Do the Costs of Voluntary Dismissal Include a Potential Malpractice Claim?
By Scott M. Hardek
Under the so-called “Savings Statue” in the Illinois Code of Civil Procedure, it is generally thought that there is an absolute right to move for a voluntary non-suit and re-file the same civil case within one year from the date of the order granting the voluntary dismissal. If a motion to dismiss at least a full count of the original complaint has been granted, however, and the order granting voluntary non-suit does not specifically reserve the right to re-file (or the defendant has not agreed or acquiesced in that re-filing), the case may be dismissed under the equitable doctrine of res judicata. Thus, the “Savings Statute” may not, in fact, save a lawyer who is unaware of the impact that a prior dismissal may have on his/her ability to maintain a re-filed action on behalf of his or her client. There are a number of issues that should be considered before bringing or defending a motion for voluntary non-suit.
The Decision in Hudson. In January of 2009, the Illinois Supreme Court in Hudson v. City of Chicago, applied the equitable doctrine of res judicata to dismiss a wrongful death case which had been re-filed within one year of an order granting a motion for voluntarily dismissal. In so doing, the Hudson Court commented that “...these legislatively created rights did not automatically immunize plaintiffs against res judicata....”
In Hudson, Plaintiff’s complaint arose out of the death of a five year-old boy from an acute exacerbation of his asthma. The boy’s mother called 911 to request emergency assistance for the boy’s breathing problems. Instead of an ambulance, a Chicago Fire Department engine was dispatched. An ambulance with appropriate equipment and personnel did not arrive until 15 minutes later. Plaintiff’s complaint alleged that the boy died as a result of this delay.
Plaintiff, in Hudson, filed a two-count complaint for wrongful death against the city alleging separate counts for negligence as well as willful and wanton misconduct. The trial court dismissed the negligence count due to statutory immunity under the EMS Act and discovery continued thereafter for three years on the willful and wanton claim. A month before trial was set to begin, plaintiff’s counsel passed away. After a motion for a continuation of the trial date was denied, plaintiff’s motion for a voluntary dismissal pursuant to 735 ILCS 5/2-1009 was granted.
The case was re-filed within a year of the order granting voluntary non-suit alleging a single claim for willful and wanton misconduct with additional allegations that the City of Chicago knew of prior asthmatic episodes suffered by the minor child. As its responsive pleading, the City brought a motion to dismiss pursuant to 2-619 arguing that the re-filed action was barred by res judicata. The trial court granted the motion and the appellate court affirmed in a Rule 23 opinion.
The Supreme Court then considered whether the trial court’s dismissal of the negligence count was a “final judgment on the merits” sufficient for res judicata to apply. As the plaintiff conceded that the first two prongs of res judicata applied (namely, the cause of action and the parties were the same), the Hudson Court’s consideration was limited to an analysis of the whether the dismissal of the negligence count was a “final” judgment.
As a basis for its analysis, the Hudson Court noted that Supreme Court Rule 273 provides that “an involuntary dismissal operates as an adjudication on the merits excepts for dismissals based on lack of jurisdiction, improper venue or failure to join an indispensable party.” The Hudson Court then held that the order granting dismissal of the negligence claim based on statutory immunity was a final order so that voluntary non-suit operated to terminate the entire matter and make all final orders immediately appealable. Where plaintiff did not appeal the ruling on the negligence count within thirty (30) days of the order granting the voluntary non-suit, the Hudson Court held that res judicata barred the re-filed case.
In deciding Hudson, the Illinois Supreme Court relied heavily on its prior reasoning in Rein v. Noyes & Co. In Rein, plaintiff’s asserted claims for fraud and statutory rescission regarding the purchase of certain securities through the defendants. The trial court granted a defense motion to dismiss the statutory claim based upon the applicable statute of limitations. When the trial judge denied a request for a Rule 304(a) finding, the plaintiff voluntarily dismissed the remaining fraud claims to appeal the ruling on the statutory claim. The appellate court affirmed the trial court’s ruling dismissing the statutory claim.
Plaintiffs, in Rein, re-filed their case in its entirety after the appeal was completed (approximately 19 months after the voluntary dismissal). Defendants immediately filed a motion to dismiss under 735 ILCS 5/2-619 asserting that both plaintiffs’ statutory claim as well as the fraud claims were barred by the doctrine of res judicata. That motion was granted by the trial court. A divided appellate court affirmed the dismissal.
