## I L L I N O I S 

## O F F I C I A L 

## R E P O R T S

Appellate Court

Cam per v. Burnside Con struction Co. , 2013 IL App (1st) 121589

Appellate Court Caption MI CHAEL CAMPER, Plaintiff, v. BU RNS I D E CONSTRUCTI ON COMPANY, an I llinois Corporati o n , BU RNSI DE CONSTRUCTI ON
MANAGEMEN T COMPANY, an I llinois Corporation, and WEL CH

B RO T H E RS, I

NC., an I llinois Corporation, Def endan ts ( We lc h B r o th e r s , I nc., Third-Party Plaintiff-App el l ant; Neptune Construction Company

, Third-Party

Def endant- Appellee ).

District & N o. First District, F irst Division

Docke t No. 1-12-1589

Rule 23 Order

filed

Rule 23 Order

withdrawn
Opinion filed September 30, 2013

October 17, 2013

October 28, 2013

Held
( Not e : Thi s syl lab us

con st it ute s no par t of
the opi nio n of the cour t but has bee n pre

par ed
b y the Repo rt er o

f

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

. ) I n an action for the injuries suffe red when plaintiff fell while working in

a sanitary manhole manufa cture d by third-par ty plaintiff, the trial court’s
dismiss al of the counts of third-par ty plaintif

f’ s co mplaint seeking
contribution and indemnification from plaintiff’s employ e r, a subcontrac tor, afte r plaintiff settled and dismiss ed his claims ag ainst his employ er and the g ener al contra ctors was aff irmed, s ince the order
dismiss ing plaintiff’s action raised a res judicata bar to third-par ty plaintiff’s cla ims.

Dec ision Under

Review Appea l from the Circuit Court of Cook County

, No. 10-L -01656; t he Hon. Randy e A. Kog an, Judge, pr esiding

.J udg ment Affir med.

Counsel on
Appea l Busse

, Busse & Gra ssé

, P .C., of Chicag o (Edwa rd K. Gra ssé, Troy S. Radunsky , and Micha el T. Peterson, of counsel), f

or appe llant.

Cassiday S ch ade, L L P, of C hicag o (Thomas P

. Boy lan and Matthew S

. Sims , of counse l), for a

ppellee.

Panel J USTI CE CUNNI NGHAM delivere d the judgme nt of the court, with opinion.

P r esiding J ustice Connors and J ustice Hoffma n concur red i n t h e judgme nt and opinion.

OP INION

¶ 1 This ap p ea l arises from the Dec ember 21, 2011, Fe bruar y 27, 2102 and May 11, 2012
order s enter ed by the circ uit cou rt of Cook County

, which collectively dismiss ed with prejudice a third-par

ty action filed by t h i rd -p arty plaintiff Welch Br others, I nc. (Welch),

ag ainst third-par

ty defe ndant Neptune Construction Company (Ne ptune). On appea l, Welch

arg ues that: (1) the circ uit court err ed in dismiss ing with prejudice the contribution count of
the third-par

ty complaint; and (2) the circ uit court err ed in dismiss ing with prejudice the
indemnification count of the third-par ty complaint. For the following rea sons, we aff irm the judgme nt of the circ uit court of Cook County

.

¶ 2 BA CKGROUND
¶ 3 I n J anuar

y 2006, Michae l Camper (Camper ), an employ ee of Neptune, fell and sustained injuries while working in a sanitary manhole on a co n s t ru ction site in Elg in, I llinois

. On

J anuar y 16, 2007, Camper filed a four- count complaint ag ainst g ener al contra ctors Bur nside

Const ru ct ion Company and Bur nside Construction Manag ement Company (collec tively

, Bur nside), and Welch (ca se No. 07 L 0517) ( Camper I ). I n Camper I

, Camper alleg ed cause s of action for construction neg lige nce (count I ) an d p remises liability (count I I ) ag ainst

Bur nside, and alleg ed two counts of product liability ag ainst Welch, as manufa cture r of the manhole, under

the theorie s of strict liability (count I I I ) and ne g lige nce ( count I V).
¶ 4 On Dec ember 3, 2007, Welch filed a third-par ty action for contribution ag ainst Neptune
under the J oint Tortfe asor Contr i b u t i o n Act (740 I L CS 100/0.01 et seq. (West 2008)), alleg ing that, in the event that Welch is found liable to Camper, Welch is entitled t o contribution from Neptune for its neg lige nt actions. The Camper I third-par ty action did not

-2-alleg e an i n d e mnification claim or brea ch of contra ct claim ag ainst Neptune. There afte r,

Welch also filed a c ounterc laim for contr ibution aga inst Burnside.
¶ 5 On Novembe r 20, 2008, Camper settled his claims ag ainst Bur nside and Neptune for a total of $550

, 0 0 0. The settlement ag ree ment stated t hat Neptune ag ree d to waive its claim
f o r r e im b u r s e me n t u n d e r th e Wo r

k e rs’ Compensation Act (820 I L CS 305/5(b) (West 1994)). 1

¶ 6 On Dec ember 12, 2008, Bur nside filed a motion for a g ood-fa ith finding

, reque sting the

court to find that the settlement ag ree ment was made in g ood faith and to bar or dismiss any actions of contribution ag ainst the settling tortfea sors. On Fe bruar y 10, 2009, Welch filed a motion to conduct an evidentiar y hear ing prior to the court’s ruling on Bur nside’s motion for

a g ood-fa ith finding

, in order to deter mine whether wrong ful co n d u ct o ccur red during the
settlement proce ss and whether t h er e wa s a basis to enter a g ood-fa ith finding in favor of

Bur nside.
¶ 7 On Fe b ru ary 13, 2009, following a hearing on the parties’ arg uments, the circuit c o u r t denied W elch’ s motion to conduct an evidentiar y hear ing and, over Welch’s objection,

g rante d Burn s ide’s motion for a g ood-fa ith finding

. The court’s Fe bruar y 13, 2009 order

ex p ressly stated t hat t he settl ement between Camper, Burnside, and Neptune was m ad e i n

g ood faith pursuant to the J oint Tortfe aso r C ontribution Act; t hat C amper ’s action ag ainst

Bur nside, and Welch’s third-par ty action ag ainst Neptune, are dismiss ed with prejudice ; and
that the court “bar s any actions for contribution by any other defe ndants or tortfea sors ag ainst

Bur nside or Neptune.” The court further de n i ed W e lch’s motion to amend its pleading s

ag ainst Neptune to inc lude other cause s of action, and stated that Camper’ s cause of action
shall continue aga i n s t Welch as the sole nonsettling defe ndant in Camper I

. No Supreme
Court Rule 304(a) lang uag e (I l l

. S

. Ct. R. 304(a) (ef f. J an. 1, 2006)) was included in the
order

. ¶ 8 On April 22, 2009, Camper voluntarily dismiss ed his complaint ag ainst Welch without prejudice (735 I L CS 5/2-1009 (West 2008)). The circ uit court’s order voluntarily dismiss ing Camper’ s action ag ainst Welch expressly stated that C am p er had rese rved his rig ht to maintain his cause of action “upon ref iling of this matter in acc ordanc e with [s] ection 13-217
of the I llinois Code of Civil Procedur e (735 I L CS 5/13-217) an d t h er e shall be no res judicata eff

ect upon a

ny claim.”
¶ 9 On Fe bruar

y 5, 2010, within on e y ea r o f t h e Ap ri l 2 2, 2009 voluntary dismiss al of Camper I

, Camper ref

iled his cause of action ag ainst Welch only

, by alleg ing the same two

counts of product liability based on strict liability (count I ) and ne g lige nce ( count I I ) (ca se No

. 1 0 L 01656) ( Camper II ). The Camper II complaint contained near ly ident i ca l alleg ations ag ainst Welch as in the Camper I complaint. The Camper II complaint alleg ed
that Camper was employ ed by Neptune when he fell and sustaine d injuries while working
in a manhole in 2006; that the rung s us ed t o asce nd and desce nd the manhole wer e improperly or neg lige ntly desig ned, manufa cture d and asse m b l ed ; that one or more rung s

1 Base d on the la nguage of the set tl ement agree m ent

, it is re aso nab le to inf er , tho ugh nei the r

par ty exp re ssl y st at es thi s in the bri ef s on app eal

, tha t Cam

per m ade worker s’ compensa ti on cl ai m s agains t his employer, Neptu ne, as a re sul t of the inj uri es suf fe re d in the cou rs e of his employm ent

.

