Hudson v. City of Chicago

Docket No. 100466.

IN THE

SUPREME COURT

OF

THE STATE OF ILLINOIS

GEORGE HUDSON, SR., Indiv. and on Behalf of the Estate of

George Hudson, Jr., Deceased, et al., Appellants, v. THE CITY OF

CHICAGO et al., Appellees.

Opinion filed January 25, 2008.

CHIEF JUSTICE THOMAS delivered the judgment of the court,

with opinion.

Justices Freeman, Garman, and Karmeier concurred in the

judgment and opinion.

Justice Kilbride dissented, with opinion, joined by Justice

Fitzgerald.

Justice Kilbride dissented, with opinion, upon denial of rehearing,

joined by Justice Fitzgerald.

Justice Burke took no part in the decision.

OPINION

On March 30, 1999, plaintiffs, George Hudson, Sr., on behalf of

the estate of his deceased son, George Hudson, Jr., and Ednarine

Hudson, individually and as mother and next friend of Ronita Milton,

filed suit against the City of Chicago, former Chicago Fire

Commissioner Edward P. Altman, and unknown Chicago fire

department personnel. Count I of plaintiffs’ complaint alleged

negligence, and count II alleged willful and wanton misconduct in

providing emergency services to George Hudson, Jr.

In October 1999, the circuit court of Cook County granted

defendants’ motion to dismiss the negligence count on the ground that

the City and its employees were immune under section 3.150 of the

Emergency Medical Services (EMS) Systems Act (210 ILCS 50/3.150

(West 2000)).

On July 25, 2002, plaintiffs voluntarily dismissed the remaining

willful and wanton misconduct count pursuant to section 2–1009 of

the Code of Civil Procedure (the Code) (735 ILCS 5/2–1009 (West

2000)). On July 23, 2003, plaintiffs refiled their action, setting forth

only one count for willful and wanton misconduct. Defendants moved

to dismiss pursuant to section 2–619 of the Code (735 ILCS 5/2–619

(West 2006)), arguing that the refiled action was barred by res

judicata. The circuit court granted the motion, and the appellate court

affirmed (No. 1–04–0338 (unpublished order under Supreme Court

Rule 23)). We allowed plaintiffs’ petition for leave to appeal (210 Ill.

2d R. 315), and we granted the Illinois Trial Lawyers Association

leave to file a brief amicus curiae in support of plaintiffs (210 Ill. 2d

R. 345).

BACKGROUND

In November 1998, five-year-old George Hudson, Jr., died from

acute asthma exacerbation. On March 30, 1999, plaintiffs filed a two-

count wrongful-death complaint (Hudson I), alleging that on

November 25, 1998, George Jr.’s mother, Ednarine, called 911 to

request emergency assistance and informed the operator that the child

was having breathing problems. Despite being informed that the child

was suffering severe breathing problems, defendants dispatched a fire

engine. The fire engine had no advanced life support and was the

wrong equipment under the circumstances. An advanced life support

ambulance arrived approximately 15 minutes after Ednarine’s 911 call.

Plaintiffs claimed that George Jr. died as a result of the delay in

providing advanced life support. Plaintiffs’ complaint alleged in count

I that defendants were negligent and in count II that defendants had

engaged in willful and wanton misconduct.

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Defendants moved to dismiss the negligence count pursuant to

section 2–619(a)(9) of the Code (735 ILCS 5/2–619(a)(9) (West

2000)), claiming immunity under section 3.150 of the EMS Act (210

ILCS 50/3.150 (West 2000)). In October 1999, the circuit court

dismissed plaintiffs’ negligence claim with prejudice and continued the

cause of action as to the willful and wanton misconduct count. On

July 25, 2002, the circuit court granted plaintiffs’ motion to

voluntarily dismiss the willful and wanton misconduct count.

On July 23, 2003, plaintiffs refiled their wrongful-death action,

setting forth only one count for willful and wanton misconduct

(Hudson II). The refiled complaint additionally claimed that prior to

November 25, 1998, defendant City of Chicago knew that George Jr.

had previously suffered serious asthmatic episodes at his home.

Defendants moved to dismiss Hudson II pursuant to section 2–619

of the Code (735 ILCS 5/2–619 (West 2000)), claiming that it was

barred by res judicata. The circuit court agreed with defendants’

argument that the dismissal of plaintiffs’ negligence claim in Hudson

I constituted an adjudication on the merits and that res judicata bars

not only matters that were determined in the first action, but also

matters that could have been determined in the original action. The

circuit court therefore held that res judicata barred plaintiffs’ willful

and wanton claim and granted defendants’ motion to dismiss plaintiffs’

refiled action.

Plaintiffs appealed, contending that the circuit court improperly

dismissed Hudson II based on res judicata. The appellate court

affirmed, relying on Rein v. David A. Noyes & Co., 172 Ill. 2d 325

(1996), and held that res judicata barred plaintiffs from refiling their

willful and wanton misconduct claim.

ANALYSIS

The central issue is whether the involuntary dismissal of plaintiffs’

negligence claim and plaintiffs’ subsequent voluntary dismissal of their

remaining willful and wanton misconduct claim barred the refiling of

their willful and wanton misconduct claim under the doctrine of res

judicata. Plaintiffs contend that the appellate court erred in concluding

that the willful and wanton misconduct claim in Hudson II was barred

by res judicata because there was no final adjudication on the merits

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of their voluntarily dismissed willful and wanton misconduct claim in

Hudson I. Defendants maintain that the dismissal of plaintiffs’

negligence count in Hudson I was a final adjudication on the merits

for purposes of res judicata and that, applying this court’s decision in

Rein, res judicata bars plaintiffs’ willful and wanton misconduct claim.

We agree with defendants and hold that plaintiffs’ refiled willful and

wanton misconduct claim is barred by res judicata.

“The doctrine of res judicata provides that a final judgment on the

merits rendered by a court of competent jurisdiction bars any

subsequent actions between the same parties or their privies on the

same cause of action.” Rein, 172 Ill. 2d at 334. Res judicata bars not

only what was actually decided in the first action but also whatever

could have been decided. La Salle National Bank v. County Board of

School Trustees, 61 Ill. 2d 524, 529 (1975). Three requirements must

be satisfied for res judicata to apply: (1) a final judgment on the

merits has been rendered by a court of competent jurisdiction; (2) an

identity of cause of action exists; and (3) the parties or their privies are

identical in both actions. Downing v. Chicago Transit Authority, 162

Ill. 2d 70, 73-74 (1994).

Plaintiffs do not dispute that the second and third requirements are

met here. Plaintiffs contend, however, that the first element is not

satisfied because the willful and wanton misconduct count was never

adjudicated on the merits. Plaintiffs concede that their negligence

claim was dismissed on the merits in Hudson I. The trial court

dismissed the negligence count based on the defendants’ statutory

immunity, and Supreme Court Rule 273 provides that “an involuntary

dismissal of an action, other than a dismissal for lack of jurisdiction,

for improper venue, or for failure to join an indispensable party,

operates as an adjudication upon the merits” (134 Ill. 2d R. 273).

Accordingly, the involuntary dismissal of plaintiffs’ negligence claim

in Hudson I constituted an adjudication on the merits for res judicata

purposes.

After their negligence count was dismissed on the merits, plaintiffs

voluntarily dismissed their willful and wanton count pursuant to

section 2–1009(a) of the Code (735 ILCS 5/2–1009(a) (West 2000)).

Section 2–1009(a) provides that “[t]he plaintiff may, at any time

before trial or hearing begins, *** dismiss his or her action or any part

thereof as to any defendant, without prejudice, by order filed in the

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cause.” 735 ILCS 5/2–1009(a) (West 2000). Once the voluntary

dismissal was entered, Hudson I was terminated in its entirety and all

final orders became immediately appealable. See Dubina v. Mesirow

Realty Development, Inc., 178 Ill. 2d 496, 503 (1997). Approximately

one year later, plaintiffs refiled their willful and wanton claim in

Hudson II, purportedly pursuant to section 13–217 of the Code. This

section provides:

“Reversal or dismissal. In the actions specified in Article

XIII of this Act or any other act or contract where the time for

commencing an action is limited, if judgment is entered for the

plaintiff but reversed on appeal, or if there is a verdict in favor

of the plaintiff and, upon a motion in arrest of judgment, the

judgment is entered against the plaintiff, or the action is

voluntarily dismissed by the plaintiff, or the action is dismissed

for want of prosecution, or the action is dismissed by a United

States District Court for lack of jurisdiction, or the action is

dismissed by a United States District Court for improper

venue, then, whether or not the time limitation for bringing

such action expires during the pendency of such action, the

plaintiff, his or her heirs, executors or administrators may

commence a new action within one year or within the

remaining period of limitation, whichever is greater, after such

judgment is reversed or entered against the plaintiff, or after

the action is voluntarily dismissed by the plaintiff, or the action

is dismissed for want of prosecution, or the action is dismissed

by a United States District Court for lack of jurisdiction, or

the action is dismissed by a United States District Court for

improper venue.” 735 ILCS 5/13–217 (West 1994).1

This filing by plaintiffs was not a continuation of Hudson I, but rather

an entirely new action. See Dubina, 178 Ill. 2d at 504. Plaintiffs

contend that they were entitled to proceed with Hudson II because, as

1

This version of section 13–217 preceded the amendments of Public Act

89–7, §15, eff. March 9, 1995. This court found Public Act 89–7

unconstitutional in its entirety in Best v. Taylor Machine Works, 179 Ill. 2d

367 (1997). The version of section 13–217 currently in effect is, therefore,

the version that preceded the amendments of Public Act 89–7. See Unzicker

v. Kraft Food Ingredients Corp., 203 Ill. 2d 64, 71 n.1 (2002).

