FOURTH DIVISION September 30, 2016

No. 1-15-3388

MATT DINERSTEIN and ANGELA ADAMSON, ) Appeal from the ) Circuit Court of Plaintiffs-Appellants, ) Cook County, Illinois ) v. ) No. 15 L 4527 ) EVANSTON ATHLETIC CLUBS, INC., ) Honorable ) John P. Callahan, Defendant-Appellee. ) Judge Presiding.

JUSTICE ELLIS delivered the judgment of the court, with opinion. Justices Howse and Burke concurred in the judgment and opinion.

OPINION

¶1 Plaintiffs, Matt Dinerstein and Angela Adamson, appeal from the order of the circuit

court of Cook County dismissing their complaint against defendant Evanston Athletic Clubs,

Inc., pursuant to section 2-619(a)(9) of the Code of Civil Procedure (735 ILCS 5/2-619)(a)(9)

(West 2014)), as barred by res judicata. On appeal, plaintiffs argue that res judicata did not

apply to their second action because no final judgment on the merits was entered in the first

action. They additionally argue that, even if the technical requirements of res judicata were met,

equity demands that the dismissal be reversed and that two recognized exceptions to claim-

splitting apply.

¶2 We agree with the trial court that the elements of res judicata were met in this case. But

we agree with plaintiffs that the trial court should not have dismissed the complaint because a

question of fact remains as to whether one of the recognized exceptions to claim-splitting— No. 1-15-3388

defendant’s agreement, in terms or effect, to the claim-splitting—applied under the facts of this

case. We vacate the trial court’s judgment and remand this matter for further proceedings on that

question.

¶3 I. BACKGROUND

¶4 Plaintiffs, Matt Dinerstein and Angela Adamson, sued defendant Evanston Athletic

Clubs, Inc., and others, for personal injuries after Dinerstein fell from the rock-climbing wall at

defendant’s facility (Dinerstein I). The complaint contained three counts against defendant:

negligence; willful and wanton conduct; and loss of consortium. The trial court granted

defendant’s motion to dismiss the negligence count, pursuant to section 2-619(a)(9) of Code of

Civil Procedure (735 ILCS 5/2-209(a)(9)(West 2014), based on an exculpatory agreement

between defendant and Dinerstein, in which he agreed to not sue defendant for negligence. The

trial court later denied plaintiffs’ motion to reconsider and the case continued on the other two

counts. 1

¶5 On April 3, 2015, defendant’s counsel filed an agreed motion to continue the trial date on

the grounds that the parties had not completed discovery, including expert discovery, and that

plaintiffs’ assigned counsel had recently left the firm. On April 10, 2015, counsel for both parties

appeared at the hearing on the motion. The motion was denied, and the parties were directed to

appear for trial on April 13, 2015.

¶6 After leaving the courtroom, counsel for both parties discussed their mutual uncertainty

as to what options were available, given that trial was less than two weeks away and they had not

completed expert discovery. The conversations that followed over the next several days between

opposing counsel are the subject of sharp dispute in this litigation. We can say this much here,

1 The status of the other defendants is unclear and not relevant to the issues in this appeal. -2- No. 1-15-3388

without unnecessarily delving into detail: The parties discussed as one possibility that plaintiffs

could voluntarily dismiss the action pursuant to section 2-1009(a) of the Code of Civil Procedure

(735 ILCS 5/2-1009(a) (West 2014)). Defendant’s counsel even emailed the text of section 2-

1009(a) to plaintiffs’ counsel. Whether defense counsel, by words or actions, indicated that she

would not raise a res judicata objection to a refiling of the case is one of the principal issues in

this case.

¶7 In any event, on April 13, 2015, counsel appeared at the trial call, where plaintiffs

voluntarily dismissed their complaint without prejudice. Eighteen days later, on May 1, 2015,

plaintiffs filed the instant suit, which they amended on July 31, 2015 (Dinerstein II). Plaintiffs

again alleged that Dinerstein was injured when he fell from the rock-climbing wall at defendant’s

facility. The refiled complaint did not contain the negligence count that had been previously

involuntarily dismissed but did contain the same claims for willful and wanton conduct and loss

of consortium as the complaint in Dinerstein I.

¶8 On August 20, 2015, defendants filed a motion to dismiss pursuant to section 2-619(a)(9)

of the Code of Civil Procedure (735 ILCS 5/2-619(a)(9) (West 2014)). Defendants argued that

the complaint in Dinerstein II was barred by res judicata. In response, plaintiffs raised several

arguments: res judicata did not apply because there had been no final adjudication on the merits;

they had not improperly split their claims because they were all brought in one action; even if the

technical requirements of res judicata had been met, exceptions to claim-splitting applied

because defendant had agreed or acquiesced to the claim-splitting and the trial court’s order

expressly allowed it; and equity mandated that Dinerstein II not be barred. Plaintiffs supported

their argument—that defendants had agreed to the claim-splitting—with affidavits from their

attorneys. But, in its reply, defendant submitted a counteraffidavit from its own counsel in which

-3- No. 1-15-3388

she stated, among other things, that she did not agree that plaintiffs could split their claims and

never agreed to waive any defenses to the refiled case.

