Hernandez v. Pritikin
Ill.
ILLINOIS OFFICIAL REPORTS
Supreme Court
Hernandez v. Pritikin, 2012 IL 113054
Caption in Supreme JESSE E. HERNANDEZ et al., Appellees, v. JEFFREY PRITIKIN,
Court: Special Representative of the Estate of Isadore Bernstein, Deceased, et
al., Appellants.
Docket No. 113054
Filed December 13, 2012
Held Defendants in a refiled legal malpractice action who sought dismissal on
(Note: This syllabus the basis of res judicata had not met their burden of proving its essential
constitutes no part of element of a final judgment where they relied on oral rulings of successor
the opinion of the court judges as to when the discovery rule had commenced to run for purposes
but has been prepared of limitations.
by the Reporter of
Decisions for the
convenience of the
reader.)
Decision Under Appeal from the Appellate Court for the First District; heard in that court
Review on appeal from the Circuit Court of Cook County, the Hon. Jeffrey
Lawrence, Judge, presiding.
Judgment Affirmed and remanded.
Counsel on Hinshaw & Culbertson LLP (Matthew R. Henderson and Timothy G.
Appeal Shelton, of counsel), and Donohue Brown Mathewson & Smyth LLC
(Donald J. Brown, Jr., and Karen Kies DeGrand, of counsel), all of
Chicago, for appellants.
Donald L. Johnson, Julie A. Boynton and Joseph T. Gentleman, of
Chicago, for appellees.
Elliot R. Schiff, of Schiff Gorman LLC, and David R. Nordwall, all of
Chicago, for amicus curiae Illinois Trial Lawyers Association.
Justices JUSTICE KARMEIER delivered the judgment of the court, with opinion.
Chief Justice Kilbride and Justices Freeman, Thomas, Garman, Burke,
and Theis concurred in the judgment and opinion.
OPINION
¶1 The overarching issue in this appeal is whether the circuit court of Cook County erred
in dismissing plaintiffs’ refiled legal malpractice action as barred by res judicata. The
appellate court held that it did. 2011 IL App (1st) 102646. We allowed defendants’ petition
for leave to appeal. Ill. S. Ct. R. 315 (eff. Feb. 26, 2010). Because the defendants, as the
parties seeking to invoke the doctrine of res judicata, have not borne their burden of proving
a final judgment was entered for purposes of the doctrine’s application, we affirm the
judgment of the appellate court.
¶2 BACKGROUND
¶3 The facts that follow are taken from the parties’ pleadings, orders of record, and the
transcripts that have been provided as part of the record on appeal. For a better understanding
of the case, we offer a preliminary chronology of principal events, based on facts that appear
to be uncontested. Jesse Hernandez, the plaintiff claiming to have been physically
injured/disabled, worked for Central Steel & Wire Company from May of 1968 through
March of 1995. He developed physical problems in the early 1990s, and was ultimately
diagnosed with Parkinson’s disease. For a period of time from 1995 to 1996, he was
represented by the law firm of Spector & Lenz, which filed a social security disability claim
on his behalf. In early 1999, he met with the defendant attorneys herein, who, in March of
1999, filed a workers’ compensation claim for him. They continued representing him into
late 2002. The application for adjustment of claim that defendants filed on Jesse’s behalf
indicated that he had been “exposed to chemicals” and the nature of his injury was “to be
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proven.” In 2004, Jesse retained new attorneys, who filed an action in the circuit court
against various companies claimed to have been responsible for the manufacture and sale of
chemicals contributing to his physical injury/disability. When that action was dismissed as
time-barred, plaintiffs filed a legal malpractice action against the defendants in this case. The
action at issue here is a case refiled in 2009, after the original action—filed in 2005—was
voluntarily dismissed by plaintiffs. With that overview, we discuss more fully the original
legal malpractice action filed against these defendants in 2005.
¶4 In 2005, plaintiffs, Jesse and Yolanda Hernandez, filed a legal malpractice action against
Jesse’s former attorneys, defendants Isadore Bernstein, John L. Grazian, Richard S. Volpe,
and Bernstein and Grazian, P.C., a professional corporation engaged in the practice of law.
In their initial complaint, the plaintiffs alleged that Jesse hired defendants in 1999 to
represent him with respect to injuries he sustained at work. In that complaint, plaintiffs
specified that “Jesse *** suffers from Parkinson’s disease caused by the injuries at work.”
Plaintiffs claimed that defendants owed them a duty “to inform them of all potential claims
and causes of action they possessed or which might arise from the injuries in question.” As
noted, in March of 1999, the defendants filed a workers’ compensation application for Jesse.
