Ward v. Decatur Memorial Hospital

Digitally signed

by Reporter of

Decisions

Reason: I attest to

Illinois Official Reports the accuracy and

integrity of this

document

Supreme Court Date: 2021.01.19

13:22:37 -06'00'

Ward v. Decatur Memorial Hospital, 2019 IL 123937

Caption in Supreme GERALD R. WARD, Appellee, v. DECATUR MEMORIAL

Court: HOSPITAL, Appellant.

Docket No. 123937

Filed June 20, 2019

Decision Under Appeal from the Appellate Court for the Fourth District; heard in that

Review court on appeal from the Circuit Court of Macon County, the Hon.

Thomas E. Little, Judge, presiding.

Judgment Appellate court judgment affirmed.

Circuit court judgment reversed.

Cause remanded.

Counsel on Michael J. Kehart, James E. Peckert, and Regan M. Lewis, of Kehart,

Appeal Peckert, Wise, Toth & Lewis, of Decatur, for appellant.

Randall A. Wolter, of Wolter, Beeman, Lynch & Londrigan, LLP, of

Springfield, for appellee.

Stephen Phalen, of Law Offices of Stephen S. Phalen LLC, of

Chicago, for amicus curiae Illinois Trial Lawyers Association.

Justices JUSTICE THEIS delivered the judgment of the court, with opinion.

Justices Kilbride, Garman, and Burke concurred in the judgment and

opinion.

Chief Justice Karmeier specially concurred, with opinion, joined by

Justices Thomas and Neville.

OPINION

¶1 The primary issue in this appeal is whether res judicata bars plaintiff Gerald R. Ward’s

refiled action because he voluntarily dismissed the third amended complaint after the Macon

County circuit court had involuntarily dismissed several counts from the original, first, and

second amended complaints in the initial action. Richter v. Prairie Farms Dairy, Inc., 2016 IL

119518, controls the outcome of this case; therefore, we affirm the judgment of the appellate

court, reversing the grant of summary judgment in favor of defendant Decatur Memorial

Hospital (Hospital).

¶2 BACKGROUND

¶3 The underlying claims involve alleged medical malpractice sustained by the decedent

(Ward’s brother) at the Hospital. In mid-December 2007, the decedent had gastric bypass

surgery at the Hospital. According to Ward, shortly thereafter, the decedent developed a bed

sore that became infected. The Hospital discharged him four days after the procedure. In

January 2008, the decedent died from complications associated with a bacterial infection.

¶4 The Initial Complaint

¶5 In December 2009, Ward filed his initial nine-count complaint (No. 09 L 209). He named

the Hospital, “Decatur Memorial Hospital Home Health Services,” and unknown employees

of the Hospital as defendants. In count I, on behalf of the decedent’s estate, Ward alleged that

the Hospital breached its duty of care to the decedent by, among other things, failing to

diagnose or to treat the bed sore that developed during his stay. In count II, in his individual

capacity, Ward raised a wrongful death claim against the Hospital. In count III, in his individual

capacity, Ward claimed that the Hospital should reimburse him for the decedent’s medical bills

and funeral expenses under the “Family Expense Act.”

¶6 In count IV, on behalf of the estate, Ward alleged that Decatur Memorial Hospital Home

Health Services breached its duty of care to the decedent. In count V, in his individual capacity,

Ward raised a wrongful death claim against Decatur Memorial Hospital Home Health Services.

In count VI, in his individual capacity, Ward claimed that he was entitled to family expenses

from Decatur Memorial Hospital Home Health Services.

¶7 In count VII, on behalf of the estate, Ward claimed that unknown employees breached their

duty of care to the decedent. In count VIII, in his individual capacity, Ward raised a wrongful

death claim against unknown employees. In count IX, in his individual capacity, Ward claimed

that he was entitled to family expenses from unknown employees.

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¶8 In May 2010, the Hospital filed a combined motion to dismiss the complaint. The Hospital

moved to dismiss counts I, II, IV, and paragraph 4(d) of counts IV through VI under section

2-615 of the Code of Civil Procedure (Code) (735 ILCS 5/2-615 (West 2010)) for failure to

allege sufficient facts to state a cause of action. In those counts, Ward alleged that the

Hospital’s nurses failed to diagnose the decedent’s pressure sore. Because nurses cannot make

medical diagnoses, the Hospital asked the trial court to strike the counts.

¶9 The Hospital also noted that, under section 2-622(g) of the Code, plaintiff’s failure “to file

an affidavit and report in compliance with this [s]ection shall be grounds for dismissal under

[s]ection 2-619.” Id. § 2-622(g). Arguing that Ward’s report failed to satisfy the statutory

requirements, the Hospital moved to dismiss the entire complaint. It further observed that Ward

had not been appointed special administrator for the decedent’s estate; therefore, it moved to

dismiss counts I, II, IV, V, VI, and VII. Additionally, the Hospital noted that, although the

complaint referenced the “Family Expense Act,” Ward likely meant the “Rights of Married

Persons Act,” which did not allow a sibling to recover for another sibling’s medical expenses.

As such, the Hospital asked the court to dismiss counts III, VI, and IX of the complaint. Finally,

because Ward lacked jurisdiction to sue unknown persons, the Hospital argued that counts III,

VI, and IX also should be dismissed.

¶ 10 In July 2010, the trial court ruled on the Hospital’s motion to dismiss the complaint.

Because no court had appointed Ward as administrator for the decedent’s estate, the trial court

dismissed counts I and IV without prejudice. Ward conceded that his reliance on the Family

Expense Act was misplaced, and the court determined that he alleged no facts to establish the

Hospital’s legal responsibility to pay the decedent’s medical and funeral expenses.

Accordingly, the court dismissed counts III and VI without prejudice.

¶ 11 The trial court observed that, in the report Ward filed under section 2-622 of the Code (id.

