Serverino v. Freedom Woods, Inc. ( 2010 )

FIFTH DIVISION
December 3, 2010
No. 1-09-2778
IN THE APPELLATE COURT OF ILLINOIS
FIRST JUDICIAL DISTRICT
JOSEPH SEVERINO, ) Appeal from the
) Circuit Court of
Plaintiff-Appellant, ) Cook County
)
v. ) No. 08 L 6144
)
FREEDOM WOODS, INC., ) Honorable
an Illinois Corporation, ) John A. Ward,
) Judge Presiding.
Defendant-Appellee. )
PRESIDING JUSTICE FITZGERALD SMITH delivered the opinion of the court:
This cause of action arose from a personal injury claim. Plaintiff Joseph Severino was
injured while riding a horse at defendant Freedom Woods’ place of business. Plaintiff filed a
complaint alleging damages pursuant to the Animal Control Act (510 ILCS 5/1 et seq. (West
2002)) and negligence. The trial court dismissed the Animal Control Act count with prejudice
and struck the negligence claim but gave plaintiff leave to amend. Plaintiff filed an amended
complaint with a single count of negligence. Defendant filed a motion to dismiss based on the
statute of limitations, but the trial court denied such motion due to the relation back doctrine.
Plaintiff then voluntarily dismissed his case. Thereafter, defendant filed a notice of appeal from
the trial court’s denial of its motion to dismiss, arguing that plaintiff’s voluntary dismissal made
No. 1-09-2778
all other previous orders final. Plaintiff opposed the notice of appeal based on jurisdiction. This
court agreed with plaintiff and dismissed defendant’s notice of appeal for want of jurisdiction.
During the pendency of defendant’s notice of appeal, plaintiff refiled his personal injury
claim for negligence and willful and wanton conduct. Defendant moved to dismiss the complaint
on the basis of res judicata, and the trial court granted defendant’s motion to dismiss. Plaintiff
now appeals from the dismissal of his refiled case, arguing (1) that there was no final judgment
entered in his first action and thus res judicata does not apply, and (2) even if res judicata
applied, recognized exceptions to the doctrine apply in this case. For the following reasons, we
affirm in part, and reverse and remand in part.
I. BACKGROUND
A. Severino I
On October 24, 2004, plaintiff timely filed a personal injury claim against defendant.
Plaintiff’s complaint alleged two counts: damages pursuant to the Animal Control Act (510 ILCS
5/1 et seq. (West 2002)), and negligence. The first count sought relief based on the Animal
Control Act, which places liability on the owner of any animal that, without provocation, injures
a person peaceably conducting himself. The negligence count alleged that on October 25, 2002,
plaintiff was peaceably conducting himself on defendant’s premises in the exercise of ordinary
care and caution for his own safety when, without provocation, defendant’s horse threw and
dragged him, resulting in serious injury. Plaintiff further alleged that defendant carelessly and
negligently failed to provide adequate warning to plaintiff of the dangerous nature of the horse;
carelessly and negligently failed to take reasonable care to protect him; carelessly and negligently
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failed to provide him with proper safety equipment; and carelessly and negligently failed to
employ competent trainers when defendant knew or should have known from previous events
that the trainers were unable to manage and control the horse. Defendant moved to dismiss the
complaint alleging that plaintiff was not a member of the class protected by the Animal Control
Act and that at the time of the incident, there was an act which relieved defendant of negligence
liability under the facts.
On April 20, 2005, the trial court dismissed the Animal Control Act count of plaintiff’s
complaint with prejudice, and struck the negligence count, granting 28 days for plaintiff to
amend.
On April 26, 2005, plaintiff filed his first amended complaint alleging only negligence.
Defendant moved to dismiss the first amended complaint based on the statute of limitations.
Specifically, defendant argued that the amended complaint contained new allegations of
negligence by defendant’s agent and employees that were not made prior to the expiration of the
statute of limitations. In response, plaintiff contended that the claims in his first amended
complaint related back to the same occurrence alleged in the original complaint. The trial court
agreed, finding that the relation-back doctrine applied, and denied defendant’s motion to dismiss
plaintiff’s first amended complaint on May 1, 2006.
