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Ward v. Decatur Memorial Hospital

Court of Appeals of Illinois, Fourth District

June 21, 2018

GERALD R. WARD, Individually and as Administrator of the Estate of Clarence R. Ward, Deceased, Plaintiff-Appellant,
v.
DECATUR MEMORIAL HOSPITAL, Defendant-Appellee.

          Appeal from the Circuit Court of Macon County No. 16L51 Honorable 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

          CAVANAGH JUSTICE.

         ¶ 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 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 ...


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