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far as their willful and wanton misconduct claim was concerned, there

was no order that was both final and meritorious.

Defendants argue, and we agree, that plaintiffs’ argument is

defeated by this court’s decision in Rein. In Rein, the plaintiffs filed an

eight-count complaint (Rein I) alleging that the defendants

fraudulently misrepresented the character of certain securities that

they had sold to the plaintiffs. In some of the counts, the plaintiffs

sought rescission of the purchase pursuant to section 13 of the Illinois

Securities Law of 1953 (Ill. Rev. Stat. 1989, ch. 121½, par.

137.13(A)(1)). In other counts, the plaintiffs alleged common law

fraud and breach of fiduciary duty. The trial court dismissed three of

the rescission counts on statute of limitations grounds. The trial court

denied the plaintiffs’ request for a Rule 304(a) (155 Ill. 2d R. 304(a))

finding that there was no just reason to delay enforcement or appeal

of the dismissed rescission counts. Plaintiffs then voluntarily dismissed

the remaining counts of their complaint pursuant to section 2–1009(a)

of the Code. Plaintiffs appealed the dismissal of the rescission counts,

and the appellate court affirmed the dismissal. See Rein, 172 Ill. 2d at

328-30.

After the unsuccessful appeal, and approximately 19 months after

voluntarily dismissing their remaining counts, plaintiffs refiled their

entire case, including the rescission counts that were the subject of the

unsuccessful appeal in Rein I in a complaint that was “virtually

identical” to the complaint filed in Rein I. Rein, 172 Ill. 2d at 331. The

trial court dismissed plaintiffs’ complaint based on res judicata and

statute of limitations grounds. The appellate court affirmed the

dismissal of plaintiffs complaint. Rein v. David A. Noyes & Co., 271

Ill. App. 3d 768 (1995). The majority held that both the rescission

counts and the common law counts were barred by res judicata. One

justice dissented, arguing that res judicata did not bar the common

law counts. Rein, 271 Ill. App. 3d at 775-78 (Rathje, J., dissenting).

On appeal, this court affirmed the appellate court majority. This

court first held that the rescission counts were clearly barred by res

judicata. Those counts had been dismissed on statute of limitations

grounds in Rein I, and the dismissal was upheld on appeal. Rein, 172

Ill. 2d at 334-36.

This court next discussed the common law counts, which had been

voluntarily dismissed by the plaintiffs after the dismissal of the

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rescission counts. This court explained that three requirements must

be met for res judicata to apply. There must be: (1) a final judgment

on the merits rendered by a court of competent jurisdiction; (2)

identity of cause of action; and (3) identity of parties or their privies.

Rein, 172 Ill. 2d at 337. The court then determined that all three of

these requirements had been met with respect to the counts that

plaintiffs had voluntarily dismissed. Rein, 172 Ill. 2d at 338-39. This

court determined that there was an identity of parties (Rein, 172 Ill.

2d at 338) and an identity of causes of action (Rein, 172 Ill. 2d at 338-

39). With respect to whether there was an adjudication on the merits

of the voluntarily dismissed counts, this court held the following:

“The first element of res judicata is met here because the

dismissal of the rescission counts with prejudice in Rein I

operates as an adjudication on the merits for purposes of res

judicata, as explained earlier. Although there was not an

adjudication on the merits of the common law counts in Rein

I, the concept of res judicata is broader than plaintiffs suggest.

If the three elements necessary to invoke res judicata are

present, res judicata will bar not only every matter that was

actually determined in the first suit, but also every matter that

might have been raised and determined in that suit. Torcasso

v. Standard Outdoor Sales, Inc., 157 Ill. 2d 484, 490 (1993).

Therefore, if the three requirements of res judicata are met

and the common law counts could have been determined in

Rein I, plaintiffs will be barred from litigating the common law

counts in Rein II.

***

Because the common law counts arise out of the same set

of operative facts as the rescission counts, plaintiffs could

have litigated and resolved these claims in Rein I. Having

failed to do so, plaintiffs are barred by the doctrine of res

judicata from attempting to raise and litigate them in Rein II,

even though there was no adjudication on the merits of these

claims in the prior suit. See Restatement (Second) of

Judgments §24 (1982).” Rein, 172 Ill. 2d at 337-39.

After holding that the voluntarily dismissed counts were barred by res

judicata, this court next discussed the policy against claim-splitting.

This court explained that the principle that res judicata prohibits a

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party from seeking relief on the basis of issues that could have been

resolved in a previous action serves to prevent parties from splitting

their claims into multiple actions. Rein, 172 Ill. 2d at 339-42. This

court then adopted the exceptions to claim-splitting set forth in

section 26(1) of the Restatement (Second) of Judgments (1982).

Under this section, the rule against claim-splitting would not bar a

second action if:

“(1) the parties have agreed in terms or in effect that plaintiff

may split his claim or the defendant has acquiesced therein; (2)

the court in the first action expressly reserved the plaintiff's

right to maintain the second action;[2] (3) the plaintiff was

unable to obtain relief on his claim because of a restriction on

the subject-matter jurisdiction of the court in the first action;

(4) the judgment in the first action was plainly inconsistent

with the equitable implementation of a statutory scheme; (5)

the case involves a continuing or recurrent wrong; or (6) it is

2

The comments to section 26 of the Restatement indicate that an example

of a court expressly maintaining a plaintiff’s right to maintain a second

action may be when the court indicates that its judgment is without prejudice

to the bringing of a second action. See Restatement (Second) of Judgments

§26(1), Comment b (1982). This comment further references section

20(1)(b), and Comment f-i thereto (Restatement (Second) of Judgments

§20(1)(b), Comments f through i (1982)), which sets forth the unremarkable

proposition that a voluntary dismissal of an action is typically without

prejudice to the bringing of a second action. When commenting on this

particular exception to claim-splitting, this court explained in Rein that the

use of “without prejudice” language is not sufficient to protect a plaintiff

against the bar of res judicata when another part of plaintiff’s case has gone

to final judgment in a previous action: “the trial judge’s granting plaintiffs’

motion to voluntarily dismiss the common law counts without prejudice

under section 2–1009 should not be interpreted as immunizing plaintiffs

against defenses defendants may raise when the voluntarily dismissed counts

were refiled.” Rein, 172 Ill. 2d at 342. As Rein pointed out, a plaintiff could

not file a complaint with multiple counts, take a voluntarily dismissal without

prejudice of some of the counts, pursue the undismissed counts to final

judgment, and then harass the defendant with successive suits simply because

the dismissals of those counts were entered “without prejudice.” Rein, 172

Ill. 2d at 343.

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clearly and convincingly shown that the policies favoring

preclusion of a second action are overcome for an

extraordinary reason.” Rein, 172 Ill. 2d at 341.

The court found that none of these exceptions were present. Rein, 172

Ill. 2d at 341-42. Next, this court addressed plaintiffs’ claim that

sections 2–1009 and 13–217 of the Code gave them an absolute right

to refile the voluntarily dismissed counts within one year or within the

remaining period of limitations. This court acknowledged plaintiffs’

rights under these sections, but held that these legislatively created

rights did not automatically immunize plaintiffs against res judicata or

any other legitimate defenses that a defendant might assert. Rein, 172

Ill. 2d at 342-43. Finally, this court noted two policy justifications for

its holding. First, it would prevent a party from filing an action with

multiple claims, dismissing several of the counts, obtaining a final

judgment on the undismissed counts and, if unsuccessful on the counts

not dismissed, refiling the previously dismissed counts. Second, it

would prohibit plaintiffs from using voluntary dismissals to circumvent

a judge’s refusal of a Rule 304(a) certification. Rein, 172 Ill. 2d at

343.

