Fender v. St. Louis Southwestern Ry. Co., 77-243

• Decision Date: 13 June 1979
• Docket Number: No. 77-243,77-243
• Citation: 392 N.E.2d 82,73 Ill.App.3d 522,29 Ill.Dec. 525
• Parties: , 29 Ill.Dec. 525 Donald G. FENDER, Plaintiff-Appellant, v. ST. LOUIS SOUTHWESTERN RAILWAY CO., Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 82

392 N.E.2d 82

73 Ill.App.3d 522, 29 Ill.Dec. 525

Donald G. FENDER, Plaintiff-Appellant, v. ST. LOUIS SOUTHWESTERN RAILWAY CO., Defendant-Appellee.

No. 77-243.

Appellate Court of Illinois, Fifth District.

June 13, 1979.

Rehearing Denied July 27, 1979.

Joseph Cohn, Cohn, Carr, Korein, Kunin & Brennan, East St. Louis, for plaintiff-appellant.

Ralph D. Walker, Robert L. Gagen, Donald J. Dahlmann, Walker & Williams, Belleville, for defendant-appellee.

KUNCE, Justice:

This is an appeal by the plaintiff from a judgment of the Circuit Court of St. Clair County dismissing his action under the Federal Employers' Liability Act (45 U.S.C. § 51 Et seq., hereinafter referred to as FELA) on the basis of Res judicata.

The plaintiff, Donald G. Fender, was injured on December 7, 1967, during the course of his employment as a switchman for the defendant, St. Louis Southwestern Railway Co. The occurrence out of which the action arose took place in Texas, the plaintiff was a resident of Texas, and the defendant was a Missouri corporation with its principal place of business in Texas. The plaintiff's original FELA action was filed in the Circuit Court of St. Clair County on May 1, 1968. On January 10, 1969, the court granted the defendant's motion to decline jurisdiction on the basis of the doctrine of Forum non conveniens.

The plaintiff perfected an appeal to this court, but did not refile his FELA action in any other court. On June 26, 1970, this court reversed the decision of the Circuit Court of St. Clair County. (125 Ill.App.2d 211, 260 N.E.2d 373). The defendant's petition for leave to appeal to the Illinois Supreme Court was granted, and on May 21, 1971, the Supreme Court reversed, holding that the trial court had properly exercised its discretion to grant the Forum non conveniens motion to dismiss. (49 Ill.2d 1, 273 N.E.2d 353). The plaintiff's petition for rehearing was denied on October 4, 1971.

On October 12, 1971, the plaintiff commenced a new FELA action in a Texas court. After some discovery had taken place, the defendant filed a motion for summary judgment, alleging, among other things, that the three-year FELA statute of limitations had expired. The plaintiff did nothing to oppose the motion for summary judgment; neither an answer to the motion nor competent proof of the previous Illinois suit (in an attempt to show that the limitation period had been tolled) was filed. Therefore, on December 28, 1973, the Texas court granted summary judgment for the defendant. On June 6, 1974, the Texas Court of Civil Appeals affirmed the decision of the trial court, holding that the court below had been justified on the basis of the record before it in sustaining the motion for summary judgment; the court noted that the plaintiff had failed to oppose the motion with competent evidence to show that the defense of the statute of limitations would not apply. (Tex.Civ.App., 513 S.W.2d 131). On November 13, 1974, the Supreme Court of Texas denied the plaintiff's petition for writ of error. The plaintiff's petition for writ of certiorari was denied by the United States Supreme Court on April 14, 1975. 421 U.S. 913, 95 S.Ct. 1569, 43 L.Ed.2d 778.

On December 23, 1975, more than seven years after the original complaint was filed, the plaintiff filed the present action in the Circuit Court of St. Clair County. The complaint recited the chronology of the prior litigation, alleged that the defendant was estopped from denying the plaintiff's right to bring the action because of its prior representations to the courts of Illinois that a forum was available in Texas, and charged that the defendant's assertion of the defense of the statute of limitations in the Texas court, in light of those representations to the Illinois courts, constituted fraud. The defendant's motion to dismiss, which asserted that all justiciable issues averred in the complaint had already been fully and finally adjudicated, was granted on March 16, 1977. This appeal followed.

On appeal, the plaintiff reasserts the allegations of the complaint and contends that the FELA limitation period was tolled during the pendency of the prior actions in the Illinois and Texas courts. We see the threshold issue before us as whether the action filed in 1975 was barred by the principles of Res judicata, and therefore properly dismissed on the defendant's motion.

