lawrence pursuant to
Matejczyk‘s contention that his case differs from Rein because Judge Lawrence‘s order did not specify the dismissal of count II “with prejudice” is unavailing. ” ‘[T]he effect of a dismissal order is determined by its substance and not by the incantation of any particular magic words,’ and therefore, a trial court‘s description of a final judgment as being ‘without prejudice’ or ‘with prejudice’ is not determinative” of its finality. Kiefer v. Rust-Oleum Corp., 394 Ill. App. 3d 485, 494, 916 N.E.2d 22 (2009), quoting Schal Bovis, Inc. v. Casualty Insurance Co., 314 Ill. App. 3d 562, 568, 732 N.E.2d 1082 (1999). As the supreme court made clear, “[T]he use of ‘without prejudice’ language is not sufficient to protect a plaintiff against the bar of res judicata when another part of plaintiff‘s case has gone to final judgment in a previous action: ‘the trial judge‘s granting plaintiffs’ motion to voluntarily dismiss the common law counts without prejudice under
As we noted, Judge Lawrence‘s order granted Matejczyk leave to refile count II within 28 days. However, while count I remained pending sans the allegations regarding the City‘s failure to warn or barricade the area, Matejczyk did not refile count II; rather, he filed a single-count, second amended complaint. Matejczyk‘s contention that the two counts in his first amended complaint are “virtually identical” except for the date set out in the respective paragraph 3 makes
Matejczyk‘s overly broad contention that “[t]here is no indication that the court intended to dispose of an entire cause of action, or grant a final disposition of the whole case” is simply beside the point. It is certainly true that Judge Lawrence‘s order of August 31, 2007, did not dispose of the whole case; in fact, count I was unaffected except for Judge Lawrence‘s ruling that certain allegations were barred by section 3-104 of the Act. Matejczyk was granted leave to refile count II if he wished to do so. Matejczyk elected, however, to file a second amended complaint with a single count. Upon the filing of the second amended complaint, Matejczyk was free to pursue that single-count complaint to a final judgment. However, Matejczyk was not free to voluntarily dismiss his second amended complaint without exposing his subsequently refiled complaint to a possible res judicata defense based on the prohibition against claim-splitting. See Hudson, 228 Ill. 2d at 472-73, citing Rein, 172 Ill. 2d at 339-40.
No persuasive argument is put forth by Matejczyk to avoid the clear holding in Rein that the dismissal of count II, albeit with leave to refile, was a final judgment on the merits of count II as it was pled in Matejczyk‘s first amended complaint. Rein, 172 Ill. 2d at 335-36. We reject Matejczyk‘s unpersuasive contentions to the contrary. We now address the consequences that flow from the voluntary dismissal of Matejczyk‘s second amended complaint, in light of the final judgment order dismissing count II on its merits.
The City contends that Matejczyk engaged in claim-splitting when he voluntarily dismissed his one-count, second amended complaint after count II had been dismissed by Judge Lawrence from his first amended complaint only to refile both claims in his 2007 lawsuit. This triggers the rule in Rein: ”Rein *** stands for the proposition that a plaintiff who splits his claims by voluntarily dismissing and refiling part of an action after a final judgment has been entered on another part of the case subjects himself to a res judicata defense.” Hudson, 228 Ill. 2d at 473, citing Rein, 172 Ill. 2d at 337-39. “Whether a subsequent claim is barred by the doctrine of res judicata is a question of law which is reviewed de novo.” Northeast Illinois Regional Commuter R.R. Corp. v. Chicago Union Station Co., 358 Ill. App. 3d 985, 1000, 832 N.E.2d 214 (2005). We review Rein‘s analysis on claim-splitting and Hudson to determine whether Judge Larsen was correct that the issue presented by this case “is controlled by Hudson.” Our focus is on the City‘s contention that Matejczyk engaged in claim-splitting.
