dissenting:
I respectfully dissent from that portion of the majority opinion concluding that the common-law counts are barred by the doctrine of res judicata. I believe that the majority has misconstrued the relationship between res judicata, section 2 — 1009 of the Code of Civil Procedure (735 ILCS 5/2 — 1009 (West 1992)), and the concept of claim splitting.
The majority concludes that section 2 — 1009 cannot be permitted to circumvent a court’s denial of a request for a finding pursuant to Supreme Court Rule 304(a) (134 Ill. 2d R. 304(a)). First of all, the record does not indicate why the trial court denied plaintiffs’ request for a Rule 304(a) finding. In fact, it may be that the trial court erred in denying the request. However, neither party has raised any issue as to the denial of the request. Secondly, this court cites no authority for this rather novel proposition. Therefore, I believe it is a somewhat suspect basis for the result reached in this case.
The majority further concludes that section 2 — 1009 cannot be permitted to circumvent the doctrine of res judicata and its close relative, the rule against claim splitting. Again this conclusion is reached without citation to authority. I believe, however, that neither the doctrine of res judicata nor the rule against claim splitting is applicable here.
Section 2 — 1009 provides in pertinent part as follows:
"The plaintiff may, at any time before trial or hearing begins, upon notice to each party who has appeared or each party’s attorney, and upon payment of costs, dismiss his or her action or any part thereof as to any defendant, without prejudice, by order filed in the cause.” (Emphasis added.) (735 ILCS 5/2 — 1009 (West 1992).)
Section 2 — 1009 is not limited to the dismissal of an entire cause of action but applies as well to the situation in which only part of the cause of action is dismissed.
Moreover, the voluntary dismissal pursuant to section 2 — 1009 clearly protects the plaintiffs’ right to refile the common-law counts since the dismissal is without prejudice. Since a voluntary dismissal under section 2 — 1009 cannot be had once a trial or hearing has begun, there has been no final adjudication on the merits of the suit or that portion of it which is being voluntarily dismissed. Since a final adjudication on the merits is required before res judicata can apply, it is not applicable here. Elliott, 189 Ill. App. 3d at 728.
The majority cites Best Coin-Op, Inc. v. Paul F. Ilg Supply Co. (1989), 189 Ill. App. 3d 638, for the proposition that res judicata bars a second suit if the matter could have been decided in the first suit. (Best Coin-Op, Inc., 189 Ill. App. 3d at 657.) However, unlike the case at bar, that case involved an "involuntary” dismissal, which this court held was a final adjudication on the merits. (189 Ill. App. 3d at 648-49.) The majority’s reliance on Radosta v. Chrysler Corp. (1982), 110 Ill. App. 3d 1066, is equally misplaced, since in that case a second suit was filed after an appeal in the first suit. The majority cites no case applying res judicata where the cause of action or a part thereof was voluntarily dismissed pursuant to section 2 — 1009.
The rule against claim splitting is closely related to the doctrine of res judicata. (Thorleif Larsen & Son, Inc. v. PPG Industries, Inc. (1988), 177 Ill. App. 3d 656, 662.) The policies underlying the doctrine of res judicata are protection of the defendant from harassment and of the public from multiple litigation; the rule against claim splitting has been relaxed where there was an omission due to ignorance, mistake, or fraud, or where it would be inequitable to apply the rule. Thorleif Larsen & Son, Inc., 177 Ill. App. 3d at 662.
Res judicata will not apply to bar an independent claim of part of the same cause of action where: (1) the parties have agreed in terms or in effect that plaintiff may split his claim, or the defendant has acquiesced therein; or (2) the court in the first action expressly reserved the plaintiffs rights to maintain the second action. Airtite v. DPR Ltd. Partnership (1994), 265 Ill. App. 3d 214, 219.
The majority concludes that neither of these exceptions is applicable here. Yet there is no indication in the record that defendants objected, on the basis of claim splitting or anything else, to the motion for voluntary dismissal. Without citation to authority, the majority concludes that the lack of objection did not mean acquiescence on the part of defendants to the voluntary dismissal and that the objection was properly made when the plaintiffs attempted to refile the common-law counts, as prior to that time there was no reason for the defendants to object. This reasoning seems to suggest that defendants were taken by surprise by the refiling attempt. The reason for obtaining a voluntary dismissal pursuant to section 2 — 1009 is to insure that the dismissal will be without prejudice, thus allowing the refiling of the claim. The defendants could have had no doubts that plaintiffs intended to refile the common-law counts. By remaining silent, the defendants agreed, in effect, that plaintiffs could split their claims. Airtite, 265 Ill. App. 3d at 219.
The majority also concludes that the trial court’s granting of the motion for voluntary dismissal could not immunize the plaintiffs against any defenses to the attempted refiling of the common-law counts. Again, the majority cites no authority in support of this conclusion. Yet, the trial court’s order, which provided that the dismissal was "without prejudice,” is certainly a reservation of "the plaintiff’s right to maintain the second action.” (Airtite, 265 Ill. App. 3d at 219.) I also note that in Rein I, this court stated, "[t]he plaintiffs obtained a valid voluntary dismissal of the remaining counts of their complaints.” (Emphasis added.) Rein, 230 Ill. App. 3d at 14-15.
None of the cases relied on by the majority holds that res judicata or claim splitting bars a plaintiff from refiling a cause of action or a part thereof that was voluntarily dismissed pursuant to section 2 — 1009. Moreover, in Best Coin-Op, Inc. v. Paul F. Ilg Supply Co., the court stated that even if plaintiff’s actions there could be termed claim splitting, nonetheless the rule against splitting causes of action would be relaxed where it would be inequitable to apply the rule. Best Coin-Op., 189 Ill. App. 3d at 659.
In this case, it would be inequitable to uphold the dismissal of plaintiffs’ common-law claims under res judicata or claim splitting. Plaintiffs’ voluntary dismissal without prejudice was pursuant to a section of the Code of Civil Procedure; there was no objection by the defendants to this procedure. Even this court acknowledged that it was a valid voluntary dismissal. The majority has cited no case in its opinion in which a plaintiff has been denied the right to refile an action, properly dismissed pursuant to section 2 — 1009, on the basis of either res judicata or claim splitting.
As a practical note, there is no doubt many attorneys have utilized the voluntary dismissal provisions of section 2 — 1009, believing they have preserved their clients’ rights to refile their cases. Under the majority view expressed in this case, such attorneys, unwittingly, of course, are now subject to having their clients’ cases dismissed and themselves open to malpractice claims. While the case at bar involves only a portion of a cause of action, taken to its logical conclusion, the majority’s reasoning would render any timely refiling following a proper voluntary dismissal subject to the defense of res judicata, since the matter could have been resolved the first time the case was filed.
In this case, the cure is more harmful than the disease itself. I therefore dissent.