                                                                            FIFTH DIVISION
                                                                            June 23, 2006



No. 1-04-3800

RONALD PIAGENTINI and ANNETTE PIAGENTINI,                       )    Appeal from the
                                                                )    Circuit Court of
                  Plaintiffs-Appellants,                        )    Cook County
                                                                )
v.                                                              )
                                                                )
FORD MOTOR COMPANY,                                             )    Honorable
                                                                )    Bill Taylor,
                  Defendant-Appellee.                           )    Judge Presiding.


                           MODIFIED UPON DENIAL OF REHEARING

                  PRESIDING JUSTICE GALLAGHER delivered the opinion of the court:

       Plaintiffs, Ronald Piagentini and Annette Piagentini, appeal from an order of the trial

court granting defendant, Ford Motor Company's motion for summary judgment based upon res

judicata. We reverse and remand.

                                           BACKGROUND

       Plaintiffs' claims against defendant, Ford Motor Company (Ford), arose from a motor

vehicle accident that occurred in Chicago, Illinois. Plaintiff Ronald Piagentini was driving a

1987 Ford Bronco II that collided with another vehicle. Plaintiffs originally filed suit on

November 10, 1994, against the alleged driver 1 of the other vehicle claiming that the driver sped

through a red light. This case was numbered 94 L 14330 and will be referred to as Piagentini I.


       1
        There were two individuals in the other vehicle and plaintiffs alleged that one of the two

was the driver.
1-04-3800

On March 2, 1995, plaintiffs amended their complaint to add Ford as a defendant.

        Plaintiffs' eight-count amended complaint contained four counts against Ford. Counts I

and II were brought by Ronald Piagentini. Count I sounded in strict liability in tort. Count II

sounded in negligence. Both counts contained, in subparagraphs a, b, and c, allegations that the

Bronco was designed with insufficient stability in swerving maneuvers and was unreasonably

susceptible to rolling over. Additionally, both counts contained, in subparagraphs d, e, and f,

allegations that the Bronco lacked an adequate seatbelt/occupant protection system. Counts V

and VI were brought by Annette Piagentini for loss of society and repeated the theories in counts

I and II.

        On February 19, 1999, based upon plaintiffs' failure to disclose any expert witness

testimony substantiating the allegations of stability and rollover defects, the trial court entered an

agreed order for partial summary judgment on the stability and rollover allegations contained in

subparagraphs a, b, and c. The trial court dismissed plaintiffs' complaint and granted plaintiffs

leave to replead only those claims pertaining to allegations of a defective driver's seatbelt. 2

        2
            In its motion for partial summary judgment, Ford had conceded that plaintiffs had

disclosed expert witness testimony to substantiate the allegations of a seatbelt defect.




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1-04-3800

Neither plaintiffs nor Ford requested Rule 304(a) language (155 Ill. 2d R. 304(a)).

       On March 19, 1999, plaintiffs filed a second amended complaint and omitted the

allegations pertaining to vehicle stability that were the subject of the partial summary judgment.

Subsequently, on November 5, 1999, pursuant to section 2-1009 of the Code of Civil Procedure

(735 ILCS 5/2-1009)(West 2000), plaintiffs voluntarily dismissed the remaining claims. The

trial court granted the motion without prejudice and without costs. At no point in time did

plaintiffs appeal the February 19,1999, order granting partial summary judgment.

       On October 20, 2000, within one year of the voluntary dismissal, plaintiffs refiled this

cause of action. The case was assigned a number of 00 L 12145 and will be referred to as

Piagentini II. All previous allegations, including those related to the vehicle stability and

rollover tendency, as well as its seatbelt/occupant protection system, were included. On January

2, 2001, apparently after realizing this error, plaintiffs filed an amended complaint that did not

contain any allegations related to the stability or rollover claims, but instead only contained

allegations relating to a defective seatbelt/occupant protection system.

       Three and a half years later, on May 13, 2004, which was also three months prior to the

trial date, Ford filed a motion for summary judgment in which it invoked the equitable doctrine

of res judicata. Ford argued that the February 19, 1999, court order granting partial summary

judgment in Piagentini I, which disposed of only those allegations relating to the stability and

rollover claims, operated as a bar to any and all causes of action filed after plaintiffs' voluntary

dismissal taken on November 5, 1999. On July 27, after full briefing and argument, the trial

court granted Ford's motion for summary judgment. The trial court subsequently denied



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plaintiffs' motion for reconsideration on November 29, 2004. This timely appeal followed.

