Opinion
3-12-0427
06-05-2013
FELIPE J. FRANCHINI and GUADALUPE FRANCHINI, Plaintiffs-Appellants, v. KARL W. MINOR, SR.; LOIS M. MINOR; THE KARL W. MINOR, SR. LIVING TRUST; and ANY OTHER UNKNOWN OWNERS, Defendants-Appellees.
NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent
by any party except in the limited circumstances allowed by Rule 23(e)(1).
Appeal from the Circuit Court
for the 12th Judicial Circuit,
Will County, Illinois,
Appeal No. 3-12-0427
Circuit No. 11-L-913
The Honorable
Bobbi N. Petrungaro,
Judge, Presiding.
JUSTICE McDADE delivered the judgment of the court.
Justices O'Brien and Schmidt concurred in the judgment.
ORDER
¶ 1 Held: The doctrine of res judicata applies when the following criteria are met: (1) a final judgment on the merits rendered by a court of competent jurisdiction, (2) an identity of parties or their privies exists, and (3) an identity of causes of action exists. The instant case meets all three criteria. ¶ 2 Plaintiffs, Felipe J. Franchini and Guadalupe Franchini, appeal from the circuit court's order dismissing their negligence/trespass/nuisance action against defendants, Karl W. Minor, Sr., Lois M. Minor, the Karl W. Minor Living Trust and any other unknown owners. The court found plaintiffs' complaint was barred under the doctrine of res judicata. We affirm.
¶ 3 FACTS
¶ 4 Defendants are the owners of property commonly known as 795 South Larkin Avenue, Rockdale, Illinois (the Defendant Property). Defendants have operated a manufacturing plant, KWM Gutterman, Inc., on the Defendant Property since the late 1980s. In 1994, plaintiffs purchased the property to the west of the Defendant Property (the Plaintiff Property). Defendants subsequently built a retaining wall on the Defendant Property. ¶ 5 In 2006, defendants filed Case No. 06 L 424 (the Original Action) seeking to enjoin plaintiffs from excavating an area at the edge of the Plaintiff Property because the excavation was allegedly causing damage to defendants' retaining wall. Plaintiff's filed a counterclaim seeking money damages for the alleged breach of a 1990 agreed order which claimed breach resulted in flooding of the Plaintiff Property. Defendants eventually settled their complaint against plaintiffs and that complaint is not at issue on appeal. Plaintiffs' counterclaim is. ¶ 6 The original counterclaim asserted that defendants were liable for breach of contract. Specifically, the counterclaim asserted that defendants' construction of the retaining wall and/or failure to maintain a drainage swale located on the Defendant Property violated a previous agreed court order entered into by the parties on April 30, 1990. The retaining wall and/or swale allegedly "caused the wrongful diversion of water onto plaintiffs' property." Plaintiffs sought damages totaling $12,000 for loss of drywall tile, erosion of a blacktop driveway and repair or replacement of an electrical pipe. ¶ 7 Plaintiffs filed a first amended counterclaim which changed the theory of recovery to allege negligence and nuisance relating to the same factual allegations previously pled. ¶ 8 A second amended counterclaim again alleged negligence and nuisance relating to the same factual allegations previously pled. ¶ 9 Plaintiffs' third amended counterclaim changed their theory of recovery once again - this time dropping negligence and nuisance to claim breach of contract. Unlike the previous versions, the third amended counterclaim asserted two breach of contract claims: (1) it renewed the original counterclaim's allegations of breach of the agreed order and (2) it added breach of a grant of easement as a new claim. The grant of easement contained a prevailing party attorney fee provision, pursuant to which plaintiffs prayed for an award of attorney fees. ¶ 10 In regard to the easement claim, the third amended counterclaim did not allege any act or omission by defendants that was required or prohibited by the easement. Defendants filed a motion to dismiss on this basis. At the hearing on defendants' motion, the court stated: "I have this set today on the motion to dismiss counterclaim for breach of grant of easement and to strike the request for award of attorney fees." Defendant argued: "[T]he problem is that they don't allege a single fact which, if true, would be a breach of the grant of easement." Defendant further explained: "These are two separate contracts, Judge, [agreed order and grant of easement]. And there is a reason [plaintiffs] are doing this. They are trying to shoehorn in the grant of easement because it contains an attorney fee provision." Defendants argued that plaintiffs were not trying to enforce any term of the easement but were, instead, trying to enforce the agreed order, and had only asserted a conclusory claim of breach of the easement in an effort to recover attorney fees. ¶ 11 The circuit court entered an order dated August 11, 2011, dismissing plaintiffs' entire third amended counterclaim without prejudice. The order gave plaintiffs until August 22, 2011, to file a fourth amended counterclaim. Plaintiffs' counsel informed the court that he would have to confer with plaintiffs regarding whether they wished to file a fourth amended counterclaim. ¶ 12 On the scheduled trial date, August 29, 2011, the parties appeared in court. Plaintiffs had not filed a fourth amended counterclaim. The following colloquy took place between the circuit court and the parties' attorneys:
[PLAINTIFFS' ATTORNEY]: Judge, on August 11, you dismissed my clients' third amended counterclaim and gave us time to file. My clients are not ready to go forward, and I could not in good faith file a fourth amended counterclaim. So there is nothing before the Court to trial [sic].¶ 13 At the conclusion of the colloquy described above, the circuit court entered an order dated, August 29, 2011, which stated:
THE COURT: Okay. The other case is settled?
