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Andrews v. Gonzalez

Court of Appeals of Illinois, First District, Second Division

September 30, 2014

WILLIAM T. ANDREWS, Plaintiff-Appellant,
v.
DAGOBERTO GONZALEZ, as Surviving Partner of G and G Cement Contractors, an Illinois Partnership, Defendant-Appellee (Century National Insurance Company, Defendant)

Appeal from the Circuit Court of Cook County. No. 13 L 8116. Honorable Kathy M. Flanagan, Judge Presiding.

SYLLABUS

In plaintiff's action to recover an outstanding judgment he was awarded in a personal injury suit against a partnership of which defendant was the sole surviving partner, the trial court erred in dismissing plaintiff's action on the ground it was barred by res judicata because defendant was named a defendant in plaintiff's underlying action and was found not liable for negligence, since res judicata did not apply where the underlying suit sought to hold defendant vicariously liable for the injuries plaintiff suffered in a collision with a truck owned by defendant and being driven by an employee of the partnership and the instant action sought to hold defendant secondarily liable as a general partner for an unsatisfied judgment against the partnership.

Beermann, Pritikin, Mirabelli, Swerdlove, LLP, Chicago (Mark L. Evans, of counsel), for appellant.

Law Offices of Alan Barinholtz, P.C., Chicago (William Melichar, of counsel), for appellee.

JUSTICE LIU delivered the judgment of the court, with opinion. Justices Neville and Pierce concurred in the judgment and opinion.

OPINION

LIU, JUSTICE.

Page 1235

[¶1] Plaintiff, William T. Andrews, filed suit against defendant, Dagoberto Gonzalez (Dagoberto), to recover an outstanding judgment awarded in a personal injury lawsuit against G & G Cement Contractors (G& G), a partnership of which Dagoberto was the sole surviving partner. The circuit court granted Dagoberto's motion to dismiss pursuant to section 2-619(a)(4) of the Code of Civil Procedure (Code) (735 ILCS 5/2-619(a)(4) (West 2012)), finding that plaintiff's claim was barred by res judicata because Dagoberto was a named defendant in the prior underlying action and was found not liable for negligence. On appeal, plaintiff contends that the circuit court erred in dismissing his claim against Dagoberto because various provisions of the Uniform Partnership Act (1997) (Act) (805 ILCS 206/100 et seq. (West 2012)) and sections 2-410 and 2-411 of the Code (735 ILCS 5/2-410, 2-411 (West 2012)) demonstrate that res judicata

Page 1236

does not bar a judgment creditor of a partnership from enforcing an outstanding judgment against a partner who was named individually in the underlying lawsuit. For the reasons that follow, we reverse the judgment of the circuit court of Cook County and remand the cause for further proceedings.

[¶2] BACKGROUND

[¶3] A. Personal Injury Lawsuit

[¶4] On February 11, 2007, plaintiff was involved in an automobile accident with an employee of G& G, an Illinois general partnership owned by two brothers, Dagoberto and Jose Gonzalez, the latter of whom is now deceased. He subsequently filed suit against G& G, Dagoberto, the estate of Jose Gonzalez, and Luis Chavez, the driver of the vehicle, alleging negligence in the causing of the accident.[1] As pertinent here, Dagoberto was named as a defendant based solely on a theory of respondeat superior. In his third amended complaint, plaintiff alleged, inter alia, that Dagoberto owned the Ford truck driven by Chavez; that Dagoberto employed Chavez and allowed him to use the truck; that Dagoberto breached his duty to plaintiff through the negligent acts of Chavez; and that as a direct and proximate result of this breach, Chavez drove the Ford truck into plaintiff's car, causing him serious injury.

[¶5] Following a trial, the jury returned a verdict against G& G and Chavez, but in favor of Dagoberto and the estate of Jose Gonzalez. In its response to special interrogatories, the jury specifically found that, at the time of the accident, Chavez was an employee of G& G, but not of Dagoberto or Jose, individually. The jury ultimately awarded plaintiff $3,092,000 in damages and judgment was subsequently entered on the verdict. No posttrial motions were filed and no appeal was ever taken.

[¶6] B. The Instant Lawsuit and Bad-Faith Claims

[¶7] At the time of the accident, G& G was insured under a business auto policy issued by Century National Insurance Company (CNIC). After trial, CNIC refused to pay its policy limit of $300,000 unless plaintiff would execute a full release of the entire judgment. Plaintiff filed citations to discover assets against both CNIC and Dagoberto. On April 25, 2013, the circuit court entered an agreed order requiring CNIC to pay the policy limit of $300,000 plus interest and costs. Thereafter, in May of 2013, the court also ordered Dagoberto to assign to plaintiff " all rights and choses of action that G& G has against CNIC." Dagoberto executed the assignment, " under protest," in both English and Spanish versions.

[¶8] On July 17, 2013, plaintiff filed the instant action against CNIC and Dagoberto. Plaintiff brought various claims against CNIC for alleged bad faith in initially refusing to tender the policy limit on behalf of G& G, its insured. As pertinent here, plaintiff also sought to recover from Dagoberto, individually, the unsatisfied judgment amount he was awarded against G& G in the prior 2007 personal injury suit.

[¶9] Dagoberto filed a motion to dismiss pursuant to section 2-619(a)(4) of the Code, asserting that plaintiff's claim was barred by the doctrine of res judicata because Dagoberto had already obtained a judgment in his favor in the personal injury lawsuit. He characterized plaintiff's

Page 1237

new claim against him as merely " an attempt to get a second bite of the apple," noting that plaintiff previously, but unsuccessfully, sought to enforce the judgment against him in a supplementary proceeding.

[¶10] Plaintiff responded by pointing out that sections 2-410 and 2-411 of the Code (735 ILCS 5/2-410, 2-411 (West 2012)), read together, create an exception to the res judicata doctrine. Specifically, he argued that sections 2-410 and 2-411 of the Code allow a separate action to enforce a partner's individual liability for a partnership obligation.

[¶11] On January 13, 2014, the circuit court entered an order granting Dagoberto's motion to dismiss. The court agreed that plaintiff's claim was ...


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