Rein thus stands for the proposition that a plaintiff who splits his

claims by voluntarily dismissing and refiling part of an action after a

final judgment has been entered on another part of the case subjects

himself to a res judicata defense. Once the holding of Rein is

understood, the analysis in the present case becomes an unremarkable

exercise. If we simply insert the case names and the types of counts

from this case into the above-quoted passage from Rein, we would get

the following:

“The first element of res judicata is met here because the

dismissal of the [negligence count] with prejudice in [Hudson

I] operates as an adjudication on the merits for purposes of res

judicata, as explained earlier. Although there was not an

adjudication on the merits of the [willful and wanton count] in

[Hudson I], the concept of res judicata is broader than

plaintiffs suggest. If the three elements necessary to invoke res

judicata are present, res judicata will bar not only every

matter that was actually determined in the first suit, but also

every matter that might have been raised and determined in

that suit. Torcasso v. Standard Outdoor Sales, Inc., 157 Ill. 2d

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484, 490 (1993). Therefore, if the three requirements of res

judicata are met and the [willful and wanton count] could

have been determined in [Hudson I], plaintiffs will be barred

from litigating the [willful and wanton count] in [Hudson II].

***

Because the [willful and wanton count] arises out of the

same set of operative facts as the [negligence count], plaintiffs

could have litigated and resolved [this claim] in [Hudson I].

Having failed to do so, plaintiffs are barred by the doctrine of

res judicata from attempting to raise and litigate [it] in

[Hudson II], even though there was no adjudication on the

merits of [this claim] in the prior suit.”3 See Rein, 172 Ill. 2d

at 337-39.

We next look to see if any of the exceptions to the rule against claim-

splitting are applicable. See Rein, 172 Ill. 2d at 341. Just as none of

them were present in Rein, none of them are present here.

Accordingly, Rein compels an affirmance of the appellate court’s

decision.

Plaintiffs and ITLA take two different approaches in trying to

avoid this clearly controlling authority. Plaintiffs argue that Rein is

distinguishable, while ITLA argues that Rein was right for the wrong

reason. According to ITLA, Rein reached the correct result but the

analysis it used threatens separation of powers principles. We address

plaintiffs’ arguments first.

Plaintiffs first contend that Nowak v. St. Rita High School, 197 Ill.

2d 381 (2001), is more similar to this case than Rein and that Nowak

compels a reversal of the appellate court. This argument is easily

3

If there was any doubt whether this court viewed the refiling of a

voluntarily dismissed count as a new action, it was resolved in Dubina v.

Mesirow Realty Development, Inc., 178 Ill. 2d 496, 504 (1997), in which

this court explained that a refiled count was a new, distinct action. Thus,

when a plaintiff voluntarily dismisses the remaining part of an action, all

final orders in the old action become immediately appealable. The refiling of

the voluntarily dismissed count does not transform the final orders entered

in the previous case into nonfinal ones, because the refiling commences a

new action. Dubina, 178 Ill. 2d at 503-04.

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refuted. In Nowak, the plaintiff sought recovery for a violation of the

Americans with Disabilities Act of 1990 (ADA) (42 U.S.C. §12101 et

seq. (1994 & Supp. 1997)). He brought his action, along with a

pendent state claim, in federal court. The district court granted the

defendant summary judgment on the ADA claim, finding that the

plaintiff was not a “qualified individual” under the ADA. The court

then exercised its statutory discretion to decline jurisdiction over the

pendent state claim and dismissed that claim for lack of jurisdiction.

When the plaintiff refiled the state claim in state court, the defendant

argued that it was barred by res judicata. This court agreed with the

appellate court’s conclusion that res judicata did not bar the claim.

The defendant in Nowak relied on River Park, Inc. v. City of Highland

Park, 184 Ill. 2d 290 (1998), in which this court held that a plaintiff

was barred by res judicata from bringing claims in state court that he

could have asserted in a previous federal action. This court

distinguished River Park as follows:

“Because plaintiff was required to assert all of its related

claims in the federal action, and failed to do so, and because

the dismissal of the federal action constituted an adjudication

on the merits for purposes of Supreme Court Rule 273 (134

Ill. 2d R. 273), we found that the doctrine of res judicata had

been properly applied by the circuit court to bar the

subsequent assertion of claims that should have been raised in

the federal action.

In this case, plaintiff asserted his contract tenure claim in

the federal action, as required by the transactional test, only to

have his claim dismissed by the district court ‘for lack of

jurisdiction’ after an adverse decision on his ADA claim.

Whether that dismissal was discretionary or otherwise is

beside the point; it was a dismissal for lack of jurisdiction.

There was no adjudication of the merits on that claim despite

plaintiff’s proper and timely assertion of the claim. With

respect to that timely asserted claim, plaintiff did not get his

day in court and, therefore, res judicata does not apply.”

(Emphases in original.) Nowak, 197 Ill. 2d at 392.

Plaintiffs argue that Nowak is indistinguishable from the present

case, focusing on the above statement that “there was no adjudication

of the merits on that claim despite plaintiff’s proper and timely

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assertion of the claim.” However, the very next sentence shows why

the two cases are different. The plaintiff in Nowak did not get his day

in court on his dismissed state law claim. The federal court declined

to exercise jurisdiction over that claim, so plaintiff had not had the

opportunity to litigate that claim when he filed it in state court. By

contrast, plaintiffs here, just like the plaintiffs in Rein, did have the

opportunity to litigate all of their claims. However, they chose to

voluntarily dismiss part of their case and commence a second action,

after part of their case had been finally determined in a previous

action. Thus, it is the following passage from Rein, rather than the

above passage from Nowak, that applies to plaintiffs:

“Thus, following the final adjudication of the rescission counts

in Rein I, plaintiffs were barred from litigating the common

law counts in a subsequent action. To avoid the bar of res

judicata, plaintiffs could have proceeded to a decision on the

merits of the common law counts in Rein I and, if

unsuccessful, appealed both the result regarding the common

law counts and the trial judge’s order dismissing the rescission

counts with prejudice. By failing to proceed on the common

law counts in the first action, plaintiffs are barred from

attempting to litigate those issues in a subsequent suit. See

Restatement (Second) of Judgments §24 (1982).” Rein, 172

Ill. 2d at 340.

We also noted above that Rein relied on the Restatement (Second) of

Judgments in setting forth six exceptions to the rule against claim-

splitting and determined that none of the exceptions were present in

Rein. By contrast, the situation in Nowak falls squarely within the third

of these exceptions: “the plaintiff was unable to obtain relief on his

claim because of a restriction on the subject-matter jurisdiction of the

court in the first action.” See Rein, 172 Ill. 2d at 341. Nowak is plainly

distinguishable.

Plaintiffs next argue that Rein is distinguishable and does not apply

here. According to plaintiffs, Rein set forth a “case-specific, anti-abuse

doctrine.” Plaintiffs bypass Rein’s holding on the res judicata issue

and focus in on the two policy considerations that Rein gave in

support of its holding: (1) that a contrary holding would mean that any

plaintiff could file a complaint with multiple counts, voluntarily

dismiss some, proceed to judgment on the undismissed counts and, if

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unsuccessful, refile the other counts; and (2) a contrary holding would

emasculate Rule 304(a) by allowing plaintiffs to use voluntary

dismissals as a means to appeal when a trial judge denies a plaintiff’s

request to make a Rule 304(a) finding. See Rein, 172 Ill. 2d at 343.

This, however, was not Rein’s holding, nor was it Rein’s explanation

of why res judicata applied. These were simply policy reasons that the

court gave in favor of the result it had already reached. Rein’s holding

on the res judicata issue, which we have discussed in detail above,

was stated several paragraphs earlier in the opinion. This court held

that res judicata applied because all three elements of res judicata

were present. Moreover, we do not find any indication in Rein that its

holding was meant to be limited to these two situations.

Plaintiffs seem to have no quarrel with the proposition that res

judicata would apply to the first of the two situations described in

Rein. The second of the two situations is closer to what happened

here, except for the fact that the attorney here did not seek Rule

304(a) language after the negligence count was dismissed and did not

appeal that dismissal when it became appealable.4 This, however, is a

distinction without a difference. An attorney’s subjective motivation

in taking a voluntary dismissal is not part of a res judicata analysis. As

Rein recognized, three factors determine whether res judicata applies:

(1) a final judgment on the merits rendered by a court of competent

jurisdiction; (2) identity of cause of action; and (3) identity of parties

or their privies. Rein, 172 Ill. 2d at 337. Rein’s discussion of why

these factors were met applies equally here.