On June 14, 2007, plaintiff voluntarily dismissed his action without prejudice, pursuant to
section 2-1009 of the Code of Civil Procedure (735 ILCS 5/2-1009 (West 2006)). The order
stated that the motion was granted “without prejudice and costs to any party,” and in handwriting
stated, “costs to be paid upon the refiling of the complaint by plaintiff.”
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On July 16, 2007, defendant filed a notice of appeal from the May 1, 2006, order denying
its motion to dismiss plaintiff’s first amended complaint based on the relation-back doctrine.
Defendant argued that the May 1, 2006, order was made final and appealable by plaintiff’s
voluntary dismissal of the cause of action on June 14, 2007. Plaintiff opposed defendant’s notice
of appeal for lack of jurisdiction, arguing that a denial of a motion to dismiss is not a final and
appealable judgment, and that his voluntary dismissal did not convert it to a final and appealable
judgment.
In response, defendant argued that since the filing of its notice of appeal, the Illinois
Supreme Court issued the opinion of Hudson v. City of Chicago, 228 Ill. 2d 462 (2008), which
clarified earlier case law establishing the finality of all orders entered by a court upon the
voluntary dismissal of a complaint in certain circumstances. This court apparently disagreed and
on July 14, 2008, granted plaintiff’s motion to dismiss defendant’s appeal for lack of jurisdiction.
B. Severino II
On June 5, 2008, plaintiff refiled his personal injury complaint. In such complaint, he
alleged negligence (count I) and willful and wanton conduct (count II) against defendant.
Defendant moved to dismiss the complaint, pursuant to section 2-619(a)(4) ( 735 ILCS 5/2-
619(a)(4) (West 2006)), asserting that a final judgment had been entered in Severino I and that
the doctrine of res judicata applied and barred the refiled complaint. Defendant argued that
Hudson made it clear that a plaintiff’s voluntary dismissal of a claim constitutes an adjudication
on the merits and that the doctrine of res judicata barred not only matters that were determined in
the first action, but also matters that could have been determined in the second action. Defendant
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further argued, relying on Hudson and Rein v. David A. Noyes & Co., 172 Ill. 2d 325 (1996),
that a plaintiff who splits his claims by voluntarily dismissing and refiling part of his action after
a final judgment has been entered on another part of the case subjects himself to res judicata.
Defendant alleged that because “plaintiff in this case split his claims by voluntarily dismissing
and re-filing part of an action after a final judgment had been entered on another part of the case,
he, too, has subjected himself to a res judicata defense.”
In response, plaintiff argued that defendant made these same arguments in his notice of
appeal, which were rejected by this court. Plaintiff contended that defendant’s motion to dismiss
his refiled claim failed because an issue that has already been decided in a prior appeal may not
be relitigated. Specifically, Severino argued that this court already found that the order
voluntarily dismissing plaintiff’s first case against defendant was not final and appealable, so
defendant cannot now relitigate the same issue in its motion to dismiss plaintiff’s refiled
complaint. Plaintiff further argued that defendant’s claim of res judicata also failed because it
could not establish the first element of “a final judgment on the merits.”
Defendant replied that the current motion to dismiss was not based on the same
arguments previously presented to and rejected by this court. Rather, defendant claimed that it
was relying on the trial court’s dismissal with prejudice of the Animal Control Act count in
plaintiff’s original complaint as the final judgment it was referring to in its motion to dismiss
predicated on res judicata.
While such motion to dismiss was pending, this court issued the opinion of Piagentini v.
Ford Motor Co., 387 Ill. App. 3d 887 (2009). The trial court granted both parties leave to
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address the decision as it applied to the case below. Plaintiff argued that Piagentini confirmed
his argument that voluntary dismissals do not make nonfinal orders final, and therefore the May
1, 2006, order was not final, and his refiled complaint was not precluded on res judicata grounds.
Specifically, plaintiff pointed to the passage in Piagentini that stated there was “no authority for
the proposition that a nonfinal order becomes final upon voluntary dismissal of a suit.”
Piagentini, 387 Ill. App. 3d at 895.
Defendant replied that nothing in the case of Piagentini changed or modified the Illinois
Supreme Court’s ruling in the case of Hudson. Defendant maintained that the final judgment on
the merits which was issued in the prior suit was the dismissal with prejudice of count I of the
original complaint (the Animal Control Act count). Defendant also contended that it did not
acquiesce to the plaintiff’s voluntary dismissal because they objected upon the refiling of his
case.
