                           ILLINOIS OFFICIAL REPORTS
                                        Appellate Court




          Law Offices of Nye & Associates, Ltd. v. Boado, 2012 IL App (2d) 110804




Appellate Court            THE LAW OFFICES OF NYE AND ASSOCIATES, LTD., Plaintiff-
Caption                    Appellant, v. EDUARDO BOADO, Defendant-Appellee.



District & No.             Second District
                           Docket No. 2-11-0804


Filed                      May 31, 2012


Held                       The dismissal of a law firm’s action to recover attorney fees and costs
(Note: This syllabus       incurred in representing defendant in a marriage dissolution action was
constitutes no part of     affirmed on the grounds that the action was barred by res judicata
the opinion of the court   because plaintiff’s claims could have been raised in an earlier action
but has been prepared      between the same parties in which a final order was entered on the merits
by the Reporter of         and no exceptions to the doctrine of res judicata applied.
Decisions for the
convenience of the
reader.)


Decision Under             Appeal from the Circuit Court of Lake County, No. 10-L-1065; the Hon.
Review                     Margaret J. Mullen, Judge, presiding.



Judgment                   Affirmed.
Counsel on                  Scott B. Gibson and Lindsay V. Wagoner, both of Gibson & Associates,
Appeal                      Ltd., of Waukegan, for appellant.

                            David R. Del Re, of Law Offices of David R. Del Re, P.C., of Waukegan,
                            for appellee.


Panel                       JUSTICE BURKE delivered the judgment of the court, with opinion.
                            Presiding Justice Jorgensen and Justice Birkett concurred in the judgment
                            and opinion.




                                              OPINION

¶1          Plaintiff, The Law Offices of Nye & Associates, Ltd. (Nye), appeals the trial court’s order
        dismissing its complaint against defendant, Eduardo Boado, under section 2-619(a)(4) of the
        Code of Civil Procedure (Code) (735 ILCS 5/2-619(a)(4) (West 2010)) based on principles
        of res judicata. We determine that res judicata applied, because the claims raised could have
        been litigated in a previous action that was adjudicated to a final order on the merits, and that
        the trial court correctly determined that no exceptions to the application of res judicata
        applied. Accordingly, we affirm.

¶2                                       I. BACKGROUND
¶3          On September 24, 2008, in circuit court case number 08-L-784 (Nye I), Nye filed a
        complaint against Boado, seeking attorney fees and costs in connection with Nye’s
        representation of Boado in a marital dissolution action. Count I alleged that Boado owed
        money under an account stated and count II alleged breach of contract.
¶4          On March 17, 2010, Nye moved to voluntarily dismiss counts I and II without prejudice
        and with leave to refile them and to file an amended complaint seeking fees under section
        508 of the Illinois Marriage and Dissolution of Marriage Act (750 ILCS 5/508 (West 2008)).
        Boado filed a response that objected to portions of the motion, including moving to strike
        the paragraph that asked for leave to refile, without specifically objecting to that request. Nye
        contends that, when the parties appeared in court, Boado again did not object. However, there
        is no transcript of the proceeding or substitute for a transcript. The trial court granted the
        motion with a written order drafted by Boado, stating that the counts were “voluntarily
        nonsuited.” There was no mention of prejudice or leave to refile.
¶5          Nye filed an amended complaint seeking fees under section 508 and, on July 21, 2010,
        the trial court dismissed the complaint with prejudice on the basis that it was time-barred.
        Nye did not appeal.