[PLAINTIFFS' ATTORNEY]: Yes.
***
THE COURT: So?
[PLAINTIFFS' ATTORNEY]: I would think the appropriate order would be a dismissal for want of prosecution.
THE COURT: I have never had this before. What is your position?
[DEFENDANTS' ATTORNEY]: Well, this is a little bit out of the
range of both of our experience then, Judge. I don't think a DWP is correct. I think what is more correct in this circumstance is probably a voluntary dismissal to the extent that anything remains of the third amended counterclaim. I mean, here we are -
THE COURT: I don't think it did. There was only [sic] - I don't think anything. I dismissed it.
[DEFENDANTS' ATTORNEY]: Well, I am not going to argue, you know, opposition to that. As I understand it, that is plaintiffs' attorney's view, that there is nothing left of it.
[PLAINTIFFS' ATTORNEY]: Correct.
[DEFENDANTS' ATTORNEY]: I suppose by that measure, you entered an order giving counter plaintiffs leave to replead. They didn't replead within that time. I suppose one view would be there is nothing to do. It is self-effectuating, but we don't want to leave it hanging out there.
THE COURT: I don't like self-effectuating because I don't know what that means. But if they haven't pled anything, then they haven't -
[PLAINTIFFS' ATTORNEY]: There is no claim pending.
THE COURT: There is no claim pending, so it would -
[PLAINTIFFS' ATTORNEY]: So the case should be dismissed for want of prosecution.
[DEFENDANTS' ATTORNEY]: Well, he is not failing to prosecute any active claim.
THE COURT: You didn't refile, though.
[DEFENDANTS' ATTORNEY]: Right. So what are you dismissing for want of prosecution? He can't fail to prosecute nothing.
[PLAINTIFFS' ATTORNEY]: 06-L-424. So it comes to an end.
THE COURT: Procedurally, does anybody have anything to show me on this?
[PLAINTIFFS' ATTORNEY]: No.
THE COURT: I have never seen this.
[PLAINTIFFS' ATTORNEY]: That was my perception of what the state of the pleadings are.
THE COURT: That would be mine as well, but I don't want to take away. If you've got something, I am happy to look at it. I have never seen this. I am sorry.
[DEFENDANTS' ATTORNEY]: Can I have five minutes?
THE COURT: Sure, sure. All right. Give me five minutes, and I will be right back. Thanks.
THE COURT: Have you had a chance to review? I guess I have question as to, do have I [sic] to...can I just say: This matter
coming before the Court for trial. No counterclaim being on file. The case is dismissed?
[PLAINTIFFS' ATTORNEY]: You could say that.
[DEFENDANTS' ATTORNEY]: And that is actually what I just came up with.
THE COURT: I was trying to ascertain. I don't know that it matters to be honest with you.
[PLAINTIFFS' ATTORNEY]: Okay.
THE COURT: I really don't. And I am trying to figure out how it could matter. Like I said, I have not seen this. Do you have any objection to me entering that sort of an order today?
[PLAINTIFFS' ATTORNEY]: No.
THE COURT: Do you have an objection to me entering that order today?
[DEFENDANTS' ATTORNEY]: No.
THE COURT: Thank you very much.