                                   STANDARD OF REVIEW

       Our standard of review of a trial court's grant of summary judgment is de novo. City of

Rockford v. Unit Six of the Policemen's Benevolent & Protective Ass'n, 362 Ill. App. 3d 556,

560, 840 N.E.2d 1283, 1287 (2005).



                                           ANALYSIS

       Under the doctrine of res judicata, a final judgment on the merits rendered by a court of

competent jurisdiction bars any subsequent actions between the same parties or their privies on

the same cause of action. Rein v. David A. Noyes & Co., 172 Ill. 2d 325, 334, 665 N.E.2d 1199,

1204 (1996). Res judicata is an equitable doctrine that is designed to prevent a multiplicity of

lawsuits between the same parties where the facts and issues are the same. Murneigh v. Gainer,

177 Ill. 2d 287, 299, 685 N.E.2d 1357, 1363 (1997). ARes judicata promotes judicial economy

by preventing repetitive litigation and [additionally] protects parties from being forced to bear

the unjust burden of relitigating essentially the same case.@ Arvia v. Madigan, 209 Ill. 2d 520,

533, 809 N.E.2d 88, 97 (2004). Equity dictates that the doctrine of res judicata will not be

technically applied if to do so would create inequitable and unjust results. Best Coin-Op, Inc. v.

Paul F. Ilg Supply Co., 189 Ill. App. 3d 638, 650, 545 N.E.2d 481, 489 (1989). Res judicata

should not be applied by this court where it would be fundamentally unfair to do so. Nowak v. St.

Rita High School, 197 Ill. 2d 381, 390, 757 N.E.2d 471, 477 (2001). The doctrine should only

be applied as fairness and justice require. Best Coin-Op, 189 Ill. App. 3d at 650, 545 N.E.2d at



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489.

       Illinois courts also adhere, as a matter of public policy, to a general rule against the

splitting of claims or causes of action. Best Coin-Op, 189 Ill. App. 3d at 657, 545 N.E.2d at 493.

Under the rule against claim-splitting, where a cause of action is in its nature entire and

indivisible, a plaintiff cannot divide it in order to maintain separate lawsuits. Best Coin-Op, 189

Ill. App. 3d at 657, 545 N.E.2d at 493. That is, a plaintiff is not permitted to sue for part of a

claim in one action and then sue for the remainder in another action. Rein, 172 Ill. 2d at 340, 665

N.E.2d at 1206. Rather, the law requires that a plaintiff must assert all the grounds of recovery

he may have against the defendant, arising from a single cause of action, in one lawsuit. Handley

v. Unarco Industries, Inc., 124 Ill. App. 3d 56, 66, 463 N.E.2d 1011, 1019 (1984); see also

Morris v. Union Oil Co. of California, 96 Ill. App. 3d 148, 421 N.E.2d 1011 (1981) (a party

must set out in his pleadings all of the grounds of recovery he may have). A plaintiff cannot

preserve the right to bring a second action after loss of the first merely by limiting the theories of

recovery opened by the pleadings in the first action. Best Coin-Op, 189 Ill. App. 3d at 657, 545

N.E.2d at 493.

       The rule against claim-splitting, which has been described as an aspect of the law of

preclusion, is based upon the principle that litigation should have an end and that no person

should be unnecessarily harassed with a multiplicity of lawsuits. Rein, 172 Ill. 2d at 340, 665

N.E.2d at 1207; Saxon Mortgage, Inc. v. United Financial Mortgage Corp., 312 Ill. App. 3d

1098, 1109, 728 N.E.2d 537, 545 (2000). Plaintiffs cannot indulge in piecemeal litigation.

Radosta, 110 Ill. App. 3d at 1068, 443 N.E.2d at 672.



                                                  5
1-04-3800

       In Illinois, even in the instance where a plaintiff initially and properly sets out all of his

theories of recovery in one lawsuit, our supreme court has pronounced that a plaintiff engages in

claim-splitting where, after an involuntary dismissal of a part of his claim, the plaintiff

voluntarily dismisses the entire action for the purpose of appealing that decision and then later

attempts to refile a new action. Rein, 172 Ill. 2d 325, 665 N.E.2d 1199. In Rein, there were two

cases and two sets of appeals. In the first case (Rein I), plaintiffs filed a complaint against a

securities dealer and a salesman, alleging that the defendants fraudulently misrepresented the

nature of certain securities purchased by the plaintiffs. The complaint contained counts that

sought rescission of the purchase pursuant to section 13 of the Illinois Securities Law of 1953

(Ill. Rev. Stat.1989, ch. 121 2, par. 137.13) (statutory counts) and other counts seeking common

law remedies (common law counts). The trial court granted defendants' motion to dismiss the

statutory counts with prejudice as barred by the applicable statute of limitations (see Ill. Rev.