¶5 Notwithstanding, plaintiffs alleged that defendants were negligent insofar as they: (a)
failed to advise plaintiffs that they might have claims against parties other than Jesse’s
employer to recover for the injuries Jesse suffered at work; (b) failed to file an action against
others who had contributed to the events and conditions which caused injuries to Jesse;
and/or (c) failed to advise plaintiffs that they needed to retain other counsel to file an action
against others who had contributed to the events and conditions which caused injuries to
Jesse.
¶6 Plaintiffs stated that they first learned from new attorneys, in 2004, that a claim could
have been made against parties other than Jesse’s employer for his injuries. Plaintiffs’ new
attorneys took over the handling of Jesse’s workers’ compensation claim, and also filed an
action in the circuit court against several companies claimed to have contributed to “the
events and conditions which caused the injuries.” The action against those
companies—based on theories of strict liability and negligence—was dismissed on August
12, 2005, as time-barred—Judge Kathy Flanagan finding: “The evidence here shows that
Plaintiff here clearly was possessed of sufficient knowledge to put him on notice that he was
injured and that his injury was wrongfully caused in 1999 when he filed his original
Adjustment of Claim. It was incumbent upon him to then investigate further.” Judge
Flanagan’s dismissal prompted the legal malpractice action against these defendants, the
theory being that if plaintiffs were on notice as of that date that actions might be filed against
parties other than Jesse’s employer, so were these defendants. In their complaint, plaintiffs
claimed, but for the negligence of these defendants, they would have had “good, valid and
valuable causes of action” and would have “in timely manner” “prosecuted those actions to
final judgment or settlement.”
¶7 Defendants moved to dismiss plaintiffs’ complaint, arguing, inter alia, that the statute
of limitations had run on plaintiffs’ product liability claim before defendants were retained
as Jesse’s attorneys.
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¶8 A hearing on defendants’ motion was held on August 7, 2006, before Judge Donald
Suriano. At that hearing, the parties initially focused on the significance of Judge Flanagan’s
finding in the dismissed product liability action that Jesse was on inquiry notice as of the
filing of his application for workers’ compensation in March of 1999 that his injuries might
have been wrongfully caused by parties other than his employer, i.e., that the statute of
limitations for a personal injury or product liability action (735 ILCS 5/13-202, 13-213 (West
1998) (two-year limitation periods)) began to run, at least, by that date.
¶9 In the end, however, Judge Suriano concluded that Jesse was on inquiry notice, for
purposes of the personal injury and product liability statutes of limitation, much earlier than
was reflected by Judge Flanagan’s ruling. Judge Suriano stated: “I guess, I’m going to say
the statute of limitations began to run, at the latest, his last day of employment, which in [sic]
’95. According to those numbers then, the defendant should prevail on his motion, right? Am
I right?”
¶ 10 Counsel for plaintiff conceded that the judge was correct with respect to the allegations
of the original complaint, but counsel asked for, and was granted, leave to file an amended
complaint, adding allegations that defendants were negligent for failing to file a malpractice
suit against the Spector law firm for failing to file a product liability action on plaintiffs’
behalf.
¶ 11 The ensuing written order, signed by Judge Suriano, and filed August 7, 2006, simply
states that the “Defendants’ motion to dismiss is granted,” that “plaintiffs are given 30 days
to file an amended complaint or until September 7, 2006,” and that “Defendants are given
28 days to answer or otherwise plead or by October 5, 2006.” The word “prejudice” does not
appear in the order of dismissal; nor is there any indication that plaintiffs were precluded
from pursuing any particular theory in support of recovery.
¶ 12 The amended complaint ultimately filed by plaintiffs added factual allegations to support
the alternative theory that defendants were also negligent insofar as they failed to advise
plaintiffs of the possibility of a legal malpractice action against the law firm of Spector &
Lenz “for failing to file a claim against [Jesse’s] employer or third parties as alleged in the
lawsuit discussed below and/or failing to advise Jesse and Yolanda to seek counsel with
respect to those claims before the statute of limitations expired on those claims.” The
amended complaint retained the allegations of the original complaint that the defendants
herein breached the duties they owed plaintiffs when they: (a) failed to advise plaintiffs that
they might have claims against parties other than Jesse’s employer to recover for the injuries
Jesse suffered at work; (b) failed to file an action against others who had contributed to the
events and conditions which caused injuries to Jesse; and (c) failed to advise plaintiffs that
they needed to retain other counsel to file an action against others who had contributed to the
events and conditions which caused injuries to Jesse.
¶ 13 The complaint added significant factual allegations apparently aimed at establishing a
basis for application of the discovery rule so as to lengthen the statutory period in which
plaintiffs could have filed the underlying product liability action. Application of the
discovery rule obviously had the potential to make the suit against defendants under the
theory of the original complaint timely. We cite some examples of these added allegations.