As in Hudson, the Rein Court considered only whether the order was “final” as the plaintiff did not dispute that the claim and the parties were the same for purposes of res judicata analysis. Citing Supreme Court Rule 273, the Rein Court held that the dismissal of the statutory claim with prejudice was a final adjudication on the merits that served as a bar to the re-filed claim under the doctrine of res judicata. The Rein Court then extended the application of res judicata to include not only those matters determined in the first suit, “...but also every matter that might have been raised and determined in that suit.” In so doing, the Rein Court emphasized that the application the doctrine of res judicata operated to prevent claim-splitting which is founded on the premise that litigation should have an end and that no person would be unnecessarily harassed with a multiplicity of lawsuits. Moreover, the Rein court held that allowing plaintiff to re-file a claim to pursue an appeal for which the court denied a Rule 304(a) finding would emasculate Rule 304(a) and allow Plaintiff to circumvent the Rule.
Both the Hudson Court and the Rein Court identified six exceptions to the application of res judicata in this scenario which are found in section 26(1) of the Restatement (second) of Judgments. Subsequent Illinois case authority has focused primarily on two of those exceptions; namely (1) agreement or acquiescence by the defendants and (2) an express reservation made by the trial court in the dismissal order to re-file the action.
Counsel must thus consider whether a prior dismissal will become a “final” judgment to determine whether a res judicata defense could apply before filing any motion for voluntary non-suit and then specifically reserve the right to re-file that case in the order granting a voluntary non-suit. The threshold analysis to conduct in order to determine whether a res judicata defense may be available involves whether the prior order of dismissal constitutes a “final” order. Not surprisingly, that determination focuses on the nature of the dismissal sought and the language of the order granting any such motion.
What Constitutes a “Final” Judgment for Res Judicata Purposes? As might be expected, orders granting motions to dismiss a claim as a matter of law pursuant to 735 ILCS 5/2-619 have been held to be “final” orders that became appealable upon the entry of a voluntary dismissal of the remaining counts of the pending complaint for purposes of res judicata. Similarly, an order granting summary judgment as to particular counts of a complaint has been held to be a final order. In contrast, however, a dismissal or grant of summary judgment regarding only certain allegations of a claim with leave to move forward on the remaining allegations supporting that same claim does not constitute a final order.
Perhaps the best discussion of the finality of order can be found in the Second District’s decision in Jackson v. Victory Memorial Hospital. In Jackson, defendants filed motions to dismiss a pro se complaint for failure to state a cause of action pursuant to 735 ILCS 5/2-615 and for failure to attach the required physician’s affidavit pursuant to 735 ILCS 5/2-622 and 2-619. The §2-615 motion to dismiss was granted and plaintiff was given leave to re-plead. Plaintiff failed to do so over the ensuing six months despite repeated orders by the trial court in that period of time. Plaintiff then voluntarily dismissed her action. In granting that dismissal, the court ruled: “Plaintiff’s motion to voluntarily non-suit is granted with costs to be paid to Defendants upon refiling....” Within one year of the voluntary dismissal, the Plaintiff in Jackson re-filed her complaint with the assistance of counsel. Defendants filed a motion to dismiss the re-filed complaint on the grounds that it was barred by res judicata which the trial court granted.
In reversing the trial court’s decision in Jackson, the appellate court noted that the order granting the voluntary dismissal was not “final” because it granted plaintiff leave to amend. In so doing, the Jackson Court noted that the inclusion of Rule 304(a) language does not make an order final; it only makes any final order appealable. In reversing the trial court’s decision, the Jackson Court held that an order striking or dismissing a complaint is not “final” until the trial court enters an order dismissing the suit and does so with prejudice. Thus, the order of voluntary dismissal cannot make “final” what is otherwise a non-final order.
In assessing whether a prior order of dismissal will is a “final” order, it is important to evaluate the exact nature of the dismissal that was previously obtained. While a dismissal “with prejudice” may make an order final, the absence of that language does not mean that it is not final. Nor does a finding by a trial court pursuant to Rule 304(a) make an order final. Instead, the practitioner must consider whether the order disposes of the entirety of a claim.
Has the defendant agreed or acquiesced in the re-filed action? Agreement between the parties and/or acquiescence by the defendant through inaction (or otherwise “sandbagging”) is one of the exceptions to the application of a res judicata defense set out the by Hudson Court. Illinois case authority interpreting this exception requires that a defense of res judicata must be raised in a timely fashion or the defendant has otherwise “acquiesced” in the re-filing of the new case.
In Piagentini v. Ford Motor Co., the First District considered a re-filed case in which an agreed summary judgment had been granted as some of the allegations of a single count of plaintiff’s claims relating to a rollover accident because expert testimony failed to support those specific allegations. The plaintiff in Piagentini subsequently moved for a voluntary dismissal which was granted. Within one year thereafter, the case was re-filed and an amended complaint was filed based solely on the allegations that were supported by expert testimony. Discovery moved forward for some three years thereafter. Within ninety (90) days before trial, defendant brought a motion for summary judgment based upon the equitable doctrine of res judicata which was granted by the trial court.