On July 2, 2009, the trial court granted defendant’s motion to dismiss plaintiff’s refiled
complaint with prejudice. The trial court noted that defendant’s argument was that the order
granting dismissal of the Animal Control Act in the original action was a final judgment on the
merits and precludes plaintiff from relitigating the second refiled action. The trial court found
that the question was whether res judicata barred plaintiff’s refiled complaint, not whether the
law of the case barred defendant from moving to dismiss the refiled complaint. The court relied
on Hudson and Rein for the proposition that when a count is dismissed with prejudice on
defendant’s motion, it may not be reasserted later as it is barred by res judicata and any
additional counts sought to be raised in the refiled action that could have been raised in the first
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case are barred. Accordingly, the trial court found that the negligence and willful and wanton
counts found in his refiled complaint could have been raised in the first complaint, so the
dismissal with prejudice of the Animal Control Act count in the first case barred plaintiff from
refiling his claims.
Plaintiff filed a motion to reconsider, which was denied. Plaintiff now appeals.
II. ANALYSIS
On appeal, plaintiff contends that the trial court erred when it granted defendant’s motion
to dismiss his refiled complaint. Specifically, plaintiff argues that there was no final, appealable
order entered in Severino I, which is a necessary element of res judicata. Alternatively, without
having argued the same below, plaintiff claims his case falls into an exception to the rule of res
judicata: that the trial court expressly reserved his right to maintain the second action. Plaintiff
further argues that defendant acquiesced to his refiling, or that his case falls into the
“extraordinary reason” exception to res judicata. Defendant responds that the final appealable
order it relies on is the trial court’s dismissal of the Animal Control Act count in Severino I, and
therefore res judicata barred plaintiff’s refiled complaint. Defendant also responds that it did not
acquiesce to the refiling, and that all other arguments made by plaintiff are waived on appeal
because they were not raised below.
A. Standard of Review
A motion to dismiss pursuant to section 2-619 of the Illinois Code of Civil Procedure
(735 ILCS 5/2-619 (West 2006)) admits the legal sufficiency of the complaint but asserts an
affirmative defense or other matter that defeats the plaintiff’s claim. DeLuna v. Burciaga, 223 Ill.
7No. 1-09-2778
2d 49, 59 (2006). Section 2-619 motions present a question of law, and thus we review rulings
thereon de novo. DeLuna, 223 Ill. 2d at 59.
B. Res Judicata
We first turn to the issue of whether the trial court properly found that plaintiff’s refiled
complaint was barred by the doctrine of res judicata. The central issue is whether the
involuntary dismissal of plaintiff’s Animal Control Act claim and the subsequent voluntary
dismissal of his negligence claim, barred the refiling of his negligence claim under the doctrine
of res judicata. The parties disagree here as to whether the elements required for res judicata
apply. Defendant argues that Hudson compels us to find that plaintiff’s refiled claim of
negligence was barred by res judicata, while plaintiff contends that this court’s denial of
defendant’s appeal in Severino I made clear that a final judgment had not been entered in
Severino I, and therefore res judicata does not apply. We agree with defendant and find that
plaintiff’s refiled negligence claim is barred by res judicata.
Res judicata is an equitable doctrine that is designed to prevent a multiplicity of lawsuits
between the same parties where the facts and issues are the same. Murneigh v. Gainer, 177 Ill.
2d 287, 299 (1997). Under the doctrine of res judicata, a final judgment on the merits rendered
by a court of competent jurisdiction bars any subsequent actions between the same parties or
their privies on the same cause of action. Rein v. David A. Noyes & Co., 172 Ill. 2d 325, 334
(1996). Res judicata bars not only what was actually decided in the first action, but also
whatever could have been decided. Hudson v. City of Chicago, 228 Ill. 2d 462, 467 (2008).
Three requirements must be satisfied for res judicata to apply: (1) a final judgment on the merits
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No. 1-09-2778
has been rendered by a court of competent jurisdiction; (2) an identity of cause of action exists;
and (3) the parties or their privies are identical in both actions. Hudson, 228 Ill. 2d at 467.
Plaintiff does not dispute that the second and third requirements are met here. He
contends, however, that the first element is not satisfied because the negligence count was never
adjudicated on the merits. He concedes that his Animal Control Act count was adjudicated on
the merits in Severino I, however, as it was dismissed with prejudice.
