                                                      FIRST DIVISION
                                                   December 21, 2009




No. 1-08-1208


ANTONI MATEJCZYK,                          )    Appeal from the
                                           )    Circuit Court of
     Plaintiff-Appellant,                  )    Cook County.
                                           )
     v.                                    )    No. 07 L 9824
                                           )
THE CITY OF CHICAGO, a Municipal           )
Corporation,                               )    The Honorable
                                           )    Diane Larsen,
     Defendant-Appellee.                   )    Judge Presiding.

     JUSTICE GARCIA delivered the opinion of the court.

     The plaintiff, Antoni Matejczyk, appeals from the dismissal

of his negligence complaint against the defendant, the City of

Chicago (the City), on res judicata grounds.     In November 2006,

Matejczyk filed an initial complaint, under circuit court number

06 L 11961, to recover for injuries he allegedly sustained while

walking on a public sidewalk.     Thereafter, Matejczyk filed a two-

count, amended complaint.     The City filed a motion to dismiss

count II pursuant to section 2-619(a)(9) of the Code of Civil

Procedure (the Code) (735 ILCS 5/2-619(a)(9) (West 2006)) as

barred by the statute of limitations.     On August 31, 2007, Judge

Jeffrey Lawrence granted the City's motion to dismiss count II,

with Matejczyk being granted leave to refile count II within 28

days.     On September 5, 2007, Matejczyk instead filed a second
1-08-1208


amended complaint with a single count.     The following day,

Matejczyk voluntarily dismissed his one-count second amended

complaint.   On September 18, 2007, Matejczyk filed, under circuit

court number 07 L 9824, a new lawsuit with two counts in which he

acknowledged the new action was a refiling of the complaint filed

in 2006.    Judge Diane Larsen granted the City's motion to dismiss

the 2007 complaint on res judicata grounds; Matejczyk appeals.

     Because Matejczyk filed his one-count, second amended

complaint after the entry of the order of August 31, 2007, which

granted the City's motion to dismiss count II on the merits, the

voluntary dismissal of his second amended complaint triggered res

judicata as to the entire cause of action, barring this

subsequent refiling.   Consequently, we affirm.

                              BACKGROUND

     On November 15, 2006, Matejczyk filed a one-count,

negligence complaint against the City, seeking recovery for

injuries he allegedly sustained when he fell on November 26,

2005, on a public sidewalk.    Matejczyk alleged that he fell in a

1 1/2-inch deep hole left in the sidewalk after a traffic signal

installed in the forties was removed on February 8, 1985.       He

alleged that the City breached its duty by failing to fill the

hole, post any warnings, or barricade the area surrounding the

hole.

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     On June 19, 2007, Matejczyk filed a first amended complaint,

which contained two counts.   Each count repeated the allegations

that the City failed to fill the hole, post any warnings, or

barricade the area surrounding the hole.   However, while count I

alleged that the signal was removed "[s]ometime after 1996,"

count II alleged that the signal was removed on February 8, 1985.

     The City filed a motion to dismiss pursuant to section 2-

619(a)(9) of the Code (735 ILCS 5/2-619(a)(9) (West 2006)).    The

City argued that it was immune from liability for the claims in

both counts regarding its failure to warn or barricade the area

pursuant to section 3-104 of the Local Governmental and

Governmental Employees Tort Immunity Act (the Act) (745 ILCS

10/3-104 (West 2006)), and that count II was barred by the

applicable 10-year statute of limitations in the Code (735 ILCS

5/13-214(b) (West 2006)).   On August 31, 2007, Judge Lawrence

entered an order granting the motion to dismiss "as to all

allegations regarding failure to barricade or warn."   The order

also granted the City's motion to dismiss count II as barred by

the statute of limitations; Matejczyk was granted leave to

replead count II "should [he] wish to do so within 28 days."     The

order did not contain Supreme Court Rule 304(a) language (210

Ill. 2d R. 304(a)), and Matejczyk did not seek to appeal.