§ 2-622(a)(1) (requiring review of the cause of action by a qualified health professional)), the

health care professional did not identify his reasons for determining that a meritorious cause

of action existed. It therefore dismissed count II without prejudice. Finally, noting that section

2-413 of the Code (id. § 2-413) did not authorize naming unknown employees as defendants,

the court ruled that counts VII, VIII, and IX were “properly stricken.” The court granted Ward

leave to file an amended complaint, affidavit, and report within 28 days.

¶ 12 The First Amended Complaint

¶ 13 In August 2010, Ward filed a first amended complaint. In count I, on behalf of the

decedent’s estate, Ward alleged that the Hospital, its agents, and its employees breached their

duty to treat and to care for the decedent in accordance with reasonable and proper hospital

practices. In count II, in his individual capacity, Ward raised a wrongful death claim against

the Hospital. In count III, on behalf of the estate, Ward alleged that Decatur Memorial Hospital

Home Health Services, its agents, and its employees breached their duty to treat and to care for

the decedent in accordance with reasonable and proper home health care practices. Finally, in

count IV, in his individual capacity, Ward raised a wrongful death claim against Decatur

Memorial Hospital Home Health Services.

¶ 14 The Hospital filed a combined motion to dismiss the first amended complaint. It moved to

dismiss counts I and III on the ground that Ward had not obtained leave of court before refiling

them. The Hospital then noted that counts II and IV, which “purport[ed] to sound in wrongful

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death,” were brought by Ward in his individual capacity. But it argued that recovery under the

Wrongful Death Act (740 ILCS 180/0.01 et seq. (West 2010)) was limited to the decedent’s

personal representative; Ward could not recover in his individual capacity.

¶ 15 The Hospital moved to dismiss counts III and IV on the ground that “Decatur Memorial

Hospital Home Health Services” did not exist and, thus, could not be sued. Further, the

Hospital moved to dismiss the first amended complaint in its entirety, contending that “the

specific allegations of negligent acts consist of nothing but legal or factual conclusions.” It also

moved to dismiss counts I and II of the complaint, arguing that the counts did not “state the

standard of care applicable to the various persons for whom [the Hospital] is sought to be held

liable.” Finally, the Hospital moved to dismiss the first amended complaint in its entirety,

arguing that the report from Ward’s health care professional failed to support his allegations

that the Hospital breached any duty of care.

¶ 16 The trial court granted dismissal of count I without prejudice, concluding that the report

from Ward’s doctor lacked the necessary detail to support his allegations. Because count II

was brought in Ward’s individual capacity, rather than as a representative of the decedent, the

court dismissed it without prejudice. As to counts III and IV, Decatur Memorial Hospital Home

Health Services did not exist; therefore, the parties agreed that those counts should be

dismissed. The court granted Ward leave to file a second amended complaint within 30 days.

¶ 17 The Second Amended Complaint

¶ 18 In November 2010, Ward filed his second amended complaint. In count I, on behalf of the

decedent’s estate, Ward raised a survival claim under a theory of respondeat superior against

the Hospital. This count alleged that the Hospital “through its agents and/or employees”

breached its duty of care to the decedent by, among other things, failing to properly visually

assess the patient, failing to identify the skin breakdown, and failing to treat his ulcer to control

the infection. Ward further alleged that physicians breached their duty to treat and to administer

care to the decedent “in accordance with reasonable and proper surgical practice.” Count II

was a wrongful death claim under a theory of respondeat superior based on the same

allegations as in count I.

¶ 19 In count III, Ward raised an institutional negligence/survival claim against the Hospital on

behalf of the estate. Ward alleged that the Hospital breached its duty of care to the decedent

by, among other things, failing to have adequately trained nurses, failing to require the nurses

to consult with certain members of the surgical staff, and breaching the state’s license

requirements. Count IV was a claim for institutional negligence/wrongful death against the

Hospital based on the same allegations as in count III.

¶ 20 The Hospital filed a combined motion to dismiss the second amended complaint. It moved

to dismiss counts I and II, arguing that Ward failed to allege sufficient facts to state a cause of

action on the theory of respondeat superior. According to the Hospital, it was “still unclear as

to ‘who did what,’ and what the proper standard of care [was] as to the various agents and

employees.” The Hospital also moved to dismiss counts III and IV, arguing that Ward’s claim

for institutional negligence was vague and conclusory. It further moved to dismiss the entire

complaint pursuant to section 2-622(g) of the Code. According to the Hospital, Ward’s

physician’s report was conclusory as to the negligence claim and failed to provide reasons for

his belief that a meritorious cause of action for institutional negligence existed.

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¶ 21 At a hearing on its motion to dismiss, the Hospital noted that unlike the original and

amended complaints—which focused on alleged missteps by nurses—in the second amended

complaint, Ward also alleged that physicians had breached the standard of care. The Hospital

argued that the accompanying physician’s report contained no facts suggesting that a doctor

breached any duty of care to the decedent. In both his response to the Hospital’s motion to

dismiss and at the hearing, Ward acknowledged that his lawsuit was based on alleged breaches

in the standard of care by nurses, not by doctors. Given that admission, the Hospital argued

that the complaint should not contain allegations directed at physicians. 1

¶ 22 The trial court ruled that the second amended complaint lacked “a factual basis to support

claims premised on a breach of the physician standard of care.” It therefore struck the

allegations directed at physicians. With those allegations removed, the court determined that

Ward’s section 2-622 report satisfied the statutory requirements as to the first two counts of

the complaint. But the court concluded that the counts alleging institutional negligence were

vague, unsupported by substantial allegations of fact, and unsupported by a report from a

reviewing health professional as required by section 2-622. Consequently, the court dismissed

the second amended complaint. It granted Ward leave to file, within 28 days, a third amended

complaint “consistent with [the] court’s order, along with a report by a reviewing health

professional in support of the institutional negligence counts.”