After the Animal Control Act count was dismissed with prejudice, plaintiff voluntarily
dismissed his negligence claim pursuant to section 2-1009 of the Code (735 ILCS 5/2-1009(a)
(West 2002)). “Once the voluntary dismissal was entered, [Severino I] was terminated in its
entirety and all final orders became immediately appealable.” Hudson, 228 Ill. 2d at 468, citing
Dubina v. Mesirow Realty Development, Inc., 178 Ill. 2d 496, 503 (1997). Almost a year later,
plaintiff refiled his negligence claim in Severino II. Plaintiff contends that he was entitled to
proceed with Severino II because, as to his negligence claim, there was no order that was both
final and meritorious.
Defendant contends that plaintiff’s argument is defeated by our supreme court’s decision
in Hudson, relying on Rein. After a close reading of Rein, we find the Hudson dissent to be
more persuasive than the majority opinion. However, we are aware that we are bound by the
supreme court’s majority opinion and therefore find defendant to be correct in its assertion that
plaintiff’s argument is defeated by Hudson, and the majority opinion’s interpretation of Rein.
In Rein, plaintiffs filed an eight-count complaint (Rein I) alleging that the defendants
fraudulently misrepresented the character of certain securities that they had sold to the plaintiffs.
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No. 1-09-2778
In some of the counts, the plaintiffs sought rescission of the purchase pursuant to section
13(A)(1) of the Illinois Securities Law of 1953 (Ill. Rev. Stat. 1989, ch. 121½, par.
137.13(A)(1)). In other counts, the plaintiffs alleged common law fraud and breach of fiduciary
duty. The trial court dismissed three of the rescission counts on statute of limitations grounds.
The trial court denied the plaintiffs’ request for a finding that there was no just reason to delay
enforcement or appeal of the dismissed rescission counts. Plaintiffs then voluntarily dismissed
the remaining counts of their complaint pursuant to section 2-1009(a) of the Code. Plaintiffs
appealed the dismissal of the rescission counts, and the appellate court affirmed the dismissal.
See Rein, 172 Ill. 2d at 329-30.
After such unsuccessful appeal, and approximately 19 months after voluntarily dismissing
their remaining counts, plaintiffs refiled their entire case, including the rescission counts that
were the subject of the unsuccessful appeal in Rein I. The trial court dismissed plaintiffs’
complaint based on res judicata and the statute of limitations. The appellate court affirmed the
dismissal of plaintiffs’ complaint, finding that both the rescission counts and the common law
counts were barred by res judicata. See Rein v. David A. Noyes & Co., 271 Ill. App. 3d 768(1995).
On appeal, the supreme court affirmed the appellate court holding that the rescission
counts were clearly barred by res judicata because they had been dismissed on statute of
limitations grounds in Rein I and such dismissal was upheld on appeal. Rein, 172 Ill. 2d at 334-
36. As to the common law counts that had been voluntarily dismissed by the plaintiffs after the
dismissal of the rescission counts, the court found that they were barred by res judicata,
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explaining:
“The first element of res judicata is met here because the dismissal
of the rescission counts with prejudice in Rein I operates as an
adjudication on the merits for purposes of res judicata, as
explained earlier. Although there was not an adjudication on the
merits of the common law counts in Rein I, the concept of res
judicata is broader than plaintiffs suggest. If the three elements
necessary to invoke res judicata are present, res judicata will bar
not only every matter that was actually determined in the first suit,
but also every matter that might have been raised and determined
in that suit [Citation]. Therefore, if the three requirements of res
judicata are met and the common law counts could have been
determined in Rein I, plaintiffs will be barred from litigating the
common law counts in Rein II.
***
Because the common law counts arise out of the same set
of operative facts as the rescission counts, plaintiffs could have
litigated and resolved these claims in Rein I. Having failed to do
so, plaintiffs are barred by the doctrine of res judicata from
attempting to raise and litigate them in Rein II, even though there
was no adjudication on the merits of these claims in the prior suit.”
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Rein, 172 Ill. 2d at 337-39.
