Ward v. Decatur Memorial Hospital , 107 N.E.3d 988 ( 2018 )

FILED
June 21, 2018
2018 IL App (4th) 170573 Carla Bender
4th District Appellate
NO. 4-17-0573 Court, IL
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
GERALD R. WARD, Individually and as ) Appeal from the
Administrator of the Estate of Clarence R. Ward, ) Circuit Court of
Deceased, ) Macon County
Plaintiff-Appellant, ) No. 16L51
v. )
DECATUR MEMORIAL HOSPITAL, ) Honorable
Defendant-Appellee. ) Thomas E. Little,
) Judge Presiding.
JUSTICE CAVANAGH delivered the judgment of the court, with opinion.
Justices Steigmann and Harris concurred in the judgment and opinion.
OPINION
¶1 Plaintiff, Gerald R. Ward, appeals from a summary judgment in favor of
defendant, Decatur Memorial Hospital, on the ground of res judicata. In our de novo review (see
Illinois Department of Financial & Professional Regulation v. Rodriguez, 2012 IL 113706,
¶ 10), we find an element of res judicata to be missing: a final adjudication on the merits.
Therefore, we reverse the trial court’s judgment, and we remand this case for further
proceedings.
¶2 I. BACKGROUND
¶3 Plaintiff filed the present case, Ward v. Decatur Memorial Hospital, Macon
County case No. 16-L-51 (Ward II), after voluntarily dismissing, without prejudice, a previous
case, Ward v. Decatur Memorial Hospital, Macon County case No. 09-L-209 (Ward I). We will
begin by recounting what happened in the two cases.
¶4 A. Ward I
¶5 1. The Dismissal of All But One Count of the Original Complaint,
With Permission To File an Amended Complaint
¶6 On December 17, 2009, in Ward I, plaintiff sued defendant, Decatur Memorial
Hospital Home Health Services (Home Health), and “unknown employees” of defendant for
alleged negligence in their medical treatment of his brother, Clarence R. Ward, whose death,
plaintiff claimed, resulted from the negligence.
¶7 On May 7, 2010, pursuant to section 2-619.1 of the Code of Civil Procedure
(Code) (735 ILCS 5/2-619.1 (West 2010)), defendant moved to dismiss all nine counts of the
complaint. (The movant was defendant alone because, as defendant explained in its motion for
dismissal, Home Health had no legal identity separate from defendant and, under Illinois law, it
was impermissible to sue “unknown employees.”)
¶8 On July 6, 2010, the trial court granted defendant’s motion for dismissal, except
as to count V, a survival action against Home Health. We need not enumerate the court’s reasons
for dismissing each of the eight counts. It is enough to observe that the court designated some
counts as dismissed “without prejudice” and other counts as simply stricken. Specifically, the
court dismissed counts I, II, III, IV, and VI “without prejudice” and struck counts VII, VIII, and
IX, without any designation of “with prejudice” or “without prejudice.” The court gave plaintiff
“leave to file an amended complaint *** within 28 days.”
¶9 2. The Dismissal of the First Amended Complaint,
With Permission To File a Second Amended Complaint
¶ 10 On August 3, 2010, plaintiff filed a first amended complaint against defendant
and Home Health. It had four counts, two of which were pursuant to the Survival Act (755 ILCS
-2­
5/27-6 (West 2006)) and the other two of which were pursuant to the Wrongful Death Act (740
ILCS 180/1 et seq. (West 2006)).
¶ 11 On August 23, 2010, pursuant to section 2-619.1, defendant moved to dismiss the
first amended complaint.
¶ 12 On October 25, 2010, the trial court granted the motion. The docket entry
designated count II as “dismissed without prejudice with leave to amend within 30 days” and the
remaining counts as simply dismissed. At the end, the docket entry “granted [plaintiff] leave to
file the second Amended Complaint within 30 days.”
¶ 13 3. The Dismissal of the Second Amended Complaint,
With Permission To File a Third Amended Complaint
¶ 14 On November 24, 2010, plaintiff filed a second amended complaint, this time
against defendant alone, seeking recovery under the Survival Act and the Wrongful Death Act.
The second amended complaint consisted of four counts, two of which raised a theory of
respondeat superior and the other two of which raised a theory of “institutional negligence.”
¶ 15 On December 23, 2010, pursuant to section 2-619.1, defendant moved to dismiss
the second amended complaint.
