dissenting:
I share the forcefully emphasized concern of the majority that there have been no hearings on the merits in this case. That a legitimate cause of action may have been lost is not a cause for celebration, especially where such tragic events as those alleged here exist.5
Nevertheless, I respectfully dissent from the majority’s conclusion that res judicata does not bar the new complaint filed in this case.
The majority states that McCastle "suggests the controlling question: if section 2—622 is not a substantive defense, then what breed of animal is it?” 286 Ill. App. 3d at 34. McCastle, however, does more than suggest the controlling question. It answers it, as well: "Requiring that section 2—622 dismissals be with prejudice would be a triumph of form over substance. It would elevate a pleading requirement designed to reduce frivolous lawsuits into a substantive defense forever barring plaintiffs who initially fail to comply with its terms.” (Emphasis added.) McCastle, 121 Ill. 2d at 193.
McCastle thus teaches that, in both form and substance, section 2—622 is simply a pleading requirement. McCastle, 121 Ill. 2d at 193; see also Rumer v. Zeigler Coal Co., 168 Ill. App. 3d 568, 574, 522 N.E.2d 830 (1988) (referring to "the pleading requirements” of section 2—622); Thompson v. Heydemann, 231 Ill. App. 3d 578, 582, 596 N.E.2d 664 (1992) ("[s]ection 2—622 is a technical pleading requirement”). Thus, a motion to dismiss for failure to comply with section 2—622 informs the circuit court merely that the pleadings are legally insufficient. It does not inform the circuit court that it lacks the sine qua non of jurisdiction—the authority to decide a case. See City of Mattoon v. Stump, 4 Ill. 2d 149, 151, 122 N.E.2d 250 (1954) (if a court lacks jurisdiction, it lacks the authority to decide a cause of action).
Our supreme court in DeLuna v. St. Elizabeth’s Hospital, 147 Ill. 2d 57, 588 N.E.2d 1139 (1992) (DeLuna I), also indicated that the requirements of section 2—622 are simply pleading requirements related to the facts that a plaintiff will ultimately have to prove at trial and, as such, are not jurisdictional in nature. In that case, the court stated, "[a]s we have already demonstrated, [section 2—622] is essentially no different from the parallel requirement generally applicable in malpractice cases that the plaintiff in such an action present expert testimony to demonstrate the applicable standard of care and its breach.” DeLuna I, 147 Ill. 2d at 73. Thus, although the supreme court in dicta recently referred to section 2—622 as a "condition” (Miller v. Gupta, 174 Ill. 2d 120, 126 (1996) ("the legislature has made the filing of a section 2—622 certificate of merit a condition of proceeding with a meritorious medical malpractice action”)), to reconcile that statement with what it said in McCastle and DeLuna I, the court must have been referring to a pleading condition or requirement, not to a precondition that is jurisdictional in nature.
A motion to dismiss for failure to comply with section 2—622 is therefore appropriately analogized to a motion to dismiss for defects in pleading. Both motions to dismiss challenge the legal sufficiency of pleadings; they do not test the veracity or accuracy of the plaintiff’s allegations. Clay v. Little Company of Mary Hospital, 277 Ill. App. 3d 175, 177, 660 N.E.2d 123 (1995). For example, although a section 2—622 affidavit may be challenged as insufficient for failing to set forth with particularity how a hospital deviated from the standard of care (Jacobs v. Rush North Shore Medical Center, 284 Ill. App. 3d 995, 1000 (1996)), there is no language in section 2—622 authorizing dismissal where the facts of an affidavit are inaccurate (Thompson, 231 Ill. App. 3d at 582).
Significantly, in this case, plaintiff’s first action was dismissed with prejudice by choice—in order to obtain both the finality and appealability of the order. "A judgment is final for appeal purposes if it determines the litigation on the merits or some definite part thereof so that, if affirmed, the only thing remaining is to proceed with the execution of the judgment.” In re Marriage of Verdung, 126 Ill. 2d 542, 553, 535 N.E.2d 818 (1989). That the dismissal here was with prejudice, and thus final, was conclusively determined by the supreme court in DeLuna I.