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¶ 14 Plaintiffs alleged that during Jesse’s employment with Central Steel & Wire Company,
“he was not told by anyone employed by CS&WC, nor did he know or learn from any other
source, that he was, or was maybe, being exposed to harmful or potentially harmful fumes,
dust or other emissions from the process of burning/cutting steel plate or that such exposures
were harmful or potentially harmful to his health, either temporarily or permanently.” The
following two paragraphs addressed Jesse’s history of medical evaluation and treatment, and
his inquiries regarding the cause of a condition ultimately diagnosed as Parkinson’s disease:
“11. From approximately 1992 through 1994, Jesse was medically evaluated and
treated and he consulted with various physicians at Meyer Medical Group, 10444
South Kedzie Avenue, Chicago, IL 60655, including Drs. Sikand, Myint and
McCarthy. In 1992 or 1993, Jesse was experiencing balance problems and moving
slower. Jesse developed left-sided weakness and problems with hand dexterity. Jesse
saw Dr. Sikand during this time. She observed and remarked that Jesse had a masked
expression, and stated to him that in light of my other symptoms, she wanted him to
see a neurologist.
12. In 1993, Jesse saw various doctors in the Neurology Department at Rush
Presbyterian St. Luke’s Medical Center in Chicago, including the Chairman of the
Department, Dr. Goetz, and Drs. Pappert and Kujawa. The neurologists evaluated
him, and told him that he had Parkinson’s Disease. Each time Jesse asked one of the
neurologists at Rush what caused his condition, they told him they did not know.
None of the doctors at Meyer Medical Group, including Drs. Sikand, Myint and
McCarthy ever told Jesse the cause of the Parkinson’s Disease.”
¶ 15 In subsequent paragraphs, the plaintiffs alleged that they fully informed attorneys at the
law firm of Spector & Lenz, in 1995, and the Bernstein law firm, in 1999, of “Jesse’s work
history, medical condition, medical treatment, about Jesse’s inability to work, the conditions
of the workplace,” and specifically of the diagnosis of Parkinson’s disease, and asked them
to “help them in any way [they] could.”
¶ 16 Plaintiffs alleged: “Jesse was first told that his neurological condition diagnosed as
Parkinson’s Disease was caused by his exposure to manganese fumes and dust while working
as a steel cutter/burner at CS & WC when he was evaluated on February 6, 2003 by Dr.
Katherine Duvall at the Occupational Health Service Institute at the University of Illinois at
Chicago. At that time, Dr. Duvall told Jesse that his Parkinson’s disease is more likely than
not related to work exposure to manganese while employed at Central Steel and Wire
Company. Prior to this time Jesse believed that he contracted Parkinson’s disease from
natural causes.”
¶ 17 Defendants filed a motion to dismiss plaintiffs’ amended complaint arguing, inter alia,
“all claims and causes of action are time-barred by the limitations period imposed by 735
ILCS 5/13-202 and 735 ILCS 214.3.” Pertinent to the issues now before this court,
defendants noted, in their “Introduction”: “Paragraphs 1-3 [of the amended complaint] are
identical to those asserted in the original complaint.” Defendants argued: “As such, they are
improperly re-asserted in the instant pleading.” Defendants followed that contention with
these assertions:
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“Plaintiffs allege they first learned of potential claims against third parties, in
addition to Central, sometime in 2004. A lawsuit was filed against these third parties,
and was dismissed in September, 2005, for being time barred. It is further alleged that
but for the negligence of the Defendants, Plaintiffs would have had a viable action
against the third parties as well as against Spector for malpractice. This negligence
was purportedly unknown to the Plaintiffs until September 2005 when their claims
against the additional third party defendants were dismissed.
As noted previously, Plaintiffs’ original complaint for malpractice against the
Defendants was dismissed on August 7, 2006. During the hearing of that motion, the
Court specifically noted that the Plaintiffs’ statute of limitations in the Underlying
actions (against his employer and potential third parties), began to run no later than
1995, on his last date of employment.” (Emphasis in original.)
¶ 18 Defendants, in their introduction, then proceeded to the focal thesis of their motion to
dismiss: “Plaintiffs’ Amended Complaint still fails to state a cause of action because
Plaintiffs can neither show that Spector ever agreed to pursue a personal injury action on
their behalf or owed them any duty to do so.” A discussion of that contention ensued,
culminating in defendants’ assertion that “the Plaintiffs can never show that ‘but/for’ the
actions of the Defendants he would have prevailed in any action against ‘other’ parties,
including Spector, or show that any duty would have ever been owed by Spector to file
claims other than the social security claim he retained them specifically to perform.”
