FIRST DIVISION
December 21, 2009
No. 1-08-1208
ANTONI MATEJCZYK, ) Appeal from the
) Circuit Court of
Plaintiff-Appellant, ) Cook County.
)
v. ) No. 07 L 9824
)
THE CITY OF CHICAGO, a Municipal )
Corporation, ) The Honorable
) Diane Larsen,
Defendant-Appellee. ) Judge Presiding.
JUSTICE GARCIA delivered the opinion of the court.
The plaintiff, Antoni Matejczyk, appeals from the dismissal
of his negligence complaint against the defendant, the City of
Chicago (the City), on res judicata grounds. In November 2006,
Matejczyk filed an initial complaint, under circuit court number
06 L 11961, to recover for injuries he allegedly sustained while
walking on a public sidewalk. Thereafter, Matejczyk filed a two-
count, amended complaint. The City filed a motion to dismiss
count II pursuant to section 2-619(a)(9) of the Code of Civil
Procedure (the Code) (735 ILCS 5/2-619(a)(9) (West 2006)) as
barred by the statute of limitations. On August 31, 2007, Judge
Jeffrey Lawrence granted the City's motion to dismiss count II,
with Matejczyk being granted leave to refile count II within 28
days. On September 5, 2007, Matejczyk instead filed a second
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amended complaint with a single count. The following day,
Matejczyk voluntarily dismissed his one-count second amended
complaint. On September 18, 2007, Matejczyk filed, under circuit
court number 07 L 9824, a new lawsuit with two counts in which he
acknowledged the new action was a refiling of the complaint filed
in 2006. Judge Diane Larsen granted the City's motion to dismiss
the 2007 complaint on res judicata grounds; Matejczyk appeals.
Because Matejczyk filed his one-count, second amended
complaint after the entry of the order of August 31, 2007, which
granted the City's motion to dismiss count II on the merits, the
voluntary dismissal of his second amended complaint triggered res
judicata as to the entire cause of action, barring this
subsequent refiling. Consequently, we affirm.
BACKGROUND
On November 15, 2006, Matejczyk filed a one-count,
negligence complaint against the City, seeking recovery for
injuries he allegedly sustained when he fell on November 26,
2005, on a public sidewalk. Matejczyk alleged that he fell in a
1 1/2-inch deep hole left in the sidewalk after a traffic signal
installed in the forties was removed on February 8, 1985. He
alleged that the City breached its duty by failing to fill the
hole, post any warnings, or barricade the area surrounding the
hole.
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On June 19, 2007, Matejczyk filed a first amended complaint,
which contained two counts. Each count repeated the allegations
that the City failed to fill the hole, post any warnings, or
barricade the area surrounding the hole. However, while count I
alleged that the signal was removed "[s]ometime after 1996,"
count II alleged that the signal was removed on February 8, 1985.
The City filed a motion to dismiss pursuant to section 2-
619(a)(9) of the Code (735 ILCS 5/2-619(a)(9) (West 2006)). The
City argued that it was immune from liability for the claims in
both counts regarding its failure to warn or barricade the area
pursuant to section 3-104 of the Local Governmental and
Governmental Employees Tort Immunity Act (the Act) (745 ILCS
10/3-104 (West 2006)), and that count II was barred by the
applicable 10-year statute of limitations in the Code (735 ILCS
5/13-214(b) (West 2006)). On August 31, 2007, Judge Lawrence
entered an order granting the motion to dismiss "as to all
allegations regarding failure to barricade or warn." The order
also granted the City's motion to dismiss count II as barred by
the statute of limitations; Matejczyk was granted leave to
replead count II "should [he] wish to do so within 28 days." The
order did not contain Supreme Court Rule 304(a) language (210
Ill. 2d R. 304(a)), and Matejczyk did not seek to appeal.
On September 5, 2007, Matejczyk filed a second amended
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complaint containing only one count. That count again alleged
that the City breached its duty by failing to fill the hole, post
any warnings, or barricade the area surrounding the hole, which
was allegedly caused by the removal of the signal "prior to
November 26, 2005." The following day, September 6, 2007,
Matejczyk moved to voluntarily dismiss the suit. The same day,
Judge Lawrence voluntarily dismissed the case without prejudice
in what was styled an "agreed order."
