Andrews v. Gonzalez

• Decision Date: 30 September 2014
• Docket Number: No. 1–14–0342.,1–14–0342.
• Citation: 19 N.E.3d 1234
• Parties: William T. ANDREWS, Plaintiff–Appellant, v. Dagoberto GONZALEZ, as Surviving Partner of G and G Cement Contractors, an Illinois Partnership, Defendant–Appellee (Century National Insurance Company, Defendant).
• Court: United States Appellate Court of Illinois

19 N.E.3d 1234

William T. ANDREWS, Plaintiff–Appellant

v.Dagoberto GONZALEZ, as Surviving Partner of G and G Cement Contractors, an Illinois Partnership, Defendant–Appellee (Century National Insurance Company, Defendant).

No. 1–14–0342.

Appellate Court of Illinois, First District, Second Division.

Sept. 30, 2014.

Beermann, Pritikin, Mirabelli, Swerdlove, LLP, of Chicago (Mark L. Evans, of counsel), for appellant.

Law Offices of Alan Barinholtz, P.C., of Chicago (William Melichar, of counsel), for appellee.

OPINION

Justice LIU delivered the judgment of the court, with opinion.

¶ 1 Plaintiff, William T. Andrews, filed suit against defendant, Dagoberto Gonzalez (Dagoberto), to recover an outstanding judgment awarded in a personal injury lawsuit against G & G Cement Contractors (G & G), a partnership of which Dagoberto was the sole surviving partner. The circuit court granted Dagoberto's motion to dismiss pursuant to section 2–619(a)(4) of the Code of Civil Procedure (Code) (735 ILCS 5/2–619(a)(4) (West 2012)), finding that plaintiff's claim was barred by res judicata because Dagoberto was a named defendant in the prior underlying action and was found not liable for negligence. On appeal, plaintiff contends that the circuit court erred in dismissing his claim against Dagoberto because various provisions of the Uniform Partnership Act (1997)(Act) (805 ILCS 206/100 et seq. (West 2012)) and sections 2–410 and 2–411 of the Code (735 ILCS 5/2–410, 2–411 (West 2012)) demonstrate that res judicata does not bar a judgment creditor of a partnership from enforcing an outstanding judgment against a partner who was named individually in the underlying lawsuit. For the reasons that follow, we reverse the judgment of the circuit court of Cook County and remand the cause for further proceedings.

¶ 2 BACKGROUND

¶ 3 A. Personal Injury Lawsuit

¶ 4 On February 11, 2007, plaintiff was involved in an automobile accident with an employee of G & G, an Illinois general partnership owned by two brothers, Dagoberto and Jose Gonzalez, the latter of whom is now deceased. He subsequently filed suit against G & G, Dagoberto, the estate of Jose Gonzalez, and Luis Chavez, the driver of the vehicle, alleging negligence in the causing of the accident.¹ As pertinent here, Dagoberto was named as a defendant based solely on a theory of respondeat superior. In his third amended complaint, plaintiff alleged, inter alia, that Dagoberto owned the Ford truck driven by Chavez; that Dagoberto employed Chavez and allowed him to use the truck; that Dagoberto breached his duty to plaintiff through the negligent acts of Chavez; and that as a direct and proximate result of this breach, Chavez drove the Ford truck into plaintiff's car, causing him serious injury.

¶ 5 Following a trial, the jury returned a verdict against G & G and Chavez, but in favor of Dagoberto and the estate of Jose Gonzalez. In its response to special interrogatories, the jury specifically found that, at the time of the accident, Chavez was an employee of G & G, but not of Dagoberto or Jose, individually. The jury ultimately awarded plaintiff $3,092,000 in damages and judgment was subsequently entered on the verdict. No posttrial motions were filed and no appeal was ever taken.

¶ 6 B. The Instant Lawsuit and Bad–Faith Claims

¶ 7 At the time of the accident, G & G was insured under a business auto policy issued by Century National Insurance Company (CNIC). After trial, CNIC refused to pay its policy limit of $300,000 unless plaintiff would execute a full release of the entire judgment. Plaintiff filed citations to discover assets against both CNIC and Dagoberto. On April 25, 2013, the circuit court entered an agreed order requiring CNIC to pay the policy limit of $300,000 plus interest and costs. Thereafter, in May of 2013, the court also ordered Dagoberto to assign to plaintiff “all rights and choses of action that G & G has against CNIC.” Dagoberto executed the assignment, “under protest,” in both English and Spanish versions.

¶ 8 On July 17, 2013, plaintiff filed the instant action against CNIC and Dagoberto. Plaintiff brought various claims against CNIC for alleged bad faith in initially refusing to tender the policy limit on behalf of G & G, its insured. As pertinent here, plaintiff also sought to recover from Dagoberto, individually, the unsatisfied judgment amount he was awarded against G & G in the prior 2007 personal injury suit.