¶9 The trial court granted defendant’s motion to dismiss the complaint in Dinerstein II as

barred by res judicata. The court did not apply any exceptions.

¶ 10 Plaintiffs now appeal, again arguing that the first element of res judicata has not been

met because the dismissal of the negligence count in the first action was not a final adjudication

on the merits. Plaintiffs also argue that the trial court erred in failing to apply either of two

recognized exceptions to claim-splitting. Plaintiffs also claim that equity mandates that res

judicata should not bar the second action.

¶ 11 II. ANALYSIS

¶ 12 A. Standard of Review

¶ 13 We review de novo the trial court's dismissal of a complaint under section 2-619. Cooney

v. Rossiter,

. A motion to dismiss under section 2-619 admits the legal

sufficiency of the complaint but asserts a defense outside the complaint that defeats it. Patrick

Engineering, Inc. v. City of Naperville,

. Defendants' motion was

specifically based on subsection (a)(9), which permits dismissal where "the claim asserted *** is

barred by other affirmative matter avoiding the legal effect of or defeating the claim." 735 ILCS

5/2-619(a)(9) (West 2014); see also Van Meter v. Darien Park District,

(2003). The "affirmative matter" must be apparent on the face of the complaint or supported by

affidavits or certain other evidentiary materials. Epstein v. Chicago Board of Education,

(1997). Facts and evidence must be viewed in the light most favorable to the non-

moving party. Saxon Mortgage, Inc. v. United Financial Mortgage Corp.,

(2000). “If it cannot be determined with reasonable certainty that the alleged defense exists,

-4- No. 1-15-3388

the motion should not be granted.”

On appeal from an order granting dismissal under section

2-619, we ask “whether the existence of a genuine issue of material fact should have precluded

the dismissal or, absent such an issue of fact, whether dismissal is proper as a matter of law.”

(Internal quotation marks omitted.) Doyle v. Holy Cross Hospital,

(1999)

(quoting Kedzie & 103rd Currency Exchange, Inc. v. Hodge,

(1993)).

¶ 14 B. Res Judicata and Claim-Splitting

¶ 15 The issue in this case is whether the involuntary dismissal of the negligence count in

Dinerstein I, which was followed by the voluntary dismissal of the remaining counts, bars the

complaint in Dinerstein II based on res judicata. Three requirements must be satisfied for res

judicata to apply: (1) a final judgment on the merits must have been rendered by a court of

competent jurisdiction; (2) an identity of cause of action must exist; and (3) the parties or their

privies must be identical in both actions. Hudson v. City of Chicago,

(2008);

Rein v. David A. Noyes & Co.,

(1996). Plaintiffs do not dispute that the

second and third elements of res judicata are met in this case, but they argue that the first

element of res judicata was not met because the trial court’s order dismissing the negligence

cause of action in Dinerstein II was not a final judgment on the merits.

¶ 16 We disagree. “The principle that res judicata prohibits a party from later seeking relief on

the basis of issues which might have been raised in the prior action also prevents a litigant from

splitting a single cause of action into more than one proceeding.” Rein,

. The

rule against claim-splitting prohibits a plaintiff from suing for part of a claim in one action and

then suing for the remainder in another action.

. The rule is “founded on the premise

that litigation should have an end and that no person should be unnecessarily harassed with a

multiplicity of lawsuits.”

-5- No. 1-15-3388

¶ 17 In Rein, our supreme court cautioned that a plaintiff’s statutory right, under sections 2-

1009 and 13-217 of the Code of Civil Procedure (735 ILCS 5/13-217 (West 2014)), to a

voluntary dismissal within the limitations period did not “automatically immunize a plaintiff

against the bar of res judicata or other legitimate defenses a defendant may assert in response to

the refiling of voluntarily dismissed counts.” Rein,

; see also Richter v.

Prairie Farms Dairy, Inc.,

.

¶ 18 Later, in Hudson, our supreme court explained: “Rein thus stands for the proposition that

a plaintiff who splits his claims by voluntarily dismissing and refiling part of an action after a

final judgment has been entered on another part of the case subjects himself to a res judicata

defense.” Hudson,

; see also Richter,

. In Hudson, the

court clarified that res judicata bars not only what was actually decided in the first action, but

also whatever could have been decided. Hudson,

.

¶ 19 Contrary to plaintiffs’ assertion, the trial court’s order in Dinerstein I, dismissing

plaintiffs’ negligence action, was a final adjudication on the merits. Illinois Supreme Court Rule

273 provides that: “Unless the order of dismissal or a statute of this State otherwise specifies, an

involuntary dismissal of an action, other than a dismissal for lack of jurisdiction, for improper

venue, or for failure to join an indispensable party, operates as an adjudication upon the merits.”

