                                   2014 IL App (1st) 140342

                                                                            SECOND DIVISION
                                                                             September 30, 2014


No. 1-14-0342

WILLIAM T. ANDREWS,                                        )
                                                           )                Appeal from the
       Plaintiff-Appellant,                                )                Circuit Court of
                                                           )                Cook County.
v.                                                         )
                                                           )
DAGOBERTO GONZALEZ, as Surviving Partner of                )
G and G Cement Contractors, an Illinois Partnership        )                No. 13 L 8116
                                                           )
       Defendant-Appellee                                  )
                                                           )                Honorable
(Century National Insurance Company,                       )                Kathy M. Flanagan,
                                                           )                Judge Presiding.
       Defendant).                                         )

       JUSTICE LIU delivered the judgment of the court, with opinion.
       Justices Neville and Pierce concurred in the judgment and opinion.

                                           OPINION

¶1     Plaintiff, William T. Andrews, filed suit against defendant, Dagoberto Gonzalez

(Dagoberto), to recover an outstanding judgment awarded in a personal injury lawsuit against

G & G Cement Contractors (G&G), a partnership of which Dagoberto was the sole surviving

partner. The circuit court granted Dagoberto's motion to dismiss pursuant to section 2-619(a)(4)

of the Code of Civil Procedure (Code) (735 ILCS 5/2-619(a)(4) (West 2012)), finding that

plaintiff's claim was barred by res judicata because Dagoberto was a named defendant in the

prior underlying action and was found not liable for negligence. On appeal, plaintiff contends

that the circuit court erred in dismissing his claim against Dagoberto because various provisions

of the Uniform Partnership Act (1997) (Act) (805 ILCS 206/100 et seq. (West 2012)) and

sections 2-410 and 2-411 of the Code (735 ILCS 5/2-410, 2-411 (West 2012)) demonstrate that
1-14-0342


res judicata does not bar a judgment creditor of a partnership from enforcing an outstanding

judgment against a partner who was named individually in the underlying lawsuit. For the

reasons that follow, we reverse the judgment of the circuit court of Cook County and remand the

cause for further proceedings.

¶2                                           BACKGROUND

¶3                                    A. Personal Injury Lawsuit

¶4      On February 11, 2007, plaintiff was involved in an automobile accident with an

employee of G&G, an Illinois general partnership owned by two brothers, Dagoberto and Jose

Gonzalez, the latter of whom is now deceased. He subsequently filed suit against G&G,

Dagoberto, the estate of Jose Gonzalez, and Luis Chavez, the driver of the vehicle, alleging

negligence in the causing of the accident. 1 As pertinent here, Dagoberto was named as a

defendant based solely on a theory of respondeat superior. In his third amended complaint,

plaintiff alleged, inter alia, that Dagoberto owned the Ford truck driven by Chavez; that

Dagoberto employed Chavez and allowed him to use the truck; that Dagoberto breached his duty

to plaintiff through the negligent acts of Chavez; and that as a direct and proximate result of this

breach, Chavez drove the Ford truck into plaintiff's car, causing him serious injury.

¶5      Following a trial, the jury returned a verdict against G&G and Chavez, but in favor of

Dagoberto and the estate of Jose Gonzalez. In its response to special interrogatories, the jury

specifically found that, at the time of the accident, Chavez was an employee of G&G, but not of

Dagoberto or Jose, individually. The jury ultimately awarded plaintiff $3,092,000 in damages

and judgment was subsequently entered on the verdict. No posttrial motions were filed and no

appeal was ever taken.

        1
          Jose Gonzalez, Dagoberto's brother and the other partner of G&G, died during the pendency of the
negligence action. John Grob, as special administrator of the estate of Jose Gonzalez, was substituted as the
defendant in the suit.

