Court of Appeals of Illinois, First District, Fourth Division
from the Circuit Court of Cook County, Illinois No. 15 L 4527
Honorable John P. Callahan, Judge Presiding.
JUSTICE ELLIS delivered the judgment of the court, with
opinion. Justices Howse and Burke concurred in the judgment
Plaintiffs, Matt Dinerstein and Angela Adamson, appeal from
the order of the circuit court of Cook County dismissing
their complaint against defendant Evanston Athletic Clubs,
Inc., pursuant to section 2-619(a)(9) of the Code of Civil
Procedure (735 UXS 5/2-619)(a)(9) (West 2014)), as barred by
res judicata. On appeal, plaintiffs argue that
res judicata did not apply to their second action
because no final judgment on the merits was entered in the
first action. They additionally argue that, even if the
technical requirements ofres judicata were met,
equity demands that the dismissal be reversed and that two
recognized exceptions to claim-splitting apply.
2 We agree with the trial court that the elements ofres
judicata were met in this case. But we agree with
plaintiffs that the trial court should not have dismissed the
complaint because a question of fact remains as to whether
one of the recognized exceptions to claim-splitting-
defendant's agreement, in terms or effect, to the
claim-splitting-applied under the facts of this case. We
vacate the trial court's judgment and remand this matter
for further proceedings on that question.
3 I. BACKGROUND
4 Plaintiffs, Matt Dinerstein and Angela Adamson, sued
defendant Evanston Athletic Clubs, Inc., and others, for
personal injuries after Dinerstein fell from the
rock-climbing wall at defendant's facility
(Dinerstein I). The complaint contained three counts
against defendant: negligence; willful and wanton conduct;
and loss of consortium. The trial court granted
defendant's motion to dismiss the negligence count,
pursuant to section 2-619(a)(9) of Code of Civil Procedure
(735 ILCS 5/2-209(a)(9)(West 2014), based on an exculpatory
agreement between defendant and Dinerstein, in which he
agreed to not sue defendant for negligence. The trial court
later denied plaintiffs' motion to reconsider and the
case continued on the other two counts. 
5 On April 3, 2015, defendant's counsel filed an agreed
motion to continue the trial date on the grounds that the
parties had not completed discovery, including expert
discovery, and that plaintiffs' assigned counsel had
recently left the firm. On April 10, 2015, counsel for both
parties appeared at the hearing on the motion. The motion was
denied, and the parties were directed to appear for trial on
April 13, 2015.
6 After leaving the courtroom, counsel for both parties
discussed their mutual uncertainty as to what options were
available, given that trial was less than two weeks away and
they had not completed expert discovery. The conversations
that followed over the next several days between opposing
counsel are the subject of sharp dispute in this litigation.
We can say this much here, without unnecessarily delving into
detail: The parties discussed as one possibility that
plaintiffs could voluntarily dismiss the action pursuant to
section 2-1009(a) of the Code of Civil Procedure (735 ILCS
5/2-1009(a) (West 2014)). Defendant's counsel even
emailed the text of section 2-1009(a) to plaintiffs'
counsel. Whether defense counsel, by words or actions,
indicated that she would not raise a res judicata
objection to a refiling of the case is one of the principal
issues in this case.
7 In any event, on April 13, 2015, counsel appeared at the
trial call, where plaintiffs voluntarily dismissed their
complaint without prejudice. Eighteen days later, on May 1,
2015, plaintiffs filed the instant suit, which they amended
on July 31, 2015 (Dinerstein II). Plaintiffs again
alleged that Dinerstein was injured when he fell from the
rock-climbing wall at defendant's facility. The refiled
complaint did not contain the negligence count that had been
previously involuntarily dismissed but did contain the same
claims for willful and wanton conduct and loss of consortium
as the complaint in Dinerstein I.
8 On August 20, 2015, defendants filed a motion to dismiss
pursuant to section 2-619(a)(9) of the Code of Civil
Procedure (735 ILCS 5/2-619(a)(9) (West 2014)). Defendants
argued that the complaint in Dinerstein II was
barred by res judicata. In response, plaintiffs
raised several arguments: res judicata did not apply
because there had been no final adjudication on the merits;
they had not improperly split their claims because they were
all brought in one action; even if the technical requirements
of res judicata had been met, exceptions to
claim-splitting applied because defendant had agreed or
acquiesced to the claim-splitting and the trial court's
order expressly allowed it; and equity mandated that
Dinerstein II not be barred. Plaintiffs supported
their argument-that defendants had agreed to the
claim-splitting-with affidavits from their attorneys. But, in
its reply, defendant submitted a counteraffidavit from its
own counsel in which she stated, among other things, that she
did not agree that plaintiffs could split their claims and
never agreed to waive any defenses to the refiled case.
9 The trial court granted defendant's motion to dismiss
the complaint in Dinerstein II as barred by res
judicata. The court did not apply any exceptions.
10 Plaintiffs now appeal, again arguing that the first
element of res judicata has not been met because the
dismissal of the negligence count in the first action was not
a final adjudication on the merits. Plaintiffs also argue
that the trial court erred in failing to apply either of two
recognized exceptions to claim-splitting. Plaintiffs also
claim that equity mandates that res judicata should
not bar the second action.
