Hays v. Louisiana Dock Co.

• Decision Date: 02 September 1983
• Docket Number: No. 82-369,82-369
• Citation: 452 N.E.2d 1383,117 Ill.App.3d 512,72 Ill.Dec. 687
• Parties: , 72 Ill.Dec. 687 Bobby J. HAYS, Plaintiff-Appellant, v. LOUISIANA DOCK COMPANY, Greenville Towing Company, a/k/a Williamson Leasing Company, and Peavey Company, Defendants-Appellees.
• Court: United States Appellate Court of Illinois

Page 1383

452 N.E.2d 1383

117 Ill.App.3d 512, 72 Ill.Dec. 687

Bobby J. HAYS, Plaintiff-Appellant, v. LOUISIANA DOCK COMPANY, Greenville Towing Company, a/k/a Williamson Leasing Company, and Peavey Company Defendants-Appellees.

No. 82-369.

Appellate Court of Illinois Fifth District.

Sept. 2, 1983.

Lance R. Mallon, Hugh M. Talbert, Talbert & Mallon, p. c., Alton, for plaintiff-appellant; Sidney Z. Karasik, Sam J. Cahnman, Chicago, of counsel.

Thompson & Mitchell, Raymond L. Massey, Dan H. Ball, Mary K. Bennett, East St. Louis, for Louisiana Dock Co.

Daryl F. Sohn, Goldstein & Price, St. Louis, Mo., for Peavey Co. & Greenville Towing Co.

WELCH, Justice:

The present appeal is taken from a dismissal of the plaintiff's action to recover damages for personal injuries allegedly suffered aboard the M/V Tennessee on the Mississippi River on approximately March 2, 1978. The question presented here is whether that action is barred on res judicata grounds due to a dismissal with prejudice in Federal court of a prior action brought by the plaintiff.

The plaintiff first filed suit in the circuit court of Madison County on March 16, 1978, against American Commercial Barge Line Co. (ACBL) and Louisiana Dock Co., Inc. (La. Dock). In his complaint, the plaintiff alleged that the agents of ACBL and La. Dock had allowed the Tennessee to be returned to navigation, even though a substantial amount of grease had been left on the shaft alley floor and water was leaking into the shaft alley compartment at a rate of flow "equivalent to a fire hose discharge." The plaintiff contended that he had suffered injury when he slipped and fell on grease on the shaft alley floor.

This action was removed to the U.S. District Court for the Southern District of Illinois through a petition filed by ACBL and La. Dock in that court on April 17, 1978. La. Dock filed a third party complaint in Federal court against the Peavey Company (Peavey), the plaintiff's employer, seeking contribution or indemnity for any damages recovered by the plaintiff from La. Dock. Pursuant to Rule 14(c) of the Federal Rules of Civil Procedure, La. Dock requested judgment to be entered directly against Peavey and in favor of the plaintiff, should the plaintiff's claim and the third party claim both be successful. Peavey therefore filed two answers in the Federal proceedings, one to La. Dock's third party complaint, and one directly to the plaintiff's complaint against La. Dock.

Discovery continued in this case until May 20, 1980, when plaintiff's counsel filed a "stipulation for dismissal" in Federal court. This document requested that through the stipulation of the parties, the plaintiff's complaint and the third party complaint, inter alia, should be dismissed voluntarily and without prejudice. It was signed only by an attorney in the firm of the plaintiff's counsel and was not signed by the plaintiff, or by the other parties or their counsel. The court accepted this stipulation on May 20, 1980, and approved the dismissal without prejudice of the complaints mentioned in the stipulation.

Subsequently, according to a statement given by the plaintiff on August 29, 1980, in connection with settlement negotiations, the plaintiff discovered on his own that his counsel had obtained a dismissal of his case without his approval. On July 17, 1980, the plaintiff sent a telegram to the Federal court requesting that no further documents be accepted from his attorney, and, on July 21, he sent a letter to his attorney discharging him. The plaintiff then undertook settlement negotiations directly with counsel for ACBL, La. Dock and Peavey.

A result of these negotiations was that the plaintiff, together with counsel for ACBL, La. Dock and Peavey, filed documents in the Federal court on September 9, 1980, which effectuated a dismissal with prejudice of the plaintiff's action and the third party action against Peavey. On February 5, 1981, the plaintiff, with new counsel, filed a three count complaint against La. Dock, Peavey and Greenville Towing Co., Inc. (Greenville) in the circuit court of Madison County. This complaint also sought damages for the injuries allegedly suffered by the plaintiff on approximately March 2, 1978, aboard the M/V Tennessee. The first count, directed to Peavey, claimed that that defendant had negligently failed to provide the plaintiff with a safe place to work and had failed to inspect the M/V Tennessee or clean its engine room before launching it. In the second count, the plaintiff averred that La. Dock had negligently tendered the Tennessee in an unseaworthy condition to its operator, Peavey, after repairs. Greenville, the owner of the Tennessee, was charged in count III with having negligently failed to inspect or clean the vessel before it was launched after repairs.