                                                         2
1-14-0342


¶6                     B. The Instant Lawsuit and Bad-Faith Claims

¶7     At the time of the accident, G&G was insured under a business auto policy issued by

Century National Insurance Company (CNIC). After trial, CNIC refused to pay its policy limit

of $300,000 unless plaintiff would execute a full release of the entire judgment. Plaintiff filed

citations to discover assets against both CNIC and Dagoberto. On April 25, 2013, the circuit

court entered an agreed order requiring CNIC to pay the policy limit of $300,000 plus interest

and costs. Thereafter, in May of 2013, the court also ordered Dagoberto to assign to plaintiff "all

rights and choses of action that G&G has against CNIC." Dagoberto executed the assignment,

"under protest," in both English and Spanish versions.

¶8     On July 17, 2013, plaintiff filed the instant action against CNIC and Dagoberto. Plaintiff

brought various claims against CNIC for alleged bad faith in initially refusing to tender the

policy limit on behalf of G&G, its insured. As pertinent here, plaintiff also sought to recover

from Dagoberto, individually, the unsatisfied judgment amount he was awarded against G&G in

the prior 2007 personal injury suit.

¶9     Dagoberto filed a motion to dismiss pursuant to section 2-619(a)(4) of the Code, asserting

that plaintiff's claim was barred by the doctrine of res judicata because Dagoberto had already

obtained a judgment in his favor in the personal injury lawsuit. He characterized plaintiff's new

claim against him as merely "an attempt to get a second bite of the apple," noting that plaintiff

previously, but unsuccessfully, sought to enforce the judgment against him in a supplementary

proceeding.

¶ 10   Plaintiff responded by pointing out that sections 2-410 and 2-411 of the Code (735 ILCS

5/2-410, 2-411 (West 2012)), read together, create an exception to the res judicata doctrine.




                                                3
1-14-0342


Specifically, he argued that sections 2-410 and 2-411 of the Code allow a separate action to

enforce a partner's individual liability for a partnership obligation.

¶ 11   On January 13, 2014, the circuit court entered an order granting Dagoberto's motion to

dismiss. The court agreed that plaintiff's claim was barred by res judicata, noting:

               "Here *** Dagoberto was named a defendant in the underlying

               action and a verdict was entered finding him not liable for the

               judgment. The Plaintiff did not appeal this verdict and filed a

               citation to discover assets. In that proceeding, the court limited the

               Plaintiff to an assignment of Dagoberto's chose in action against

               the insurance company.        The Plaintiff cannot now seek to re-

               litigate Dagoberto's liability and the claim against him *** is

               barred by res judicata."

¶ 12   The court included a finding pursuant to Illinois Supreme Court Rule 304(a) (eff. Feb. 26,

2010) that there was no just reason to delay the enforcement or appeal of the lawsuit. We

therefore have jurisdiction over this appeal.

¶ 13                                        ANALYSIS

¶ 14   On appeal, plaintiff contends that the circuit court erred in dismissing his claim against

Dagoberto, which sought to recover the unsatisfied portion of the judgment against G&G, on the

ground that it was barred by res judicata. He argues that sections 306 and 307 of the Act create

a "secondary liability" for partners for the unsatisfied obligations of their partnerships. Further,

he argues that sections 2-410 and 2-411 of the Code "expressly authorize a separate action to

enforce a partnership obligation and provide the procedural means by which a separate judgment

against the individual partner may be obtained." He asserts that, in light of this statutory scheme,



                                                   4
1-14-0342


this court should follow other jurisdictions and hold that res judicata does not bar a claim against

a partner to enforce a partnership judgment where the partner was previously sued and found not

liable for the underlying personal injury.

¶ 15   Dagoberto, meanwhile, responds that plaintiff is merely "attempt[ing] to re-litigate [his]

liability in this second suit." He argues that plaintiff's claim is barred under the doctrine of res

judicata because plaintiff had a prior opportunity to obtain a judgment against him for the

partnership's obligation during the underlying personal injury action. He further maintains that

neither the Act nor sections 2-410 and 2-411 of the Code create an exception to res judicata.

