Our panel of leading appellate attorneys review Thursday's Illinois Supreme Court opinions in the civil cases Marshal v. City of Chicago, Wilson v. Edward Hospital and Hernandez v. Pritkin.

Marshal v. City of Chicago

By Karen Kies DeGrand, Donohue Brown Mathewson & Smyth LLC

The City of Chicago prevailed in a class action appeal that took a procedurally unusual path to the Illinois Supreme Court.  A Chicago cabbie initiated the class action lawsuit to challenge the City’s “fly-by traffic citations,” which involves a stealth ticketing procedure:  without first approaching the taxicab driver or placing the ticket on the offending vehicle, the City mails the notice of violation to the taxicab licensee.  Contending that this practice violates provisions of the Illinois Vehicle Code and of the Chicago Municipal Code, plaintiff sought injunctive relief and damages for himself and other taxi drivers who had paid fines or incurred other penalties in connection with fly-by traffic citations during the ten years prior to filing the action.

Judge Richard Siebel certified as a class 30 Chicago taxi drivers. On cross summary judgment motions, the circuit court denied the City's motion and granted the plaintiff’s motion for partial summary judgment. Judge Siebel declared that the practice of mailing notice of a citation before the ticket is hand delivered to the driver or affixed to the vehicle violates the statute and ordinance the plaintiff had cited.

Subsequently, Judge Siebel retired, and Judge Stuart Palmer stepped into the case.  Judge Palmer granted a motion to decertify the class based on the predominance of individual issues over common issues given Judge Siebel’s resolution of the predominant legal issue in the case.  Based on the City’s argument that in all cases, the officer either unsuccessfully attempted to serve a citation or the citation was affixed to the window but somehow was removed, Judge Palmer found that commonality no longer existed; as many as 16,000 trials would be necessary to determine liability.

Judge Palmer denied the plaintiff’s request, pursuant to Supreme Court Rule 308, to certify a question for interlocutory review that challenged Judge Palmer’s authority to decertify the class given the earlier ruling on the plaintiff’s motion for partial summary judgment, which plaintiff claimed resolved the issue of liability. The plaintiff nonetheless obtained interlocutory review by seeking a supervisory order in the supreme court.  The court directed the circuit court to certify four questions for appeal pursuant to Rule 308 and, additionally, directed the appellate court to accept the appeal and answer four certified questions. After the appellate court addressed the issues, the supreme court then took its turn.

First, the supreme court considered the appellate court’s answer to the question: was Judge Siebel’s order granting partial summary judgment a decision “on the merits” under § 2-802(a) of the Code of Civil Procedure?  The statute provides that a class certification order “may be amended before a decision on the merits,” but does not define "on the merits."  See 735 ILCS 5/2-802(a) (West 2004).  After a lengthy analysis, including consideration of federal decisions interpreting the federal rule governing class actions, F.R.C.P. 23, the supreme court determined that the appellate court’s definition of a “decision on the merits” was correct:  it is a “complete determination of liability on a claim based on the facts disclosed by the evidence,” establishing at least one class member’s right to recover.  The supreme court declined to adopt the federal definition equating a decision on the merits with a final judgment.  The supreme court observed that the appellate court had crafted a definition comporting with the purpose of § 2-802, which allows the circuit court to decide certification early, but maintains the flexibility of revisiting certification before liability is determined.

The court then answered the three remaining certified questions.  It found that Judge Siebel's order granting plaintiff’s partial motion for summary judgment was not a decision on the merits. The supreme court reasoned that,while finding that fly-by citations violated provisions of the Illinois Vehicle Code and the City’s ordinance, the ruling left open the factual question of whether such conduct had occurred.  The supreme court also ruled that Judge Siebel’s order denying the City’s motion for summary judgment based on its affirmative defenses was not a decision on the merits.  In answering the fourth certified question, the court determined that an order by Judge Palmer granting partial summary judgment to the City based on tickets issued more than five years before the filing of the complaint also was not a decision on the merits.  Finally, the court denied the plaintiff’s alternative request for another supervisory order directing the appellate court to consider the propriety of Judge Palmer’s decertification order.  Although suggesting that it might have addressed the issue if the plaintiff had asked the court to consider it, the court said the request for another supervisory order was too late.

Wilson v. Edward Hospital

By Michael T. Reagan, Law Offices of Michael T. Reagan, Ottawa

The court issued two opinions today dealing with the application of res judicata and claim splitting following a voluntary dismissal. Rein v. David A. Noyes & Co. and Hudson v. City of Chicago make prominent appearances in both opinions. However, the decisions in both cases turn upon fundamental definitions of "claim" for the application of res judicata and the corollary determination of the extent of the burden of proof to demonstrate application of res judicata. Wilson is a claim against the defendant hospital seeking to hold the hospital vicariously liable for the actions of doctors. The trial court granted partial summary judgment to the hospital on the allegations that the doctors were the hospital’s actual agents, but determined that a question of fact existed as to whether the doctors were apparent agents. Plaintiffs voluntarily dismissed the complaint, and refiled, alleging apparent agency. The hospital moved to dismiss, asserting that the order on actual agency was a final judgment, thereby invoking res judicata as a bar to the refiled action. The trial court disagreed, but certified a well-crafted SCR 308 question of law for appeal. The appellate court answered the certified question to hold that actual agency and apparent agency are separate claims, leading to the bar of res judicata and the prohibition against claim splitting.

The supreme court reversed. The court’s opinion offers an informative review of the Rein and Hudson line of cases, including Piagentini v. Ford Motor Co. The court also wove Hull v. City of Chicago into the narrative, in which the appellate court dismissed an appeal for lack of jurisdiction despite a SCR 304(a) finding where some, but not all, of the allegations of negligence had been dismissed.

The court concluded that actual agency and apparent agency are not separate causes of action. A theory of recovery is not a cause of action. Plaintiffs have only one claim or cause of action against the hospital, for negligence based upon the hospital’s responsibility for the allegedly negligent acts of the defendant doctors. Therefore, the grant of partial summary judgment did not dispose of a separate branch of the controversy. It then follows that the summary judgment order was not a final order for res judicata purposes.

Hernandez v. Pritkin

By Michael T. Reagan, Law Offices of Michael T. Reagan, Ottawa

Hernandez, the second of the court’s two res judicata opinions issued today, turned upon the burden on a party invoking that doctrine to prove the existence of a final judgment. This is a legal malpractice action with underlying issues involving the claimed duty of several successive attorneys to file a tort claim in addition to the worker’s compensation claim they were handling, and the application of the discovery rule to a statute of limitations.

This opinion lays out in exquisite detail the march of this case through numerous courtrooms. Those details matter greatly, but cannot be recounted in the context of this summary. The last circuit judge concluded that Rein, Hudson, and Matejczyk revealed claim splitting leading to the application of res judicata. The appellate court reversed. The supreme court affirmed the judgment of the appellate court but based upon different reasoning.

The  opinion laid down first principles: a) a movant has the responsibility to obtain a ruling on a motion to avoid forfeiture on appeal, b) a movant has the responsibility to obtain a "definitive" ruling, and c) a party seeking to apply res judicata has the burden of demonstrating the existence of a final judgment.

The court found that in the long skein of orders in this case, the movant could not "clearly" demonstrate entitlement to an order supporting application of res judicata. The court further stated that the movants could not look to oral pronouncements of the circuit court to explain otherwise unambiguous written orders, especially where the oral pronouncements were ambiguous indicators of the court’s intent.

This opinion contains a useful recounting of the law concerning the power of subsequent judges in a case to revisit prior orders.