Stat.1989, ch. 121 2, par. 137.13(D). Rein, 172 Ill. 2d at 329, 665 N.E.2d at 1202. The trial

court refused to make a Rule 304(a) finding (155 Ill. 2d R. 304(a)), which would have allowed

an immediate appeal. Rein, 172 Ill. 2d at 330, 665 N.E.2d at 1202. Plaintiffs then voluntarily

dismissed the remainder of the case, i.e., the common law counts, for the purpose of filing an

appeal, under Rule 301 (155 Ill. 2d R. 301), as to the dismissal of the statutory counts. Rein, 172

Ill. 2d at 330, 665 N.E.2d at 1202. The appellate court determined that the statutory counts were

barred by the applicable statute of limitations and affirmed the decision of the trial court. Rein,

172 Ill. 2d at 330, 665 N.E.2d at 1202.

       After the unsuccessful appeal, and approximately 19 months after they had voluntarily



                                                  6
1-04-3800

dismissed the remaining counts of their complaint, plaintiffs refiled the entire case, both the

statutory counts and the common law counts (Rein II). The complaint was Avirtually identical@ to

the complaint filed in Rein I. Rein, 172 Ill. 2d at 331, 665 N.E.2d at 1202. The circuit court

dismissed both sets of counts based on res judicata. The appellate court affirmed, with a strong

dissent by Justice Rathje. The Illinois Supreme Court ultimately affirmed.

       Although recognizing that the express language of sections 2-1009 and 13-217 of the

Code of Civil Procedure (735 ILCS 5/2-1009, 13-217(West 1992)) appeared to give plaintiffs the

absolute right to refile voluntarily dismissed common law counts within one year after the

voluntary dismissal or within the remaining period of limitations, the Illinois Supreme Court, in

Rein, pronounced that these sections should not be read to automatically immunize a plaintiff

against the bar of res judicata when the voluntarily dismissed counts are refiled. Rein, 172 Ill. 2d

at 342-43, 665 N.E.2d at 1208.

       Ford now contends that Rein stands for the proposition that once a motion for partial

summary judgment is granted, even if a plaintiff does not appeal or further litigate those

dismissed claims, he is precluded from voluntarily dismissing the remaining claims under section

2-1009 and later refiling them under section 13-217, because the doctrine of res judicata will

automatically bar any and all claims that could have been brought in the first action, including

those that actually were brought and never litigated. Although the Rein court held that the

doctrine of res judicata barred the second cause of action because all of the requirements were

met, we believe that Rein is distinguishable. The Rein court devoted much of its analysis to the

rule against claim-splitting and relied upon the rule in support of its decision. Rein, 172 Ill. 2d at



                                                  7
1-04-3800

339-43, 665 N.E.2d at 1206-08. Indeed, the Rein court expressly noted that, in the particular

case before it, A[p]laintiffs' quandary *** arises from their decision to split their lawsuit into

separate actions by dismissing the common law counts of their complaints, while attempting to

litigate 3 the rescission counts in Rein I, and then refiling both 4 the common law and rescission

counts in Rein II.@ (Emphasis added.) Rein, 172 Ill. 2d at 339-40, 665 N.E.2d at 1206.

       As the Rein court also explained:

       AIf plaintiffs were permitted to proceed on their common law counts, any plaintiff

       could file an action with multiple counts, dismiss some but not all of the counts,

       obtain a final judgment on the undismissed counts, and if unsuccessful on the

       counts not dismissed, refile the previously dismissed counts. Such a practice

       would impair judicial economy and would effectively defeat the public policy

       underlying res judicata, which is to protect the defendant from harassment and


       3
        The Rein plaintiffs Aattempted to litigate@ the rescission counts by voluntarily

dismissing the action for the purpose of appealing the dismissed rescission counts after

the trial court denied Rule 304(a) language. In the instant case, plaintiffs did not

voluntarily dismiss their action for the purpose of splitting it or appealing part of it.

       4
        Plaintiffs in Rein were relentless and apparently added insult to injury. Not only

did they split their cause of action, but, after the unsuccessful appeal of the statutory

rescission counts, they actually refiled those counts, as well as the common law ones

that had never been litigated.