Ill. S. Ct. R. 273 (eff. July 1, 1967). As the Illinois Supreme Court recently explained in

discussing this rule:

“If a circuit court involuntarily dismisses a plaintiff's action, other than for one of

the rule's three exceptions, and if the plaintiff does not procure leave of court to

refile the complaint or if a statute does not guarantee that opportunity, then Rule

273 deems the dismissal to be on the merits. [Citation.] However, a dismissal

-6- No. 1-15-3388

‘without prejudice’ signals that there was no final decision on the merits and that

the plaintiff is not barred from refiling the action. [Citations.].” Richter,

.

¶ 20 Here, the trial court’s involuntary dismissal of the negligence count based on the

exculpatory agreement was not based on lack of jurisdiction, improper venue, or the failure to

join an indispensable party. The court’s order did not grant plaintiff leave to re-plead that count,

nor did it state that the dismissal was “without prejudice.” The dismissal of the negligence count

was therefore a final judgment on the merits for purposes of res judicata.

¶ 21 Plaintiffs’ numerous attempts to avoid this result fail.

¶ 22 First, they claim that the trial court’s order dismissing the negligence cause of action was

not a final judgment on the merits within the meaning of the holdings in Rein and Hudson,

because the order did not state that the negligence count was dismissed “with prejudice.” It is

true that language indicating an order is “without prejudice” (or its functional equivalent,

allowing plaintiff to replead the claim) signals that the court’s decision is not final.

But the

failure to include “with prejudice” language does not have the same effect. As we have just

explained above, the opposite is true. As Richter prescribes, an involuntary dismissal not subject

to one of Rule 273’s exceptions is deemed a ruling on the merits—a final order—unless the order

is explicitly entered “without prejudice” or plaintiff is permitted to replead the claim.

The

absence of “with prejudice” language in the court’s order here does not change the fact that the

order was final.

¶ 23 Second, plaintiffs point to the dismissal order’s absence of language pursuant to Supreme

Court Rule 304(a) (Ill. S. Ct. Rule 304(a) (eff. Feb. 26, 2010), noting that the trial court not only

failed to include Rule 304(a) language but, in fact, struck that language from the proposed

-7- No. 1-15-3388

order—indicating, say plaintiffs, that the order was not “final” for res judicata purposes. But

Rule 304(a) does not concern the question of whether an order is “final.” Rule 304(a)

presupposes the finality of an order in a multiclaim proceeding and provides a mechanism by

which a final order that does not entirely dispose of the case may be immediately appealed—an

exception to the general rule that no final order may be appealed until the entire case in the

circuit court has terminated. Dubina v. Mesirow Realty Development, Inc.,

(1997). The presence or absence of Rule 304(a) language speaks to the timing of when the order

may be appealed, not to whether that order is “final.”

¶ 24 Plaintiffs next argue that this case does not involve the fact pattern considered to be

claim-splitting under Rein. In Rein,

, they correctly note, the plaintiffs

initially filed claims under the common law and for rescission. The trial court dismissed their

rescission counts and denied them Rule 304(a) language, thus preventing them from immediately

appealing the dismissal order.

. The plaintiffs then voluntarily dismissed their

common-law counts so that they could appeal the dismissal of their rescission claims

immediately, while at the same time the plaintiffs refiled their complaint in circuit court to restart

their litigation on the common-law claims.

.

¶ 25 Plaintiffs are correct that the fact pattern here is different—that in this case, plaintiffs did

not voluntarily dismiss their willful and wanton and loss of consortium counts “in order to

pursue an appeal of the negligence counts.” But that “is a distinction without a difference”

because, as our supreme court in Hudson explained, the “subjective motivation in taking a

voluntary dismissal is not part of a res judicata analysis.” Hudson,

.

¶ 26 Finally, we agree with defendant that the fact that plaintiffs filed Dinerstein II before the

expiration of the time they could have filed a notice of appeal in Dinerstein I had no bearing on

-8- No. 1-15-3388

the finality of the order dismissing plaintiffs’ negligence cause of action. See Dubina,

. Once the voluntary dismissal order was entered, all previously entered final orders—here,

the order dismissing plaintiffs’ negligence count—became immediately appealable.

.

The timing of plaintiffs’ refiled action did not affect the finality of the order entered in the first

action.

¶ 27 All of the elements of res judicata, including the first element, have been satisfied. Thus,

Dinerstein II was barred by res judicata, unless an exception to the rule against claim-splitting

applies. We take up that question next.