After holding that the voluntarily dismissed counts were barred by res judicata, the
supreme court next discussed the policy against claim-splitting, i.e., that res judicata, which
prohibits a party from seeking relief on the basis of issues that could have been resolved in a
previous action serves to prevent parties from splitting their claims into multiple actions. Rein,
172 Ill. 2d at 339-42.
The Hudson court found that “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. In Hudson, count I of the plaintiffs’ complaint alleged negligence and count II
alleged willful and wanton misconduct (Hudson I). In October 1999, the circuit court granted
defendants’ motion to dismiss the negligence count on immunity grounds. On July 25, 2002, the
plaintiffs voluntarily dismissed the remaining willful and wanton misconduct count pursuant to
section 2-1009 of the Code. On July 23, 2003, the plaintiffs refiled their action, setting forth only
one count for willful and wanton misconduct (Hudson II). The defendants moved to dismiss,
arguing that the refiled action was barred by res judicata. The circuit court granted the
defendants’ motion to dismiss and the appellate court affirmed. Hudson, 228 Ill. 2d at 464-65.
On appeal to the supreme court, plaintiffs argued that the appellate court erred in concluding that
the willful and wanton misconduct claim in Hudson II was barred by res judicata because there
was no final adjudication on the merits of their voluntarily dismissed willful and wanton
misconduct claim in Hudson I. Plaintiffs acknowledged that their negligence count was
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No. 1-09-2778
dismissed on the merits.
Our supreme court found that “[o]nce the voluntary dismissal was entered, Hudson I was
terminated in its entirety and all final orders became immediately appealable.” Hudson, 228 Ill.
2d at 468. The court found that the filing by plaintiffs was not a continuation of Hudson I, but
rather an entirely new action. Hudson, 228 Ill. 2d at 468. The Hudson court noted that if it
simply inserted the case names and the types of counts from its case into the above-quoted
passage from Rein, the following would result:
“ ‘The first element of res judicata is met here because the
dismissal of the [negligence count] with prejudice in [Hudson I]
operates as an adjudication on the merits for purposes of res
judicata, as explained earlier. Although there was not an
adjudication on the merits of the [willful and wanton count] in
[Hudson I], the concept of res judicata is broader than plaintiffs
suggest. If the three elements necessary to invoke res judicata are
present, res judicata will bar not only every matter that was
actually determined in the first suit, but also every matter that
might have been raised and determined in that suit [Citation].
Therefore, if the three requirements of res judicata are met and the
[willful and wanton count] could have been determined in [Hudson
I], plaintiffs will be barred from litigating the [willful and wanton
count] in [Hudson II].
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***
Because the [willful and wanton count] arises out of the
same set of operative facts as the [negligence count], plaintiffs
could have litigated and resolved [this claim] in [Hudson I].
Having failed to do so, plaintiffs are barred by the doctrine of res
judicata from attempting to raise and litigate [it] in [Hudson II],
even though there was no adjudication on the merits of [this claim]
in the prior suit.’ ” Hudson, 228 Ill. 2d at 473-74, quoting Rein,
172 Ill. 2d at 337-39.
In the case at bar, the parties are in agreement that the second and third prongs of res
judicata have been met. However, like the cases above, the parties disagree as to whether there
was a final cause of action in Severino I. Therefore, we will insert the case names and the types
of counts from this case into the above-quoted passages from Rein and Hudson, just as the trial
court did, which yields the following:
“The first element of res judicata is met here because the
dismissal of the [Animal Control Act] with prejudice in [Severino
I] operates as an adjudication on the merits for purposes of res
judicata, as explained earlier. Although there was not an
adjudication on the merits of the [negligence count] in [Severino I],
the concept of res judicata is broader than plaintiffs suggest. If the
three elements necessary to invoke res judicata are present, res
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No. 1-09-2778
judicata will bar not only every matter that was actually
determined in the first suit, but also every matter that might have
been raised and determined in that suit. Therefore, if the three
requirements of res judicata are met and the [negligence] could
have been determined in [Severino I], plaintiffs will be barred from
litigating the [negligent count] in [Severino II].
***
Because the [negligent count] arises out of the same set of
operative facts as the [Animal Control Act count], plaintiffs could
have litigated and resolved [this claim] in [Severino I]. Having
failed to do so, plaintiffs are barred by the doctrine of res judicata
from attempting to raise and litigate [it] in [Severino II], even
though there was no adjudication on the merits of [this claim] in
the prior suit.
Accordingly, the negligence claim that plaintiff refiled in this case was barred by res
judicata due to the dismissal with prejudice of the Animal Control Act count in Severino I.