                                                   8
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       the public from multiple litigation. Moreover, an interpretation contrary to that

       reached here would emasculate Rule 304(a) by allowing a plaintiff to circumvent

       a trial judge's denial of a Rule 304(a) certification by refiling previously

       dismissed counts following an unsuccessful judgment or appeal on counts not

       previously dismissed.@ Rein, 172 Ill. 2d at 343, 665 N.E.2d at 1208.

       None of the policy concerns of the Rein court come into play here. Rein stands for the

proposition that Aa plaintiff seeking to split his claims and appeal in a piecemeal manner may be

barred by res judicata.@ Dubina v. Mesirow Realty Development, Inc., 178 Ill. 2d 496, 507, 687

N.E.2d 871, 876-77 (1997). Rein is procedurally different from the instant case. Plaintiffs were

not trying to circumvent any court ruling and acted properly. First, plaintiffs here asserted all the

grounds of recovery in their pleadings in one lawsuit. See Handley v. Unarco Industries, Inc.,

124 Ill. App. 3d 56, 66, 463 N.E.2d 1011, 1019 (1984). Second, after Ford moved for and

obtained partial summary judgment on parts of plaintiffs' claims, plaintiffs did not seek to

challenge that decision or appeal under Rule 304(a). Third, after voluntarily dismissing their

action, plaintiffs never filed an appeal pursuant to Rule 301. Fourth, when they refiled their

complaint, plaintiffs ultimately only sought recovery for the seatbelt counts which had not ever

been litigated. Rein should not be extended to the facts of the instant case, which is totally free

of claim-splitting. We think this distinction is critical. We believe that claim-splitting requires

an affirmative action on the part of a plaintiff, such as dismissing a case in order to appeal it, and

then filing a second suit. We do not think a voluntary dismissal amounts to claim-splitting

merely because part of the claim has previously been ruled upon and only part remains. Because



                                                  9
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plaintiffs never attempted to appeal or in any way litigate that part of their complaint that had

been dismissed, this case is distinguishable from Rein and it cannot be said that Ford was

harassed by unnecessary litigation.

       Therefore, Rein is inapplicable because of the crucial distinction that plaintiffs did not

attempt to further litigate the unsuccessful claims and then, after an unsuccessful appeal, attempt

to litigate the remaining claims in another action. Unlike the plaintiffs in Rein, they did not

voluntarily dismiss their case for the purpose of appealing the partial summary judgment.

Plaintiffs here effectively did what any plaintiff does who voluntarily dismisses a case and later

refiles. Apart from the fact that Ford had obtained partial summary judgment, thus eliminating

certain allegations from plaintiffs' counts, which nonetheless remained, 5 Ford was in no different

position than any other defendant who, under section 2-1009, is voluntarily dismissed without

prejudice from a lawsuit. Ford was not subjected to the type of harassment that res judicata and

the closely related rule against claim-splitting are designed to prevent. Unlike the Rein


       5
        Because no entire Acount@ was dismissed but, rather, mere suballegations in two

of the counts, plaintiffs have contended that there was no final judgment for purposes of

res judicata.




                                                 10
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plaintiffs, 6 plaintiffs here did not make Ford further litigate the partial summary judgment only

to refile and make Ford litigate a second action.

       To hold that res judicata applies in the instant case would be exalting form over

substance. It cannot be emphasized enough that the doctrine of res judicata is an equitable

doctrine to be used to shield a defendant from abusive practices or repetitious litigation. We do

not believe that it should be used as a sword by a defendant for the sole purpose of avoiding

litigation on the merits. Our supreme court has refused to apply the doctrine where doing so

would deprive a plaintiff of his day in court for a timely asserted claim, despite the fact that there

       6
           The plaintiffs in Rein were clearly engaging in practices that run counter to the

doctrines of fairness and judicial economy. Not only did they take the initial appeal, only to

refile after they lost, but they refiled the very counts that had already been addressed in

that appeal.




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was an adjudication on the merits of another claim that arose from the same transaction. See

Nowak v. St. Rita High School, 197 Ill. 2d at 392, 757 N.E.2d at 479. Thus, we do not believe

res judicata bars these claims.

       Assuming arguendo that Rein applies to the instant case, plaintiffs have also argued

that Ford has waived its defense of res judicata by failing to assert it in a timely manner and has

acquiesced in the litigation in Piagentini II. We agree. The failure of a defendant to object

to a plaintiff's claim-splitting constitutes an acquiescence. Thorleif Larsen & Son, Inc. v.