Twelve days later, on September 18, 2007, Matejczyk filed
the present action under a new circuit court number. His
complaint acknowledged that it was a "re-filing" of the prior
case. Matejczyk again alleged that "prior to November 26, 2005,"
the City removed the traffic signal, breaching its duty by
failing to fill the hole, post any warnings, or barricade the
area surrounding the hole. On December 19, 2007, the City filed
a motion to dismiss the complaint pursuant to section 2-619(a)(4)
of the Code (735 ILCS 5/2-619(a)(4) (West 2006)) as barred by res
judicata. On April 16, 2008, Judge Diane Larsen granted the
City's motion to dismiss with prejudice, "having found that this
issue is controlled by Hudson v. City of Chicago, [228 Ill. 2d
462, 889 N.E.2d 210 (2008)]." Matejczyk timely appeals from that
order.
ANALYSIS
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Res judicata bars a subsequent action if (1) a final
judgment on the merits was rendered by a court of competent
jurisdiction, (2) there is an identity of parties or their
privies, and (3) there is an identity of cause of action.
Hudson, 228 Ill. 2d at 467, citing Downing v. Chicago Transit
Authority, 162 Ill. 2d 70, 73-74, 642 N.E.2d 456 (1994). "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, citing La Salle National Bank v. County Board of
School Trustees, 61 Ill. 2d 524, 529, 337 N.E.2d 19 (1975).
Matejczyk concedes that his 2006 lawsuit and his 2007 lawsuit
arose from the same incident and involved identical parties,
meeting the second and third elements of res judicata. His only
dispute is with the finding that the 2006 lawsuit ended with a
final judgment on the merits, the first element of res judicata.
A. Ruling on the Merits
Matejczyk first contends that res judicata does not apply
because no final order on the merits was entered in the 2006 suit
to trigger the doctrine. Matejczyk argues that in both the 2006
and 2007 lawsuits, he alleged only a single cause of action for
negligence. He contends it was this single cause of action that
he voluntarily dismissed on September 6, 2007, under the 2006
case number, which he refiled on September 18, 2007, as a new
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action under the 2007 case number, the subject of this appeal.
The City counters that Judge Lawrence's August 31, 2007,
order granting its motion to dismiss count II was a final
adjudication on the merits of that count in the then-pending two-
count complaint. While the negligence theory of recovery was
shared by the two counts, the respective allegation in paragraph
3 of each count differed. It was Matejczyk that pled his cause
of action in two counts, which the City properly addressed as
distinct claims. Matejczyk should not be allowed on appeal to
recast his first amended complaint into one that seeks to render
pointless Judge Lawrence's ruling. We agree with the City.
The significance of a dismissal of certain counts in a
complaint was the preliminary question in Rein v. David A. Noyes
& Co., 172 Ill. 2d 325, 339-40, 665 N.E.2d 1199 (1996). In Rein,
actions of various plaintiffs were consolidated; the complaints
asserted counts based on common law and counts seeking
rescission. Rein v. David A. Noyes & Co., 230 Ill. App. 3d 12,
13-14, 595 N.E.2d 565 (1992) (Rein I). The rescission counts
were dismissed by the circuit court as barred by the statute of
limitations. Rein I, 230 Ill. App. 3d at 14. Subsequently, the
plaintiffs voluntarily dismissed the remaining common law counts
and appealed the dismissal of the rescission counts. Rein I, 230
Ill. App. 3d at 14-15. The Second District in Rein I affirmed
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the dismissal. Rein I, 230 Ill. App. 3d 12. On review of Rein
I, the supreme court phrased the initial question as "whether the
dismissal of the rescission counts in Rein I was a final judgment
on the merits." Rein, 172 Ill. 2d at 335. The court noted, "The
trial judge in Rein I dismissed the rescission counts with
prejudice, pursuant to section 2-619(a)(5) of the Code, as being
barred by the statute of limitations in section 13(D) of the
[Illinois Securities Law of 1953 (Ill. Rev. Stat. 1989, ch. 121
½, pars. 137.12 (F), (G))]." Rein, 172 Ill. 2d at 335. As
authority that the dismissal was a final judgment on the merits,
the court cited to Supreme Court Rule 273: " '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.' " Rein, 172 Ill. 2d at 335, quoting 134 Ill. 2d R. 273.
The court noted a dismissal operates as an adjudication on the
merits under "Rule 273 *** only to an involuntary dismissal of an
action, such as that which occurs when a motion to dismiss under
section 2-615 or 2-619 of the Code is granted." Rein, 172 Ill.
