Dismissal Order for Want of Prosecution Not Final When Action is Timely Refiled

By Katherine A. Grosh

Partner, Beermann Pritikin Mirabelli & Swerdlove LLP

In BankFinancial, FSB v. Tandon, 2013 IL App (1st) 113152, the Illinois Appellate Court, in reversing a summary judgment order in favor of the defendants, clarified the rule that a dismissal for want of prosecution does not constitute a final order or an adjudication on the merits because a plaintiff has the absolute right to refile the action against the same party and to reallege the same causes of action pursuant to section 13-217 of the Code of Civil Procedure (735 ILCS 5/13-217 (West 2008)). In Tandon, the plaintiff mortgagee’s successor by merger filed a five-count complaint against the defendants, the mortgagor and guarantor of a promissory note. Tandon, 2013 IL App (1st) 113152, ¶ 1. Plaintiff subsequently voluntarily dismissed count I (the mortgage foreclosure claim) without prejudice in 2006. Id. ¶ 5. Because the remainder of the case was essentially a breach of contract action, the case was transferred to the Law Division. Id. In February 2008, the trial court entered its fourth order dismissing the remaining counts for want of prosecution (the “DWP Order”). Id. ¶ 6. Unlike the previous orders, the fourth DWP order was never vacated. Id.

Within one year of the DWP Order, plaintiff filed a new action as permitted by section 13-217, which repeated two of the previously dismissed counts verbatim except for the interest amounts. Id. ¶ 7. Plaintiff did not refile the foreclosure claim (count I of the original action). Id. ¶ 7. Defendants moved for summary judgment on the grounds that res judicata barred the second lawsuit. Id. ¶ 8. The trial court granted the motion, holding as a matter of law that the order voluntarily dismissing count I without prejudice in the first action became final and appealable when the DWP order was not vacated within 30 days, even though plaintiff timely refiled the action under section 13-217. Id. ¶ 10. Therefore, the DWP order was a final judgment as to count I sufficient to bar the second action under res judicata and the rule against claim-splitting as articulated in the oft-cited Illinois Supreme Court decisions of Rein v. David A. Noyes & Co., 172 Ill. 2d 325 (1996), and Hudson v. City of Chicago, 228 Ill. 2d 462 (2008).

Reversing the trial court, the appellate court held that the 2006 order in which plaintiff nonsuited count I without prejudice “is not a final order because it does not terminate the litigation between the parties on the merits. Plaintiff voluntarily decided not to further pursue count I … after discovery revealed the cause of action to be ill-founded.” Tandon, 2013 IL App (1st) 113152, ¶3. The order was “not an involuntary dismissal based on an infirmity in plaintiff’s case, but a voluntary dismissal based on section 2-1009 of the Code” and “the intended voluntary act of plaintiff.” Id. ¶¶ 3, 27. Likewise, the DWP Order dismissing the remaining counts “was not a final order because it did not terminate the litigation between the parties on the merits.” Id. ¶¶ 3, 29. The appellate court went on to hold that plaintiff’s proper and timely statutory refiling of the second action under section 13-217 “did not alter the [2006] order’s interlocutory nature,” particularly when the refiled action did not contain the dismissed foreclosure count. Id. ¶¶ 3, 30. Citing to a handful of Supreme Court and appellate court decisions dating back to 1982, the appellate court reiterated the rule that an order dismissing a case for want of prosecution “only becomes a final order after the one-year right to refile expires.” Id. ¶ 30. Therefore, the reviewing court concluded that neither res judicata nor the rule against claim-splitting was implicated.

Recommended Citation: Katherine A. Grosh, Dismissal Order for Want of Prosecution Not Final When Action is Timely Refiled, The Brief, (January 14, 2014), http://applawyers-thebrief.blogspot.com/2014/01/dismissal-order-for-want-of-prosecution.html.

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