dissenting:
I respectfully dissent from the majority’s denial of plaintiffs’ petition for rehearing for the reasons stated in my original dissent, as well as the points raised by plaintiffs. As noted in the original dissent and in plaintiffs’ petition for rehearing, the majority depends entirely on the flawed rationale of Rein v. David A. Noyes & Co., 172 Ill. 2d 325 (1996). In its reliance on Rein, the majority misapprehends and confuses the doctrine of res judicata with the rule against claim-splitting. Additionally, the majority has overlooked the express-reservation exception to res judicata set forth in section 26 of the Restatement (Second) of Judgments.
I also agree with plaintiffs that the majority misapprehends and overlooks the distinction between this case and Rein, and that the rationale of Rein is also flawed because it fails to distinguish between two different factual situations for purposes of res judicata and the rule against improper claim-splitting. In Rein, the plaintiffs asserted two different theories of recovery. One was involuntarily dismissed, and the plaintiffs voluntarily dismissed the other to appeal the involuntary dismissal order. On appeal, the involuntary dismissal was upheld. In that situation, both res judicata and the rule against improper claim-splitting properly barred relitigation of the voluntarily dismissed claim because the plaintiffs litigated the involuntarily dismissed claim to a final judgment before the appellate court. The plaintiffs in Rein could have presented both of their theories of recovery at the same time and then appealed the adverse ruling, but instead chose to abandon their voluntarily dismissed claim to appeal immediately the involuntarily dismissed claim.
The situation in this case is entirely distinguishable because the plaintiffs never split their cause of action. Here, the plaintiffs raised two different theories of recovery. The negligence count was involuntarily dismissed, and the willful and wanton claim was later voluntarily dismissed “without prejudice.” When the negligence count was dismissed, the willful and wanton claim survived and was still a viable claim. As the United States Supreme Court noted in determining that an “adjudication upon the merits” is the opposite of a “dismissal without prejudice”:
“The primary meaning of ‘dismissal without prejudice,’ we think, is dismissal without barring the plaintiff from returning later, to the same court, with the same underlying claim. That will also ordinarily (though not always) have the consequence of not barring the claim from other courts, but its primary meaning relates to the dismissing court itself. Thus, Black’s Law Dictionary (7th ed. 1999) defines ‘dismissed without prejudice’ as ‘removed from the court’s docket in such a way that the plaintiff may refile the same suit on the same claim,’ [citation], and defines ‘dismissal without prejudice’ as ‘[a] dismissal that does not bar the plaintiff from refiling the lawsuit within the applicable limitations period,’ [citation].” (Emphasis in original.) Semtek International Inc. v. Lockheed Martin Corp., 531 U.S. 497, 505-06, 149 L. Ed. 2d 32, 41, 121 S. Ct. 1021, 1027 (2001).
At the time plaintiffs voluntarily dismissed their willful and wanton claim, it was still viable. The effect of their voluntary dismissal was to remove the claim from the court’s active docket, although they could still refile the same claim within the applicable limitations period. Following the voluntary dismissal of the willful and wanton claim, there was no appeal from the plaintiffs’ involuntary dismissal of the negligence claim in this case. This situation simply does not fall within the doctrine of res judicata or the rule against improper claim-splitting.
We are in agreement that a plaintiff must assert all claims arising from the same transactional setting in one lawsuit. If all claims are not initially brought together, the plaintiff will have split the cause of action and will be barred from raising not only what was already raised and decided, but also what might have been. See Restatement (Second) of Judgments §§ 24(1), 25 (1982). This rule is clearly inapplicable in this case because plaintiffs brought all of their claims in their original lawsuit.
Moreover, there is no dispute that res judicata and the rule against claim-splitting is violated when a plaintiff voluntarily dismisses a claim, proceeds to litigate on the remaining claims, and then refiles the voluntarily dismissed claim in a second action. In effect, that is what happened in Rein when the plaintiffs voluntarily dismissed their second claim so they could appeal the involuntary dismissal of their first claim.
As noted in the original dissent, this court has adopted section 26(1) of the Restatement (Second) of Judgments. Subsection (b) of that section provides that claim preclusion based on claim-splitting does not apply when the court in the first action expressly reserves the plaintiffs right to maintain the second action. The comments to section 26(l)(b) establish that “[a] determination by the court that its judgment is ‘without prejudice’ (or words to that effect)” ordinarily acts as an express reservation of the voluntarily dismissed claim. Thus, when the trial court in this case granted plaintiffs’ motion to dismiss voluntarily the willful and wanton claim without prejudice, it expressly reserved that claim under section 26(1) (b). The majority offers no justification for ignoring this application of section 26(1) (b).
In this case, the trial court granted the plaintiffs’ “routine” motion to dismiss voluntarily their remaining willful and wanton claim “without prejudice” when the attorney representing them died on the eve of trial. As plaintiffs aptly note, defendants did not object to this voluntary dismissal in Hudson I. If defendants felt they would be prejudiced by the court’s express reservation of plaintiffs’ right to refile by dismissing the claim “without prejudice,” then they should have objected at the time the order was entered, allowing plaintiffs to withdraw their motion. If anything, forfeiture should bar defendants from now challenging plaintiffs’ refiling of a claim that the trial court expressly reserved by dismissing it “without prejudice” and without objection. Defendants’ silence in acquiescing to the voluntary dismissal should bar the defendants’ stale objection to the refiled suit. Additionally it does not appear that defendants were prejudiced by plaintiffs’ voluntary dismissal and refiling because any discovery previously undertaken and prior discovery orders in the voluntarily dismissed case are to be considered in resolving discovery issues in the second case. 210 Ill. 2d R. 219(e).
What distinguishes this case from Rein are the events that occurred after the plaintiffs voluntarily dismissed their remaining claims. As plaintiffs explain, in contrast to Rein, the interim period between the voluntary dismissal in Hudson I and the subsequent filing in Hudson II was one of inactivity — “a hiatus, but never a detour, on the path from point A to point B.” Although the plaintiffs in both Rein and this case initially had a right to refile their voluntarily dismissed claims under section 26(1)(b) of the Restatement (Second) of Judgments, the plaintiffs in Rein abrogated their right by continuing to litigate their involuntarily dismissed count, thus improperly splitting their claims.
For the foregoing reasons, I respectfully dissent from the denial of plaintiffs’ petition for rehearing.
JUSTICE FITZGERALD joins in this dissent.