-3-wer e missing or inadequa tely secur ed ; a nd that Welch failed to war n of the dang ers associate d with these def

ects. ¶ 10 On May 19, 2010, Welch filed a two-coun t th ir d

- p a r ty a c ti on, seeking contribution (count

I ) and “indemnifica

tion/breac h of contra ct” (indemnifica tion claim) (count I I ) aga i n s t Neptune. Count I alleg ed that Neptune, as C am p er’ s employ er, owed Camper a duty to provide a safe work environment, adequately inspect manholes used by

its employ ees, and
train its employ ees on the proper use of manholes. Count I I alleg ed that Neptune and Welch

enter ed into a purcha se order ag ree ment pursuant to which Neptu n e ag ree d to indemnify
Welch. Specifica lly

, count I I alleg ed that “[i] f Welch is found par tly or wholly

responsible
for any o f the injuries alleg ed in [C amper ’s] complaint, which liability Welch denies and
does not here by waive its denial, Neptune should indemnify and hold harmless Welch
pursuant to t h e t er m s of the [a] g ree ment set forth here in.” The rele vant lang uag e of the purcha se orde r ag ree ment is set forth as follows:
“[Neptune] shall indemnify and hold [W elch] harmle s s aga i n st any and all claims, demands, liabilities, losses, damag es and injuries of whatsoeve r kind or natur e, and a ll
attorney s fee s, costs and expenses rela ting to, or in a ny way arising out of the order ing, acquisition, delivery

, installation, possession, maintenanc e, use, opera tion, control, loss, damag e, destruction, return or surre nder, sale or other dispos i t i o n o f any materia l supplied by [W elch]. This indemnity shall not be af fe ct e d by any termination of this [a] g ree ment with respec t to said materials.”
¶ 11 On No v em b er 5

, 2010, Camper settled his claims ag ainst Welch in Camper II

, and a
court order was enter ed di s m i s s i n g Camper’ s action ag ainst Welch with prejudice

. The

g ener al rele ase form signe d by Camper contained lang uag e that Welch “re serve s and reta ins
all claims, demands, cause s of action, defe nses, counter -cla ims, third party claims including [W elch’ s] third party complaint ag ainst [Nep t une], motions, pending or otherwise and damag es, including attorney s fee s and co s t s, consultants’ fee s and costs rela ting to any

rema ining c laim raised in the [l] awsuit ag ainst any rema ining [p]arty .”
¶ 12 Subsequently

, Welch filed a motion to modify the court’s November 5, 2010 dismiss al
order

, reque sting a modification of the order to ref lect that Welch’s third-pa rt y c omplaint

ag ainst Neptune r emained pe nding.
¶ 13 On Dec ember 6, 2010, the circ u i t co u rt en t ere d an ag ree d order

, which vacated the
November 5, 2010 dismiss al order and or d er e d Welch’s third-par ty complaint ag ainst Neptune f

or contribution and indemnific ation to remain pe nding a nd not be dismissed.
¶ 14 On Marc h 1, 2011, Welch filed a motion for a g ood-fa ith finding

, reque sting, inter alia

, that the court enter an order finding that the settlement ag ree ment bet w een Camper and
Welch was made in g ood faith, that all claims ag ainst Camper 2 be dismiss ed with prejudice

, and that, pursuant to the court’s Dec ember 6, 2010 order

, Welch’s third-par ty complaint

ag ainst Neptune r emain pending and not dismissed.

2 T his is li kely a typograph ic al er ror and ins te ad cou ld have st a t e d t h a t al l cl ai m s agains t
“W el ch” be dis m is sed wit h pr ej udi ce.

-4-¶ 15 On April 12, 2011, Neptune filed a section 2-619 motion to dismiss Welch’s third-par ty complaint for contribution and indemnifica tion on the basis that the claims wer e barr ed by

res judicata

, and filed an objection to Welch ’s M ar ch 1, 2011 motion for a g ood-fa ith finding

. ¶ 16 On J une 2, 2011, Welch filed a response to Neptune’ s motion t o dismiss and objection

t o W el ch ’s motion for a g ood-fa ith finding

, arg uing that, inter alia

, its third-par ty claim s

ag ainst Neptune for contribution and indemnification wer e not barr ed by res judicata

. Attache d t o t h e re s ponse as Ex hibit B was a May 19, 2011 by stander’ s repor t filed by

We lc h ’s counsel, Troy Radunsky (Attorney Radunsky ), which stated that d

u r in g th e F e b r

u a r y 13, 2009 hear ing in Camper I

, the court purportedly informed him that Welch was fre e to file

a claim of i ndemnifica tion or breach of contra ct aga inst Neptune in a separate lawsuit and
that such a c laim was not barr ed by res judicata

. ¶ 17 On J uly 15, 2011, Ne p t u n e filed a motion to strike Attorney Radunsky ’s by stander’ s

repor t (motion to strike), arg uing that the by stander’ s repor t “[stood] in sharp contra st to both [t he court’s] Fe bruar

y 13, 2009 [o] rder in the underly ing Camper I action and the transcr ipt
of the proceeding s cre ated at Welch’s request.” On that same day

, J u l y 1 5, 2011, Neptune
also filed a reply in support of its motion to dismiss the third-par ty complaint and in support of its objection to Welch’s motion for a g ood-fa ith finding.
¶ 18 On J uly 25, 2011, the circ uit court denied Nept u n e’ s m otion to strike the by stander’ s

repor t and continued the ma tter. On De cembe r 21, 2011, the circ uit court g rante d Welch’s
motion for a g ood-fa ith finding and g rante d Neptune’ s motion to dismiss with prejudice the
contribution claim (count I ) of Welch’s third-par ty complaint. The circ uit court’s Dec ember 21, 2011 order stated that Neptune’ s motion to dismiss the indemnification claim (count I I )
of the third-par

ty complaint would be continued to F ebrua ry 27, 2012 for the court to enter

a written ruling

. On Dec ember 27, 2011, Welch filed a “motion to rec onsider, clar ify and/or
strike” (motion to rec onsider) the portion of the circ uit court’s Dec ember 2 1

, 2 0 1 1 order
which dismiss ed with prejudice Welch’s contribution claim (count I ) ag ainst Neptune in the third-par ty action.
¶ 19 On Fe bruar

y 27, 2012, the circ uit court denied W el c h’s motion to rec onsider, finding

, inter alia

, that res judicata barr ed Welch’s contribution claim (count I ) ag ainstNeptune in
the third-par

ty action, and that count I should rema in dismiss ed with prejudice

. Howeve r, the
circ uit court denied Neptune’ s motion to dismiss the indemnificati o n co u n t (count I I ) of
Welch’s third-par

ty complaint. The c ourt ag ain found that the settlement betwee n Camper
and Welch wa s made in g ood faith.
¶ 20 On Marc h 28, 2012, Neptune filed a motion to rec onsider the circ uit court’s Fe bruar y 27,
2012 order deny ing its motion to d i s m i s s the indemnification claim (count I I ) of Welch’s third-par ty complaint. I n an order dated April 11, 2012, the circ uit court stated that Welch

“wa ives any written response to Neptune’ s m o t i o n t o rec onsider [t he Fe bruar y 27, 2012
order ] and will rely

on prior brie fs submitted to court.”
¶ 21 On May 11, 2012, the circ uit court g rante d Neptune’ s motion to rec onsider the Fe bruar y 27, 2012 order

, and dismiss ed Welch’s indemnification claim (count I I ) with prejudice ; thus,
dismiss ing Camper II

in its entirety

.

