## I L L I N O I S 

## O F F I C I A L 

## RE P O R T S Appellate Court

Hernandez v. Bernstein , 2011 IL App (1st) 102646

Appellate Court Caption J ESSE E. HERNANDE Z and YOLANDA HERNANDE Z
, Plaintiff s

Appellants, v. I SADORE BERN S T E I N, J OHN L

. GRAZ I AN, RI CHARD S. VOL PE, and BERNSTEI N AND GRAZ I AN, P.C., Def endants-A

ppellees.

District & N o. First District, F ifth Division Docke t No. 1-10-2646

Filed August 19, 2011

Held (Note : This syl lab us

con st it ute s no par t o

f the opi nio n of the cour t but has bee n pre

par ed by the Repo rt er of D e c i s i o n s f

o r t h e

c o n v e n i e n c e o

f t h e

rea der

. ) The trial court’s dismiss al of plaintiffs ’ in it ia l le g a l ma lp r a ctice complaint without prejudice was n o t a res judicata bar to the leg al neg lige nce complaint plaintiffs filed afte r voluntarily dismiss in g the ir initial suit, and the dismiss al of that complaint with prejudice based on res judicata was

reve rsed.

Dec ision Under Review Appea l from the Circuit Court of Cook County
, No. 09-L -11191; th e Hon. J eff rey L awr ence , J udg e, pre siding.

J udg ment Reverse d and re manded.Counsel on

Appea l Donald L

. J ohnson and J ulie A. Boy nton, both of Donald L

. J ohnson, P.C., and J oseph Gentleman, of J oseph T. Gentleman & Associates, both of Chicag o, for a

ppellants.

Hi nshaw & Culbertson L L P, of Chicag o (Matthew R. Hende rson and Timothy G. Shelton, of counsel), for appellee s J ohn L

. Gra zian and Richard S. Volpe.

Donald J

. Br own, J r., and Kar en Kies DeGr and, both o f Donohue, Br own, Mathewson & Smy

th, of Chicag o, for appellee s I sadore Be rnstein and Be rnstein & Gra zian, P.C

.

Panel J UDGE EPSTEI N deliver ed the judgment of the c ourt, with opinion. Presiding J ustice Fitzge rald Smit h and J ustice J

. Gordon concur red in the judge ment and opinion.

OP INION

¶ 1 Plaintiffs, J esse and Yolanda Her nandez, maintain the trial court err oneously dismiss ed their complaint pursuant to section 2-619(a )(4) of the I llinois Code of Civil Procedur e (735 I L CS 5/ 2-619(a )(4) (West 2008)), as ba rre d by res judicata . We reve rse a nd rema nd.

¶ 2 BA CKGROUND ¶ 3 In 2005, plaintiffs filed a leg al neg ligen ce ac t i o n aga i n s t J esse Her nandez’s for

mer attorney s, defe ndants I sadore Be rnstein, J ohn L . Gra zian, Ri char d S. Volpe, and B ernstein and Gra zian, P .C., a profe ssional corpor ation eng ag ed in the prac tice of law. J esse hired defe ndants in 1999 to repr esent him with respe ct to injuries he sustained at work. Plaintiffs claimed in their la

wsuit: “8. Upon undertaking the repr esentation of plaintiffs the defe ndants owed a duty to exercise ordina

ry case and skill in the repre sentation. 9. The defenda

nts owed plaintiffs a duty t o i n fo rm them of all potential claims and cause s of action they possessed or which mi gh t arise from the injuries in question. 10. In Marc h 1999 the defe ndants filed a worke r[s’] compensation application for J esse He rnande z. 11. Howeve r, the defe ndants: (a) failed to a dvise plaintiffs that they might have claims ag ainst parties other than J esse Her nandez’s emp l o y er t o rec over for the injuries J esse Her

nandez suffe red at work; (b) failed to file an action ag ainst others who had contributed to the events and conditions which ca u sed injuries to J esse