     On September 5, 2007, Matejczyk filed a second amended

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complaint containing only one count.     That count again alleged

that the City breached its duty by failing to fill the hole, post

any warnings, or barricade the area surrounding the hole, which

was allegedly caused by the removal of the signal "prior to

November 26, 2005."   The following day, September 6, 2007,

Matejczyk moved to voluntarily dismiss the suit.     The same day,

Judge Lawrence voluntarily dismissed the case without prejudice

in what was styled an "agreed order."

     Twelve days later, on September 18, 2007, Matejczyk filed

the present action under a new circuit court number.     His

complaint acknowledged that it was a "re-filing" of the prior

case.    Matejczyk again alleged that "prior to November 26, 2005,"

the City removed the traffic signal, breaching its duty by

failing to fill the hole, post any warnings, or barricade the

area surrounding the hole.   On December 19, 2007, the City filed

a motion to dismiss the complaint pursuant to section 2-619(a)(4)

of the Code (735 ILCS 5/2-619(a)(4) (West 2006)) as barred by res

judicata.   On April 16, 2008, Judge Diane Larsen granted the

City's motion to dismiss with prejudice, "having found that this

issue is controlled by Hudson v. City of Chicago, [228 Ill. 2d

462, 889 N.E.2d 210 (2008)]."   Matejczyk timely appeals from that

order.

                              ANALYSIS

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     Res judicata bars a subsequent action if (1) a final

judgment on the merits was rendered by a court of competent

jurisdiction, (2) there is an identity of parties or their

privies, and (3) there is an identity of cause of action.

Hudson, 228 Ill. 2d at 467, citing Downing v. Chicago Transit

Authority, 162 Ill. 2d 70, 73-74, 642 N.E.2d 456 (1994).    "Res

judicata bars not only what was actually decided in the first

action but also whatever could have been decided."   Hudson, 228

Ill. 2d at 467, citing La Salle National Bank v. County Board of

School Trustees, 61 Ill. 2d 524, 529, 337 N.E.2d 19 (1975).

Matejczyk concedes that his 2006 lawsuit and his 2007 lawsuit

arose from the same incident and involved identical parties,

meeting the second and third elements of res judicata.     His only

dispute is with the finding that the 2006 lawsuit ended with a

final judgment on the merits, the first element of res judicata.

                      A. Ruling on the Merits

     Matejczyk first contends that res judicata does not apply

because no final order on the merits was entered in the 2006 suit

to trigger the doctrine.   Matejczyk argues that in both the 2006

and 2007 lawsuits, he alleged only a single cause of action for

negligence.   He contends it was this single cause of action that

he voluntarily dismissed on September 6, 2007, under the 2006

case number, which he refiled on September 18, 2007, as a new

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action under the 2007 case number, the subject of this appeal.

     The City counters that Judge Lawrence's August 31, 2007,

order granting its motion to dismiss count II was a final

adjudication on the merits of that count in the then-pending two-

count complaint.   While the negligence theory of recovery was

shared by the two counts, the respective allegation in paragraph

3 of each count differed.   It was Matejczyk that pled his cause

of action in two counts, which the City properly addressed as

distinct claims.   Matejczyk should not be allowed on appeal to

recast his first amended complaint into one that seeks to render

pointless Judge Lawrence's ruling.    We agree with the City.

