THIRD DIVISION April 28, 2010
No. 1-09-2233
WILLIAM J. GREEN, as Special Administrator ) APPEAL FROM THE of the Estate of Frankie Green, Deceased, ) CIRCUIT COURT OF and WILLIAM F. GREEN, Individually, ) COOK COUNTY Plaintiffs-Appellants, ) ) v. ) ) NORTHWEST COMMUNITY HOSPITAL ) No. 08 L 2950 and NORTHWEST COMMUNITY ) HEALTHCARE, ) Defendants-Appellees ) ) (Adam T. Cios, and Emergency ) HONORABLE Care Group of Northwest, S.C., ) RONALD S. DAVIS, Defendants). ) JUDGE PRESIDING.
JUSTICE STEELE delivered the opinion of the court:
Plaintiffs William J. Green, as special administrator for the estate of Frankie Green, and
William F. Green, individually (Greens), appeal an order of the circuit court of Cook County
dismissing their claims against defendants Northwest Community Hospital, individually and doing
business as Northwest Community Healthcare (Northwest), in a medical malpractice case.
Defendants Adam T. Cios, M.D., and Emergency Healthcare Group of Northwest, S.C., are not
parties to this appeal. For the following reasons, we reverse and remand the case for further
proceedings.
BACKGROUND
The record on appeal discloses the following facts. On April 15, 2004, the Greens filed
their initial complaint against Northwest and Dr. Cios. The Greens' initial complaint claimed No. 1-09-2233
medical negligence in the treatment of William F. Green's wife; wrongful death; survival; funeral
and burial expenses; and spoliation of evidence. All of the counts related to the care of Frankie
Green at Northwest on November 17, 2003.
On April 3, 2006, the circuit court entered summary judgment in favor of Northwest on
counts V through VII of the Greens' third amended complaint, which alleged wrongful death, loss
of consortium and survival claims, respectively. The circuit court's order provided that there was
no just reason to delay enforcement or appeal of the order pursuant to Illinois Supreme Court
Rule 304(a) (210 Ill. 2d R. 304(a)). On August 20, 2007, the circuit court entered summary
judgment in favor of Northwest on counts IX and X of the Greens' fifth amended complaint,
which alleged intentional infliction of emotional distress and spoliation of evidence, respectively.
The Greens' case was set for trial on October 24, 2007. On October 29, 2007, the Greens
moved to voluntarily dismiss the case pursuant to section 2-1009 of the Illinois Code of Civil
Procedure (Code) (735 ILCS 5/2-1009 (West 2006)). The trial court granted the Greens' motion
over Northwest's objection. The trial court order provides that "[t]he plaintiff is granted leave to
voluntarily dismiss with leave to reinstate as a matter of right."
The Greens refiled their case on March 17, 2008. The Greens' 10-count complaint
contained wrongful death, survival, loss of consortium, consumer fraud and healthcare fraud
claims against Northwest regarding the care of Frankie Green at Northwest on November 17,
2003.
On August 19, 2008, Northwest moved to dismiss the aforesaid five counts pursuant to
section 2-619 of the Code (735 ILCS 5/2-619 (West 2006)), arguing that they were barred by the
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doctrine of res judicata. On January 16, 2009, the circuit court entered an order dismissing the
wrongful death, survival, and loss of consortium claims. Both parties moved for reconsideration
of the order. On May 28, 2009, the circuit court granted Northwest's motion to reconsider,
entering an order additionally dismissing the Greens' consumer fraud and healthcare fraud claims
against Northwest. On July 29, 2009, the circuit court granted Northwest's motion to clarify,
finding no just reason to delay enforcement or appeal of the order. 210 Ill. 2d R. 304(a). The
Greens filed a timely notice of appeal to this court.
DISCUSSION
The issue on appeal is whether the trial court erred in dismissing the claims against
Northwest under section 2-619 of the Code. The purpose of a section 2-619 motion is to dispose
of issues of law and easily proved issues of fact early in the litigation. O'Casek v. Children's
Home & Aid Society, 229 Ill. 2d 421, 436, 892 N.E.2d 994, 1004 (2008). A court's dismissal of
a complaint under section 2-619 motion is reviewed de novo. O'Casek, 229 Ill. 2d at 436, 892
N.E.2d at 1004.
One ground for dismissal in section 2-619 of the Code is that a prior judgment bars the
plaintiff's cause of action, i.e., that the prior judgment has res judicata effect in the subsequent
lawsuit. 735 ILCS 5/2-619(a)(4) (West 2006). Res judicata is an equitable doctrine designed to
prevent multiple lawsuits between the same parties where the facts and issues are the same.
