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                              Appellate Court                            Date: 2018.02.20
                                                                         16:20:27 -06'00'




                  Buchanan v. Legan, 2017 IL App (3d) 170037



Appellate Court   HANNAH E. BUCHANAN, Petitioner-Appellant, v. MICHAEL
Caption           LEGAN, SUSAN E. BUCHANAN, n/k/a Susan E. Blair, and JAMES
                  E. BUCHANAN, Respondents (Michael Legan, Respondent-
                  Appellee).



District & No.    Third District
                  Docket No. 3-17-0037



Filed             December 7, 2017



Decision Under    Appeal from the Circuit Court of Peoria County, No. 16-F-40; the
Review            Hon. Lisa Y. Wilson, Judge, presiding.



Judgment          Affirmed.


Counsel on        Brian J. Seckler and Robert R. Parker, of Parker & Parker, of Peoria,
Appeal            for appellant.

                  Susan H. Butler, of Butler, Giraudo & Meister, PC, of Morton, for
                  appellee.



Panel             JUSTICE WRIGHT delivered the judgment of the court, with opinion.
                  Justices Carter and Lytton concurred in the judgment and opinion.
                                             OPINION

¶1       On March 25, 1997, Susan E. Buchanan gave birth to a daughter, Hannah E. Buchanan
     (Hannah), during the course of a marriage with James E. Buchanan. Two years later, the
     couple’s marriage was dissolved and a joint parenting agreement resulted in joint custody for
     the children born during the course of this marriage, including Hannah. More than a decade
     later, Susan Buchanan filed two separate parentage actions in the circuit court. The second
     2011 petition, relevant to this appeal, attempted to simultaneously disestablish the existing
     parent-child relationship between Hannah and James Buchanan in order to create a new
     parent-child relationship with Hannah’s purported biological father, Michael Legan. The
     prayer for relief in the second 2011 petition included a request for the trial court to order
     DNA testing, enter a finding that Michael Legan was Hannah’s “natural” father, establish a
     visitation schedule and impose child support obligations on Michael Legan as Hannah’s
     second and only other legal parent.
¶2       Court-appointed counsel for Hannah filed a motion to dismiss the second 2011 petition,
     filed by Susan Buchanan on Hannah’s behalf. The motion to dismiss alleged the shortened
     statute of limitations barred the relief requested in the second 2011 petition because all
     parties had known for more than two years that someone other than James Buchanan was
     Hannah’s biological father. After a hearing, the court entered a written order granting
     Hannah’s motion to dismiss the second 2011 petition.
¶3       Four years later, Hannah filed her own amended 2016 petition to determine the existence
     of a father-child relationship with Michael Legan shortly after attaining age 18. The amended
     2016 petition did not contest the existing parental rights of James Buchanan. The trial court
     found that res judicata barred the relief requested in the subsequently amended 2016 petition
     as a matter of law, due to the resolution of the prior proceeding in 2012 that was filed in
     Hannah’s name. The trial court dismissed the amended 2016 petition over Hannah’s
     objection. Hannah Buchanan appeals.

¶4                                           FACTS
                                              1
¶5       In 1999, Susan Buchanan (Susan), filed a petition for dissolution of marriage from
     James Buchanan (respondent-Buchanan), in Peoria County case No. 99-D-277. The petition
     alleged, inter alia, that a child, Hannah, was born March 25, 1997, to Susan and
     respondent-Buchanan during the course of their marriage. On May 19, 1999, the trial court
     entered a judgment of dissolution and joint parenting agreement that dissolved the marriage
     and adjudicated respondent-Buchanan as Hannah’s joint custodial parent.

¶6                                      I. First 2011 Petition
¶7       On March 7, 2011, Susan filed a “Petition to Determine the Existence of the Father and
     Child Relationship and for Determination of Child Related Issues” in Peoria County case No.
     11-F-153 (first 2011 petition). The first 2011 petition sought to determine the existence of the
     father-child relationship between Hannah and Michael Legan (respondent-Legan), claiming
     that respondent-Legan was Hannah’s natural father. On June 9, 2011, Susan and

        1
         Susan Buchanan is now known as Susan Blair.

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       respondent-Legan stipulated and agreed to dismiss the first 2011 petition with prejudice. The
       stipulated dismissal order contained language stating the stipulated dismissal was “with
       prejudice as to that cause of action, but not with prejudice as to other parties who may
       request a determination as to same.”

