Durhan v. Neopolitan, 88-2108

• Decision Date: 20 April 1989
• Docket Number: No. 88-2108,88-2108
• Citation: 875 F.2d 91
• Parties: James T. DURHAN, Plaintiff-Appellant, v. Robert NEOPOLITAN, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 91

875 F.2d 91

James T. DURHAN, Plaintiff-Appellant, v. Robert NEOPOLITAN, et al., Defendants-Appellees.

No. 88-2108.

United States Court of Appeals Seventh Circuit.

Argued Jan. 9, 1989.

Decided April 20, 1989.

Lonny B. Ogus, Chicago, Ill., for plaintiff-appellant.

Madeleine S. Murphy, Office of the State's Atty. of Cook County, Chicago, Ill., for defendants-appellees.

Before CUMMINGS and KANNE, Circuit Judges, and GRANT, Senior

District Judge. ^*

CUMMINGS, Circuit Judge.

This appeal involves the confiscation of two vehicles belonging to the plaintiff, James T. Durhan, and his proprietorship, J & B Towing, Inc., by defendants acting as agents of the Sheriff of Cook County. The district court granted defendants' motion for summary judgment on the grounds of claim preclusion and qualified immunity of the defendants. We affirm on more limited grounds.

I.

Plaintiff's two vehicles, a 1973 GMC tow truck and a 1977 Chevrolet flat-bed, slide-back car hauler, were seized on May 18, 1981, pursuant to Ill.Rev.Stat. ch. 95 1/2 p 4-107(i) (1976) ¹ in furtherance of an investigation into the ownership of the vehicles. The investigation culminated in criminal proceedings in which plaintiff was never named as a defendant. ² Although the criminal suit was eventually dismissed for want of probable cause on June 12, 1981, the vehicles were retained as contraband by defendants pursuant to the same statute. Consequently, plaintiff commenced a suit in the Circuit Court of Cook County on July 8, 1981, naming as defendants Richard J. Daley, Cook County State's Attorney, and Richard J. Elrod, Sheriff of Cook County, seeking return of the vehicles, attorneys' fees and waiver of all storage and other fees assessed by Cook County. ³ Sometime in September of 1981 ⁴ the GMC tow truck was released to plaintiff by an agreed order ⁵ (Pl.Br. at 5). On April 7, 1982, the Chevy flat-bed car hauler was released to plaintiff and the action dismissed pursuant to either an agreed order or a court order. ⁶ On July 10, 1985 plaintiff filed this federal action concerning seizure of the same vehicles, alleging that defendants, Robert Neopolitan, Louis Sala (both agents of the Cook County Sheriff's office), Daley and Elrod, deprived plaintiff of his property without due process of law in violation of 42 U.S.C. Sec. 1983. Defendants moved for summary judgment on the grounds of res judicata on February 20, 1987. Plaintiff subsequently moved for summary judgment on the issue of defendants' affirmative defense.

The case was originally assigned to District Judge Norgle but was reassigned to District Judge Zagel's calendar on June 17, 1987. Following the reassignment, plaintiff filed a motion for Judge Zagel's recusal based upon his involvement in Lampher v. Zagel, 755 F.2d 99 (7th Cir.1985). Lampher involved a similar challenge under 42 U.S.C. Sec. 1983 and Sec. 1985 to p 4-107(i) pursuant to which the plaintiff's vehicles had been seized. Judge Zagel was named as a defendant both individually and in his then official capacity as Director of the Illinois Department of Law Enforcement. Plaintiff's motion for recusal was denied by Judge Zagel on December 30, 1987.

Judge Zagel granted defendants' motion for summary judgment in an oral opinion issued in open court on May 23, 1988. In that opinion, he rejected defendants' patently erroneous argument that they were not bound by the Third District Appellate Court decision which held p 4-107(i) unconstitutional (see note 1 supra ) and so were justified in retaining plaintiff's vehicles as contraband. Nonetheless, Judge Zagel found that the defendants had not acted in knowing disregard of plaintiff's established constitutional rights "when a state trial judge [James C. Murray] apparently shared their belief that they had some legal basis to refuse to return plaintiffs' property." (Pl.App. at viii.) Accordingly, Judge Zagel determined that defendants were entitled to qualified immunity for their actions under Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). Relying on Frier v. City of Vandalia, Ill., 770 F.2d 699 (7th Cir.1985), the court further held that plaintiff's civil rights suit was barred by the previous Circuit Court of Cook County adjudication since the facts necessary to sustain each cause of action were essentially identical so that the plaintiff could have easily joined a claim for damages in the state court action.