¶ 23 The Third Amended Complaint

¶ 24 In May 2011, Ward filed his third amended complaint. Count I was a survival claim against

the Hospital under a theory of respondeat superior, based on its nurses’ alleged breaches of

their duty to act “in accordance with reasonable and proper nursing practice in light of the

standard of care of nursing practice then prevailing in the community.” Count II was a wrongful

death claim against the Hospital under a theory of respondeat superior, also based on alleged

breaches by nurses. The following month, the Hospital filed its answer and affirmative

defenses to the third amended complaint.

¶ 25 Four years later, in early December 2015, the judge issued a pretrial conference order.

Among other things, the court ordered the parties to submit a jointly prepared statement of the

case and a jointly prepared list of witnesses. The jury trial was set for January 19, 2016. On

December 31, 2015, the Hospital moved to bar Ward’s disclosure of a rebuttal witness. It

argued that it first learned of Ward’s proposed rebuttal expert the day before, which was only

20 days before the start of trial. Noting that the case had been pending for six years, the Hospital

insisted that Ward had had “ample time to obtain experts.”

¶ 26 On January 4, 2016, Ward moved for leave to file a fourth amended complaint. The

proposed fourth amended complaint contained two counts. Count I was a survival claim against

the Hospital under a theory of respondeat superior; count II was a wrongful death claim against

the Hospital under a theory of respondeat superior. According to Ward, he sought to amend

the complaint “to more correctly and succinctly describe the alleged negligence of

[d]efendant’s nurses as a result of facts developed through discovery.”

1

By the time of the hearing on defendant’s motion to dismiss the second amended complaint, Ward

had been appointed administrator of the decedent’s estate. He therefore had capacity to sue on its behalf.

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¶ 27 On January 5, 2016, the trial court issued an order on the pending motions. It noted that

Ward had filed his initial complaint in December 2009. “[W]hen a case is this old,” the court

observed, “the lawyers, the [c]ourt, and the judicial system become one of the issues.” Because

trial was set to begin in roughly two weeks, the court granted the Hospital’s motion to bar the

proposed rebuttal witness. The court also denied Ward’s motion for leave to amend his

complaint, finding that the allegations in the third amended complaint were substantially

different from those in the proposed fourth amended complaint.

¶ 28 On January 11, 2016, pursuant to section 2-1009 of the Code (735 ILCS 5/2-1009 (West

2016)), Ward moved to voluntarily dismiss the action. The trial court granted the motion the

same day and dismissed the case without prejudice.

¶ 29 The Refiled Action

¶ 30 On May 6, 2016, Ward initiated another lawsuit against the Hospital (No. 16 L 51). The

complaint in the second case was nearly identical to the proposed fourth amended complaint

that the trial court disallowed in the prior action. Count I was a survival claim against the

Hospital under a theory of respondeat superior, and count II was a wrongful death claim

against the Hospital under a theory of respondeat superior. A different trial judge was assigned

to the refiled action.

¶ 31 Months later, the Hospital moved to limit Ward’s disclosure of witnesses and opinions.

After recounting the history of the case, the Hospital observed that Ward was attempting to

disclose witnesses that had been barred from testifying in the prior action. It stressed that, under

Illinois Supreme Court Rule 219(e) (eff. July 1, 2002), “[a] party shall not be permitted to

avoid compliance with discovery deadlines, orders or applicable rules by voluntarily

dismissing the lawsuit.” The Hospital asked the trial court to enter an order prohibiting all

witnesses who were barred from testifying in the prior case, and it asked the court to limit other

witnesses to the opinions they testified to in the initial action.

¶ 32 The trial court, in part, granted the Hospital’s motion. The court noted that, although the

Hospital blamed Ward for failing to comply with discovery deadlines in the initial action, “it

appears that *** both parties were not following the deadlines set forth” in the earlier case.

The court ultimately denied the Hospital’s motion to bar two witnesses but granted its other

requests.

¶ 33 The Hospital then moved for summary judgment. It noted that “[t]he principle that

res judicata prohibits a party from later seeking relief on the basis of issues which might have

been raised in the prior action also prevents a litigant from splitting a single cause of action

into more than one proceeding.” It observed that the trial court had dismissed “numerous

counts of various iterations” of Ward’s complaint in the prior action and that he elected not to

replead the counts. In the Hospital’s view, those dismissals constituted final adjudications on

the merits, such that it was entitled to summary judgment on the basis of res judicata.

¶ 34 In response, Ward argued that medical negligence was the sole cause of action in his

original and subsequently amended complaints. Ward asserted that the amended complaints

simply “focused on identifying the proper parties and proper measure of damages.” Insisting

that no claim-splitting took place and that no final judgment had been entered in the first action,

Ward asked the court to deny the Hospital’s motion for summary judgment.

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¶ 35 The trial court conducted a hearing on the summary judgment motion. The Hospital argued

that various claims from Ward’s complaints had been dismissed because of legal impediments.

In particular, the Hospital contended that institutional negligence was a different cause of

action from medical negligence; therefore, the dismissal of the institutional negligence claim

counted for res judicata purposes.

¶ 36 For his part, Ward argued that “the reason we’re here today is because shortly before trial

[the judge] entered the order that we could not call a witness ***, told us we couldn’t bring a

rebuttal witness, and refused to allow us to amend the complaint.” In Ward’s view, his options

“at that time were to go ahead and go through the time and expense of litigation knowing that

we would appeal or simply dismiss the case without prejudice.” Ward noted that he had an

absolute right to refile, and he contended that neither res judicata nor the rule against claim-

splitting barred his refiled action.

¶ 37 The trial court denied the Hospital’s motion for summary judgment. The court noted that

the third amended complaint remained pending at the time of Ward’s voluntary dismissal.