The majority asserts (286 Ill. App. 3d at 32) that "dismissal with prejudice” and "adjudication on the merits” are not identical. Although no authority is cited for this proposition, the majority contends that it must be so because " [equivalence is not identity” (286 Ill. App. 3d at 32 n.3) and to say otherwise would create an internal inconsistency in Rule 273’s language.
As for equivalence not being identity, precedent unfailingly shows that "dismissal with prejudice” and "adjudication on the merits” are used interchangeably. For example, although the majority relies on the American Heritage Dictionary in defining "tantamount” (286 Ill. App. 3d at 32 n.3), it ignores the definition of "dismissal with prejudice” provided in Black’s Law Dictionary: "Term meaning an adjudication on the merits, and final disposition, barring the right to bring or maintain an action on the same claim or cause.” Black’s Law Dictionary 469 (6th ed. 1990). Similarly, the seventh circuit recently stated that "dismissal for failure to state a claim *** is an adjudication on the merits—in other words, a dismissal with prejudice.” Paganis v. Bronstein, 3 F.3d 1067, 1071 (7th Cir. 1993), citing 9 C. Wright & A. Miller, Federal Practice & Procedure § 2373 (1973) (" 'with prejudice’ is an acceptable form of shorthand for 'adjudication on the merits’ ”). In the absence of precedent to the contrary, there is no basis for distinguishing the terms here.
As for the so-called inconsistency in Rule 273, what is inconsistent about an exception? And does not a need to articulate an exception prove the existence of the rule?
I note that, in Costello, the order of dismissal did not specify whether it was with or without prejudice. Costello, 365 U.S. at 268, 5 L. Ed. 2d at 554-55, 81 S. Ct. at 536. In Illinois, a dismissal for lack of jurisdiction that is silent on the question of prejudice is deemed to be a dismissal without prejudice. Norris v. Estate of Norris, 143 Ill. App. 3d 741, 748, 493 N.E.2d 121 (1986). Thus, there is no basis for applying Costello in Illinois, where, as here, a dismissal is entered with prejudice at the request of a plaintiff who is fully capable of complying with a known statutory requirement.6
In any event, in Illinois, dismissal with prejudice for failure to state a claim "acts as an adjudication on the merits and the doctrine of res judicata bars a subsequent action between the same parties on the same claim or action.” Bentley v. Glenn Shipley Enterprises, Inc., 248 Ill. App. 3d 647, 649, 619 N.E.2d 816 (1993), appeal denied, 153 Ill. 2d 557, 624 N.E.2d 804 (1993); Henstein v. Buschbach, 248 Ill. App. 3d 1010, 1015, 618 N.E.2d 1042 (1993), appeal denied, 153 Ill. 2d 559, 624 N.E.2d 807 (1993). This is so even when, to use the words of Costello, the defendant has not incurred the "inconvenience of preparing to meet the merits.” Costello, 365 U.S. at 286, 5 L. Ed. 2d at 565, 81 S. Ct. at 545.
Although a dismissal for failure to comply with section 2—622 is necessarily brought under section 2—619 because the affidavit is other affirmative matter that does not appear on the face of the complaint (as opposed to one for failure to state a claim, which is properly brought under section 2—615 of the Civil Practice Law (735 ILCS 5/2—615 (West 1994)), a dismissal for failure to comply with section 2—622 is, in form and substance, one for deficiencies in a pleading. McCastle, 121 Ill. 2d at 193; see DeLuna I, 147 Ill. 2d at 73. As such, a dismissal with prejudice for failure to comply with section 2—622 pleading requirements operates technically as an adjudication on the merits under Rule 273. Rumer, 168 Ill. App. 3d at 572 (holding that, despite that fact, failure to comply with section 2—622 does not satisfy the favorable termination requirement of an action for malicious prosecution); Bentley, 248 Ill. App. 3d at 649.
