Pedigo v. Rosenthal

2020 IL App (4th) 190057-U

• Court: Appellate Court of Illinois
• Decided: May 19, 2020
• Docket: 4-19-0057
• Status: Unpublished

Opinion

FILED NOTICE 2020 IL App (4th) 190057-U May 19, 2020 This order was filed under Supreme Court Rule 23 and may not be cited Carla Bender as precedent by any party except in NO. 4-19-0057 4th District Appellate the limited circumstances allowed Court, IL under Rule 23(e)(1). IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

DANNY PEDIGO, WANDA PEDIGO, TONY ) Appeal from the CAPRANICA, and LINDA CAPRANICA, ) Circuit Court of Plaintiffs-Appellants, ) Sangamon County v. ) No. 13MR975 WAYNE ROSENTHAL, in His Official Capacity as ) Director of Natural Resources, ) Honorable Defendant-Appellee. ) Brian T. Otwell, ) Judge Presiding.

JUSTICE KNECHT delivered the judgment of the court. Presiding Justice Steigmann and Justice Holder White concurred in the judgment.

ORDER ¶1 Held: The appellate court affirmed, concluding the trial court properly granted the Department’s motion to dismiss where plaintiffs’ claims were barred by res judicata.

¶2 Plaintiffs, Danny Pedigo, Wanda Pedigo, Tony Capranica, and Linda Capranica,

brought a complaint in mandamus against defendant, Wayne Rosenthal, in his official capacity

as Director of the Illinois Department of Natural Resources (Department), to compel eminent

domain proceedings to determine the amount of compensation to which plaintiffs are entitled for

the Department’s taking of certain parcels of property for public use in the construction of a bike

trail on an old railroad right of way. Despite the caption of the complaint as one against

Rosenthal, the complaint makes no allegations against him either individually or as director of the Department but only makes allegations against the Department and asks for relief requesting

Rosenthal be ordered to institute eminent domain proceedings.

¶3 The Department filed a motion to dismiss the complaint, arguing plaintiffs’

complaint was barred by the doctrine of res judicata, and the trial court granted the motion to

dismiss. We affirm the trial court’s judgment granting defendant’s motion to dismiss.

¶4 I. BACKGROUND

¶5 The origins of this dispute can be traced to February 6, 2001, when the

Department filed a complaint for condemnation proceedings against plaintiffs. The Department

sought fee simple title to plaintiffs’ property for the acquisition, development, and construction

of the Chatham Trail Bikeway, a seven-mile bike trail from Chatham to Springfield. The trial

court found the whole of the property to be condemned was only a very small amount of land

constituting 0.9 acres, of which the Department was bringing proceedings to acquire title to only

0.147 acres. On appeal, this court found the trial court erred and the 0.9 acre parcel was really a

part of a whole property of 58.89 acres. We reversed and remanded for the trial court to assess

damages caused to the remainder of plaintiffs’ 58.89 acres. Illinois Department of Natural

Resources v. Pedigo, 348 Ill. App. 3d 1044, 1050, 811 N.E.2d 761, 766-67 (2004). Upon

remand, a jury awarded damages of $25,000 to plaintiffs for the value of the 0.147 acres of land

taken and the damage to the remaining 58.89 acres. This amount was affirmed on appeal.

Department of Natural Resources, State of Illinois v. Pedigo, No. 4-06-0259 (Apr. 18, 2007)

(unpublished order under Illinois Supreme Court Rule 23).

¶6 A. Sangamon County case No. 07-MR-561

¶7 In October 2007, plaintiffs filed a five-count complaint for mandamus. Plaintiffs

alleged the Department (1) took the remainder of the 0.9 acre portion of plaintiffs’ property as a

-2- drainage ditch for the bike trail; (2) allowed the construction of the bike trail without provision

for either of two farm crossing easements over the bike trail; (3) allowed the construction of the

bike trail without allowing plaintiffs their right of way to cross at convenient places; (4) took

(a) their right to natural drainage to their land, (b) their right to have no damage to their land, and

(c) the benefit and advantage of having a railway on a strip of their land; and (5) denied them the

privilege of using part of a strip of their land for roadway purposes at the entrance to their

property. In March 2008, plaintiffs filed an amended complaint for mandamus relief and the

Department filed a motion to dismiss, which the trial court granted. Plaintiffs appealed.

¶8 In January 2013, this court affirmed the trial court’s judgment, finding “plaintiffs’

allegations of damages they suffered, which did not claim actual physical takings of property, did

not establish a right to eminent domain proceedings in the circuit court and were required to be

brought in the Court of Claims.” We further found “[s]everal, if not all, of plaintiffs’ counts in

their complaint did not set forth enough facts for any relief to be considered or granted.” Pedigo

v. Flood, 2013 IL App (4th) 120023-U, ¶¶ 24-25.

¶9 B. Current Proceedings

¶ 10 In November 2013, plaintiffs initiated this suit with the filing of a complaint in

mandamus alleging the construction of the Chatham Trail Bikeway was not limited to the 0.147

acres taken by the Department but included all of the land and property rights pertaining to

plaintiffs’ 0.9 acre parcel. Plaintiffs sought an order directing the current director of the

Department to institute eminent domain proceedings.