¶ 16   A section 2-619 motion to dismiss admits the legal sufficiency of the complaint, but

asserts affirmative matter that defeats the plaintiff's claim. King v. First Capital Financial

Services Corp., 215 Ill. 2d 1, 12 (2005). We review de novo the circuit court's order granting a

section 2-619 motion to dismiss. Id.

¶ 17   We begin by examining the statutory provisions at issue: namely, sections 306 and 307 of

the Act and sections 2-410 and 2-411 of the Code. Our primary objective in interpreting a statute

is to ascertain and give effect to the legislature's intent.       Citizens Opposing Pollution v.

ExxonMobil Coal U.S.A., 2012 IL 111286, ¶ 23. The best indication of such intent is the

language of the statute itself given its plain and ordinary meaning. Id. "Words and phrases

should not be construed in isolation, but interpreted in light of other relevant portions of the

statute so that, if possible, no term is rendered superfluous or meaningless." Land v. Board of

Education of the City of Chicago, 202 Ill. 2d 414, 422 (2002). Ultimately, "we presume that the

legislature, when it enacted the statute, did not intend absurdity, inconvenience, or injustice." Id.

¶ 18   Consistent with this approach, we choose to follow the doctrine of in pari materia, and

agree that two legislative acts addressing the same subject should be considered together so that



                                                  5
1-14-0342


they may be given harmonious effect. Citizens Opposing Pollution, 2012 IL 111286, ¶ 24.

"[Such] doctrine is also applicable to different sections of the same statute and is consonant with

one of our fundamental rules of statutory construction—'to view all of the provisions of a statute

as a whole.' " Collinsville Community Unit School District No. 10 v. Regional Board of School

Trustees, 218 Ill. 2d 175, 185-86 (2006) (quoting Land, 202 Ill. 2d at 422).

¶ 19   Here, sections 306 and 307 of the Act and sections 2-410 and 2-411 of the Code can be

read together as establishing a comprehensive procedure for obtaining and enforcing judgments

against partnerships and their individual partners. Section 307(b) of the Act initially authorizes a

plaintiff to bring "[a]n action *** against the partnership and *** any or all of the partners in the

same action or in separate actions." 805 ILCS 206/307(b) (West 2012). In bringing an action

against the partnership, the plaintiff may sue "in the names of the partners as individuals doing

business as the partnership, or in the firm name, or both." 735 ILCS 5/2-411(a) (West 2012); see

also 805 ILCS 206/307(a) (West 2012) ("A partnership may sue and be sued in the name of the

partnership.").   Section 307(c) of the Act cautions, however, that "[a] judgment against a

partnership is not by itself a judgment against a partner." 805 ILCS 206/307(c) (West 2012).

The general rule is that all partners are jointly and severally liable for any obligation of the

partnership. 805 ILCS 206/306(a) (West 2012). Insofar as the plaintiff seeks to recover from the

partners, however, "[a] judgment against a partnership may not be satisfied from a partner's

assets unless there is also a judgment against the partner." 805 ILCS 206/307(c) (West 2012).

¶ 20   The question presented here is what recourse is available when a plaintiff cannot satisfy a

judgment against a partnership. Section 2-411(b) of the Code provides that "[a]n unsatisfied

judgment against a partnership in its firm name does not bar an action to enforce the individual




                                                 6
1-14-0342


liability of any partner." 735 ILCS 5/2-411(b) (West 2012). Section 2-410 of the Code, entitled

"Actions against joint debtors or partners," specifically provides for such an action, stating:

                "All parties to a joint obligation, including a partnership obligation,

                may be sued jointly, or separate actions may be brought against

                one or more of them. A judgment against fewer than all the parties

                to a joint or partnership obligation does not bar an action against

                those not included in the judgment or not sued." 735 ILCS 5/2-410

                (West 2012).