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¶6         On November 17, 2010, Nye filed a new complaint in circuit court case number 10-L-
       1065 (Nye II), alleging the same two counts that were voluntarily dismissed in Nye I. Boado
       moved to dismiss under section 2-619(a)(4), alleging that the action was barred by principles
       of res judicata. Nye responded that res judicata did not apply, arguing that Nye I was
       specifically dismissed without prejudice and with leave to refile the dismissed counts at a
       later date.
¶7         The trial court judge in the previous case had retired, and the case was assigned to a
       different judge. A hearing was held, during which Nye contended that the parties agreed that
       the counts could be voluntarily dismissed but refiled at a later time and that the trial court had
       expressly agreed that the counts could be refiled. Boado disputed those arguments.
¶8         Nye’s attorney, Scott Gibson, testified that, when the first two counts in Nye I were
       voluntarily dismissed, he spoke with Boado’s attorney, David Del Re, who said that he had
       no objection to the counts being dismissed without prejudice. Gibson also testified that he
       recalled an associate from Del Re’s office being in the courtroom when the counts were
       dismissed and that the person did not voice any objection. Del Re testified that he did not
       object to the counts being voluntarily dismissed, but that he made no agreement that they
       could be refiled.
¶9         The trial court found that res judicata applied and that an exception based on express
       permission by the court or an agreement of the parties for leave to refile did not apply.
       Accordingly, the court dismissed the complaint with prejudice. Nye’s motion to reconsider
       was denied, and it appeals.

¶ 10                                         II. ANALYSIS
¶ 11        Nye contends that the trial court erred in dismissing the Nye II complaint, because the
       intent of the parties and the Nye I trial court was that Nye be able to voluntarily dismiss the
       counts without prejudice and with leave to refile. Boado responds that the matter is barred
       by res judicata and that Nye failed to meet its burden to show that an exception applied
       based on any express agreement between the parties or by the trial court that the counts could
       be refiled.
¶ 12        A determination of whether a claim is barred under the doctrine of res judicata is a
       question of law, which we review de novo. Arvia v. Madigan, 209 Ill. 2d 520, 526 (2004).
       Likewise, our review of a dismissal under section 2-619 of the Code is generally de novo.
       DeLuna v. Burciaga, 223 Ill. 2d 49, 59 (2006). However, “[w]here, as here, the trial court
       grants a section 2-619 motion to dismiss following an evidentiary hearing, ‘the reviewing
       court must review not only the law but also the facts, and may reverse the trial court order
       if it is incorrect in law or against the manifest weight of the evidence.’ ” Hernandez v. New
       Rogers Pontiac, Inc., 332 Ill. App. 3d 461, 464 (2002) (quoting Kirby v. Jarrett, 190 Ill. App.
       3d 8, 13 (1989)). Accordingly, we review whether the trial court’s findings of fact are against
       the manifest weight of the evidence while reviewing the questions of law de novo.
¶ 13        Section 2-1009(a) of the Code (735 ILCS 5/2-1009(a) (West 2008)) provides that a
       plaintiff may, at any time before trial begins, dismiss an action or part of an action without
       prejudice. However, “ ‘[t]he doctrine of res judicata provides that a final judgment on the