In reversing the trial court, the Piagentini Court noted that the willingness of the defendant to participate in discovery for three and half years after the re-filing constituted sufficient behavior to serve as acquiescence for purposes of res judicata. In so doing, the court held that the defendants failure to file a timely objection to the re-filed case constituted acquiescence.
Similarly, in Curtis v. Lofy, the Court held that the Defendant’s litigation of the case for three and a half years before raising the affirmative defense of res judicata served as acquiescence barring the imposition of res judicata to dismiss the Plaintiff’s claim.
Thus, the best practice in raising a defense to a re-filed action based on res judicata is to bring that motion at the time an answer is otherwise due. At a minimum, it should be raised as an affirmative defense with the filing of any responsive pleading to the re-filed case. What has clearly been rejected by both Piagentini and Curtis is for defendants to lie in wait until after discovery has proceeded for some period of time before “springing” a motion for summary judgment or to dismiss the re-filed claim on the basis of res judicata.
Has the Order of Voluntary Non-suit Reserved Right to Re-file? Probably the easiest way to avoid the application of res judicata is to include, in the order granting the motion for voluntary non-suit, an express reservation for leave to re-file. Despite any common understanding, a dismissal “without prejudice” (as was granted in Hudson) is not likely to be sufficient, in and of itself, to indicate an intention by the court to reserve to plaintiff a right to re-file. Moreover, even an order permitting a plaintiff “leave to amend” has not served to preserve the right to re-file an action after a voluntary non-suit without an express reservation by the trial court of a right to re-file.
Conclusions and Suggestions. The Hudson case requires all practitioners to consider the impact that a res judicata defense may have on the ability of a plaintiff to re-file and maintain a cause of action if one of the counts of the original complaint was dismissed before the voluntary non-suit was granted. The threshold issues to consider are whether the order of dismissal is a final order and whether the re-filed action would be considered part of the same transaction as the original matter. From that point, counsel for plaintiff would be well-advised to either secure an agreement with counsel for the defendant that the matter can be re-filed or, at the very least, make sure that the order granting a voluntary non-suit includes an express reservation by the trial court of the right to re-file that case.
Counsel for defendants will have an increased incentive to be more aggressive to obtain dismissals of counts of the complaint so as to have a res judicata defense available in the event plaintiff moves for non-suit. Similarly, defense counsel should try to avoid the inclusion of any language suggesting a right to re-file in the order granting voluntary dismissal. If the case is re-filed, defense counsel should move on a timely basis to assert this defense to avoid any claim that there has been an acquiescence to the re-filed action. In any case, the Hudson decision is one that all litigators should be familiar with so as to avoid becoming parties to future malpractice actions.
 See Hudson v. City of Chicago, 228 Ill.2d 462, 889 N.E.2d 210 (2008).
 Hudson v. City of Chicago, 228 Ill.2d 462, 889 N.E.2d 210 (2008).
 Hudson v. City of Chicago, 228 Ill.2d 462, 473, 889 N.E.2d 210 (2008)
 See Emergency Medical Services Act, 210 ILCS 50/ 1 et. seq.
 Hudson v. City of Chicago, 228 Ill.2d 462, 467, 889 N.E.2d 210 (2008) (Three requirements must be satisfied for res judicata to apply: (1) a final judgment on the merits has been rendered by a court of competent jurisdiction; (2) an identity of cause of action exists; and (3) the parties or their privies are identical in both actions), citing Downing v. Chicago Transit Authority, 162 Ill. 2d 70, 73-74 (1994)).
 Hudson v. City of Chicago, 228 Ill.2d 462, 468, 889 N.E.2d 210 (2008)
 Hudson v. City of Chicago, 228 Ill.2d 462, 468, 889 N.E.2d 210 (2008), citing Dubina v. Mesirow Realty Development, Inc., 178 Ill.2d 496, 503, 687 N.E.2d 871 (1997).
 Rein v. Noyes & Co., 172 Ill.2d 325, 665 N.E.2d 1199 (1996).
 Rein v. Noyes & Co., 271 Ill. App. 3d 768, 649 N.E.2d 64 (2nd Dist. 1995) (Justice Rathje dissenting).
 Rein v. Noyes & Co., 172 Ill.2d 325, 335, 665 N.E.2d 1199 (1996).
 Rein v. Noyes & Co., 172 Ill.2d 325, 338, 665 N.E.2d 1199 (1996), citing Torcasso v. Standard Outdoor Sales, Inc., 157 Ill.2d 484, 490, 626 N.E.2d 225 (1993).