¶ 16 On April 6, 2011, the trial court granted the motion and gave plaintiff “leave to
file, within 28 days, a third amended complaint.”
¶ 17 4. The Third Amended Complaint
¶ 18 On May 4, 2011, after the trial court granted more time to do so, plaintiff filed a
third amended complaint. This version of the complaint was against defendant alone. It consisted
of two counts, both of which relied on a theory of respondeat superior. One count was pursuant
to the Survival Act, and the other count was pursuant to the Wrongful Death Act.
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¶ 19 On June 1, 2011, defendant filed an answer and some affirmative defense to the
third amended complaint.
¶ 20 5. The Denial of Permission To File a Fourth Amended Complaint
and the Granting of Defendant’s Motion in Limine
¶ 21 A jury trial was scheduled for January 19, 2016.
¶ 22 On January 4, 2016, plaintiff moved for permission to file a fourth amended
complaint against defendant.
¶ 23 On January 5, 2016, the trial court denied the motion, finding that the proposed
fourth amended complaint was significantly different from the third amended complaint.
¶ 24 At the same time, the trial court granted defendant's motion in limine to bar two
nurses, Tracy Rodgers and Nichele Gavin, from testifying as expert witnesses for plaintiff.
¶ 25 6. The Voluntary Dismissal
¶ 26 On January 11, 2016, pursuant to section 2-1009 of the Code (735 ILCS 5/2-1009
(West 2016)), plaintiff moved to voluntarily dismiss Ward I. That same day, the trial court
granted the motion and dismissed the case without prejudice.
¶ 27 B. Ward II
¶ 28 1. The Complaint
¶ 29 On May 5, 2016, plaintiff commenced a new action, Ward II. The complaint was
almost identical to the fourth amended complaint the trial court had refused to allow plaintiff to
file in Ward I.
¶ 30 2. Summary Judgment on the Ground of Res Judicata
¶ 31 On November 14, 2016, defendant filed a motion for summary judgment (735
ILCS 5/2-1005 (West 2016)) on the ground of res judicata. Citing Hudson v. City of Chicago,
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228 Ill. 2d 462 (2008), among other authorities, defendant argued that Ward II violated the rule
against claim-splitting.
¶ 32 Initially, on March 20, 2017, the trial court denied defendant’s motion for
summary judgment because the third amended complaint remained pending when plaintiff
voluntarily dismissed Ward I. Thus, there was no final judgment—no order that “fixed the
parties’ rights.” Without a final judgment, there could be no res judicata.
¶ 33 Defendant moved for reconsideration, and on May 11, 2017, the trial court
changed its mind, deciding that res judicata barred plaintiff’s claims in Ward II. The court
reasoned as follows:
“3. [R]es judicata bars 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.
4. In [Ward I], the Plaintiff asserted a number of theories that were
involuntarily dismissed but not repled, thereby rendering the dismissals final.
5. At the time the Plaintiff voluntarily dismissed [Ward I], the third
amended complaint was pending[,] and the issues raised therein had not yet been
determined but could have been determined therein.” (Emphasis in original.)
Consequently, the court granted defendant’s motion for reconsideration and entered a summary
judgment in defendant’s favor on the ground of res judicata. Afterward, the court denied
plaintiff’s own motion for reconsideration.
¶ 34 This appeal followed.
¶ 35 II. ANALYSIS
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¶ 36 Defendant maintains that, under Hudson, the trial court was correct to dismiss
Ward II, with prejudice, on the ground of res judicata. Defendant argues that in Ward II plaintiff
resorted to claim-splitting, which the supreme court forbade in Hudson.
¶ 37 Plaintiff disagrees. He insists that Hudson is distinguishable because, unlike him,
the plaintiffs in Hudson never received permission to replead in the original litigation.
¶ 38 In Hudson, the plaintiffs brought a tort action against the City of Chicago and
some of its employees in the fire department. Id. at 464. The complaint consisted of two counts:
count I, which alleged negligence, and count II, which alleged willful and wanton misconduct.
Id. The circuit court granted the defendants’ motion to dismiss count I with prejudice, pursuant
to section 2-619(a)(9) of the Code (735 ILCS 5/2-619(a)(9) (West 2000)), on the ground that the
city and its employees had immunity under section 3.150 of the Emergency Medical Services
(EMS) Systems Act (210 ILCS 50/3.150 (West 2000)). Hudson, 228 Ill. 2d at 464-65.
