delivered the opinion of the court:
Dеfendants appeal from the circuit court’s denial of their motion to dismiss plaintiffs complaint as violative of Illinois’ single-refiling rule (735 ILCS 5/13—217 (West 1998)), as well as the principles of res judicata and collateral estoppel.
For the reasons that follow, we reverse.
First Filing
In April 1995, plaintiff filed a complaint in the United States District Court for the Northern District of Illinois naming as defendants Jeffrey Grossman, Donald Grauer, Barbara Lux, Midwestern Financial Consultants, Ltd., Quinlan & Tyson Realty Partners Ltd., and Highland Park Corporation (hereinafter referred to as Case I). The complaint alleged civil Racketeer Influenced and Corrupt Organizations Act (RICO) (18 U.S.C. § 1964 (1994)) violations as well as several state common law claims including fraud, conspiracy, and breach of fiduciary relationships.
Plaintiff subsequently filed first and second amended complaints. The second amended complaint named as additional defendants the Kimberly Anne Grossman Trust, the Trina Elyse Grossman Trust, the Kimberly Anne Grossman Subchapter S Trust, Trina Elyse Grossman Subchapter S Trust, Allen Engerman, Michael Mandell, Bette Gross-man, Eagle Partners, Ltd., 2780 Ridge Corporation, 1255 Building Corporation, Churchill Capital, Ltd., ENP II, ENP II, Ltd., Churchill Venture One, Ltd., Magnolia Homes Corporation, Magnolia Estates Corporation, Oxford Funding Group, Ltd., Churchill Venture, Ltd., and Executive Travel. The second amended complaint contained counts alleging mail and wire fraud, RICO, unjust enrichment and accounting, and common law fraud.
On. March 12, 1997, a dispositive order was entered that stated, “plaintiff voluntarily dismisses with prejudice the claims brought under RICO. The remaining claims are dismissed without prejudice with leave to re-file them in the state court.”
Second Filing
In March 1996, while Case I remained pending, plaintiff filed a complaint in the circuit court of Lake County, Illinois, against defendants Eagle Partners, Riverwoods Partnership, 2780 Ridge Corporation, Bette Grossman, as trustee of the Trina Elyse Grossman Family Trust and as trustee of the Kimberly Anne Grossman Family Trust, Donald Grauer, Jeffrey Grossman, Larry Kanar, and American National Bank and Trust Company of Chicago (hereinafter referred to as Case II). The comрlaint sought to enjoin the sale of certain real estate and a declaration nullifying the loan guarantee because the signature
On January 10, 1997, plaintiff amended his complaint setting forth allegations of common law fraud, conspiracy, use of the mails and interstate wires in furtherance of a scheme and artifice to defraud, breaches of fiduciary relationships, and for аn accounting. The claims set forth in the original complaint were completely absent from the amended complaint.
On February 5, 1997, the defendants removed the matter to the federal District Court for the Northern District of Illinois. The case was dismissed on February 13, 1997, as duplicative of Case I. Specifically, the order stated: “The court grants defendants’ motion to dismiss and dismisses plaintiffs cause оf action before this court as duplicative of the cause of action pending before Judge Marovich in case No. 95 C 2214. The court denies defendants’ motion to consolidate as moot.”
Third Filing
On April 2, 1996, plaintiff filed a complaint against defendants ENP II, Ltd., Donald Grauer and Jeffrey Grossman in the circuit court of Cook County (hereinafter referred to as Case III). Count I alleged breach of a promissory note against ENP II, Ltd., and count II alleged breach of promise to guarantee the note by defendants Gross-man and Grauer. The promissory note was executed by ENR II., Ltd., on July 10, 1995 in the amount of $271,667. Defendants filed a motion to dismiss contending the facts alleged in this case arose from the same core of operative facts as Case I pending in federal court. Plaintiffs motion for a voluntary dismissal was granted on October 10, 1996, prior to the court ruling on defendants’ motion to dismiss.
Fourth Filing
On March 27, 1997, plaintiff filed yet another complaint in the circuit court of Cook County, which is the subject of the instant appeal (hereinafter referred to as Case TV). The complaint named the same defendants as were named in the second amended complaint in Case I and stated cаuses of action for tortious conspiracy to commit fraud, unjust enrichment and accounting, fraud, negligence, and punitive damages.
On June 26, 1997, defendants filed a motion to dismiss pursuant to sections 2—619(a)(4) and (a)(9) of the Code of Civil Procedure (735 ILCS 5/2—619(a)(4), (a)(9) (West 1998)) arguing the claims were barred by Illinois’ single-refiling rule (735 ILCS 5/13—217 (West 1998)) and the doctrines of res judicata and collateral estoppel. The court originally granted defendants’ motion and dismissed plaintiffs complaint on November 17, 1997. However, upon entertaining plaintiffs motion to reconsider, the court reversed itself and entered an order denying defendants’ motion to dismiss.
