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12/19/95 HAROLD S. LEOW v. A&B FREIGHT LINE

December 19, 1995

HAROLD S. LEOW, PLAINTIFF-APPELLANT
v.
A&B FREIGHT LINE, INC., AND KEITH PASCH, DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Winnebago County. No. 94-L-102. Honorable Ronald L. Pirrello, Judge, Presiding.

Released for Publication January 19, 1996. Petition for Leave to Appeal Allowed April 3, 1996.

The Honorable Justice Rathje delivered the opinion of the court: Hutchinson, J., concurs. Justice Doyle, specially concurring:

The opinion of the court was delivered by: Rathje

The Honorable Justice RATHJE delivered the opinion of the court:

Plaintiff, Harold S. Leow, initially filed a single-count complaint, naming A&B Freight Line, Inc. (A&B), the sole defendant. Subsequently, plaintiff filed an amended complaint, adding a second count against defendant, Keith Pasch (Pasch). Count I alleged that A&B, through its employee, Pasch, was liable under the doctrine of respondeat superior for injuries suffered by plaintiff in a loading dock accident. Count II averred that Pasch's negligent operation of the truck he was driving for A&B resulted in permanent injuries to plaintiff.

Subsequently, Pasch filed a motion to dismiss count II, pursuant to section 2-619(5) of the Code of Civil Procedure (735 ILCS 5/2-619(5) (West 1992)). Said motion alleged that the cause of action occurred on March 11, 1992, and that suit was not filed against Pasch until September 14, 1994, at which time, the relevant statute of limitations had run. The trial court granted Pasch's motion with prejudice. A&B then filed a motion to dismiss count I, arguing that a dismissal with prejudice of an action against an employee operates as an adjudication on the merits as to the employer and, thus, bars an action against the employer under the doctrine of res judicata. Subsequently, the trial court dismissed count I, pursuant to Supreme Court Rule 273 (134 Ill. 2d R. 273). This timely appeal followed.

On appeal, plaintiff argues that (1) the trial court erred in finding that Downing v. Chicago Transit Authority (1994), 162 Ill. 2d 70, 204 Ill. Dec. 755, 642 N.E.2d 456, supported its dismissal of count I; and (2) Pasch is not a necessary party to the action against A&B.

Initially, we address plaintiff's argument that Downing does not support the dismissal of count I. Plaintiff contends that there has been no adjudication on the merits of count II of the amended complaint and, thus, res judicata is not a basis upon which to dismiss count I. In response, A&B argues that plaintiff's narrow reading of Downing is incorrect.

In Downing, the plaintiff originally filed a complaint against the CTA and its "unknown employee and agents." ( Downing, 162 Ill. 2d at 72.) Later, after the relevant statute of limitations had run, the plaintiff filed a second amended complaint against the CTA, which named the CTA's employee, Woodrow Williams, as a defendant. The trial court granted Williams' motion for summary judgment based on the running of the statute of limitations. The CTA then filed a motion for summary judgment based on the doctrine of res judicata. The trial court granted the CTA's motion. At issue before the supreme court was whether the granting of summary judgment in Williams' favor precluded a cause of action against the CTA. The Downing court reiterated the elements necessary to prove res judicata, namely, (1) there is a final judgment on the merits rendered by a court of competent jurisdiction; (2) there is an identify of cause of action; and (3) there is an identity of parties or their privies. (162 Ill. 2d at 73-4.) The Downing court determined that the only element of res judicata which was in serious dispute was whether the granting of summary judgment in favor of Williams was a final judgment on the merits. The Downing court stated:

"Plaintiff asserts that the summary judgment was not an adjudication on the merits, and in support offers a series of arguments that are generally off-point. Plaintiff suggests that Supreme Court Rule 273 [citation] and this court's decision in Towns v. Yellow Cab Co. (1978), 73 Ill. 2d 113, 126, 22 Ill. Dec. 519, 382 N.E.2d 1217, require a ruling that a summary judgment entered because the statute of limitations had run is not a ruling 'on the merits.' Plaintiff also urges that equitable principles require this conclusion.

Rule 273 states that, 'unless the order of dismissal or a statute of this State otherwise specifies, an involuntary dismissal of an action, other than a dismissal for a lack of jurisdiction, for improper venue, or for failure to join an indispensable party, operates as an adjudication upon the merits.' [Citation.] As it specifically states, Rule 273 applies only to an involuntary dismissal of an action, such as what occurs when a motion to dismiss under section 2-615 or section 2-619 of the Code of Civil Procedure is granted. A summary judgment is not an involuntary dismissal.

Further, Rule 273, even if it were to apply, would compel a result opposite of what plaintiff seeks. Plaintiff urges that res judicata was inappropriately applied because there was no adjudication on the merits. However, Rule 273 states that, with certain exceptions not applicable here, involuntary dismissals do indeed operate as judgments on the merits.

All three cases cited by defendant involved summary judgment entered after a trial court looked at the facts and decided that, on the merits, no genuine issue existed. None involved summary judgment for failure to meet the statute of limitations.

We disagree that a summary judgment, 'by definition,' means a judgment on the merits. Although a judgment on the merits will oftentimes be the reason for granting summary judgment, this is not always the case. When a summary judgment is granted because the statute of limitations has run, the merits of the action are never examined. To label such an order as an adjudication on the merits would be the ...


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