[Citation.]" Thornton v. Williams, 89 Ill. App.3d 544, 546, 412 N.E.2d 157, 159 (1980). With these principles in mind, we conclude that the doctrine of res judicata should not be applied to prevent arbitration of the amount of attorney fees.
Although it is recommended that the doctrine receive a liberal construction and should be applied without technical restrictions, it has also been recommended that the doctrine should not be applied so rigidly as to defeat the ends of justice." Fed. Signal Corp. v. SLC Techs., Inc. , 318 Ill.App.3d 1101, 252 Ill.Dec. 910, 743 N.E.2d 1066, 1077 (2001) (quoting Thornton v. Williams , 89 Ill.App.3d 544, 45 Ill.Dec. 24, 412 N.E.2d 157, 159 (1980) ). C. Doherty’s Claims
" 'Although it is recommended that the doctrine receive a liberal construction and should be applied without technical restrictions, it has also been recommended that the doctrine should not be applied so rigidly as to defeat the ends of justice. [Citation.]' " Id. (quoting Thornton v. Williams, 89 Ill. App. 3d 544, 546 (1980)). ¶ 39 To apply res judicata here and grant Miriam the relief she seeks would be fundamentally unfair. Miriam urges us to reverse the court's order of summary judgment in the Bank's favor and enter judgment in her favor.
Id. at 662-63. ¶ 52 Similarly, in Thornton v. Williams, 89 Ill. App. 3d 544, 547 (1980), the trial court denied the defendant's motion for judgment on the basis of claim preclusion, and the reviewing court affirmed, agreeing the defendant had forfeited the issue by waiting too long to raise it. Thornton centered on a car accident. The first action was filed in February 1974 by the injured person's insurance company against the other driver, seeking to recover for the property damage to the car.
As such it was intended to be applied by the defendant "as a shield, not a sword." Federal Signal Corp., 318 Ill. App. 3d at 1116; see also Longo v. Globe Auto Recycling, Inc., 318 Ill. Ap. 3d 1028, 1028 (2001); see also Thornton v. Williams, 89 Ill. App. 3d 544, 546 (1980) ("The doctrine of res judicata was intended to be used as a shield, not a sword."). ¶ 31 For all of the aforementioned reasons, we answer the certified question in the affirmative, and find that a defendant acquiesces to claim-splitting when at the time the concurrent law suit is filed it solely files a successful motion to dismiss in that concurrently filed lawsuit on a basis other than that there are two lawsuits pending about the same subject matter (735 ILCS 5/2-619(a)(3) (West 2014)).
[Citation.]' " Id, quoting Thornton v. Williams, 89 Ill. App. 3d 544, 546 (1980). Again, by addressing only the issue of whether the malpractice claim should have been filed as a counterclaim and failing to address the application of res judicata, the trial court has failed to exercise its discretion, and this court cannot review what the trial court has not done. It is the trial court's discretion, not ours, to exercise.
Id. However, res judicata may be forfeited by the failure to timely raise the defense. Thornton v. Williams, 89 Ill. App. 3d 544, 547-48 (1980); see also Longo v. Globe Auto Recycling, Inc., 318 Ill. App. 3d 1028, 1038 (2001). Sherry raises the doctrine for the first time in her motion in this appeal. Sherry did not raise the defense in her summary judgment motion, and the trial court made no findings on the issue.
Again, we believe that the equitable doctrine of res judicata was intended to be used as a shield, not a sword. Thornton v. Williams, 89 Ill. App. 3d 544, 548, 412 N.E.2d 157, 160 (1980). In any event, assuming, arguendo, that Cooper was "a correct extension" of Rein and Dubina, under the particular circumstances of the instant case, we believe that it would be inequitable to now mechanistically apply Cooper.
Again, we believe that the equitable doctrine of res judicata was intended to be used as a shield, not a sword. Thornton v. Williams, 89 Ill.App.3d 544, 548, 45 Ill.Dec. 24, 412 N.E.2d 157, 160 (1980). In any event, assuming, arguendo, that Cooper was "a correct extension" of Rein and Dubina, under the particular circumstances of the instant case, we believe that it would be inequitable to now mechanistically apply Cooper.
Again, we believe that the equitable doctrine of res judicata was intended to be used as a shield, not a sword. Thornton v. Williams, 89 Ill. App. 3d 544, 548, 412 N.E.2d 157, 160 (1980). We cannot fault Ford's counsel for relying on the fortuitous publication of a case that arguably supports the defense.