To the extent that plaintiff argues that no final judgment was rendered in Severino I, due
to this court’s finding of lack of jurisdiction, we find such argument to be misplaced. Subsequent
to plaintiff’s voluntary dismissal, defendant appealed the trial court’s May 1, 2006, denial of its
motion to dismiss plaintiff’s negligence count, arguing that a voluntary dismissal made all prior
orders, even denials, appealable. Plaintiff contended that the voluntary dismissal did not form a
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jurisdictional basis from which this court could review the merits of a nonfinal order, namely the
denial of defendant’s motion to dismiss plaintiff’s negligence claim. This court granted
plaintiff’s motion to dismiss defendant’s appeal of the May 1, 2006, order. We note, however,
that the focus of that appeal was whether the May 1, 2006, order denying defendant’s motion to
dismiss was final and appealable. It had nothing to do with whether the Animal Control Act
count was final and appealable. Since the dismissal of that count was decided in defendant’s
favor, defendant was obviously not appealing from that order. Therefore, this court did not, as
plaintiff suggests, find that “no final judgment on the merits had been entered” in Severino I.
Rather, this court found there was no jurisdiction for defendant to appeal the May 1, 2006, order.
That decision has no bearing on the fact that the Animal Control Act count was a final,
appealable order from the moment it was dismissed with prejudice. As such, the Animal Control
Act count serves as the final, appealable order in our res judicata and claims-splitting analysis,
regardless of the finality of the May 1, 2006, order.
C. Exceptions
We next look to see if any of the exceptions to the rule against claim-splitting apply. The
exceptions to claim-splitting are set forth in section 26(1) of the Restatement (Second) of
Judgments (1982), and were adopted in Rein. Under this section, the rule against claim-splitting
would not bar a second action if:
“(1) the parties have agreed in terms or in effect that plaintiff may
split his claim or the defendant has acquiesced therein; (2) the
court in the first action expressly reserved the plaintiff’s right to
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No. 1-09-2778
maintain the second action; (3) the plaintiff was unable to obtain
relief on his claim because of a restriction on the subject-matter
jurisdiction of the court in the first action; (4) the judgment in the
first action was plainly inconsistent with the equitable
implementation of a statutory scheme; (5) the case involves a
continuing or recurrent wrong; or (6) it is clearly and convincingly
shown that the policies favoring preclusion of a second action are
overcome for an extraordinary reason.” Rein, 172 Ill. 2d at 341.
Here, plaintiff contends that the trial court expressly reserved his right to maintain the
second action, or alternatively, that defendant acquiesced to the second action. We now address
such contentions.
Plaintiff argues, relying on Quintas v. Asset Management Group, Inc., 395 Ill. App. 3d
324 (2009), that the trial court in Severino I expressly reserved his right to maintain the second
action. Defendant responds that because plaintiff is raising this issue for the first time on appeal,
such issue has been waived.
While it is true that the general rule in Illinois is that errors not raised in the trial court
and raised for the first time on appeal are waived, we note that it is also well settled that “the
waiver rule is an admonition to the parties and provides no limitation on this court’s
jurisdiction.” In re Mark W., 383 Ill. App. 3d 572, 588 (2008), citing Illinois State Chamber of
Commerce v. Filan, 216 Ill. 2d 653, 664 (2005). “ ‘A reviewing court may, in furtherance of its
responsibility to provide a just result and to maintain a sound and uniform body of precedent,
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override considerations of waiver that stem from the adversarial nature of our system.’ ” In re
Mark W., 383 Ill. App. 3d at 588, quoting Filan, 216 Ill. 2d at 664. Therefore, in order to
maintain a sound and uniform body of precedent, we decline to apply the waiver doctrine to the
question of whether the trial court expressly reserved plaintiff’s right to file the second action
here.
In Quintas, which was filed eight days after the trial court granted defendant’s motion to
dismiss Severino II, this court found that a docket entry constituted an express reservation by the
trial court of the plaintiffs’ right to maintain a second action. The plaintiffs in Quintas had
originally filed a three-count complaint citing negligence, breach of fiduciary duty, and violation
of the Consumer Fraud and Deceptive Business Practices Act (the Act) (815 ILCS 505/1 et seq.