Section 307(d) of the Act, meanwhile, limits the partner's individual liability for a partnership

debt to certain circumstances. Specifically:

       "A judgment creditor of a partner may not levy execution against the assets of the partner

       to satisfy a judgment based on a claim against the partnership unless the partner is

       personally liable for the claim under Section 306 and:

                (1) a judgment based on the same claim has been obtained against the partnership

            and a writ of execution on the judgment has been returned unsatisfied in whole or in

            part;

                (2) the partnership is a debtor in bankruptcy;

                (3) the partner has agreed that the creditor need not exhaust partnership assets;

                (4) a court grants permission to the judgment creditor to levy execution against

            the assets of a partner based on a finding that partnership assets subject to execution

            are clearly insufficient to satisfy the judgment, that exhaustion of partnership assets is

            excessively burdensome, or that the grant of permission is an appropriate exercise of

            the court's equitable powers; or



                                                  7
1-14-0342


               (5) liability is imposed on the partner by law or contract independent of the

            existence of the partnership." 805 ILCS 206/307(d) (West 2012).

¶ 21   The parties here interpret the foregoing provisions in fundamentally different ways.

Plaintiff reads the foregoing provisions as creating two distinct types of liability: (1) "direct"

liability, where a judgment is obtained based on a partner's "direct" liability in law or contract,

independent of the existence of the partnership; and (2) "secondary" liability, where a

"partnership obligation remains unsatisfied and *** the partnership assets have been exhausted."

In the case of "direct" liability, plaintiff argues that a creditor of the partnership may immediately

execute against the assets of a partner to satisfy a judgment against the partnership. 805 ILCS

206/307(d)(5) (West 2012). When it comes to "secondary" liability, however, plaintiff argues

that a separate, subsequent action against an individual partner is required. The reason, he

claims, is that a judgment against the partner may only be obtained once the partnership assets

have been exhausted.      Plaintiff argues that sections 2-410 and 2-411 of the Code, which

specifically authorize an action against an individual partner to enforce an unsatisfied judgment

against a partnership, "operate as an exception to res judicata" in the case of secondary liability.

¶ 22   Dagoberto, on the other hand, reads the foregoing provisions slightly differently.

Dagoberto maintains that there are two different ways by which a judgment can be obtained

against a partner under section 306 of the Act: (1) a plaintiff can bring an action against both the

individual partner and the partnership and obtain a judgment as to both; or (2) a plaintiff can

bring suit against the partnership and obtain a judgment, then bring a second suit to hold the

partner liable for the partnership's judgment. He argues that, in the case at bar, plaintiff chose the

first method, failed to obtain a judgment against him, and is now "attempting to sue [him] a




                                                  8
1-14-0342


second time for the partnership obligation as though he had not been named in the first suit as

directly liable or 'doing business as' G&G Cement Contractors."

¶ 23   Surprisingly, there appear to be no Illinois decisions that directly address the present

issue, i.e., whether a judgment creditor of a partnership may sue an individual partner to enforce

the partnership's obligation when the partner was named in the underlying action and found not

liable. Plaintiff has nonetheless cited three cases from foreign jurisdictions that he claims

support the view that res judicata should not bar his claim against Dagoberto: Wayne Smith

Construction Co. v. Wolman, Duberstein & Thompson, 604 N.E.2d 157 (Ohio 1992) (Wayne

Smith I); Thompson v. Wayne Smith Construction Co., 640 N.E.2d 408 (Ind. Ct. App. 1994)

(Wayne Smith II); and Travelers Insurance Co. v. St. Jude Hospital of Kenner, Louisiana, Inc.,

37 F.3d 193 (5th Cir. 1994). These cases are not binding on this court; however, "comparable

court decisions of other jurisdictions 'are persuasive authority and entitled to respect.' " Kostal v.

Pinkus Dermatopathology Laboratory, P.C., 357 Ill. App. 3d 381, 395 (2005) (quoting In re

Marriage of Raski, 64 Ill. App. 3d 629, 633 (1978)). Given the lack of Illinois case law on point,

we choose to examine the cited cases. See id.