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       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.’ ” Hudson v. City of Chicago, 228
       Ill. 2d 462, 467 (2008) (quoting Rein v. David A. Noyes & Co., 172 Ill. 2d 325, 334 (1996)).
       “Res judicata bars not only what was actually decided in the first action but also whatever
       could have been decided.” Id. “Three requirements must be satisfied for res judicata to
       apply: (1) a final judgment on the merits has been rendered by a court of competent
       jurisdiction; (2) an identity of cause of action exists; and (3) the parties or their privies are
       identical in both actions.” Id. Thus, the rule “ ‘prohibits a plaintiff from suing for part of a
       claim in one action and then suing for the remainder in another action.’ ” Matejczyk v. City
       of Chicago, 397 Ill. App. 3d 1, 7 (2009) (quoting Rein, 172 Ill. 2d at 340).
¶ 14        “[T]he principle that res judicata prohibits a party from seeking relief on the basis of
       issues that could have been resolved in a previous action serves to prevent parties from
       splitting their claims into multiple actions.” Hudson, 228 Ill. 2d at 471-72 (citing Rein, 172
       Ill. 2d at 339-42). The rule promotes judicial economy by preventing repetitive litigation and
       also protects parties from being forced to bear the unjust burden of relitigating the same case.
       Matejczyk, 397 Ill. App. 3d at 9.
¶ 15        Here, it is clear that basic principles of res judicata apply. There was a final judgment
       on the merits in Nye I, the issues that were raised in Nye II could have been adjudicated in
       Nye I, and the parties were identical. Nye does not specifically dispute this and instead
       contends that exceptions apply that would allow it to split its claims.
¶ 16        Illinois has adopted claim-splitting as set forth in section 26(1) of the Restatement
       (Second) of Judgments (1982). Under this section, res judicata principles do not bar a second
       action if:
            “ ‘(1) the parties have agreed in terms or in effect that plaintiff may split his claim or the
            defendant has acquiesced therein; (2) the court in the first action expressly reserved the
            plaintiff’s right to maintain the second action; (3) the plaintiff was unable to obtain relief
            on his claim because of a restriction on the subject-matter jurisdiction of the court in the
            first action; (4) the judgment in the first action was plainly inconsistent with the equitable
            implementation of a statutory scheme; (5) the case involves a continuing or recurrent
            wrong; or (6) it is clearly and convincingly shown that the policies favoring preclusion
            of a second action are overcome for an extraordinary reason.’ ” Hudson, 228 Ill. 2d at
            472-73 (quoting Rein, 172 Ill. 2d at 341).
¶ 17        In the trial court, Nye argued that the first two of these exceptions were applicable to its
       complaint. On appeal, Nye does not specifically argue that the parties agreed that it could
       split its claims. In any event, to the extent that the argument is implied, the trial court heard
       evidence that no such agreement existed, and its findings to that effect are not against the
       manifest weight of the evidence. Nothing in the voluntary-dismissal order indicates any such
       agreement, nor was Boado required to object to the voluntary dismissal. See Matejczyk, 397
       Ill. App. 3d at 10 (“ ‘Until the plaintiffs attempted to refile *** no reason existed for the
       defendants to object.’ ” (quoting Rein, 172 Ill. 2d at 342)).
¶ 18        In regard to the second exception, Nye contends that, because it requested leave to refile,
       and the counts in Nye I were dismissed without prejudice, the record shows that the court