     The significance of a dismissal of certain counts in a

complaint was the preliminary question in Rein v. David A. Noyes

& Co., 172 Ill. 2d 325, 339-40, 665 N.E.2d 1199 (1996).     In Rein,

actions of various plaintiffs were consolidated; the complaints

asserted counts based on common law and counts seeking

rescission.    Rein v. David A. Noyes & Co., 230 Ill. App. 3d 12,

13-14, 595 N.E.2d 565 (1992) (Rein I).    The rescission counts

were dismissed by the circuit court as barred by the statute of

limitations.    Rein I, 230 Ill. App. 3d at 14.   Subsequently, the

plaintiffs voluntarily dismissed the remaining common law counts

and appealed the dismissal of the rescission counts.     Rein I, 230

Ill. App. 3d at 14-15.   The Second District in Rein I affirmed

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1-08-1208


the dismissal.    Rein I, 230 Ill. App. 3d 12.   On review of Rein

I, the supreme court phrased the initial question as "whether the

dismissal of the rescission counts in Rein I was a final judgment

on the merits."    Rein, 172 Ill. 2d at 335.   The court noted, "The

trial judge in Rein I dismissed the rescission counts with

prejudice, pursuant to section 2-619(a)(5) of the Code, as being

barred by the statute of limitations in section 13(D) of the

[Illinois Securities Law of 1953 (Ill. Rev. Stat. 1989, ch. 121

½, pars. 137.12 (F), (G))]."    Rein, 172 Ill. 2d at 335.   As

authority that the dismissal was a final judgment on the merits,

the court cited to Supreme Court Rule 273: " '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.' "   Rein, 172 Ill. 2d at 335, quoting 134 Ill. 2d R. 273.

The court noted a dismissal operates as an adjudication on the

merits under "Rule 273 *** only to an involuntary dismissal of an

action, such as that which occurs when a motion to dismiss under

section 2-615 or 2-619 of the Code is granted."     Rein, 172 Ill.

2d at 335-36.

     We note that count II of Matejczyk's 2006 first amended

complaint was dismissed by Judge Lawrence pursuant to section 2-

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619(a)(9) of the Code as barred by the statute of limitations.

To quote the supreme court in Rein, it follows, "[t]herefore,

under Rule 273, the trial judge's decision to grant [the City's]

motion to dismiss [count II] *** based on the applicable statute

of limitations is a final adjudication on the merits and operates

as a final judgment on the merits for purposes of res judicata."

Rein, 172 Ill. 2d at 336.

     Matejczyk's contention that his case differs from Rein

because Judge Lawrence's order did not specify the dismissal of

count II "with prejudice" is unavailing.   " '[T]he effect of a

dismissal order is determined by its substance and not by the

incantation of any particular magic words,' and therefore, a

trial court's description of a final judgment as being 'without

prejudice' or 'with prejudice' is not determinative" of its

finality.   Keifer v. Rust-Oleum Corp., 394 Ill. App. 3d 485, 494,

916 N.E.2d 22 (2009), quoting Schal Bovis, Inc. v. Casualty

Insurance Co., 314 Ill. App. 3d 562, 568, 732 N.E.2d 1082 (1999).

As the supreme court made clear, "[T]he use of 'without

prejudice' language is not sufficient to protect a plaintiff

against the bar of res judicata when another part of plaintiff's

case has gone to final judgment in a previous action: 'the trial

judge's granting plaintiffs' motion to voluntarily dismiss the

common law counts without prejudice under section 2-1009 should

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1-08-1208


not be interpreted as immunizing plaintiffs against defenses

defendants may raise when the voluntarily dismissed counts were

refiled.' "   (Emphasis in original.)    Hudson, 228 Ill. 2d at 472

n.2, quoting Rein, 172 Ill. 2d at 342.

     As we noted, Judge Lawrence's order granted Matejczyk leave

to refile count II within 28 days.    However, while count I

remained pending sans the allegations regarding the City's

failure to warn or barricade the area, Matejczyk did not refile

count II; rather, he filed a single-count, second amended

complaint.    Matejczyk's contention that the two counts in his

first amended complaint are "virtually identical" except for the

date set out in the respective paragraph 3 makes clear that the

dismissal order as to count II was a final judgment on the merits

because count II violated the statute of limitations based on the

date alleged in that count's paragraph 3.    But for that date,

count II would have been identical to count I.    Moreover, as the

court noted in Rein, the dismissal of a count as barred by the

statute of limitations is a ruling on the merits under Rule 273.