2d at 335-36.
We note that count II of Matejczyk's 2006 first amended
complaint was dismissed by Judge Lawrence pursuant to section 2-
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619(a)(9) of the Code as barred by the statute of limitations.
To quote the supreme court in Rein, it follows, "[t]herefore,
under Rule 273, the trial judge's decision to grant [the City's]
motion to dismiss [count II] *** based on the applicable statute
of limitations is a final adjudication on the merits and operates
as a final judgment on the merits for purposes of res judicata."
Rein, 172 Ill. 2d at 336.
Matejczyk's contention that his case differs from Rein
because Judge Lawrence's order did not specify the dismissal of
count II "with prejudice" is unavailing. " '[T]he effect of a
dismissal order is determined by its substance and not by the
incantation of any particular magic words,' and therefore, a
trial court's description of a final judgment as being 'without
prejudice' or 'with prejudice' is not determinative" of its
finality. Keifer v. Rust-Oleum Corp., 394 Ill. App. 3d 485, 494,
916 N.E.2d 22 (2009), quoting Schal Bovis, Inc. v. Casualty
Insurance Co., 314 Ill. App. 3d 562, 568, 732 N.E.2d 1082 (1999).
As the supreme court made clear, "[T]he use of 'without
prejudice' language is not sufficient to protect a plaintiff
against the bar of res judicata when another part of plaintiff's
case has gone to final judgment in a previous action: 'the trial
judge's granting plaintiffs' motion to voluntarily dismiss the
common law counts without prejudice under section 2-1009 should
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not be interpreted as immunizing plaintiffs against defenses
defendants may raise when the voluntarily dismissed counts were
refiled.' " (Emphasis in original.) Hudson, 228 Ill. 2d at 472
n.2, quoting Rein, 172 Ill. 2d at 342.
As we noted, Judge Lawrence's order granted Matejczyk leave
to refile count II within 28 days. However, while count I
remained pending sans the allegations regarding the City's
failure to warn or barricade the area, Matejczyk did not refile
count II; rather, he filed a single-count, second amended
complaint. Matejczyk's contention that the two counts in his
first amended complaint are "virtually identical" except for the
date set out in the respective paragraph 3 makes clear that the
dismissal order as to count II was a final judgment on the merits
because count II violated the statute of limitations based on the
date alleged in that count's paragraph 3. But for that date,
count II would have been identical to count I. Moreover, as the
court noted in Rein, the dismissal of a count as barred by the
statute of limitations is a ruling on the merits under Rule 273.
The language of Rule 273 makes no distinction between a dismissal
with prejudice and without; rather, the necessary condition under
Rule 273 is an involuntary dismissal, which Judge Lawrence's
order of August 31, 2007, clearly was as brought on by the City's
2-619 motion to dismiss. It is also reasonable to conclude that
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the dismissal of count II was for all practical purposes a
dismissal with prejudice because count II could not be repled
with the same date alleged in paragraph 3, the only difference
between count II and count I. The involuntary dismissal left
Matejczyk with a single viable claim against the City in his
first amended complaint. That Matejczyk recognized that his two-
count, first amended complaint was reduced to a single count is
reflected in his second amended complaint filed immediately
thereafter with a single count.
Matejczyk's overly broad contention that "[t]here is no
indication that the court intended to dispose of an entire cause
of action, or grant a final disposition of the whole case" is
simply beside the point. It is certainly true that Judge
Lawrence's order of August 31, 2007, did not dispose of the whole
case; in fact, count I was unaffected except for Judge Lawrence's
ruling that certain allegations were barred by section 3-104 of
the Act. Matejczyk was granted leave to refile count II if he
wished to do so. Matejczyk elected, however, to file a second
amended complaint with a single count. Upon the filing of the
second amended complaint, Matejczyk was free to pursue that
single-count complaint to a final judgment. However, Matejczyk
was not free to voluntarily dismiss his second amended complaint
without exposing his subsequently refiled complaint to a possible
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res judicata defense based on the prohibition against claim-
splitting. See Hudson, 228 Ill. 2d at 472-73, citing Rein, 172
Ill. 2d at 339-40.
No persuasive argument is put forth by Matejczyk to avoid
the clear holding in Rein that the dismissal of count II, albeit
with leave to refile, was a final judgment on the merits of count
II as it was pled in Matejczyk's first amended complaint. Rein,
172 Ill. 2d at 335-36. We reject Matejczyk's unpersuasive
contentions to the contrary. We now address the consequences
that flow from the voluntary dismissal of Matejczyk's second
amended complaint, in light of the final judgment order
dismissing count II on its merits.