Defendants concluded their introduction with this statement: “Alternatively, and as was the
case with the prior pleading effort, Plaintiffs’ current legal malpractice action must fail
because Plaintiffs’ ability to recover in the Underlying personal injury action expired prior
to the time he retained the Defendants, as was determined by this Court at the hearing of
August 7, 2006.”
¶ 19 In the argument portion of their motion, defendants first argued that “the scope of the
work agreed to between Plaintiff and Spector & Lenz did not rise to anything pertaining to
litigation outside of the social security benefits sought by Hernandez as evidenced by
Plaintiffs’ Affidavit and the retainer agreement with Spector.” From that position, defendants
concluded: “Defendants did not commit malpractice for not discussing the issue with the
Plaintiffs either for there was no malpractice to discuss.”
¶ 20 Defendants then proceeded to their second argument: “Plaintiffs’ action against Spector
& Lenz expired prior to his retention of the defendants.” Again, the defendants included a
prefatory reiteration: “Initially, this Court has previously ruled on August 7, 2006, that
Plaintiffs’ cause of action against Defendants for failing to sue Underlying parties potentially
involved in his accident could not stand because Plaintiff’s time to sue the Underlying parties
expired before he retained the Defendants’ services. Therefore, this Court should dismiss that
portion of the Amended Complaint that contains duplicate allegations against Defendants,
namely, all assertions of a breach of duty but for the new allegation involving a possible legal
malpractice action against Spector.”
¶ 21 In their second argument, defendants again used Judge Suriano’s finding at the August
7, 2006, hearing. Utilizing Judge Suriano’s statements, they argued:
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“[B]ased on this court’s own ruling, the Plaintiff knew, or should have known, that
he had a potential cause of action beginning in 1995. Therefore, not only did his
limitations period to sue the Underlying parties expire as of 1997 (before he retained
the Defendants), but his time period to sue Spector also lapsed before he retained the
Defendants. This is true because based on the Court’s own ruling, finding that
Plaintiff had notice of a potential injury as of 1995, then he should have been on
notice as of 1995 (when he retained Spector), and at least as of 1996 (the last year
Plaintiff worked with Spector), that no action had been filed on his behalf asserting
any cause of action based on any wrongdoing by any party.”
Citing Judge Suriano’s statements at the August 7, 2006, hearing, and implicitly
acknowledging that the circuit court had not established, via ruling, a definitive date when
the personal injury statute of limitations began to run, defendants argued: “It remains
possible that the limitations period lapsed even sooner than 1995, as evidenced by the
Court’s own indication that the Plaintiff was on notice ‘at the latest in 1995.’ ”
¶ 22 Defendants concluded their motion with a request for dismissal of plaintiffs amended
complaint on the bases that “Plaintiff could never have proven any duty was owed by Spector
for the filing of such claims” and, alternatively, “any potential action against the Defendants
would have been time barred pursuant to 735 ILCS 5/13-202 and 735 ILCS 214.3 because
Plaintiffs’ cause of action against any Underlying party, including Spector, lapsed as early
as 1997 or 1998.”
¶ 23 The hearing on defendants’ motion to dismiss plaintiff’s amended complaint took place
on March 28, 2007, before Judge Elizabeth Budzinski. At one point in the hearing, Judge
Budzinski cut off a discussion of the statute of limitations in an effort to focus on the issue
of duty, stating: “[T]he only allegations that I’m dealing with—I’m not reconsidering Judge
Suriano’s ruling. That’s not on the table.” The court advised counsel the “only allegation”
in the complaint she was dealing with was whether “the Bernstein firm owed a duty to advise
of third-party claims,” and, in turn, “whether or not Spector & Lenz should have advised
them of potential medical malpractice or any other third-party claims.”
¶ 24 After further discussion focusing, again, on the scope of the Spector law firm’s duty to
Jesse, the judge, without presaging any ruling whatsoever, abruptly stated: “We can go off
the record.” Subsequent parenthetical notations in the transcript indicate that a discussion
was then had off the record, and that the court would reconvene at 2 p.m. There is no
transcript of any further proceedings on that date in the record on appeal. The court reporter’s
certification indicates her transcript “contains all the proceedings had at the said hearing on
the motion.” It is not clear what, if anything, took place later on that date.
¶ 25 What is clear is that a written order resulted, dated March 28, 2007, entered by Judge
Budzinski, denying, in its entirety, defendants’ motion to dismiss. The pertinent portion of
the court’s order simply states: “Defendant’s Motion to Dismiss the Amended Complaint is
denied[.]” This order appears to have been prepared by defendants’ own attorney.
¶ 26 The case continued, with plaintiffs’ amended complaint intact, and without any effort on
the part of defendants to clarify the written orders of the circuit court if, in fact, defendants
believed those orders did not accurately reflect the judicial pronouncements of the court to
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that point in the proceedings.
