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