¶ 11 In January 2014, the Department filed a motion to dismiss plaintiffs’ complaint

pursuant to section 2-619 of the Code of Civil Procedure (Code) (735 ILCS 5/2-619 (West

2012)) and a memorandum in support of its motion. The Department argued plaintiffs’ complaint

-3- was barred by res judicata as the complaint presented identical claims which were previously

adjudicated. The Department further argued plaintiffs’ attempt to allege new facts were similarly

barred by res judicata as plaintiffs had an opportunity to raise those allegations in prior

proceedings.

¶ 12 In January 2017, the trial court granted the Department’s motion to dismiss,

finding the allegations in plaintiffs’ mandamus complaint “barred by the doctrine of

res judicata.” Plaintiffs filed a motion to reconsider. In May 2017, the trial court granted

plaintiffs’ motion and allowed plaintiffs leave to file an amended complaint in mandamus.

¶ 13 On September 1, 2017, plaintiffs filed a second amended complaint in mandamus.

Plaintiffs alleged the Department physically took a 0.287 acre parcel (Area J) located within

plaintiffs’ aforementioned 0.9 acre parcel without payment of just compensation. Plaintiffs

described the Area J parcel as consisting of land beyond the 0.147 acre parcel acquired by the

Department. Further, as a result of the taking, plaintiffs alleged (1) the substantial impairment or

loss of plaintiffs’ previously existing right to cross the public bike path at convenient places,

(2) the physical taking of access to a public roadway and to remaining land of the plaintiffs, and

(3) the right to use a portion of a strip of land at the entrance of plaintiffs’ property for roadway

purposes.

¶ 14 On September 6, 2017, the Department filed a motion to dismiss plaintiffs’

second amended complaint for mandamus relief. The motion and memorandum in support of the

motion adopted the allegations of the Department’s previously filed motion to dismiss and

maintained plaintiffs’ claims were barred by res judicata. In December 2018, the trial court

granted the Department’s motion to dismiss plaintiffs’ complaint, finding “[i]t *** clear that

many of the claims raised in the Complaint were indeed raised and decided in connection with

-4- those matters.” The court further found that “to the extent that claims regarding the land

comprising Area J [were] not previously adjudicated, the claims regarding that parcel could have

been raised in the Plaintiffs’ complaint filed in October, 2007.” The court found the claims “with

respect to Area J appear to allege a damage to property rather than a taking.”

¶ 15 This appeal followed.

¶ 16 II. ANALYSIS

¶ 17 On appeal, plaintiffs argue the trial court erred in granting the Department’s

motion to dismiss their second amended complaint in mandamus based on res judicata. The

Department maintains the court’s decision was proper and contends that the instant cause arises

out of the same core of operative facts as plaintiffs’ complaint in Sangamon County case No. 07-

MR-561. Orders dismissing an action pursuant to either section 2-615 or section 2-619 of the

Code are reviewed de novo. Thurman v. Champaign Park District, 2011 IL App (4th) 101024,

¶ 7, 960 N.E.2d 18.

¶ 18 “Under the doctrine of res judicata, a final judgment on the merits rendered by a

court of competent jurisdiction acts as a bar to a subsequent suit between the parties involving

the same cause of action.” River Park, Inc. v. Highland Park, 184 Ill. 2d 290, 302, 703 N.E.2d

883, 889 (1998).

“ ‘The purpose of res judicata is to promote judicial economy by requiring parties

to litigate, in one case, all rights arising out of the same set of operative facts and

also [to] prevent[ ] the unjust burden that would result if a party could be forced to

relitigate what is essentially the same case.’ ” Id. at 319 (quoting Henstein v.

Buschbach, 248 Ill. App. 3d 1010, 1015-16, 618 N.E.2d 1042, 1046 (1993)).

-5- ¶ 19 It is well established that res judicata bars not only matters that were decided in

the first action, but all matters that could have been decided in that action. Id. at 302.

“For the doctrine of res judicata to apply, the following three requirements must

be satisfied: (1) there was a final judgment on the merits rendered by a court of

competent jurisdiction, (2) there is an identity of cause of action, and (3) there is

an identity of parties or their privies.” Id. (citing Downing v. Chicago Transit

Authority, 162 Ill. 2d 70, 73-74, 642 N.E.2d 456, 458 (1994)).

We analyze the three requirements below.

¶ 20 First, we analyze whether a final judgment on the merits was entered in plaintiffs’

prior case. A judgment is final when it terminates the litigation and fixes absolutely the rights of

the parties, leaving only enforcement of the judgment. A & R Janitorial v. Pepper Construction

Co., 2018 IL 123220, ¶ 17, 124 N.E.3d 962. “For purposes of res judicata, a judgment is not

final until the possibility of appellate review has been exhausted.” (Internal quotation marks

omitted.) Dookeran v. County of Cook, 2013 IL App (1st) 111095, ¶ 18, 987 N.E.2d 826.