-2-Her nandez; and (c) or to advise plaintiffs that they neede d to reta in other counsel to file an action ag ainst others who had contributed to the events and conditions which

cause d injuries to J esse He rnande z.” Def endants moved to dism iss plaintiffs’ complaint, arguing, inter alia , that the underly ing third-par ty claims expired prior to the commence ment of defe ndants’ repr esentation in 1999. Def endants maintained, and the trial court ag ree d, that the underly ing claims had a two-y ear statute of l i m i t at i o n s that beg an to run in 1995 while J esse was repr esente d by Spector & L enz for a social secur ity disability claim. Plaintiffs responde d defe ndants wer e nonetheless liable for le g al neg lige nce be cause they did not advise plaintiffs to sue S pector & L enz for
not filing the underly

ing claims or advising plaintiffs to seek other counsel for those claims. In August 2007, the trial court dismiss ed plaintiffs’ complaint without prejudice (August Orde r). Plaintiffs f

iled an ame nded complaint addingtheir Spector & L enz alleg ations and

rea sserting the time-barr ed underlying claims. The trial court denied defe ndants’ motion to dismiss the amende d complaint. I t also declined to revisit the statute of limit ations issue. In April 2009, pl aintiffs voluntarily dismiss ed their lawsuit without prejudice pursuant to section 2-1009 ( 735 I L CS 5/ 2-1009 (West 2008)). ¶ 4 In September 2009, plaint i ff s fi led the instant leg al neg lige nce lawsuit. They ref iled a single -count complaint ag ainst defe ndants, rea sserting their Spector & L enz alleg ations, as well as the time-barr ed un d er l y ing claims. Def endants moved to dismiss the complaint, arguing the statute of limit ations and res judicata bar plaintiffs’ ref iled action. The trial court dismiss ed plaintiffs’ c omplaint with prejudice ba sed on res judicata . Plaintiffs appea l.

¶ 5 ANALYSI S ¶ 6 A motion to dismiss pursuant to section 2-619 p re sents a question of law revie wed de

novo

. DeL u n a v. Burciaga
, 223 I ll. 2d 49, 59 (2006). Such a motion “admits the leg al sufficie ncy of the complaint but asser ts aff irmative matter to avoid or d ef ea t the claim.” Giannini v. Kumho Tire U.S.A., Inc.
, 385 I ll. App. 3d 1013, 1015 (2008). “One defe nse that

a defe ndant may raise in a section 2-619 motion is that a prior judgme nt bars the plaintiff’s

ca u s e o f action, i.e. , that the prior judgme nt has res judicata eff ect in the subsequent lawsuit.” Kasny v. Coonen & Roth, Ltd.
, 395 I ll. App. 3d 870, 873 (2009). “Res judicata is

an equitable doctrine desig ned t o p revent the multipl icity of lawsuits betwee n the same parties and involving the same fa cts and the same issues.” Murneigh v. Gainer , 177 I ll. 2d 287, 299 (1997). I t “applies to bar issues that wer e actua lly decide d in the first action, as well

as m at ters that could have been decide d.” Lane v. Kalcheim
, 394 I ll. App. 3d 324, 3 2 9 (2009). “Unde r the doctrine o f r es j udicata
, a final judgme nt on the merits rende red by a court of competent jurisdiction bars any subsequent actions betwee n the same parties or their privies on the same cause of action.” Id. “A ruling which is not a final order does not in any

manner aff

ect or deter

mine any subsequent proce eding .” Arnold Schaffner, Inc. v. Goodman
, 73 I ll. App. 3d 729, 732 (1979). At issue here is whether the August Order bars the instant litigation. I t does not. ¶ 7 “An order is final and thus appea lab l e i f i t ei t her terminates the litigation betwee n the parties on the merits or disposes of the rig hts of the parties, either on the entire controve rsy

-3-or a separ ate branch thereof .” Hull v. City of Chicago , 165 I ll. App. 3d 732, 733 (1987). I t is undisputed the Aug ust Order did not terminate the initial liti g ation.
“An order disposes of a separ ate branc h of a controve rs y when the bases for

rec overy of the counts which are dismiss ed are differ ent fr o m t h o s e which are left
sta n d i n g

