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Van Slambrouck v. Marshall Field & Co.





APPEAL from the Circuit Court of Cook County; the Hon. MYRON GOMBERG, Judge, presiding.


The plaintiff, after having voluntarily dismissed with prejudice his claim against one of the defendants in his suit, sought to have the dismissal order vacated. The trial court denied both this motion and a section 72 motion for relief. Subsequently the plaintiff filed a new action against the dismissed defendant; this complaint was also dismissed with prejudice. The plaintiff now appeals from all these orders. We hold:

1. that the trial court properly refused to vacate the order, despite its power to do so under Supreme Court Rule 304(a), since the plaintiff by voluntarily dismissing the action with prejudice abandoned the claim;

2. that the plaintiff was required to appeal the denial of its section 72 motion within 30 days of its denial, and having failed to do so, cannot now seek review of the order;

3. that the dismissal of the new complaint was not appealable since the court did not enter under a section 304(a) order.

On November 10, 1973, the plaintiff, Michael Van Slambrouck, an employee of Lien Chemical Company, was seriously injured by a bailing machine owned and operated by defendant-appellee, Marshall Field & Co. On July 24, 1974, he filed suit against Marshall Field, Economy Baler Company, the manufacturer of the machine, and Howell Electric Motor Works, a manufacturer of electrical components. Marshall Field filed a third-party complaint against Lien Chemical Company for indemnity for attorney's fees based upon a written contract. This claim was subsequently severed from the original action. Marshall Field also filed a counterclaim against Economy Baler for indemnification in the event judgment was entered for plaintiff.

On October 6, 1976, after discovery was completed plaintiff moved for the dismissal, with prejudice, of his suit against Marshall Field. The motion was granted. At the same time Marshall Field's counterclaim was dismissed. Both the plaintiff's action against Economy Baler and Marshall Field's action against Lien Chemical remained. Plaintiff's action against Economy Baler has not yet gone to trial. Although summary judgment was entered on August 6, 1979, on the issue of Lien Chemical's liability to Marshall Field, the amount of damages also remained to be tried as of September 30, 1979.

At the end of 1976, plaintiff's original counsel withdrew from the case and new counsel was retained.

On August 30, 1979, the plaintiff filed a motion to vacate the voluntary dismissal order entered on October 6, 1976, contending that the accident was caused by Marshall Field's removal of two parts of the machine. Plaintiff further alleged that since the date of the dismissal order no further discovery had taken place to prejudice Marshall Field. On September 18, 1979, plaintiff filed a section 72 petition contending that in its answers to interrogatories Marshall Field represented that it had made no modifications in the machine whereas the evidence was to the contrary.

After hearing the evidence and arguments of counsel, the trial court on November 27, 1979, found that the evidence did not establish fraudulent concealment by Marshall Field and denied both motions. A finding in the order, which was prepared by Marshall Field's attorney, that there was no just cause to delay enforcement or appeal of the order was stricken by the judge. This was done to avoid a piecemeal appeal since on November 15, 1980, the plaintiff had filed a new lawsuit against Marshall Field. This lawsuit, like the first one, was based upon strict liability in tort. In this action plaintiff alleged that he neither knew or could have known of the defect until 1979. The record indicates that this case was consolidated with the 1974 case. On March 4, 1980, this new complaint was dismissed with prejudice, the court ruling as a matter of law that the defect should have been discovered earlier. The court also found that "this is not, nor is it intended to be a final order." Apparently this was done to prevent appeal of this second case before the termination of the 1974 case. On March 28, 1980, an order was entered making the order of November 27, 1979, final and appealable as of March 28, 1980, and providing that the time for appeal should begin as of that date. The plaintiff appealed on April 3, 1980, from both the order of November 27, 1979, and that of March 4, 1980.


• 1 It appears from the record that the trial court refused to vacate the voluntary dismissal because it believed it had no power to do so. As we recently held in Kalalinick v. Knoll (1981), 97 Ill. App.3d 660, ___ N.E.2d ___, this belief was erroneous. Since the case was dismissed only as to one defendant and was continued as to another defendant the court had jurisdiction under Supreme Court Rule 304(a) (Ill. Rev. Stat. 1979, ch. 110A, par. 304(a)) to set aside that order. Nevertheless, while the court, believing that it had no jurisdiction, failed to exercise its discretion under Supreme Court Rule 304(a), we find no error since the plaintiff, having dismissed the claim against Marshall Field with prejudice, abandoned that claim as a matter of law. A dismissal with prejudice is tantamount to an adjudication on the merits. (O'Reilly v. Gerber (1981), 95 Ill. App.3d 947, 420 N.E.2d 655; Village of Arlington Heights v. American National Bank & Trust Co. (1979), 72 Ill. App.3d 744, 391 N.E.2d 108.) Once a cause of action has been adjudicated on the merits, whether by a dismissal with prejudice or by an adjudication after trial, the plaintiff is barred by the doctrines of res judicata and collateral estoppel from bringing a second action against the same defendant alleging any matter relating to the same causes of action which was or might have been litigated in the first suit. (Baird & Warner, Inc. v. Addison Industrial Park, Inc. (1979), 70 Ill. App.3d 59, 387 N.E.2d 831, appeal denied (1979), 79 Ill.2d 609.) Thus it seems clear that plaintiff abandoned not only his position and rights (Kalalinick v. Knoll (1981), 97 Ill. App.3d 660, ___ N.E.2d ___), but even the claim itself.


We have no jurisdiction over the appeal from either the denial of the section 72 motion or the dismissal of the second suit. Supreme Court Rule 304(a) (Ill. Rev. ...

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