In Rein, the plaintiffs filed an eight-count complaint that sought recovery under both rescission and common law theories. Rein, 172 Ill. 2d at 328. The circuit court dismissed the rescission counts with prejudice, finding the rescission counts barred by the applicable statute of limitations. Rein, 172 Ill. 2d at 329. However, no Rule 304(a) language was included in the order to render the dismissal of the rescission counts immediately appealable. Rein, 172 Ill. 2d at 330. It appears the plaintiffs voluntarily dismissed the then-pending complaint with its remaining common law counts in order to appeal the dismissal of the rescission counts. Rein, 172 Ill. 2d at 331. After the appellate court affirmed the dismissal of the rescission counts, the plaintiffs filed a new complaint that was virtually identical to the original, with both rescission and common law counts. Rein, 172 Ill. 2d at 331. The defendants moved to dismiss the entire complaint on res judicata grounds; the circuit court granted the motion. Rein, 172 Ill. 2d at 331-32. The appellate court affirmed the dismissal in Rein I and the supreme court granted the plaintiffs leave to appeal. Rein, 172 Ill. 2d at 332.
As we noted in the preceding section, the dismissal of the rescission counts in the original complaint constituted “a final adjudication on the merits[, which] operate[d] as a final judgment on the merits for purposes of res judicata.” Rein, 172 Ill. 2d at 336. Our focus here is on the court‘s analysis of the rule against claim-splitting: the rule “prohibits a plaintiff from suing for part of a claim in one action and then suing for the remainder in another action. [Citations.]” Rein,
As the Rein holding made clear, the plaintiffs were required to delay challenging the dismissal of the rescission counts until a decision on the merits of the remaining common law counts was rendered. If the on-the-merits ruling on the common law counts gave the plaintiffs a full remedy, it would presumably render moot the earlier decision dismissing the rescission counts. If the on-the-merits ruling on the common law counts went against the plaintiffs, then the plaintiffs could seek appellate review of both that ruling and the earlier decision dismissing the rescission counts.
In Hudson, the plaintiffs filed a complaint containing one negligence count and one willful and wanton misconduct count. Hudson, 228 Ill. 2d at 464. Some three years after the circuit court dismissed the negligence count with prejudice, the plaintiffs voluntarily dismissed the remaining willful and wanton misconduct count. Hudson, 228 Ill. 2d at 466. Another year later, the plaintiffs refiled the willful and wanton misconduct count in a new suit. Hudson, 228 Ill. 2d at 466. The circuit court granted the defendant‘s motion to dismiss on res judicata grounds and the appellate court affirmed. Hudson, 228 Ill. 2d at 466.
On review, our supreme court in Hudson once again applied the rule against claim-splitting it discussed in Rein. Our supreme court held that “a plaintiff who splits his claims by voluntarily dismissing and refiling part of an action after a final judgment has been entered on another part of the case subjects himself to a res judicata defense.” Hudson, 228 Ill. 2d at 473. The dismissal of the negligence count in the plaintiffs’ original suit ” ‘operate[d] as an adjudication on the merits for purposes of res judicata.’ ” Hudson, 228 Ill. 2d at 473, quoting Rein, 172 Ill. 2d at 338. Once again, in Hudson, the plaintiffs failed to delay the challenge to the dismissal of the negligence count until there was a ruling on the merits on the willful and wanton count.
We read Rein and Hudson to establish that a dismissal on the merits by the circuit court of one or more counts in a complaint puts the plaintiff on notice that, should he elect to take a voluntary dismissal under
Although a plaintiff may disagree with a circuit court‘s ruling dismissing a count in a multicount complaint, it is unquestionably a ruling on the merits of the dismissed count under Rule 273 as an involuntary dismissal. 134 Ill. 2d R. 273. The remaining portion of the complaint, with its viable counts, must proceed to final judgment, else risk triggering res judicata.
