The opinion of the court was delivered by: Justice Bilandic
Docket No. 88393-Agenda 24-May 2000.
This action for attorney fees was filed in the circuit court of Madison County.
Johnny Kitzman died in an excavation-related accident in Missouri. His widow, Karen, hired the law firm of Morris B. Chapman & Associates to pursue legal recourse. Karen agreed to pay Chapman one-third of any recovery as attorney fees. Chapman filed a wrongful death action in Missouri. According to Missouri law, decedent's heirs included his widow and his parents.
Chapman obtained an $800,000 settlement for the benefit of decedent's heirs after working on the case for three years. Chapman filed a petition in the Missouri circuit court for settlement approval and apportionment. Shortly before the hearing on the petition, decedent's parents, John and Edna Kitzman, retained separate counsel, John A. Kilo. The Kitzmans agreed to pay Kilo one-third of any recovery in excess of $100,000 as attorney fees. They intervened in the cause and participated in the settlement approval and apportionment hearing.
The Missouri court approved the settlement and entered an order distributing 86% ($688,000) to Karen and 14% ($112,000) to the Kitzmans. The court awarded Chapman a fee consisting of one-third of Karen's share ($227,040), but no part of the Kitzmans' share. The court awarded Kilo a fee consisting of one-third of the Kitzmans' share over $100,000 ($4,000).
The Missouri court based its attorney fee awards on a statutory provision that required the circuit court to order the claimant:
"To deduct and pay the expenses of recovery and collection of the judgment and the attorneys' fees as contracted, or if there is no contract, or if the party sharing in the proceeds has no attorney representing him before the rendition of any judgment or settlement, then the court may award the attorney who represents the original plaintiff such fee for his services, from such persons sharing in the proceeds, as the court deems fair and equitable under the circumstances." Mo. Rev. Stat. §537.095(4)(2) (1986).
Given that Karen and the Kitzmans hired separate counsel for the hearing, the court interpreted this language as requiring it to award attorney fees pursuant to the existing contracts. The court therefore awarded no attorney fees out of the first $100,000 of the Kitzmans' share. The court acknowledged that it "seems unfair to permit potential wrongful death plaintiffs to rest on their oars until a settlement of a claim is achieved, and then appear with counsel so as to prevent the original plaintiff's fees from being a shared burden." Nonetheless, the court held, the statutory language requires this result. No appeal was taken.
One month later, Chapman filed the instant action against the Kitzmans in Illinois, requesting an award of reasonable attorney fees. Chapman's first amended complaint sought fees based on quantum meruit and the common fund doctrine.
The Kitzmans filed three separate motions to dismiss. They alleged that Chapman's claim is barred by the full faith and credit clause of the United States Constitution (U.S. Const., art. IV, §1) as res judicata. They further alleged that the complaint fails to state a cause of action under Missouri law and, alternatively, under Illinois law. Lastly, the Kitzmans moved for sanctions against Chapman pursuant to Supreme Court Rule 137 (155 Ill. 2d R. 137). The pleadings disclosed that Chapman is an Illinois corporation with a law office in Illinois, and that the Kitzmans are Illinois residents.
The circuit court ruled that Chapman's action is not barred. The court, however, dismissed the quantum meruit count after Chapman verbally agreed to its dismissal. The court dismissed the common fund doctrine count, holding that the doctrine is not applicable in this case. Lastly, the court denied the Kitzmans' motion for sanctions.
The appellate court affirmed in part and reversed in part, and remanded the cause for further proceedings. 307 Ill. App. 3d 92. Applying Missouri law, the court agreed that Chapman's action is not barred as res judicata. The court thus agreed that Chapman's action is not barred by the full faith and credit clause. The court nonetheless reversed the dismissal of the common fund doctrine count. After conducting a conflict-of-laws analysis, the court applied Illinois substantive law with respect to the common fund doctrine and held that count II of Chapman's complaint survives the Kitzmans' motions to dismiss. The court affirmed the denial of sanctions.
The Kitzmans' initial petition for leave to appeal was returned to them because it violated the page limitation set forth in Supreme Court Rule 315(c) (177 Ill. 2d R. 315(c)). After this violation was remedied, this court granted the Kitzmans leave to file their petition for leave to appeal instanter. See 177 Ill. 2d R. 315(b). We subsequently allowed the Kitzmans' petition for leave to appeal as a matter of right. 134 Ill. 2d R. 317; see Schoeberlein v. Purdue University, 129 Ill. 2d 372, 376 (1989). This court has jurisdiction over the cause.
The Kitzmans contend that the full faith and credit clause bars this action because the Missouri court's fee apportionment order is res judicata as to Chapman's claim. For this reason, they argue, the circuit court should have dismissed Chapman's complaint.