The language of Rule 273 makes no distinction between a dismissal

with prejudice and without; rather, the necessary condition under

Rule 273 is an involuntary dismissal, which Judge Lawrence's

order of August 31, 2007, clearly was as brought on by the City's

2-619 motion to dismiss.    It is also reasonable to conclude that

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1-08-1208


the dismissal of count II was for all practical purposes a

dismissal with prejudice because count II could not be repled

with the same date alleged in paragraph 3, the only difference

between count II and count I.    The involuntary dismissal left

Matejczyk with a single viable claim against the City in his

first amended complaint.    That Matejczyk recognized that his two-

count, first amended complaint was reduced to a single count is

reflected in his second amended complaint filed immediately

thereafter with a single count.

     Matejczyk's overly broad contention that "[t]here is no

indication that the court intended to dispose of an entire cause

of action, or grant a final disposition of the whole case" is

simply beside the point.    It is certainly true that Judge

Lawrence's order of August 31, 2007, did not dispose of the whole

case; in fact, count I was unaffected except for Judge Lawrence's

ruling that certain allegations were barred by section 3-104 of

the Act.    Matejczyk was granted leave to refile count II if he

wished to do so.    Matejczyk elected, however, to file a second

amended complaint with a single count.    Upon the filing of the

second amended complaint, Matejczyk was free to pursue that

single-count complaint to a final judgment.    However, Matejczyk

was not free to voluntarily dismiss his second amended complaint

without exposing his subsequently refiled complaint to a possible

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1-08-1208


res judicata defense based on the prohibition against claim-

splitting.   See Hudson, 228 Ill. 2d at 472-73, citing Rein, 172

Ill. 2d at 339-40.

     No persuasive argument is put forth by Matejczyk to avoid

the clear holding in Rein that the dismissal of count II, albeit

with leave to refile, was a final judgment on the merits of count

II as it was pled in Matejczyk's first amended complaint.     Rein,

172 Ill. 2d at 335-36.   We reject Matejczyk's unpersuasive

contentions to the contrary.   We now address the consequences

that flow from the voluntary dismissal of Matejczyk's second

amended complaint, in light of the final judgment order

dismissing count II on its merits.

                         B. Claim-Splitting

     The City contends that Matejczyk engaged in claim-splitting

when he voluntarily dismissed his one-count, second amended

complaint after count II had been dismissed by Judge Lawrence

from his first amended complaint only to refile both claims in

his 2007 lawsuit.    This triggers the rule in Rein: "Rein ***

stands for the proposition that a plaintiff who splits his claims

by voluntarily dismissing and refiling part of an action after a

final judgment has been entered on another part of the case

subjects himself to a res judicata defense."    Hudson, 228 Ill. 2d

at 473, citing Rein, 172 Ill. 2d at 337-39.    "Whether a

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subsequent claim is barred by the doctrine of res judicata is a

question of law which is reviewed de novo."      Northeast Illinois

Regional Commuter R.R. Corp. v. Chicago Union Station Co., 358

Ill. App. 3d 985, 1000, 832 N.E.2d 214 (2005).     We review Rein's

analysis on claim-splitting and Hudson to determine whether Judge

Larsen was correct that the issue presented by this case "is

controlled by Hudson."    Our focus is on the City's contention

that Matejczyk engaged in claim-splitting.

     In Rein, the plaintiffs filed an eight-count complaint that

sought recovery under both rescission and common law theories.

Rein, 172 Ill. 2d at 328.    The circuit court dismissed the

rescission counts with prejudice, finding the rescission counts

barred by the applicable statute of limitations.        Rein, 172 Ill.

2d at 329.   However, no Rule 304(a) language was included in the

order to render the dismissal of the rescission counts

immediately appealable.     Rein, 172 Ill. 2d at 330.    It appears

the plaintiffs voluntarily dismissed the then-pending complaint

with its remaining common law counts in order to appeal the

dismissal of the rescission counts.     Rein, 172 Ill. 2d at 331.

After the appellate court affirmed the dismissal of the

rescission counts, the plaintiffs filed a new complaint that was

virtually identical to the original, with both rescission and

common law counts.   Rein, 172 Ill. 2d at 331.    The defendants

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moved to dismiss the entire complaint on res judicata grounds;

the circuit court granted the motion.      Rein, 172 Ill. 2d at 331-

32.   The appellate court affirmed the dismissal in Rein I and the

supreme court granted the plaintiffs leave to appeal.      Rein, 172

Ill. 2d at 332.

