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Schrager v. Grossman

March 5, 2001

BARRY SCHRAGER, PLAINTIFF-APPELLEE,
v.
JEFFREY GROSSMAN, DONALD GRAUER, BARBARA LUX, MIDWESTERN FINANCIAL CONSULTANTS, LTD., AN ILLINOIS CORPORATION, HIGHLAND PARK CORPORATION, AN ILLINOIS CORPORATION, THE KIMBERLY ANNE GROSSMAN TRUST, THE TRINA ELYSE GROSSMAN TRUST, THE KIMBERLY ANNE GROSSMAN SUBCHAPTER S TRUST, THE TRINA ELYSE GROSSMAN SUBCHAPTER S TRUST, ALLEN ENGERMAN, MICHAEL MANDELL, BETTE GROSSMAN, EAGLE PARTNERS, LTD., 2780 RIDGE CORPORATION, 1255 BUILDING CORPORATION, CHURCHILL CAPITAL, LTD., ENP II, AN ILLINOIS LIMITED PARTNERSHIP, CHURCHILL VENTURE ONE, LTD., MAGNOLIA HOMES CORPORATION, MAGNOLIA ESTATES CORPORATION, OXFORD FUNDING GROUP, LTD., CHURCHILL VENTURE LTD., AND EXECUTIVE TRAVEL, DEFENDANTS-APPELLANTS.



Appeal from the Circuit Court of Cook County. No. 97 L 3582; Honorable Sheldon Gardner, Judge Presiding.

The opinion of the court was delivered by: Justice Tully.

MODIFIED UPON DENIAL OF REHEARING April 3, 2001.

Defendants appeal from the circuit court's denial of their motion to dismiss plaintiff's complaint as violative of Illinois' single-refiling rule (735 ILCS 5/13-217 (West 1998)), as well as the principles of res judicata and collateral estoppel.

For the reasons which follow, we reverse.

First Filing

In April 1995, plaintiff filed a complaint in the United States District Court for the Northern District of Illinois naming as defendants Jeffrey Grossman, Donald Grauer, Barbara Lux, Midwestern Financial Consultants, Ltd., Quinlan & Tyson Realty Partners Ltd., and Highland Park Corporation (hereinafter referred to as Case I). The complaint alleged civil Racheteer Influenced and Corrupt Organizations Act 18 U.S.C.S 1964 violations as well as several state common law claims including fraud, conspiracy, and breach of fiduciary relationships.

Plaintiff subsequently filed first and second amended complaints. The second amended complaint named as additional defendants the Kimberly Anne Grossman Trust, the Trina Elyse Grossman Trust, the Kimberly Anne Grossman Subchapter S Trust, Trina Elyse Grossman Subchapter S Trust, Allen Engerman, Michael Mandell, Bette Grossman, Eagle partners, Ltd., 2780 Ridge Corporation, 1255 Building Corporation, Churchill Capital, Ltd., ENP II, ENP II, Ltd., Churchill Venture One, Ltd., Magnolia Homes Corporation, Magnolia Estates Corporation, Oxford Funding Group, Ltd., Churchill Venture, Ltd., and Executive Travel. The second amended complaint contained counts alleging mail and wire fraud, RICO, unjust enrichment and accounting, and common law fraud.

On March 12, 1997, a dispositive order was entered that stated, "plaintiff voluntarily dismisses with prejudice the claims brought under RICO. The remaining claims are dismissed without prejudice with leave to re-file them in the state court."

Second Filing

In March 1996, while Case I remained pending, plaintiff filed a complaint in the circuit court of Lake County, Illinois, against defendants Eagle Partners, Riverwoods Partnership, 2780 Ridge Corporation, Bette Grossman, as trustee of the Trina Elyce Grossman Family Trust and as trustee of the Kimberly Anne Grossman Family Trust, Donald Grauer, Jeffrey Grossman, Larry Kanar, and American National Bank and Trust Company of Chicago (hereinafter referred to as Case II). The complaint sought to enjoin the sale of certain real estate and a declaration nullifying the loan guarantee because the signature purporting to be plaintiff's was, in fact, a forgery.

On January 10, 1997, plaintiff amended his complaint setting forth allegations of common law fraud, conspiracy, use of the mails and interstate wires in furtherance of a scheme and artifice to defraud, breaches of fiduciary relationships, and for an accounting. The claims set forth in the original complaint were completely absent from the amended complaint.

On February 5, 1997, the defendants removed the matter to the federal District Court for the Northern District of Illinois. The case was dismissed on February 13, 1997, as duplicative of Case I. Specifically, the order stated: "The court grants defendants' motion to dismiss and dismisses plaintiff's cause of action before this court as duplicative of the cause of action pending before Judge Marovich in case No. 95 C 2214. The court denies defendants' motion to consolidate as moot."

Third Filing

On April 2, 1996, plaintiff filed a complaint against defendants ENP II, Ltd., Donald Grauer and Jeffrey Grossman in the circuit court of Cook County (hereinafter referred to as Case III). Count I alleged breach of a promissory note against ENP II, Ltd., and count II alleged breach of promise to guarantee the note by defendants Grossman and Grauer. The promissory note was executed by ENP, II., Ltd., on July 10, 1995 in the amount of $271,667. Defendants filed a motion to dismiss contending the facts alleged in this case arose from the same core of operative facts as Case I pending in federal court. Plaintiff's motion for a voluntary dismissal was granted on October 10, 1996, prior to the court ruling on defendants' motion to dismiss.

Fourth Filing

On March 27, 1997, plaintiff filed yet another complaint in the circuit court of Cook County, which is the subject of the instant appeal (hereinafter referred to as Case IV). The complaint named the same defendants as were named in the second amended complaint in Case I and stated causes of action for tortious conspiracy to ...


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