Accordingly, it concluded that “the litigation had not been terminated and the court had not yet

fixed the parties’ rights.” The court ruled that there had been no final judgment and, thus,

res judicata did not bar the refiled action.

¶ 38 Two days later, the Hospital moved the trial court to reconsider its decision. It argued that

the court had not taken into account “the res judicata effect of various involuntary dismissals”

in Ward’s initial lawsuit. Relying on Hudson v. City of Chicago, 228 Ill. 2d 462 (2008), and

Rein v. David A. Noyes & Co., 172 Ill. 2d 325 (1996), the Hospital claimed that when “plaintiff

voluntarily dismissed his suit, the final decisions with respect to the previously filed

complaints, and not the third amended complaint, subjected plaintiff to the res judicata

defense.” Ward opposed the motion.

¶ 39 The trial court conducted a hearing on the Hospital’s motion to reconsider. Days later, the

court reversed course and concluded that res judicata barred Ward’s second action. Ward

moved the trial court to reconsider its grant of summary judgment, arguing that it had

overlooked Richter, 2016 IL 119518, and Wilson v. Edward Hospital, 2012 IL 112898. The

court denied his motion.

¶ 40 On appeal, the court reversed the grant of summary judgment in the Hospital’s favor. The

appellate court determined that, “by granting the plaintiff permission to file an amended

complaint, the trial court vacates the designation of ‘with prejudice’ in its dismissal of

individual counts of the original complaint.” 2018 IL App (4th) 170573, ¶ 51. It acknowledged

that Ward had abandoned several involuntarily dismissed counts from his prior complaints by

not incorporating them in subsequent complaints. But, citing Bonhomme v. St. James, 2012 IL

112393, and Foxcroft Townhome Owners Ass’n v. Hoffman Rosner Corp., 96 Ill. 2d 150

(1983), the appellate court ruled that the involuntary dismissal of a count that plaintiff

afterward abandoned in the amended complaint cannot have res judicata effect. 2018 IL App

(4th) 170573, ¶ 52.

¶ 41 The appellate court also distinguished Hudson, observing that, here, the trial court gave

Ward “permission to amend, over and over again, all the way to the third amended complaint—

which remained pending and completely unadjudicated at the time of the voluntary dismissal.”

Id. ¶ 53.

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¶ 42 We allowed the Hospital’s petition for leave to appeal. Ill. S. Ct. R. 315 (eff. July 1, 2018).

We also permitted the Illinois Trial Lawyers’ Association to file an amicus curiae brief in

support of plaintiff. Ill. S. Ct. R. 345 (eff. Sept. 20, 2010).

¶ 43 ANALYSIS

¶ 44 The central issue is whether res judicata prohibits this refiled lawsuit. Whether an action

is barred by res judicata is a question of law that this court reviews de novo. Lutkauskas v.

Ricker, 2015 IL 117090, ¶ 43. “Res judicata is a judicially created doctrine resulting from the

practical necessity that there be an end to litigation and that controversies once decided on their

merits shall remain in repose.” Village of Bartonville v. Lopez, 2017 IL 120643, ¶ 49. Under

the doctrine of res judicata, “a final judgment on the merits rendered by a court of competent

jurisdiction bars a subsequent action between the same parties or their privies involving the

same cause of action.” Richter, 2016 IL 119518, ¶ 21. The bar extends not only to what was

decided in the first action but also includes those matters that could have been decided in the

initial action. Lopez, 2017 IL 120643, ¶ 49.

¶ 45 For res judicata to apply, three requirements must be met: “(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.” Wilson, 2012 IL 112898, ¶ 9. The party invoking the

doctrine bears the burden of showing its applicability. See Hayashi v. Illinois Department of

Financial & Professional Regulation, 2014 IL 116023, ¶ 45. Here, the dispute centers on the

finality requirement, as the parties concede that the other two conditions have been satisfied.

Thus, we only address finality. We have observed that the requirement of a final judgment is

a “critical component” in establishing that res judicata applies. Hernandez v. Pritikin, 2012 IL

113054, ¶ 41.

¶ 46 This court’s most recent exposition on finality for purposes of res judicata is Richter. In

Richter, the plaintiffs filed a three-count complaint against the defendant, a corporation,

alleging damages caused by the defendant’s termination of their agreement to supply dairy

products. In count I the plaintiffs sought shareholder remedies pursuant to a statute, in count II

the plaintiffs brought a fraud claim pursuant to a statute, and in count III the plaintiffs alleged

common-law fraud. The trial court denied the defendant’s motion to dismiss as to count I but

granted it as to the remaining counts. The court gave the plaintiffs leave to file an amended

complaint within 30 days. The plaintiffs ultimately chose not to amend their complaint but

proceeded on the count that survived dismissal. Years later, the plaintiffs voluntarily dismissed

the action under section 2-1009 of the Code.

¶ 47 The following year, the plaintiffs refiled the action against the defendant based on its earlier

termination of the agreement to provide dairy products. In count I of the new complaint, the

plaintiffs sought shareholder remedies. In count II, based on the defendant’s alleged

concealment of a section in its bylaws, the plaintiffs alleged misrepresentation. In count III,

the plaintiffs alleged common-law fraud, and in count IV, they alleged that the defendant

breached its fiduciary duty to them. The defendant moved to dismiss the refiled action,

contending, as relevant here, that it was barred by res judicata. The trial court agreed with the

defendant, but the appellate court reversed. It determined that the order dismissing the fraud

counts in the initial action was not a final order.

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¶ 48 As in this case, the issue in Richter was whether the trial court’s dismissal order was final

and therefore res judicata applied. This court affirmed the appellate court’s judgment, holding

that “[a]n order that dismisses the counts of a complaint, but grants the plaintiff leave to amend,

is not ‘final’ because the order does not terminate the litigation between the parties.” Richter,

2016 IL 119518, ¶ 25. We clarified that “a dismissal ‘without prejudice’ signals that there was

no final decision on the merits and that the plaintiff is not barred from refiling the action.” Id.