¶ 24   Wayne Smith I and Wayne Smith II are collection actions arising out of the same breach

of contract action in South Carolina. Wayne Smith I, 604 N.E.2d at 158; Wayne Smith II, 640

N.E.2d at 410. The common plaintiff in those cases obtained a judgment against a partnership

and its individual partners in the amount of $107,381.65. Wayne Smith I, 604 N.E.2d at 158;

Wayne Smith II, 640 N.E.2d at 410. The South Carolina appellate court, however, vacated the

judgment against the individual partners, finding that the plaintiff had "contracted only with the

partnership as an entity and not with the partners individually." Wayne Smith I, 604 N.E.2d at

158; Wayne Smith II, 640 N.E.2d at 410.



                                                  9
1-14-0342


¶ 25   Wayne Smith I was an Ohio action brought by the plaintiff against the individual partners

to collect the outstanding judgment against the partnership. Wayne Smith I, 604 N.E.2d at 159.

The individual partners agreed in that case that the partnership's assets were insufficient to

satisfy the outstanding judgment. Id. They maintained, however, that they were not personally

liable for the outstanding judgment based on the South Carolina Court of Appeals opinion, which

they alleged had overturned the judgment with respect to their liability. Id. The trial court

ultimately ruled in favor of the plaintiff, and the individual partners appealed to the Supreme

Court of Ohio. Id.

¶ 26   On appeal, the individual partners argued that res judicata barred the plaintiff from

executing on their personal assets to satisfy the outstanding judgment against the partnership. Id.

The Supreme Court of Ohio, looking to the South Carolina Court of Appeals' opinion, initially

found that the court used ambiguous language in referring to the liability of the partners "as

individuals." Id. The court questioned:

               "[D]id the South Carolina court determine that since the partners

               had not contracted in their individual capacities, [the plaintiff]

               could not obtain satisfaction of the entire debt from any one

               partner (i.e., no several liability)? Or did that court hold that the

               partners' personal assets were not available to satisfy any portion

               of the outstanding debt (i.e., no joint liability)?" Id. at 159-60.

¶ 27   The Supreme Court of Ohio resolved this question by looking to South Carolina law.

The court noted that "South Carolina common law *** requires that a partnership judgment

creditor first exhaust partnership assets before proceeding against the individual property of the

partners." Id. at 160. The court explained that "[o]nly after satisfying this condition precedent



                                                 10
1-14-0342


may the judgment creditor then proceed against the property of the individual partners who, at

the time of the South Carolina judgment rendered herein, would have been jointly liable for their

proportionate share of the partnership debt." (Emphasis in original) Id. The Supreme Court of

Ohio ultimately determined that, in light of South Carolina case law and legislation, the South

Carolina Court of Appeals "held that actions could not be maintained and judgments rendered

against the individual partners upon the entire debt, thereby vacating the lower court's decision as

to 'several' liability only."   Id.   It concluded that "[t]he partners' proportionate share of

responsibility for the contractual debt of their partnership remains, leaving to [the plaintiff] the

power of execution." Id.

¶ 28   Wayne Smith II, meanwhile, was a separate action brought by the plaintiff to collect the

partnership debt from a single partner, Kenneth Thompson, who resided in the State of Indiana.

Wayne Smith II, 640 N.E.2d at 410. The trial court in that case entered judgment against

Thompson for the partnership's entire outstanding judgment. Id. Thompson then appealed,

arguing that res judicata prevented Ohio and Indiana from reaching the partners' assets in light of

the South Carolina Court of Appeals' decision vacating the judgment against the individual

partners.   Id. at 411.    Thompson specifically claimed that "South Carolina conclusively

established the lack of individual liability on the part of the partners." Id. The Indiana Court of

Appeals noted, however, that Thompson's argument "presuppose[d] that the only way to reach a

partner's individual assets is to show that the partner, in his individual capacity, entered into a

separate contract with the creditor." Id. The court noted that in South Carolina and most other

states that impose joint liability for partnership obligations, there are, in fact, two ways to

establish the individual liability of a partner: (1) by proving a separate contract, and (2) by

proving that partnership assets have been exhausted. Id. The court noted that there was a