To allow voluntary dismissal of viable counts in a complaint following an involuntary dismissal of other counts with unfettered refiling of the complaint, in whole or in part, would unavoidably encourage splitting of claims or causes of action. When a circuit court issues a ruling on the merits that results in the dismissal of a count, litigation of the remaining complaint, subject to certain exceptions discussed below, must be pursued to a final judgment. To allow the voluntary dismissal of the remaining viable counts, with the right to refile, would by definition promote piecemeal litigation. Such a result is contrary to the policy consideration of promoting finality embedded in res judicata. In other words, a final judgment on the merits of an involuntarily dismissed count of a multicount complaint will render a
Judge Lawrence‘s order of August 31, 2007, dismissing count II of the first amended complaint was a final order, the finality of which carried over to the remaining count when Matejczyk voluntarily dismissed the remaining complaint on September 6, 2007. Stated differently, the August 31, 2007, order dismissing count II rendered the voluntary dismissal of Matejczyk‘s second amended complaint a final judgment on the merits, which precluded the refiling of the same claims under the 2007 case number, the subject of this appeal.
C. Exceptions to Claim-Splitting
Finally, Matejczyk argues that his case triggers exceptions to the rule against claim-splitting described in Rein and Hudson. Specifically, Matejczyk argues that two exceptions to the rule apply here: ” ‘(1) the parties have agreed in terms or in effect that plaintiff may split his claim or the defendant has acquiesced therein; [and] (2) the court in the first action expressly reserved the plaintiff‘s right to maintain the second action.’ ” Hudson, 228 Ill. 2d at 472, quoting Rein, 172 Ill. 2d at 341. Neither of Matejczyk‘s contentions that either of the two exceptions applies is persuasive.
First, we reject his entirely unsupported argument that Judge Lawrence‘s order voluntarily dismissing his original case signaled the City‘s acquiescence to claim-splitting simply because it was titled an “agreed order.” Neither the form nor the language of that order in any way indicates that the City intended to allow Matejczyk to refile his claim at a later date. Nor was the City required to voice its objection to refiling before Matejczyk attempted to refile. Rein, 172 Ill. 2d at 342 (“Until the plaintiffs attempted to refile *** no reason existed for defendants to object“). When Matejczyk did refile, the City promptly moved to dismiss on res judicata grounds, which negates Matejczyk‘s claim that the City acquiesced in the refiling.
Second, we reject Matejczyk‘s argument that Judge Lawrence expressly reserved Matejczyk‘s right to maintain a second action by granting him leave to refile count II within 28 days. There is no indication in the record that the dismissal order was written with an exception to claim-splitting in mind. Judge Lawrence‘s order contained no language granting Matejczyk the right to file a subsequent suit seeking identical relief despite the general prohibition against claim-splitting. Allowing him to refile would not be “within the purpose and spirit” of the exception as Matejczyk claims; the exception clearly ap-
Matejczyk also contends that this case should be allowed to proceed to trial based upon this court‘s recent decision in Piagentini. We find that case distinguishable.
In Piagentini, the plaintiffs were injured in a car accident and filed suit against the automobile manufacturer. Piagentini, 387 Ill. App. 3d at 888. The eight counts in the plaintiffs’ amended complaint sought recovery on strict liability and negligence theories, but shared allegations that the defendant‘s car was designed with insufficient stability and lacked an adequate seatbelt system. Piagentini, 387 Ill. App. 3d at 888-89. Based on the plaintiffs’ failure to disclose any witnesses to substantiate its “insufficient stability” allegations, the circuit court entered an agreed order for partial summary judgment related to those allegations. Piagentini, 387 Ill. App. 3d at 889. That order dismissed the plaintiffs’ complaint, but granted leave to replead under both theories so long as the counts did not include any allegations regarding stability. Piagentini, 387 Ill. App. 3d at 889. The plaintiffs filed a second amended complaint excluding the stability allegations, but later voluntarily dismissed that complaint. Piagentini, 387 Ill. App. 3d at 889. Nearly a year later, the plaintiffs refiled their claims, including those relating to vehicle stability. Piagentini, 387 Ill. App. 3d at 889. After litigating for 3 1/2 years, the defendant filed a motion to dismiss on res judicata grounds only three months prior to trial, which the circuit court granted. Piagentini, 387 Ill. App. 3d at 889-90.