¶ 24. Rather, we referred to such an order as interlocutory, noting that the trial court has

inherent power to review, modify, or vacate interlocutory orders while it retains jurisdiction

over the entire controversy. Id. ¶¶ 25, 28.

¶ 49 Similarly, here, when the trial court granted the Hospital’s motions to dismiss the original,

first amended, and second amended complaints, it did so without prejudice and with permission

to refile. Upon each involuntary dismissal, the court granted Ward leave to file an amended

complaint. The dismissal orders neither terminated the litigation nor firmly established the

parties’ rights. Accordingly, the dismissal orders were not final and had no res judicata effect.

¶ 50 Despite Richter’s holding, the Hospital contends that Illinois Supreme Court Rule 273 (eff.

Jan. 1, 1967) requires a different result. The rule provides: “Unless the order of dismissal or a

statute of this State otherwise specifies, 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.” Id. But as we explained in Richter, a

dismissal order will be deemed “on the merits” under Rule 273 “[i]f a circuit court involuntarily

dismisses a plaintiff’s action, other than for one of the rule’s three exceptions, and if the

plaintiff does not procure leave of court to refile the complaint or if a statute does not guarantee

that opportunity.” (Emphasis added.) 2016 IL 119518, ¶ 24. Stated differently, a dismissal

order is a final adjudication on the merits under Rule 273 when the order specifies that it is

“with prejudice” or when the trial court denies leave to file an amended complaint. Id. ¶ 25.

None of the dismissal orders entered in this case was “with prejudice,” and the trial court each

time granted Ward leave to amend. Therefore, the orders did not constitute final adjudications

on the merits. See also Smith v. Central Illinois Regional Airport, 207 Ill. 2d 578, 585 (2003)

(“The court’s decision to grant leave to amend indicates that defendants’ motions were not

final dispositions of the case, and thus it cannot be considered a final order.”).

¶ 51 The fact that the dismissal orders were without prejudice and were with leave to file

amendments distinguishes this case from Hudson. There, the plaintiffs voluntarily dismissed

their willful and wanton misconduct count after their negligence claim had been dismissed

with prejudice. Hudson, 228 Ill. 2d at 466. Because a final judgment had been entered as to the

negligence claim in Hudson, we held that res judicata barred the plaintiffs from refiling the

willful and wanton misconduct count. Id. at 473-74.

¶ 52 This case is also distinguishable from Rein. There, the plaintiffs alleged that defendants

had fraudulently misrepresented the character of certain securities. Rein, 172 Ill. 2d at 327. The

complaint included rescission counts and counts alleging common-law fraud. Id. at 329. After

the trial court granted the defendants’ motion to dismiss the rescission counts with prejudice,

the plaintiffs voluntarily dismissed the remaining counts and appealed the dismissal of the

rescission counts. Id. at 329-30. The appellate court upheld the trial court’s dismissal order. Id.

at 330. The plaintiffs thereafter initiated another lawsuit that attempted to recast the rescission

counts and revive the common-law fraud counts. Id. at 331. We held that res judicata barred

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the refiled lawsuit because (i) there had been an adjudication on the merits of the rescission

counts and (ii) the plaintiffs could have resolved all claims in the initial action. Id. at 336-39.

¶ 53 Here, as we have noted, Ward was repeatedly granted leave to amend his complaint, and

no final judgment was entered as to any of his claims. Thus, this case is like Richter, where we

explained that, when a dismissal is without prejudice and with leave to file an amended

complaint, there is no final decision on the merits and the plaintiff is permitted to refile the

action. 2016 IL 119518, ¶ 25.

¶ 54 The Hospital attempts to distinguish Richter on the ground that, when Ward filed amended

complaints in this case, he did not replead counts that had previously been dismissed. Because

Ward abandoned those counts, it contends that the trial court’s dismissals became final

judgments on the merits. Richter offers no support for its position; therefore, the Hospital relies

on pre-Richter appellate court decisions such as Kiefer v. Rust-Oleum Corp., 394 Ill. App. 3d

485 (2009).

¶ 55 In Kiefer, the plaintiff suffered injuries allegedly caused by the defendants’ products. He

filed an amended complaint, claiming strict product liability and negligence. The trial court

determined that the applicable law did not recognize a cause of action based on strict product

liability, and it dismissed the amended complaint. The court granted leave to amend, and the

plaintiff eventually filed a fourth amended complaint, asserting causes of action for negligence.

Weeks before trial, the plaintiff voluntarily dismissed his claims under section 2-1009 of the

Code (735 ILCS 5/2-1009 (West 2006)). The following year, when the plaintiff refiled the

lawsuit, the defendants moved to dismiss, claiming that res judicata barred it. The trial court

granted the defendants’ motions. Kiefer, 394 Ill. App. 3d at 486-88.

¶ 56 On appeal, the court in Kiefer rejected the plaintiff’s claim that the “order dismissing his

strict product liability claims in [the original action] was not a ‘final’ order because it granted

him ‘leave to amend’ and did not contain the words ‘with prejudice.’ ” Id. at 493-94. Although

the plaintiff’s observations about the dismissal order were accurate, the appellate court found

them “far from dispositive regarding the effect of the order.” Id. at 494. Rather, because the

order determined the merits of the plaintiff’s strict liability claim, the appellate court ruled that

“[t]he inclusion of the words ‘leave to amend’ and the absence of the words ‘with prejudice’ ”

did not affect its finality. Id. at 495.

¶ 57 As should be clear from our earlier discussion of Richter, Kiefer does not survive it. Again,

when a trial court’s order dismisses certain counts of a complaint but grants the plaintiff leave

to amend, the order does not terminate the litigation or establish the parties’ rights. As such, it

cannot be deemed final. See Richter, 2016 IL 119518, ¶¶ 24-25. In Kiefer, the order dismissing

the strict product liability claims did not terminate the litigation, and it did not firmly establish

the parties’ rights. Accordingly, it was not a final judgment for res judicata purposes. Because

the rationale adopted in Kiefer conflicts with Richter, we expressly overrule Kiefer.