                                                11
1-14-0342


distinction in South Carolina law that "a partnership creditor must try to satisfy his judgment

from partnership property before reaching individual property; whereas an individual creditor

may attach any property the partner owns at any time." Id. The court found that "[b]y vacating

the judgment against the individual partners, the South Carolina appellate court merely

established that, at the time judgment was entered, [the plaintiff] was still a creditor of the

partnership and not of each partner individually." Id. at 412. It ultimately concluded:

                      "The South Carolina decision established that neither of the

               two circumstances giving rise to individual liability existed. The

               existence of a separate contract would have to be raised in the

               original action, thus the court's finding on that issue is res judicata

               and binding upon this court through the Full Faith and Credit

               Clause. However, it is impossible for a creditor to prove that

               partnership assets have been exhausted until a judgment had been

               procured against the partnership and returned unsatisfied.        The

               court based its finding of non-liability upon separate-contract

               grounds. It did not state that both methods of proving individual

               liability had been foreclosed.         Thompson concedes that the

               partnership assets have been exhausted.            Accordingly, [the

               plaintiff] is now on the level of other unsecured creditors of all the

               individual partners." Id.

¶ 29   The final case cited by plaintiff comes from the United States Court of Appeals for the

Fifth Circuit. In Travelers Insurance Co., the plaintiff filed a multicount complaint against a

partnership and its general partner, seeking, inter alia, a judgment against the partnership on a



                                                 12
1-14-0342


promissory note of which the plaintiff was the payee. Travelers Insurance Co., 37 F.3d at 194.

The plaintiff made no reference in its complaint to the general partner's "secondary liability for

any judgment rendered against the Partnership," and a judgment was ultimately entered against

the partnership alone. Id. The plaintiff attempted to collect the judgment from the partnership,

but was unable to do so and filed a second suit against the general partner. Id. The parties both

moved for summary judgment, and the general partner asserted that the plaintiff's claim was

barred by res judicata. Id. at 194-95. The general partner argued that "because it was a

defendant in the Partnership Litigation, [the plaintiff] was required to assert all claims against it

in that litigation, including any for secondary liability on a judgment against the Partnership."

Id. at 195. The district court, however, granted summary judgment to the plaintiff. Id.

¶ 30   On appeal, the Fifth Circuit noted that federal res judicata rules applied and that the only

factor at issue was "whether both cases involve[d] the same cause of action." Id. Applying a

transactional test to address this factor, the court turned to its prior decision in Federal Deposit

Insurance Corp. v. Mmahat, 960 F.2d 1325 (5th Cir. 1992), which "held implicitly that, under

Louisiana law, a judgment creditor's claim against a partner for his virile share of a judgment

against the partnership does not arise out of the same nucleus of operative facts as the

partnership's debt." Travelers Insurance Co., 37 F.3d at 196. While the court observed that the

general partner was a party in the underlying litigation, unlike the partner in Mmahat, it found

this to be "a distinction without a difference." Id. Specifically, it found:

               "[B]ecause we are dealing with the transactional test aspect (fourth

               factor), [the general partner's] presence in the Partnership

               Litigation is immaterial in determining whether this action *** is

               barred. The issue, in its simplest terms, is whether [the plaintiff's]



                                                 13
1-14-0342


               claim against [the general partner] in this action arises from the

               same nucleus of operative facts as in the Partnership Litigation. As

               stated, pursuant to the holding in Mmahat, it does not." Id. at 196-

               97.

¶ 31   The case at bar is similar to the preceding cases in that plaintiff is seeking to collect an

outstanding judgment against a partnership from an individual partner despite the fact that the

individual partner was named in the underlying lawsuit. It is further similar in that the individual

partner, Dagoberto, claims that such an action is barred by res judicata. We find, similar to

Travelers Insurance Co., that res judicata does not bar plaintiff's claims in this case.