This court reversed the dismissal, holding that the circuit court‘s partial summary judgment order in the original suit was not final because it “was granted as to certain allegations within separate counts of the complaint but no actual count was dismissed.” Piagentini, 387 Ill. App. 3d at 893. Because “both counts [of the original complaint] remained standing as bases for recovery,” the order did not dispose of a separate branch of the controversy and was not final. Piagentini, 387 Ill. App. 3d at 894. As an independent basis for its decision, the Piagentini court also reasoned that the circuit court‘s summary judgment order was not final because it “dismissed the complaint in its entirety but expressly granted plaintiffs 28 days in which to replead those allegations relating to defective seatbelts.” Piagentini, 387 Ill. App. 3d at 893. Relying on Jackson v. Victory Memorial Hospital, 387 Ill. App. 3d 342, 352, 900 N.E.2d 309 (2008), the Piagentini court held that “an order dismissing a complaint is not final until the trial court enters an order dismissing the suit with
Neither of the bases supporting the Piagentini decision applies here. Unlike the circuit court‘s order in Piagentini, Judge Lawrence‘s order did not leave “both counts [of the initial complaint] standing as bases for recovery” (Piagentini, 387 Ill. App. 3d at 894); instead, Judge Lawrence dismissed one of the two counts of Matejczyk‘s amended complaint, in addition to claims that the City failed to properly warn about the hole or barricade it. This order disposed of a “separate branch” of the controversy and was therefore final. Piagentini, 387 Ill. App. 3d at 894, citing Hull v. City of Chicago, 165 Ill. App. 3d 732, 733, 520 N.E.2d 720 (1987). Further, unlike the order in Piagentini dismissing the case in its entirety, Judge Lawrence‘s order dismissed only part of Matejczyk‘s original complaint, with leave to replead, if he wished, the remainder; because the entire complaint was not dismissed, leave was not granted to replead the complaint in its entirety because the date alleged in count II fell outside the statute of limitations. As discussed earlier, dismissal of count II rendered Judge Lawrence‘s ruling a final judgment on the merits of count II. Dubina v. Mesirow Realty Development, Inc., 178 Ill. 2d 496, 502-03, 687 N.E.2d 871 (1997); see also Doe v. Gleicher, 393 Ill. App. 3d 31, 36, 911 N.E.2d 532 (2009) (“Claims dismissed without an opportunity to amend are final even if the case is not dismissed in its entirety“).
If Matejczyk desired review of Judge Lawrence‘s August 31, 2007, order, he was obligated to litigate his suit to judgment on count I, which he premised on his claim that the City negligently failed to fill the hole, and only then appeal the earlier involuntary dismissal of count II and his alternative claims. Of course, given that counts I and II were nearly identical but for the date allegation, litigation of count I to a final judgment would likely have rendered the dismissal of count II moot. However, rather than continue with the litigation, Matejczyk inexplicably elected to file a new suit. Had Matejczyk not insisted on pursuing his negligence suit in two counts that offered him no greater chance of recovery, he would not be in the predicament he finds himself today. See Hudson, 228 Ill. 2d at 480 (“had the plaintiffs themselves not insisted on bringing a negligence suit against an entity that is statutorily immune, they would not be in [this] predicament“).
Matejczyk‘s first amended 2006 complaint contained two counts, each including claims based upon the City‘s failure to fill the hole, post any warnings, or barricade the area surrounding the hole in a public sidewalk. On August 31, 2007, Judge Lawrence dismissed count II. Under Rule 273, that order was a final adjudication on the merits of count II. As such, the order bars Matejczyk, after a voluntary dismissal of that litigation, from refiling in his 2007 lawsuit those claims that could have been litigated in his original 2006 suit. We affirm Judge Larsen‘s dismissal of this refiling on res judicata grounds.
Affirmed.
HALL, P.J., and LAMPKIN, J., concur.