Mark S. TRACKMAN, Plaintiff-Appellant,
Laurel S. MICHELA, Defendant-Appellee.
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from the Circuit Court of Lake County, No. 18-L-802; the Hon.
Luis A. Berrones, Judge, presiding.
D. Furlong, of Furlong Law L.L.C., of Libertyville, and Roger
Goble, of Lake Zurich, for appellant.
M. Cohen, of Cohen, Rosenson & Zuckerman, LLC, of
Chicago, for appellee.
Plaintiff, Mark S. Trackman, appeals the dismissal of his
complaint against defendant, Laurel S. Michela, on the basis
of res judicata. We affirm.
¶ 2 I.
Plaintiff and defendant are the children of Robert Trackman,
who died in 2007, and Marcella Trackman, who died in 2009. In
2013, plaintiff filed his initial complaint against
defendant, defendant's children Daniel and Brittani, and
his own children Scott and Nicole, all of the children being
contingent beneficiaries of an amended trust that Marcella
had created in 2007. In 2014, plaintiff filed a three-count
fourth amended complaint asserting that (1) defendant
tortiously interfered with plaintiff's expectation of an
inheritance, (2) defendant exerted undue influence over
Marcella, causing her to deprive him of his inheritance, and
(3) Marcella lacked testamentary capacity when she amended
her trust in 2007. The specific factual allegations of the
fourth amended complaint are set out in our order in
Trackman v. Michela, 2015 IL App. (2d) 140985-U,
2015 WL 3819212. We note here that count III incorporated the
facts alleged in counts I and II and alleged further that, by
2007, Marcella was suffering from depression and dementia and
did not appreciate the effect of the amendment that she
¶ 4 On
defendant's motion, the trial court dismissed all three
counts with prejudice, holding that they failed to state a
claim upon which relief could be granted (735 ILCS 5/2-615
(West 2012)). On appeal, plaintiff argued that the court
erred in dismissing the first two counts, but he conceded the
dismissal of the third count. We agreed with him that the
first two counts stated causes of action, and we recognized
his concession that the third count did not. Therefore, we
affirmed the dismissal of the third count, reversed the
dismissals of counts I and II, and remanded the cause.
Trackman, 2015 IL App. (2d) 140985-U, ¶ 57.
¶ 5 On
remand, on August 19, 2016, plaintiff filed a fifth amended
complaint, containing only counts I and II. On December 15,
2017, shortly before the scheduled trial date, plaintiff
moved for a voluntary dismissal. See 735 ILCS 5/2-1009 (West
2016). On January 5, 2018, the trial court granted the
motion. Its written order stated in part, "The Plaintiff
is given leave to dismiss this lawsuit without prejudice and
with leave to refile within the time provided by rule."
We shall refer to the proceedings through the voluntary
dismissal as Trackman I.
¶ 6 On
October 10, 2018, plaintiff filed a one-count complaint
against defendant only, for tortious interference with an
expectation of an inheritance ( Trackman II ). The
complaint's factual allegations were drawn from the fifth
amended complaint, which in the main had repeated those of
the fourth amended complaint.
Defendant moved to dismiss the complaint as barred by res
judicata. See 735 ILCS 5/2-619(a)(4) (West 2018). She
argued that all three requirements for res
judicata had been met: (1) a final judgment on the
merits (the dismissal with prejudice of count III of the
fourth amended complaint in Trackman I ), (2) an
identity of parties in the two actions, and (3) an identity
of causes of action. See Ward v. Decatur Memorial
Hospital, 2019 IL 123937, ¶ 45, ___ N.E.3d ___
(requirements for res judicata ). On the third
requirement, defendant noted that count III in Trackman
I had sought the rescission of the 2007 trust amendment,
based on Marcella's incapacity, and that Trackman
II sought damages based on defendant's inducement of
Marcella into signing the 2007 amendment. Nonetheless, she
contended, the two causes of action were the same, because
they relied on the same operative facts. Defendant noted that
count III had incorporated all the factual allegations of
counts I and II, for tortious interference and undue
influence, respectively, and that Trackman II 's
sole count was based on the same facts as all three counts in
Trackman I. Essentially, defendant contended,
plaintiff was attempting to relitigate a claim that had been
litigated, or could have been litigated, in Trackman
I. Defendant relied primarily on Rein v. David A.
Noyes & Co., 172 Ill.2d 325, 216 Ill.Dec. 642, 665
N.E.2d 1199 (1996).
¶ 8 In
response, plaintiff noted that the fifth amended complaint
had added factual allegations that were based on evidence
discovered on remand. Further, he maintained, the order of
voluntary dismissal specifically allowed him to refile the
complaint. Plaintiff did not attempt to distinguish
Rein but instead contended that it had been
superseded by Richter v. Prairie Farms Dairy, Inc.,
2016 IL 119518, 402 Ill.Dec. 870, 53 N.E.3d 1. Plaintiff
asserted that Richter established that the prior
dismissal did not bar refiling the action where the trial
court explicitly allowed him to do so.
¶ 9 In
reply, defendant contended that Richter had not
overruled Rein and that in Richter there
had been no prior final judgment on the merits but merely a
dismissal with leave to refile. Here, by contrast, this
court's order had affirmed the dismissal of count III
with prejudice, thus satisfying the first requirement for
The trial court dismissed the complaint. Plaintiff timely
¶ 12 We
review de novo a dismissal under section
2-619(a)(4). Morris B. Chapman & Associates, Ltd. v.
Kitzman, 193 Ill.2d 560, 565, 251 Ill.Dec. 141, 739
N.E.2d 1263 (2000). Res judicata means that a final
judgment on the merits rendered by a court of competent
jurisdiction bars any subsequent action between the parties
or their privies on the same cause of action. Hudson v.
City of Chicago, 228 Ill.2d 462, 467, 321 Ill.Dec. 306,
889 N.E.2d 210 (2008). " Res judicata bars not
only what was actually decided in the first action but also
whatever could have been decided." Id. As noted
earlier, res judicata requires a final judgment on
the merits, an identity of parties, and an identity of causes
of action. Id.
Here, plaintiff does not contest the second requirement. He
contends, however, that (1) the cause of action in count III
in Trackman I was not the same as that in
Trackman II and (2) there ...