¶ 39 After the involuntary dismissal of count I, the plaintiffs moved to voluntarily
dismiss the remaining count, count II, which alleged willful and wanton misconduct. Id. at 466.
The trial court granted their motion, dismissing that count without prejudice (see 735 ILCS 5/2­
1009 (West 2000)). Id. Hudson I thereby came to an end.
¶ 40 As section 2-1009 of the Code (735 ILCS 5/2-1009 (West 2000)) allowed, the
plaintiffs commenced a new action within one year after the voluntary dismissal of Hudson I.
Hudson, 228 Ill. 2d at 466. In the new action, Hudson II, the plaintiffs pleaded only one count,
the same count of willful and wanton misconduct they had pleaded, and voluntarily dismissed, in
Hudson I. Id. The circuit court granted a motion by the defendants to dismiss Hudson II as barred
by res judicata. Id.-6­
¶ 41 The supreme court upheld the dismissal because res judicata barred not only what
was decided but whatever could have been decided in the previous action. Id. at 467. Before an
action was barred, three conditions had to be satisfied: (1) a court of competent jurisdiction
rendered a “final judgment on the merits,” (2) the causes of action were identical, and (3) the
parties or their privies were the same in both actions. Id. It was undisputed in Hudson that the
second and third conditions were satisfied. Id. The plaintiffs disputed, however, that the first
condition was satisfied. They pointed out that the count alleging willful and wanton misconduct
never was adjudicated on its merits. Id. at 467-68.
¶ 42 Again, however, if a claim was finally adjudicated on its merits in the previous
litigation, res judicata barred not only that claim but also whatever should have been adjudicated
along with that claim. Id. at 467. The dismissal of count I was the actual adjudication, which
swept up whatever else should have been adjudicated in the same action, namely, count II.
Illinois Supreme Court Rule 273 (eff. Jan. 1, 1967) regarded the dismissal of count I as a final
adjudication on the merits (Hudson, 228 Ill. 2d at 468), and because count II “[arose] out of the
same set of operative facts” as count I (internal quotations marks omitted) (id. at 474),
res judicata treated the two counts as one claim—count II “could have been decided” in the same
action as count I (id. at 467).
¶ 43 Rule 273 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.” Ill. S. Ct. R. 273 (eff. Jan. 1, 1967) Although, generally, an
“action” is defined as “[a] civil or criminal judicial proceeding” (Black’s Law Dictionary (10th
ed. 2014)), the supreme court defined “action” to include the count of a complaint. Cf. Richter v.
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Prairie Farms Dairy, Inc., 2016 IL 119518, ¶ 28 (“Even if a plaintiff subsequently elects to
stand on his or her complaint, an order striking or dismissing a complaint is not final until a
subsequent order finally dismisses the action or suit.”). The dismissal of count I was unqualified.
Therefore, under Rule 273, it was a dismissal with prejudice and, as such, a final adjudication on
the merits. Hudson, 228 Ill. 2d at 468. Because the dismissal of count I was final in nature, it
became immediately appealable when the trial court ended Hudson I by granting the plaintiffs’
motion to voluntarily dismiss count II. Id. Given the final, unappealed judgment on the merits as
to count I in Hudson I¸ the rule against claim-splitting barred count II in Hudson II.
¶ 44 Plaintiff highlights what he regards as a crucial difference between his case and
Hudson. Ward I had something that Hudson I lacked: permission to file amended complaints. He
maintains that the rule against claim-splitting is inapplicable to the present case, Ward II,
because, in Ward I, each time the trial court granted a motion for involuntary dismissal, the court
gave him permission to replead. Consequently, according to plaintiff, Ward I contains no “final
judgment on the merits” See id. at 467. (He does not dispute the satisfaction of the other two
conditions of res judicata, i.e., identical causes of actions and identical parties or privies (see
id.).) He quotes Richter: “A dismissal order that grants leave to amend is interlocutory and not
final. *** [T]here was no ‘adjudication upon the merits’ [if, in the previous litigation,] ‘the order
of dismissal *** otherwise specifie[d]’ that [the plaintiff] had leave to file an amended
complaint.” Richter, 2016 IL 119518, ¶¶ 25-26 (quoting Ill. S. Ct. R. 273 (eff. Jan. 1, 1967)).