¶ 58 Turning back to this case, the appellate court correctly determined that res judicata did not

bar Ward’s refiled action. However, we part company with the appellate court’s analysis in

certain respects.

¶ 59 Contrary to Richter’s dictates, the appellate court conducted its res judicata analysis on a

count-by-count basis through the various complaints, even though the trial court’s dismissals

were without prejudice and with leave to amend. See 2018 IL App (4th) 170573, ¶ 52. The

court properly recognized that Ward’s failure to replead counts that had been previously

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dismissed “did not make the dismissal of those counts a final order for purposes of

res judicata.” Id. But the court went on to conclude that, “by granting the plaintiff permission

to file an amended complaint, the trial court vacates the designation of ‘with prejudice’ in its

dismissal of individual counts of the original complaint.” Id. ¶ 51.

¶ 60 We find no support for that determination. Indeed, in Richter, this court rejected

defendant’s request for an “automatic final judgment mechanism,” whereby an involuntary

dismissal order would become a final adjudication on the merits after the expiration of the

temporary leave period. 2016 IL 119518, ¶ 29. Likewise, in this case, we decline to rule that

the trial court undoes its dismissal with prejudice of certain counts by giving a plaintiff the

opportunity to replead other counts. Cf. People v. Creek, 94 Ill. 2d 526, 531 (1983) (“The term

with prejudice has a well-recognized legal import; it *** is as conclusive of the rights of the

parties as if the suit had been prosecuted to a final prosecution adverse to the complainant.”

(Internal quotation marks omitted.)).

¶ 61 Here, because the trial court always granted leave to amend, the appellate court should

have asked whether any order dismissing any of the complaints terminated the litigation and

firmly established the parties’ rights as to any cause of action. See Richter, 2016 IL 119518,

¶ 25. The dismissals of Ward’s original, first amended, and second amended complaints

accomplished neither of those objectives; therefore, there was no final judgment for

res judicata purposes.

¶ 62 We end with a few observations. Under section 2-1009 of the Code, a “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.” 735 ILCS 5/2-1009(a) (West 2016); see also Case v.

Galesburg Cottage Hospital, 227 Ill. 2d 207, 215 (2007) (observing that plaintiff has “the

absolute right to refile a dismissed complaint”). That said, Rule 219(e) provides that “[a] party

shall not be permitted to avoid compliance with discovery deadlines, orders or applicable rules

by voluntarily dismissing a lawsuit.” Ill. S. Ct. R. 219(e) (eff. July 1, 2002).

¶ 63 Here, both in his brief and at oral argument, Ward admitted that his decision to voluntarily

dismiss the initial action was based on his disagreement with the trial court’s rulings. Rule

219(e) strikes the delicate balance between preserving a plaintiff’s absolute right to refile,

while discouraging noncompliance with the trial court’s orders. As the committee comments

concerning Rule 219(e) demonstrate, the paragraph does not change existing law as to a

plaintiff’s right to seek a voluntary dismissal; “[h]owever, this paragraph does clearly dictate

that when a case is refiled, the court shall consider the prior litigation in determining what

discovery will be permitted, and what witnesses and evidence may be barred.” Ill. S. Ct. R.

219(e), Committee Comments (rev. June 1, 1995).

¶ 64 Finally, this court has noted that “nothing is more critical to the judicial function than the

administration of justice without delay.” Muskat v. Sternberg, 122 Ill. 2d 41, 48 (1988). This

case was filed roughly 10 years ago, yet it remains at the pleading stage. Throughout the

tortured history of this litigation, neither the parties nor the trial judge exhibited any urgency

to resolve the matter in a timely or efficient manner. Ward filed allegations against unknown

parties and alleged that physicians had breached their duty of care, though he later conceded

that he “was unaware of such a breach.” Such allegations led to inevitable motion practice,

resulting in dismissals and additional amendments. Nor was the Hospital blameless regarding

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the sluggish pace of this case. The trial court in the refiled action observed that both parties

had not complied with the court’s discovery order in the prior case.

¶ 65 As the trial court suggested, the public’s confidence in the judicial system weakens when

cases stall. Both Mr. Ward’s family and the Hospital deserve a timely resolution of this dispute.

¶ 66 CONCLUSION

¶ 67 In sum, we hold that none of the orders dismissing counts of the various complaints in the

initial action were final. The lack of finality renders the doctrine of res judicata inapplicable.

For these reasons, the judgment of the appellate court is affirmed. The cause is remanded to

the trial court for further proceedings consistent with this opinion.

¶ 68 Appellate court judgment affirmed.

¶ 69 Circuit court judgment reversed.

¶ 70 Cause remanded.

¶ 71 CHIEF JUSTICE KARMEIER, specially concurring:

¶ 72 I concur with the majority’s holding that res judicata does not bar plaintiff’s refiled action.

The majority’s analysis, however, departs from our res judicata principles with respect to the

dismissal order addressing plaintiff’s initial complaint. I therefore write separately to clarify

when an involuntary dismissal is final for the purposes of res judicata and to explain why the

dismissal order regarding plaintiff’s initial complaint was nevertheless not a final adjudication.

¶ 73 Plaintiff’s initial complaint contained nine counts. Counts I through III were against

defendant, counts IV through VI were against Decatur Memorial Hospital Home Health

Services, and counts VII through IX were against unknown employees of defendant. The trial

court dismissed counts II, III, and VI without prejudice and with leave to amend. It also

dismissed counts I and IV without prejudice but expressly declined to address plaintiff’s

request to replead these counts until plaintiff became appointed as administrator of decedent’s

estate. The trial court also dismissed counts VII, VIII, and IX, with no indication that it granted

leave to amend these counts and no designation of whether the dismissal was with or without

prejudice. Thereafter, plaintiff filed three amended complaints. The first and second amended

complaints were dismissed, in their entirety, without prejudice and with leave to amend.

