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The Law Offices of Nye and Associates, Ltd v. Eduardo Boado

May 31, 2012

THE LAW OFFICES OF NYE AND ASSOCIATES, LTD.,
PLAINTIFF-APPELLANT,
v.
EDUARDO BOADO,
DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Lake County. No. 10-L-1065 Honorable Margaret J. Mullen, Judge, Presiding.

The opinion of the court was delivered by: Justice Burke

JUSTICE BURKE delivered the judgment of the court, with opinion.

Presiding Justice Jorgensen and Justice Birkett concurred in the judgment and opinion.

OPINION

¶ 1 Plaintiff, The Law Offices of Nye & Associates, Ltd. (Nye), appeals the trial court's order dismissing its complaint against defendant, Eduardo Boado, under section 2-619(a)(4) of the Code of Civil Procedure (Code) (735 ILCS 2-619(a)(4) (West 2010)) based on principles of res judicata. We determine that res judicata applied, because the claims raised could have been litigated in a previous action that was adjudicated to a final order on the merits, and that the trial court correctly determined that no exceptions to the application of res judicata applied. Accordingly, we affirm.

¶ 2 I. BACKGROUND

¶ 3 On September 24, 2008, in circuit court case number 08-L-784 (Nye I), Nye filed a complaint against Boado, seeking attorney fees and costs in connection with Nye's representation of Boado in a marital dissolution action. Count I alleged that Boado owed money under an account stated and count II alleged breach of contract.

¶ 4 On March 17, 2010, Nye moved to voluntarily dismiss counts I and II without prejudice and with leave to refile them and to file an amended complaint seeking fees under section 508 of the Illinois Marriage and Dissolution of Marriage Act (750 ILCS 5/508 (West 2008)). Boado filed a response that objected to portions of the motion, including moving to strike the paragraph that asked for leave to refile, without specifically objecting to that request. Nye contends that, when the parties appeared in court, Boado again did not object. However, there is no transcript of the proceeding or substitute for a transcript. The trial court granted the motion with a written order drafted by Boado, stating that the counts were "voluntarily nonsuited." There was no mention of prejudice or leave to refile.

¶ 5 Nye filed an amended complaint seeking fees under section 508 and, on July 21, 2010, the trial court dismissed the complaint with prejudice on the basis that it was time-barred. Nye did not appeal.

¶ 6 On November 17, 2010, Nye filed a new complaint in circuit court case number 10-L-1065 (Nye II), alleging the same two counts that were voluntarily dismissed in Nye I. Boado moved to dismiss under section 2-619(a)(4), alleging that the action was barred by principles of res judicata. Nye responded that res judicata did not apply, arguing that Nye I was specifically dismissed without prejudice and with leave to refile the dismissed counts at a later date.

¶ 7 The trial court judge in the previous case had retired, and the case was assigned to a different judge. A hearing was held, during which Nye contended that the parties agreed that the counts could be voluntarily dismissed but refiled at a later time and that the trial court had expressly agreed that the counts could be refiled. Boado disputed those arguments.

¶ 8 Nye's attorney, Scott Gibson, testified that, when the first two counts in Nye I were voluntarily dismissed, he spoke with Boado's attorney, David Del Re, who said that he had no objection to the counts being dismissed without prejudice. Gibson also testified that he recalled an associate from Del Re's office being in the courtroom when the counts were dismissed and that the person did not voice any objection. Del Re testified that he did not object to the counts being voluntarily dismissed, but that he made no agreement that they could be refiled.

ΒΆ 9 The trial court found that res judicata applied and that an exception based on express permission by the court or an agreement of the parties for leave to refile did not apply. Accordingly, the court dismissed the complaint with ...


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