Appellate Law

Dismissal Of Original Complaint A Final Judgment That Must Be Appealed Upon Voluntary Dismissal of Amended Complaint

By Steven R. Merican

This case is more about res judicata appellate jurisdiction, but it teaches an important lesson about final and appealable orders. Jane Doe had a successful in vitro fertilization at a fertility clinic, the Center for Human Reproduction. Two things caused Jane and John (husband) to sue. First, after the successful treatment, Jane and John requested that the residual embryos be ethically destroyed. They claimed in their lawsuit that the embryos were not disposed of properly. Second, the clinic?s president, Norbert Gleicher, allegedly mentioned Jane?s real name during a television interview without her permission.

Jane and John sued Gleicher and the clinic, and filed a nine-count amended complaint against them for invasion of their privacy and breach of contract. Gleicher and the clinic asked the trial court to dismiss the amended complaint. The court dismissed six of the counts, allowed Jane and John to amend the remaining three counts, and denied their request for Rule 304(a) language (which would have allowed an immediate appeal).

About five weeks later, Jane and John filed a second amended complaint ?alleging breach of contract, medical malpractice, conversion of the embryos and related medical records, and invasion of privacy by public disclosure of private facts. They did not reallege any of the dismissed claims.? Then about two years later they voluntarily dismissed the case.

One year after that, Jane and John re-filed their case. Gleicher asked the trial court to dismiss it, arguing it was res judicata (bars ?subsequent lawsuits between the same parties or their privies involving the same cause of action where there was a final judgment on the merits rendered by a court of competent jurisdiction.?) Gleicher?s request to dismiss was granted, so Jane and John appealed.

Jane and John said that res judicata did not bar the re-filed complaint because there never was a final judgment in the trial court. They argued that: (1) they were allowed leave to amend when the trial court issued its order that dismissed six of nine counts of the amended complaint, (2) they in fact filed a second amended complaint, and (3) then they voluntarily dismissed that complaint [before] ? any substantive rulings.?

But the First District Illinois Appellate Court disagreed. The appellate court ruled that the six dismissed claims were final, although not appealable until the case was over. The case was over in July 2006, when Jane and John voluntarily dismissed the entire case. In order to invoke the jurisdiction of the appellate court, Jane and John should have filed their appeal within 30 days of the time they voluntarily dismissed the case in July 2006, which they did not do.

Jane and John argued that the re-filing of the case constituted a ?separate filing? that was not subject to res judicata. The First District Appellate Court disagreed again, and pointed out that ?? res judicata bars every matter that could have been raised in [the amended complaint].?

The appellate court ultimately concluded that all of the elements of res judicata applied, so the dismissal was affirmed. Read the whole case, Doe v. Gleicher, No. 1-08-2724 (6/30/09), by clicking here.

Full post as published by Illinois Appellate Lawyer Blog on September 22, 2009 (boomark / email).