If Rein’s central thesis–that if there is an adjudication on the merits

of one claim in a case, this determination will have res judicata effect

on the filing of any other claims that could have been raised and

determined in the first case–is accepted, there are only two possible

ways to reach different results in Rein and the present case. One

possibility is that res judicata generally does not apply to the refiling

of voluntarily dismissed counts after a final, appealable judgment has

4

It appears that this was not a conscious choice by plaintiffs. Defendants

have asked this court to take judicial notice of Cook County circuit court

case No. 04–L–008252, in which plaintiffs are suing their original trial

attorney for malpractice for, inter alia, failing to appeal the dismissal of their

negligence count.

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been entered in the first case, but that this court decided to apply that

doctrine in Rein anyway because it did not like the behavior of the

plaintiffs’ attorneys. The other possibility is that res judicata generally

does apply to the refiling of voluntarily dismissed counts after a final

appealable judgment has been entered in the first case, but that some

exception applies here. It cannot be the first of these two possibilities,

because surely no one would argue that courts are free to invoke

wholly inapplicable legal doctrines as punitive measures. Thus, if Rein

is distinguishable it would have to be on the basis that an exception to

res judicata applies here. However, as we noted above, this court in

Rein set forth the six situations in which it would be inequitable to

apply the rule against claim splitting, and none of those exceptions are

present here.

Plaintiffs refer to Rein as a “pernicious error” and complain that

applying Rein here would mean that “whenever any count in a multi-

count complaint is dismissed on the merits, none of the surviving

counts may be voluntarily dismissed and subsequently refiled.”

Plaintiffs are incorrect. This court has set forth six situations in which

plaintiffs will be allowed to split their claims into multiple actions.

Moreover, one of these situations is if the defendant acquiesces in the

claim-splitting. Rein, 172 Ill. 2d at 341. Thus, if an attorney is

considering taking a voluntary dismissal after a final judgment has

been entered on part of his case, he can seek the defendant’s

acquiescence in the refiling. If the defendant is unwilling to do so, then

the attorney will know that he proceeds at his peril.

Finally, plaintiffs argue that Rein will have a chilling effect on

plaintiffs’ willingness to allege novel or speculative theories of

recovery. According to plaintiffs, a party will have to think twice

about adding novel or speculative theories of recovery to a complaint

because that party may lose his or her right to take a voluntary

dismissal and to refile the complaint if the novel or speculative counts

are dismissed on the merits. Defendants respond that plaintiffs are as

free after Rein as before to bring novel or speculative claims.

Moreover, they are still free to voluntarily dismiss and refile, as long

as they do so before any final judgments are entered in the case.

Defendants contend that the only effect of Rein is that plaintiffs who

have both sound claims and speculative ones may have to weigh

whether it is more important to take a chance with the speculative

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claim or to have a better chance of being able to maintain an absolute

right to voluntarily dismiss and refile. The stronger the claim, the

greater the likelihood that a plaintiff will opt to include it. For more

speculative or frivolous claims, however, there will be an incentive for

the plaintiff to think twice about including it. Defendants see nothing

wrong with such a result and argue that, had plaintiffs themselves not

insisted on bringing a negligence suit against an entity that is

statutorily immune from negligence suits, they would not be in the

predicament they find themselves in today. Be that as it may, we add

once more that Rein allows plaintiffs to claim-split in six different

situations, and one of these is if the defendant acquiesces.

ITLA, as amicus curiae, argues that the result in Rein was correct

but that the court’s res judicata analysis was not. ITLA argues that

the real problem in Rein was that the plaintiffs attempted to use a

voluntary dismissal as a way to avoid the trial court’s denial of Rule

304(a) language. ITLA seizes on the following sentence from Rein:

“Moreover, an interpretation contrary to that reached here would

emasculate Rule 304(a) by allowing a plaintiff to circumvent a trial

judge’s denial of a Rule 304(a) certification by refiling previously

dismissed counts following an unsuccessful judgment or appeal on

counts not previously dismissed.” Rein, 172 Ill. 2d at 343. ITLA

points out that this court has previously recognized the legislative

prerogative in enacting sections 2–1009 and 13–217, while at the

same time maintaining this court’s right to regulate the judicial system.

See Gibellina v. Handley, 127 Ill. 2d 122 (1989); O’Connell v. St.

Francis Hospital, 112 Ill. 2d 273 (1986). ITLA maintains that this

court can use this rationale to clarify that Rein was meant to apply

only to those plaintiffs who use the voluntary dismissal and refile

procedure as a means of circumventing a trial court’s denial of Rule

304(a) language.

There are several problems with ITLA’s argument. First, it is

difficult to accept ITLA’s assertion that this court’s true concern in

Rein was that the plaintiffs used the voluntary nonsuit and refile

procedure as a means of circumventing the trial court’s denial of Rule

304(a) certification. It seems unlikely that, if this were the court’s true

concern, this court would have devoted a single sentence to the issue

and buried it at the end of an 11-paragraph discussion that was simply

window dressing. Rather, it seems clear that the court’s true concern

-15-

in Rein was exactly what this court stated it to be: the plaintiffs split

their claims into multiple actions. Their rescission counts were finally

resolved in Rein I, and they then instituted a new action, Rein II, in

which they wanted their common law counts to be resolved. See Rein,

172 Ill. 2d at 338-42.

Second, rewriting Rein in the manner ITLA suggests would not

address the other policy concern that this court raised in Rein. ITLA

ignores the two sentences immediately preceding the one mentioning

Rule 304(a). There, this court stated: “If plaintiffs were permitted to

proceed on their common law counts, any plaintiff could file an action

with multiple counts, dismiss some but not all of the counts, obtain a

final judgment on the undismissed counts, and if unsuccessful on the

counts not dismissed, refile the previously dismissed counts. Such a

practice would impair judicial economy and would effectively defeat

the public policy underlying res judicata, which is to protect the

defendant from harassment and the public from multiple litigation.”

Rein, 172 Ill. 2d at 343. ITLA fails to explain how rewriting Rein to

apply only to those plaintiffs who use the voluntary dismissal as a

means of circumventing the denial of Rule 304(a) certification would

address this concern, which the Rein court raised before even

mentioning Rule 304(a).

Third, ITLA fails to realize that Rein is already based on this

court’s right to regulate the judicial system. As defendants point out,

res judicata is a common law doctrine created by the courts to

regulate the judicial system, and it exists to avoid burdening the courts

and litigants with duplicative litigation. If a plaintiff uses sections

2–1009 and 13–217 to voluntarily dismiss and refile a claim after

another part of the cause of action has gone to final judgment in a

previous case, that plaintiff will have engaged in claim-splitting. Thus,

in Rein, this court acknowledged a plaintiff’s rights under sections

2–1009 and 13–217 but stated that “we do not believe that these

sections should be read to automatically immunize a plaintiff against

the bar of res judicata or other legitimate defenses a defendant may

assert in response to the refiling of voluntarily dismissed counts.”

Rein, 172 Ill. 2d at 342-43.

Fourth, ITLA fails to grasp the consequences of the rule it

proposes. For instance, would every plaintiff who takes a voluntary

dismissal after a denial of Rule 304(a) certification be barred from

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proceeding with a second action? How would the courts know which

plaintiffs are seeking to undermine the court’s authority and which

plaintiffs simply genuinely determine later that they need to voluntarily

dismiss? Further, under ITLA’s rule, the plaintiff who is determined

to appeal the dismissed counts at all costs would likely not even ask

for the Rule 304(a) certification before voluntarily dismissing the

remaining counts. This way, he or she would not have to run the risk

of having the request denied and later being accused of circumventing

the denial of Rule 304(a) certification. It appears, then, that rewriting

Rein in the manner ITLA proposes would emasculate Rule 304(a),

which is precisely what Rein claimed that it was trying to avoid. See

Rein, 172 Ill. 2d at 343.

Finally, ITLA suggests that rewriting Rein in the manner it

suggests is necessary to avoid violating the separation of powers

clause of the Illinois Constitution (Ill. Const. 1970, art. II, §1). ITLA

does not develop this argument or cite any authority, but merely

suggests that the analysis this court used in Rein shows that this court

is unduly interfering with the legislatively created right to voluntarily

dismiss and refile. There is simply no basis to this argument. Sections

2–1009 and 13–217 do not address the issues of claim-splitting or res

judicata. Section 2–1009 gives plaintiffs the right to voluntarily

dismiss an action, without prejudice, in whole or in part any time

before trial or hearing begins. 735 ILCS 5/2–1009(a) (West 2006).