¶ 27 Defendants subsequently filed an answer to plaintiffs’ amended complaint. Their
ambivalence regarding the finality, and binding nature, of any pronouncements made by
Judge Suriano on August 7, 2006, is reflected in their responses to certain paragraphs of
plaintiffs’ amended complaint. Their responses to three numbered paragraphs of plaintiffs’
amended complaint are identical, except for the cited paragraph number in each:
“Defendants make no answer with respect to [numbered paragraph] of Plaintiffs’
Amended Complaint inasmuch as said allegations were dismissed pursuant to the
Order of Judge Suriano dated August 7, 2006. To the extent the allegations contained
within this [sub]paragraph are deemed to remain despite the dismissal in the
aforesaid Order, Defendants deny the allegations contained therein.”
¶ 28 Defendants also raised a number of affirmative defenses. Defendants’ fourth affirmative
defense reads as follows:
“The state of scientific and medical knowledge at the time of the alleged conduct of
the defendants cited in Exhibit 1 of Plaintiffs’ Complaint [referring to defendants in
plaintiffs’ product liability complaint and their conduct from 1968 to 1995] and the
date of the alleged injury or damage to Jesse Hernandez was not sufficient to apprise
the defendants cited in Exhibit 1 of Plaintiffs’ Complaint of the dangers and risks
allegedly resulting from exposure to the products in question.”
¶ 29 An order of record, entered by Judge Marcia Maras on March 17, 2009, indicates that
defendants filed a motion for summary judgment, which was heard on that date and
continued for ruling to April 3, 2009. Defendants represent in their brief that their motion
was “brought on the bases that Spector & Lenz owed no duty to advise plaintiffs of potential
claims for products liability and/or chemical exposure and that plaintiffs could not prove the
merits of their underlying case.” The page cited by defendants in the record on appeal does
not disclose their motion or the bases relied upon; it is a copy of the aforesaid order.
Defendants also represent that the motion was set for ruling on April 7, 2009. Neither page
cited—both of which are copies of orders entered on March 17 and April 3, 2009,
respectively—indicates that a dispositive ruling was scheduled for April 7, 2009.
¶ 30 The record does substantiate that plaintiffs filed a motion to voluntarily dismiss their
case, without prejudice, pursuant to section 2-1009 of the Code of Civil Procedure (735 ILCS
5/2-1009 (West 2008)), and that plaintiffs’ motion was granted via order entered by Judge
Marcia Maras on April 14, 2009. In their motion, plaintiffs acknowledged the pendency of
defendants’ motion for summary judgment, and averred that they had presented sufficient
evidence to avoid the entry of summary judgment. They claimed their motion was occasioned
by an “issue pertaining to documents produced by Central Steel and Wire during an
underlying action.” Plaintiffs concluded, “in the interests of justice and to ascertain a
complete and accurate record plaintiff seeks to dismiss this case at this time.” Judge Maras’
dispositive order of April 14, 2009, reads, simply: “This matter is dismissed pursuant to
section 5/2-1009 with all applicable costs to be paid upon refiling.”
¶ 31 A complaint for legal malpractice was thereafter filed on September 22, 2009, stating that
is was “a refiling of case number 05 L 12564.”
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¶ 32 Defendants moved to dismiss the refiled action pursuant to section 2-619.1 of the Code
of Civil Procedure (735 ILCS 5/2-619.1 (West 2008)). Defendants noted that plaintiffs’
original complaint for legal malpractice was dismissed by Judge Suriano on August 7, 2006.
They then represented to the court that plaintiffs “subsequently filed an Amended Complaint
in which the sole allegation was that the Bernstein firm was negligent in failing to sue
Spector & Lenz.” (Emphasis in original.) They observed that the refiled complaint included
both allegations of negligence for failing to sue or advise suit against the Spector law firm,
and allegations supporting the “claim” against defendants for failing to sue or advise suit
against the product liability defendants, a “claim” which defendants submit was dismissed
by Judge Suriano.
¶ 33 Defendants argued that the refiled complaint should be dismissed, with prejudice,
pursuant to section 2-619(4) of the Code on the basis that the entire action is barred by the
doctrine of res judicata and the prohibition against claim-splitting espoused by this court in
Rein v. David A. Noyes & Co., 172 Ill. 2d 325 (1996). Defendants recognized that contention
depended upon the entry of a final judgment by Judge Suriano on August 7, 2006.
¶ 34 Defendants, however, also argued an “alternative” position, contending, if there was no
final adjudication on that date:
“[T]he dismissed allegations, that the Bernstein firm failed to advise Mr. Hernandez
that he had a potential chemical exposure case, should be stricken in accordance with
§ 5/2-615 for the same reason that Judge Suriano dismissed the original Complaint,
namely that any chemical exposure case was barred by the statute of limitations when
the Bernstein firm was retained to prosecute a Workers Compensation claim until
1999 given that Mr. Hernandez’s last day of employment at Central Steel & Wire
was in 1995.”