-5-¶ 22 On J une 5, 2012, Welch filed a notice of a

ppeal.

¶ 23 ANAL YSI S
¶ 24 We deter

mine the following issues on ap p ea l : (1 ) wh et h er the circ uit court err ed in
dismiss ing with prejudice the contribution count (count I ) of Welch’s third-par ty complaint

ag ainst Neptune in Camper II ; and (2) whether the circ u it court err ed in dismiss ing with prejudice the indemnification count (count I I ) of Welch’s third-par ty complaint ag ainst Neptune in Camper II

. ¶ 25 W e f

irst deter mine whether the circ uit court err ed in dismiss in g wi t h p re j u d i ce t h e contribution count (count I ) of Welch’s third-par ty complaint ag ainst Neptune in Camper II

, which we revie w de novo

. See Krili ch v. American National Bank & Trust Co. of Chicago

, 334 I ll. App. 3d 563, 569 (2002).
¶ 26 Welch arg ues that the doctrine of res judicata did not apply to bar the contribution count (count I ) of its third-pa

rty action ag ainst Neptune in Camper II

, wher e Camper’ s voluntary
dismiss al of his cause of action ag ainst Welch in Camper I had no impact on Welch’s thirdparty action ag ainst Neptune. Welch further contends that the elements of res judicata wer e
not satisfied and thus, the doctrine was inapplica b l e to bar its contribution claim ag ainst Neptune.
¶ 27 Neptune counter s that the circ ui t co u rt p ro p er l y d ismiss ed with prejudice Welch’s
contribution count (count I ) in Camper II

, beca use it was barr ed by the res judicata eff ect of
the circ uit court’s Fe bruar y 13, 2009 order dismiss in g We lc h ’ s a c ti o n f o r contribution ag ainst Neptune in Camper I

. Specifica lly

, Neptune contends that all three elements of the doctrine
of res judicata wer e satisfied.
¶ 28 As discussed, in Camper I

, on Fe bruar

y 13, 2009, the circ uit court expressly held that the
settlement betwee n Camper, Bur nside and Neptune was made in g ood faith pursuant to the

J oint Tortfe asor Contribution Act; that Camper’ s action ag ainst Bur nside and Welch’s thirdparty contribution action ag ainst Neptune wer e dismiss ed with prejudice ; and that the court “bar s any actions for contribution by any other defe ndants or tortfea sors ag ainst Bur nside or Neptune.” On April 22, 2009, Camper voluntarily dismiss ed without prejudice his complaint

ag ainst Welch, as the sole nonsettling tortfea sor, and subsequently ref iled his cause of action

ag ainst Welch in Camper II

. On May 19, 2010, Welch filed the instant Camper II third-par ty action ag ainst Neptune, seeking contribution (count I ) and indemnification ( co u n t I I ). On

Dec ember 21, 2011, the circ uit court g rante d Neptune’ s section 2-619 motion to dismiss the
contributi o n claim in the third-par ty complaint with prejudice

, and, in the court’s written

ru l ing on Fe bruar

y 27, 2012, denied Welch’s motion to rec onsider the dismis s al o f t h e contribution count by

finding

, inter alia , that res judicata barr ed the c laim.
¶ 29 Under section 2-619 of t he I llinois Code of C ivil Pro ce d u r e (the Code), an actionmay be involuntarily dismiss ed on the bases th at “t h e c ause of action is barr ed by a prior judgme nt” under a theory of res judicata , or that “the claim asser ted aga inst the defendant
is barr ed by other aff

irmative matter avoiding the leg al eff ect of or defe ating the claim.” 735

I L CS 5/2-619(a) (4), (a) (9) (West 2010). The term “af firmative matter” under section 2- 619(a) (9) “has been define d as a ty pe of defe nse that either neg ates an alleg ed cause of action

-6-completely or ref utes cruc ial conclusions of law or conclusions of materia l fac t unsupported by alleg ations of specific fac t contained in or inferr ed from the complaint.” Krili ch

, 334 I ll. App. 3d at 570. A sectio n 2 -6 1 9 m otion to dismiss “admits the leg al sufficie ncy of the complaint and ra ises defe cts, defe nses, or other aff irmative matters tha t appea r on the face
of the complaint or are established by external submissi ons that act to defe at the claim.” Id.

at 569-70. I n ruling on such a motion, a court m u s t construe the pleading s and supporting
documents in a light most favor able to the nonmoving party

. Valdovinos v. Tomita

, 394 I ll. App. 3d 14, 17 (2009). Even if the circ uit court dismiss ed on an improper basis, a revie wing

court may aff

irm the dismiss al on any proper g round supported by the rec o rd

. American
Servic e Insuranc e Co. v. City of Chicago , 404 I ll. App. 3d 769, 776-77 (2010).
¶ 30 The doctrine of res judicata provides that “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 o n t h e s am e cause of action.” (I nterna l quotation marks omitted.) Kiefer v. RustOleum Corp.

, 394 I ll. App. 3d 485, 489 (2009). Three require ments must be satisfied in order
for res judicata to apply : “(1) a final judgme nt on the merits has been rea ched 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. Res judicata bars not only wh at wa s ac t u a lly
decide d in the first action, but also those matters that could have been decide d in that lawsuit.
River Park

, Inc. v . City of Highland Park , 184 I ll. 2d 290, 302 (1998).
¶ 31 We note that Welch first arg ues that res judicata did not apply to bar the instant Camper

II third-par

ty contribution claim (count I ) a g ainst Neptune beca use Camper’ s choice to voluntarily

dismiss his Camper I

cause of ac tion ag ainst Welch had no impact on Welch’s third-par ty action ag ainst Neptune. Howeve r, the rec ord shows that the dismiss al of Welch’s third-par ty contribution action ag ainst Neptune with prejudice in Camper I arose out of the

s e tt le ment of Camper’ s claims ag ainst Bur nside and Neptune, rat

h e r th a n Ca mp e r ’ s v o lu

n ta r y dismiss al of Camper I

. The rec ord reve als that, on Fe bruar y 13, 2009, two months prior to Camper’ s voluntary

dismiss al of his cause of action ag ainst Welch, the circ uit court found
that the settlement betwee n Camper, Bur nside and Neptune was made in g ood faith pursuant

to the J oint Tortfe asor Contrib u tion Act. I n the Fe bruar y 13, 2009 order

, the circ uit court d i s m i s sed Welch’s Camper I third-par ty action for contribution ag ainst Neptune with prejudice

. I t was not until two months later, on April 22, 2009, that Camper v o l u n t arily
dismiss ed without prejudice its cause of action ag ainst Welch, who was then the sole nonsettling de fenda

nt in Camper I

. Thus, we f

ind Welch’s arg ument to be misplaced.
¶ 32 Turning to the elements of res judica t a , we note that, with reg ard to the dismiss al of
Welch’s Camper II contribution cla im (count I ) ag ainst Neptune, Welch does not dispute that
the second and third require ments of res judicata are satisfied here

. Thus

, we n ee d o n ly
addre ss Welch’s challeng e to the first re quirement. 3

3 We not e tha t We lc h’s ar gum ent s agains t the app li cat ion of res jud ic ata in it s ope nin g bri ef
bef ore us int er weaves bot h ar gum ent s per ta ini ng to the dis m is sal of it s Camper II con tr ibu ti on cou nt (c ount I ) and ind emnifi cat ion cou nt (c ount I I ) agains t Nept une

. Nonet hel ess , in re sol ving the is sue s

on app eal

, thi s cou rt wi l l a d d r e s s a rgum ent s per ta ini ng to the dis m is sal of cou nt I and cou nt I I

sep ar at el y.