      As we noted in the preceding section, the dismissal of the

rescission counts in the original complaint constituted "a final

adjudication on the merits[, which] operate[d] as a final

judgment on the merits for purposes of res judicata."      Rein, 172

Ill. 2d at 336.   Our focus here is on the court's analysis of the

rule against claim-splitting: the rule "prohibits a plaintiff

from suing for part of a claim in one action and then suing for

the remainder in another action.      [Citations.]"   Rein, 172 Ill.

2d at 340.    As the court explained: "To avoid the bar of res

judicata, plaintiffs could have proceeded to a decision on the

merits of the common law counts *** and, if unsuccessful,

appealed both the result regarding the common law counts and the

trial judge's order dismissing the rescission counts with

prejudice."    Rein, 172 Ill. 2d at 340.   Because res 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," the plaintiffs were barred from refiling the

voluntarily dismissed common law counts, on which no ruling on

                                 13
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the merits was issued, because the common law counts could have

been adjudicated in the earlier suit.    Rein, 172 Ill. 2d at 338,

citing Torcasso v. Standard Outdoor Sales, Inc., 157 Ill. 2d 484,

490, 626 N.E.2d 225 (1993).

     As the Rein holding made clear, the plaintiffs were required

to delay challenging the dismissal of the rescission counts until

a decision on the merits of the remaining common law counts was

rendered.   If the on-the-merits ruling on the common law counts

gave the plaintiffs a full remedy, it would presumably render

moot the earlier decision dismissing the rescission counts.       If

the on-the-merits ruling on the common law counts went against

the plaintiffs, then the plaintiffs could seek appellate review

of both that ruling and the earlier decision dismissing the

rescission counts.

     In Hudson, the plaintiffs filed a complaint containing one

negligence count and one willful and wanton misconduct count.

Hudson, 228 Ill. 2d at 464.   Some three years after the circuit

court dismissed the negligence count with prejudice, the

plaintiffs voluntarily dismissed the remaining willful and wanton

misconduct count.    Hudson, 228 Ill. 2d at 466.   Another year

later, the plaintiffs refiled the willful and wanton misconduct

count in a new suit.    Hudson, 228 Ill. 2d at 466.   The circuit

court granted the defendant's motion to dismiss on res judicata

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grounds and the appellate court affirmed.    Hudson, 228 Ill. 2d at

466.

       On review, our supreme court in Hudson once again applied

the rule against claim-splitting it discussed in Rein.     Our

supreme court held that "a plaintiff who splits his claims by

voluntarily dismissing and refiling part of an action after a

final judgment has been entered on another part of the case

subjects himself to a res judicata defense."    Hudson, 228 Ill. 2d

at 473.    The dismissal of the negligence count in the plaintiffs'

original suit " 'operate[d] as an adjudication on the merits for

purposes of res judicata.' "    Hudson, 228 Ill. 2d at 473, citing

Rein, 172 Ill. 2d at 338.   Once again in Hudson, the plaintiffs

failed to delay the challenge to the dismissal of the negligence

count until there was a ruling on the merits on the willful and

wanton count.   Had the plaintiffs obtained a successful final

judgment on the willful and wanton count, it might have rendered

moot the earlier decision dismissing the negligence count.       Had

judgment on the willful and wanton count gone against the

plaintiffs, then the plaintiffs could have sought a review of

both that ruling and the earlier decision dismissing the

negligence count.   Because the remaining willful and wanton

misconduct claim could have been resolved in the litigation

pending before the circuit court, the plaintiffs were barred from

                                 15
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relitigating it in a separately filed suit even though no express

ruling on its merits was entered.    Hudson, 228 Ill. 2d at 474.

