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Avery v. Auto-Pro, Inc.

Case Date: 05/30/2000
Court: 1st District Appellate
Docket No: 1-99-3712

Avery v. Auto-Pro, Inc., No. 1-99-3712

1st District, May 30, 2000

FIRST DIVISION

BEVERLY AVERY, Indiv. and as Parent and Next Friend ofKelly Avery, a Minor, and Valentyne Arent,

Plaintiffs and Counterdefendants-Appellants,

v.

AUTO-PRO, INC., d/b/a Wilrae of Palos Heights

Defendant and Counterplaintiff-Appellee.

Appeal from the Circuit Court of Cook County

Honorable William D. Maddux, Judge Presiding.

PRESIDING JUSTICE O'MARA FROSSARD delivered the opinion of the court:

In this refiled negligence lawsuit, we are asked to determine whether a defendant may file a counterclaim for contributionagainst plaintiff under section 13-204 of the Code of Civil Procedure (735 ILCS 5/13-204 (West 1998)). In the previouslyfiled lawsuit, the trial court dismissed defendant's counterclaim for contribution as barred under the statute of limitations ofsection 13-204. Once plaintiffs voluntarily dismissed their complaint and refiled this lawsuit within one year of thevoluntary dismissal (735 ILCS 5/13-217 (West 1998)), the defendant filed a second identical counterclaim for contribution.This time the trial court denied plaintiffs' motion to dismiss the counterclaim and found the counterclaim was no longertime-barred under section 13-204 because defendant brought it within two years of being served in the refiled action. Thetrial court, however, certified the issue of the validity of defendant's counterclaim for interlocutory appeal under SupremeCourt Rule 308(a). 155 Ill. 2d R. 308(a). We granted plaintiffs' request for leave to appeal and now reverse.

The facts of this case are relatively simple and undisputed. In 1992, plaintiffs brought a negligence suit against defendant.Plaintiffs alleged that defendant negligently repaired an automobile that subsequently crashed into a pole and causedplaintiffs, who occupied the automobile during the crash, to sustain personal injuries. In 1996, defendant filed acounterclaim for contribution against plaintiffs. Defendant's counterclaim alleged that plaintiffs' negligence contributed tothe auto accident and their injuries. Plaintiffs moved to dismiss the counterclaim under section 13-204 because defendantfiled it more than two years after plaintiffs served it with process in 1992. The trial court in an order dated August 30, 1996granted the motion and dismissed the counterclaim with prejudice. The dismissal order contained Supreme Court Rule304(a) language. The defendant never sought to appeal the dismissal of its counterclaim for contribution.

On October 24, 1997, plaintiffs voluntarily dismissed the lawsuit. Pursuant to section 13-217 of the Code of CivilProcedure (735 ILCS 13-217 (West 1998)), plaintiffs refiled the case within one year of dismissal on June 3, 1998, andcaused defendant to be served with summons shortly thereafter. Within less than two years, on June 18, 1999, defendantagain brought a counterclaim for contribution. Plaintiffs moved to dismiss the counterclaim pursuant to section 2-619 of theCode of Civil Procedure. 735 ILCS 5/2-619 (West 1998). Plaintiffs argued that because the trial court dismissed defendant'soriginal counterclaim for contribution in the initial lawsuit as time-barred under section 13-204, defendant's currentcounterclaim for contribution, identical to the first, was likewise barred. The trial court denied plaintiffs' motion to dismissbut certified the following question for interlocutory review under Supreme Court Rule 308 (155 Ill. 2d R. 308):

"Can a counterclaim plaintiff file a counterclaim for contribution based on negligence following the refilling of anoriginal action that was voluntarily dismissed, when the negligence counterclaim for contribution had originally beendismissed before the voluntary dismissal?"

We granted plaintiffs leave to file an interlocutory appeal.

Plaintiffs moved to dismiss the counterclaim for contribution under sections 2-619(a)(4) and (a)(5) which allow forinvoluntary dismissal of a pleading because it is either barred by a "prior judgment" or "[i]t was not commenced within thetime limited by law." 735 ILCS 2-619(a)(4), (a)(5) (West 1998). Our review of a motion to dismiss brought under section 2-619 is de novo. Aboufariss v. City of DeKalb, 305 Ill. App. 3d 1054, 1067 (1999).