-7-¶ 33 The first element of res judicata require s that there be a “fina l judgme nt on the merits.”

Se e K iefer

, 394 I ll. App. 3d at 489. Welch arg ues that this element had not been satisfied
beca use the circ uit court’s Fe bruar y 13, 2009 order g ranting a g ood-fa ith finding in favor of
the settling parties (Camper

, Bur nside and Neptune) in Camper I did not consti t u t e an adjudication on the merits for the purposes of res judicata

. Neptune counter s that the circ uit

court’s F ebrua

ry 13, 2009 order

in Camper I

constituted a final judg ment on the merits.
¶ 34 Gene rally

, order s dismiss ing an action with prejudice constitutes a final judgme nt on the
merits for the purposes of res j udicata

. See Nelson v. Chicago Park D istrict , 408 I ll. App.
3d 53, 61 (2011) (orde r dismiss ing a prior case with prejudice upon t he execution of a termination ag ree ment was a final judgme nt on the merits that satisfied the first element of

res judicata ); Board of Education of Sunset R i d g e School District No. 29 v. Village of
Northbrook

, 295 I ll. App. 3 d 9 0 9, 915 (1998) (a dismiss al of an action with prejudice
constituted an adjudication of that action on the merits); see also Keim v. Kalbfl eisch

, 57 I ll. App. 3d 621, 624 (1978) (“a dismiss al ‘with prejudice ’ is a s conclusive of the rig hts of the parties as if the suit had been prosec uted to a f i n al ad j u d ication,” and “the dismiss al with prejudice of plaintiff’s first complaint, p u rs u ant to a settlement ag ree ment, is a final judgme nt on the merits”).
¶ 35 Supreme Court Rule 273 pro v i d es t h e following conce rning the eff ect of involuntary
dismiss als: “Unless the order of dismiss al or a statute of this [s] tate otherwise specifie s, an involuntary d i s m i s s al of an action, other than a dismiss al for lack of jurisdiction, for improper venue, or for failure to join an indispensable party

, opera tes as an adjudication upon the merits.” I ll. S. C t. R. 273.
¶ 36 I n S

D S Partners, Inc. v. Cramer

, a plaintiff sued the defe n d an t s al l egi n g t h at t h e defe ndants built a dam on their prope rty that cause d water

to improperly divert water onto
the plaintiff’s proper

ty

. SDS Partners, Inc. v. Cramer

, 305 I ll. App. 3d 893, 894 (1999). The parties there afte r enter ed into a settlement ag ree ment, which the circ uit court found to be fair,
and it dismiss ed the plaintiff’s cause of action with prejudice

. Id. at 894-95. Se v er al y ea rs later, SDS Partners, I nc. (SDS ), as the s ubsequent transfer ee of the property ow n ed b y the plaintiff, filed a new lawsuit ag ainst the defe ndants alleg ing tha t t h e d am wh ich they

constructe d wrong fully diverted water onto SDS’ proper ty

. Id. at 895. The defe ndants moved

to dismiss SDS’ complaint, by attaching a copy of the settlement order to the pleading s. Id.
The circ uit court then dismiss ed SDS’ action

, h o l d ing that it was identical to the orig inal
action filed by the plaintiff. Id. On appea l, SDS arg ued that its action was not barr ed by res judicata beca

use the prior dismiss al did not amount to an adjudication on the merits, wher e it was s ettled by the parties and never tried. Id. at 896. I n reje cting SDS’ arg ument, the
revie wing court found that the s ettlement order in the orig inal action wa s a final j udg ment

on the m erits, s tating that the parties ag ree d to a resolution and the circ uit court d ismiss ed
the action with prejudice –there by

, concluding the ri gh t s o f the parties as if the matter had

proce eded to tria l and bee n resolved by final judg ment. Id.
¶ 37 L ikewise, in Ave ry v. Auto-Pro, Inc.

, plaintiffs broug h t a n egl i gen ce l a wsuit ag ainst
defe ndant, alleg ing that the defe ndant neg lige ntly repa ired an automobile that subsequently

cra shed and injured the plaintiffs. Ave ry v. Auto-Pro, Inc.

, 313 I ll. App. 3d 747, 748 (2000).
The defe ndant then later filed a counter claim for contribution ag ainst the plaintiffs, alleg ing

-8-that the plaintiffs’ ne g lige nt conduct contr ibuted to their own injuries. Id. Upon motion by

the plaintiffs, the circ uit court dismiss ed the counter claim with prejudice on the basis that the

counter claim was untimely filed. Id. The defe ndant never soug ht to appea l the dismiss al of
its countercla im for contribution. Id. Subsequently , the plaintiffs voluntarily dismiss ed the
lawsuit and ref

iled the case ag ainst the defe ndant within one y ear of the voluntary dismiss al.
Id. at 74 9

. A fter the plaintiffs ref iled the new lawsuit, the defe ndant ag ain broug ht a
counter claim for contribution ag ainst the plaintiffs. Id. The plaintiffs then moved to dismiss
the new counter claim, arg uing that the new counter claim, which was identical to the orig inal

counter claim, was barr ed by the dismiss al of the orig inal counter claim. Id. The circ uit court denied the plaintiffs’ motion to dismiss

, but cer tified the following question for interlocutory
revie w: “Can a counter claim plainti ff fi l e a counter claim for contribution based on

neg lige nce following the ref illing [ sic ] of an orig inal action that was voluntarily dismiss ed,
when the neg lige nce counter claim for contribution had orig inally been dismiss ed befor e the voluntary dismiss al? ” (I nterna l quotation marks omitted.) Id. On interlocutory appea l, the
revie wing court held that the circ uit court should have g rante d the motion to dismiss the new
counter claim, finding that, under the plain lang uag e of Ru l e 2 7 3

, the prior involuntary
dismiss al of the defe ndant’s counter claim opera ted as a final judgme nt on the merits and thus, satisfied the first ele ment of res judicata

. Id. at 750.
¶ 38 Apply ing the plain lang uag e of Rule 273 and the principles of Cramer and Ave ry to the
instant case , we find that the first element of res judicata was satisfied. Welch’s ori gi nal third-par ty contribution claim in Camper I was dismiss ed for a rea son other than for lack of jurisdiction, improper venue, or failure to join an indi spensable party . I t is undisput ed that
afte r Bur nside filed a motion for a g ood-fa ith finding in Camper I on Dec embe r 12, 2008,
Welch filed pleading s to oppose the motion. There afte r, on Fe bruar y 13, 2009, following a hear ing on the parties’ arg uments, the circuit court entered an order findi ng , ov e r W elch’ s objection, that the settlement b et we en C amper , Bur nside and Neptune was made in g ood
f a it h p u r s u a n t to the J oint Tortfe asor Contribution Act; dismiss ing Camper’ s Camper I a c ti o n

ag ainst Bur

nside with prejudice ; dismi ssing Welch’ s Camper I contribution action ag ainst Neptune w ith prejudice ; and barring “any actions for contribution by

any other de fenda

nts

or tortfea sors ag ainst B u r nside or Neptune.” Thus, we find that the Fe bruar y 13, 2009
dismiss al with prejudice of Welch ’s Ca mp e r I third-par ty contribution action ag ainst Neptune was an “involuntary ” dismiss al under Rule 273 and, th u s , o p er at e d as an adjudication upon the m er i t s