[PLAINTIFFS' ATTORNEY]: What I have proposed is, this matter coming on for trial. The counter plaintiffs are answering not ready. No fourth amended counterclaim having been filed. It is hereby ordered that this cause is dismissed.
THE COURT: Cause is dismissed. Thank you."
"This cause coming before the court for trial, the Counter-Plaintiffs answering not ready, no fourth amended counter-claim having been filed;¶ 14 On November 9, 2011, plaintiffs filed Case No, 11 L 913 (the Second Action) against defendants. The Honorable Bobbi N. Petrungaro, who had presided over the Original Action for approximately five years, also presided over the Second Action. In the complaint in the Second Action, plaintiffs asserted claims for negligence, trespass and nuisance. As described above, plaintiffs had asserted claims for negligence and nuisance in their first and second amended counterclaims in the Original Action. They had not alleged trespass. ¶ 15 As in the Original Action, plaintiffs again alleged that the defendants' construction of the retaining wall and/or failure to maintain the drainage swale on the Defendant Property caused plaintiffs' basement to flood. Plaintiffs' complaint alleged the same damages that were claimed in the earlier counterclaims. ¶ 16 Defendants filed a motion to dismiss on the grounds that the Second Action is barred under the doctrine of res judicata. On April 20, 2012, the circuit court entered an order granting defendants' motion to dismiss. Plaintiffs appeal from this order.
IT IS HEREBY ORDERED THAT this cause is dismissed."
To avoid misunderstanding, the parties will retain their party designations in the current case throughout the order.
¶ 17 ANALYSIS
¶ 18 On appeal, plaintiffs argue that the circuit court erred in granting defendants' motion to dismiss on the grounds that the doctrine of res judicata bars their complaint in the Second Action. We disagree. ¶ 19 We review de novo an order granting a motion to dismiss. A de novo review entails, independently and without deference, performing the same analysis a trial court would perform. "That is, we accept all well-pleaded facts in the complaint as true while disregarding legal or factual conclusions unsupported by allegations of fact. [Citation.] From the well-pleaded facts, we draw inferences in the plaintiff's favor whenever it would be reasonably defensible to do so." Khan v. BDO Seidman, LLP, 408 Ill. App. 3d 564, 578 (2011). ¶ 20 We begin our review by discussing the procedural overview of the orders dated August 11, 2011, and August 29, 2011. The record reveals that both the parties and the circuit court expressed confusion as to the impact of plaintiffs' failure to file a fourth amended counterclaim after the circuit court previously entered an order (August 11, 2011) dismissing plaintiffs' third amended counterclaim without prejudice. ¶ 21 In the interest of clarity, we reiterate that the third amended counterclaim contained two breach of contract claims: (1) breach of the agreed order (as in the original counterclaim), and (2) breach of a grant of easement. It appears defendants' motion to dismiss only attacked the easement claim. The circuit court, however, dismissed the entire third amended counterclaim. Plaintiffs did not object. Indeed, plaintiffs later affirmed the court's actions by insisting that there was no existing claim before the court on August 29, 2011. Thus, for purposes of this appeal we treat the order dated August 11, 2011, as an order dismissing, without prejudice, the entire counterclaim, as opposed to just the easement claim. ¶ 22 Before even discussing the substantive merits of plaintiffs' res judicata challenge in this appeal, the parties dispute the finality of the orders dated, August 11, 2011, and August 29, 2011. Defendants argue that the order dated August 29, 2011, was "an adjudication on the merits and final." Plaintiffs assert that neither of the orders was final and that the order dated August 29, 2011, was "either a dismissal for want of prosecution or a voluntary dismissal." ¶ 23 The supreme court has specifically held that "[a]n order striking or dismissing a complaint is not final until the circuit court enters an order dismissing the suit." Smith v. Central Illinois Regional Airport, 207 Ill. 2d 578, 585 (2004). An order dismissing a complaint, but granting a party the right to amend, does not constitute a final order, nor does it automatically become a final order if the complaining party fails to amend. Smith, 207 Ill. 2d at 585. In such cases, a subsequent order dismissing the suit is required. Smith, 207 Ill. 2d at 585. ¶ 24 The order dated August 11, 2011, did not dismiss the suit and therefore was not a final order. The circuit court left the suit pending for further proceedings - plaintiffs were granted leave until August 22, 2011, to file a fourth amended counterclaim. The circuit court might have allowed plaintiffs more time to amend had they sought an extension of time to do so, but they did not. Instead, plaintiffs' counsel announced on August 29, 2011, that plaintiffs were not ready to proceed and counsel could not in good faith file a fourth amended counterclaim. The trial court fashioned the dismissal order and asked both attorneys if they agreed with its entry and both stated, on the record, that they did agree. Under the particular facts of this case, we find the order dated August 29, 2011, was a final order dismissing the Original Action. ¶ 25 A "final order" has been defined as follows:
