Ryan Shupe Comments on Illinois Supreme Court’s Res Judicata Opinion
Ryan has significant experience in a wide range of civil defense litigation and growing experience in business advisory matters. He focuses his practice primarily in the areas of business and commercial matters and medical malpractice litigation. Here he comments on the recent Illinois Supreme Court decision of Ward v. Decatur Memorial Hospital:
While not unique to the medical malpractice setting, voluntary dismissal under Section 2-1009 of the Illinois Code of Civil Procedures is a common device used by plaintiff attorneys in these types of cases. See 735 ILCS 5/2-1009. When this device is used, a plaintiff may refile the lawsuit within one year of the voluntary dismissal, often providing a plaintiff attorney much-needed time to crystalize his or her case prior to trial. See 735 ILCS 5/13-217. Nonetheless, a refiled action could be subject to dismissal if there is a viable argument that the doctrine of res judicata bars that refiling. One of the three requirements of res judicata is “a final judgment on the merits rendered by a court of competent jurisdiction” See Wilson v. Edward Hosp., 2012 IL 112898, ¶9. However, whether a case satisfies this requirement of “finality” is not always clear, particularly in cases where some portion, but not all, of the plaintiff’s claims were involuntarily dismissed during the original action. In such cases, if any one claim is found to constitute a final judgment on the merits, the entire action will be barred on refiling. See Cooney v. Rossiter, 2012 IL 113227, ¶18 (“The doctrine of res judicata applies to all matters that were actually decided in the original action, as well as to matters that could have been decided.”).
The Illinois Supreme Court recently had occasion to consider the finality element of res judicata in this context in Ward v. Decatur Memorial Hospital, 2019 IL 123937 (June 20, 2019). In that decision, the Supreme Court concluded that involuntary dismissals entered in the plaintiff’s original action “without prejudice” and/or accompanied by the trial court’s leave to replead did not constitute final judgments on the merits for purposes of res judicata and, therefore, did not bar the plaintiff’s refiling of a medical malpractice action after voluntary dismissal. See id. at ¶¶48-50. This conclusion affirmed the Supreme Court’s prior holding in Richter v. Prairie Farms Dairy, Inc., 2016 IL 119518. In so doing, the Supreme Court reiterated that “a dismissal order is a final adjudication on the merits under [Illinois Supreme Court] Rule 273 when the order specifies that it is ‘with prejudice’ or when the trial court denies leave to file an amended complaint.” Ward, 2019 IL 123937, ¶50 (citing Richter, 2016 IL 119518, ¶25); see Ill. S. Ct. R. 237.
In a special concurring opinion, however, Chief Justice Karmeier (joined by Justices Thomas and Neville) admonished the majority for going too far with its holding, in contravention of the plain language of Rule 273 and prior decisions of the Court. In particular, the concurrence focused on the underlying trial court’s dismissal of three counts of plaintiff’s original complaint without explicit designation of “with” or “without prejudice” and without any order regarding leave to amend. Under the majority’s opinion, he explained, such dismissal would arguably not constitute a final judgment for purposes of res judicata; however, Rule 273 expressly provides that in the absence of contrary direction of the court or statute, most involuntary dismissals are to be considered final adjudications on the merits. Id. at ¶¶76–77; see Ill. S. Ct. R. 237. Nonetheless, because the particular dismissal at issue was made by the trial court on jurisdictional grounds, one of the three statutory exceptions to finality under Rule 273, the concurring opinion ultimately agreed with the majority in concluding that the plaintiff’s refiling was not barred by res judicata. Ward, 2019 IL 123937, ¶¶79, 92.
In conclusion, the recent decision of the Illinois Supreme Court in Ward provides a framework for both plaintiff and defense counsel to consider when seeking orders from the trial court on motions for involuntary dismissal. If any of plaintiff’s claims are dismissed “with prejudice” or without leave to refile, such dismissals will likely preclude plaintiff’s ability to voluntarily dismiss and refile his or her cause of action at a later date. Furthermore, Ward’s concurring justices point out that unless the involuntary dismissal order specifically states that it is without prejudice or specifically grants leave to amend, Rule 273 will render that dismissal a final adjudication on the merits by default and likely also bar refiling.