¶8                                       II. Second 2011 Petition
¶9         On May 6, 2011, Susan filed a “Petition to Determine the Existence of a Father-Child
       Relationship, the Non-Existence of a Father-Child Relationship, and Child-Related Issues”
       (second 2011 petition) in Peoria County case No. 11-F-369. This second 2011 petition, filed
       by Susan on behalf of Hannah, differed from the first 2011 petition by naming Michael
       Legan and James Buchanan as respondents. The second 2011 petition attempted to
       disestablish the existing father-child relationship between Hannah and respondent-Buchanan
       resulting in Susan becoming Hannah’s sole custodial parent. The prayer for relief in the
       second 2011 petition also requested the trial court to order DNA testing, enter a finding that
       respondent-Legan was Hannah’s “natural” father, impose child support obligations on
       respondent-Legan, and establish a visitation schedule between Hannah and
       respondent-Legan.
¶ 10       The trial court appointed Jeffrey Dunn as guardian ad litem. A report filed by Dunn
       indicated that Dunn interviewed Hannah and respondent-Buchanan. Dunn advised the trial
       court, based on his investigation, that he believed Susan initiated the second 2011 petition, in
       her daughter’s name, solely for Susan’s financial gain and without any regard for Hannah’s
       best interests. Dunn concluded this approach was not in Hannah’s best interests because
       Hannah felt strongly that respondent-Buchanan should continue his status as her legal parent.
¶ 11       The trial court also appointed Angela Madison, an attorney, to act as Hannah’s child
       representative. Madison filed a motion to dismiss the second 2011 petition that designated
       Hannah as the petitioner, rather than Susan. Hannah’s motion to dismiss included the
       following statements:
                   “5. An action to declare the non-existence of a parent-child relationship is barred,
               under 750 ILCS 45/8 [(West 2010)], if brought later than 2 years after the Petitioner
               obtains knowledge of relevant facts and shall not extend beyond the minor’s
               eighteenth birthday.
                   ***
                   7. An action to determine the existence of a father-child relationship can be
               brought by HANNAH, herself, pursuant to 750 ILCS 45/8 [(West 2010)] during the
               two year period of time after she reaches her majority. Thus, in the event that
               HANNAH wants to pursue a determination of the existence of a father-child
               relationship between she [sic] and Michael Legan, after reaching her adulthood and is
               possibly less influenced by her mother, then HANNAH will still have the right to do
               so.”
                                                    ***
                   WHEREFORE, this child representative for the minor, HANNAH BUCHANAN,
               prays this Court enter an order dismissing the Petitioner’s Petition to Determine the
               Exiistence [sic] of a Father-Child Relationship, the Non-Existence of a Father-Child
               Relationship, and Child Related Issues.”


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¶ 12       On May 21, 2012, respondent-Legan filed a “Response to Brief Regarding
       Representation of the Minor Child by Natural Guardian, Guardian Ad Litem and Child
       Representative.” The following language appears in the conclusion paragraph of
       respondent-Legan’s response: “Due to the conflict of interest between the minor and natural
       guardian portrayed by the GAL, Child Representative, and Respondent, Michael Legan, the
       case should be dismissed, with the minor afforded the opportunity to litigate this issue after
       she turns eighteen years of age.”
¶ 13       Susan filed a motion to strike Hannah’s motion to dismiss. This motion to strike is not
       included in the record on appeal. On July 25, 2012, the trial court conducted a hearing on
       Susan’s motion to strike and Hannah’s motion to dismiss. The court struggled with whether
       Hannah’s motion to dismiss should be treated as a voluntary dismissal or whether Hannah’s
       request would result in an involuntary ending to the pending petition. After much debate,
       when announcing the court’s ruling to the parties, the trial judge stated, inter alia, that: “My
       chief concern is finality. *** When we are talking about a child’s future, don’t mess around
       with it, court, get it done, okay, move on.”
¶ 14       The trial court’s written order granted Hannah’s motion to dismiss and included the
       following language:
                “After hearing arguments and for the reasons stated on the record, the court orders
                (1) Motion To Dismiss filed by Child Representative is granted
                (2) Mother’s Motion to Strike Motion to Dismiss is denied.”
       No party appealed the trial court’s 2012 order or requested a timely modification of the
       language included in the court order.