Section 13–217 is part of article XIII of the Code, which is entitled

“Limitations.” This section sets forth the limitations period for, inter

alia, voluntarily dismissed actions. An action that is voluntarily

dismissed by the plaintiff may be refiled within one year or within the

remaining limitations period, whichever is greater. 735 ILCS

5/13–217 (West 1994). It is true that this court has referred to section

13–217 as providing a plaintiff with an “absolute” right to refile a

complaint within one year or within the remaining limitations period

(see Timberlake v. Illini Hospital, 175 Ill. 2d 159, 163 (1997);

Gendek v. Jehangir, 119 Ill. 2d 338, 340 (1988)), but this description

referred only to a plaintiff’s rights vis-a-vis the limitations period,

which is the only subject addressed by section 13–217. These sections

do not address what happens when a plaintiff commences a second

action after part of his cause of action has gone to final judgment in a

previous case. We see no basis for concluding that the legislature

-17-

intended in sections 2–1009 and section 13–217 to give plaintiffs an

absolute right to split their claims.

CONCLUSION

The appellate court concluded correctly that Rein is controlling.

As in Rein, plaintiffs commenced a new action after part of their

original cause of action had gone to final judgment in a previous case.

None of the exceptions to the rule against claim-splitting are present

here, and thus res judicata barred plaintiffs’ refiled complaint. We

therefore affirm the appellate court’s judgment.

Appellate court judgment affirmed.

JUSTICE BURKE took no part in the consideration or decision

of this case.

JUSTICE KILBRIDE, dissenting:

I respectfully dissent from the majority opinion because plaintiffs’

voluntary dismissal in Hudson I does not preclude plaintiffs from

reinstating their willful and wanton claim. When a plaintiff voluntarily

dismisses a claim or a lawsuit without prejudice, the plaintiff may

refile the claim without being barred by res judicata or the rule against

claim splitting.

In Rein, this court held that the plaintiffs’ common law claims that

were voluntarily dismissed without prejudice in an earlier lawsuit were

barred under the doctrine of res judicata because the plaintiffs were

splitting their claims to appeal the involuntary dismissal of their

rescission claims. In Rein, this court devoted much of its analysis to

the rule against claim-splitting and relied on the rule to support its

holding that res judicata barred the plaintiffs from refiling their

common law claims. In Rein, this court did not confine its ruling to

cases involving claim-splitting.

I believe Rein reached the right result under the circumstances, but

for the wrong reasons. I believe this court should now take the

opportunity to limit or overrule Rein. Rein has proven unworkable,

particularly in cases not involving any improper claim-splitting. This

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court’s decision in Rein was based largely on public policy concerns

and not upon sound legal principles. Once the faulty underpinnings of

Rein are understood, the foundation of Rein’s rationale crumbles.

In Rein, this court misconstrued the relationship between section

2–1009 of the Code of Civil Procedure (Code) (735 ILCS 5/2–1009

(West 2002)), section 13–217 of the Code (735 ILCS 5/13–217 (West

2002)), and Supreme Court Rule 273 (134 Ill. 2d R. 273), and then

misapplied the doctrine of res judicata and the rule against claim-

splitting.

“The doctrine of res judicata provides that a final judgment

rendered by a court of competent jurisdiction on the merits 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.” Nowak v. St. Rita High

School, 197 Ill. 2d 381, 389 (2001). Res judicata applies to bar issues

that were actually decided in the first action, as well as matters that

could have been decided. La Salle National Bank v. County Board of

School Trustees, 61 Ill. 2d 524, 529 (1975). Three requirements must

be satisfied for the doctrine of res judicata to apply: (1) a final

judgment on the merits rendered by a court of competent jurisdiction,

(2) an identity of cause of action, and (3) identity of the parties or

their privies. Nowak, 197 Ill. 2d at 390.

The res judicata analysis in Rein was faulty because it

misconstrued Supreme Court Rule 273 in concluding that there was

a final judgment on the merits. Rein v. David A. Noyes & Co., 172 Ill.

2d 325, 336 (1996). Rule 273 provides that under certain

circumstances, an involuntary dismissal “operates as an adjudication

upon the merits.” 134 Ill. 2d R. 273. Rule 273 does not, however,

provide that an adjudication on the merits is a “final” judgment on the

merits, as required for res judicata to apply.

A final judgment is “a determination by the court on the issues

presented by the pleadings which ascertains and fixes absolutely and

finally the rights of the parties in the lawsuit.” Flores v. Dugan, 91 Ill.

2d 108, 112 (1982). In Flores, this court held that a dismissal for want

of prosecution is not a final and appealable order because the plaintiffs

had the absolute right to refile their cause of action pursuant to section

24 of the Limitations Act (Ill. Rev. Stat. 1979, ch. 83, par. 24a), the

predecessor to section 13–217. Flores, 91 Ill. 2d at 111-12. The court

-19-

reasoned that “since the plaintiffs had an absolute right to refile the

action within the statutory limits, the order of dismissal could not

terminate the litigation.” Flores, 91 Ill. 2d at 114. The court further

noted that the order of dismissal itself stated that it was entered

without prejudice, clearly manifesting the intent of the circuit court

that the dismissal order not be considered final and appealable. Flores,

91 Ill. 2d at 114.

The involuntary dismissal of the plaintiffs’ rescission counts in

Rein I on statute of limitation grounds was clearly an adjudication on

the merits under Rule 273. It was not, however, a “final” judgment in

the lawsuit as defined by this court. Thus, in Rein, this court

misapplied Rule 273.

Rein also erroneously relied on Downing v. Chicago Transit

Authority, 162 Ill. 2d 70 (1994), to support its conclusion that an

involuntary dismissal operates as a final judgment on the merits for

purposes of res judicata. In Downing, this court examined whether a

summary judgment was a prior adjudication on the merits for res

judicata purposes. Downing, 162 Ill. 2d at 73-75. Downing noted

that, under Rule 273, involuntary dismissals operate as judgments on

the merits. Downing, 162 Ill. 2d at 75. However, Downing found Rule

273 inapplicable because a summary judgment is not an involuntary

dismissal. Downing, 162 Ill. 2d at 75. The court then determined that

a summary judgment on statute of limitation grounds was not an

adjudication on the merits because the merits of the action were never

examined, and res judicata was inapplicable. Downing, 162 Ill. 2d at

77. The court commented:

“To label such an order as an adjudication on the merits would

be the quintessential act of exalting form over substance.

Courts cannot ignore the basis on which the summary

judgment was granted. If *** that basis bears no relationship

to the actual merits of the case, it would be inappropriate to

apply the doctrine of res judicata ***.” Downing, 162 Ill. 2d

at 77.

Downing stated that an involuntary dismissal operates as a

judgment on the merits. Downing, 162 Ill. 2d at 75. Downing did not,

however, determine that an involuntary dismissal operates as a “final”

judgment on the merits. Accordingly, Rein inappropriately relied on

-20-

Downing in concluding that the involuntary dismissal of the plaintiffs’

rescission counts operated as a final judgment on the merits.

I believe the appellate court in Rein I erroneously assumed that it

had jurisdiction to hear the initial appeal when there was no final and

appealable judgment in the lawsuit. Rule 273 only applies to

“involuntary” dismissals. See Downing, 162 Ill. 2d at 75 (“Rule 273

applies only to an involuntary dismissal of an action, such as when a

motion to dismiss under section 2–615 or section 2–619 of the Code

of Civil Procedure is granted”). The plaintiffs’ voluntary dismissal,

without prejudice, of their common law claims in Rein I was clearly

not an adjudication on the merits under Rule 273, nor was it a final

judgment. Unfortunately, this court has not examined whether the

appeal in Rein I was proper. It is clear that, under our supreme court

rules, a voluntary dismissal is not a final, appealable order.

The Illinois Constitution vests this court with the authority to

make rules governing appeals. Ill. Const. 1970, art. VI, §§6, 16.

Appeals from final judgments of the circuit court are as a matter of

right to the appellate court and the supreme court may provide by rule

for appeals to the appellate court from other than final judgments of

the circuit courts. Ill. Const. 1970, art. VI, §6. Supreme Court Rule

301 (155 Ill. 2d R. 301) provides that “[e]very final judgment of a

circuit court in a civil case is appealable as of right.” Supreme Court

Rule 304 (210 Ill. 2d R. 304) provides for appeals from final

judgments as to fewer than all the parties or claims. Supreme Court

Rules 306, 307, and 308 (155 Ill. 2d Rs. 306, 307, 308) provide for

appeals from certain specified interlocutory orders of the court.