. F urther, like the s ettlement agr eeme nt in Cramer

, Camper’ s settlement with Bur

nside and Neptune i n Camper I was a final j udg ment on the m erits for
the purposes of res j udicata

, wher e the parties a gre ed t o a resolution and the circ uit court,

on Fe bruar

y 13, 2009

, d ismiss ed with prejudice Camper’ s action ag ainst Bur nside and
Welch’s orig inal contribution claim ag ainst Neptune. We f i n d t h at

, l ike the defe ndant in

Ave ry , Welch never soug ht to appea l the dismiss al with prejudice of its Camper I third-par ty contribution action ag ainst N e ptune, nor did it reque st the court to include Rule 304(a)
l ang uag e in the Fe bruar

y 13, 2009 order

. L ike the plaintiffs in Ave ry , Camper v o l u n t ar i l y d i s m i ssed his cause of action ag ainst Welch and ref iled a subsequent new lawsuit ag ainst Welch, afte r which Welch ag ain broug ht a new third-par ty action ag ainst Neptune. We find that, under the plain lang uag e of Rule 273 and the holdings in Cramer and Ave ry , the prior

-9-involuntary dismiss al of Welch’s third-par ty contribution action opera ted as a final judgme nt on the merits.
¶ 39 Nonethele ss, Welch cites Downing v. Chicago Transit Authority

, 162 I ll. 2d 70 (1994),
and Leow v

. A&

B Freight Line, I

nc. , 175 I ll. 2d 176 (1997), in suppor t of its arg ument that
the Fe bruar

y 13, 2009 order g ranting a g ood-fa ith finding reg arding Camper’ s settlement
with Bur nside and Neptune, and dismiss ing Welch’s third-par ty contribution action ag ainst Neptune with prejudice

, was not an adjudication on the merits. We find Welch’s relianc e on Downing and Leow to be misplaced. Those case s eac h involved a persona l injury lawsuit
filed by a plainti ff ag ainst an employ ee d river and t he driver’s employ er, and our supreme
court held that the dismiss al with pr ejudice or the dispositi on by summary judgme nt of the
claims ag ainst the individual driver d i d n o t b ar the plaintiff’s claims ag ainst the separ ate defe ndant–driver ’s employ er–unde r res judicata

. Unlike Neptune here

, whose obliga tions

wer e resolved by settlement in Camper I and aga inst whom W el ch’s Camper I third-par ty action was dismiss ed with prejudice

, the cause s of action ag ainst the employ ers in Downing
and Leow wer e not simil arly resolved. Rather, only the cause s of action ag ainst the employ ee drivers wer e resolved, which the Downing and Leow courts found had no res judicata eff ect

u p o n t h e cause s of action ag ainst the employ ers, as separ ate defe ndants in the plaint i ff ’ s lawsuits.
¶ 40 We further reje ct W elch’ s char acte rization of this court’s finding s in Cellini v. Vil lage of Gurnee

, 403 I ll. App. 3d 26, 39 (2010), in support of i ts arg ument that the Februa ry 13,
2009 ruling s did not constitute adjudication on the merits. Welch quotes cer tain lang uag e out of context from the Cellini opinion, which does nothing to advanc e its arg ume n t

. W e lch

neg lects to mention that in Cellini

, this court aff i r med the circ uit court’s finding that the plaintiff and the settling defe ndant enter e d i n t o a g ood-fa ith settlement ag ree ment, and
aff irmed the c i rc uit court’s dismiss al with prejudice of all counter claims for contribution

ag ainst the settling defe ndant. See Cellini

, 403 I ll. App. 3d at 42. These fac ts are analog ous
to the fac ts of Camper I

, wher e the circ uit court made a finding of g ood faith with reg ard to the settlemen t b etwee n Camper, Bur nside and Neptune, and dismiss ed Welch’s Camper I third-par ty contribution action ag ainst Neptune with prejudice

. We find Welch’s relianc e on Cellini to be inapposite. There fore

, we find that the first element of res judicata was satisfied.
¶ 41 Wit h respe ct to the second and third elements of res judicata

, there cannot be any serious
d i s p ute that these elements wer e satisfied. There is no dispute that Welch’s Camper I
contribution claim ag ainst Neptune and Welch’s Camper II contribution claim (count I )

ag ainst Neptune involved the same parties and identical alleg ations ag ainst Neptune. Thus,

we find that the second and third elements of res judicata wer e satisfied. There fore

, we hold
that res judicata applied to bar Welch’s Camper II contribution claim (count I ) ag ainst Neptune. Acc ording ly

, we hold that the circ uit court did not err in dismiss ing with prejudice
Welch’s Camper II

contribution count (count I ) ag ainst Neptune.
¶ 42 We next deter m i n e wh et h er t h e ci rc u i t court err ed in dismiss ing with prejudice the
indemnification count (count I I ) of We lc h ’ s th ir d

- p a r ty c o mp la in

t a g a in st Neptune in Camper

II

, which we revie w de novo

. See Krili ch

, 334 I ll. App. 3d at 569. We can aff irm the circ uit

court’s d i s m i s sal on any proper g round supported by the rec ord. See American Servic e

-10-Insurance Co. , 404 I ll. App. 3d at 776-77.

¶ 43 The doctrine of res judicata extends not only to what was actua lly decide d in the orig inal action, but a lso to matters which c ould have be en dec ided in that lawsuit. Rein v. David A. Noyes & Co.

, 172 I ll. 2d 325, 334-35 (1 9 9 6). As noted, Welch only soug ht a claim for
contribution ag ainst Neptune in Camper I and did not alleg e a count for indemnification until
Welch filed its third-par ty complaint ag ainst Neptune in Ca mp er I I

. Thus, if all three
elements of res judicata are met and Welch’s Camper II indemnif i ca t i o n claim (count I I )
could have been deter

mined in Camper I

, Wel ch w ill be barr ed from litigating the
indemnification claim (count I I ) in Camper II

. See id. at 338. Be cause this court has alre ady
deter mined that the circ uit court’s Fe bruar y 13, 2009 ruling s constituted a final adjudication on the merits, and the pa

rties in Welch’s Camper I and Camper II

third-par ty actions we re identical, we find that the first and third re q u i re m e nts of res judicata have been met. There fore

, we need only deter mine if the second element has been satisfied–that is, whether
the indemnification claim (count I I ) soug ht by Welch in Camper II has an “identity of cause of ac tion” with the contribution claim soug ht by Welch in Camper I

. ¶ 44 Welch arg ues that the second element of res judicata was not satisfied beca use there was

no identity of cause of action betwee n its Camper I contribution claim ag ainst Neptune and
its Camper II indemnification claim ag ainst Neptune. Specifica lly

, Welch contends that the Camper I contribution action was a cause of action arising out of potential tort liability

, while
the Camper II indemnification claim was based upon contra ct liability

. Welch further asser ts

t h a t the contributi on claim and the i ndemnifica tion claim relied upon two differ ent s ets o f
fac tual alleg ations for support.
¶ 45 Neptune counter s that Welch forf eited for revie w on appea l any arg uments rela ting to the
second element (the identity of cause of action) of res judicata

