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Trackman v. Michela

Court of Appeals of Illinois, Second District

November 20, 2019

Mark S. TRACKMAN, Plaintiff-Appellant,
Laurel S. MICHELA, Defendant-Appellee.

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         Appeal from the Circuit Court of Lake County, No. 18-L-802; the Hon. Luis A. Berrones, Judge, presiding.

         Michael D. Furlong, of Furlong Law L.L.C., of Libertyville, and Roger Goble, of Lake Zurich, for appellant.

          Howard M. Cohen, of Cohen, Rosenson & Zuckerman, LLC, of Chicago, for appellee.



         ¶ 1 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. BACKGROUND

         ¶ 3 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 approved.

         ¶ 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.

         ¶ 7 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

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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 res judicata.

         ¶ 10 The trial court dismissed the complaint. Plaintiff timely appealed.

         ¶ 11 II. ANALYSIS

         ¶ 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.

         ¶ 13 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 ...

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