¶ 45 Defendant counters that, even though the trial court gave plaintiff permission to
replead the original, amended, first amended, and second amended complaints, the permission
was qualified: the court specified certain counts as dismissed “without prejudice” and other
counts as simply dismissed. Defendant argues that, under Rule 273, the simple dismissals,
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lacking the qualification of “without prejudice,” were “adjudication[s] upon the merits” (Ill. S.
Ct. R. 273 (eff. Jan. 1, 1967)). Thus, defendant would extend the rationale of Hudson to cases in
which the trial court designated some counts as dismissed with prejudice and other counts as
dismissed without prejudice and gave permission to replead. In support of that extension of
Hudson, defendant cites Kiefer v. Rust-Oleum Corp., 394 Ill. App. 3d 485 (2009).
¶ 46 In Kiefer, the plaintiff, a Canadian citizen, sued two American corporations. Id. at
486. His amended complaint consisted of two counts, both premised on strict products liability.
Id. The defendants moved to dismiss the amended complaint because in British Columbia, where
the injury had occurred, the law did not recognize strict products liability. Id. at 486-87. The trial
court dismissed the amended complaint for that reason (id. at 487) but gave the plaintiff
permission to file a second amended complaint, then a third amended complaint, and, finally, a
fourth amended complaint (id. at 487-88). The fourth amended complaint consisted of two
counts, both alleging negligence. Id. at 488. A few weeks before the trial was scheduled to begin,
the court granted a motion by the plaintiff to voluntarily dismiss his negligence claims, without
prejudice, pursuant to section 2-1009 (735 ILCS 5/2-1009 (West 2006)). Kiefer, 394 Ill. App. 3d
at 488. Later, the plaintiff refiled his negligence claims in a new action. Id. The defendants
moved to dismiss the new action, with prejudice, on the ground of res judicata, and the court
granted their motion. Id.
¶ 47 On appeal, the plaintiff disputed that the order dismissing his strict products
liability claims in the previous action was a final order. Id. at 493-94. He argued that the order
was nonfinal because (1) it granted him leave to file a second amended complaint and (2) it
lacked the words “with prejudice.” Id. While acknowledging the truth of both of those
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observations, the First District treated them as “far from dispositive regarding the effect of the
order.” Id. at 494. The First District reasoned:
“Where, as here, a dismissal order does not explicitly state that it is
entered ‘with prejudice’ or ‘without prejudice,’ it is necessary ‘to look to the
substance of what was actually decided by the dismissal order’ to determine if the
order is final. McMann v. Pucinski, 218 Ill. App. 3d 101, 106 (1991). Here, there
can be no dispute that [the plaintiff’s] strict liability claims were adjudicated on
its merits. ***
*** [The involuntary dismissal] was based on the *** trial court’s
determination that [the plaintiff] could not plead any set of facts that would allow
him to recover under a theory of strict product liability.” Id. at 494-95.
It appeared, from the transcript of the hearing on the motion for dismissal, that by “ ‘leave to
amend,’ ” the trial court in Kiefer intended to give the plaintiff permission to assert negligence
claims but not to amend his (legally untenable) strict products liability claims. Id. at 495. Thus,
the First District concluded, the inclusion of the words “ ‘leave to amend’ ” in the dismissal order
and the lack of the words “ ‘with prejudice’ ” did “not affect the finality of the order with regard
to [the plaintiff’s] strict product[s] liability claims[,] as the substance of the order show[ed] that
the order was determinative of those claims.” Id. When the trial court granted the plaintiff’s
motion for a voluntary dismissal, the “final order dismissing [the plaintiff’s] strict product[s]
liability claims became immediately appealable.” Id. Because the plaintiff never appealed it, that
final order barred not only every matter actually decided in the previous case but also every
matter that could have been decided—including the claims of negligence. Id. Therefore, in
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reliance on Hudson, the First District upheld the dismissal of the new action on the ground of
res judicata. Id.