¶ 21 A final judgment on the merits was entered in Sangamon County case No. 07-

MR-561. On April 27, 2011, the trial court granted the Department’s motion to dismiss

plaintiffs’ complaint in mandamus. See Pedigo, 2013 IL App (4th) 120023-U, ¶ 12. Plaintiffs

appealed and in January 2013, this court affirmed the trial court’s judgment. Id. ¶ 28. In May

2013, the Illinois Supreme Court denied plaintiffs’ petition for leave to appeal. Thus, we find the

first requirement for applying res judicata met where a final judgment on the merits was entered

in plaintiffs’ prior case.

¶ 22 Second, we analyze whether there is an identity between plaintiffs’ present cause

of action and their cause of action in Sangamon County case No. 07-MR-561. “A cause of action

-6- is defined by the facts which give a plaintiff a right to relief.” Rein v. David A. Noyes & Co., 172

Ill. 2d 325, 338, 665 N.E.2d 1199, 1206 (1996). In determining whether actions are the same for

res judicata purposes, Illinois courts apply the transactional test. River Park, Inc., 184 Ill. 2d at

310-11. Under this approach, “separate claims will be considered the same cause of action for

purposes of res judicata if they arise from a single group of operative facts, regardless of

whether they assert different theories of relief.” Id. at 311.

¶ 23 Plaintiffs’ present cause of action is based on the same operative facts as

plaintiffs’ cause of action in their prior case. In Sangamon County case No. 07-MR-561,

plaintiffs sought mandamus relief, arguing on appeal the trial court should not have granted the

Department’s motion to dismiss because the Department (1) took the remainder of the 0.9 acre

portion of their property as a drainage ditch for the Chatham Trail Bikeway, (2) allowed the

construction of the bikeway without provision for two farm crossings, (3) allowed the

construction of the bikeway without allowing plaintiffs their right of way to cross at convenient

places, and (4) took plaintiffs’ privilege to use a strip of land at the entrance to their property for

roadway purposes by allowing the construction of the bikeway. See Pedigo, 2013 IL App (4th)

120023-U, ¶¶ 8-10.

¶ 24 Here, as in Sangamon County case No. 07-MR-561, plaintiffs again sought

mandamus relief and argued (1) major portions of Area J, a 0.287 acre portion within plaintiffs’

0.9 acre parcel, consisted of either the slope or drainage course of the Chatham Trail Bikeway,

(2) portions of vegetation in Area J were caused to be “sprayed and killed,” (3) the physical

taking of two farm crossings, (4) substantial loss or impairment of plaintiffs’ right to cross the

bikeway at convenient places, and (5) the Department took plaintiffs’ right to use a strip of land

at the entrance of their property “for roadway purposes.”

-7- ¶ 25 We find plaintiffs’ present cause of action is based on the same cause of action in

Sangamon County case No. 07-MR-561, where the causes of action arise from the same core of

operative facts. Like Sangamon County case No. 07-MR-561, plaintiffs’ present cause of action

sought to compel eminent domain proceedings based on the same alleged takings by the

Department of the same property and related property rights. We find the second requirement for

applying res judicata was met where there is an identity of cause of action between plaintiffs’

present cause of action and plaintiffs’ cause of action in plaintiffs’ prior case.

¶ 26 Nonetheless, plaintiffs contend they were unable to assert a physical taking in

Sangamon County case No. 07-MR-561, thus barring application of res judicata, because the

Department was free to abandon the taking up until it opened the bikeway to the public on

October 25, 2009, and plaintiffs were unaware of the bikeway’s opening until “approximately

July 4, 2013.” We disagree. Plaintiffs offer no reason for the delay other than being unaware of

the bikeway’s opening before reading about it in a newspaper article in July 2013. Nothing

precluded plaintiffs from discovering those facts sooner. Whether plaintiffs were entitled to

eminent domain proceedings for the taking and damaging of their property due to the

construction of the Chatham Trail Bikeway was an element of the cause of action in Sangamon

County case No. 07-MR-561. As the Department points out, prior to the trial court’s dismissal of

the matter on April 27, 2011, plaintiffs could have investigated the property and sought to amend

their complaint and litigated the issue. For whatever reason, plaintiffs elected not to do so.

Permitting them to proceed on that basis now would amount to a second bite at the apple. See

Arvia v. Madigan, 209 Ill. 2d 520, 534, 809 N.E.2d 88, 98 (2004) (“[R]es judicata prevents a

party from taking two bites out of the same apple.”).

-8- ¶ 27 As to the third element, the parties are the same and there is no dispute over

whether there is an identity of parties or their privies. Because all requirements are met, we find

plaintiffs’ claims barred by res judicata. The trial court properly granted the Department’s

motion to dismiss plaintiffs’ second amended complaint for mandamus relief.

¶ 28 III. CONCLUSION

¶ 29 We affirm the trial court’s judgment.

¶ 30 Affirmed.

-9-