Find Legal Information

SECOND DIVISION
September 26, 2000

JUSTICE McBRIDE delivered the opinion of the court:

Plaintiff, Don Saffold Enterprises, appeals from an order ofthe circuit court dismissing its complaint with prejudice, onmotion of defendant, Concept I, Inc. Plaintiff filed threelawsuits based on the breach of a written contract for goods andservices. The first two actions were dismissed for want ofprosecution, and the court dismissed the third complaint, whichis the subject of this appeal, pursuant to section 13-217 of theCode of Civil Procedure (735 ILCS 5/13-217 (West 1998)). Section13-217 allows for only a one time refiling of a cause of actiondismissed for want of prosecution. On appeal, the issue is whether the trial court correctly held that plaintiff was notentitled to file a third complaint based upon section 13-217where the third complaint named a defendant other than thedefendant named in the first two causes of action.

On September 11, 1995, plaintiff filed a complaint undercase number 95 M1 152081 for breach of contract. The complaintnamed "Carl Wasserman D/B/A Concept I" as defendant. CarlWasserman filed a motion to dismiss on the grounds that Concept Iwas a corporation and that Wasserman had not entered into acontract with plaintiff on behalf of the corporation. OnFebruary 5, 1996, the action was dismissed for want ofprosecution.

On November 19, 1996, plaintiff filed a second complaintunder case number 96 M1 165134 for breach of the same contract. The original complaint is not contained in the record; however,the pleadings, notices and motions all refer to defendant as"Carl Wasserman D/B/A Concept I." Carl Wasserman again filed a motion to dismiss on the same grounds that Concept I was acorporation and he had not entered into a contract with plaintiffon behalf of the corporation. Wasserman also included with themotion a certificate from the Illinois Secretary of Stateindicating Concept I's status as a corporation. Defendant'smotion to dismiss was granted, but plaintiff was given threeweeks to file an amended pleading. At the subsequent hearing onFebruary 10, 1998, plaintiff's attorney was not present anddefendant's attorney stated that he had not received an amendedpleading as of that date. The case was then dismissed for wantof prosecution. Plaintiff's motion to vacate this dismissal wasdenied.

We do note that plaintiff asserts in its appellate briefthat plaintiff filed an amended complaint on January 12, 1998. An amended complaint is included in the record naming onlyConcept I as defendant. However, the date stamp is not readable,no other documents in the record document its existence, anddefendant had not received it as of the February 10, 1998, courtdate.

On November 4, 1998, plaintiff filed a third complaint undercase number 98 M1 157765 for breach of the same contract. Thecomplaint named only Concept I, Inc. as defendant and wasessentially identical in substance to plaintiff's first andsecond complaints. Defendant filed a motion to dismiss pursuantto section 13-217, arguing that plaintiff had refiled the samecause of action twice when the statute allowed for only a onetime refiling of a cause of action that has been dismissed forwant of prosecution. The court denied defendant's motion. However, the court subsequently granted defendant's motion toreconsider and then dismissed plaintiff's third complaint as asecond refiling of a dismissed action. Plaintiff now appeals.

The issue on appeal is whether the trial court correctlyheld that plaintiff was not entitled to file a third cause ofaction based upon section 13-217 where the third cause of actionnamed a different defendant than the first two causes of action.

Section 13-217 provides for one and only one refiling of acause of action regardless of whether the applicable statute oflimitations has expired. Flesner v. Youngs Development Co., 145Ill. 2d 252, 253, 582 N.E.2d 720 (1991). In Flesner, theplaintiffs filed their third complaint, which arose out of thesame facts and claims and named the same defendants as their twoprevious lawsuits. The supreme court dismissed the plaintiff'sthird complaint finding that section 13-217 expressly permittedone, and only one, refiling of a claim even if the statute oflimitations had not expired. Flesner, 145 Ill. 2d at 254.

Neither of the parties cite Flynn v. Allis Chalmers Corp.,262 Ill. App. 3d 136, 634 N.E.2d 8 (1994), which in our viewcontrols the disposition of this appeal. In Flynn, the plaintifffiled three separate complaints based on the same set of factsbut named different defendants. The first complaint namedAmerican Air Filter Co. (American Air) as defendant and allegedthe plaintiff was injured while working at the defendant'swarehouse. The plaintiff was advised by Allis Chalmers thatAmerican Air was a "non-operating corporate shell," and theactual owner of the premises, Allis Chalmers, was the subject ofbankruptcy proceedings in the state of New York. As a result,the plaintiff voluntarily dismissed the first case.

Subsequently, the plaintiff filed a second cause of actionnaming Allis Chalmers and others as defendants. After the trialcourt barred the plaintiff from introducing certain evidence attrial, the plaintiff voluntarily dismissed the action. Theplaintiff filed a third cause of action naming Allis Chalmersdoing business as American Air, and others, as defendants. Thecase was dismissed on the defendant's motion that it was animproper second refiling under section 13-217.

On appeal, this court reversed the trial court's dismissaland held that the plaintiff's first complaint named a defendantother than the defendant named in the second and thirdcomplaints, and therefore the third complaint was properlyrefiled under section 13-217. In reaching this decision, thecourt analyzed whether the plaintiff's first complaint, whichnamed American Air as defendant, constituted the first filing orwhether the second complaint naming Allis Chalmers as defendantrepresented a new and separate cause of action. The courtpointed out that this precise question had not been consideredbefore by Illinois courts. It noted that section 13-217 providedthat within one year of a voluntary dismissal, a plaintiff mayfile "a new action." The court looked to Black's Law Dictionaryto define "action" and concluded that the identity of thedefendant was an essential element of an "action." The courtfurther stated that a complaint against a different defendant,even if based on the same facts supporting a right to relief,would constitute a separate "action."