. [C itations.] This may occur when the g rounds for rec overy under the

v ar i ous counts arise from differ ent statutes or common law doctrines or when differ ent elements are require d to rec over under differ ent theories.” Rice v. Burnley
, 230 I ll. App. 3d 987, 991 (1992). Def endants maintain the August Orde r was final becau s e i t alleg edly disposed of one of plaintiffs’ two g rounds for r ecove ry : “[P] laintiffs here alleg ed two separ ate neg lige nce theories: that the Be rnstein defe ndants wer e neg lige nt in failing to brin g a products liability or chemica l exposure

case and that the B ernstein de fenda nts were neg lige nt in failing to advise plainti ffs with respe ct to s u i ng Spector & L enz for failing to bring a products liability or chemica l expos ure c ase.”
We disag ree

. Plaintiffs have alleg ed only a si ng le t heory of recovery : leg al neglig ence

. To state such a

claim, one must plead: “(1) the exist ence of an attorney -client re lationship which establishes a duty on the part of the attorney ; (2) a neg lige nt act or omission constituting a brea ch of that duty ; (3) proxi mate cause establishing that ‘but for’ the attorney ’s neg lige nce, the plaintiff would have preva iled in the underly ing action; and (4) damag es.” Ignarski v. Norbut
, 271 I ll. App. 3d 522, 525 (1995). Plaintiffs maintain that during the course of their r epre sentation, defe ndants owed the m “ a duty to inform them of all potential claims and cau s es o f action they possessed or which might arise from the injuries in question.” Plaintiffs orig inally claimed that duty was brea ched when “def endants: (a) failed to advise plaintiffs that they might have claims ag ainst parties other than J esse Herna

ndez’s employ er to rec over for t he inj u ries J esse Herna ndez suffe red at work; (b) failed to file an action ag ainst others who had contributed to the
events and conditions which cause d injuries to J esse Her nandez; and (c) or to advise plaintiffs that they neede d to reta in other counsel to file an action ag ainst others who had contributed t o the events and conditions which cause d injuries to J esse Her nandez.” The trial court disag ree d, holding these alleg ed brea ches could not sustain plaintiffs’ neg lige nce complaint beca use the underly

ing claims expired prior to the commence ment of defe ndants’ represe ntatio n. The trial court declined t o dismiss plaintiffs’ neglig ence claim with prejudice , howeve r, g rantingthem leave to replea d:

“THE COURT: *** I ’m g oing to say the statute of limit ations beg an to run, at the latest, his last date of e mploy ment, which is in ’95. Acc ording to those numbers then, the defe ndant shoul d p re v ail on his motion, rig ht? Am Irig ht?

-4-[P LAI NTI FF S’ COUNSEL ]: Yea h, he would preva il on that, except for the fac t that if y ou’re making a specific finding t hat it ran in 1995, then I would amend my

co m p laint to add alleg ations of neg lige nce for these defe ndants failing to tell m y client to sue the lawyer who was involved repr esenting [ sic ] him i n the Social Security claim. So I would like leave to file–ame nd the complaint beca use they should have filed

a malprac t i ce case ag ainst them under those circ umstances beca use the statute wouldn’t have run ag ainst them at that point. So if t h at ’s wh at y our ruling is, then I would ask leave to file the amende d complaint to add those alleg ations of neg lige nce. THE COURT: Isuppose– [ DE FEN DANTS’ COUNSEL ]: J udg e, if y ou’re inclined to g ive him leave t o

ame n d
, I guess our motion to dismiss is with prejudice
, but it’s y our discretion if
y ou’re g oing to g ive him another shot. THE COURT: Ba sed on my finding here , I ’ll allow him to bring that.” The trial court’s order did not alter plaintiffs’ theory of rec overy –neg lige nce. I t simply allowed them to plea d new f acts in support of that c laim. “This court has held that the dismiss al of cer tain alleg ations under a single theory of