B. Claim-Splitting
The City contends that Matejczyk engaged in claim-splitting
when he voluntarily dismissed his one-count, second amended
complaint after count II had been dismissed by Judge Lawrence
from his first amended complaint only to refile both claims in
his 2007 lawsuit. This triggers the rule in Rein: "Rein ***
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, citing Rein, 172 Ill. 2d at 337-39. "Whether a
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subsequent claim is barred by the doctrine of res judicata is a
question of law which is reviewed de novo." Northeast Illinois
Regional Commuter R.R. Corp. v. Chicago Union Station Co., 358
Ill. App. 3d 985, 1000, 832 N.E.2d 214 (2005). We review Rein's
analysis on claim-splitting and Hudson to determine whether Judge
Larsen was correct that the issue presented by this case "is
controlled by Hudson." Our focus is on the City's contention
that Matejczyk engaged in claim-splitting.
In Rein, the plaintiffs filed an eight-count complaint that
sought recovery under both rescission and common law theories.
Rein, 172 Ill. 2d at 328. The circuit court dismissed the
rescission counts with prejudice, finding the rescission counts
barred by the applicable statute of limitations. Rein, 172 Ill.
2d at 329. However, no Rule 304(a) language was included in the
order to render the dismissal of the rescission counts
immediately appealable. Rein, 172 Ill. 2d at 330. It appears
the plaintiffs voluntarily dismissed the then-pending complaint
with its remaining common law counts in order to appeal the
dismissal of the rescission counts. Rein, 172 Ill. 2d at 331.
After the appellate court affirmed the dismissal of the
rescission counts, the plaintiffs filed a new complaint that was
virtually identical to the original, with both rescission and
common law counts. Rein, 172 Ill. 2d at 331. The defendants
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moved to dismiss the entire complaint on res judicata grounds;
the circuit court granted the motion. Rein, 172 Ill. 2d at 331-
32. The appellate court affirmed the dismissal in Rein I and the
supreme court granted the plaintiffs leave to appeal. Rein, 172
Ill. 2d at 332.
As we noted in the preceding section, the dismissal of the
rescission counts in the original complaint constituted "a final
adjudication on the merits[, which] operate[d] as a final
judgment on the merits for purposes of res judicata." Rein, 172
Ill. 2d at 336. Our focus here is on the court's analysis of the
rule against claim-splitting: the rule "prohibits a plaintiff
from suing for part of a claim in one action and then suing for
the remainder in another action. [Citations.]" Rein, 172 Ill.
2d at 340. As the court explained: "To avoid the bar of res
judicata, plaintiffs could have proceeded to a decision on the
merits of the common law counts *** and, if unsuccessful,
appealed both the result regarding the common law counts and the
trial judge's order dismissing the rescission counts with
prejudice." Rein, 172 Ill. 2d at 340. Because res judicata bars
"not only every matter that was actually determined in the first
suit, but also every matter that might have been raised and
determined," the plaintiffs were barred from refiling the
voluntarily dismissed common law counts, on which no ruling on
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the merits was issued, because the common law counts could have
been adjudicated in the earlier suit. Rein, 172 Ill. 2d at 338,
citing Torcasso v. Standard Outdoor Sales, Inc., 157 Ill. 2d 484,
490, 626 N.E.2d 225 (1993).
As the Rein holding made clear, the plaintiffs were required
to delay challenging the dismissal of the rescission counts until
a decision on the merits of the remaining common law counts was
rendered. If the on-the-merits ruling on the common law counts
gave the plaintiffs a full remedy, it would presumably render
moot the earlier decision dismissing the rescission counts. If
the on-the-merits ruling on the common law counts went against
the plaintiffs, then the plaintiffs could seek appellate review
of both that ruling and the earlier decision dismissing the
rescission counts.
In Hudson, the plaintiffs filed a complaint containing one
negligence count and one willful and wanton misconduct count.
Hudson, 228 Ill. 2d at 464. Some three years after the circuit
court dismissed the negligence count with prejudice, the
plaintiffs voluntarily dismissed the remaining willful and wanton
misconduct count. Hudson, 228 Ill. 2d at 466. Another year
later, the plaintiffs refiled the willful and wanton misconduct
count in a new suit. Hudson, 228 Ill. 2d at 466. The circuit
court granted the defendant's motion to dismiss on res judicata
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grounds and the appellate court affirmed. Hudson, 228 Ill. 2d at
466.