¶ 15                                    III. Hannah’s 2016 Petition
¶ 16       Three years later, on June 29, 2016, Hannah, then age 18, filed an “Amended Petition to
       Determine the Existence of the Father and Child Relationship” (amended 2016 petition) in
       Peoria County case No. 16-F-40, naming both custodial parents and Michael Legan as
       respondents. The amended 2016 petition sought only to determine the existence of a
       father-child relationship between Hannah and respondent-Legan without addressing or
       questioning the existing parental status of respondent-Buchanan arising from the final
       judgment of dissolution.
¶ 17       On July 28, 2016, respondent-Legan filed a section 2-619 (735 ILCS 5/2-619 (West
       2016)) motion to dismiss the amended 2016 petition on two grounds. Respondent-Legan
       claimed the ruling granting Hannah’s motion to dismiss the second 2011 petition constituted
       a dismissal with prejudice and constituted a final resolution of the causes of action set forth
       in the second 2011 petition. On this basis, respondent-Legan argued res judicata precluded
       Hannah from attempting to relitigate any issues that were determined or could have been
       determined in that prior proceeding. In addition, respondent-Legan claimed another
       affirmative matter, the applicable statute of limitations, barred the amended 2016 petition to
       establish a father-child relationship.
¶ 18       The trial court conducted a hearing on respondent-Legan’s section 2-619 motion to
       dismiss the amended 2016 petition on November 1, 2016. In a written order dated
       January 11, 2017, the trial court granted respondent-Legan’s section 2-619 motion to dismiss
       and found Hannah’s 2016 attempt to establish a father-child relationship was now barred by

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       the doctrine of res judicata resulting from the dismissal of the second 2011 petition with
       prejudice. The trial court did not reach the merits of respondent-Legan’s other contention
       regarding the limitations period.
¶ 19       Hannah filed a timely notice of appeal on January 12, 2017.

¶ 20                                            ANALYSIS
¶ 21        On appeal, Hannah contends the dismissal of the second 2011 petition resulted in a
       voluntary dismissal in 2012. Since a voluntary dismissal does not result in a final
       determination of the issues, Hannah argues the trial court erroneously applied the doctrine of
       res judicata before dismissing her amended 2016 petition. Alternatively, Hannah contends
       respondent-Legan made a judicial admission in the prior proceeding that requires a denial of
       his section 2-619 motion to dismiss the amended 2016 petition. We first address whether
       res judicata applies based on the procedural history documented in the record on appeal.
¶ 22        The doctrine of res judicata serves to bar actions in which (1) a final judgment on the
       merits has been rendered by a court of competent jurisdiction, (2) an identity of the cause of
       action exists, (3) and there is an identity of the parties or their privies in both actions. River
       Park, Inc. v. City of Highland Park, 184 Ill. 2d 290, 302 (1998). Res judicata prevents the
       relitigation of issues that could have been decided in the first action along with those issues
       that were actually decided. Id. The trial court’s application of res judicata involves a question
       of law. Thus, our standard of review is de novo. Curtis v. Lofy, 394 Ill. App. 3d 170, 177
       (2009).
¶ 23        With regard to the application of res judicata, the parties only dispute whether the trial
       court rendered a final judgment on the merits by granting Hannah’s motion to dismiss the
       second 2011 petition. Hannah asserts the generic motion to dismiss the second 2011 petition
       filed by her court-appointed counsel constitutes a voluntary dismissal of the second 2011
       petition filed by her mother on Hannah’s behalf. Based on the same record,
       respondent-Legan contends the dismissal of the second 2011 petition should be treated as an
       involuntary dismissal with prejudice. The trial court agreed with respondent-Legan’s view
       that the dismissal of the second 2011 petition was with prejudice.
¶ 24        Hannah did not caption her pleading as a motion to strike the second 2011 petition filed
       by one parent unilaterally seeking to terminate the other joint parent’s rights established by
       court order in the prior dissolution proceeding. Instead, Hannah filed a motion to dismiss the
       second 2011 petition filed by one parent on her behalf. Hannah’s inartful motion to dismiss
       did not designate whether she was seeking a voluntary dismissal under section 2-1009 or was
       seeking an involuntary dismissal under section 2-619. 735 ILCS 5/2-1009, 2-619 (West
       2010). Thus, this court must now determine whether the resulting undisputed dismissal in the
       trial court was without prejudice as Hannah contends on appeal.
¶ 25        Such confusion can be easily avoided by meticulous procedural practice when drafting
       potentially outcome-dispositive pleadings. See Illinois Graphics Co. v. Nickum, 159 Ill. 2d
       469, 484 (1994). When a motion to dismiss is silent, as in the case at bar, the nature of the
       motion must be gleaned by closely examining the grounds, requests, and the treatment of the
       motion by the parties and the trial court. Id.
¶ 26        Based on our careful review, we note first and foremost, Hannah desired to prevent an
       untimely attempt to interfere with an existing and long-standing father-child relationship that