rec overy does not terminate litigation betwee n the parties on the merits or dispose of the rig hts of the par

ties on a sepa

rate branc h of the controversy

. Rice
, 230 I ll. App. 3d at 992-93, 596 N.E

. 2d at 107. Rather, the dismiss al of cer tain alleg ations under

one theory of rec overy mere ly deter mines which alleg ation s u n d er that theory are allowed to rema in.” Piagentini v. Ford Motor Co.
, 387 I ll. App. 3d 887, 894 (2009). This rule is persua sively illust rate d in Rice v. Burnley
, albeit in the context of Supreme Court Rule 304(a) (I ll. S. C t. R. 304(a) (e ff. F eb. 26, 2010)) : “The statement of a single claim i n multipl e counts does not war rant a separ ate appea l upon the di smissal of one count. [ Citations.] *** [C ]ount s I Iand IV, which

are still viable, alleg e neg lige nce for these defe ndants’ failure to have smok e detec tors in the common are as of the c o n dominium building. C ounts VI I and VI I I
, which wer e dismiss ed, also alleg ed neg lige nce, albeit based on differ ent acts or omissions
, for defe ndants’ failure to ensure that there wer e smoke detec tors in Bur n l ey ’s condominium unit. As in Hull [ v. City of Chicago
, 165 I ll. App. 3d 732 (1987)], the plaintiff here has advanc ed only one theory of rec overy –neg lige nce. For the plaintiff to rec over under either counts I I and I V or the dismiss ed counts VI I and VI I I
, she must establish the same eleme n t s : duty , brea ch, and injury proxi mately resulting fr o m t h e brea ch. (Compare Freem an v. W hite W ay Sign & Maintenance Co.
, 82 I ll. App. 3d at 891 (dete rm i n at i o n t hat separ ate claims exis ted based on compar ison of elements nece ssary to establish a proper claim; claims of neg lige nce and strict products liability constituted separ ate and d i s t i n ct cause s of action since differ ent elements nece ssary to establish a proper claim in neg lige nce action as opposed to a strict p ro d u ct s liability action).) Whil e the dismiss ed counts and the

rema ining counts deal with differ ent acts or omissions
, they advanc e the same theory

-5-of rec overy –namely
, neg lige nce–a

nd acc ording ly we conclude that the dismiss al of
counts VI I and VI I I d i d not deter mine the m erits of a separate claim, and there fore is not a final orde r.” Rice v . Burnley , 230 I ll. App. 3d 987, 992 (1992). “An e x amination of finality in the context of Rule 304(a) is the same as a ny other a naly sis of whether an order is final or nonfinal.” Curtis v. Lofy
, 394 I ll. App. 3d 170, 185 (2009). That the fac tual alleg ations here appea red in two separ ate pleading s, as opposed to a single complaint, is also of no conseque nce s i n ce t h e alleg ations wer e made to advanc e a single theory of rec overy : neg lige nce based on defe ndants’ alleg ed failure “to inform [pl aintiffs] of all potential claims and cause s of action they possessed or which mi gh t ar i s e fr om the injuries in question.” As the August Orde r barr ed only cer tain alleg ations in support of that theory , as opposed to the e ntire neg lige nce c laim, the August Order was not final. ¶ 8 Matejczyk v. City of Chicago
, 397 I ll. App. 3d 1 ( 2009), cited by defe ndants in support of a c ontrary