, beca use Welch never made
such arg uments befor e the circ uit court. Notwithstanding forf eiture, Neptune arg ues that an identity of cause of action exis ts betwee n Welch’s Camper I contribution claim and Welch’s

Ca mp er I I indemnification claim ag ainst Neptune, wher e, althoug h they asser t differ ent theories o f re l i ef

, they arose from a single g roup of opera tive fac ts. I n support of its

arg ument, Ne p t u n e c ites Peregrine Financial Group, Inc. v. Trademave n , L.L.C

. , 391 I ll. App. 3d 309 (2009), a

nd Radosta v. Chrysler Corp. , 110 I ll. App. 3d 1066 (1982).
¶ 46 As an initial matter, we addre ss Neptune’ s asser tion that Welch forf

eited any arg

uments perta ining to the second element of res judicata

, on the basis that Welch failed to make such

arg uments befor e the circ uit court. See Mabry v. Boler

, 2012 I L App (1st) 111464, ¶ 24 (“a rg uments not raised befor e the circ uit court are forf eited and cannot be raised for the first
time on appea l”). Howeve r, based on our re v i e w of the rec ord, Welch’s J une 2, 2011 pleading s befor e the circ uit court alleg ed that its indemnification claim ag ainst Neptune was
not barr ed by res judicata

, and all three elements of res judicata wer e g ener ally enumer ated
in t h e pleading s. Thus, we find that Welch has not forf eited its challeng es to the second
element of res judicata on appea l.
¶ 47 I llinois applies the more liberal “tra nsactional test” in deter

mining wh et h e r identity

of

cause of action exis ts for the purposes of res judicata

. River Park, Inc.

, 184 I ll. 2d at 310-12.
Under the transac tional test, “sepa rate claims will be considere d the same cause of action for

-11-purposes of res judicata if th ey ar i s e fr o m a single g roup of opera tive fac ts, reg ardle ss of

whether they asser

t differ ent theories of relief .” Id. at 311. To deter

mine whether there is an identity of cause of action betwee n the first and second lawsuits, a court “ ‘must look to the
fac ts that g ive rise to plaintiffs’ rig ht to relief

, not simply to t h e fa ct s w hich support the judgme nt.’ ” Id. at 3 0 9 -1 0 (q u o t ing Rein

, 172 I ll. 2d at 338-39). An identity of cause of
action is es t ab l ished “if two claims are based on the same, or near ly the same, fac tual alleg ations.” PeregrineFinancial Group , 391 I ll. App. 3d at 314.
¶ 48 I n Peregrine Financial Group

, a company sued Pere g rine F inancial Gr oup (Pere g rine)
and Trade Maven, L L C (Tra deMave n), for patent infring ement in fede ral court. Id. at 309-10.
The fede ral lawsuit was resolved when Pereg rine and Tra d eM av e n eac h enter ed into a settlement ag ree ment with the suing company , an d all three parties ag ree d to a consent judgme nt. Id. at 310. Subsequently

, P er eg rine filed suit ag ainst Trade Maven in state court

to rec over damag es for, inter alia

, indemnification. Id. The indemnification claim soug ht to

rec over $416,081.22 i n at t orney fee s and costs Pereg rine incurre d in the fede ral patent litigation. Id. at

311-12. The c ircuit court then g rante d Trade Maven’ s motion for summary judgme nt on the indemnification claim, finding that it was prec luded by res judicata

. Id. at
312. On appea l, this court found that the patent litigation and the indemnification claim both

arose out of a licensing ag ree ment betwee n Pereg rine and Trade Maven. Id. at 315. Pursuant

t o t h e licensing ag ree ment, Pereg rine acquir ed the rig hts to use Trade Maven’ s softwar e, which resulted in the fede ral patent infr i ng ement lawsuit, and Trade Maven ag ree d to indemnify Pereg rine ag ainst such claims. Id. The revie wing court held that, b ec a use P er egr i n e’s claim for indemnification arose out of t he “same i ncident, events, transac tion,
circ umstances, or ot her factua l nebula” as t he patent litigation, t here exis t ed an identity of

cause s of action betwee n the two case s. (I nterna l quotation marks omitted.) Id. at 319. Thus,
b ec au s e the indemnification claim was not, but could have been, raised in the pat en t litigation, the re viewing court c oncluded that it was ba rre d by res judicata

. Id.
¶ 49 I n Radosta

, a truc k driver lost control of his truc k and collided with a car driven by the plai n tiff. Radosta

, 110 I ll. App. 3d at 1067. The plaintiff then filed a neg lige nce lawsuit

ag ainst the truck driver, and a l s o s u ed the manufa cture r and deale r of the truck for strict
l i ab ility

, neg lige nce, and willful and wanton conduct. Id. The truck driver filed a
counter claim for neg lige nce a n d s t ri c t liability ag ainst the m anufa cture r and deale r for the damag e to the truck, but did not file any indemnifica t i o n claims ag ainst the deale r or manufa cture r for his potential liability to the plaintiff. Id. A jury verdic t was rende red in
favor of the plaintiff ag ainst all three defe ndants, and in favor of the truck driver on his

counter claim ag ainst the manufa cture r and deale r for the damag e t o h i s truck. Id. Subsequently

, the truck driver filed an indemnification action ag ainst the d e aler and
manufa cture r, which the circ uit court dismiss ed on the basis of res judicata

. Id. at 1067-68.
The revie wing court aff

irmed the circ uit court’s dismiss al, finding that the indemnification
claim was barr ed by res judicata beca use it arose out of the same g roup of opera tive fac ts in
the first action and could have b ee n ra i s e d at that time. Id. at 1068. The revie wing court specific ally

found that the t ruck driver’s claim in both actions was based on the claim that
the manufa cture r and deale r s o l d h i m a vehicle with defe ctive steering which cause d an

acc ident, and that they should be liable for damag es resulting from the acc ident. Id. at 1069.

-12-The revie wing court further found immaterial that the truck driver soug ht differ ent damag es

in the second action fr om those soug ht in the first action, stating that the asser tion of
differ ent kinds of relief or damag es still constit uted a sing le ca use of a ction wher e a sing le

g roup of opera tive fac ts g ave rise to the asser tion of re lief. Id. I n its holding

, the revie wing

court noted I llinois public policy ag ainst claim splitt ing and piece meal litigation. Id. at 1068-
69.
¶ 50 L ike Per e

g r ine Financial Group and Radosta

, Welch’s Camper II indemnification claim

ag ainst Neptune a

rose f rom the same g roup of opera tive fac ts as its Camper I

contribution
action ag ai n s t Neptune. Both actions arose out of t he inj ures suffere d by Camper when he alleg edly fell while working in a sanitary manhole on a construction s i t e i n J anuar y 2006,
which g ave rise to Camper’ s subsequent prod u ct l i ability claims ag ainst Welch, as manufa ctur er o f the manhole, in Camper I and Camper II

. Reg ardle ss of the fac t that
Welch’s contribution claim in Camper I and the indemnification claim in Camper II asser t differ ent theories of relief ag ainst Neptune, both actions relied upon t h e ci rc u m stance s surrounding Camper’ s acc ident t h at gav e rise to the asser tions of relief

. L ike the Radosta
truck driver who did not include an indemnification claim i n his counter claim in the first action, Welch did not raise, but could have raised, the indemnification claim ag ainst Neptune
in its thir d -p ar t y complaint in Camper I

. I nstead, Welch waited to bring a claim for
indemnification ag ainst Neptune for the fir s t time in Camper II

