Appeal from the Circuit Court of Cook County.The Honorable YAEGER, Diane Joan Larsen, Judge Presiding. 09 L 002771
The opinion of the court was delivered by: Justice Pucinski
JUSTICE PUCINSKI delivered the judgment of the court, with opinion. Presiding Justice Gallagher and Justice Lavin concurred in the judgment and opinion.
In this appeal, we answer two certified questions and determine: (1) whether plaintiffs abandoned their spoliation claims for purposes of res judicata where those claims are dismissed with leave to replead but the claims are never repled prior to plaintiff's voluntary dismissal of the entire cause of action; and (2) whether a grant of summary judgment in favor of the hospital defendant on a claim for respondeat superior based on the apparent agency of a doctor, with a subsequent voluntary dismissal of the remainder of the case, operates as a res judicata bar against refiling the action against both the hospital and the doctor. We answer the first question in the negative, as the order granted plaintiffs leave to replead and was not a final judgment on the merits of those claims and, therefore, was not subsequently rendered final by the voluntary dismissal. We answer the second question in the affirmative as to the hospital, except as to a claim for respondeat superior based on actual agency, but in the negative as to the defendant doctor and remaining defendants.
On April 17, 1998, plaintiff Jenel Beaton gave birth to minor plaintiff Marsae Williams at defendant Ingalls Memorial Hospital (Ingalls). Marsae suffered a brachial plexus injury during the course of his birth. On July 30, 2003, plaintiffs filed a complaint alleging that individual defendants Dr. Imre Hidvegi, Dr. Stephen Daube, and nurse Theresa Yaeger were negligent in the delivery of Marsae. We will refer to this original action as Williams I. Plaintiffs alleged that Ingalls was vicariously liable for the negligence of Dr. Hidvegi on the basis that he "was a duly authorized agent and/or employee of" Ingalls and "was acting within the course and scope of that employment and/or agency." Plaintiffs further alleged negligent and intentional spoliation of evidence regarding fetal monitor strips.
On January 10, 2007, Ingalls filed a motion to dismiss counts V and VI of plaintiff's complaint alleging negligence and intentional spoliation, pursuant to section 2-615 of the Illinois Code of Civil Procedure (735 ILCS 5/2-615 (West 2008)). The court initially denied the motion but, on February 28, 2007, granted Ingalls' motion to reconsider and dismissed counts V and VI, but granted plaintiffs leave to file a second amended complaint "pleading spoliation as an allegation(s)." Subsequently, witness and expert disclosures were completed and the action was scheduled for trial on March 10, 2008. Plaintiffs never filed a second amended complaint and never repled the negligent or intentional spoliation of evidence claims.
On February 20, 2007, Ingalls also filed a motion for partial summary judgment on the claim for liability against it based on the apparent agency of Dr. Hidvegi. On March 30, 2007, the circuit court granted Ingalls' motion. On March 10, 2008, the day of trial, plaintiffs appeared and orally moved to voluntarily dismiss the remaining claims of their complaint, which the court granted without prejudice.
On March 6, 2009, plaintiffs refiled the instant cause of action, which we will refer to as Williams II. Plaintiffs' complaint is identical to the first amended complaint in Williams I and includes the same parties and allegations, including the negligent and intentional spoliation of evidence claims and the claim for vicarious liability of Ingalls based on the allegation that Dr. Hidvegi "was a duly authorized agent and/or employee of" Ingalls and "was acting within the course and scope of that employment and/or agency."
On July 7, 2009, defendants filed a motion to dismiss plaintiffs' refiled cause of action based on res judicata, arguing that both the dismissal order of February 28, 2007, and the entry of summary judgment on apparent agency on March 30, 2007, were adjudications on the merits. The circuit court denied the motion on September 24, 2009, and also denied the defendants' motion to reconsider on November 18, 2009.
Thereafter, defendants jointly presented two certified questions, which the circuit court certified for our review on January 20, 2010. Defendants filed a timely application for leave to appeal pursuant to Illinois Supreme Court Rule 308 (Ill. S. Ct. R. 308 (eff. Feb. 1, 1994)), which we granted. The instant appeal followed.
On appeal, defendants Ingalls Memorial Hospital, Dr. Imre Hidvegi, Dr. Stephen Daube,and Theresa Yaeger seek an answer to the following certified questions:
"1. Does abandonment occur, for purposes of res judicata, where a plaintiff brings Counts for spoliation of evidence; the Counts are involuntarily dismissed with leave to re-plead, and the Counts are not re-pled prior to plaintiff's voluntary dismissal of the cause of action on the morning of trial?