¶ 35 For their res judicata argument, the defendants relied substantially upon this court’s
decisions in Rein and Hudson v. City of Chicago, 228 Ill. 2d 462 (2008).
¶ 36 On March 24, 2010, the matter was heard before Judge Jeffrey Lawrence. Judge
Lawrence noted the nature of the allegations in plaintiffs’ first legal malpractice complaint
and Judge Suriano’s dismissal thereof. He observed that plaintiffs then filed an amended
complaint in which they “reasserted” the original “claims” and “made an additional claim”
involving the Spector firm. The judge found “those two claims do not rise out of the same
operative set of facts.” Judge Lawrence acknowledged plaintiffs’ argument that Judge
Suriano’s order should not be considered a final adjudication on the merits because it did not
state that the initial complaint was dismissed with prejudice, and he indicated he was “on the
point of agreeing” until he read the appellate court’s opinion in Matejczyk v. City of Chicago,
397 Ill. App. 3d 1 (2009), wherein, he believed, “the identical argument was raised.” Judge
Lawrence ultimately determined that he was “constrained to apply the res judicata rule of
Hudson,” that the line of cases represented by Rein, Hudson, and Matejczyk “was intended
to prohibit this type of claim splitting and reasserting the same claim in two separate
actions.”
¶ 37 The appellate court reversed and remanded, framing the issue here as “whether the
August Order bars the instant litigation,” and concluding: “It does not.” 2011 IL App (1st)
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102646, ¶ 6. The court rejected the defendant’s contention that the August order was final
because, allegedly, it “disposed of one of plaintiffs’ two grounds for recovery,” i.e., “ ‘that
the Bernstein defendants were negligent in failing to advise plaintiffs with respect to suing
Spector & Lenz for failing to bring a products liability or chemical exposure case.’ ” 2011
IL App (1st) 102646, ¶ 7. In the view of the appellate court: “Plaintiffs have alleged only a
single theory of recovery: legal negligence.” Id. The appellate court explained: “The trial
court’s order did not alter plaintiffs’ theory of recovery—negligence. It simply allowed them
to plead new facts in support of that claim.” Id. The court quoted from Piagentini v. Ford
Motor Co., 387 Ill. App. 3d 887 (2009):
“ ‘This court has held that the dismissal of certain allegations under a single theory
of recovery does not terminate litigation between the parties on the merits or dispose
of the rights of the parties on a separate branch of the controversy. [Citation.] Rather,
the dismissal of certain allegations under one theory of recovery merely determines
which allegations under that theory are allowed to remain.’ ” Id. (quoting Piagentini,
387 Ill. App. 3d at 894).
The appellate court, in this case, found it of no consequence that “the factual allegations here
appeared in two separate pleadings, as opposed to a single complaint, *** since the
allegations were made to advance a single theory of recovery: negligence based on
defendants’ alleged failure ‘to inform [plaintiffs] of all potential claims and causes of action
they possessed or which might arise from the injuries in question.’ As the August Order
barred only certain allegations in support of that theory, as opposed to the entire negligence
claim, the August Order was not final.” Id.
¶ 38 The appellate court purported to distinguish Matejczyk on the basis that the plaintiffs here
did not file a multicount complaint, as did plaintiff in Matejczyk, where one count was
dismissed “with Matejczyk being granted leave to refile count II.” Id. ¶ 8 (quoting Matejczyk,
397 Ill. App. 3d at 2). This appellate panel found it significant that plaintiffs “filed a single-
count complaint that the trial court dismissed with leave to replead.” Id. The appellate court
stated that an “ ‘order dismissing a complaint but granting leave to replead is not a final order
for purposes of res judicata until the trial court enters an order dismissing the suit with
prejudice.’ ” Id.¶ 9 (quoting Williams v. Ingalls Memorial Hospital,408 Ill. App. 3d 360, 364
(2011), and citing Piagentini,387 Ill. App. 3d at 894
). The appellate court found Rein
and Hudson inapposite as the rendition of a “final” order was essential in the analysis of
each. 2011 IL App (1st) 102646, ¶ 10.
¶ 39 ANALYSIS
¶ 40 Defendants, as the parties invoking the application of res judicata, and as the litigants
responsible for obtaining rulings on their motions in the circuit court, bear a substantial
burden in this case.
¶ 41 The burden of showing that res judicata applies is on the party invoking the doctrine.
