Is It ''claim-Splitting'' to Volunrarily Dismisses a Claim and Subsequently Refiling Claim ?
In Hudson v. City of Chicago, 228 Ill. 2d 462, 889 N.E.2d 210, 321 Ill. Dec. 306 (2008), the Illinois Supreme Court held that a plaintiff engages in claim-splitting if that plaintiff voluntarily dismisses a claim pursuant to section 2-1009 of the Code after another part of the cause of action has gone to final judgment and subsequently refiles that claim. Hudson, 228 Ill. 2d at 482, 889 N.E.2d at 222.
The Hudson court said that once a voluntary dismissal has been entered, the case is terminated in its entirety and all final orders become immediately appealable. Hudson, 228 Ill. 2d at 468, 889 N.E.2d at 214, citing Dubina v. Mesirow Realty Development, Inc., 178 Ill. 2d 496, 503, 687 N.E.2d 871, 227 Ill. Dec. 389 (1997). In Hudson, the plaintiffs filed a complaint alleging negligence and willful and wanton misconduct.
The negligence count was dismissed.
Plaintiffs subsequently voluntarily dismissed the willful and wanton misconduct count prior to trial and refiled the count within one year.
The supreme court held that the refiled action was barred by res judicata,because part of the original cause of action had already reached final judgment in the previous case. Hudson, 228 Ill. 2d at 483-84, 889 N.E.2d at 223.
The Illinois Supreme Court also has adopted exceptions to the rule against claim-splitting set forth in section 26(1) of the Restatement (Second) of Judgments (Restatement (Second) of Judgments 26(1) (1982)). Hudson, 228 Ill. 2d at 472, 889 N.E.2d at 216.
For example, res judicata does not apply where "the court in the first action has expressly reserved the plaintiff's right to maintain the second action." Restatement (Second) of Judgments 26(1)(b), at 233 (1982).
The supreme court has noted that the use of "without prejudice" language is not sufficient to protect a plaintiff against the bar of res judicata when another part of plaintiffs case has reached final judgment in a previous action. Hudson, 228 Ill. 2d at 472 n.2, 889 N.E.2d at 216 n.2.
However, after the circuit court entered the dismissal order in this case, this court ruled that a docket sheet entry including the language "with leave to refile" clearly and unmistakably grants leave to refile, triggering the exception to the rule against claim-splitting. Quintas v. Asset Management Group. Inc., 395 Ill. App. 3d 324, 333, 917 N.E.2d 100, 107, 334 Ill. Dec. 503 (2009).