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       intended that Nye have leave to refile.
¶ 19        The comments to section 26 of the Restatement illustrate the general premise that a court
       may expressly reserve a plaintiff’s right to maintain a second action when it indicates that
       its judgment is without prejudice. See Hudson, 228 Ill. 2d at 472 n.2 (citing Restatement
       (Second) of Judgments § 26(1), cmt. b (1982)). Indeed, “[the] voluntary dismissal of an
       action is typically without prejudice to the bringing of a second action.” (Emphasis in
       original.) Id. However, “the use of ‘without prejudice’ language is not sufficient to protect
       a plaintiff against the bar of res judicata when another part of plaintiff’s case has gone to
       final judgment in a previous action: ‘the trial judge’s granting plaintiffs’ motion to
       voluntarily dismiss the common law counts without prejudice under section 2-1009 should
       not be interpreted as immunizing plaintiffs against defenses defendants may raise when the
       voluntarily dismissed counts were refiled.’ ” (Emphasis in original.) Id. (quoting Rein, 172
       Ill. 2d at 342). A plaintiff cannot “file a complaint with multiple counts, take a voluntary
       dismissal without prejudice of some of the counts, pursue the undismissed counts to final
       judgment, and then harass the defendant with successive suits simply because the dismissals
       of those counts were entered ‘without prejudice.’ ” Id. (citing Rein, 172 Ill. 2d at 343).
¶ 20        Here, the voluntary-dismissal order was silent on whether the counts in Nye I were
       dismissed without prejudice. Regardless, even if we were to assume that the complaint was
       dismissed without prejudice, under Hudson and Rein that fact did not allow the refiling of
       the dismissed counts in Nye II. Once Nye chose to proceed to a final determination on the
       merits in Nye I, it could not return later for a second bite at the apple by refiling the
       dismissed counts in a new action in Nye II.
¶ 21        Nye’s argument that the record as a whole shows that the court intended to allow it to
       refile also fails. Nye argues that the combination of its motion to voluntarily dismiss, which
       asked for leave to refile, with Boado’s failure to object, and the court’s grant of the motion,
       is sufficient to show that it had leave to refile the claims in a new lawsuit. But, under the
       exception at issue, the court must expressly state the right to refile. Matejczyk, 397 Ill. App.
       3d at 10-11. An express reservation requires that the intent be clearly and unmistakably
       communicated or directly stated. See Quintas v. Asset Management Group, Inc., 395 Ill. App.
       3d 324, 333 (2009). Here, nothing was expressly stated by the court in regard to the ability
       to refile.
¶ 22        Nye relies on three cases decided after Hudson that it argues require a different result, but
       in those cases, the trial court expressly stated the right to refile. Severino v. Freedom Woods,
       Inc., 407 Ill. App. 3d 238, 251 (2010) (order stated costs were to be paid upon refiling of the
       complaint and docket sheet stated leave to refile was allowed); Green v. Northwest
       Community Hospital, 401 Ill. App. 3d 152, 155 (2010) (order granted “ ‘leave to reinstate as
       a matter of right’ ”); Quintas, 395 Ill. App. 3d at 333 (docket sheet stated that motion was
       granted with leave to refile). These cases are distinguishable, as here the trial court’s
       dismissal order was silent on the matter and nothing in the record indicates that the order was
       written with an exception to claim-splitting in mind. See Green, 401 Ill. App. 3d at 156
       (citing Matejczyk, 397 Ill. App. 3d at 3). The fact that Nye’s motion asked for leave to refile
       is not sufficient to show that the court actually agreed to allow it to do so. This is especially
       true in light of the fact that Boado filed a response that moved to strike the portion of the

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       motion that sought leave to refile.
¶ 23        In a related argument, Nye also asserts that, at the hearing where the voluntary dismissal
       took place, the trial court expressly stated that Nye could later refile the claims. But, as
       previously noted, nothing in the order mentions the ability to refile, and the testimony in Nye
       II about what happened at the Nye I voluntary-dismissal hearing was mixed. Further, Nye did
       not provide to the trial court or this court a transcript or substitute for a transcript of the
       voluntary-dismissal hearing. The appellant has the burden to produce a sufficiently complete
       record to support his claim of error, and any doubts that arise from the incompleteness of the
       record will be resolved against the appellant. Foutch v. O’Bryant, 99 Ill. 2d 389, 391-92
       (1984). Here, the record does not support a determination that the trial court expressly
       reserved Nye’s ability to refile its claims in a new proceeding after a final judgment in Nye
       I was entered.
¶ 24        Finally, Nye argues that the voluntary-dismissal order is a nullity because it used the term
       “voluntarily nonsuited” instead of “voluntarily dismissed” when nonsuits are no longer a
       proper procedure in Illinois. Nye does not cite to any authority that such a technical defect
       invalidated the order, contrary to the general rule that technical defects should not prevent
       the court from doing justice between the parties. See Ragan v. Columbia Mutual Insurance
       Co., 183 Ill. 2d 342, 354 (1998). Further, Nye does not explain how it could escape
       principles of res judicata even if the dismissal order were not considered, when it filed an
       amended complaint that included only the section 508 claim and it took that to a final
       judgment on the merits. An appellant who fails to present cogent arguments supported by
       authority forfeits those contentions on appeal. People v. Ward, 215 Ill. 2d 317, 332 (2005).
       Here, Nye forfeited its argument, but in any event it also lacks merit, as principles of res
       judicata would still apply.

¶ 25                                  III. CONCLUSION
¶ 26       The complaint in Nye II was barred by principles of res judicata, and the exceptions that
       Nye relies on do not apply. Accordingly, the judgment of the circuit court of Lake County
       is affirmed.

¶ 27       Affirmed.




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