(West 2006)). The trial court granted summary judgment for defendants on the fiduciary duty
and Act counts but denied summary judgment on the negligence count. Subsequently, the
plaintiffs filed for voluntary dismissal pursuant to section 2-1009 of the Code. Plaintiffs then
refiled the action, alleging only negligence. Defendants then moved for summary judgment on
the grounds that the refiled action was barred by res judicata. The trial court granted the motion
and plaintiffs appealed, contending that the trial court in the original action granted plaintiffs
leave to refile and defendants acquiesced in the refiling. See Quintas, 395 Ill. App. 3d at 326.
On appeal, this court noted the parties agreed that the elements required for res judicata
applied in the case because the order that granted summary judgment to defendants on two
counts but denied it on the negligence count was a final order, and that the parties and the cause
of action were the same. However, the court found that one of the recognized exceptions to res
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No. 1-09-2778
judicata was applicable in this case; namely, that the trial court expressly reserved plaintiffs’
right to refile the case. Quintas, 395 Ill. App. 3d at 328-30.
The plaintiffs in Quintas acknowledged that both of the voluntary dismissal orders stated
that the dismissal was without prejudice, but contained no reference to refiling. However, the
court docket sheet entry stated, “ ‘Voluntary Dismissal W[ith] Leave to Refile - Allowed.’ ”
Plaintiffs’ counsel also submitted an affidavit stating that at the October 25, 2004, hearing, the
trial court expressed a desire to preside over the refiled lawsuit if the parties agreed. Moreover,
plaintiffs pointed out that in February 2005, the trial court continued defendants’ motion for costs
based on “plaintiffs’ representation that their claim will be refiled.” In their motion for
administrative transfer, filed in July 2005, defendant acknowledged that plaintiffs’ motion for
voluntary dismissal “ ‘with leave to re-file’ ” was granted. Quintas, 395 Ill. App. 3d at 330.
This court noted that docket sheets are part of the common law record and are presumed
to be correct, and that this court has accepted a docket sheet entry as an order of the court where
there was no transcript of the hearing and no written order. Quintas, 395 Ill. App. 3d at 330. In
Quintas, the written order granted the motion for voluntary dismissal without prejudice. The
court held that although the order did not contain any reference to refiling, that did not mean it
conflicted with the docket entry, but rather that it was merely silent on the issue of refiling.
Moreover, the Quintas court found that the words “without prejudice” in the order implied that
the case could be refiled. Quintas, 395 Ill. App. 3d at 331. Thus, this court found that the trial
court clearly and unmistakably granted leave to refile, meaning the exception applied, and
plaintiffs’ suit was not barred by res judicata. Quintas, 395 Ill. App. 3d at 333.
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In the case at bar, the June 14, 2007, order granting plaintiff’s motion to voluntarily
dismiss the case pursuant to section 2-1009 of the Code states that it is granted “without
prejudice and costs to any party.” In handwriting, it then states “costs to be paid upon the refiling
of the complaint by plaintiff.” Additionally, plaintiff included a certified docket sheet, attached
to his reply brief, which states for June 14, 2007: “Voluntary Dismissal W[ith] Leave to Refile -
Allowed.” This is the exact same language that appeared on the docket sheet in Quintas.
Moreover, as in Quintas, there is no contradiction between the docket sheet and the order
granting plaintiff’s voluntary dismissal. In fact, where the order in Quintas was silent in regards
to refiling, the order in the case at bar specifically states that costs were to be paid “upon the
refiling of the complaint by plaintiff.” Accordingly, we are compelled to find, as was found in
Quintas, that “[b]ecause the docket sheet entry granting plaintiff[’s] motion for voluntary
dismissal with leave to refile is accepted as an order of the court and does not conflict with the
written order, we conclude that the express reservation exception applies and plaintiff[’s] suit
was not barred by res judicata.” Quintas, 395 Ill. App. 3d at 336-37. Because we find that the
“express reservation” exception applies, we do not need to address the applicability of the other
exceptions.
III. CONCLUSION
For the foregoing reasons, we affirm the trial court’s judgment dismissing the willful and
wanton count (count II) of plaintiff’s refiled complaint, but we reverse its judgment regarding the
negligence count (count I) and remand for proceedings pursuant to this opinion.
Affirmed in part, reversed and remanded in part.
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No. 1-09-2778
TOOMIN and HOWSE, JJ., concur.
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