¶ 48 This result in Kiefer rests ultimately on the implied assumption that granting
permission to file an amended complaint does not undo the “with prejudice” part of a preceding
dismissal of a count with prejudice. Assume that in granting a motion to dismiss a complaint, the
trial court designates some counts as dismissed with prejudice and other counts as dismissed
without prejudice. (This would be a reasonable reading of the dismissal orders in Ward I;
designating some counts, but not others, as dismissed “without prejudice” signaled an intention
to dismiss some counts with prejudice.) Assume also that the court gives the plaintiff permission
to file an amended complaint. Seemingly, the court does so with the understanding that the
amended complaint will omit the counts dismissed with prejudice. After all, “with prejudice”
“means that [the] plaintiff will not be permitted to plead over.” Perkins v. Collette, 179 Ill. App.
3d 852, 854 (1989). So, the permission to amend the complaint appears to be qualified. Assume
the plaintiff files an amended complaint that omits the counts dismissed with prejudice and that,
before the date of the scheduled trial on the amended complaint, the court grants a motion by the
plaintiff to voluntarily dismiss the amended complaint. If the plaintiff afterward commences a
new action and if the counts of the complaint in the new action arise out of the same set of
operative facts as the counts dismissed with prejudice in the previous action, Kiefer would lead
to the conclusion that those counts are barred by res judicata—as defendant convincingly argues.
¶ 49 The trouble is, we are unconvinced by Kiefer because it is logically inconsistent
with Foxcroft Townhome Owners Ass’n v. Hoffman Rosner Corp., 96 Ill. 2d 150 (1983), and its
progeny. In Foxcroft, the supreme court held that if a trial court dismisses a complaint and the
plaintiff (with the court’s permission) files an amended complaint that omits counts that were in
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the original complaint, the plaintiff will be deemed to have “abandoned and withdrawn” those
counts (internal quotation marks omitted) (Foxcroft, 96 Ill. 2d at 154) and to have “waived” them
(id. at 155), and the reviewing court will decline to address the merits of those superseded counts
(id.). “Where an amendment is complete in itself and does not refer to or adopt the prior
pleading, the earlier pleading ceases to be a part of the record for most purposes, being in effect
abandoned and withdrawn.” (Internal quotation marks omitted.) Id. at 154. This is called “the
Foxcroft rule.” Bonhomme v. St. James, 2012 IL 112393, ¶ 27.
¶ 50 Significantly, the Foxcroft rule applies even to cases in which the trial court
dismissed counts “with prejudice.” Id. ¶ 19; Petrowsky v. Family Service of Decatur, Inc., 165
Ill. App. 3d 32, 35 (1987); Kincaid v. Parks Corp., 132 Ill. App. 3d 417, 419 (1985). To the
uninitiated, this application of the Foxcroft rule might seem paradoxical, considering that
(1) amendments filed without the trial court’s permission are a nullity (Kurczaba v. Pollock, 318
Ill. App. 3d 686, 703 (2000)) and (2) dismissing certain counts “with prejudice” would appear to
signify that, in an amended complaint, those counts will not be permitted (Jackson v. Alverez,
358 Ill. App. 3d 555, 559 (2005); O’Hara v. State Farm Mutual Automobile Insurance Co., 137
Ill. App. 3d 131, 133 (1985)). However, if the court gives permission to replead, the plaintiff not
only may but, on pain of waiver or forfeiture, must replead or otherwise incorporate the
dismissed counts in the amended complaint—even if the court dismissed those counts “with
prejudice.” See Bonhomme, 2012 IL 112393, ¶ 26 (“[E]ven assuming that the trial court in this
case had instructed [the] plaintiff to file a one-count third amended complaint and only then
appeal the dismissal [with prejudice] of her other six counts, [the] plaintiff could not treat that
instruction as license to ignore Foxcroft.” (Emphasis in original.)); Petrowsky, 165 Ill. App. 3d at
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35 (“[T]he waiver principle [in Foxcroft] applies whether or not the dismissal was ‘with
prejudice.’ ”).
