Carey v. Neal, Cortina and Associates

PRESIDING JUSTICE JIGANTI,

dissenting:

The instant complaint, wherein the plaintiffs seek tort damages, alleges that the defendants, H. Wayne Neal and Rosemary Neal, fraudulently induced the plaintiffs to execute a mortgage and promissory note in connection with a purchase of Florida real estate. A Florida court had previously rendered a judgment foreclosing the mortgage and entering a money judgment against the plaintiffs on the promissory note. The trial court allowed the Neals’ motion to dismiss the complaint on the basis that res judicata bars the action.

The supreme court of Illinois in the case of Housing Authority v. YMCA (1984), 101 Ill. 2d 246, 251, 461 N.E.2d 959, 962, quoting People v. Kidd (1947), 398 Ill. 405, 408, 75 N.E.2d 851, 853, stated:

“ ‘[A] final judgment rendered by a court of competent jurisdiction on the merits is conclusive as to the rights of the parties and their privies, and, as to them, constitutes an absolute bar to a subsequent action involving the same claim, demand or cause of action.’ (Emphasis added.)”

The doctrine applies “not only to what actually was decided in the original action but also to matters which could have been decided in that suit.” La Salle National Bank v. County Board of School Trustees (1975), 61 Ill. 2d 524, 529, 337 N.E.2d 19, 22, cert. denied (1976), 425 U.S. 936, 48 L. Ed. 2d 177, 96 S. Ct. 1668.

The majority holds that this action for money damages on the basis of fraud is not the “same cause of action” as the action in Florida in which the court granted foreclosure and ordered a money judgment against the plaintiffs. I respectfully disagree.

We have consistently held that a subsequent action is barred on the principle of res judicata if it arises out of “a single group of operative facts.” (Radosta v. Chrysler Corp. (1982), 110 Ill. App. 3d 1066, 1069, 443 N.E.2d 670, 673; Baird & Warner, Inc. v. Addison Industrial Park, Inc. (1979), 70 Ill. App. 3d 59, 64, 387 N.E.2d 831, 838.) Professor Richard A. Michael, 4 Illinois Practice, Civil Procedure Before Trial section 41.5, at 315 (1989), urges that Illinois adopt Restatement (Second) of Judgments section 24(1), which states that when a valid and final judgment has been rendered, a plaintiff’s claim is extinguished with respect to “all or any part of the transaction, or series of connected transactions, out of which the action arose.” (Restatement (Second) of Judgments §24(1), at 196 (1982).) Professor Michael notes that the primary goal of the doctrine is “judicial economy coupled with avoidance of the unfairness to the defendant of incurring multiple costs and risks.” (4 R. Michael, Illinois Practice §41.5, at 314 (1989).) I believe it is evident that the instant tort action for fraud in inducing the real estate purchase and the foreclosure action in the real estate purchase previously ruled on in Florida arise out of a common core of operative facts and are part of the same transaction. I would affirm the trial court.