Voluntary dismissals without prejudice are not final appealable orders

under the provisions of our supreme court rules. See Flores, 91 Ill. 2d

at 114 (order stating cause is dismissed “without prejudice” is not a

final and appealable order).

Applying our supreme court rules to Rein I, there can be no

question that the plaintiffs’ voluntary dismissal of their common law

claims did not convert the involuntary dismissal of the rescission

counts into a final and appealable order because the plaintiffs had the

option to refile their voluntarily dismissed claims under section

2–1009(a) of the Code. Section 2–1009(a) provides that “[t]he

plaintiff may, at any time before trial or hearing begins, *** dismiss his

or her action or any part thereof as to any defendant, without

-21-

prejudice, by order filed in the cause.” (Emphasis added.) 735 ILCS

5/2–1009(a) (West 2002). Since a dismissal under section 2–1009(a)

is without prejudice, section 2–1009(a) protects a plaintiff’s right to

refile the voluntarily dismissed action.

Rein’s conclusion that the plaintiffs’ voluntary dismissal of their

common law claims made the involuntary dismissal of the rescission

claims final and appealable is in direct conflict with other decisions of

this court. Prior to Rein, this court consistently held that entry of a

dismissal order cannot be considered final and appealable by a plaintiff

during the time when the refiling option is available under section

13–217 because a plaintiff has an absolute right to refile the action

under section 13–217. See Flores, 91 Ill. 2d 108; Wold v. Bull Valley

Management Co., 96 Ill. 2d 110 (1983); Kahle v. John Deere Co.,

104 Ill. 2d 302 (1984).

In Flores, this court held that a dismissal for want of prosecution

is not a final and appealable order under Rule 301, in light of a

plaintiff’s absolute right to refile the suit. Flores, 91 Ill. 2d at 111-14.

Following Flores, this court held in Wold that an order of dismissal for

want of prosecution is not a final and appealable order since plaintiffs

had the absolute right to refile the action. Wold, 96 Ill. 2d at 112. This

court extended Flores and Wohl to voluntary dismissals in Kahle, 104

Ill. 2d 302.

In Kahle, this court recognized that a plaintiff cannot appeal from

an order voluntarily dismissing a claim without prejudice because

section 13–217 gives the plaintiff the absolute right to refile the case,

thereby protecting plaintiffs from prejudice. Kahle, 104 Ill. 2d at 305-

06. Kahle did, however, hold that an order granting a plaintiff’s

voluntary dismissal after trial has begun is final and appealable by a

defendant. Kahle, 104 Ill. 2d at 307. Kahle’s rationale was based on

prejudice to the defendant, when no court would be able to determine

defendant’s contentions of error because plaintiff’s refiled case was a

new case that constituted a separate cause of action. Kahle, 104 Ill.

2d at 306. “Kahle did not go so far as to make voluntary dismissals

the jurisdictional basis from which nonappealable judgments could be

appealed. Rather, the court made it abundantly clear that the only

proper subject on appeal was the propriety of granting a voluntary

dismissal” after trial had begun. Saddle Signs, Inc. v. Adrian, 272 Ill.

App. 3d 132, 136 (1995).

-22-

Thus, in Rein, this court incorrectly assumed that the plaintiffs’

appeal in Rein I was proper. This incorrect assumption was further

perpetuated in Dubina v. Mesirow Realty Development, Inc., 178 Ill.

2d 496 (1997), when this court held that the plaintiffs’ voluntary

dismissal made all prior orders entered in the action final and

appealable. Although I agree with the result in Dubina, that the

defendants were permitted to appeal because they were prejudiced by

the plaintiff’s voluntary dismissal, Dubina should have relied on Kahle

for its rationale, rather than on Rein since Rein did not examine the

appealability of the issues. Under Kahle, an order granting a plaintiff’s

voluntary dismissal is considered final and appealable solely by the

defendant on the limited question of whether the trial court erred in

granting a voluntary dismissal after commencing trial.

Further, Dubina relied on a string of appellate court cases in

concluding that “[i]t is well settled that final orders entered in a case

become appealable following a voluntary dismissal.” Dubina, 178 Ill.

2d at 503, citing Maggini v. OSF Healthcare System, 256 Ill. App. 3d

551, 552-53 (1994); Dubina also cited to Rein v. David A. Noyes &

Co., 230 Ill. App. 3d 12, 15 (1992), Howard v. Druckenmiller, 238

Ill. App. 3d 937, 940-41 (1992), and Reagan v. Baird, 140 Ill. App.

3d 58, 62-63 (1985). However, all of these cases were based on a

misinterpretation of existing precedent and a misreading of Kahle. The

appellate court’s confusion is understandable because this court’s

precedent on appeals following a voluntary dismissal has been less

than clear. For example, Swisher v. Duffy, 117 Ill. 2d 376, 379 (1987),

filed just three years after Kahle, cited Kahle as holding “that a

voluntary dismissal is a final and appealable order.” Clearly, as

explained earlier, Kahle was limited to allowing defendants to appeal

from a plaintiff’s voluntary dismissal after trial had begun, and its

holding was not as broad as suggested in Swisher. Then, in Dubina,

this court allowed a defendant to appeal from the dismissal of its

contribution claims following the plaintiff’s voluntary dismissal.

Dubina reasoned that the defendant was not appealing from the

voluntary dismissal order itself but, rather, the defendant sought to

appeal from the order dismissing its contribution claims. It is not

surprising that our decisions have led to inconsistent and unpredictable

results in the appellate court.

-23-

This court should clarify that a plaintiff’s voluntary dismissal is not

the jurisdictional basis for an appeal. Rather, the rule created in

Flores, Wold, and Kahle prohibits plaintiffs from taking an appeal

from a voluntary dismissal, but permits defendants to take an appeal

from a plaintiff’s voluntary dismissal upon a showing of prejudice.

This court has also been less than clear in determining whether a

plaintiff’s refiled complaint constitutes a new action or a continuation

of a voluntarily dismissed action. In Dubina, this court noted that “the

refiled action is an entirely new and separate action, not a

reinstatement of the old action.” Dubina, 178 Ill. 2d at 504. Dubina,

in turn, relied on Swisher, 117 Ill. 2d at 379, Kahle, 104 Ill. 2d at 306,

Neuman v. Burstein, 230 Ill. App. 3d 33, 36 (1992), Lyon v. Hasbro

Industries, Inc., 156 Ill. App. 3d 649, 656 (1987), and section 13–217

of the Code (735 ILCS 5/13–217 (West 2004)) for its conclusion that

the original and refiled actions are completely distinct. Swisher,

however, cited no authority for its conclusion. Likewise, Kahle cited

no authority for its conclusion, but simply noted that the circuit judge

in the refiled case has no jurisdiction to review the propriety of the

dismissal of the earlier case by another circuit judge. Kahle, 104 Ill. 2d

at 306. Neuman and Lyon relied on the “new action” language of

section 13–217 of the Code. None of these cases examined whether

a refiled action, although a “new action” for purposes of section

13–217, was actually a continuation of a plaintiff’s former voluntarily

dismissed action.

Obviously, the refiled action is assigned a new case number in the

circuit court, but equally as obvious, the trial court is required to take

judicial notice of rulings in the prior proceedings. See People v. Davis,

65 Ill. 2d 157, 161 (1976) (noting that “In McCormick on Evidence,

section 330, at 766 (2d ed. 1972), it is said to be ‘settled, of course,

that the courts, trial and appellate, take notice of their own respective

records in the present litigation, both as to matters occurring in the

immediate trial, and in previous trials or hearings’ ”). If a refiled action

were not to be considered a continuation of the voluntarily dismissed

action, it would make no sense to consider a plaintiff’s lack of

diligence in the prior action when ruling on a motion to dismiss a case

for violating Supreme Court Rule 103(b). See Case v. Galesburg

Cottage Hospital, No. 103879 (December 13, 2007). Thus, it is not

as if plaintiffs’ prior cause of action never existed. Rather, from a

-24-

procedural standpoint, the refiled action is a new and distinct suit

treated as a continuation of the former suit, and there can be no doubt

that all prior rulings are binding in the second action. In fact, an action

refiled pursuant to section 13–217 is premised on the preexisting

action. Without the predicate case, there could be no refiling under

section 13–217. Thus, it cannot logically be viewed as a completely

new cause of action.

In Korzinski v. Jackson, 326 F. Supp. 2d 704, 706 (E.D. N.C.