Res judicata is a doctrine of judicial origin; it reflects the sound requirement of public policy that litigation must cease after each party has had a full and fair opportunity to present all the pertinent facts. (Johnson v. Johnson (1st Dist. 1975), 34 Ill.App.3d 356, 340 N.E.2d 68). A cause of action once adjudicated by a court of competent jurisdiction cannot be tried again in new proceedings, before the same or a different tribunal, except in a direct action to set aside the prior adjudication. (People v. Kidd (1947), 398 Ill. 405, 75 N.E.2d 851; Schoenbrod v. Rosenthal (1st Dist. 1962), 36 Ill.App.2d 112, 183 N.E.2d 188). The doctrine of Res judicata extends not only to what actually was decided in the original action but also to every other thing within the knowledge of the parties which might have been set up as a ground for relief or defense, and which could have been decided. Keim v. Kalbfleisch (5th Dist. 1978), 57 Ill.App.3d 621, 15 Ill.Dec. 219, 373 N.E.2d 565; Menconi v. Davison (1st Dist. 1967), 80 Ill.App.2d 1, 225 N.E.2d 139.

However erroneous a decision of a court of competent jurisdiction may be, it is binding upon all parties unless it is reversed on appeal. (People ex rel. McAllister v. East (1951), 409 Ill. 379, 100 N.E.2d 746; Radice v. Antonacci (1st Dist. 1970), 120 Ill.App.2d 478, 257 N.E.2d 233). The Res judicata effect of a prior judgment is not mitigated by the fact that it rests upon an erroneous view of the law; nor is the value of a plea of Res judicata determined by the reasons given by the court in support of the prior judgment. People v. Kidd; Pierog v. H. F. Karl Contractors, Inc. (1st Dist. 1976), 39 Ill.App.3d 1057, 351 N.E.2d 249.

The United States Constitution embodies the common law doctrine of Res judicata in the full faith and credit clause. (U.S.Const., art. IV, § 1; Brownlee v. Western Chain Co. (1st Dist. 1977), 49 Ill.App.3d 247, 7 Ill.Dec. 635, 364 N.E.2d 926). The Constitution requires that each state give full faith and credit to the judgments of the courts of a sister state; a judgment is as conclusive in every other court as it is in the one which rendered it, and no other court can re-hear any claim, issues, or defense which was previously decided or which could have been presented to the court of the sister state. Carlson v. Prestige Casualty Co. (1st Dist. 1975), 28 Ill.App.3d 926, 329 N.E.2d 477; Southern Bell Telephone & Telegraph Co. v. Woodstock, Inc. (1st Dist. 1975), 34 Ill.App.3d 86, 339 N.E.2d 423.

If a plaintiff seeks a remedy which turns out to be unavailable to him, the adverse judgment is not a final one on the merits, and he is not precluded from subsequently maintaining an action in which he seeks an available remedy; however, whatever matters were actually decided in the prior litigation cannot be re-examined in subsequent litigation. (Foreman v. Martin (2d Dist. 1975), 26 Ill.App.3d 1028, 325 N.E.2d 378; cf. Hurst v. Papierz (1st Dist. 1973), 16 Ill.App.3d 574, 306 N.E.2d 532). A statute of limitations is generally considered to affect the remedy only, and not a party's substantive right. (Cook v. Britt (1st Dist. 1972), 8 Ill.App.3d 674, 290 N.E.2d 908). Therefore, a decision of a court of one state holding that an action is barred by a statute a limitations will preclude the maintenance of a subsequent action in another state on the same claim only if the same statute of limitations applies. (Restatement of Conflict of Laws, § 110(b)). Where more than one remedy exists, a prior judgment that one remedy is barred by the statute of limitations is Res judicata only as to that remedy. (Santucci Construction Co. v. Metropolitan Sanitary Dist. of Greater Chicago (1st Dist. 1977), 55 Ill.App.3d 376, 13 Ill.Dec. 358, 371 N.E.2d 53). However, where an opportunity has been afforded in a prior case to litigate the question of estoppel to assert a statute of limitations, it cannot be relitigated in a later action. House v. Maddox (1st Dist. 1977), 46 Ill.App.3d 68, 4 Ill.Dec. 644, 360 N.E.2d 580.

Applying these principles to the present case, we conclude that the action was properly dismissed. We do not find any concealment or misrepresentation or fraud or deception on the part of the defendant which should reasonably have misled the plaintiff or be the basis of an estoppel to assert the defense of the statute of limitations. Defendant's sound adversary strategy in raising the question of Forum non conveniens to the courts of Illinois and later asserting the bar of the statute of limitations in the Texas court did not constitute fraud as plaintiff alleges. It was not the defendant's assertion of the defense of the statute of limitations in Texas which resulted in the summary judgment. Rather, that result flowed from the plaintiff's failure to present his case to the Texas court. By filing a complaint there, he submitted himself to the procedural laws of that forum. It was there that he should have asserted his rights. The principles of Res judicata bar relitigation here of any defense to the motion for summary judgment which could have been raised in the Texas court. Menconi v. Davison; Dennis v. Silzer (3d Dist. 1977), 48 Ill.App.3d 468, 6 Ill.Dec. 311, 362 N.E.2d 1133.

The opportunity was afforded in the Texas case to litigate the questions of tolling of the statute of limitations and estoppel to assert the statute of limitations. The remedy in an FELA case is the same in Illinois and Texas. The statute of limitations is also the same. Under these circumstances, the authorities previously cited lead us to the conclusion that the...