11 II. ANALYSIS
12 A. Standard of Review
13 We review de novo the trial court's dismissal
of a complaint under section 2-619. Cooney v.
Rossiter, 2012 IL 113227, ¶ 17. A motion to dismiss
under section 2-619 admits the legal sufficiency of the
complaint but asserts a defense outside the complaint that
defeats it. Patrick Engineering, Inc. v. City of
Naperville, 2012 IL 113148, ¶ 31. Defendants'
motion was specifically based on subsection (a)(9), which
permits dismissal where "the claim asserted *** is
barred by other affirmative matter avoiding the legal effect
of or defeating the claim." 735 ILCS 5/2-619(a)(9) (West
2014); see also Van Meter v. Darien Park District,
207 Ill.2d 359, 367 (2003). The "affirmative
matter" must be apparent on the face of the complaint or
supported by affidavits or certain other evidentiary
materials. Epstein v. Chicago Board of Education,
178 Ill.2d 370, 383 (1997). Facts and evidence must be viewed
in the light most favorable to the non-moving party.
Saxon Mortgage, Inc. v. United Financial Mortgage
Corp., 312 Ill.App.3d 1098, 1104 (2000). "If it
cannot be determined with reasonable certainty that the
alleged defense exists, the motion should not be
granted." Id. On appeal from an order granting
dismissal under section 2-619, we ask "whether the
existence of a genuine issue of material fact should have
precluded the dismissal or, absent such an issue of fact,
whether dismissal is proper as a matter of law."
(Internal quotation marks omitted.) Doyle v. Holy Cross
Hospital, 186 Ill.2d 104, 109-10 (1999) (quoting
Kedzie & 103rd Currency Exchange, Inc. v. Hodge,
156 Ill.2d 112, 116-17 (1993)).
14 B. Res Judicata and Claim-Splitting
15 The issue in this case is whether the involuntary
dismissal of the negligence count in Dinerstein I,
which was followed by the voluntary dismissal of the
remaining counts, bars the complaint in Dinerstein
II based on res judicata. Three requirements
must be satisfied for res judicata to apply: (1) a
final judgment on the merits must have been rendered by a
court of competent jurisdiction; (2) an identity of cause of
action must exist; and (3) the parties or their privies must
be identical in both actions. Hudson v. City of
Chicago, 228 Ill.2d 462, 467 (2008); Rein v. David
A. Noyes & Co., 172 Ill.2d 325, 334 (1996).
Plaintiffs do not dispute that the second and third elements
of res judicata are met in this case, but they argue
that the first element of res judicata was not met
because the trial court's order dismissing the negligence
cause of action in Dinerstein II was not a final
judgment on the merits.
16 We disagree. "The principle that res
judicata prohibits a party from later seeking relief on
the basis of issues which might have been raised in the prior
action also prevents a litigant from splitting a single cause
of action into more than one proceeding." Rein,
172 Ill.2d at 339. The rule against claim-splitting prohibits
a plaintiff from suing for part of a claim in one action and
then suing for the remainder in another action. Id.
at 340. The rule is "founded on the premise that
litigation should have an end and that no person should be
unnecessarily harassed with a multiplicity of lawsuits."
17 In Rein, our supreme court cautioned that a
plaintiff's statutory right, under sections 2-1009 and
13-217 of the Code of Civil Procedure (735 ILCS 5/13-217
(West 2014)), to a voluntary dismissal within the limitations
period did not "automatically immunize a plaintiff
against the bar of res judicata or other legitimate
defenses a defendant may assert in response to the refiling
of voluntarily dismissed counts." Rein, 172
Ill.2d at 342-43; see also Richter v. Prairie Farms
Dairy, Inc., 2016 IL 119518, ¶ 39.
18 Later, in Hudson, our supreme court explained:
"Rein thus stands for the proposition that a
plaintiff who splits his claims by voluntarily dismissing and
refiling part of an action after a final judgment has been
entered on another part of the case subjects himself to a
res judicata defense." Hudson, 228
Ill.2d at 473; see also Richter, 2016 IL 119518,
¶ 39. In Hudson, the court clarified that
res judicata bars not only what was actually decided
in the first action, but also whatever could have been
decided. Hudson, 228 Ill.2d at 467. ¶ 19
Contrary to plaintiffs' assertion, the trial court's
order in Dinerstein I, dismissing plaintiffs'
negligence action, was a final adjudication on the merits.
Illinois Supreme Court Rule 273 provides that: "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.
July 1, 1967). As the Illinois Supreme Court recently
explained in discussing this rule:
"If a circuit court involuntarily dismisses a
plaintiff's action, other than for one of the rule's
three exceptions, and if the plaintiff does not procure leave
of court to refile the complaint or if a statute does not
guarantee that opportunity, then Rule 273 deems the dismissal
to be on the merits. [Citation.] However, a dismissal
'without prejudice' signals that there was no final
decision on the merits and that the plaintiff is not barred
from refiling the action. [Citations.]."
Richter, 2016 IL 119518, ¶ 24.
20 Here, the trial court's involuntary dismissal of the
negligence count based on the exculpatory agreement was not
based on lack of jurisdiction, improper venue, or the failure
to join an indispensable party. The court's order did not
grant plaintiff leave to re-plead that count, nor did it
state that the dismissal was "without prejudice."
The dismissal ...