Here, Carl Wasserman, an individual, and Concept I, Inc., acorporation, have separate identities and are not the samedefendant. As such, plaintiff's third cause of action, whichnamed Concept I, Inc. as a defendant for the first time, was anew cause of action, unlike the first two complaints that namedCarl Wasserman D/B/A Concept I as defendant. Even assuming thatplaintiff had filed the amended complaint naming Concept I asdefendant in plaintiff's second cause of action, which this courtquestions based on the record before us, plaintiff would stillhave one chance to refile after the dismissal for want ofprosecution on February 10, 1998, which is precisely whatplaintiff did.

Defendant cites to D'Last Corp. v. Ugent, 288 Ill. App. 3d216, 681 N.E.2d 12 (1997) and Phillips v. Elrod, 135 Ill. App. 3d70, 478 N.E.2d 1078 (1985), for the proposition that actionspremised upon the identical core of operative facts constitutethe same cause of action for purposes of res judicata and theapplication of section 13-217. These cases discuss two testsIllinois courts have adopted to determine whether the causes ofaction are the same for res judicata purposes and also undersection 13-217. Under the "same evidence" test, res judicatabars a second suit if the evidence needed to sustain the secondsuit would have sustained the first, or if the same facts wereessential to maintain both actions. The "transactional approach"test considers whether both suits arise from the sametransaction, incident, or factual situation. The transactionalapproach provides that the assertion of different kinds oftheories of relief still constitutes a single cause of action ifa single group of operative facts give rise to the assertion ofrelief. Recently, however, the supreme court rejected the sameevidence test in favor of the transactional analysis. RiverPark, Inc. v. Highland Park, 184 Ill. 2d 290, 311, 703 N.E.2d 883(1998).

In this case, res judicata does not preclude the filing ofplaintiff's third complaint under the transactional approachtest. Although plaintiff's three complaints involve the breachof the same contract and arise out of the same transaction, theyare not the same cause of action because they involve differentdefendants, an individual and a corporation.

In D'Last, the plaintiff filed his first complaint allegingtortious conduct by the defendants against the plaintiff'sbusiness. The plaintiff subsequently voluntarily dismissed thecause of action. The plaintiff then filed a complaint in federalcourt and alleged acts of harassment and tortious and criminalconduct, as well as antitrust and RICO violations. The federalcourt dismissed the antitrust and RICO counts, and refusing toexercise supplemental jurisdiction, dismissed the state lawcounts without prejudice. The plaintiff filed a third cause ofaction in state court naming the same defendants as the earlierstate and federal actions. The complaint also alleged variousacts of tortious conduct by the defendants. The trial courtdismissed the complaint pursuant to section 13-217 finding thatit was an impermissible second refiling. This court held thatthe plaintiff's federal claim, which alleged the same tortiousconduct and named the same defendants, was a permitted refilingof the first state claim. Therefore, the plaintiff's thirdcomplaint, which was filed in state court, was an impermissiblesecond refiling under section 13-217. In reaching thisconclusion, the court noted that each of the plaintiff'scomplaints sought recovery for damages resulting from variousacts of misconduct by the defendants and/or their employees,which allegedly interfered with the plaintiff's business. Thecourt also found that the plaintiff's federal complaint, inaddition to alleging federal claims, even if they were not basedon the same core of operative facts as the claims made in theearlier state action, also realleged the state claims raised inthe earlier state action.

In Phillips, the plaintiff filed a wrongful death statecourt claim. The plaintiff voluntarily dismissed the complaint. The plaintiff then filed the wrongful death claim in federalcourt, naming the same defendant, and alleged that the claim wasbeing refiled under section 24 of the Limitations Act (Ill. Rev.Stat. 1981, ch. 83, par. 24a) (Limitations Act), the predecessorprovision of section 13-217, from a prior state court actionvoluntarily dismissed by the plaintiff. The plaintiffvoluntarily dismissed the complaint. The plaintiff filed a thirdwrongful death claim in state court, naming the same defendant. This court held that the plaintiff's federal claim constituted arefiling of the first state court claim, and the plaintiff'sthird claim constituted an impermissible second refiling of theclaim. The court found that the plaintiff's federal claim, whichwas premised on the same core of operative facts as the firststate court claim, constituted the same cause of action forpurposes of res judicata and the applicability of section 24 ofthe Limitations Act.

The instant case is similar to D'Last, Phillips, andFlesner, because plaintiff's third complaint arose out of thesame facts and claims as the first two complaints. However, thecritical factor that distinguishes these cases is that in theinstant case, plaintiff's third complaint named an entirelydifferent defendant than the first two complaints. The first twocomplaints named Carl Wasserman individually, whereas the thirdcomplaint named Concept I, Inc., a corporation. As such,plaintiff's third complaint survives either as a new cause ofaction or as a one-time permitted refiling under section 13-217,if we are to consider that plaintiff filed the amended complaintincluded in the record.

Additionally, plaintiff's third complaint is not barredbecause the essential elements of res judicata have not been met. They are: (1) identity of parties or their privies in the twoactions; (2) identity of causes of action; and (3) a finaljudgment on the merits in the earlier action. PeregrineFinancial Group, Inc. v. Ambuehl, 309 Ill. App. 3d 101, 109, 722N.E.2d 723 (1999). Here, the preclusive effect of res judicatais not an issue because the identities of defendants or theirprivies are different. Carl Wasserman, an individual, is anentirely different defendant with a different identity thanConcept I, a corporation.

Accordingly, the judgment of the circuit court is reversedand remanded.

Reversed and remanded.

CAHILL, P.J., and GORDON, J., concur.