On April 10, 1981, all three defendants filed a motion under Section 48 of the Civil Practice Act (Ill.Rev.Stat.1979, ch. 110, par. 48, now Ill.Rev.Stat.1981, ch. 110, par. 2-619) to dismiss the action as barred by the dismissal of the Federal suit. Attached to this motion were certified copies of the petition to remove the plaintiff's initial action to Federal court, the stipulations for dismissal with prejudice of the plaintiff's complaint and the third party complaint, and the order dismissing the plaintiff's action. Also attached to the motion were a copy of the plaintiff's original complaint and the summons in the first state court action. On May 1, 1981, the plaintiff filed a reply to the motion to dismiss. Attached to this reply were a copy of the stipulation for dismissal without prejudice in Federal court and the docket sheet of the Federal court for the plaintiff's action. After accepting briefs and authorities and hearing argument from all parties, the trial court granted the motion to dismiss.

In this court, the plaintiff challenges the trial court's order of dismissal as erroneous. He states that the motion to dismiss did not comply with Section 48 of the Civil Practice Act, now Paragraph 2-619 of the Code of Civil Procedure, and that even if it did, the court should not have dismissed the action on res judicata grounds because the Federal court improperly entered a dismissal with prejudice of the plaintiff's complaint after that complaint had been dismissed without prejudice and not reinstated. Additionally, he asserts that any res judicata effect of the dismissal with prejudice could not have extended to the third party defendant, Peavey, or to Greenville, which was not a party to the Federal action. We first consider those arguments which pertain to all of the defendants.

The plaintiff contends that the motion to dismiss was procedurally defective, in that no affidavits were attached to the motion. But, as argued by the defendants, the plaintiff did not object at the trial level to the motion to dismiss for failure to present an affidavit. This argument has thus not been preserved for purposes of this appeal. (Mutschler Kitchens of Chicago, Inc. v. Wineman (1981), 95 Ill.App.3d 728, 51 Ill.Dec. 258, 420 N.E.2d 672; Setliff v. Reinbold (1966), 73 Ill.App.2d 208, 218 N.E.2d 814). Also, it has been held that an affidavit did not need to be attached to a motion to dismiss where a certified copy of a land trust agreement was sufficient to support the issues presented by the motion. (White Way Sign and Maintenance Co. v. Montclare Lanes, Inc. (1976), 42 Ill.App.3d 199, 355 N.E.2d 632.) If, as alleged in the motion to dismiss, the plaintiff's action were barred on res judicata grounds, there seems little that an affidavit could add to certified copies of the prior dismissal and other relevant proceedings.

It is further averred that the record at trial failed to include several documents which were necessary to the resolution of the issues presented by the motion to dismiss. Specifically, the plaintiff lists among the missing documents the answers of ACBL and La. Dock to the plaintiff's complaint, the plaintiff's and defendants' answers to interrogatories and requests to produce, a motion for leave to file a third party complaint, Peavey's counterclaim against La. Dock, La. Dock's reply to Peavey's counterclaim and the order of September 9, 1980, dismissing the third party complaint of La. Dock and ACBL. However, the plaintiff did not bring to the attention of the trial court the failure of the defendants to include these documents in the record. Moreover, the doctrine of res judicata may be used as a bar to further proceedings if the parties involved are the same, or those in privity with them, and if the causes of action and the subject matter of both suits are the same. (See Keith v. B and B Builders Supply, Inc. (1981), 101 Ill.App.3d 1123, 57 Ill.Dec. 514, 428 N.E.2d 1194; Village of Northbrook v. Cannon (1978), 61 Ill.App.3d 315, 18 Ill.Dec. 572, 377 N.E.2d 1208.) The identity of parties, subject matter and causes of action may be determined from the record as well as from the pleadings in both actions. (Pierog v. H.F. Carl Contractors, Inc. (1976), 39 Ill.App.3d 1057, 351 N.E.2d 249.) In the case at bar, the plaintiff has not suggested how this inquiry could be performed by the trial court if the listed documents were included in the record, and how it could not be performed with the documents presently in the record. In other words, it has not been demonstrated that the present record was and is inadequate for a determination of the issues raised in the motion to dismiss, and thus we do not find the plaintiff's objections to the motion and the supporting documents in the record to be well taken.

As his primary argument against the application of res judicata to this case, the plaintiff asserts that the Federal court erred when it issued the September, 1980, dismissal of his action with prejudice. He reasons that the May, 1980, dismissal of his complaint without prejudice effectively terminated the proceedings in that case, and, without a motion to...