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Jesse E. Hernandez and Yolanda Hernandez v. Isadore Bernstein

August 19, 2011

JESSE E. HERNANDEZ AND YOLANDA HERNANDEZ,
PLAINTIFFS-APPELLANTS,
v.
ISADORE BERNSTEIN, JOHN L. GRAZIAN, RICHARD
S. VOLPE, AND BERNSTEIN AND GRAZIAN, P.C.,
DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Cook County No. 09 L 11191 Honorable Jeffrey Lawrence, Judge Presiding.

JUDGE EPSTEIN delivered the judgment of the court, with opinion.

Presiding Justice Fitzgerald Smith and Justice Joseph Gordon concurred in the judgment and opinion.

OPINION

¶ 1 Plaintiffs, Jesse and Yolanda Hernandez, maintain the trial court erroneously dismissed their complaint pursuant to section 2-619(a)(4) of the Illinois Code of Civil Procedure (735 ILCS 5/2-619(a)(4) (West 2008)), as barred by res judicata. We reverse and remand.

¶ 2 BACKGROUND

¶ 3 In 2005, plaintiffs filed a legal negligence action against Jesse Hernandez's former attorneys, defendants Isadore Bernstein, John L. Grazian, Richard S. Volpe, and Bernstein and Grazian, P.C., a professional corporation engaged in the practice of law. Jesse hired defendants in 1999 to represent him with respect to injuries he sustained at work. Plaintiffs claimed in their lawsuit:

"8. Upon undertaking the representation of plaintiffs the defendants owed a duty to exercise ordinary case and skill in the representation.

9. The defendants owed plaintiffs a duty to inform them of all potential claims and causes of action they possessed or which might arise from the injuries in question.

10. In March 1999 the defendants filed a worker[s'] compensation application for Jesse Hernandez.

11. However, the defendants: (a) failed to advise plaintiffs that they might have claims against parties other than Jesse Hernandez's employer to recover for the injuries Jesse Hernandez suffered at work; (b) failed to file an action against others who had contributed to the events and conditions which caused injuries to Jesse Hernandez; and (c) or to advise plaintiffs that they needed to retain other counsel to file an action against others who had contributed to the events and conditions which caused injuries to Jesse Hernandez."

Defendants moved to dismiss plaintiffs' complaint, arguing, inter alia, that the underlying third-party claims expired prior to the commencement of defendants' representation in 1999. Defendants maintained, and the trial court agreed, that the underlying claims had a two-year statute of limitations that began to run in 1995 while Jesse was represented by Spector & Lenz for a social security disability claim. Plaintiffs responded defendants were nonetheless liable for legal negligence because they did not advise plaintiffs to sue Spector & Lenz for not filing the underlying claims or advising plaintiffs to seek other counsel for those claims. In August 2007, the trial court dismissed plaintiffs' complaint without prejudice (August Order). Plaintiffs filed an amended complaint adding their Spector & Lenz allegations and reasserting the time-barred underlying claims. The trial court denied defendants' motion to dismiss the amended complaint. It also declined to revisit the statute of limitations issue. In April 2009, plaintiffs voluntarily dismissed their lawsuit without prejudice pursuant to section 2-1009 (735 ILCS 5/2-1009 (West 2008)).

¶ 4 In September 2009, plaintiffs filed the instant legal negligence lawsuit. They refiled a single-count complaint against defendants, reasserting their Spector & Lenz allegations, as well as the time-barred underlying claims. Defendants moved to dismiss the complaint, arguing the statute of limitations and res judicata bar plaintiffs' refiled action. The trial court dismissed plaintiffs' complaint with prejudice based on res judicata. Plaintiffs appeal.

¶ 5 ANALYSIS

¶ 6 A motion to dismiss pursuant to section 2-619 presents a question of law reviewed de novo. DeLuna v. Burciaga, 223 Ill. 2d 49, 59 (2006). Such a motion "admits the legal sufficiency of the complaint but asserts affirmative matter to avoid or defeat the claim." Giannini v. Kumho Tire U.S.A., Inc., 385 Ill. App. 3d 1013, 1015 (2008). "One defense that a defendant may raise in a section 2-619 motion is that a prior judgment bars the plaintiff's cause of action, i.e., that the prior judgment has res judicata effect in the subsequent lawsuit." Kasny v. Coonen & Roth, Ltd., 395 Ill. App. 3d 870, 873 (2009). "Res judicata is an equitable doctrine designed to prevent the multiplicity of lawsuits between the same parties and involving the same facts and the same issues." Murneigh v. Gainer, 177 Ill. 2d 287, 299 (1997). It "applies to bar issues that were actually decided in the first action, as well as matters that could have been decided." Lane v. Kalcheim, 394 Ill. App. 3d 324, 329 (2009). "Under the doctrine of res judicata, a final judgment on the merits rendered by a court of competent jurisdiction bars any subsequent actions between the same parties or their ...


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