 Rein v. Noyes & Co., 172 Ill.2d 325, 340, 665 N.E.2d 1199 (1996), citing Radosta v. Chrysler Corp., 110 Ill.App. 3d 1066, 1069, 443 N.E.2d 670 (1st Dist. 1982)
 Rein v. Noyes & Co., 172 Ill.2d 325, 343, 665 N.E.2d 1199 (1996),
 Res judicata does not apply if: (1) the parties have agreed in terms or in effect that the plaintiff may split his claim or the defendant has acquiesced therein; (2) the court in the first action expressly reserved the plaintiff’s right o maintain the second action; (3) the plaintiff was unable to obtain relief on his claim because of a restriction on the subject-matter jurisdiction of the court in the first action ; (4) the judgment in the first action was plainly inconsistent with the equitable implementation of a statutory scheme; (5) the case involves a continuing or recurrent wrong; or (6) it is clearly and convincingly shown that the policies favoring preclusion of a second action are overcome for an extraordinary reason. Restatement (Second) of Judgments Section 26(1) (1980).
 The second issue to consider is whether the re-filed action is part of the “same transaction” which gave rise to the original complaint. That analyis is beyond the scope of this article but is best explained in Doe v. Gleicher, 393 Ill. App. 3d 31, 911 N.E.2d 532 (1st Dist. 2009) . It should be noted, however, that under the rationale expressed therein, Illinois observes the “same transaction” test for res judicata purposes which is broader than the “same evidence” standard followed by other states. See River Park, Inc. v. City of Highland Park, 184 Ill. 2d 290, 703 N.E.2d 883 (1998).
 Keifer v. Rust-o-leum, 394 Ill. App. 3d 485, 916 N.E.22 (1st Dist. 2009) (Ruling constituted final order despite no language that order entered “with prejudice”)
 Curtis v. Lofy, 394 Ill. App. 3d 170, 914 N.E.2d 248 (4th Dist. 2009)
 Piagentini v. Ford Motor Co., 387 Ill. App. 3d 887, 901 N.E.2d 986 (1st Dist. 2009)
 Jackson v. Victory Memorial Hospital, 387 Ill. App. 3d 342, 900 N.E.2d 309 (2nd Dist. 2008).
 Jackson v. Victory Memorial Hospital, 387 Ill. App. 3d 342, 344, 900 N.E.2d 309 (2nd Dist. 2008).
 Jackson v. Victory Memorial Hospital, 387 Ill. App. 3d 342, 351, 900 N.E.2d 309 (2nd Dist. 2008), citing Smith v. Central Illinois Regional Airport, 207 Ill. 2d 578, 802 N.E.2d 250 (2003).
Jackson v. Victory Memorial Hospital, 387 Ill. App. 3d 342, 351, 900 N.E.2d 309 (2nd Dist. 2008) (citations omitted).
 Jackson v. Victory Memorial Hospital, 387 Ill. App. 3d 342, 352, 900 N.E.2d 309 (2nd Dist. 2008), citing Cole v. Hoogendoorn, Talbot, Davids, Godfrey & Milligan, 325 Ill. App. 3d 1152, 759 N.E.2d 110 (1st Dist. 2001).
 Jackson v. Victory Memorial Hospital, 387 Ill. App. 3d 342, 352, 900 N.E.2d 309 (2nd Dist. 2008), citing Wick Building Systems, Inc. v. Bunning, 107 Ill. App. 3d 61, 62, 437 N.E.2d 341 (3rd Dist. 1982), and Martin v. Marks, 80 Ill. App.3d 915, 918, 400 N.E.2d 711 (5th Dist. 1980).
 See Piagentini v. Ford Motor Co., 387 Ill. App.3d 887, 901 N.E.2d 986 (1st Dist. 2009).
 Piagentini v. Ford Motor Co., 387 Ill. App.3d 887, 901 N.E.2d 986 (1st Dist. 2009).
 Piagentini v. Ford Motor Co., 387 Ill. App.3d 887, 898, 901 N.E.2d 986 (1st Dist. 2009).
 Piagentini v. Ford Motor Co., 387 Ill. App.3d 887, 898, 901 N.E.2d 986 (1st Dist. 2009).
 Curtis v. Lofy, 394 Ill. App. 3d 170, 914 N.E.2d 248 (4th Dist. 2009).
 Keifer v. Rust-o-leum, 394 Ill. App. 3d 485, 916 N.E.22 (1st Dist. 2009), cf. Quintas v. Asset Management Group, 395 Ill. App. 3d 324, 917 N.E.2d 100 (1st Dist. 2009) docket sheet granting leave to re-file sufficient to serve as express reservation despite absence of language from order of voluntary dismissal).
Scott M. Hardek is a member of Dykema Gossett PLLC in Chicago, Illinois, where he concentrates his practice in the areas of medical negligence defense, employment matters, commercial disputes, real estate workouts, and business litigation. He also has significant experience representing both developers and objectors in contested zoning and land use matters. He received his BA and JD from the University of Notre Dame and is the Chairman of the DCBA’s Civil Law Committee.