¶ 9 Dagoberto filed a motion to dismiss pursuant to section 2–619(a)(4) of the Code, asserting that plaintiff's claim was barred by the doctrine of res judicata because Dagoberto had already obtained a judgment in his favor in the personal injury lawsuit. He characterized plaintiff's new claim against him as merely “an attempt to get a second bite of the apple,” noting that plaintiff previously, but unsuccessfully, sought to enforce the judgment against him in a supplementary proceeding.

¶ 10 Plaintiff responded by pointing out that sections 2–410 and 2–411 of the Code (735 ILCS 5/2–410, 2–411 (West 2012)), read together, create an exception to the res judicata doctrine. Specifically, he argued that sections 2–410 and 2–411 of the Code allow a separate action to enforce a partner's individual liability for a partnership obligation.

¶ 11 On January 13, 2014, the circuit court entered an order granting Dagoberto's motion to dismiss. The court agreed that plaintiff's claim was barred by res judicata, noting:

“Here * * * Dagoberto was named a defendant in the underlying action and a verdict was entered finding him not liable for the judgment. The Plaintiff did not appeal this verdict and filed a citation to discover assets. In that proceeding, the court limited the Plaintiff to an assignment of Dagoberto's chose in action against the insurance company. The Plaintiff cannot now seek to relitigate Dagoberto's liability and the claim against him * * * is barred by res judicata. ”

¶ 12 The court included a finding pursuant to Illinois Supreme Court Rule 304(a) (eff. Feb. 26, 2010) that there was no just reason to delay the enforcement or appeal of the lawsuit. We therefore have jurisdiction over this appeal.

¶ 13 ANALYSIS

¶ 14 On appeal, plaintiff contends that the circuit court erred in dismissing his claim against Dagoberto, which sought to recover the unsatisfied portion of the judgment against G & G, on the ground that it was barred by res judicata. He argues that sections 306 and 307 of the Act create a “secondary liability” for partners for the unsatisfied obligations of their partnerships. Further, he argues that sections 2–410 and 2–411 of the Code “expressly authorize a separate action to enforce a partnership obligation and provide the procedural means by which a separate judgment against the individual partner may be obtained.” He asserts that, in light of this statutory scheme, this court should follow other jurisdictions and hold that res judicata does not bar a claim against a partner to enforce a partnership judgment where the partner was previously sued and found not liable for the underlying personal injury.

¶ 15 Dagoberto, meanwhile, responds that plaintiff is merely “attempt [ing] to re-litigate [his] liability in this second suit.” He argues that plaintiff's claim is barred under the doctrine of res judicata because plaintiff had a prior opportunity to obtain a judgment against him for the partnership's obligation during the underlying personal injury action. He further maintains that neither the Act nor sections 2–410 and 2–411 of the Code create an exception to res judicata.

¶ 16 A section 2–619 motion to dismiss admits the legal sufficiency of the complaint, but asserts affirmative matter that defeats the plaintiff's claim. King v. First Capital Financial Services Corp., 215 Ill.2d 1, 12, 293 Ill.Dec. 657, 828 N.E.2d 1155 (2005). We review de novo the circuit court's order granting a section 2–619 motion to dismiss. Id.

¶ 17 We begin by examining the statutory provisions at issue: namely, sections 306 and 307 of the Act and sections 2–410 and 2–411 of the Code. Our primary objective in interpreting a statute is to ascertain and give effect to the legislature's intent.

Citizens Opposing Pollution v. ExxonMobil Coal U.S.A., 2012 IL 111286, ¶ 23, 357 Ill.Dec. 55, 962 N.E.2d 956. The best indication of such intent is the language of the statute itself given its plain and ordinary meaning. Id. “Words and phrases should not be construed in isolation, but interpreted in light of other relevant portions of the statute so that, if possible, no term is rendered superfluous or meaningless.” Land v. Board of Education of the City of Chicago, 202 Ill.2d 414, 422, 269 Ill.Dec. 452, 781 N.E.2d 249 (2002). Ultimately, “we presume that the legislature, when it enacted the statute, did not intend absurdity, inconvenience, or injustice.” Id.

¶ 18 Consistent with this approach, we choose to follow the doctrine of in pari materia, and agree that two legislative acts addressing the same subject should be considered together so that they may be given harmonious effect. Citizens Opposing Pollution, 2012 IL 111286, ¶ 24, 357 Ill.Dec. 55, 962 N.E.2d 956. “[Such] doctrine is also applicable to different sections of the same statute and is consonant with one of our fundamental rules of statutory construction—‘to view all of the provisions of a statute as a whole.’ ” Collinsville Community Unit School District No. 10 v. Regional Board of School Trustees, 218 Ill.2d 175, 185–86, 300 Ill.Dec. 15, 843 N.E.2d 273 (2006) (quoting Land, 202 Ill.2d at 422, 269 Ill.Dec. 452, 781 N.E.2d 249 ).

¶ 19 Here, sections 306 and 307 of the Act and sections 2–410 and 2–411 of the Code can be read together as establishing a comprehensive procedure for obtaining and enforcing judgments against partnerships and their individual partners. Section 307(b) of the Act initially authorizes a plaintiff to bring “[a]n action * * * against the partnership and * * * any or all of the partners in the same action or in...