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Pacemaker Food Stores v. 7th Mont Corp.

OPINION FILED MAY 16, 1986.

PACEMAKER FOOD STORES, INC., PLAINTIFF-APPELLANT AND CROSS-APPELLEE,

v.

SEVENTH MONT CORPORATION ET AL., DEFENDANTS-APPELLEES AND CROSS-APPELLANTS (MULFORD VILLAGE DEVELOPMENT COMPANY ET AL., DEFENDANTS-APPELLEES).



Appeal from the Circuit Court of Winnebago County; the Hon. Robert C. Gill, Judge, presiding.

JUSTICE STROUSE DELIVERED THE OPINION OF THE COURT:

Plaintiff, Pacemaker Food Stores, Inc., appeals from an order dismissing its petition for damages which was filed after the disposition of its suit for declaratory judgment and injunctive relief. Seventh Mont Corporation and Montgomery Ward & Company, two of the defendants, cross-appealed, claiming that the trial court erred in considering the petition for damages on its merits rather than dismissing it on the basis of res judicata.

Pacemaker Food Stores, Inc. (Pacemaker), initiated this lawsuit in 1981 seeking to enjoin Mulford Village Development Company (Mulford) and McDonald's Corporation (McDonald's) from using a 74-foot-by-74-foot area of Pacemaker's parking lot for ingress and egress to their commercial property. Pacemaker, a tenant in the Montgomery Ward Shopping Center in the city of Rockford, claimed that this ingress and egress violated the terms of its lease which granted Pacemaker an interest in the demised premises for parking, and asked that an injunction be granted against the use of the easement as a roadway.

The trial court dismissed with prejudice Pacemaker's complaint for an injunction on the ground that it failed to state a cause of action. On appeal, this court reversed in a Rule 23 order (87 Ill.2d R. 23) and directed the trial court to permit Pacemaker to file its second amended complaint.

A bench trial followed and the trial court issued an injunction prohibiting the use of the 74-foot-by-74-foot area of Pacemaker's parking lot for roadway purposes. The court found that Pacemaker had an easement appurtenant for parking along the north boundary of the shopping center; that the prior use of the premises was irrelevant; that Mulford and McDonald's had actual notice of the existence of Pacemaker's lease and had a duty to inquire as to its terms; and, that Pacemaker's damage was the loss of 12 parking spaces.

Defendants appealed, and this court affirmed the judgment in Pacemaker Food Stores, Inc. v. Seventh Mont Corp. (1983), 117 Ill. App.3d 636. After the mandate was returned to the trial court, the court issued a writ of injunction prohibiting the use of the area for roadway purposes.

Twelve days later, Pacemaker filed a seven-count petition for damages. The petition sought the following: an award of attorney fees against Montgomery Ward & Company and Seventh Mont Corporation for Pacemaker's expenses in litigating against Mulford and McDonald's; an award of damages from Mulford for unjust enrichment based on the difference in market value of the lot Mulford sold to McDonald's between its value with the easement for ingress and egress and its value without that easement; an award of damages from McDonald's for unjust enrichment based on its profits from the restaurant using the easement for ingress and egress; and, an award of punitive damages from Mulford, McDonald's, Seventh Mont and Montgomery Ward.

The trial court dismissed the petition for damages, expressly finding that Pacemaker's damages were limited to the loss of use of the 12 parking places encompassed within the area and that Pacemaker was not entitled to attorney fees or punitive damages because there was a legitimate dispute to be litigated. Furthermore, the order denied Pacemaker's request to file an amended petition for damages. Following denial of its motion to reconsider, Pacemaker timely appealed, and Seventh Mont and Montgomery Ward cross-appealed.

• 1 The threshold question, as raised in the cross-appeal, is whether the trial court erred in addressing Pacemaker's petition for damages on its merits, rather than dismissing it on the basis of res judicata. It is the position of all the defendants that, even though the court was correct in ruling that the petition did not state a cause of action, consideration of the petition should have been barred by the doctrine of res judicata. Pacemaker responds that a suit for injunction and a subsequent suit for damages are separate causes of action with different facts to be proved and, therefore, the doctrine of res judicata is inapplicable.

The doctrine of res judicata provides that "a final judgment rendered by a court of competent jurisdiction on the merits is conclusive as to the rights of the parties and their privies, and, as to them, constitutes an absolute bar to a subsequent action involving the same claim, demand or cause of action." (People v. Kidd (1947), 398 Ill. 405, 408.) When res judicata is established "`as a bar against the prosecution of a second action between the same parties upon the same claim or demand * * * it is conclusive not only as to every matter which was offered to sustain or defeat the claim or demand, but as to any other matter which might have been offered for the purpose.'" Housing Authority for La Salle County v. YMCA (1984), 101 Ill.2d 246, 251-52, quoting Barry v. Commonwealth Edison Co. (1940), 374 Ill. 473, 478.

The courts have created the doctrine of res judicata to protect litigants from the onerous burden of retrying an identical cause of action or issue with the same party, and to promote economical use of judicial resources by barring repetitive litigation. (Spiller v. Continental Tube Co. (1983), 95 Ill.2d 423, 432.) Toward that end, the courts have barred parties from bringing suit on issues that could have been raised, but were not, in an earlier proceeding. Redfern v. Sullivan (1982), 111 Ill. App.3d 372, 375; see also Yaw v. Beeghly (1982), 109 Ill. App.3d 627, 632-33; Neuberg v. Michael Reese Hospital & Medical Center (1983), 118 Ill. App.3d 93, 99.

In the present case, Pacemaker did not raise the issue of damages in its original or amended complaints, and damages were not part of the proof at trial. During the trial, the trial court specifically inquired as to the matter of money damages, and the plaintiffs reiterated that there was no prayer or claim for money damages.

Defendants claim Pacemaker's subsequent petition for damages is untimely and an attempt to plead a new cause of action. They argue the petition should have been barred because it was based on the same occurrence, involved the same parties, had identical issues of liability, and raised points that Pacemaker chose to omit in its suit for declaratory judgment and injunctive relief.

Pacemaker's argument that res judicata is inapplicable is fourfold: (1) since Pacemaker never raised the issue of damages in the course of the injunction suit, defendants will not be litigating that issue twice; (2) the injunction suit and the damage action require different proof and, thus, constitute separate causes of action; (3) joinder of the equitable and legal claims is permissive, not mandatory; and (4) Pacemaker's action for damages under the theory of ...


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