As an initial matter, we generally apply the law of the forum, i.e., Illinois law, with regard to matters of pleading and how the litigation shall be conducted. See Nelson v. Hix, 122 Ill. 2d 343, 346-47 (1988); Restatement (Second) of Conflict of Laws §§122, 127 (1971); see generally 16 Am. Jur. 2d Conflict of Laws §§153, 163 (1998) (noting that, in matters of pleading and how litigation is conducted, the law of the forum state governs). In Illinois, section 2-619(a)(4) of the Code of Civil Procedure permits the involuntary dismissal of an action where it is "barred by a prior judgment." 735 ILCS 5/2-619(a)(4) (West 1996). This provision allows a party to raise the affirmative defense of res judicata. Where, as here, there is no issue of material fact, an appellate court conducts de novo review and determines whether dismissal by reason of res judicata is proper as a matter of law. See Epstein v. Chicago Board of Education, 178 Ill. 2d 370, 383 (1997); Torcasso v. Standard Outdoor Sales, Inc., 157 Ill. 2d 484, 486, 491 (1993).
According to the United States Constitution, "Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State." U.S. Const., art. IV, §1. This clause requires Illinois courts to give the judgment of a sister state at least the res judicata effect that the sister state rendering the judgment would give to it. Durfee v. Duke, 375 U.S. 106, 109, 11 L. Ed. 2d 186, 190, 84 S. Ct. 242, 244 (1963); Hays v. Louisiana Dock Co., 117 Ill. App. 3d 512, 517 (1983); see Underwriters National Assurance Co. v. North Carolina Life & Accident & Health Insurance Guaranty Ass'n, 455 U.S. 691, 71 L. Ed. 2d 558, 102 S. Ct. 1357 (1982). Hence, we must apply Missouri law to determine whether Chapman's claim against the Kitzmans is barred as res judicata by the Missouri court judgment.
Pursuant to Missouri law, the following "four identities" must appear for res judicata to adhere: (1) identity of the thing sued for; (2) identity of the cause of action; (3) identity of the persons and parties to the action; and (4) identity of the quality of the person for or against whom the claim is made. King General Contractors, Inc. v. Reorganized Church of Jesus Christ of Latter Day Saints, 821 S.W.2d 495, 501 (Mo. 1991) (en banc). The third identity, that of the parties to the action, is dispositive here.
Chapman was not a party to the wrongful death action. Rather, Chapman was the law firm representing a party. As the Missouri Court of Appeals explained in an attorney fee dispute arising out of a wrongful death action,
"[T]he attorneys were not parties to the underlying litigation. Res judicata bars only claims by parties and privies. *** The concept of privity for purposes of res judicata connotes interests so closely related that the party sought to be barred may be said to have had a day in court. The interest of an attorney with regard to a fee claim is not of this character." Floyd v. Shaw, 830 S.W.2d 564, 565 (Mo. App. 1992).
Accordingly, applying Missouri law, we conclude that res judicata is not a bar to Chapman's claim for fees.
On a related note, the Kitzmans next suggest that Chapman is collaterally estopped from pursuing its claim for attorney fees. Collateral estoppel is also known as issue preclusion. To determine whether issue preclusion obtains, Missouri courts apply a somewhat different test than the one set forth above. King General Contractors, Inc., 821 S.W.2d at 500-01. Nevertheless, issue preclusion is never applied against a party who could not appeal from the earlier judgment as a matter of law. Restatement (Second) of Judgments §28(1), at 273; Comment a, at 274 (1982); see King General Contractors, Inc., 821 S.W.2d at 501-02 (following Restatement (Second) of Judgments); see generally K. Moore, Collateral Attack on Subject Matter Jurisdiction: A Critique of the Restatement (Second) of Judgments, 66 Cornell L. Rev. 534, 560 & n.125 (1981) (discussing the importance of this exception). The question thus arises whether Chapman could have appealed from the Missouri court judgment.
In Missouri, appellate review of an order distributing a wrongful death settlement must be sought pursuant to section 512.020 of the Missouri Code of Civil Procedure (Mo. Rev. Stat. §512.020 (1993)). Section 512.020 limits the right to an appeal only to parties to the suit, which does not include a party's law firm. In a similar context, the Missouri Court of Appeals explained:
"The right to appeal is purely statutory. [Citations.] Section 512.020 provides that any `party to a suit aggrieved by any judgment of any trial court in any civil case ... may take his appeal to a court having appellate jurisdiction.' By its express terms, the statute limits appeals; only a `party to a suit' may appeal. The [law] firm was not a party. Therefore, the [law] firm has ...