In its memorandum opinion, the circuit court reasoned that Case II was “not a new action because no judgment was entered and the Marovich action [Case I] was not dismissеd for lack of jurisdiction or improper venue at that time.” Further, the court determined that although the single-refiling statute does not define what a new action is, “logic dictates that a new action is a re-filing of an action that was dismissed for lack of jurisdiction or improper venue or one that resulted in a judgment. *** This case [Case IV] is the first re-filing after both the dismissal by Judge Alesia in federal court and the voluntary dismissal and dismissal by Judge Marovich. Therefore, the pending case [Case IV] is not an impermissible second re-filing.”
1. Did the trial court err in declining to grant defendants’ motion to dismiss based on a violation of the “one refiling rule”?
2. Did the trial court err in refusing to dismiss the complaint based on the principles of res judicata and collateral estoppel?
This court granted defendants’ application for leave to appeal on December 8, 1998.
ANALYSIS
I
Section 13—217 of the Code of Civil Procedure is a saving provision which allows plaintiffs to refile a cause of action if its prior disposition was based on the reasons outlined in the statute. 735 ILCS 5/13—217 (West 1998); Timberlake v. Mini Hospital,
“In the actions specified in Article XIII of this Act or any other act or contract where the time for commencing an action is limited, if *** the action is dismissed by a United States District Court for lack of jurisdiction, or the action is dismissed by a United States District Court for improper venue, then, whether or not the time limitation for bringing such action expires during the pendency of such action, the plaintiff *** may commence a new action within one year or within the remaining period of limitation, whichever is greater, after *** the action is dismissed by a United States District Court for lack of jurisdiction, or the action is dismissed by the United States District court for improper venue.” 735 ILCS 5/13— 217 (West 1998).
Section 13—217 allows a plaintiff to refile a cause of action within one year of its dismissal or the remaining period of limitations, whichever is greater. Gendek v. Jehangir,
On appeal, defendants argue that plaintiffs Case IV is barred by the mandates of section 13—217 as it constitutes a refiling of Cases I, II and III. Conversely, plaintiff maintains Case II should not be considered a second filing because it was commenced during the pendency and not following the dismissal of Case I and therefore cannot be properly charaсterized as a “refiling” of Case I. As to Case III, plaintiff argues it was a completely different action than Cases I, II and IV and therefore not a relevant factor in determining the applicability of section 13—217.
We first consider whether Case II constitutes a “new action” or “refiling” for purposes of section 13—217. This court has held the filing of a complaint is considered a “refiling” of a previously filed complaint if it contains the same cause of action as defined by res judicata principles. D’Last Corp. v. Ugent,
In the instant case, the trial court acknowledged and the parties did not dispute that the clаims set forth in Cases I, II and IV arose out of the same core of operative facts. Yet the trial court concluded Case II was not a “new action” because it was dismissed prior to the dismissal of Case I and there had been no adjudication of the merits of either Case I or II at the time Case IV was filed. Thus, the trial court’s decision hinged upon the timing and character of the dismissal of bоth cases. We believe such a narrow interpretation of the boundaries of section 13—217 is contrary to the case law as well as the spirit of the statute.
A nearly identical argument was advanced and rejected in Rockford Mutual Insurance Co. v. Blaase,
On аppeal in Rockford Mutual, the plaintiff argued that a dismissal pursuant to section 2—619(a)(3) of the Code of Civil Procedure was not a ground listed in section 13—217 and therefore did not prohibit a refiling under that section. This court rejected plaintiffs argument and held that “Flesner directs that a plaintiff has only one opportunity to refile. If the refiled case is involuntarily dismissed by the trial court, plaintiff is not entitled to a second opportunity to refile the action.” Rockford Mutual,
In its memorandum opinion, the trial court in this case distinguished Rockford. Specifically, it stated:
“Although the Cook County Circuit Court’s dismissal pursuant to 2—619(a)(3) in Rockford Mutual is similar to Judge Alesia’s dismissal of Schrager’s case in federal district court because of duplicative litigation, the fact is that there has been no adjudication оf any of Schrager’s cases. In other words, in all of the foregoing cases including Rockford Mutual, the filings at issue occurred after some adjudication by the courts, whether it was for lack of jurisdiction, involuntary dismissals or voluntary dismissal by the plaintiffs.” (Emphasis in original.)
We disagree with the trial court’s analysis. Our supreme court in Timberlake v. Mini Hospital,
“Under the statute, the reason a cause of action was оriginally dismissed is importantin determining whether a plaintiff can subsequently refile, but after the case has been filed a second time, the reason for the second dismissal is of no consequence at all. No matter why the second dismissal took place, the statute does not give plaintiff the right to refile again. As this court expressly held in Flesner, 145 Ill. 2d 252 , section 13-—217 permits one, and only one, refiling of a сlaim.” Timberlake v. Mini Hospital,175 Ill. 2d at 165 .
