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Pedigo v. Johnson

OPINION FILED JANUARY 30, 1985.

DANNY J. PEDIGO, D/B/A PEDIGO SOD COMPANY, PLAINTIFF-APPELLANT,

v.

TOM JOHNSON, DIRECTOR, DEPARTMENT OF REVENUE, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Sangamon County; the Hon. Richard E. Mann, Judge, presiding.

JUSTICE TRAPP DELIVERED THE OPINION OF THE COURT:

Danny J. Pedigo, a pro se plaintiff, filed suit to determine whether the decision of defendant Illinois Department of Revenue was void. The circuit court of Sangamon County dismissed the complaint on res judicata grounds, and plaintiff appeals.

After a hearing on August 21, 1979, the Department determined plaintiff was liable for arrears of taxes of approximately $15,600. Plaintiff filed suit for judicial review, but the trial court affirmed the Department's assessment. We, in turn, affirmed the trial court's judgment in Pedigo v. Department of Revenue (1982), 105 Ill. App.3d 759, 434 N.E.2d 860 (hereinafter referred to as Pedigo I). The supreme court later denied leave to appeal. Pedigo v. Department of Revenue (1982), 91 Ill.2d 572.

Not satisfied with the results obtained in Illinois courts, plaintiff filed suit in Federal court pursuant to the Federal Civil Rights Act of 1871 (42 U.S.C. § 1983 (1982)). The Federal District Court dismissed the suit, holding that our decision in Pedigo I had already addressed the issues raised in plaintiff's complaint. Plaintiff appealed, but the United States Court of Appeals for the Seventh Circuit dismissed the case for lack of jurisdiction.

On November 10, 1983, plaintiff again filed suit in the circuit court of Sangamon County. He alleged the Department's prior determination was void. The trial court dismissed the action on res judicata grounds.

Plaintiff contends the Department failed to comply with section 10 of the Illinois Administrative Procedure Act (Ill. Rev. Stat. 1983, ch. 127, par. 1010). Section 10 outlines the requirement for notice of a hearing in a contested case under the Act. Plaintiff made this same argument on appeal in Pedigo I. We refused to consider the issue, stating:

"Despite this omission in the notice, we note that plaintiff failed to object at any point to the notice issued by the Department below. As such, any claim by plaintiff that the notice did not comply with section 10 will not be considered inasmuch as this matter has been waived by plaintiff's failure to object to the omission of the aforementioned items." (Pedigo v. Department of Revenue (1982), 105 Ill. App.3d 759, 762, 434 N.E.2d 860, 863.)

The Department maintains a doctrine of res judicata precludes plaintiff from raising the notice issue now.

Res judicata prohibits repetitive litigation in an effort to obtain judicial economy and to protect litigants from the burden of retrying an identical cause of action with the same party or a privy. Under the doctrine, a final judgment rendered by a court of competent jurisdiction on the merits bars absolutely a subsequent action involving the same cause of action or issue between the same parties or their privies. Spiller v. Continental Tube Co. (1983), 95 Ill.2d 423, 432, 447 N.E.2d 834, 838.

• 1 The res judicata effect affixes to administrative decisions that are judicial in nature. (Godare v. Sterling Steel Casting Co. (1981), 103 Ill. App.3d 46, 430 N.E.2d 620.) After a review of such a decision, the reviewing court's judgment is res judicata to all issues raised before it, and all issues, which could have been raised on the record but were not, are deemed waived. People v. Mitchell (1981), 95 Ill. App.3d 779, 791, 420 N.E.2d 415, 424.

• 2 A former adjudication can be relied on as an absolute bar when the parties and the cause of action are the same in both proceedings, the former adjudication was a final judgment on the merits, and the court had jurisdiction to render it. (People v. Kidd (1947), 398 Ill. 405, 408-09, 75 N.E.2d 851, 854.) Those criteria are met by the decision in Pedigo I. We held that plaintiff could have and should have raised the matter of notice earlier in that proceeding, and thus, the doctrine of res judicata should preclude him from raising it now.

• 3 Plaintiff, however, notes that res judicata is not applied to a void judgment. A void judgment is one that, from its inception, is a complete nullity and without legal effect. (In re Marriage of Allcock (1982), 107 Ill. App.3d 150, 153, 437 N.E.2d 392, 394.) Plaintiff cites section 14 of the Illinois Administrative Procedure Act (Ill. Rev. Stat. 1983, ch. 127, par. 1014), which states, in part:

"A decision by any agency in a contested case under this Act shall be void unless the proceedings are conducted in compliance with the provisions of this Act relating to contested cases except to the extent such provisions are waived pursuant to Section 18 of this Act and except to the extent the agency has adopted its own rules for contested cases as authorized in Section 2 of this Act."

Plaintiff argues the Department's prior order must be void for failure to comply with the notice provision in contested cases. Generally, an agency's order that is void may be attacked at any time and in any court either directly or collaterally. (City of Chicago v. Fair Employment Practices Com. (1976), 65 Ill.2d 108, 112, 357 N.E.2d 1154, ...


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