Murneigh v. Gainer, 177 Ill. 2d 287, 299, 685 N.E.2d 1357, 1363 (1997). Under the doctrine of
res judicata, a final judgment on the merits rendered by a court of competent jurisdiction bars any
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subsequent actions between the same parties or their privies on the same cause of action. Rein v.
David A. Noyes & Co., 172 Ill. 2d 325, 334, 665 N.E.2d 1199, 1204 (1996).
Illinois courts also generally follow a rule against claim-splitting. Best Coin-Op, Inc. v.
Paul F. Ilg Supply Co., 189 Ill. App. 3d 638, 657, 545 N.E.2d 481, 493 (1989). Under this rule,
where a cause of action is in its nature entire and indivisible, a plaintiff cannot divide it in order to
maintain separate lawsuits. Best Coin-Op, 189 Ill. App. 3d at 657, 545 N.E.2d at 493. A plaintiff
is not permitted to sue for part of a claim in one action and then sue for the remainder in another
action. Rein, 172 Ill. 2d at 340, 665 N.E.2d at 1206. Instead, a plaintiff must assert all the
grounds of recovery he or she may have against the defendant arising from a single cause of
action in one lawsuit. Handley v. Unarco Industries, Inc., 124 Ill. App. 3d 56, 66, 463 N.E.2d
1011, 1019 (1984); see also Morris v. Union Oil Co. of California, 96 Ill. App. 3d 148, 154, 421
N.E.2d 278, 283 (1981) (a party must set out in his pleadings all of the grounds of recovery he
may have). A plaintiff cannot preserve the right to bring a second action after loss of the first by
limiting the theories of recovery alleged by the pleadings in the first action. Best Coin-Op, 189 Ill.
App. 3d at 657, 545 N.E.2d at 493.
In Hudson v. City of Chicago, 228 Ill. 2d 462, 889 N.E.2d 210 (2008), the Illinois
Supreme Court held that a plaintiff engages in claim-splitting if that plaintiff voluntarily dismisses
a claim pursuant to section 2-1009 of the Code after another part of the cause of action has gone
to final judgment and subsequently refiles that claim. Hudson, 228 Ill. 2d at 482, 889 N.E.2d at
222. The Hudson court said that once a voluntary dismissal has been entered, the case is
terminated in its entirety and all final orders become immediately appealable. Hudson, 228 Ill. 2d
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THIRD DIVISION April 28, 2010
No. 1-09-2233
WILLIAM J. GREEN, as Special Administrator ) APPEAL FROM THE of the Estate of Frankie Green, Deceased, ) CIRCUIT COURT OF and WILLIAM F. GREEN, Individually, ) COOK COUNTY Plaintiffs-Appellants, ) ) v. ) ) NORTHWEST COMMUNITY HOSPITAL ) No. 08 L 2950 and NORTHWEST COMMUNITY ) HEALTHCARE, ) Defendants-Appellees ) ) (Adam T. Cios, and Emergency ) HONORABLE Care Group of Northwest, S.C., ) RONALD S. DAVIS, Defendants). ) JUDGE PRESIDING.
JUSTICE STEELE delivered the opinion of the court:
Plaintiffs William J. Green, as special administrator for the estate of Frankie Green, and
William F. Green, individually (Greens), appeal an order of the circuit court of Cook County
dismissing their claims against defendants Northwest Community Hospital, individually and doing
business as Northwest Community Healthcare (Northwest), in a medical malpractice case.
Defendants Adam T. Cios, M.D., and Emergency Healthcare Group of Northwest, S.C., are not
parties to this appeal. For the following reasons, we reverse and remand the case for further
proceedings.
BACKGROUND
The record on appeal discloses the following facts. On April 15, 2004, the Greens filed
their initial complaint against Northwest and Dr. Cios. The Greens' initial complaint claimed No. 1-09-2233
medical negligence in the treatment of William F. Green's wife; wrongful death; survival; funeral
and burial expenses; and spoliation of evidence. All of the counts related to the care of Frankie
Green at Northwest on November 17, 2003.
On April 3, 2006, the circuit court entered summary judgment in favor of Northwest on
counts V through VII of the Greens' third amended complaint, which alleged wrongful death, loss
of consortium and survival claims, respectively. The circuit court's order provided that there was
no just reason to delay enforcement or appeal of the order pursuant to Illinois Supreme Court
Rule 304(a) (210 Ill. 2d R. 304(a)). On August 20, 2007, the circuit court entered summary
judgment in favor of Northwest on counts IX and X of the Greens' fifth amended complaint,
which alleged intentional infliction of emotional distress and spoliation of evidence, respectively.