Plaintiff raises several issues on appeal. Initially, plaintiff contends that the district judge erred in both his determination that defendants were not acting in disregard of plaintiff's established constitutional rights and characterizing the statements of the state trial judge as evidence that defendants had a right to delay return of plaintiff's vehicles. Plaintiff also asserts that defendants have admitted they cannot prove their affirmative defense that the vehicles were retained pursuant to p 4-107(i) and further that defendants were not relying on this authority when they confiscated plaintiff's vehicles. Plaintiff challenges the district court's alternative conclusion that this suit is barred by the previous state trial court proceedings, contending that his state action was voluntarily withdrawn and did not result in any final judgment. Plaintiff additionally argues that it was improper for Judge Zagel to deny plaintiff's motion for his recusal from the case. Because we hold that this suit is precluded under the doctrine of res judicata, it is unnecessary to determine whether defendants are entitled to qualified immunity for their actions in seizing plaintiff's vehicles. Finally, this appeal does not give us jurisdiction to review Judge Zagel's retention of plaintiff's suit.

II.

A. RES JUDICATA

In general, the doctrine of res judicata serves the interest of judicial economy and finality in disposition of disputes by precluding parties to a judgment and their privies ⁷ from relitigating the same "cause of action." As required by 28 U.S.C. Sec. 1738, this Court must apply the res judicata law of Illinois in order to determine under what circumstances a judgment rendered by an Illinois court would preclude the same parties from litigating a subsequent action in another Illinois court. Migra v. Warren City School District Board of Education, 465 U.S. 75, 104 S.Ct. 892, 79 L.Ed.2d 56 (1984). In Hagee v. City of Evanston, 729 F.2d 510 (7th Cir.1984), this Court reviewed the doctrine of res judicata as pronounced by Illinois courts. The Court discerned two stands of res judicata doctrine: (1) the "proof" or "evidence" inquiry and (2) the "transactional" approach. Federal courts have increasingly adopted the transactional approach (Restatement (Second) of Judgments Sec. 24 (1980)), while the trend in Illinois is less clear.

Under the proof inquiry, the second action will be barred where "there is identity of facts essential to the maintenance of both cases or ... the same evidence would sustain both actions." Palya v. Palya, 87 Ill.App.3d 472, 475, 42 Ill.Dec. 638, 641, 409 N.E.2d 133, 136 (3d Dist.1980). In contrast, the transactional approach examines whether the two suits were generated by the same transaction, incident or core of operative facts. Baird & Warner, Inc. v. Addison Industrial Park, Inc., 70 Ill.App.3d 59, 64-65, 26 Ill.Dec. 1, 8, 387 N.E.2d 831, 838 (1st Dist.1979); see also Hagee, 729 F.2d at 513 n. 6, and cases cited therein. Under most factual settings, the transactional approach will result in broader preclusive effect since several theories of recovery may emanate from the same transaction without complete identity of the evidence necessary to sustain each theory. Frier, 770 F.2d at 702.

Neither of the parties attempts to resolve which approach should be used in this case but center instead on whether the state court rendered an adjudication on the merits. Plaintiff contends that the state court action was voluntarily withdrawn by both parties which does not prejudice plaintiff's right to bring a subsequent suit alleging the same cause of action. Defendants, however, argue that Judge Murray rendered a final adjudication on the merits of the dispute such that the orders returning the vehicles to the plaintiff and dismissing the action with respect to both cars preclude this subsequent action.

In order for the doctrine of res judicata to apply, there must have been a final prior adjudication on the merits. "In Illinois, a judgment on the merits is one that determines the respective rights and liabilities of the parties based on the ultimate facts on which the right of recovery depends as disclosed by the pleadings or evidence." Torres v. Rebarchak, 814 F.2d 1219, 1223 (7th Cir.1987). A subsequent suit is precluded even if the prior action was dismissed pursuant to a voluntary settlement or agreed order between the parties. Barth v. Reagan, 146 Ill.App.3d 1058, 1067, 100 Ill.Dec. 541, 547, 497 N.E.2d 519, 525 (2d Dist.1986). Therefore this suit may be precluded regardless of whether the order dismissing the state action was entered by agreed or normal court order.

Plaintiff further contends that the parties agreed to withdraw the issue of defendants' liability from the state court action, so that there was no prior adjudication of that issue before the district court. While it is true that when the parties withdraw a particular issue from consideration, collateral estoppel will not bar relitigation of that issue, Case Prestressing Corp. v. Chicago College of Osteopathic Medicine, 118 Ill.App.3d 782, 786, 74 Ill.Dec. 382, 386, 455 N.E.2d 811, 815 (1st Dist.1983), that proposition does not apply where, as here, the state trial judge issued an order disposing of each issue raised by the plaintiff. The case was not simply withdrawn--leaving plaintiff to find remedy elsewhere--but judgment was entered addressing the relief sought by the plaintiff. He sought the following relief in the complaint filed in state court:

A....