¶ 28 C. Exceptions to Claim-Splitting

¶ 29 Plaintiffs argue that, even if the technical requirements of res judicata have been met,

certain recognized exceptions to the rule against claim-splitting apply to the facts presented here,

and equity mandates that Dinerstein II not be barred. Our supreme court has adopted the six

exceptions to claim-splitting set forth in section 26(1) of the Restatement (Second) of Judgments

(1982), which details situations in which it would be inequitable to apply the rule against claim-

splitting. See Rein,

; Hudson,

. Under section 26(1) of the

Restatement (Second) of Judgments (1982), the rule against claim-splitting does not apply to bar

an independent claim of part of the same cause of action if:

“(1) the parties have agreed in terms or in effect that plaintiff may split his claim

or the defendant has acquiesced therein; (2) the court in the first action expressly

reserved the plaintiff's right to maintain the second action; (3) the plaintiff was

unable to obtain relief on his claim because of a restriction on the subject-matter

jurisdiction of the court in the first action; (4) the judgment in the first action was

plainly inconsistent with the equitable implementation of a statutory scheme; (5)

-9- No. 1-15-3388

the case involves a continuing or recurrent wrong; or (6) it is clearly and

convincingly shown that the policies favoring preclusion of a second action are

overcome for an extraordinary reason.” Rein,

; see also

Restatement (Second) of Judgments § 26(1)(a-f) (1980).

Plaintiffs contend that the first two exceptions apply here—that defendant agreed or acquiesced

to the claim-splitting, and that the court expressly reserved plaintiffs’ right to maintain the

second action.

¶ 30 1. Standard of Review

¶ 31 Before we take up the first exception, we must clarify our standard of review. Defendant

says that we should review the trial court’s decision under the deferential manifest-weight-of-

the-evidence standard. Defendant claims that, in finding that defendant did not agree to or

acquiesce in the claim-splitting, the trial court made findings of fact, “weighed” the affidavits,

and made credibility determinations.

¶ 32 Had the trial court conducted an evidentiary hearing on the questions of agreement or

acquiescence, we would concur with defendant that any resulting findings of fact would be

reviewed under the manifest-weight standard. See, e.g., Law Offices of Nye & Associates, Ltd. v.

Boado,

(noting that trial court heard evidence that no agreement

to split claims existed, and its findings to that effect were not against manifest weight of

evidence). But that is not what occurred below. The trial court entered its order based on

argument and the competing affidavits.

¶ 33 The manifest-weight standard is inappropriate in this context because the trial court is not

permitted to weigh competing affidavits, determine that one is more credible or persuasive than

the other, or resolve any disputed issues of material fact. See Glass Specialty Co. v. Litwiller,

-10- No. 1-15-3388

(1986) (“Where conflicting affidavits in support of a section 2-619

motion are presented to a trial court *** [i]t is improper to simply weigh the conflicting

affidavits.”). In deciding the merits of a section 2-619 motion, “a trial court cannot determine

disputed factual issues solely upon affidavits and counteraffidavits. If the affidavits present

disputed facts, the parties must be afforded the opportunity to have an evidentiary hearing.” In re

Marriage of Vaughn,

(2010) (quoting A.F.P. Enterprises, Inc. v.

Crescent Pork, Inc.,

(1993)). The trial court’s only purpose in

reviewing the affidavits is to determine whether a genuine dispute over a material fact exists. If it

does, that factual dispute must be resolved in an evidentiary hearing, either at that time or

reserved for trial, before the law can be applied to those facts. 735 ILCS 5/2-619(c) (West 2014);

Marriage of Vaughn,

; Crescent Pork,

.

¶ 34 When a court considers a section 2-619 dismissal based on argument and affidavits, and

not following an evidentiary hearing, our review is de novo. Gonnella Baking Co. v. Clara’s

Pasta di Casa, Ltd.,

(2003). We sit in precisely the same position as the

trial court, with precisely the same role, reviewing only the record.

Here, the court’s role is to

determine whether a genuine dispute of material fact exists, and if not, whether the movant is

entitled to judgment as a matter of law. See Kedzie,

. We will apply de novo

review to plaintiff’s claim that the first exception to res judicata is applicable here.

¶ 35 With the appropriate standard of review in mind, to determine the applicability of the first

Restatement exception to the bar on claim-splitting, we must first spell out in detail the facts

asserted below by each of the parties. 2

2 Although the record does not contain a transcript of the proceedings from the trial court’s hearing on defendant’s motion to dismiss, we have explained that “[w]here we have all of the underlying submissions of fact from which the trial court would ascertain whether a genuine -11- No. 1-15-3388

¶ 36 2. Facts at Issue

¶ 37 The undisputed facts include the following. In Dinerstein I, the court set a trial date of

April 13, 2015. On April 3, 2015, defendant’s counsel filed an agreed motion to continue the trial

date on the grounds that the parties had not completed discovery, including expert discovery, and

that plaintiffs’ assigned counsel had recently left the firm. On April 10, 2015, counsel for both

parties appeared at the hearing on the motion. The motion was denied, and the parties were

directed to appear for trial on April 13, 2015.

