dissenting:
I respectfully dissent. This case is not particularly difficult. Our supreme court already decided this issue. As the majority notes, our supreme court has held:
“[T]he rule against claim-splitting does not apply to bar an independent claim of part of the same cause of 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 plaintiffs right to maintain the second action ***.” Rein v. David A. Noyes & Co., 172 Ill. 2d 325, 341 (1996).
Both of these provisions apply to the facts here.
On February 17, 2005, the trial court granted Mohr’s oral motion to dismiss without prejudice count II, the breach of fiduciary duty claim for which damages were sought. On December 29, 2006, an agreed settlement order was entered in the Mohr suit, in which all the parties mutually released each other from any obligations arising out of the Mohr suit, but in which they specifically excluded “the claims asserted in Count II” (paragraph 11) and “any liabilities or claims arising out or in connection with the [Cartwright] suit” (paragraph 12).
Both these orders prove that (1) the parties “agreed *** in effect that plaintiffs [could] split [their] claim” by dismissing count II without prejudice and by specifically excluding it from the agreed settlement order; and (2) the trial “court in the first action expressly reserved the plaintiffs right to maintain the second action,” by the order that dismissed it without prejudice and by the settlement order that excluded it. Rein, 172 Ill. 2d at 341.
Thus, applying the words of the exception to the facts of our case shows that both exceptions are satisfied.
The majority finds that the trial court’s dismissal order of February 17, 2005, does not satisfy the first exception because the order did not explicitly reflect an agreement by the parties. Even if that were true, then the parties’ subsequent settlement agreement certainly does reflect an agreement by the parties.
The majority finds that the settlement order of December 29, 2006, does not satisfy the second exception, because it merely repeated what was in the prior dismissal order of February 17, 2005. However, by itself, the trial court’s February 17 order dismissing count II without prejudice shows that the trial court “expressly reserved” plaintiffs right to bring this claim in a second action. Rein, 172 Ill. 2d at 341.
The majority observes that the trustee argued in the Cartwright suit that the February 17, 2005, order in the Mohr suit should be given res judicata effect, and that he lost on that argument on November 28, 2006, when the Cartwright court entered judgment against him. The majority states: “We reject as simply outside the bounds of reasonable interpretation of the record that trustee Moore, within a month [November 28, 2006,] after suffering defeat [of his affirmative defense of res judicata] in the Cartwright litigation, would in a December 2006 order make for naught all of his efforts to bar the Cartwright litigation” on res judicata grounds. 394 Ill. App. 3d at 10-11. Actually, it makes perfect sense. Finding that this was a losing argument, he decided to relinquish it for a settlement on other issues. In any event, whether we as Monday-night quarterbacks find that it was or was not his most sensible move, the document speaks for itself, and that is exactly what it states, in explicit terms. It states all claims are settled “but excluding the claims asserted in Count II” and excluding “any liabilities or claims arising out of or in connection with the [Cartwright suit].”
The majority states that its conclusion is consistent with the order entered by Judge Dennis Burke. On December 21, 2007, Mohr refiled her claim, and on November 25, 2008, Judge Burke found that the refiled complaint was barred by res judicata, Mohr did not appeal Judge Burke’s order. First, Cartwright was not a party to that action. Second, if Judge Burke’s order in Mohr’s suit is entitled to preclusive effect in Cartwright’s suit, then the earlier 2006 order by the Cartwright court, which found that the claims were not barred by res judicata, should have had preclusive effect in Mohr’s suit.
For the foregoing reasons, I must respectfully dissent. Two exceptions to the res judicata doctrine apply, and thus res judicata does not bar the suit.