This issue was also addressed in Koffski v. Village of North Barrington,
Thus, Case II, arising out of the same core of operative facts, is unquestionably a “new action” as contemplated by section 13—217. Furthermore, the fact that Case II was the second claim filed but the first to be dismissed has no bearing on the determination of whether plaintiff has fully availed himself of the opportunity afforded by the statute to refile. It is clear plaintiff filеd two separate, although identical, claims against defendants in two separate forums and both cases were involuntarily dismissed. Plaintiff now attempts to secure a third bite of the apple because the first bite turned sour. Unfortunately for plaintiff, the statute prohibits a third bite.
Defendants additionally contend the trial court erred in holding Case III arose from facts unrelated to those giving rise tо the filings in Cases I, II and IV We agree. “ ‘Although a single group of operative facts may give rise to the assertion of more than one kind of relief or more than one theory of recovery, assertions of different kinds or theories of relief arising out of a single group of operative facts constitute but a single cause of action.’ ” River Park, Inc. v. City of Highland Park,
In Case III, plaintiff filed a complaint seeking damages for breach of a promissory note and guaranty with a principal amount of $271,667. Defendants filed a motion to dismiss the complaint pursuant to section 2—619(a)(3) of the Code of Civil Procedure asserting the same claim was inсluded in the complaint in Case I, then pending in federal court.
“It was further a part of said scheme and artifice to defraud that the Defendants and co-schemers in or about June, 1993 induced the Plaintiff in reliance upon the false and fraudulent misrepresentations by the Defendants and co-schemers to purchase North American Insurance Company Bonds with a face value of $270,000.00 for Twо Hundred Forty-Four Thousand Five Hundred Dollars ($244,500.00) with the assurance of the Defendants and co-schemers that the bonds in fact existed and that the total amount paid by the Plaintiff would be used to purchase said bonds, though no such bonds existed or were purchased.”
This exact same paragraph is also contained in the amended complaint in Case II and the complaint in Case IV
The face of the promissory note included the following paragraph:
“Mirror of Note. This note mirrors principal and interest payments of Surplus Notes issued by North American Insurance through its owner, Encore Financial Corp. Said Notes from Encore are being held custodially for ENP for the benefit of its holders.”
Additionally, plaintiff himself referred to the promissory note and the existence of the North Americаn bonds as being components of the same transaction. In a discovery deposition taken in Case I, plaintiff stated, “I think I bought notes backed by an equivalent amount of bonds.” Defendants’ motion argues that the only differences between the complaints in Cases I and III were the claimed theories of recovery. Therefore, defendants maintain Case III was a refiling of Case I for purрoses of a section 13—217 analysis.
Conversely, plaintiff argues the bond transaction referred to in Case I and the defaulted note in Case III are completely different causes of action and cites Torcasso v. Standard Outdoor Sales Inc.,
We find the facts in Torcasso inapposite to the facts in the instant case. Whether plaintiff believed he bought the bonds or loaned defendants а sum of money on a note that was secured by the bonds is a factual question. The relevant consideration in determining whether the claims are identical for purposes of res judicata is whether the parties are the same and both theories of relief arise out of a single core of operative facts. Torcasso,
Having found a factuаl nexus between the claims contained in Cases I and III, which was voluntarily dismissed prior to the federal court’s dismissal of either Case I or II, we necessarily conclude plaintiff is barred from filing yet another case.
Because we have resolved this case based upon the first question alone, we need not address the second question.
In light of the foregoing, we reverse the judgment of the сircuit court of Cook County and dismiss plaintiffs complaint.
Reversed.
McNULTY, P.J., and O’HARA FROSSARD, J., 3 concur.
Notes
Plaintiff urges this court to utilize the “same evidence test” to analyze whether Case III is the same claim for purposes of res judicata. We dechne to do so. Both the “same evidence test” and the “transactional test” were valid prior to the supreme court’s decision in River Park, Inc. v. Highland Park,
Plaintiff additiоnally contends defendants waived this entire argument based upon one remark made by defense counsel before the trial court at the hearing on defendants’ motion to reconsider. Defense counsel said, “I’ve got a simple analysis for you. Let’s pretend that never happened. [The filing of Case III] We are willing to set that aside.” We reject plaintiffs argument on this point and find it to be a strained construction of the waiver doctrine. Defendants have maintained throughout the entire course of all of this litigation that Case III was a relevant component in determining the applicability of section 13—217 to the final filing.
Justice Rakowski heard oral argument on this case. Upon his retirement, Presiding Justice McNulty was substituted and has reviewed the record, briefs and audio recordings of the oral argument.