. Thus, we find that an identity of cause of action exis ted betwee n Welch’s contribution action ag ainst Neptune in Camper I and Welch’s indemnification action ag ainst Neptune in Camper II

. There fore

, beca use all three elements wer e satisfied, we hold tha t the indemnification count (count I I )
in Welch’s third-par

ty complaint ag ainst Neptune in Camper II was barr ed by res judicata

. ¶ 51 Nonethele ss, Welch arg ues that, even if the elements of res j u d i ca t a w ere satisfied, exceptions applied to circ umvent the prec lusion of its third-par ty claims ag ainst Neptune in Camper II

. Welc h co ntends that the circ uit court’s Fe bruar y 13, 2009 order and April 22,
2009 order

, which voluntarily dismiss ed Camper’ s action ag ainst Welch in Camper I

, as well

as the May 19, 2011 by stander’ s repor t filed by Attorney Radunsky

, ex p re s s l y rese rved
Welch’s rig ht to maintain the third-par ty action ag ainst Neptune in Camper II

. Welch further

asser ts that policies f

av o ri n g prec lusion of Welch’s third-par ty action ag ainst Neptune in Camper II

wer e over come by

extraordinary

rea sons. ¶ 52 Neptune counter s that the circ uit court’s Fe b ru ar y 1 3

, 2 0 0 9 o rd er an d At torney Radunsky ’s b y s t an d e r’s repor t did not expressly rese rve for Welch a rig ht to maintain the third-par ty action ag ainst Neptune in Camper II

. Neptune further arg ues that Welch forf eited
its arg uments conce rning the April 22, 2009 order

, which are raised f o r t h e fi r st time on

appea l. For feiture aside, Neptune contends that the April 22, 2009 orde r did not opera te as

a rese rvation to allow Welch to file a new third-par ty action ag ainst Neptune in Camper II

. Neptune further asser

ts that Welch forf

eited revie w of its claim that “extraordinar y rea sons”

prec luded the application of res judicata to bar its third-par ty actions ag ainst Neptune in Camper II

, and, no t wi t h s t anding forf eiture, W elch failed t o show by clea r and convincing
evidenc e that any

such extraordinar

y rea sons exi sted to apply

this ex ception.
¶ 53 Our supreme court has set forth si x exceptions to the rule a g ainst claim-splitting, even when the elements of res j udicata are met, including, inter alia

, circ umstances where “(2)

-13-the court in t h e f irst action expressly rese rved the plaintiff’s rig ht to maintain the second action; *** or (6) it is clea rly and convincing ly shown that the policies favor ing prec lusion
of a se cond ac tion are ove rcome for a n extraordinary

rea son.” Rein , 172 I ll. 2d at 341.
¶ 54 We find that the Fe bruar y 13, 2009 order and the May 19, 2011 by stander’ s repor t filed by Attorney Radunsky did not expressly rese rve for Welch a rig ht to maintain the third-par ty action ag ainst Neptune in Camper II

. As n o t ed, in Camper I

, the Fe bruar

y 13, 2009 order expressly stated that the sett l em en t b e tween Camper, Bur nside and Neptune was made in

g ood faith; that both Camper’ s action ag ainst Bur nside, and Welch’s third-par ty action

ag ainst Neptune, be dismiss ed with prejudice ; and that any actions for contribution filed by

any other defe ndants or tortfea sors ag ainst Bur nside and Neptune wer e barr ed by the court. The court’s order further denied Welch’s motion to amend its pleading s ag ainst Neptune to include other cause s of action, and stated that Camper’ s cause of action shall continue ag ainst
Welch as the sole nonsettling defe ndant in Camper I

. Welch now arg ues that its rig ht to bring

cause s of action ag ainst Neptune in Camper II was rese rved by the court’s Fe bruar y 13, 2009
order

, on the basis that the court did not deny Welch’s rig ht to bring subse quent additional

cause s of action ag ainst Neptune w i t h p r ej u d ice and the order did not contain any Rule 304(a) lang uag e. We find this arg ument to be without merit, wher e t h e omissions by the

court as sug g ested by Welch cannot be considere d an “e x p re ss rese rvation” under the exceptions to prec lud e r e

s ju d ic a ta e f f e c t upon Welch’s subsequent third-par ty action ag ainst Neptune in Camper II

. Rather, the plain lang uag e of the Fe bruar y 13, 2009 order expre

ssly
dismiss ed Welch’s Camper I th i rd -p ar t y action ag ainst Neptune with prejudice

, denied
Welch leave to amend its pleading s ag ainst Neptune to include other cause s of action, and
barr ed any actions for contribution ag ainst Neptune by any other de fenda

nts or tortfea sors. Nothing in the transcr ipt of the Fe bruar y 13, 2009 proce eding s or th e Fe b ru ar y 13, 2009
order sug g ests that the circ uit court expressly rese rved for Welch a future rig ht to file another third-par ty action ag ainst Neptune in Camper II

. Fur ther, while the Fe bruar

y 13, 2009 order
did not contain any Rule 304(a) lang uag e, W elch did not ask the c ourt for inclusion of t he lang uag e or seek t o ap p ea l the order foll owing Camper’ s voluntary dismiss al of Camper I

on Apri l 2 2

, 2 0 0 9

. I t i s important to note t hat at the t ime the Februa ry 13, 2009 order was
enter ed, there was no way either the circ uit court or Welch possibly could have known that Camper woul d v o l untarily dismiss his rema ining claims ag ainst Welch in Camper I two months later in April 2009, o r wh et h er C amper would ref ile his cause of action ag ainst
Welch within the one-y ear statutory require ments. Thus, we reje ct Welch’s contention that
the Fe bruar

y 13, 2009 order expressly rese rved Welch’s rig ht to maintain the Camper II third-par ty action ag ainst Neptune.
¶ 55 W el ch d i re ct s this court’s attention to a May 19, 2011 by stander’ s repor t f i l ed b y Attorney Radunsky , which wa s attache d as Exhibi t B to Welch’s J une 2, 2011 response to Neptune’ s motion to dismiss the third-par ty action in Camper II

, in support of its arg ument that the court had ex pressly rese rved W elch’ s rig ht t o fi l e a n e w t hird-par ty action aga inst Neptune in Camper II

. The crux of the by stander’ s repor t stated that, during the Fe bruar y 13,
2009 hear i n g i n Ca mp er I

, the circ uit court purportedly informed Attorney Radunsky that
Welch was free to file a claim of indemnification or brea ch of contra ct ag ainst Neptune in

a separ ate lawsuit and that such a claim was not barr ed by res judicata

. W e re j e ct this

-14-contention. Supreme Court Rule 323 provides that a by stander’ s repor t may be provided by

an appellant wher e “no verba tim transcr ipt of the evidenc e of proce eding s is obtainable.” I ll.

S. Ct. R. 323(c) (ef

f. Dec

. 13, 2005). Howeve r, a by stander’ s repor t may not be based solely

upon the draf

ter ’s o wn interpre tation of the evidenc e and memory as to what happene d during the proce eding s, without acknow ledg ment by the opposing party and cer tification by
the circ uit court. City of Pek in v. Mann

, 44 I ll. App. 3d 1, 2 (1976). We find that a verba tim

transcr ipt of the Fe bruar

y 13, 2009 proce eding s was provided to this court on ap p ea l an d

, thus, under Rule 323, the by stander’ s repor t co u l d n o t b e used to supplement the rec ord.