conclusion, is unavailing : “Mate jczy k filed an initial complaint [i n 2006], under circ uit court number 0 6 L 11961, to rec over for injuries he alleg edly sustained while walking on a public sidewalk. There afte r, Matejczy k filed a two-count, amende d complaint. T h e C ity filed a motion to dismiss count I I pursuant to section 2-619(a )(9) *** as barr ed by the
statute of limit ations. On August 31, 2007, J udg e J eff rey L awr ence g rante d the City ’s motion to dismiss count I I
, with Matejcz y k being g rante d leave to ref ile count I I within 28 day s. On September 5, 2007, Matejczy k instead filed a second amende d complaint with a single count. The following day
, Matejczy k voluntarily dismiss ed his one-c ount, second amende d complaint. On September 18, 2007, Matejczy k filed, under circ uit court number 07 L 9824, a new lawsuit with two counts in which he acknow ledg ed the new action was a ref iling of the complaint filed in 2006. J udg e Di an e L arse n g rante d the City ’s motion to dismiss the 2007 complaint on r es judicata g rounds; Matejczy k appea l[ ed].” Id. at 2.
He argued, inter alia
, that the dismiss al of count I I in the first action did not bar the second lawsuit beca

use “in both the 2006 and 2007 lawsuits, he alleg ed only a single cause of action for ne g lige nce.” Id. at 4. The c ourt reje cted that a rgument: “While the neg lige nce th eo ry o f re cover y was share d by the two counts, the
respe ctive alleg ation in para g raph 3 of eac h count differ ed

. I t was Matejczy k that pled his cause of action in two counts, which the City proper ly addre ssed as distinct claims. Matejc zy

k should not be allowed on appea l to rec ast his first amende d complaint into one that seeks to re nder pointless Judge L awr ence ’s ruling .” Id. The court further noted, “[h] ad Matejczy k not insisted on pursuing his neg lige nce suit in two counts that offe red him no g rea ter chance of recover

y , he would not be in the pr edicament he finds himself today .” Id. at 12. Plaintiffs here did not file a multicount complaint. They filed a single -count complaint that the trial court dismiss ed with leave to reple ad. Matejczyk is inapposite. ¶ 9 “[A]n order dismiss ing a complaint but g ranting leave to reple ad is not a final order for purposes of res judicata until the trial co u rt en ters an order dismiss ing the suit with prejudice .” W

illiams v. Ingalls Mem orial Hosp ital
, 408 I ll. App. 3d 360, 364 (2011);

-6-Piagentini
, 387 I ll. App. 3d at 894. The August Orde r expressly allowed plaintiffs to reple ad

the dismiss ed complaint, subsequent to which the lawsuit was dismiss ed without prejudice

. The August Order

was not final. ¶ 10 Def

endants disagr ee, based on Hudson v. C ity of Chicago
, 2 2 8 I l l

. 2 d 462 (2008), a nd Rein v. David A

. N

o ye s & Co. , 172 I ll. 2d 325, 334 (1996), claiming once plaintiffs voluntarily dismiss ed the initial lawsuit “all order s [i ncluding the Augus t Or d er ] beca me final at that t i m e. ” T his argument fails. “While Hudson stands for the proposition that a voluntary dismiss al terminates the suit in its entirety
, rende ring all final order s immediately
appea lable (

Hudson
, 228 I ll. 2d at 468, 889 N.E.2d at 214),” it does not provide that “a nonfinal order become s fi n al u pon voluntary dismiss al of a suit.” (Emphasis added.) Piagenti n i , 3 8 7 I ll. App. 3d at 895. Rein is simil arly distinguishable. I t “stands for the proposition that a plaintiff who splits his claims by voluntarily dismiss ing and ref iling part of an act i o n af

t er a final judgme nt has been enter ed on another part of the case subjects himself to a res j udicata defe nse.” (Emphasis added.) Hudson , 228 I ll. 2d at 473. As there

was no final order enter ed in the initial litigation here prior to plaintiffs’ voluntary dismiss al ( supra ¶¶ 7-9), Rein and Hudson are inapposite. Res judicata does not apply

. We reve rse the trial court’s dismiss al of the instant lawsuit. We need not and do not rea ch the other g rounds addre ssed by

the par ties.

¶ 11 CONCL USI ON ¶ 12 The August O rder was not f inal and thus doe s not ba

r the instant litig ation. We reve rse the trial cour

t’s dismiss al of plaintiffs’ complaint.

¶ 13 Reverse d and re manded.

-7-