¶ 32   "Res judicata is an equitable principle intended to prevent multiple lawsuits between the

same parties involving the same facts and issues." Langone v. Schad, Diamond & Shedden,

P.C., 406 Ill. App. 3d 820, 832 (2010). "Res judicata bars any subsequent actions when a final

judgment was reached on the merits by a court of competent jurisdiction between their same

parties or privies on the same cause of action." Id. " 'Res judicata is conclusive as to any matter

that was offered to sustain or defeat the claim or demand, as well as any other matter that might

have been offered for that purpose.' " Id. (quoting Dalan/Jupiter, Inc. v. Draper & Kramer, Inc.,

372 Ill. App. 3d 362, 367 (2007)). "Therefore, the moving party must demonstrate (1) an

identity of the parties or their privies in the two lawsuits; (2) an identity to the causes of action;

and (3) a final judgment on the merits of the first lawsuit." Id.

¶ 33   In this case, as in Travelers Insurance Co., the only factor at issue between the parties is

whether there is an identity to the causes of action in the instant lawsuit and the previous

litigation. We apply a transactional test to make this determination. River Park, Inc. v. City of

Highland Park, 184 Ill. 2d 290, 310 (1998). Under this test, "separate claims will be considered



                                                 14
1-14-0342


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.

¶ 34     Here, plaintiff's third amended complaint filed in the previous litigation alleged that

Dagoberto was negligent for the car accident which led to his injuries. The instant complaint, on

the other hand, seeks to recover from Dagoberto, individually, an unsatisfied judgment against

G&G, the firm of which Dagoberto was a partner. There is no question that these two cases arise

from different groups of operative facts: the prior litigation arose from a car accident involving

an employee of G&G; the latter arose out of the failure of G&G to satisfy its partnership debts.

We therefore find that res judicata does not bar plaintiff from bringing a second action against

Dagoberto to enforce the obligations of the partnership. 2

¶ 35     We agree with plaintiff, and the court in Wayne Smith II, that there are two distinct ways

of establishing the liability of an individual partner: (1) through "direct" liability by showing that

an individual partner was liable, personally or vicariously, for an injury "independent of the

existence of the partnership"; and (2) through "secondary" liability by showing that the

individual partner is liable for an unsatisfied judgment against the partnership. Today, we hold

that plaintiff is not barred from seeking to establish Dagoberto's secondary liability, through his

status as a general partner of G&G, for an unsatisfied judgment against the partnership merely

because plaintiff has previously sought to hold him vicariously liable for the underlying

negligence caused by an employee of the partnership.

¶ 36     In reaching our conclusion, we have considered the text of sections 306 and 307 of the

Act and sections 2-410 and 2-411 of the Code and find nothing to suggest that a plaintiff is

barred from maintaining separate actions against an individual partner for his direct and


         2
            We note that plaintiff's filing of a citation to discover assets against Dagoberto was not an "action" under
section 2-411(b) of the Code. Johnson v. St. Therese Medical Center, 296 Ill. App. 3d 341, 347 (1998).

                                                          15
1-14-0342


secondary liability. On the contrary, we find that sections 2-410 and 2-411(b) of the Code

broadly authorize creditors of partnerships to bring suit against individual partners to collect on

unsatisfied judgments of the partnership. See 735 ILCS 5/2-410, 2-411(b) (West 2012).

¶ 37   Dagoberto argues that this court's holding would lead to absurd and unfair results because

it would "allow a second suit for the same obligation." His argument fails. This is not a

situation in which a claimant seeks two bites at "the" apple; instead, this situation involves two

separate and distinct apples. As indicated above, our holding does not allow a second suit for the

same obligation; rather, it allows separate suits for separate obligations, i.e., one suit to

determine Dagoberto's liability—under respondeat superior—for an employee's negligence, and

another suit to determine Dagoberto's liability—as a general partner of G&G—for the

partnership's unsatisfied judgments. We therefore find Dagoberto's claim to be without merit

and conclude that the circuit court erred in dismissing plaintiff's claim against Dagoberto on the

grounds of res judicata.

¶ 38                                   CONCLUSION

¶ 39   For the reasons stated, we reverse the order of the circuit court and remand the cause for

further proceedings.

¶ 40   Reversed and remanded.




                                                16
