Woolsey v. Wilton

August 11, 1998

No. 4--97--1003
_________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

A.D., 1998

EDGAR BAIRD WOOLSEY, ) Appeal from the Circuit Court
) for the 10th Judicial Circuit
Plaintiff-Appellant, ) Peoria County, Illinois
)
v. ) No. 94--L--590
)
RICHARD S. WILTON, ) Honorable
) Bruce W. Black
Defendant-Appellee. ) Judge, Presiding

___________________________________________________________________

JUSTICE LYTTON delivered the opinion of the court:
___________________________________________________________________

After prevailing as defendant in a suit for breach of
contract, plaintiff Edgar Baird Woolsey filed this action to
recover his attorney fees. The circuit court dismissed the suit on
the basis of res judicata. We affirm.
The pertinent facts are not in dispute. In 1992, Richard S.
Wilton filed suit against Edgar Baird Woolsey for breach of
contract. Woolsey then sought and obtained leave to file a
counterclaim for attorney fees. For reasons not appearing in the
record, Woolsey failed to file the counterclaim. Rather, after
obtaining a favorable jury verdict, Woolsey filed this suit to
recover his attorney fees pursuant to a prevailing party provision
in the contract. Wilton filed a motion to dismiss on the basis of
res judicata (735 ILCS 5/2--619(a)(4) (West 1994)), and the trial
judge granted the motion.
"Under the doctrine of res judicata, a final judgment rendered
on the merits by a court of competent jurisdiction is conclusive as
to the rights of the parties and their privies and, as to them,
constitutes an absolute bar to a subsequent action involving the
same claim, demand, or cause of action." Torcasso v. Standard
Outdoor Sales, Inc., 157 Ill. 2d 484, 490, 626 N.E.2d 225, 228
(1993). The essential elements of res judicata are: (1) a final
judgment on the merits rendered by a court of competent
jurisdiction; (2) identity of causes of action; and (3) identities
of parties or their privies. People ex rel. Burris v. Progressive
Land Developers, Inc., 151 Ill. 2d 285, 294, 602 N.E.2d 820, 825
(1992). Where these elements are satisfied, "the doctrine of res
judicata extends not only to every matter that was actually
determined in the prior suit but to every other matter that might
have been raised and determined in it." Torcasso, 157 Ill. 2d at
490, 626 N.E.2d at 228.
The parties agree that the final judgment in the prior suit
was rendered by a court of competent jurisdiction, and this case
involves the same parties and contract. Woolsey argues, however,
that res judicata should not apply because counterclaims are
permissive in Illinois (735 ILCS 5/2--608(a) (West 1994)) and the
issue of Woolsey's rights as prevailing party was never decided in
the prior litigation. See Torcasso, 157 Ill. 2d at 491, 626 N.E.2d
at 228-29 (for res judicata to apply "it must either appear upon
the face of the record or be shown by extensive evidence that the
precise question, or point, was raised in determining the former
suit").
In Wilson v. M.G. Gulo & Associates, Inc., ___ Ill. App. 3d.
___, 691 N.E.2d 875 (1998), this court held that a hearing on an
attorney-client fee dispute in a divorce case did not constitute a
res judicata bar to a separate action alleging malpractice. After
reviewing the record, we held that the two proceedings did not
satisfy the same cause of action requirement because (a) the first
dispute involved only the number of hours expended by the
attorneys, (b) the issue of negligent representation was not raised
by the attorneys' fee petition, and (c) the trial judge expressly
excluded any evidence relating to the attorneys' competency.
Wilson, ___ Ill. App. 3d at ___, 691 N.E.2d at 877-78.
The case before us presents a substantially different
situation. Woolsey sought and obtained leave to raise his
contractual right to attorney fees in the preceding contract
litigation. Thus, while there are no compulsory counterclaims in
Illinois, Woolsey voluntarily introduced into the first litigation
the very issue that he now seeks to raise in this case. See
Bennett v. Gordon, 282 Ill. App. 3d 378, 384, 668 N.E.2d 109, 113
(1996). Though Woolsey failed to pursue his claim for attorney
fees in the first suit, the issue was raised and therefore
constituted a matter that might have been determined in that
litigation.
The judgment of the circuit court of Peoria County is
affirmed.
Affirmed.
HOMER, P.J., and BRESLIN, J., concur.