Res Judicata Part II: Always Read What the Order Says (and Doesn't Say)

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In its second opinion of the day on the doctrine of res judicata, a unanimous Illinois Supreme Court has affirmed the First District, Fifth Division’s decision in Hernandez v. Pritikin [pdf]. A detailed discussion of the underlying facts and the rulings of the Circuit Court and Appellate Court appears in our pre-argument preview here. Our argument report – in which we predicted affirmance – is here.

The plaintiff in Hernandez developed physical problems in the early 1990s, and was ultimately diagnosed with Parkinson’s disease. The defendants represented plaintiff from early 1999 to late 2002, and pursued a workers’ compensation claim on his behalf. In 2004, now represented by a new law firm, plaintiff sued various companies allegedly involved in the manufacture and sale of various chemicals which he claimed had contributed to his disease. When that action was dismissed as time barred, plaintiff sued the defendants for malpractice.

The plaintiff’s original complaint alleged that defendants had failed to advise him of claims against persons or entities other than his employer, failed to file such claims and/or failed to advise him to hire other counsel to pursue such claims. Defendants moved to dismiss, arguing that the statute of limitations had run on the products claim before they were hired.

At the hearing on the motion to dismiss, the trial judge suggested that the statute of limitations had begun running on the products claim by 1995 at the latest, years before defendant was hired. But – and this is the important part – when the written order was issued, it merely said that the motion to dismiss was “granted,” and plaintiff had 30 days to amend. There was no mention of “with prejudice,” nor any suggestion that the plaintiff was now barred from pursuing any particular facts.

The amended complaint restated all the allegations of negligence relating to failure to advise/file the products action, but added further allegations that the defendants should have advised the plaintiff to sue his first law firm, who had represented the plaintiff on his Social Security disability claim. Plaintiff also added factual allegations apparently intended to justify application of the discovery rule to lengthen the statute of limitations on the products claim.

Defendants moved to dismiss again, arguing that if the statute had started running on the products claim by 1995 at the latest, then it followed that any claim against the first attorneys was barred by the time the defendants were hired. At the hearing on the motion, the judge said “I’m not reconsidering [the first judge’s] ruling. That’s not on the table.” But once again, the written order was more cryptic: “Defendant’s Motion to Dismiss the Amended Complaint is denied.” Again, nothing was said about any particular set of factual allegations being in the case or out of it. Later, with defendants’ motion for summary judgment pending, the plaintiffs voluntarily dismissed. When the plaintiff subsequently refiled the action, the Circuit Court dismissed it on res judicata grounds.

The Appellate Court reversed, holding that both actions raised a single claim: for legal negligence. The successive allegations, first for failure to advise about the products claims, and later, for failure to sue the first law firm, were merely differing facts in support of that claim, in the Court’s view. Accordingly, the order dismissing the allegations centered on the products claims did not finally resolve a “claim” for res judicata purposes.

In an opinion by Justice Lloyd A. Karmeier, the Court affirmed the Appellate Court on different grounds. Although the original trial judge had expressed a view about when the statute of limitations began running on the products claim based on the facts then before him, the critical fact was what the written order actually said – and didn’t say. The defendant had the right to amend. There was no suggestion that further allegations on the products claims were barred. Therefore, it necessarily followed that the order finally decided nothing, and res judicata couldn’t apply.

The second hearing, in which the judge commented that the first judge’s ruling was not up for reconsideration, was “even less definitive,” the Court found. The court’s statement was “intended to direct and control the discussion in the course of an ongoing hearing,” the Supreme Court concluded. Besides, the written order merely said “denied.” Nothing was decided, and no facts or theories were removed from the case.

Hernandez is a timely reminder of one of the most important ways to maximize the chances of success on appeal: protecting the record. In the words of the Court: “where the nature of the ruling may be determinative . . . a movant has the responsibility to obtain a definitive ruling.”