On review, our supreme court in Hudson once again applied
the rule against claim-splitting it discussed in Rein. Our
supreme court held 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. The dismissal of the negligence count in the plaintiffs'
original suit " 'operate[d] as an adjudication on the merits for
purposes of res judicata.' " Hudson, 228 Ill. 2d at 473, citing
Rein, 172 Ill. 2d at 338. Once again in Hudson, the plaintiffs
failed to delay the challenge to the dismissal of the negligence
count until there was a ruling on the merits on the willful and
wanton count. Had the plaintiffs obtained a successful final
judgment on the willful and wanton count, it might have rendered
moot the earlier decision dismissing the negligence count. Had
judgment on the willful and wanton count gone against the
plaintiffs, then the plaintiffs could have sought a review of
both that ruling and the earlier decision dismissing the
negligence count. Because the remaining willful and wanton
misconduct claim could have been resolved in the litigation
pending before the circuit court, the plaintiffs were barred from
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relitigating it in a separately filed suit even though no express
ruling on its merits was entered. Hudson, 228 Ill. 2d at 474.
We read Rein and Hudson to establish that a dismissal on the
merits by the circuit court of one or more counts in a complaint
puts the plaintiff on notice that, should he elect to take a
voluntary dismissal under section 2-1009 of the Code (735 ILCS
5/1-1009 (West 2006)) for whatever reason, he risks triggering
the res judicata bar to refiling. The rule made clear in Rein
and Hudson flows directly from the policy considerations behind
the res judicata doctrine. " 'Res judicata promotes judicial
economy by preventing repetitive litigation and [additionally]
protects parties from being forced to bear the unjust burden of
relitigating essentially the same case.' " Piagentini v. Ford
Motor Co., 387 Ill. App. 3d 887, 890, 901 N.E.2d 986 (2009),
quoting Arvia v. Madigan, 209 Ill. 2d 520, 533, 809 N.E.2d 88
(2004). To allow the splitting of claims or causes of action
even in the absence of a ruling on the merits of all claims or
all causes of action is contrary to the policy consideration
central to res judicata of promoting finality.
Although a plaintiff may disagree with a circuit court's
ruling dismissing a count in a multicount complaint, it is
unquestionably a ruling on the merits of the dismissed count
under Rule 273 as an involuntary dismissal. 134 Ill. 2d R. 273.
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The remaining portion of the complaint, with its viable counts,
must proceed to final judgment, else risk triggering res
judicata.
To allow voluntary dismissal of viable counts in a complaint
following an involuntary dismissal of other counts with
unfettered refiling of the complaint, in whole or in part, would
unavoidably encourage splitting of claims or causes of action.
When a circuit court issues a ruling on the merits that results
in the dismissal of a count, litigation of the remaining
complaint, subject to certain exceptions discussed below, must be
pursued to a final judgment. To allow the voluntary dismissal of
the remaining viable counts, with the right to refile, would by
definition promote piecemeal litigation. Such a result is
contrary to the policy consideration of promoting finality
embedded in res judicata. In other words, a final judgment on
the merits of an involuntarily dismissed count of a multicount
complaint will render a voluntary dismissal of all remaining
counts equally final to the dismissed count. To hold otherwise
would promote piecemeal litigation when remaining counts are
deemed to have sufficient merit to continue with litigation.
Judge Lawrence's order of August 31, 2007, dismissing count
II of the first amended complaint was a final order, the finality
of which carried over to the remaining count when Matejczyk
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voluntarily dismissed the remaining complaint on September 6,
2007. Stated differently, the August 31, 2007, order dismissing
count II rendered the voluntary dismissal of Matejczyk's second
amended complaint a final judgment on the merits, which precluded
the refiling of the same claims under the 2007 case number, the
subject of this appeal.
C. Exceptions to Claim-Splitting
Finally, Matejczyk argues that his case triggers exceptions
to the rule against claim-splitting described in Rein and Hudson.
Specifically, Matejczyk argues that two exceptions to the rule
apply here: " '(1) the parties have agreed in terms or in effect
that plaintiff may split his claim or the defendant has
acquiesced therein; [and] (2) the court in the first action
expressly reserved the plaintiff's right to maintain the second
action.' " Hudson, 228 Ill. 2d at 472, quoting Rein, 172 Ill. 2d
at 341. Neither of Matejczyk's contentions that either of the
two exceptions applies is persuasive.
