Ward v. Decatur Mem'l Hosp.

• Decision Date: 21 June 2018
• Docket Number: NO. 4–17–0573,4–17–0573
• Citation: 107 N.E.3d 988,2018 IL App (4th) 170573
• Parties: Gerald R. WARD, Individually and as Administrator of the Estate of Clarence R. Ward, Deceased, Plaintiff–Appellant, v. DECATUR MEMORIAL HOSPITAL, Defendant–Appellee.
• Court: United States Appellate Court of Illinois

2018 IL App (4th) 170573

107 N.E.3d 988

Gerald R. WARD, Individually and as Administrator of the Estate of Clarence R. Ward, Deceased, Plaintiff–Appellant,

v.DECATUR MEMORIAL HOSPITAL, Defendant–Appellee.

NO. 4–17–0573

Appellate Court of Illinois, Fourth District.

Filed June 21, 2018

Rehearing denied July 23, 2018

Randall A. Wolter, of Wolter, Beeman, Lynch & Londrigan, of Springfield, for appellant.

Michael J. Kehart and Regan Lewis, of Kehart, Wise, Toth & Lewis, of Decatur, for appellee.

JUSTICE CAVANAGH delivered the judgment of the court, with 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, 368 Ill.Dec. 181, 983 N.E.2d 985 ), 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 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.

¶ 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 , 228 Ill. 2d 462, 321 Ill.Dec. 306, 889 N.E.2d 210 (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

¶ 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, 321 Ill.Dec. 306, 889 N.E.2d 210. 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, 321 Ill.Dec. 306, 889 N.E.2d 210.

¶ 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, 321 Ill.Dec. 306, 889 N.E.2d 210. 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, 321 Ill.Dec. 306, 889 N.E.2d 210. 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.

¶ 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, 321 Ill.Dec. 306, 889...