¶ 38 In the record before us are three affidavits, two from plaintiffs’ attorneys and one from

defendant’s counsel, describing what took place after the court denied their agreed motion to

continue the trial date.

¶ 39 One of plaintiffs’ counsel stated in his affidavit that, immediately after the parties’

motion for continuance was denied, he had a conversation with defense counsel, in which “[t]he

option of securing a voluntary dismissal without prejudice, so the case could be refiled and the

trial date would be avoided, was brought up.” (Emphasis added.) He further stated that

defendant’s counsel “indicated to me that this was a viable option that she was agreeable to.”

(Emphasis added.) Defense counsel then emailed him a copy of the section of the Code of Civil

Procedure providing for voluntary dismissals. He stated that “it was my understanding from my

communications with [defense counsel], that she, on behalf of her client ***, was in agreement

that the plaintiffs’ case could be refiled if voluntarily dismissed without prejudice and that the

issue of fact exists, we are free under our de novo standard of review to make our own determinations of law.” Watkins v. Office of State Appellate Defender,

. “Since this court reviews de novo an order of dismissal pursuant to section 2-619 [citation] we do not need the transcripts of the hearing below to review the propriety of the circuit court's dismissal.” Id. at ¶ 20.

-12- No. 1-15-3388

case would simply pick up where we left off.” This attorney stated that “[h]ad [defense counsel]

not so agreed, plaintiffs would have proceeded to trial on April 13, 2015.”

¶ 40 The other plaintiffs’ attorney swore to similar facts in his affidavit. He stated that after

the motion for continuance was denied, defense counsel discussed a voluntary dismissal without

prejudice “so that the case could be refiled.” Counsel said that he was aware of the option of

voluntary dismissal, but that “plaintiffs would not do so unless there was an agreement with the

defendant that they could refile their case without consequences.” Counsel then spoke with

defense counsel on April 10, where they discussed the options of going to trial in five days or

“agreeing to the voluntary dismissal of the action without prejudice so that the case could be

refiled.” He stated that defense counsel informed him that the case was not ready for trial, as the

exchange of expert reports and the depositions of expert witnesses had not yet taken place.

Defense counsel, according to plaintiffs’ counsel, “agreed to the voluntary dismissal of the action

without prejudice so that the case could be refiled. Additionally, [defense counsel] suggested

mediation following the exchange of plaintiffs’ expert reports in the refiled case.” Plaintiffs’

counsel stated that, had defense counsel not so agreed, “plaintiffs would have proceeded to trial

on April 13, 2015.”

¶ 41 Defense counsel’s affidavit, not surprisingly, relates a somewhat different version of

events. Outside the courtroom following the denial of the motion for continuance, opposing

counsel each called colleagues in their respective offices and then re-grouped to discuss their

options. Defense counsel stated that she told plaintiff’s counsel that “the options available were

to proceed to trial on Monday, April 13, 2015 or Plaintiffs could voluntarily dismiss the case

under the statute allowing for voluntary dismissal.” Defense counsel stated, “I did not suggest to

[plaintiff’s counsel] that I had a preference for either option.” She admitted emailing him the text

-13- No. 1-15-3388

of section 2-1009 (a copy of which email is in the record). She stated that later in the morning,

she spoke by phone with one of the plaintiff’s attorneys (whose affidavit is recounted in the

preceding paragraph), swearing that, “We also discussed the state of discovery with the case and

[plaintiff’s counsel] suggested that after the parties exchange expert discovery, the case might be

positioned for a settlement conference or mediation.” Defense counsel stated that she did not

know which option plaintiff’s counsel would choose and asked for a decision as soon as possible,

given the looming trial date. In the meantime, defense counsel began preparing for trial.

¶ 42 Defense counsel concluded her affidavit as follows:

“I did not discuss with [either of plaintiffs’ attorneys] what would occur if Plaintiffs

elected to voluntarily dismiss and later refile the case. We merely discussed the option

provided by [section] 2-1009. I had no knowledge of what claims Plaintiff’s [sic] counsel

might elect to appeal or refile. We never discussed the content of the new case that might

be re-filed. I did not discuss with [either of plaintiffs’ attorneys] the possibility of claim-

splitting. We also did not discuss any defense that may be raised in response to a re-filed

case. I was not asked by [either of plaintiffs’attorneys] to obtain my client’s approval or

agreement that the case could be re-filed. I was not asked by [either of plaintiffs’

attorneys] to waive any defenses. I did not agree with [either of plaintiffs’ attorneys] that

Plaintiffs’ [sic] could split their claims ***. I never discussed with [either of plaintiffs’

attorneys] what counts could or could not be re-filed. I never agreed to waive any

defenses to any re-filed suit.”

