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affirmed (No. 1–04–0338 (unpublished order under Supreme Court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

-16-
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

-18-
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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