Plaintiffs argue that defendant's counterclaim is barred by either the statute of limitations or the doctrine of res judicata.Defendant counters that the plain language of section 13-204 allows it to bring this counterclaim. Section 13-204 states inrelevant part:

"(b) In instances where an underlying action has been filed by a claimant, no action for contribution or indemnity maybe commenced more than 2 years after the party seeking contribution or indemnity has been served with process inthe underlying action or more than 2 years from the time the party, or his or her privy, knew or should reasonablyhave known of an act or omission giving rise to the action for contribution or indemnity, whichever period expireslater.
(c) The applicable limitations period contained in subsection (a) or (b) shall apply to all actions for contribution orindemnity and shall preempt, as to contribution and indemnity actions only, all other statute of limitation or repose ** *." 735 ILCS 5/13-204 (b), (c) (West 1998).

We first address plaintiffs' argument that because the dismissal of defendant's initial contribution claim, identical to thecurrent one, was an adjudication on the merits in the previous lawsuit, defendant cannot revive the counterclaim in therefiled cause of action. Plaintiffs essentially argue that the principles of res judicata bar the counterclaim. Res judicata barsthe refiling of an action previously adjudicated on the merits that involves the same parties and the same cause of action.DeLuna v. Treister, 185 Ill. 2d 565, 572 (1999). "For the doctrine of res judicata to apply, three requirements must be met:(1) there was a final judgment on the merits rendered by a court of competent jurisdiction; (2) there was an identity of causeof action; and (3) there was an identity of parties or their privies." Rein v. David A. Noyes & Co., 172 Ill. 2d 325, 335(1996).

Under Supreme Court Rule 273, "an involuntary dismissal of an action, other than a dismissal for lack of jurisdiction, forimproper venue, or for failure to join an indispensable party, operates as an adjudication upon the merits." 134 Ill. 2d R.273. Rule 273 governs involuntary dismissals such as occur when a trial judge grants a section 2-615 or section 2-619motion to dismiss. Rein, 172 Ill. 2d at 335. Courts have found that a trial judge's decision to grant a motion to dismiss acause of action based on the application of a statute of limitation constitutes a final adjudication on the merits. Rein, 172 Ill.2d at 335; Greenfield v. Ray Stamm, Inc., 242 Ill. App. 3d 320, 327 (1993). Moreover, when a party obtains an involuntarydismissal of a claim and later asserts that the dismissal was an adjudication on the merits, the court makes thisdetermination "by applying Rule 273 according to its plain terms." DeLuna, 185 Ill. 2d at 578.

In this case, the trial court granted plaintiffs' motion to dismiss defendant's counterclaim in the previously filed suit pursuantto section 2-619 as barred under the statute of limitations and found no just reason to delay enforcement and appeal of thedismissal order. Defendant did not appeal the dismissal order. The plain language of Rule 273 provides that the involuntarydismissal of defendant's counterclaim operates as a final judgment on the merits because the dismissal was for a reasonother than lack of jurisdiction, improper venue, or failure to join an indispensable party. 134 Ill. 2d R. 273. Thus, the initialdismissal of defendant's counterclaim based on the applicable statute of limitations was a final adjudication on the meritsand satisfies the first element of the res judicata analysis. Rein, 172 Ill. 2d at 336.

We additionally find that the other two elements are satisfied. In the previous lawsuit, defendant brought the samecounterclaim for contribution; thus, both counterclaims constitute the same cause of action. Moreover, the parties in bothactions are identical. Defendant has offered no authority to refute the application of the doctrine of res judicata. Therefore,defendant's counterclaim for contribution was barred under the principles of res judicata. The trial court should havegranted plaintiffs' motion to dismiss defendant's counterclaim for contribution.

Having determined that the doctrine of res judicata bars defendant's counterclaim in the refiled lawsuit, we need not addresswhether defendant filed the counterclaim within the statute of limitations of section 13-204(b). 735 ILCS 5/13-204(b) (West1998).

For the foregoing reasons, we answer the certified question in the negative and reverse the order denying plaintiffs' motionto dismiss.

Certified question answered; order reversed.

RAKOWSKI and GALLAGHER, JJ., concur.