People ex rel. Scott v. Chicago Park District, 66 Ill. 2d 65, 68 (1976); Taylor v. Police
Board, 2011 IL App (1st) 101156, ¶ 19. A critical component in that showing is a final
adjudication. Hudson, 228 Ill. 2d at 470; Rein,172 Ill. 2d at 335
. As we have often observed,
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a movant has the responsibility to obtain a ruling on his motion if he is to avoid forfeiture on
appeal. People v. Urdiales, 225 Ill. 2d 354, 425 (2007). In this context, where the nature of
the ruling may be determinative, we may qualify that proposition further: a movant has the
responsibility to obtain a definitive ruling.
¶ 42 Moreover, where, as here, multiple judges and rulings are involved, we are mindful of
precedent recognizing the circuit court’s inherent power to review, modify, or vacate
interlocutory orders while the court retains jurisdiction over the entire controversy. For
example, this court has repeatedly held that the circuit court has the inherent power to modify
or vacate an interlocutory order granting summary judgment any time before final judgment.
Rowe v. State Bank of Lombard, 125 Ill. 2d 203, 213-14 (1988). “In a variety of contexts, this
court has stated that an interlocutory order may be reviewed, modified or vacated at any time
before final judgment, and it is of no consequence that the original order was entered by
another circuit judge.” Balciunas v. Duff, 94 Ill. 2d 176, 185 (1983). See also Towns v.
Yellow Cab Co., 73 Ill. 2d 113, 121 (1978) (while the circuit court retains jurisdiction over
the entire controversy, and where there is no evidence of “judge shopping,” a court is not
bound by the order of a previous judge and has the power to correct orders it considers to be
erroneous); Shaw v. Dorris, 290 Ill. 196, 204 (1919) (“At any time before the entering of ***
final judgment the whole record is before the court, and an erroneous ruling theretofore made
may be set aside and the error corrected.”).
¶ 43 Application of the foregoing principles requires affirmance of the judgment of the
appellate court. Irrespective of whether or not a single “claim” is involved in this case, as the
appellate court determined, for purposes of res judicata, we do not interpret the cursory oral
pronouncements of Judges Suriano and Budzinski as definitively and finally foreclosing the
plaintiffs’ right to attempt amendment of their complaint in such a way as to plead additional
facts bearing upon application of the discovery rule to their underlying product liability
claim—which in turn could affect the viability of legal malpractice actions. The state of the
pleadings when the plaintiffs voluntarily dismissed their action supports that assessment, as
the “claim” or “theory” of plaintiffs’ original legal malpractice complaint stood—neither
stricken nor dismissed—as part of plaintiffs’ amended complaint at that time. Nor do we
believe that the actions, and inaction, of the defendants in the circuit court merit the
application of res judicata under these circumstances.
¶ 44 First, we look at the oral pronouncements of Judges Suriano and Budzinski, and the
resulting written orders.
¶ 45 Judge Suriano indicated he was dismissing the original complaint, that contained certain
allegations, pursuant to defendants’ motion to dismiss, which was obviously filed after the
complaint. When counsel for plaintiffs asked to “add”—not substitute—allegations
supporting a theory of liability based upon the failure of defendants to sue, or advise suit
against, the Spector law firm, Suriano said, “I’ll allow him to bring that.” Despite Judge
Suriano’s finding—based upon the factual allegations then before him—that the statute of
limitations began to run in 1995, nothing he said on August 7, 2006, indicates that further
amendment on that score was precluded, or that he would not, or another judge could not,
revisit the matter later if presented with additional factual allegations impacting the time at
which the statute of limitations could be deemed to have commenced. It appears that
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plaintiffs attempted to present those facts in their amended complaint.
¶ 46 The resulting written order Judge Suriano signed simply states that plaintiffs were given
30 days to file “an amended complaint.” No restrictions or limitations were placed on the
content of that complaint; there is no language that suggests a final ruling was rendered or
that the case, or any part thereof, was dismissed with prejudice.
¶ 47 A final judgment has been defined as “a determination by the court on the issues
presented by the pleadings which ascertains and fixes absolutely and finally the rights of the
parties in the lawsuit.” (Emphasis added.) Flores v. Dugan, 91 Ill. 2d 108, 112 (1982). There
is no indication in Judge Suriano’s oral pronouncement or written order that anything was
“absolutely and finally” settled when he granted defendants’ motion to dismiss, but gave
plaintiffs leave to file “an amended complaint.” It appears there was “no adjudication upon
the merits” for purposes of Supreme Court Rule 273 (Ill. S. Ct. R. 273) because, as provided
therein, “the order of dismissal” in this case “otherwise specifies,” granting plaintiffs leave
to file an amended complaint—which plaintiffs promptly did in the original malpractice
action.