2. Where summary judgment is entered against plaintiff on an allegation that the defendant physician is the apparent agent of the defendant hospital, and plaintiff then voluntarily dismisses the remainder of the case, does that order of summary judgment act as a res judicata bar to re-filing the case against the hospital and the defendant doctor?" We apply a de novo standard of review to legal questions presented in an interlocutory appeal brought pursuant to Supreme Court Rule 308(a). Apollo Real Estate Investment Fund, IV, L.P. v. Gelber, 398 Ill. App. 3d 773, 778, 935 N.E.2d 949, 954 (2009) (citing Anthony v. City of Chicago, 382 Ill. App. 3d 983, 987, 888 N.E.2d 721, 725 (2008)).
I. Dismissal of Intentional and Negligent Spoliation Claims As to the first certified question, defendants argue that the plaintiffs abandoned their spoliation counts in Williams I where those counts were dismissed by the court with leave to replead and were not repled prior to plaintiffs' voluntary dismissal of their cause of action. Although defendants first argue that plaintiffs effectively abandoned their spoliation claims, abandonment is a concept typically applied when a further amended pleading is filed but certain former allegations are not realleged. Under the principle of abandonment, where an amended pleading is complete in itself and does not refer to or adopt a prior pleading, the earlier pleading ceases to be a part of the record for most purposes, being in effect abandoned and withdrawn. Pfaff v. Chrysler Corp., 155 Ill. 2d 35, 61, 610 N.E.2d 51, 63 (1992) (citing Bowman v. County of Lake, 29 Ill. 2d 268, 272, 193 N.E.2d 833, 835 (1963)). Thus, when a party files such an amended complaint, he thereby waives any objection to the trial court's ruling on the former complaint. Pfaff, 155 Ill. 2d at 61, 610 N.E.2d at 63 (citing Foxcroft Townhome Owners Ass'n v. Hoffman Rosner Corp., 96 Ill. 2d 150, 153, 449 N.E.2d 125, 126 (1983), citing Bowman, 29 Ill. 2d at 272, 193 N.E.2d at 835). Here, plaintiffs never filed a second amended complaint in their original action. The principles of res judicata more appropriately apply.
Plaintiffs argue that the court's prior dismissal of the counts with leave to replead was not a final adjudication of their spoliation counts because they subsequently voluntarily dismissed their action without prejudice, and thus those counts are not barred by res judicata. Three requirements must be satisfied for res judicata to apply: (1) a final judgment on the merits has been rendered by a court of competent jurisdiction; (2) an identity of causes of action exists; and(3) the parties or their privies are identical in both actions. Hudson v. City of Chicago, 228 Ill. 2d 462, 467, 889 N.E.2d 210, 213 (2008) (citing Downing v. Chicago Transit Authority, 162 Ill. 2d 70, 73-74, 642 N.E.2d 456, 458 (1994)). " 'A final order is one that "disposes of the rights of the parties either with respect to the entire controversy or some definite and separate portion thereof." ' " Jackson v. Victory Memorial Hospital, 387 Ill. App. 3d 342, 351, 900 N.E.2d 309, 318 (2008) (quoting In re Estate of Yucis, 382 Ill. App. 3d 1062, 1069, 890 N.E.2d 964, 970 (2008), quoting Arachnid, Inc. v. Beall, 210 Ill. App. 3d 1096, 1103, 569 N.E.2d 1273, 1277 (1991)).
Regarding whether a dismissal operates as a final adjudication, Supreme Court Rule 273 provides the following:
"Unless the order of dismissal or a statute of this State otherwise specifies, an involuntary dismissal of an action, other than a dismissal for lack of jurisdiction, for improper venue, or for failure to join an indispensable party, operates as an adjudication upon the merits." Ill. S. Ct. R. 273 (eff. Jan. 1, 1967).
Ordinarily, a dismissal for failure to state a claim is an involuntary dismissal and is an adjudication on the merits. 735 ILCS 5/2-619 (West 2008); Ill. S. Ct. R. 273 (eff. Jan. 1, 1967); Doe v. Gleicher, 393 Ill. App. 3d 31, 36, 911 N.E.2d 532, 538 (2009). However, an order dismissing a complaint but granting leave to replead is not a final order for purposes of res judicata until the trial court enters an order dismissing the suit with prejudice. Smith v. Central Illinois Regional Airport, 207 Ill. 2d 578, 588, 802 N.E.2d 250, 256 (2003); Piagentini v. Ford Motor Co., 387 Ill. App. 3d 887, 895, 901 N.E.2d 986, 994 (2009). An order striking or dismissing a complaint is not final unless its language indicates the litigation is terminated and the plaintiff will not be permitted to replead. Jackson, 387 Ill. App. 3d at 351, 900 N.E.2d at 318.