¶ 43 3. Application of Law to Facts

¶ 44 We now consider whether the facts before the trial court fit within the first Restatement

exception to the bar on claim-splitting, where “the parties have agreed in terms or in effect that

-14- No. 1-15-3388

plaintiff may split his claim or the defendant has acquiesced therein.” (Emphasis added.)

Restatement (Second) of Judgments § 26(1)(a) (1982). Our supreme court has stated, in dicta,

that “if an attorney is considering taking a voluntary dismissal after a final judgment has been

entered on part of his case, he can seek the defendant's acquiescence in the refiling. If the

defendant is unwilling to do so, then the attorney will know that he proceeds at his peril.”

Hudson,

(2008). But, as this court later explained, “the defendant's express

consent to the refiling would constitute an agreement, not an acquiescence. They are discrete

concepts.” Piagentini v. Ford Motor Co.,

(2009).

¶ 45 Indeed, the use of the disjunctive “or” indicates that the phrase “the parties have agreed in

terms or in effect that plaintiff may split his claim or the defendant has acquiesced therein”

includes three distinct concepts: agreements in terms, agreements in effect, and acquiescence.

See Loughrin v. United States, ___ U.S. ___, ___ ,

(2014) (word “or” in its

“ordinary use is almost always disjunctive, that is, the words it connects are to be given separate

meanings” (internal quotation marks omitted) (quoting United States v. Woods,

,

___ ,

(2013))); In re E.B.,

(2008) (“Generally, use of the

disjunctive indicates alternatives and requires separate treatment of those alternatives ***.”

(Internal quotation marks omitted.) (quoting Tietema v. State,

(Wyo. 1996))).

¶ 46 The parties are not particularly helpful in distinguishing between these three concepts.

The Restatement and case law provide some guidance. We consider each exception in turn.

¶ 47 a. Acquiescence

¶ 48 The exception for “acquiescence” is not applicable here. As Piagentini explained, the

comments to the Restatement indicate that “acquiescence” means a defendant’s failure to object

to the claim-splitting. Piagentini,

; Restatement (Second) of Judgments §

-15- No. 1-15-3388

26, comment a (1982) (“The failure of the defendant to object to the splitting of the plaintiff's

claim is effective as an acquiescence in the splitting of the claim.”) The time to object to a claim-

splitting is not at the time of the voluntary dismissal; a defendant has almost no basis to object to

a first-time voluntary dismissal, and certainly not on res judicata grounds, before plaintiffs have

even refiled the action. Rein,

(“the fact that defendants failed to object to

plaintiffs’ voluntarily dismissing the common law counts cannot be equated with defendants'

acquiescing to plaintiffs' refiling of these counts. Until plaintiffs attempted to refile the common

law counts, no reason existed for defendants to object.”); Quintas v. Asset Mgmt. Group, Inc.,

(2009) (“We agree that defendants were under no obligation to object

at the time of the voluntary dismissal. The appropriate time to object is when the action is

refiled.”); Piagentini,

. 3

¶ 49 Thus, an “acquiescence” is the failure to object to claim-splitting once the action is

refiled, not an agreement in advance of that refiled action. Piagentini,

;

see also Thorleif Larsen & Son, Inc. v. PPG Industries, Inc.,

(1988).

¶ 50 That exception is not applicable here, as defendant’s first responsive pleading in the

refiled action raised the res judicata bar. Compare Piagentini,

(defendant

acquiesced in claim-splitting when it failed to file timely objection and, instead, waited three and

one-half years after action was refiled before filing motion for summary judgment on res

judicata grounds); Thorleif Larsen,

(defendant acquiesced to separate

lawsuit when it filed answer and affirmative defenses in that suit without mentioning res judicata

3 Our discussion of the appropriate time to object in this paragraph is limited to the first Restatement exception. If, at the time a plaintiff voluntarily dismisses the first action, he seeks to invoke the Restatement’s second exception by requesting that the trial court expressly reserve his right to refile a second action, the defendant obviously would have to object to the refiling at that time.

-16- No. 1-15-3388

and engaged in pretrial discovery, only later raising res judicata in motion for summary

judgment). Defendant did not acquiesce to the claim-splitting.

¶ 51 The facts at issue in this case focus almost exclusively on the interactions between

plaintiff’s and defendant’s attorneys before the action was refiled. We will thus consider whether

plaintiffs have established, or raised a genuine issue of fact as to whether they established, an

“agreement in terms or effect” to the refiling of their claims.

¶ 52 b. Agreement in Terms

¶ 53 As we have already discussed, an “agreement in terms” to claim-splitting, by definition,

would be something that happened before the refiling, in contrast to acquiescence. See

Piagentini,

. An “agreement in terms” could only mean that the parties

explicitly agreed that the defendant would not object to the plaintiff’s refiled action on res

judicata grounds. See

(“the defendant’s express consent to the refiling would constitute an

agreement ***.”) (Emphasis added.). Comment a to the applicable Restatement section provides

that “[t]he parties to a pending action may agree that some part of the claim shall be withdrawn

from the action with the understanding that the plaintiff shall not be precluded from subsequently

maintaining an action based upon it.” Restatement (Second) of Judgments § 26, comment a

(1982). That example squares with our interpretation of “agreement in terms” of an expressed

understanding between the parties, prior to refiling, that the plaintiff could refile without an

objection based on res judicata.