"To be final and appealable, an order must dispose of the rights of the parties, either upon the entire controversy or upon some definite and separate part of it. [Citations.] A final order for¶ 26 The order dated August 29, 2011, was final in that it terminated the litigation and disposed of the parties' rights. In coming to this conclusion, we reject plaintiffs' contention that the order was "either a dismissal for want of prosecution or a voluntary dismissal." Initially, we note that the order itself does not contain the terms "want of prosecution" or "voluntary dismissal." While we find this fact facially supports our holding, we look to the substance rather than form of the order to determine whether it represents a non-final adjudication. Pfaff v. Chrysler Corp., 155 Ill 2d 35, 63 (1992). The order must also be interpreted from the entire context in which it was entered, with reference to other parts of the record including the pleadings, motions and issues before the court and the arguments of counsel. Kiefer v. Rust-Oleum Corp., 394 Ill. App. 3d 485, 494 (2009). ¶ 27 We consider first whether the dismissal is for want of prosecution. Dismissals for want of prosecution are entered in matters where the petitioning party has failed to actively prosecute his or her claim. In re Berkos, 93 Ill. 2d 408, 413 (1982). "In the actions *** where the time for commencing an action is limited, if *** the action is dismissed for want of prosecution, *** then, whether or not the time limitation for bringing such action expires during the pendency of such action, the plaintiff *** may commence a new action within one year or within the remaining period of limitation, whichever is greater, after *** the action is dismissed for want of prosecution." 735 ILCS 5/13-217 (West 2010). ¶ 28 Because plaintiffs did not file a fourth amended counterclaim, there was no complaint or individual claim left to prosecute. Moreover, plaintiffs' counsel asserted he could not file a fourth amended counterclaim in good faith. Considering the totality of the circumstances, the dismissal was not for want of prosecution but for failure to assert a viable claim. ¶ 29 We also do not view the August 29, 2011, dismissal as a "voluntary dismissal." The requirements for a voluntary dismissal are set out in section 2-1009 of the Code of Civil Procedure (735 ILCS 5/2-1009 (West 2010)). That section provides, in pertinent part, as follows:
the purposes of appeal must terminate the litigation between the parties so that, if affirmed, the trial court has only to proceed with the execution of the judgment. [Citations.] Such an order, therefore, will finally determine, fix, and dispose of the parties' rights as to the issues made by the suit." In re Guardianship of J.D., 376 Ill. App. 3d 673, 676 (2007).
"Voluntary dismissal.¶ 30 The third amended counterclaim was dismissed on August 11, 2011, on the grounds that it did not state a viable cause of action and plaintiffs were given until August 22, 2011, to file a fourth amended counterclaim. Plaintiffs did not, at any time prior to that date, seek, orally or by written motion, a voluntary dismissal of the claims. Nor did they provide notice of their intent to do so or tender payment of costs to the defendants. ¶ 31 Instead, seven days after the time to amend had expired, plaintiffs' counsel conceded his clients were not ready to proceed and that he could not file a fourth amended counterclaim in good faith. Thus, we find that there clearly was not a voluntary dismissal and there is every indication that the dismissal order entered August 29, 2011, was a final adjudication on the merits. Considering the totality of the circumstances, the dismissal was not voluntary. ¶ 32 We find Smith, while factually distinguishable, to be quite instructional. In Smith, the dismissal order was without prejudice and the plaintiff was granted 60 days' leave to amend the complaint. The plaintiff did not amend, and instead filed a motion for voluntary dismissal before the expiration of the time allowed to amend. Smith, 207 Ill. 2d at 588-89. The supreme court found that the circuit court erred when it found that the plaintiff could not submit a motion to voluntarily dismiss his action within the 60-day period because he had not amended his complaint. Smith, 207 Ill. 2d at 589. Specifically, the court held "the granting of defendants' section 2-615 motion would be considered to be with prejudice only after the