Plaintiff then voluntarily dismissed the third amended complaint and refiled the action. The

trial court granted defendant’s motion to dismiss the refiled action based on res judicata. The

appellate court reversed.

¶ 74 The majority opinion affirms the appellate court and determines that res judicata did not

bar plaintiff’s refiling. To support this determination, the majority relies on Richter and finds

that all dismissals here were not final because none of the dismissals were with prejudice and

all the orders granted leave to amend. The majority’s application of our res judicata principles,

however, is flawed.

¶ 75 In its analysis, the majority asserts that “a dismissal order is a final adjudication on the

merits under Rule 273 when the order specifies that it is ‘with prejudice’ or when the trial court

denies leave to file an amended complaint.” Supra ¶ 50. While this statement is essentially

true, it is not an accurate portrayal of Rule 273.

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¶ 76 Rule 273 actually provides that, “[u]nless the order of dismissal or a statute of this State

otherwise specifies, 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.” Ill. S. Ct. R. 273 (eff. Jan. 1, 1967). While a dismissal designated

with prejudice is usually a final adjudication under Rule 273, the designation of “with

prejudice” or an explicit denial for leave to amend is not required for an involuntary dismissal

to be a final adjudication. This court has adhered to the rule that “for purposes of Rule 273,

where a dismissal order does not specify that it is ‘without prejudice,’ or that plaintiff was

granted leave to file an amended complaint, the dismissal order is a final adjudication on the

merits.” Richter v. Prairie Farms Dairy, Inc., 2016 IL 119518, ¶ 25.

¶ 77 An involuntary dismissal with no designation of being with or without prejudice is final,

because such a dismissal does not “otherwise specify” as required under Rule 273. See Bejda

v. SGL Industries, Inc., 82 Ill. 2d 322, 328 (1980) (“Since the court’s order does not specify

otherwise, we assume, as Rule 273 requires, that the court intended the dismissal to operate as

an adjudication upon the merits, i.e., with prejudice.”). Accordingly, the majority misled its

own analysis by inverting Rule 273 to require a court to specify when an involuntary dismissal

is final rather than specifying when it is not final.

¶ 78 The order that dismissed counts VII, VIII, and IX of plaintiff’s initial complaint did not

designate whether the dismissal of those counts was with or without prejudice. Because the

trial court did not otherwise specify as to the finality of counts VII, VIII, and IX, the majority

erred in determining that all the dismissals were without prejudice.

¶ 79 The majority also erred in determining that all the dismissals in the order addressing

plaintiff’s initial complaint were not final on the basis that the order granted a limited

opportunity for leave to amend. To support its conclusion, the majority relied on a statement

made in Richter regarding the principles of finality for the purposes of appeal. Specifically, the

majority cites that “ ‘[a]n order that dismisses the counts of a complaint, but grants the plaintiff

leave to amend, is not “final” because the order does not terminate the litigation between the

parties.’ ” Supra ¶ 48 (quoting Richter, 2016 IL 119518, ¶ 25). The majority’s analysis,

however, tears this statement from the context in which Richter discussed it and ignores the

substantive effect of the dismissal order here.

¶ 80 In Richter, the plaintiffs filed a three-count complaint against the defendant. Richter, 2016

IL 119518, ¶ 7. The trial court denied the defendant’s request to dismiss count I but dismissed

counts II and III with leave to amend the complaint within 30 days. Id. ¶ 9. After the plaintiffs

elected not to amend, they proceeded on count I. Id. The plaintiffs then voluntarily dismissed

the action. Id. ¶ 10. Subsequently, they refiled the action alleging the same counts as the prior

action and one additional count. Id. ¶ 12. The defendant filed a motion to dismiss the refiled

action based on res judicata. Id. ¶ 13.The trial court dismissed the action, but the appellate

court reversed. Id. ¶¶ 13-14. This court affirmed the appellate court. Id. ¶ 54.

¶ 81 In determining that the dismissal order was not a final adjudication on the merits, this court

discussed the principles regarding finality for the purposes of appeal. Id. ¶ 25. The discussion

concluded that a dismissal with leave to amend is ultimately a dismissal without prejudice and,

correspondingly, not a final adjudication on the merits. See id. The statement, which the

majority relies on, was discussed only in this context.

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¶ 82 By discussing the principles of finality for the purposes of appeal, Richter did not imply a

rule that an order that allows leave to amend a portion of an action renders any final judgment

within that order as to another portion of the action nonfinal or that an interlocutory order

cannot contain a final judgment. Rather, this court considered this statement strictly in light of

Rule 273, the controlling authority to determine whether an involuntary dismissal is a final

judgment.

¶ 83 Rule 273 provides that an involuntary dismissal order is final, unless the order or a statute

otherwise specifies or the dismissal was based on lack of jurisdiction, improper venue, or for

failure to join an indispensable party. Ill. S. Ct. R. 273 (eff. Jan. 1, 1967). Using the principles

regarding finality for the purposes of appeal as guidance, Richter clarified that granting leave

to amend satisfies the requirement that the trial court “otherwise specifies” to the finality of an

involuntary dismissal to render the dismissal not final for the purposes of res judicata, pursuant

to Rule 273. Richter, 2016 IL 119518, ¶¶ 25-26.

¶ 84 As a result, our res judicata principles after Richter remain unaltered. In order to be “final,”

a judgment must dispose of the rights of the parties on the entire case or on a separate part of

the action. Dubina v. Mesirow Realty Development, Inc., 178 Ill. 2d 496, 502 (1997). Rule 273

provides the controlling standards to determine whether an involuntary dismissal is a final

adjudication. Ill. S. Ct. R. 273 (eff. Jan. 1, 1967). To determine whether a judgment is final,

courts look to the substance, rather than the form. Richter, 2016 IL 119518, ¶ 24.

