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Dinerstein v. Evanston Athletic Clubs, Inc.

Court of Appeals of Illinois, First District, Fourth Division

September 30, 2016

MATT DINERSTEIN and ANGELA ADAMSON, Plaintiffs-Appellants,
v.
EVANSTON ATHLETIC CLUBS, INC., Defendant-Appellee.

         Appeal 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 and opinion.

          OPINION

          ELLIS JUSTICE

         ¶1 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. [1]

         ¶ 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." Id.

         ¶ 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 ...


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