Fur ther, our revie w of the rec ord shows that, while Neptune filed a motion t o s t rike the by stander’ s repor

t on J uly 15, 2011 and the circ uit court there afte r denied the motion to strike

on J uly 25, 2011, the rec ord is devoid of any indication that the circ uit court actua lly cer tified
the by stander’ s repor

t or that Attorney Radunsky

, as counsel for Welch, complied with other

proce dural require ments set forth in Rule 323. See I ll. S. Ct. R. 323(c) (ef f. Dec

. 13, 2005);

see Foutch v. O ’Bryant , 99 I ll. 2d 389, 391-92 (1984) (appe llant ha s the burden to provide

a complete rec ord on appea l, and thus, any doubts which may arise from the incompleteness
of the record will be resolved aga inst the appellant ). I n d e ed, the by stander’ s repor t, which

was cre ated over two y ear s afte r the Fe bruar y 13, 2009 hear ing and bear s only the signa ture of Attorney Radunsky

, was more akin to an attorney ’s aff idavit than a by stander’ s repor t. See
Smith v. Central Illinois Public Servic e Co.

, 176 I ll. App. 3d 482, 497 (1988) (“a n attorney ’s
aff idavit cannot be used to supplement the rec ord in lie u o f a t ransc ript or a by stander’ s

repor t”); Mann

, 44 I ll. App. 3d at 2-3 (appe llant may not proce ed on a purported “by stander’ s

repor t” which was only signe d by the appellant’ s attorney and was base d s o l el y u p o n the
attorney ’s interpre tation of the evidenc e). Thus, we find that t h e express rese rvation exception to the doctrine of res judicata did not apply on this basis.
¶ 56 Welch further arg ues that exceptions to res judicata applied in the instant c ase beca use the circ uit court’s April 22, 2009 order

, which voluntarily dismiss ed Camper’ s action ag ainst
Welch in Camper I

, expressly rese rved Wel ch ’s ri gh t to maintain the third-par ty action

ag ainst Neptune in Ca mp er II

. Welch further arg ues that policies favor ing prec lusion of
Welch’s third-par

ty ac t i o n a g ainst Neptune in Camper II wer e overcome by extraordinary

rea sons. We find these a

rg uments to be forf

eited for revie w bec ause the y

are raised f

or the
first time by Welch on appea l. See Mabry

, 2012 I L App (1st) 111464, ¶ 24 (“a rg uments not raised befor e the circ uit court are forf eited and cannot be raised for the first time on appea l”).
¶ 57 For feiture aside, we find that the April 2 2

, 2 0 0 9 o rd er did not expressly rese rve for
Welch a future rig ht to file another third-par ty action ag ainst Neptune in Camp er II

. As discussed, the April 22, 2009 order voluntarily dismiss ed Camper’ s action ag ainst Welch in Camper I and ex pressly stated t hat C amper had reserve d his rig ht to maintai n his cause of
action “upon ref

iling of this matter in acc ordanc e with [s] ection 13-217 of the I llinois Code
of Civil P roce dure ( 735 I L CS 5/ 13-217) a nd there shall be no res judicata eff ect upon a

ny claim.” B ased on our

revie w of the entirety of the April 22, 2009 order , we f ind nothing in
the plain lan gu age o f t h e order to sug g est that the court was expressly rese rving Welch a rig ht to file a subsequent third-par ty action ag ainst Neptune, a g a in s t w h om all pending claims
had been terminated by the circ uit court approximately two months ear lier on Fe bruar y 13,
2009. See Kiefer , 394 I ll. App. 3d at 494 (circ uit court orde rs must be interpre ted from the

-15-entire context in which they wer e enter ed, wit h re f ere nce to other parts of the rec ord including the pleading s, motions and issues befor e the court and the arg uments of counsel;
order s must be construed in a rea sonable manner to g ive eff ect to the appar ent intent of the
circ uit court). Welch points to isolated phrase s in the Ap ri l 2 2

, 2009 order

, such as that Camper’ s voluntary dismiss al was enter ed “ w it h o u t p rejudice and costs to any party ” and that

“t h er e shall be no res judicata eff ect upon any claim,” as bases for its arg uments that the
circ uit court expressly rese rved Welch’s rig ht to file a later third-pa r ty a c ti o n ag ainst Neptune
in Camper II

. We reje ct this arg ument, and find that the April 22, 2009 order

, when viewed
in the entire context in which the order was enter ed, clea rly perta ined on l y t o C am per’ s voluntary dismiss al of his action ag ainst Welch in Camper I and the rese rvation of Camper’ s statutory rig hts to ref

ile his claims ag ainst Welch within one y ear of the voluntary dismiss al. Thus, the express rese rvation exception of res judicata did not apply on this basis. L ikewise,
forf eiture aside, we find that Welch, in pointing out its power lessness t o p re v ent Camper
from voluntarily dismiss ing his cause of action in Camper I

, has not clea

rly and convincing ly
shown any e x traordina

ry rea sons that could overc ome policies favor ing prec lusion of
Welch’s third-par

ty ac t i o n ag ainst Neptune in Camper II

. Thus, we find that no exception

to res judicata should apply on this basis. There fore

, we hold that the doctrine of res judicata
barr ed the contribution count (count I ) and indemnification count (count I I ) of Welch’s thirdparty action ag ainst Neptune in Camper II

. ¶ 58 Moreove r, we find that the indemnification count (count I I ) of Welch’s third-par ty action

ag ainst Neptune in Camper II was proper ly dismiss ed with prejudice by the circ uit court for
the additional rea son that it violated the Construction Contrac t I n d emnifica tion for

Ne g lige nce Act (the Anti-I ndemnity Act) (740 I L CS 35/1 et seq. (West 2010)). The Anti

I ndemnity

Act provide s: “With respect to contr acts or a g ree ments, either public or private, for the construction, alteration, repair or maintenance of a buil ding, structure, highwa y bridg e, viaducts or

o t h er work dealing with construction, or for any moving

, demolition or excavatio n

connec ted therewith

, ever y covena nt, promise or ag ree ment to in d em n ify or hold
harmless another person from tha t person’ s own neg lige nce is void as against public policy and wholly unenforce able .” (Empha ses adde d.) 740 I L CS 35/ 1 (West 2010).

As discussed, the rele vant lang uag e of the purcha se order ag ree ment betwee n Welch and Neptune soug ht to indemnify We l ch a g ainst “any and all claims *** arising out of the
order ing, acquisition, delivery

, installation, possession, maint e n a n c e , u s e , o p e r ation, control, loss, damag e, destruction, return or sur re n d er, sale or other dispositi on of any materia l supplied by [W elch].” The aff idavit of Welch’s g ener al manag er, Nick Martinec

, attests that
Welch manufa cture d and deliver ed the manhole by unloading it from a truc k and setting it

on the g round at the construction site. Ba sed o n t h i s e vidence

, we find that the work perf ormed by Welch constituted “other work dealing with constructio n ” a n d “for any moving

*** connec ted there with” within the scope of the Anti-I ndemnity Act. Thus, we find that the
indemnification clause of the purcha se order ag ree ment, which soug ht to indemnify Welch
for “any and all claims” arising out of t he enumerate d conduct, was void as aga inst p u blic policy under the Anti-I ndemnity Act. Ther e f o r e , b e c a u s e th e indemnification clause was void

a n d u n e n f o r c e a b le

, th e c ir c u it c o u

r t p r o perly dismiss ed Welch’s indemnification claim (c o u n t

-16-I I ) ag ainst Neptune with prejudice in Camper II

. Acc ord i n gl y , we need not addre ss Neptune’ s alterna

tive arg uments for re lief on appe al.
¶ 59 For the fore g oing rea sons, w e aff irm the judgme nt of the circ uit c ourt of Cook County

.

¶ 60 Affir

med.

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