2004), the federal court recognized that although the plain language

of Rule 41, the federal counterpart to our section 13–217, indicates

that an action commenced after a voluntary dismissal is a “new

action,” the refiled action is a continuation of the original action. The

court in Korzinski relying on a North Carolina Supreme Court case

(Goodson v. Lehmon, 225 N.C. 514, 518, 35 S.E.2d 623, 625 (1945))

interpreting the statutory precursor to Rule 41, reasoned:

“[B]y its nature, a ‘new action’ commenced pursuant to Rule

41 must be, in all practical respects, precisely the same action

that was brought prior to the voluntary dismissal. The action,

which is only nominally a ‘new action,’ must have the

‘strictest factual identity,’ with the original proceeding and

must ‘involv[e] the same parties, the same cause of action and

the same right, and this must appear from the record in the

case.’ ” Korzinski, 326 F. Supp. 2d at 706.

In sum, plaintiffs are not prejudiced by taking a voluntary dismissal

because of the option to refile pursuant to section 13–217. A plaintiff

may not, therefore, appeal determinations in the first lawsuit until

either the time expires for refiling the suit, or a judgment on the merits

is issued in the refiled action.

This procedural viewpoint is distinguishable from those

circumstances when a plaintiff voluntarily dismisses some but not all

of its claims, and then proceeds to trial on the remaining claims.

Obviously, plaintiffs would be precluded from refiling their voluntarily

dismissed claims under these circumstances because a trial resulting

in a final judgment on the merits would trigger the doctrine of res

judicata.

Accordingly, I would hold that in Rein I, the plaintiffs improperly

appealed the involuntary dismissal of their rescission counts following

-25-

the voluntary dismissal of their common law counts, and the appellate

court erroneously determined it had jurisdiction to decide the appeal

in the first action. I would not, therefore, rely on Rein’s res judicata

analysis since the appeal in Rein I was improper. The situation

presented on appeal to this court in Rein was a procedural morass.

Consequently, the plaintiffs inappropriately took an appeal from their

voluntary dismissal and the appellate court erroneously considered the

plaintiffs’ appeal on its merits while the plaintiffs’ voluntarily

dismissed common law claims remained subject to refiling.

Equally important, in Rein, this court failed to recognize that when

a plaintiff elects to dismiss voluntarily a lawsuit without prejudice, the

voluntary dismissal is not a final adjudication on the merits and res

judicata is simply inapplicable. See Restatement (Second) of

Judgments §20(b), Comment a (1982) (res judicata is not applicable

when the plaintiff elects to dismiss voluntarily without prejudice, and

“the plaintiff remains entirely free to prosecute all or any part of his

claim”). Comment f to section 20 explains that, “[a]t common law[,]

the plaintiff is permitted to submit to a nonsuit, which does not

operate as a bar to another action on the same claim ***.”

Restatement (Second) of Judgments §20, Comment f (1982). Rein

therefore erroneously applied the doctrine of res judicata because res

judicata is simply inapplicable to voluntarily dismissed claims.

Moreover, this court’s claim-splitting analysis in Rein is not in

accord with the section 26(1) of the Restatement (Second) of

Judgments. In Rein, this court specifically adopted section 26(1) of

the Restatement (Second) of Judgments (Restatement (Second) of

Judgments §26(1) (1982)), setting forth examples of situations when

it would be inequitable to apply the rule against claim-splitting:

“This section provides that the rule against claim-splitting does

not apply to bar an independent claim of part of the same

cause of action if: (1) the parties have agreed in terms or in

effect that plaintiff may split his claim or the defendant has

acquiesced therein; (2) the court in the first action expressly

reserved the plaintiff’s right to maintain the second action;

(3) the plaintiff was unable to obtain relief on his claim

because of a restriction on the subject-matter jurisdiction of

the court in the first action; (4) the judgment in the first action

was plainly inconsistent with the equitable implementation of

-26-

a statutory scheme; (5) the case involves a continuing or

recurrent wrong; or (6) it is clearly and convincingly shown

that the policies favoring preclusion of a second action are

overcome for an extraordinary reason.” (Emphasis added.)

Rein, 172 Ill. 2d at 341, citing Restatement (Second) of

Judgments §26(1) (1982); Airtite v. DPR Ltd. Partnership,

265 Ill. App. 3d 214, 219 (1994); Thorleif v. Larson & Son,

Inc. v. PPG Industries, Inc., 177 Ill. App. 3d 656, 661-62

(1988).

After acknowledging these exceptions to the rule against claim-

splitting, this court then held in Rein that the exceptions should not be

interpreted as immunizing plaintiffs against res judicata. In coming to

this conclusion, Rein overlooked that a voluntary dismissal is not

subject to res judicata, and that a voluntary dismissal without

prejudice is an exception to the rule against claim-splitting. Rein also

overlooked comment b to section 26(b). Comment b provides an

illustration to express reservation by the court in the first action of the

plaintiff’s right to maintain a second action:

“A determination by the court that its judgment is ‘without

prejudice’ (or words to that effect) to a second action ***

should ordinarily be given effect in the second action.”

(Emphasis added.) Restatement (Second) of Judgments §26,

Comment b (1982).

Res judicata is not applicable to a voluntary dismissal, and a

voluntary dismissal without prejudice is a recognized exception to the

rule against claim-splitting precisely because a voluntary dismissal

without prejudice is not a final judgment on the merits. Rein’s failure

to apply the recognized exception has created untenable

consequences. In my view, Rein rests on extremely unsound legal

grounds. This court should recognize the error of its way and overrule

Rein.

Since the court’s decision in Rein, other courts have struggled to

distinguish Rein and interpreted Rein’s holding as limited to its unique

facts to avoid unfair results. In Piagentini v. Ford Motor Co., the

court stated that Rein stands only “for the proposition that ‘a plaintiff

seeking to split his claims and appeal in a piecemeal manner may be

barred by res judicata.’ ” Piagentini v. Ford Motor Co., 366 Ill. App.

3d 395, 401 (2006), quoting Dubina, 178 Ill. 2d at 507. See also

-27-

Gann v. William Timblin Transit, Inc., No. 07 C 3252 (N.D. Ill.

November 20, 2007) (“the context in which [Rein] found that the

plaintiff was precluded from later filing his claims was that it was

doing so for the purpose of splitting his claim in order to appeal an

earlier ruling”).

The untenable consequences created in the wake of Rein are made

abundantly clear by this court’s attempt to apply Rein to this case.

Plaintiffs’ negligence claim in Hudson I was involuntarily dismissed

based on statutory immunity. The involuntary dismissal operated as an

adjudication on the merits under Rule 273, but not a final appealable

judgment.

At the time plaintiffs’ negligence claim was involuntarily dismissed

plaintiffs’ willful and wanton claim was still pending. Plaintiffs

continued to litigate their willful and wanton claim for the next three

years until plaintiffs’ counsel passed away and the case was voluntarily

dismissed on the day it was called for trial (presumably because

substitute counsel, who appears to have been the deceased attorney’s

daughter, was not prepared for trial). The order entered clearly stated

the cause was voluntarily dismissed “without prejudice.” Plaintiffs,

therefore, had the absolute right to refile the action under section

13–217. Accordingly, the order granting plaintiffs’ motion for

voluntary dismissal without prejudice was not a final, appealable

order.

The majority, however, relying on the faulty analysis employed in

Rein and Dubina, concludes that once the voluntary dismissal was

entered in Hudson I, the litigation was terminated in its entirety and

all final orders became immediately appealable. Slip op. at 4. The

majority fails to acknowledge that plaintiffs’ voluntary dismissal was

without prejudice, and that res judicata is not applicable to voluntarily

dismissed claims under section 20 of the Restatement (Second) of

Judgments. The majority also overlooks the fact that the voluntary

dismissal without prejudice in this case presents an exception to the

rule against claim-splitting, as recognized by section 26 of the

Restatement (Second) of Judgments, and adopted in Rein.

Additionally, this court has overlooked section 20(c) of the

Restatement (Second) of Judgments. Section 20(c) provides that res

judicata does not bar another action by the plaintiff on the same claim

“when by statute or rule of court the judgment does not operate as a

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bar to another action on the same claim.” The General Assembly, in

the exercise of its constitutional powers, has granted plaintiffs an

absolute right to refile voluntarily dismissed complaints “within one

year [from the date of dismissal] or within the remaining period of

limitation, whichever is greater.” 735 ILCS 5/13–217 (West 2002).

See Aranda v. Hobart Manufacturing Corp., 66 Ill. 2d 616, 621

(1977) (Dooley, J., specially concurring). This court has repeatedly

recognized that the express language of section 13–217 clearly “grants

a plaintiff the absolute right to refile a dismissed complaint” and “[w]e

may not infringe upon this statutory right to refile.” (Emphasis added.)