expiration of the 60-day period." Smith, 207 Ill. 2d at 588-89. The court went on to state: "Because plaintiff acted within the period of time left open for amendment, we believe his right to a voluntary dismissal was intact." Smith, 207 Ill. 2d at 589. ¶ 33 It appears from the Smith court's holding that a party loses its right to voluntarily dismiss if the party fails to seek such a dismissal within the period of time left open for amendment. If the party seeks a voluntary dismissal after the expiration of the leave to amend period, the dismissal would apparently be considered with prejudice and a final adjudication. Again, plaintiffs in the instant case did not seek to voluntarily dismiss either before or after the time left open for amendment. Viewing this fact in conjunction with plaintiffs' counsel's admissions and plaintiff's failure to conform to the statutory requirements, we find no merit in plaintiff's argument that the dismissal was voluntary. Moreover, even if plaintiffs had moved for voluntary dismissal on August 29, 2011, they would have no right to such a dismissal since their "right to a voluntary dismissal" apparently expired on August 22, 2011 - the date plaintiffs' leave to amend expired. See Smith, 207 Ill. 2d at 589. ¶ 34 We now turn to the merits of plaintiffs' contention that the circuit court erred in concluding that the Second Action was barred by res judicata. The supreme court in Rein v. David A. Noyes & Co., 172 Ill. 2d 325, 334-35 (1996) explained:
(a) The plaintiff may, at anytime before trial or hearing begins, upon notice to each party who has appeared or each such 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.
* * *
(b) Counterclaimants and third-party plaintiffs may dismiss upon the same terms and conditions as plaintiffs." 735 ILCS 5/2-1009 (West 2010).
"The doctrine of res judicata provides that a final judgment on the merits rendered by a court of competent jurisdiction bars any subsequent actions between the same parties or their privies on the same cause of action. [Citations.] The doctrine extends not only to what was actually decided in the original action, but also to¶ 35 All three requirements for res judicata are met in the present case. As to the second and third requirement, there is certainly an identity of causes of action since plaintiffs are suing defendants for negligence and nuisance in the Second Action based on the same facts that gave rise to the Original Action. Plaintiffs' initial brief concedes this point: "The plaintiffs pleaded causes of action based on the same operative facts in the instant case (Second Action) as the 06-L-424 case (Original Action) that was terminated on August 29, 2011." ¶ 36 Similarly, there is no dispute that there is an identity of parties or their privies. The basis for plaintiffs' appeal rests in the first requirement. Specifically, plaintiffs allege that the satisfaction of the second and third requirements is irrelevant because "the August 29, 2011, order was not a 'final order.' " Again, we have already held that the order dated August 29, 2011, was a final order and the dismissal contained therein was not voluntary or for want of prosecution. While we acknowledge the third amended counterclaim did not reiterate claims for negligence or nuisance and that none of plaintiffs' counterclaims alleged trespass, we emphasize that "the doctrine [of res judicata]prohibits not only those matters which were actually litigated and resolved in the prior suit, but also any matter which might have been raised in that suit to defeat or sustain the claim or demand." Rein, 172 Ill. 2d at 336. Plaintiffs' first and second amended counterclaims contained claims of negligence and nuisance. Plaintiffs voluntarily chose not raise these claims or the claim of trespass in their third amended counterclaim. Thus, under the principles of res judicata, plaintiffs were prohibited from raising them in the Second Action.
matters which could have been decided in that suit. [Citations.] For the doctrine of res judicata to apply, three requirements must be met: (1) there was a final judgment on the merits rendered by a court of competent jurisdiction; (2) there was an identity of cause of action; and (3) there was an identity of parties or their privies.
[Citation.]"
Appellate court cases have held that a judgment is "on the merits" in the sense that it may be pleaded to bar a subsequent action where it amounts to a decision concerning the rights and liabilities of the parties based on ultimate facts or facts disclosed by pleadings, evidence, or both, and on which the right of recovery depends irrespective of formal, technical, or dilatory objections or contentions. A.W. Wendell & Sons, Inc. v. Qazi, 254 Ill. App. 3d 97, 108 (1993); see also Fraley v. Boyd, 83 Ill. App. 2d 98, 102 (1967); Lytton v. Cole, 54 Ill. App. 2d 161, 175 (1964).
--------
¶ 37 CONCLUSION
¶ 38 For the foregoing reasons, we affirm the circuit court's judgment. ¶ 39 Affirmed.