¶ 54 The competing affidavits detailed above present a sharply divided dispute over whether

defendant “agreed in terms” to the splitting of claims. Each plaintiff’s attorney swore that

defense counsel specifically agreed to a refiling of the claim, and defense counsel specifically

swore that she did not. On these competing facts, we could not rule one way or the other as a

-17- No. 1-15-3388

matter of law as to whether the parties agreed in terms to a refiling of the lawsuit, nor could the

trial court. An evidentiary hearing is required. See Marriage of Vaughn,

.

¶ 55 c. Agreement in Effect

¶ 56 The final part of this three-headed first Restatement exception is whether the parties

“agreed in effect” to the claim-splitting. “Agreement in effect” is more elusive of precise

definition than the other two parts. It must be something short of full-fledged, express consent to

the refiling—otherwise it would be an “agreement in terms”—and it must occur prior to the

refiling—otherwise it would be acquiescence.

¶ 57 The closest thing we see as Illinois precedent is Saxon,

. There,

Saxon sued UFM in federal court over the investment quality of mortgages that UFM sold to

Saxon.

. During the pendency of that federal action, Saxon and UFM engaged in

lengthy negotiations over a related issue—whether Saxon was entitled to a refund of premiums

over certain mortgages purchased from UFM because they were paid off early.

.

UFM repeatedly indicated its desire to find a solution in those negotiations, but when they broke

off and Saxon sued in Illinois state court over the premium-refund issue, UFM moved to dismiss

based on res judicata. This court rejected the claim of res judicata, finding that the claims did

not arise from the same transaction as the federal action, but relevant to our case, this court

further found that even if res judicata applied, Saxon could successfully invoke the exception for

an agreement in effect:

In this regard, the facts before the circuit court demonstrated that UFM agreed to the

resolution of the premium refund obligations separately from the dispute at issue in the

federal action ***, as evidenced from UFM's own statements, as well as its actions

concerning the resolution of these claims. A series of letters reflect that these efforts

-18- No. 1-15-3388

toward accommodation continued throughout the time the federal court action was

pending and at least up until September 3, 1998, shortly before the entry of summary

judgment in that case. UFM's attempts to resolve these matters through future

transactions, without objection at any time during pendency of the federal suit, constitutes

an agreement to the splitting of these claims *** or, at the very least, demonstrates that it

acquiesced in the splitting of these claims by Saxon ***.

.

¶ 58 While the court in Saxon made the reference to “acquiescence” in dicta, that case was

decided prior to the clarification in Piagentini that “acquiescence” pertains to the defendant’s

conduct after the filing of the second lawsuit. We believe that Saxon’s discussion of an

agreement in effect remains helpful. As far as the concept of an “agreement in effect” is

concerned, Saxon would stand for the general proposition that, when a defendant engages in

conduct that implies the viability of a claim separate and apart from the pending lawsuit, the

defendant agrees in effect to the litigation of that claim in a separate lawsuit.

¶ 59 It is critical to note, however, that mere silence alone cannot be sufficient to establish an

“agreement in effect.” Acquiescence could be mere silence—the failure to object—after an

action is refiled, because by doing nothing, the defendant is allowing the claim-splitting to go

forward. But on the front end, before the action is refiled, while plaintiff’s counsel is pondering a

voluntary dismissal, defense counsel’s mere silence on the topic is different. Under our

adversarial system, counsel for one party is under no obligation to dispense legal advice to assist

opposing counsel, nor is she required to disclose in advance the legal steps she might take in

response to a legal maneuver undertaken by opposing counsel. See, e.g., Klancir v. BNSF

Railway Company,

(defendant was not equitably estopped from

asserting statute-of-limitations defense upon plaintiff’s refiling of claim, as defendant’s counsel

-19- No. 1-15-3388

“cannot be said to have improperly concealed material facts simply by failing to alert opposing

counsel, in advance, of law bearing on his case” (internal quotation marks omitted) (quoting

Greene v. Helis,

(1993))); Manicki v. Zeilmann,

(7th

Cir. 2006) (“There is no duty to warn a prospective adversary of the defenses you will interpose

if he carries out his threat to sue you.”).

¶ 60 Simply put, a defendant is not obligated to stop a plaintiff from making a fatal mistake.

As the supreme court has noted, an attorney considering a voluntary dismissal after a final

judgment has been entered on part of the case would be wise to seek consent in advance on the

issue of refiling, and plaintiff’s counsel “proceeds at his peril” if he does not obtain that consent.