The Greens' case was set for trial on October 24, 2007. On October 29, 2007, the Greens
moved to voluntarily dismiss the case pursuant to section 2-1009 of the Illinois Code of Civil
Procedure (Code) (735 ILCS 5/2-1009 (West 2006)). The trial court granted the Greens' motion
over Northwest's objection. The trial court order provides that "[t]he plaintiff is granted leave to
voluntarily dismiss with leave to reinstate as a matter of right."
The Greens refiled their case on March 17, 2008. The Greens' 10-count complaint
contained wrongful death, survival, loss of consortium, consumer fraud and healthcare fraud
claims against Northwest regarding the care of Frankie Green at Northwest on November 17,
2003.
On August 19, 2008, Northwest moved to dismiss the aforesaid five counts pursuant to
section 2-619 of the Code (735 ILCS 5/2-619 (West 2006)), arguing that they were barred by the
-2- No. 1-09-2233
doctrine of res judicata. On January 16, 2009, the circuit court entered an order dismissing the
wrongful death, survival, and loss of consortium claims. Both parties moved for reconsideration
of the order. On May 28, 2009, the circuit court granted Northwest's motion to reconsider,
entering an order additionally dismissing the Greens' consumer fraud and healthcare fraud claims
against Northwest. On July 29, 2009, the circuit court granted Northwest's motion to clarify,
finding no just reason to delay enforcement or appeal of the order. 210 Ill. 2d R. 304(a). The
Greens filed a timely notice of appeal to this court.
DISCUSSION
The issue on appeal is whether the trial court erred in dismissing the claims against
Northwest under section 2-619 of the Code. The purpose of a section 2-619 motion is to dispose
of issues of law and easily proved issues of fact early in the litigation. O'Casek v. Children's
Home & Aid Society, 229 Ill. 2d 421, 436, 892 N.E.2d 994, 1004 (2008). A court's dismissal of
a complaint under section 2-619 motion is reviewed de novo. O'Casek, 229 Ill. 2d at 436, 892
N.E.2d at 1004.
One ground for dismissal in section 2-619 of the Code is that a prior judgment bars the
plaintiff's cause of action, i.e., that the prior judgment has res judicata effect in the subsequent
lawsuit. 735 ILCS 5/2-619(a)(4) (West 2006). Res judicata is an equitable doctrine designed to
prevent multiple lawsuits between the same parties where the facts and issues are the same.
Murneigh v. Gainer, 177 Ill. 2d 287, 299, 685 N.E.2d 1357, 1363 (1997). Under the doctrine of
res judicata, a final judgment on the merits rendered by a court of competent jurisdiction bars any
-3- No. 1-09-2233
subsequent actions between the same parties or their privies on the same cause of action. Rein v.
David A. Noyes & Co., 172 Ill. 2d 325, 334, 665 N.E.2d 1199, 1204 (1996).
Illinois courts also generally follow a rule against claim-splitting. Best Coin-Op, Inc. v.
Paul F. Ilg Supply Co., 189 Ill. App. 3d 638, 657, 545 N.E.2d 481, 493 (1989). Under this rule,
where a cause of action is in its nature entire and indivisible, a plaintiff cannot divide it in order to
maintain separate lawsuits. Best Coin-Op, 189 Ill. App. 3d at 657, 545 N.E.2d at 493. A plaintiff
is not permitted to sue for part of a claim in one action and then sue for the remainder in another
action. Rein, 172 Ill. 2d at 340, 665 N.E.2d at 1206. Instead, a plaintiff must assert all the
grounds of recovery he or she may have against the defendant arising from a single cause of
action in one lawsuit. Handley v. Unarco Industries, Inc., 124 Ill. App. 3d 56, 66, 463 N.E.2d
1011, 1019 (1984); see also Morris v. Union Oil Co. of California, 96 Ill. App. 3d 148, 154, 421
N.E.2d 278, 283 (1981) (a party must set out in his pleadings all of the grounds of recovery he
may have). A plaintiff cannot preserve the right to bring a second action after loss of the first by
limiting the theories of recovery alleged by the pleadings in the first action. Best Coin-Op, 189 Ill.
App. 3d at 657, 545 N.E.2d at 493.
