The appellate court addressed claims splitting in Dinerstein vs. Evanston Athletic Clubs, Inc. In Dinerstein the plaintiff filed suit involving an injury at a health club. The injury occurred when plaintiff was climbing a rock-climbing wall and fell. Plaintiff filed suit alleging negligence, willful or wanton misconduct, and loss of consortium.
Before climbing the wall plaintiff signed a release which indicated that plaintiff would not sue defendant for negligence. The court granted a motion to dismiss the negligence counts based on that agreement. The court then refused to allow an appeal of that particular issue pending the resolution of trial, denied the motion to reconsider, and continue the case on the other two counts.
The parties scheduled the case for trial. The defense and the plaintiff both intended to continue the trial to complete discovery, including expert discovery. The court denied the motion to continue and set the matter for trial.
The parties discussed what to do. Parties disagreed as to what each party said. The defense claimed they would not give up any of their defenses, like res judicata. Plaintiff said that the defence agreed to future discovery in the later cases.
The appellate court said that the original dismissal was clearly a final judgment. The court, in dicta, said that the failure to include “without prejudice” language means the order was “with prejudice.” The order was apparently entered earlier in the case, although the appellate court decision does not explain one. This means that if the plaintiff wanted to appeal that they would have to wait until the end of the case, they cannot appeal it at the time it was entered because the court did not allow Rule 304 language. However, because that a worker was final on that count the plaintiff could not refile the claim unless there was claim splitting.
The court addressed the claims splitting law. There are six exceptions to the rule against claims splitting:
- The parties have agreed in terms or in effect or if defendant acquiesces
- The court reserves the right to maintain the second action
- The plaintiff could not get relief to subject matter jurisdiction issues
- The judgment in first action was “plainly inconsistent” with equitable implementation of a statutory scheme
- The case involves continuing or recurrent wrong
- The “by clear and convincing evidence” policies are overcome for an extraordinary reason
The court in Dinerstein reviewed the affidavits of the parties. There had not been a hearing on the merits based on evidence. The court is only considered affidavits. The court did say a court uses a de novo standard if the parties supply only affidavits, as opposed to an evidentiary hearing.
The court in Dinerstein said the first test, (the parties agreed in terms) does not apply. Unless there is an express agreement the court cannot use this test. Similarly, the court could not conclude the defendant acquiesced because the defendant denied this.
The court looked at whether the parties had agreed “in effect.” The court concluded that it could not decide this issue because the parties disagreed. The defendant in its affidavits had discussed the possibility of discovery in the later filed action. Accordingly, the appellate court remanded to the trial court to have a hearing on whether the parties had agreed to proceed in the other case by their language “in effect.”
Cases that have a dismissal of one count present malpractice traps for plaintiff’s lawyers. He makes it very difficult for the plaintiff in these cases to dismiss the case without prejudice. There is a statute in Illinois which allows a plaintiff to dismiss a cause of action one time without prejudice with the right to proceed in the case.735 ILCS 619 (a)(9). This case and similar cases interfere with plaintiff’s right to dismiss the case without prejudice and refile. The courts should correct this problem.