The majority’s decision has serious implications for all dismissals related to pleading deficiencies. Is a plaintiff now free to correct any defects in pleading after a dismissal with prejudice and an unsuccessful appeal simply by refiling the action within the statute of limitations? The majority’s analysis demands an affirmative response. It thus strikes a fatal blow to the overarching purpose of both res judicata and dismissal of an action with prejudice: the promotion of finality in litigation.
The likely consequence of the majority’s decision is suggested by considering the recent case of Jacobs v. Rush North Shore Medical Center, 284 Ill. App. 3d 995 (1996). There, the court held that the trial court did not abuse its discretion in dismissing with prejudice the plaintiff’s complaint for failure to comply with section 2—622 and in denying him the opportunity to replead. Jacobs, 284 Ill. App. 3d at 1000. The correctness of the holding in Jacobs aside, the majority’s holding here permits the plaintiff in that case to refile his cause of action, notwithstanding the judgment of both the circuit and the appellate courts that his cause of action was no longer viable. Does "final, appealable order” have any future validity? Are reviewing courts destined to become advisory bodies?
Consider also that the majority’s holding implicitly overrules the supreme court’s rejection of plaintiff’s request to order further proceedings in DeLuna I. There, because plaintiff chose to challenge the constitutionality of section 2—622, the supreme court declined to remand the case for further proceedings. DeLuna I, 147 Ill. 2d at 76. Notwithstanding that the supreme court has already found plaintiff’s conscious choice dispositive and declined to remand for further proceedings, the majority’s expansive interpretation of jurisdiction grants what the supreme court previously refused.
Relying heavily upon Costello, the majority answers the question it poses by concluding that "[i]n substance, if not in form,” a motion to dismiss for failure to comply with section 2—622 merely informs the circuit court that it lacks jurisdiction. 286 Ill. App. 3d at 37. Where a defendant fails to raise a plaintiff’s failure to comply with section 2—622 in the circuit court, however, the issue is deemed waived on appeal. Nikolic v. Seidenberg, 242 Ill. App. 3d 96, 102, 610 N.E.2d 177 (1993); Thompson v. Heydemann, 231 Ill. App. 3d 578, 581, 596 N.E.2d 664 (1992). Because questions of subject-matter jurisdiction are never waived, Nikolic supports the conclusion that the failure to file a section 2—622 affidavit is not jurisdictional. Moreover, the supreme court has held that a mandatory affidavit requirement that may be waived, such as the one at issue here, is not jurisdictional in nature. In re Custody of Sexton, 84 Ill. 2d 312, 319, 418 N.E.2d 729 (1981) (discussing section 610 of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1977, ch. 40, par. 610), which required that to modify a custody decree within two years of its entry, affidavits had to be filed that a child was endangered by his present environment).
For all the foregoing reasons, the majority’s construction of section 2—622 should be rejected and the judgment of the circuit court should be affirmed.
It is noteworthy that Rule 273 provides a method to challenge the validity of a statute while avoiding res judicata. That rule provides that an involuntary dismissal constitutes an adjudication on the merits, "[u]nless the order of dismissal or a statute of this State otherwise specifies” (134 Ill. 2d R. 273). In this case (and in future constitutional challenges) a ruling that the order of dismissal with prejudice did not operate as an adjudication on the merits would have allowed a constitutional challenge while preserving the right to a trial on the merits. See Walters v. Yellow Cab, 273 Ill. App. 3d 729, 738, 653 N.E.2d 785 (1995), appeal denied, 163 Ill. 2d 591, 657 N.E.2d 641 (1995).
It should be noted that Costello has been criticized as involving "so slippery a method of manipulating the concept of jurisdiction.” 18 C. Wright & A. Miller & E. Cooper, Federal Practice & Procedure § 4435, at 335 (1981). "The distorted use of 'jurisdiction’ in the Costello opinion invites distorted response.” 18 C. Wright, A. Miller & E. Cooper, Federal Practice & Procedure § 4435, at 337 (1981). The application of the Costello holding in this case creates a slippery slope, one with potentially undesirable consequences.