In Jackson, the court held that "the [dismissal] order was not final because it granted plaintiff leave to amend." Jackson, 387 Ill. App. 3d at 351, 900 N.E.2d at 318. Jackson was explained and distinguished in Kiefer v. Rust-Oleum Corp., 394 Ill. App. 3d 485, 497, 916 N.E.2d 22, 32 (2009), appeal denied, 235 Ill. 2d 589, 924 N.E.2d 455, where an involuntary dismissal was held to constitute a final judgment barring subsequent claims based on res judicata. In Kiefer, the trial court had involuntarily dismissed the consumer's strict products liability claims in the first action. Kiefer, 394 Ill. App. 3d at 487, 916 N.E.2d at 24. The dismissal was on the merits, despite the inclusion of the words with "leave to amend" and absence of "with prejudice" language, as the court determined that plaintiff could plead no set of facts which would entitle him to relief on those claims. Kiefer, 394 Ill. App. 3d at 495, 916 N.E.2d at 30. This court held that once the voluntary dismissal was entered, the lawsuit was terminated in its entirety and all final orders were immediately appealable, and based on res judicata the plaintiff could not replead those claims in the refiled action. Kiefer, 394 Ill. App. 3d at 495, 916 N.E.2d at 31.
Here, the circuit court in Williams II found that in Williams I "[t]he orders [sic] simply striking the counts with leave to replead is clearly not a final order under the Jackson case." Defendants maintain that the court in Williams II has improperly relied on and applied Jackson. In denying the motion to reconsider, the court stated the following:
"As to the spoliation claim, the Court does not find that there was an election to stand on the present complaint. There was never a time set for filing an amended complaint on that issue. And so just as the Jackson Court found that the record did not support that it was plaintiff's desire to stand on her complaint, the Court also finds similarly here that discovery was ongoing, and there's no clear indication that there was an express election to stand on the complaint. If defendants wanted to push that issue, defendants could have moved for a time frame in which to have plaintiff file an amended complaint. That was not done. The voluntary was taken before an amended complaint was placed."
In Kiefer, we acknowledged that "Jackson recognizes that where a plaintiff has been granted leave to file an amended complaint but has not yet filed an amended complaint, he retains the ability to voluntarily dismiss his suit without reaching a final judgment on the merits of those claims for purposes of res judicata." Kiefer, 394 Ill. App. 3d at 498, 916 N.E.2d at 36 (citing Jackson, 387 Ill. App. 3d at 352, 900 N.E.2d at 319). However, the critical distinction in Kiefer was that the prior dismissal order permitted the plaintiff to amend his pleading only to allege another claim, negligence, not the claims which were dismissed, strict liability: "The November 5, 2003, order did not terminate the litigation between the parties, as it permitted Kiefer to amend his complaint to allege negligence, but did dispose of the rights of the parties with regard to Kiefer's claims of strict product liability." Kiefer, 394 Ill. App. 3d at 497, 916 N.E.2d at 32. We noted that at the hearing on the motion to dismiss the trial court expressly found that the plaintiff could not plead any set of facts that would allow him to recover on his strict product liability claims. Kiefer, 394 Ill. App. 3d at 495, 916 N.E.2d at 30. Thus, the substance of the order showed it was a final adjudication upon the merits of those claims. Kiefer, 394 Ill. App. 3d at 495, 916 N.E.2d at 30.
Here, conversely, the circuit court in Williams I specifically permitted plaintiffs to replead the dismissed claims for spoliation. Thus, the circuit court's February 28, 2007, order dismissing the spoliation claims under counts V and VI and granting plaintiffs leave to replead those counts was not a final adjudication. We therefore answer the first certified question in the negative, that the dismissal of the claims for intentional and negligent spoliation with leave to replead did not become final upon plaintiffs' voluntary dismissal and is not a res judicata bar, nor did plaintiffs' failure to replead constitute abandonment.
II. Partial Summary Judgment Order
Defendants' second certified question is: "Where summary judgment is entered against plaintiff on an allegation that the defendant physician is the apparent agent of the defendant hospital, and plaintiff then voluntarily dismisses the remainder of the case, does that order of summary judgment act as a res ...