In Hudson v. City of Chicago, 228 Ill. 2d 462, 889 N.E.2d 210 (2008), the Illinois
Supreme Court held that a plaintiff engages in claim-splitting if that plaintiff voluntarily dismisses
a claim pursuant to section 2-1009 of the Code after another part of the cause of action has gone
to final judgment and subsequently refiles that claim. Hudson, 228 Ill. 2d at 482, 889 N.E.2d at
222. The Hudson court said that once a voluntary dismissal has been entered, the case is
terminated in its entirety and all final orders become immediately appealable. Hudson, 228 Ill. 2d
-4- No. 1-09-2233
at 468, 889 N.E.2d at 214, citing Dubina v. Mesirow Realty Development, Inc., 178 Ill. 2d 496,
503, 687 N.E.2d 871 (1997). In Hudson, the plaintiffs filed a complaint alleging negligence and
willful and wanton misconduct. The negligence count was dismissed. Plaintiffs subsequently
voluntarily dismissed the willful and wanton misconduct count prior to trial and refiled the count
within one year. The supreme court held that the refiled action was barred by res judicata,
because part of the original cause of action had already reached final judgment in the previous
case. Hudson, 228 Ill. 2d at 483-84, 889 N.E.2d at 223.
The Illinois Supreme Court also has adopted exceptions to the rule against claim-splitting
set forth in section 26(1) of the Restatement (Second) of Judgments (Restatement (Second) of
Judgments §26(1) (1982)). Hudson, 228 Ill. 2d at 472, 889 N.E.2d at 216. For example, res
judicata does not apply where "[t]he court in the first action has expressly reserved the plaintiff's
right to maintain the second action." Restatement (Second) of Judgments §26(1)(b), at 233
(1982). The supreme court has noted that the 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 reached final judgment in a previous action. Hudson, 228 Ill. 2d at 472 n.2, 889 N.E.2d at
216 n.2. However, after the circuit court entered the dismissal order in this case, this court ruled
that a docket sheet entry including the language "with leave to refile" clearly and unmistakably
grants leave to refile, triggering the exception to the rule against claim-splitting. Quintas v. Asset
Management Group, Inc., 395 Ill. App. 3d 324, 333, 917 N.E.2d 100, 107 (2009).
In this case, as in Hudson, the Greens voluntarily dismissed their lawsuit pursuant to
section 2-1009 of the Code after several causes of action against Northwest had reached final
-5- No. 1-09-2233
judgment, and then subsequently refiled the claims against Northwest based on the same facts and
issues.1 However, similar to Quintas, the trial court's dismissal order in the first action provides
that "[t]he plaintiff is granted leave to voluntarily dismiss with leave to reinstate as a matter of
right." Northwest asserts that Quintas "does not contain a meaningful analysis" of the issue of
whether the phrase "leave to reinstate" is sufficient to avoid the bar of res judicata. In fact, the
Quintas court specifically analyzed whether the docket entry at issue constituted an express
reservation by the trial court of plaintiffs' right to maintain the second action. Quintas, 395 Ill.
App. 3d at 333, 917 N.E.2d at 107.
Northwest argues that an order should have to contain more specific language to fall
within the exception against claim-splitting recognized in Hudson. Northwest cites Matejczyk v.
City of Chicago, 397 Ill. App. 3d 1, 10, 922 N.E.2d 24, 33 (2009), in which this court affirmed a
dismissal where there was "no indication in the record that the dismissal order was written with an
exception to claim-splitting in mind." However, in Matejczyk, the trial court order also granted a
motion to dismiss count two as barred by the statute of limitations with leave to replead count
two "should [Matejczyk] wish to do so within 28 days." Matejczyk filed a second amended
1 The Greens argue in their reply brief that the doctrine of res judicata should not apply to
the refiled case, asserting that the voluntarily dismissed claims in the first action involved a
separate set of facts from the counts that reached a final judgment. Points not argued in the
appellants' initial brief are waived and shall not be raised in the reply brief. 210 Ill. 2d R.
341(h)(7).
-6- No. 1-09-2233
complaint, but moved to voluntarily dismiss the suit the next day. Matejczyk subsequently refiled
the action that became the subject of the appeal. Matejczyk, 397 Ill. App. 3d at 3, 922 N.E.2d at
27-28. Notably, the order granting the voluntary dismissal contained no language clearly and
unmistakably also granting leave to refile the action. Thus, Matejczyk is distinguishable from this
case on its facts.