¶ 85 Because a judgment may be final only as to part of an action, a trial court may accord

finality to a judgment regarding any claim that it intended to definitively resolve, regardless if

litigation continues on another claim. See Rein v. David A. Noyes & Co., 172 Ill. 2d 325 (1996)

(dismissal of the rescission count was a final adjudication for the purposes of res judicata,

although litigation continued on the common-law counts); Hudson v. City of Chicago, 228 Ill.

2d 462 (2008) (dismissal of the negligence claim was a final adjudication for the purposes of

res judicata, although litigation continued on plaintiff’s willful and wanton misconduct count).

Accordingly, an interlocutory order that is not final for the purposes of appeal may also be a

final judgment as to a part of an action for the purposes of res judicata. See Dubina, 178 Ill.

2d at 503; Ill. S. Ct. R. 304(a) (eff. Mar. 8, 2016). By disregarding this principle, as the majority

has done, reviewing courts run the risk of contravening our res judicata precedent that requires

courts to look at the substantive effect of a dismissal. Richter, 2016 IL 119518, ¶ 24.

Consequently, the majority erred in determining all dismissals in the order addressing

plaintiff’s original complaint were not final adjudications because, by containing the phrase

“leave to amend,” the order was interlocutory and not final.

¶ 86 Instead, we should separately analyze the substantive effect of each individual dismissal

within an order pursuant to Rule 273 to determine whether any of the dismissals were final

adjudications. It was unnecessary to clarify this standard in Richter because the same judgment

was imposed on all the dismissed counts. Nonetheless, it is clear that Richter supports such

analysis.

¶ 87 Because the dismissal order granted leave to amend all the dismissed counts in Richter,

this court determined the trial court “otherwise specified” to the finality of all the involuntarily

dismissed claims. Id. ¶ 26. Therefore, “there was no final adjudication on the merits of any of

those three claims.” Id. ¶ 40. To the contrary, the dismissal order here did not grant a general

leave to amend all the dismissed counts or the complaint in its entirety. The trial court explicitly

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allowed leave to amend counts II, III, and VI; declined to address plaintiff’s request for leave

to amend counts I and IV until a condition was met; and simply dismissed counts VII, VIII,

and IX with no indication regarding the finality of the dismissal. Without a grant for leave to

amend the complaint in its entirety, the trial court did not “otherwise specify” as to the finality

of the dismissal of counts VII, VIII, and IX. As a result, the dismissal of counts VII, VIII, and

IX would be final unless a statute provided otherwise or the dismissal fell into an exception

listed in Rule 273. Ill. S. Ct. R. 273 (eff. Jan. 1, 1967).

¶ 88 In making this determination, I note that the majority rejected the appellate court’s

contention that, “by granting the plaintiff permission to file an amended complaint, the trial

court vacates the designation of ‘with prejudice’ in its dismissal of individual counts of the

original complaint.” 2018 IL App (4th) 170573, ¶ 51; see supra ¶¶ 59-60. To support this

rejection, the majority provides an explanatory parenthetical that the term “with prejudice” is

conclusive of the rights of the parties. Supra ¶ 60. As explained above, the majority overlooks

that an involuntary dismissal may also be conclusive of the rights of the parties absent a

designation of “with prejudice.” Supra ¶¶ 79-82. Taking this misunderstanding into

consideration, the majority also seemingly agrees that the grant of leave to amend as to one

claim does not affect the finality for the purpose of res judicata with respect to another claim.

¶ 89 Although I do not find that all the dismissal orders in this case were without prejudice and

with leave to amend, I nevertheless find the dismissal of counts VII, VIII, and IX was not a

final adjudication on the merits because it falls into an exception listed in Rule 273: lack of

jurisdiction. Ill. S. Ct. R. 273 (eff. Jan. 1, 1967).

¶ 90 It is a historical tenet that “a court only entertains subject matter jurisdiction over justiciable

matters—a matter in controversy between an actual plaintiff and an actual defendant.” Bogseth

v. Emanuel, 166 Ill. 2d 507, 514 (1995). Parties to a litigation must be designated by name, not

“by mere descriptio persona.” Goodkind v. Bartlett, 153 Ill. 419, 423 (1894). A court therefore

lacks subject-matter jurisdiction over a claim against an unknown party, unless a statute

confers jurisdiction to sue an unknown or fictitious person. Bogseth, 166 Ill. 2d at 513-14.

¶ 91 Plaintiff filed counts VII, VIII, and IX against unknown employees of defendant. Yet,

plaintiff has not presented, in the trial court or before this court, a statute that would confer

jurisdiction to sue the unknown employees of defendant. Thus, as the trial court noted, the

dismissal of counts VII, VIII, and IX was based on lack of subject-matter jurisdiction. Since

the basis of the trial court’s dismissal of these counts was jurisdictional, the dismissal falls

squarely within an exception listed in Rule 273 and was not a final adjudication on the merits.

¶ 92 While I disagree with the majority’s construction of finality for the purposes of res judicata

and its application of that construction to counts VII, VIII, and IX, I concur with the majority’s

reasoning regarding the remaining dismissal orders. A claim dismissed without prejudice or

with leave to amend is not a final adjudication for the purposes of res judicata. Richter, 2016

IL 119518, ¶ 25. The trial court dismissed all other claims in this action without prejudice

and/or with leave to amend. The prior action therefore had no final orders disposing of the

rights of the parties as to any part of the action, and res judicata does not bar plaintiff’s refiled

action.

¶ 93 For the foregoing reasons, I specially concur.

¶ 94 JUSTICES THOMAS and NEVILLE join in this special concurrence.

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