Case, slip op. at 7. See also Timberlake v. Illini Hospital, 175 Ill. 2d

159, 163 (1997) (“Section 13–217 provides plaintiffs with the

absolute right to refile their complaint within one year or within the

remaining period of limitations, whichever is greater” (emphasis

added)); Gendek v. Jehangir, 119 Ill. 2d 338, 340 (1988) (“section

[13–217] provides plaintiffs with the absolute right to refile their

complaint *** for the reasons specified therein”). “Section 13–217

operates as a savings statute, with the purpose of facilitating the

disposition of litigation on the merits and avoiding its frustration upon

grounds unrelated to the merits.” Case, slip op. at 7, citing S.C.

Vaughan Oil Co. v. Caldwell, Troutt & Alexander, 181 Ill. 2d 489,

497 (1998). Applying section 20(c) of the Restatement (Second) of

Judgments to this case, plaintiffs’ refiling of their willful and wanton

claim was permitted under section 13–217, and res judicata does not

bar the refiled action.

In my view, the doctrine of res judicata and the rule against claim-

splitting should be employed with judicial restraint and not as tools to

dispose of litigation. Here, there was no adjudication on the merits of

plaintiffs’ willful and wanton claim. To label a voluntary dismissal

without prejudice as a final judgment on the merits mischaracterizes

the true nature of the disposition. Plaintiffs’ negligence claim was

dismissed on grounds of immunity and plaintiffs did not appeal that

determination or engage in any improper claim-splitting. Under these

circumstances, res judicata and the rule against claim-splitting should

not be applied mechanically to infringe on plaintiffs’ legislatively

created right to refile their voluntarily dismissed claim, based on

grounds totally divorced from the merits of plaintiffs’ claim.

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I would therefore reverse the judgment of the appellate and circuit

courts and remand for further proceedings. For the foregoing reasons,

I respectfully dissent.

JUSTICE FITZGERALD joins in this dissent.

Dissent Upon Denial of Rehearing

JUSTICE KILBRIDE, dissenting:

I respectfully dissent from the majority’s denial of plaintiffs’

petition for rehearing for the reasons stated in my original dissent, as

well as the points raised by plaintiffs. As noted in the original dissent

and in plaintiffs’ petition for rehearing, the majority depends entirely

on the flawed rationale of Rein v. David A. Noyes & Co., 172 Ill. 2d

325 (1996). In its reliance on Rein, the majority misapprehends and

confuses the doctrine of res judicata with the rule against claim-

splitting. Additionally, the majority has overlooked the express-

reservation exception to res judicata set forth in section 26 of the

Restatement (Second) of Judgments.

I also agree with plaintiffs that the majority misapprehends and

overlooks the distinction between this case and Rein, and that the

rationale of Rein is also flawed because it fails to distinguish between

two different factual situations for purposes of res judicata and the

rule against improper claim-splitting. In Rein, the plaintiffs asserted

two different theories of recovery. One was involuntarily dismissed,

and the plaintiffs voluntarily dismissed the other to appeal the

involuntary dismissal order. On appeal, the involuntary dismissal was

upheld. In that situation, both res judicata and the rule against

improper claim-splitting properly barred relitigation of the voluntarily

dismissed claim because the plaintiffs litigated the involuntarily

dismissed claim to a final judgment before the appellate court. The

plaintiffs in Rein could have presented both of their theories of

recovery at the same time and then appealed the adverse ruling, but

instead chose to abandon their voluntarily dismissed claim to appeal

immediately the involuntarily dismissed claim.

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The situation in this case is entirely distinguishable because the

plaintiffs never split their cause of action. Here, the plaintiffs raised

two different theories of recovery. The negligence count was

involuntarily dismissed, and the willful and wanton claim was later

voluntarily dismissed “without prejudice.” When the negligence count

was dismissed, the willful and wanton claim survived and was still a

viable claim. As the United States Supreme Court noted in

determining that an “adjudication upon the merits” is the opposite of

a “dismissal without prejudice”:

“The primary meaning of ‘dismissal without prejudice,’ we

think, is dismissal without barring the plaintiff from returning

later, to the same court, with the same underlying claim. That

will also ordinarily (though not always) have the consequence

of not barring the claim from other courts, but its primary

meaning relates to the dismissing court itself. Thus, Black’s

Law Dictionary (7th ed. 1999) defines ‘dismissed without

prejudice’ as ‘removed from the court’s docket in such a way

that the plaintiff may refile the same suit on the same claim,’

[citation], and defines ‘dismissal without prejudice’ as ‘[a]

dismissal that does not bar the plaintiff from refiling the

lawsuit within the applicable limitations period,’ [citation].”

(Emphasis in original.) Semtek International Inc. v. Lockheed

Martin Corp., 531 U.S. 497, 505-06, 149 L. Ed. 2d 32, 41,

121 S. Ct. 1021, 1027 (2001).

At the time plaintiffs voluntarily dismissed their willful and wanton

claim, it was still viable. The effect of their voluntary dismissal was to

remove the claim from the court’s active docket, although they could

still refile the same claim within the applicable limitations period.

Following the voluntary dismissal of the willful and wanton claim,

there was no appeal from the plaintiffs’ involuntary dismissal of the

negligence claim in this case. This situation simply does not fall within

the doctrine of res judicata or the rule against improper claim-

splitting.

We are in agreement that a plaintiff must assert all claims arising

from the same transactional setting in one lawsuit. If all claims are not

initially brought together, the plaintiff will have split the cause of

action and will be barred from raising not only what was already

raised and decided, but also what might have been. See Restatement

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(Second) of Judgments §§ 24(1), 25 (1982). This rule is clearly

inapplicable in this case because plaintiffs brought all of their claims

in their original lawsuit.

Moreover, there is no dispute that res judicata and the rule against

claim-splitting is violated when a plaintiff voluntarily dismisses a

claim, proceeds to litigate on the remaining claims, and then refiles the

voluntarily dismissed claim in a second action. In effect, that is what

happened in Rein when the plaintiffs voluntarily dismissed their second

claim so they could appeal the involuntary dismissal of their first

claim.

As noted in the original dissent, this court has adopted section

26(1) of the Restatement (Second) of Judgments. Subsection (b) of

that section provides that claim preclusion based on claim-splitting

does not apply when the court in the first action expressly reserves the

plaintiff’s right to maintain the second action. The comments to

section 26(1)(b) establish that “[a] determination by the court that its

judgment is ‘without prejudice” (or words to that effect)” ordinarily

acts as an express reservation of the voluntarily dismissed claim. Thus,

when the trial court in this case granted plaintiffs’ motion to dismiss

voluntarily the willful and wanton claim without prejudice, it expressly

reserved that claim under section 26(1)(b). The majority offers no

justification for ignoring this application of section 26(1)(b).

In this case, the trial court granted the plaintiffs’ “routine” motion

to dismiss voluntarily their remaining willful and wanton claim

“without prejudice” when the attorney representing them died on the

eve of trial. As plaintiffs aptly note, defendants did not object to this

voluntary dismissal in Hudson I. If defendants felt they would be

prejudiced by the court’s express reservation of plaintiffs’ right to

refile by dismissing the claim “without prejudice,” then they should

have objected at the time the order was entered, allowing plaintiffs to

withdraw their motion. If anything, forfeiture should bar defendants

from now challenging plaintiffs’ refiling of a claim that the trial court

expressly reserved by dismissing it “without prejudice” and without

objection. Defendants’ silence in acquiescing to the voluntary

dismissal should bar the defendants’ stale objection to the refiled suit.

Additionally it does not appear that defendants were prejudiced by

plaintiffs’ voluntary dismissal and refiling because any discovery

previously undertaken and prior discovery orders in the voluntarily

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dismissed case are to be considered in resolving discovery issues in the

second case. 210 Ill. 2d R. 219(e).

What distinguishes this case from Rein are the events that

occurred after the plaintiffs voluntarily dismissed their remaining

claims. As plaintiffs explain, in contrast to Rein, the interim period

between the voluntary dismissal in Hudson I and the subsequent filing

in Hudson II was one of inactivity–“a hiatus, but never a detour, on

the path from point A to point B.” Although the plaintiffs in both Rein

and this case initially had a right to refile their voluntarily dismissed

claims under section 26(1)(b) of the Restatement (Second) of

Judgments, the plaintiffs in Rein abrogated their right by continuing

to litigate their involuntarily dismissed count, thus improperly splitting

their claims.

For the foregoing reasons, I respectfully dissent from the denial of

plaintiffs’ petition for rehearing.

JUSTICE FITZGERALD joins in this dissent.

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