Northwest also notes that the trial court may include even more specific language
regarding res judicata in a dismissal order. See United States v. Outboard Marine Corp., 789 F.2d
497, 501-02 (7th Cir. 1986). However advisable it may be for the circuit court to include more
specific language, the issue is whether the court in the first action expressly reserved the plaintiffs'
right to maintain the second action. Here, following Quintas, the circuit court order expressly
reserved the Greens' right to refile. Thus, the trial court's voluntary dismissal order falls within
the exception to the general rule against claim-splitting.
The remaining issue is the scope and effect of such a dismissal order. We note that the
exception to the rule against claim-splitting overlaps – but is distinct from – more general
exceptions to the bar of res judicata:
"a. General. This Section enumerates the situations in which a valid and final
personal judgment for the defendant does not bar the plaintiff from bringing another action
on the same claim. It takes special note of the substantial impact of statutes and rules of
court.
There is, perhaps inevitably, some degree of overlap between the matters dealt
with in this Section and the exceptions, set forth in § 26, to the general rule against
-7- No. 1-09-2233
splitting of a 'claim.' There are, however, two important lines of distinction. First, the
present Section deals with instances in which the general rule of bar does not apply – i.e.,
instances in which the plaintiff remains entirely free to prosecute all or any part of his
claim (except as limited by the direct estoppel effect of the first judgment); Section 26, on
the other hand, deals in large part with instances in which after the first judgment the
plaintiff no longer retains the full freedom he once had--with instances of what might be
described as 'partial merger or bar.' ***
b. Effect of judgment as to issues decided. The rules of issue preclusion (see §§ 27,
28) apply to a valid and final personal judgment for the defendant even though the
judgment is one which, under this Section, does not bar another action on the same claim."
Restatement (Second) of Judgments §20, Comments a, b, at 170-71 (1982).
The exception to the rule against claim-splitting necessarily implies that the specific claims that
have already reached a final judgment remain final judgments. Moreover, as noted, the rules of
issue preclusion apply to a valid and final personal judgment, which has a direct estoppel effect,
even when a broader exception to the res judicata bar applies.
CONCLUSION
In sum, the circuit court did not err in dismissing the Greens' wrongful death, survival, and
loss of consortium claims, which reached final judgment in the first action. However, the circuit
court erred in dismissing the Greens' consumer fraud and healthcare fraud claims against
Northwest, which did not reach final judgment in the first action, because the voluntary dismissal
-8- No. 1-09-2233
order expressly reserved the Greens' right to refile a second action. For all of the aforementioned
reasons, the judgment of the circuit court of Cook County is reversed and the case is remanded
for further proceedings consistent with this opinion.
Reversed and remanded.
MURPHY, P.J., and QUINN, J., concur.
-9- No. 1-09-2233
Plea se Use REPORTER OF DECISIONS – ILLINOIS APPELLATE COURT Following (Front Sheet to be Attached to Each Case) Form: WILLIAM J. GREEN, as Special Administrator of the Estate of Frankie Green, Deceased, and WILLIAM F. GREEN, Individually, Complete TITLE Plaintiffs-Appellants, of Case v.
NORTHWEST COMMUNITY HOSPITAL and NORTHWEST COMMUNITY HEALTHCARE, Defendants-Appellees (Adam T. Cios, and Emergency Care Group of Northwest, S.C., Defendants).
No. 1-09-2233 Docket No. Appellate Court of Illinois First District, THIRD Division COURT April 28, 2010 (Give month, day and year) Opinion Filed
JUSTICES Murphy, P.J., and Quinn, J., concur
Lower Court and Trial Judge(s) in form indicated in the margin: Circuit Court of Cook County, Law Division The Honorable Ronald S. Davis , Judge Presiding. APPEAL from the Circuit Ct. of Cook County, Chancery Div. Indicate if attorney represents APPELLANTS or APPELLEES and include attorneys of counsel. Indicate the word NONE if not represented. Attorney for Plaintiffs-Appellants: Jesse V. Harris, of Chicago, IL
Dinizulu Law Group, of Chicago, IL For Yao O. Dinizulu (of Counsel) APPELLANTS, John Doe, of Chicago. Attorneys for Defendants-Appellees: Hall Prangle & Schoonveld, LLC, of Chicago, IL For Hugh C. Griffin, Laura G. Postilion, and Jacob Z. Goldstein APPELLEES, (of Counsel) Smith and Smith of Chicago, Joseph Brown, Cassiday Schade, LLP, of Chicago, IL (of Counsel) Robert H. Summers (of Counsel) Also add attorneys for third-party appellants or appellees.
-10-