PPG Industries, Inc., 177 Ill. App. 3d 656, 662, 532 N.E.2d 423, 427 (1988). Where a

defendant has acquiesced, this court has refused to apply res judicata, due to the

manifestly unjust result that the plaintiff would be denied any remedy whatsoever on the

separate claim. Thorleif Larsen, 177 Ill. App. 3d at 662-63, 532 N.E.2d at 427.

       Plaintiffs contend that by litigating this case for 32 years before it raised the res judicata

argument, Ford arguably lost any benefit the doctrine was designed to provide and Ford cannot

now argue that it was unjustly burdened. More importantly, this court believes that it would

hardly be Aequitable@ to allow Ford to successfully raise res judicata after the parties litigated

this case for 32 years. Plaintiffs have spent money on experts, discovery and all of the other

costs associated with bringing a lawsuit.

       Ford did not raise the defense of res judicata at the time of the refiling. Ford contends

that res judicata did not arguably apply until the case of Estate of Cooper ex rel. Anderson v.

Humana Health Plan, Inc., 338 Ill. App. 3d 845, 789 N.E.2d 361 (2003) was published. 7 The

       7
        Ford's timing argument is belied by the fact that the Cooper defendants filed


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Cooper court applied the holdings in Rein and Dubina 8 to facts similar to those in the instant

case, and concluded that the partial summary judgment entered in the first lawsuit filed by

plaintiff became a final judgment upon the voluntary dismissal of the remaining claims and

barred the second refiled suit. Ford now asserts that Cooper is dispositive and that the doctrine

of res judicata barred plaintiffs' second lawsuit.

       We cannot say that we agree with Ford's contention that Cooper is dispositive. The

Cooper court did not discuss the equitable nature of the doctrine of res judicata, nor did it

discuss claim-splitting. In the instant case, Ford concedes that, in applying Cooper, the trial


their res judicata defense in 2001. Moreover, Ford filed its motion to dismiss more than

one year after the Cooper case was published.

       8
        Dubina held that A[an] order of voluntary dismissal, because it disposed of all

matters pending before the circuit court, rendered all orders which were final in nature,

but which were not previously appealable, immediately final and appealable.@ Dubina,

178 Ill. 2d at 503, 687 N.E.2d at 875.




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judge also did not address the equitable nature of the doctrine of res judicata. For these reasons,

we determine that the trial court abused its discretion in allowing Ford to raise the defense of res

judicata. See Mountbatten Surety Company, Inc. v. Szabo Contracting, Inc., 349 Ill .App. 3d

857, 876, 812 N.E.2d 90, 106 (2004) (noting that this court reviews a trial court's decision

whether to allow a party to raise an affirmative defense under an abuse of discretion standard).

       Our supreme court has explained that in order to determine whether a trial court has

abused its discretion in deciding whether to allow a party to amend its pleading, we should look

at the following factors: (1) whether the proposed amendment would cure a defective pleading;

(2) whether other parties would sustain prejudice or surprise by virtue of the proposed

amendment; (3) whether the proposed amendment is timely; and (4) whether previous

opportunities to amend the pleading can be identified. Loyola Academy v. S & S Roof

Maintenance, Inc., 146 Ill. 2d 263, 273, 586 N.E.2d 1211, 1215-1216 (1992). Our application of

these factors, particularly factors two and three, confirm our decision that the trial court abused

its discretion here. By failing to raise its res judicata argument until May 13, 2004, three and a

half years after the second action was filed, which was also three months prior to the trial date,

Ford waived its defense. Due to the untimely nature of Ford's res judicata defense, its

application would create inequitable and unjust results. Again, we believe that the equitable

doctrine of res judicata was intended to be used as a shield, not a sword. Thornton v. Williams,

89 Ill. App. 3d 544, 548, 412 N.E.2d 157, 160 (1980).

       In any event, assuming, arguendo, that Cooper was Aa correct extension@ of Rein and

Dubina, under the particular circumstances of the instant case, we believe that it would be



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inequitable to now mechanistically apply Cooper. We cannot fault Ford's counsel for relying on

the fortuitous publication of a case that arguably supports the defense. Nonetheless, if a

defendant is truly being Aunnecessarily harassed by a multiplicity of lawsuits,@ it would appear

that the defendant would know it at the time the suit is filed and need not await the publication of

a case to realize it.

        For all of the foregoing reasons, we reverse the judgment of the circuit court of Cook

County and remand this matter for further proceedings consistent with this opinion.

        Reversed and remanded.

        O'MARA FROSSARD and NEVILLE, JJ., concur.




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