¶ 48 The statement of Judge Budzinski, upon which defendants rely, is even less definitive,
when placed in its proper context, than the pronouncement of Judge Suriano. At the time she
made the brief remark, upon which defendants’ claim of res judicata so heavily depends,
defendants’ counsel was attempting to argue the applicability of Judge Suriano’s 1995 date
in service of a contention that, “if [Jesse] had a cause of action that started to run in ’95, it
would have lapsed in ’97.” Judge Budzinski appears to have cut off a discussion of the
statute of limitations at that point, stating: “[T]he only allegation that I’m dealing with—I’m
not reconsidering Judge Suriano’s ruling. That’s not on the table.” The judge then made clear
that the “only allegation” in the complaint she was focusing on, at that point in the hearing,
was the issue of duty—that of the defendants herein, and that of the Spector law firm. Thus,
one could reasonably interpret Judge Budzinski’s brief remark as intended to direct and
control the discussion in the course of an ongoing hearing in which “many layers of things
[were] going on.” It is not necessarily—or even reasonably—interpreted as a comment on
the character of Judge Suriano’s ruling or the finality she would accord it.
¶ 49 In the latter respect, we compare the allegations and requests for relief in defendants’
motion to dismiss plaintiffs’ amended complaint for legal malpractice with the relief
accorded them in Judge Budzinski’s written order of March 28, 2007. In their motion to
dismiss the amended complaint, defendants repeatedly insisted that the theory and allegations
from plaintiffs’ original malpractice complaint were “improperly re-asserted in the instant
pleading,” that “Plaintiffs’ ability to recover in the Underlying personal injury action expired
prior to the time he retained the Defendants, as determined by this Court at the hearing of
August 7, 2006,” and that, “[a]s a result of being on notice no later than 1995 of his potential
claim, all of the Plaintiffs’ potential claims, including any claim against Spector, would have
expired by the time Plaintiffs first retained Defendants in 1999.” Defendants made the
following specific request for relief, directed at excising plaintiffs’ allegations from their
original malpractice complaint, which defendants argued were “improperly re-asserted in”
their amended complaint: “Therefore, this Court should dismiss that portion of the Amended
Complaint that contains duplicate allegations against Defendants, namely, all assertions of
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a breach of duty but for the new allegation involving a possible legal malpractice action
against Spector.”
¶ 50 That request was not specifically addressed by Judge Budzinski in the course of the
hearing on the motion to dismiss, and it most certainly was not in the resulting written order.
To the contrary, Judge Budzinski’s written order stated that defendants’ motion to dismiss
the amended complaint was “denied”—period—and defendants were given 28 days to file
a responsive pleading. No paragraphs of plaintiffs’ amended complaint were stricken;
nothing was dismissed. Judge Budzinski left plaintiffs’ amended complaint intact, and the
case went on.
¶ 51 Although defendants would have us believe that Judge Suriano’s August 7, 2006, ruling
was undoubtedly a final adjudication, their own actions, from the filing of their motion to
dismiss plaintiffs’ amended complaint, to their filing of a responsive pleading after their
motion was denied, evince their lack of conviction in the position they now espouse. As
noted previously, in their answer to the amended complaint, they continued to argue the
finality of Judge Suriano’s ruling—implicitly acknowledging it was not a matter finally
decided—and conceded the uncertainty of the situation by stating: “To the extent the
allegations contained within this paragraph are deemed to remain despite the dismissal in the
aforesaid Order, Defendants deny the allegations contained therein.”
¶ 52 We believe a party claiming res judicata—as the party bearing the burden of showing
that res judicata applies—has a duty to clarify the record so as to clearly demonstrate his
entitlement to the doctrine’s application. Defendants have failed to carry their burden.
¶ 53 We acknowledge defendants’ contention that, “[t]o the extent that the written order raises
a question regarding Judge Budzinski’s ruling, her oral pronouncements control.” We
perceive no such question: defendants’ motion to dismiss plaintiffs’ amended complaint was
explicit in what it alleged and in the relief it sought, and it was denied in its entirety.
Defendants cannot look to oral pronouncements to explain otherwise unambiguous written
orders where the oral pronouncements themselves are, at best, ambiguous indicators of the
court’s intent.
¶ 54 In sum, we find that the defendants, as the parties seeking to invoke the doctrine of res
judicata, have not borne their burden of proving a final judgment was entered for purposes
of the doctrine’s application. Consequently, the judgment of the appellate court is affirmed,
albeit on different reasoning (see People v. McDonough, 239 Ill. 2d 260, 275 (2010) (this
court is not bound by the appellate court’s reasoning and may affirm on any basis presented
in the record)), and this cause is remanded to the circuit court for further proceedings
consistent with this opinion.
¶ 55 Affirmed and remanded.
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