¶ 51 Effectively, then, 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. See Reed v. Retirement Board of the Fireman’s Annuity &
Benefit Fund, 376 Ill. App. 3d 259, 267 (2007) (“Even if the trial court originally declares it has
dismissed a complaint with prejudice, if[,] after reconsideration[,] the court allows the plaintiff to
file an amended complaint, the prejudice of the original dismissal is vacated[,] [and] it is no
longer a final order and is therefore not appealable.”). If a court dismisses certain counts “with
prejudice,” the phrase “with prejudice” means little if the court also gives permission to file an
amended complaint. (Maybe it would serve as a forecast of how the court likely would rule on a
motion to dismiss the repleaded counts.) Having given permission to file an amended complaint,
the court cannot require the plaintiff to leave out claims from the amended complaint and thereby
abandon and forfeit them. The plaintiff has the right to preserve dismissed counts for review (see
Bonhomme, 2012 IL 112393, ¶ 26; Petrowsky, 165 Ill. App. 3d at 35), and an acceptable way of
doing so is to replead them in the amended complaint (Northbrook Bank & Trust Co. v. 2120
Division LLC, 2015 IL App (1st) 133426, ¶ 11). It follows that, regardless of whether the
dismissal order purports to dismiss certain counts “with prejudice,” “[a] dismissal order that
grants leave to amend is interlocutory and not final.” Richter, 2016 IL 119518, ¶ 25. Because the
whole point of res judicata is to prevent the resurrection of claims that already have been
decided (Scott v. Industrial Comm’n, 184 Ill. 2d 202, 219 (1998)), the dismissal of a count, even
“with prejudice,” cannot possibly be res judicata if the Foxcroft rule, as elaborated in Bonhomme
and other cases, allows the repleading of that count.
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¶ 52 As defendant observes, in Ward I, plaintiff did not always replead dismissed
counts. He omitted several previously dismissed counts from the final version of his complaint,
the third amended complaint. True, but that omission did not make the dismissal of those counts
a final order for purposes of res judicata. Instead, if plaintiff had appealed in Ward I, those
counts would have been regarded as abandoned, withdrawn, superseded, waived, or procedurally
forfeited. See Foxcroft, 96 Ill. 2d at 154-55; Bowman v. County of Lake, 29 Ill. 2d 268, 272
(1963); Amalgamated Transit Union, Local 241 v. Illinois Labor Relations Board, Local Panel,
2017 IL App (1st) 160999, ¶ 59 n.1 (by “waiver,” the supreme court sometimes means
“forfeiture”). The dismissal of a count that the plaintiff afterward abandoned in the amended
complaint does not have res judicata effect. Rather, the abandoned count “ ‘ceases to be a part of
the record for most purposes’ ” (Foxcroft, 96 Ill. 2d at 154 (quoting Bowman, 29 Ill. 2d at 272)),
and “ ‘any ruling of the court with relation to the sufficiency of the original pleadings is not
properly in the record’ ” (internal quotation marks omitted) (Consolidated Construction Co. v.
Great Lakes Plumbing & Heating Co., 90 Ill. App. 2d 196, 203 (1967) (quoting Wright v. Risser,
290 Ill. App. 3d 576, 581 (1937)). By leaving a previously dismissed count out of the amended
complaint, the plaintiff withdraws that count (Bonhomme, 2012 IL 112393, ¶ 17; Foxcroft, 96 Ill.
2d at 154), and “[t]he withdrawal of an earlier pleading leaves the issues in the same status as if
the abandoned pleading had not been filed” (Wheeler v. Sunbelt Tool Co., 181 Ill. App. 3d 1088,
1105 (1989); see also Guebard v. Jabaay, 117 Ill. App. 3d 1, 7 (1983); Blazina v. Blazina, 42 Ill.
App. 3d 159, 164 (1976)). Although “[t]he withdrawal does not eradicate the fact that the litigant
did file the pleading,” it “has the effect of removing the pleading from any and all consideration,
and the issues are left in the same status as though the withdrawn pleading had never been filed.”
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61B Am. Jur. 2d Pleading § 904 (1999). “Where a count is stricken by amendment, it will be
regarded as though never introduced.” 71 C.J.S. Pleading § 465 (2011).
¶ 53 In sum, the binding authority of Bonhomme and Foxcroft compels us to
respectfully disagree with Kiefer’s application of Hudson. We find Hudson to be distinguishable
because, in Hudson I, the trial court never gave permission to file an amended complaint after
dismissing a count of the complaint with prejudice (see Hudson, 228 Ill. 2d at 466). In Ward I,
by contrast, the trial court gave 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. “A dismissal order that grants leave to amend is *** not final” (Richter,
2016 IL 119518, ¶ 25), and without “a final judgment on the merits,” there can be no res judicata
(Hudson, 228 Ill. 2d at 467).
¶ 54 III. CONCLUSION
¶ 55 For the foregoing reasons, we reverse the trial court’s judgment, and we remand
this case for further proceedings.
¶ 56 Reversed and remanded.
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