                                                   -5-
       began at birth. Hannah’s motion clearly asserted the request to disestablish Hannah’s
       relationship with respondent-Buchanan was time-barred based on certain facts and could
       never be refiled for this reason. In the trial court, the parties did not take issue with Hannah’s
       factual allegation that more than two years had gone by since the parties became aware that
       Hannah might not be the biological child of respondent-Buchanan. These grounds are
       consistent with a section 2-619(a)(5) motion for dismissal of the second 2011 petition with
       prejudice. 735 ILCS 5/2-619(a)(5) (West 2010).
¶ 27       However, our careful review of the record also reveals the second 2011 petition sought to
       simultaneously repeal and then immediately replace an existing parent-child relationship with
       another parent as part of the same proceeding initiated by the second 2011 petition.
¶ 28       Significantly, the prayer for relief in the second 2011 petition assumed that Susan would
       become Hannah’s sole custodial parent once the court disestablished respondent-Buchanan’s
       parental status. Based on this assumption, the prayer for relief requested the trial court to
       establish respondent-Legan as Hannah’s second parent and enter an order scheduling
       visitation and ordering respondent-Legan to pay child support based on his income.
¶ 29       Neither Hannah nor respondent-Buchanan shared Susan’s interest in disestablishing
       respondent-Buchanan’s parental rights. The grounds for dismissal set forth in Hannah’s
       motion to dismiss raised an affirmative matter that would once and for all terminate the
       repetitious litigation seeking to designate Susan as Hannah’s sole custodial parent and
       naming another person, other than respondent-Buchanan, as Hannah’s only other joint parent.
¶ 30       The nature of Hannah’s nondesignated motion to dismiss the second 2011 petition caused
       the trial court to carefully reflect on the true nature of the motion. The court commented that
       Hannah had the ability to request a voluntary dismissal. Yet, when announcing the court’s
       ruling after much debate, the trial court recognized, “My chief concern is finality. *** When
       we are talking about a child’s future, don’t mess around with it, court, get it done, okay,
       move on.” The trial court’s written order does not include any language indicating the second
       2011 petition was dismissed without prejudice. This order was not challenged by any party or
       subject to a request for reconsideration, modification, or clarification. Such is the unique
       record submitted for our review.
¶ 31       The case law provides that when a dismissal order fails to specify that the dismissal is
       without prejudice, the order should be viewed as a final adjudication on the merits. Richter v.
       Prairie Farms Dairy, Inc., 2016 IL 119518, ¶ 25; see Ill. S. Ct. R. 273. In the absence of
       clarity arising from the record submitted for our review, this court must follow the path
       established by existing case law and Rule 273. Based on the unique procedural record in this
       case, we conclude that the trial court’s 2012 order granting Hannah’s motion to dismiss the
       second 2011 petition, filed on her behalf, resulted in a dismissal with prejudice.
¶ 32       On this basis, we conclude the trial court properly applied the doctrine of res judicata and
       dismissed the amended 2016 petition. Hannah argues respondent-Legan’s statement
       pertaining to the request to dismiss the second 2011 petition contains a prior judicial
       admission relevant to this appeal. When determining whether any statement constitutes a
       judicial admission, our review is de novo. Crittenden v. Cook County Comm’n on Human
       Rights, 2012 IL App (1st) 112437, ¶¶ 45-48.
¶ 33       A judicial admission constitutes a clear, deliberate, unequivocal statement by a party
       about a concrete fact within that party’s knowledge. In re Estate of Rennick, 181 Ill. 2d 395,
       406 (1998). Hannah’s motion to dismiss included the following language: “An action to

                                                   -6-
       determine the existence of a father-child relationship can be brought by HANNAH, herself,
       pursuant to 750 ILCS 45/8 during the two year period of time after she reaches her majority.”
       This proclamation by Hannah’s counsel represents counsel’s legal opinion, a conclusory
       statement.
¶ 34       Hannah directs our attention to a statement in respondent-Legan’s “Response to Brief
       Regarding Representation of the Minor Child by Natural Guardian, Guardian Ad Litem and
       Child Representative” that contains the same broad legal conclusion as originally stated by
       Hannah’s counsel. First, we reject Hannah’s contention that this language rises to the level of
       a judicial admission by respondent-Legan. Second, respondent-Legan defeated Hannah’s
       amended 2016 petition on grounds unrelated to the timeliness of Hannah’s 2016 request to
       establish a third parent-child relationship following her eighteenth birthday.
¶ 35       Consequently, we conclude respondent-Legan was not precluded from raising the issue of
       res judicata and affirm the trial court’s ruling on this issue.

¶ 36                                       CONCLUSION
¶ 37      The judgment of the circuit court of Peoria County is affirmed.

¶ 38      Affirmed.




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