First, we reject his entirely unsupported argument that
Judge Lawrence's order voluntarily dismissing his original case
signaled the City's acquiescence to claim-splitting simply
because it was titled an "agreed order." Neither the form nor
the language of that order in any way indicates that the City
intended to allow Matejczyk to refile his claim at a later date.
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Nor was the City required to voice its objection to refiling
before Matejczyk attempted to refile. Rein, 172 Ill. 2d at 342
("Until the plaintiffs attempted to refile *** no reason existed
for defendants to object"). When Matejczyk did refile, the City
promptly moved to dismiss on res judicata grounds, which negates
Matejczyk's claim that the City acquiesced in the refiling.
Second, we reject Matejczyk's argument that Judge Lawrence
expressly reserved Matejczyk's right to maintain a second action
by granting him leave to refile count II within 28 days. There
is no indication in the record that the dismissal order was
written with an exception to claim-splitting in mind. Judge
Lawrence's order contained no language granting Matejczyk the
right to file a subsequent suit seeking identical relief despite
the general prohibition against claim-splitting. Allowing him to
refile would not be "within the purpose and spirit" of the
exception as Matejczyk claims; the exception clearly applies only
where the circuit court expressly reserves the plaintiff's right
to refile.
Matejczyk also contends that this case should be allowed to
proceed to trial based upon this court's recent decision in
Piagentini. We find that case distinguishable.
In Piagentini, the plaintiffs were injured in a car accident
and filed suit against the automobile manufacturer. Piagentini,
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387 Ill. App. 3d at 888. The eight counts in the plaintiffs'
amended complaint sought recovery on strict liability and
negligence theories, but shared allegations that the defendant's
car was designed with insufficient stability and lacked an
adequate seatbelt system. Piagentini, 387 Ill. App. 3d at 888-
89. Based on the plaintiffs' failure to disclose any witnesses
to substantiate its "insufficient stability" allegations, the
circuit court entered an agreed order for partial summary
judgment related to those allegations. Piagentini, 387 Ill. App.
3d at 889. That order dismissed the plaintiffs' complaint, but
granted leave to replead under both theories so long as the
counts did not include any allegations regarding stability.
Piagentini, 387 Ill. App. 3d at 889. The plaintiffs filed a
second amended complaint excluding the stability allegations, but
later voluntarily dismissed that complaint. Piagentini, 387 Ill.
App. 3d at 889. Nearly a year later, the plaintiffs refiled
their claims, including those relating to vehicle stability.
Piagentini, 387 Ill. App. 3d at 889. After litigating for 3 1/2
years, the defendant filed a motion to dismiss on res judicata
grounds only three months prior to trial, which the circuit court
granted. Piagentini, 387 Ill. App. 3d at 889-90.
This court reversed the dismissal, holding that the circuit
court's partial summary judgment order in the original suit was
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not final because it "was granted as to certain allegations
within separate counts of the complaint but no actual count was
dismissed." Piagentini, 387 Ill. App. 3d at 893. Because "both
counts [of the original complaint] remained standing as bases for
recovery," the order did not dispose of a separate branch of the
controversy and was not final. Piagentini, 387 Ill. App. 3d at
894. As an independent basis for its decision, the Piagentini
court also reasoned that the circuit court's summary judgment
order was not final because it "dismissed the complaint in its
entirety but expressly granted plaintiffs 28 days in which to
replead those allegations relating to defective seatbelts."
Piagentini, 387 Ill. App. 3d at 893. Relying on Jackson v.
Victory Memorial Hospital, 387 Ill. App. 3d 342, 352, 900 N.E.2d
309 (2008), the Piagentini court held that "an order dismissing a
complaint is not final until the trial court enters an order
dismissing the suit with prejudice." Piagentini, 387 Ill. App.
3d at 895, citing Jackson, 387 Ill. App. 3d 352.1
1
The Piagentini court separately found that even if the
summary judgment order was a final ruling on the merits, the
defendant's acquiesced in the refiling of the suit when the
defendant waited over 3 1/2 years before filing its motion to
dismiss based on res judicata. Piagentini, 387 Ill. App. 3d at
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Neither of the bases supporting the Piagentini decision
applies here. Unlike the circuit court's order in Piagentini,
Judge Lawrence's order did not leave "both counts [of the initial
complaint] standing as bases for recovery" (Piagentini, 387 Ill.