Hudson,

. To preserve the principles of our adversarial system, the law must

recognize a qualitative difference between a defense attorney making no representations, one

way or the other, concerning a plaintiff’s right to refile her claim, and that defense attorney

engaging in conduct that, while falling short of express consent (an “agreement in terms”),

implies that the defendant will not object to a refiling of the claim based on res judicata.

¶ 61 With all of this in mind, we believe that an “agreement in effect” must mean conduct by

defense counsel, before the plaintiff voluntarily dismisses the case, that implies that the

defendant will not object to claim-splitting when the action is refiled. Silence alone is not

enough. Agreement or non-objection to the voluntary dismissal is not enough. The defendant, in

word or deed, must imply that the defendant will not object to the claim-splitting if and when the

action is refiled.

¶ 62 The question of whether defense counsel in this case “agreed in effect” to the refiling of

the lawsuit is a close question, but we again believe that resolution of the question is best suited

to an evidentiary hearing. The affiants, to some extent, speak past each other. Plaintiffs’

-20- No. 1-15-3388

affidavits claim that the topic of refiling was specifically raised and that defense counsel agreed

to the refiling; defense counsel said the topic never even came up, not explicitly. Plaintiffs’

counsel said defense counsel even brought up the idea of mediation upon refiling of the case—

which she would not do if she were planning to object to the refiled case on grounds of res

judicata—but defense counsel said that plaintiff’s counsel raised the topic of mediation, without

mentioning what, if anything, she said in response. Defense counsel did admit that they

discussed the state of discovery, which, again, would imply that there was a plan to pick up

where the parties left off upon refiling.

¶ 63 Arguably, the affidavits present sufficient evidence for us to conclude that defendant did,

in fact, agree in effect to the claim-splitting. After all, defense counsel concedes she brought up

the option of voluntary dismissal herself, and actually sent the text of the voluntary dismissal

statute to opposing counsel. And as we just mentioned, she further concedes that the topic of

future discovery was discussed, implying that a refiled lawsuit would be viable. It is also at least

arguable that defense counsel wanted the voluntary dismissal as much as plaintiff’s counsel, that

defendant was in just as vulnerable a position as plaintiff following the denial of their motion for

continuance, each side finding itself without an expert to use at trial. All of these facts would

tend to suggest that defense counsel implied a willingness to move forward with a refiled case.

¶ 64 But in the end, the facts are sufficiently contested on the material points to convince us

that we are not in the proper position to resolve this dispute based on documentary evidence

alone. This is a case that cries out for an evidentiary hearing, with each side putting a fine point

on their positions and leveling pointed questions to the opposing witnesses. We would further

note, in fairness to the able trial judge, that the interpretation of “agreement in effect” had not

-21- No. 1-15-3388

been considerably fleshed out in the case law in this state, and hopefully this opinion will assist

the trial court in applying the law once the facts have been resolved.

¶ 65 d. Other Exceptions

¶ 66 Plaintiffs have also raised the Restatement’s second exception, arguing that the trial court

in the first action expressly reserved plaintiffs’ right to maintain the second action “[b]ecause

there was no final order with prejudice at the time Dinerstein I was dismissed without prejudice.”

Plaintiffs cite no authority for this proposition. And we have already rejected plaintiffs’ argument

that the order dismissing plaintiff’s negligence claim was not a final order. Unless an exception

applied, Dinerstein II was barred by res judicata. The Restatement’s second exception does not

apply here because the trial court in Dinerstein I did not reserve plaintiffs’ right to maintain the

second action, expressly or otherwise, merely by allowing plaintiff to voluntarily dismiss

Dinerstein I without prejudice. Rein,

(“the trial judge's granting plaintiffs'

motion to voluntarily dismiss the common law counts without prejudice under section 2–1009

should not be interpreted as immunizing plaintiffs against defenses defendants may raise when

the voluntarily dismissed counts were refiled.”).

¶ 67 Plaintiffs have also argued that general equitable principles preclude strict application of

res judicata. But plaintiffs’ argument is based on their contention that defendant consented to the

dismissal of Dinerstein I with the agreement that the case would be refiled. This is the same

argument we have already addressed with respect to the Restatement’s first exception. Plaintiffs

have failed to present any other “equitable” reason for reversing the trial court’s decision.

¶ 68 Thus, on remand, the only questions before the trial court will be whether the parties

agreed in terms or in effect to the claim-splitting.

¶ 69 III. CONCLUSION

-22- No. 1-15-3388

¶ 70 The circuit court properly ruled that this refiled action was barred, in the first instance, by

res judicata. But we vacate the judgment of the circuit court and remand the cause for an

evidentiary hearing on the questions of whether there was an “agreement in terms” or an

“agreement in effect” to the claim-splitting.

¶ 71 Vacated and remanded.

-23-