App. 3d at 894); instead, Judge Lawrence dismissed one of the two
counts of Matejczyk's amended complaint, in addition to claims
that the City failed to properly warn about the hole or barricade
it. This order disposed of a "separate branch" of the
controversy and was therefore final. Piagentini, 387 Ill. App.
3d at 894, citing Hull v. City of Chicago, 165 Ill. App. 3d 732,
733, 520 N.E.2d 720 (1987). Further, unlike the order in
Piagentini dismissing the case in its entirety, Judge Lawrence's
order dismissed only part of Matejczyk's original complaint, with
leave to replead, if he wished, the remainder; because the entire
complaint was not dismissed, leave was not granted to replead the
complaint in its entirety because the date alleged in count II
fell outside the statute of limitations. As discussed earlier,
dismissal of count II rendered Judge Lawrence's ruling a final
judgment on the merits of count II. Dubina v. Mesirow Realty
Development, Inc., 178 Ill. 2d 496, 502-03, 687 N.E.2d 871
895-96. The City, here, promptly moved to dismiss Matejczyk's
refiled lawsuit on res judicata grounds.
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(1997); see also Doe v. Gleicher, 393 Ill. App. 3d 31, 36, 911
N.E.2d 532 (2009) ("Claims dismissed without an opportunity to
amend are final even if the case is not dismissed in its
entirety").
If Matejczyk desired review of Judge Lawrence's August 31,
2007, order, he was obligated to litigate his suit to judgment on
count I, which he premised on his claim that the City negligently
failed to fill the hole, and only then appeal the earlier
involuntary dismissal of count II and his alternative claims. Of
course, given that counts I and II were nearly identical but for
the date allegation, litigation of count I to a final judgment
would likely have rendered the dismissal of count II moot.
However, rather than continue with the litigation, Matejczyk
inexplicably elected to file a new suit. Had Matejczyk not
insisted on pursuing his negligence suit in two counts that
offered him no greater chance of recovery, he would not be in the
predicament he finds himself today. See Hudson, 228 Ill. 2d at
480 ("had the plaintiffs themselves not insisted on bringing a
negligence suit against an entity that is statutorily immune,
they would not be in [this] predicament").
CONCLUSION
Matejczyk's first amended 2006 complaint contained two
counts, each including claims based upon the City's failure to
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fill the hole, post any warnings, or barricade the area
surrounding the hole in a public sidewalk. On August 31, 2007,
Judge Lawrence dismissed count II. Under Rule 273, that order
was a final adjudication on the merits of count II. As such, the
order bars Matejczyk, after a voluntary dismissal of that
litigation, from refiling in his 2007 lawsuit those claims that
could have been litigated in his original 2006 suit. We affirm
Judge Larsen's dismissal of this refiling on res judicata
grounds.
Affirmed.
HALL, P.J., and LAMPKIN, J., concur.
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REPORTER OF DECISIONS - ILLINOIS APPELLATE COURT
______________________________________________________________________________
ANTONI MATEJCZYK,
Plaintiff-Appellant,
v.
THE CITY OF CHICAGO, a Municipal Corporation,
Defendant-Appellee.
_______________________________________________________________
No. 1-08-1208
Appellate Court of Illinois
First District, First Division
Filed: December 21, 2009
_________________________________________________________________
JUSTICE GARCIA delivered the opinion of the court.
HALL, P.J., and LAMPKIN, J., concur.
_________________________________________________________________
Appeal from the Circuit Court of Cook County
Honorable Diane J. Larsen, Judge Presiding
_________________________________________________________________
For PLAINTIFF- Sidney Ezra
APPELLANT Law Office of Sidney Ezra
55 W. Wacker Dr., 9th Floor
Chicago, Illinois 60601
Theodore T. Scudder
332 South Michigan, Suite 1000
Chicago, Illinois 60604
For DEFENDANT- Benna Ruth Soloman, Deputy Corporation Counsel
APPELLEE Myriam Zreczny Kasper, Chief Assistant Corporation Counsel
25
1-08-1208
Julian N. Henriques, Jr., Senior Counsel
MARA S. GEORGES, Corporation Counsel, City of Chicago
30 North LaSalle Street, Suite 800
Chicago, Illinois 60602
26