     We read Rein and Hudson to establish that a dismissal on the

merits by the circuit court of one or more counts in a complaint

puts the plaintiff on notice that, should he elect to take a

voluntary dismissal under section 2-1009 of the Code (735 ILCS

5/1-1009 (West 2006)) for whatever reason, he risks triggering

the res judicata bar to refiling.    The rule made clear in Rein

and Hudson flows directly from the policy considerations behind

the res judicata doctrine.   " 'Res judicata promotes judicial

economy by preventing repetitive litigation and [additionally]

protects parties from being forced to bear the unjust burden of

relitigating essentially the same case.' "    Piagentini v. Ford

Motor Co., 387 Ill. App. 3d 887, 890, 901 N.E.2d 986 (2009),

quoting Arvia v. Madigan, 209 Ill. 2d 520, 533, 809 N.E.2d 88

(2004).   To allow the splitting of claims or causes of action

even in the absence of a ruling on the merits of all claims or

all causes of action is contrary to the policy consideration

central to res judicata of promoting finality.

     Although a plaintiff may disagree with a circuit court's

ruling dismissing a count in a multicount complaint, it is

unquestionably a ruling on the merits of the dismissed count

under Rule 273 as an involuntary dismissal.   134 Ill. 2d R. 273.

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The remaining portion of the complaint, with its viable counts,

must proceed to final judgment, else risk triggering res

judicata.

     To allow voluntary dismissal of viable counts in a complaint

following an involuntary dismissal of other counts with

unfettered refiling of the complaint, in whole or in part, would

unavoidably encourage splitting of claims or causes of action.

When a circuit court issues a ruling on the merits that results

in the dismissal of a count, litigation of the remaining

complaint, subject to certain exceptions discussed below, must be

pursued to a final judgment.   To allow the voluntary dismissal of

the remaining viable counts, with the right to refile, would by

definition promote piecemeal litigation.   Such a result is

contrary to the policy consideration of promoting finality

embedded in res judicata.   In other words, a final judgment on

the merits of an involuntarily dismissed count of a multicount

complaint will render a voluntary dismissal of all remaining

counts equally final to the dismissed count.   To hold otherwise

would promote piecemeal litigation when remaining counts are

deemed to have sufficient merit to continue with litigation.

     Judge Lawrence's order of August 31, 2007, dismissing count

II of the first amended complaint was a final order, the finality

of which carried over to the remaining count when Matejczyk

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voluntarily dismissed the remaining complaint on September 6,

2007.   Stated differently, the August 31, 2007, order dismissing

count II rendered the voluntary dismissal of Matejczyk's second

amended complaint a final judgment on the merits, which precluded

the refiling of the same claims under the 2007 case number, the

subject of this appeal.

                 C. Exceptions to Claim-Splitting

     Finally, Matejczyk argues that his case triggers exceptions

to the rule against claim-splitting described in Rein and Hudson.

Specifically, Matejczyk argues that two exceptions to the rule

apply here: " '(1) the parties have agreed in terms or in effect

that plaintiff may split his claim or the defendant has

acquiesced therein; [and] (2) the court in the first action

expressly reserved the plaintiff's right to maintain the second

action.' "   Hudson, 228 Ill. 2d at 472, quoting Rein, 172 Ill. 2d

at 341.   Neither of Matejczyk's contentions that either of the

two exceptions applies is persuasive.

     First, we reject his entirely unsupported argument that

Judge Lawrence's order voluntarily dismissing his original case

signaled the City's acquiescence to claim-splitting simply

because it was titled an "agreed order."   Neither the form nor

the language of that order in any way indicates that the City

intended to allow Matejczyk to refile his claim at a later date.

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Nor was the City required to voice its objection to refiling

before Matejczyk attempted to refile.   Rein, 172 Ill. 2d at 342

("Until the plaintiffs attempted to refile *** no reason existed

for defendants to object").   When Matejczyk did refile, the City

promptly moved to dismiss on res judicata grounds, which negates

Matejczyk's claim that the City acquiesced in the refiling.

     Second, we reject Matejczyk's argument that Judge Lawrence

expressly reserved Matejczyk's right to maintain a second action

by granting him leave to refile count II within 28 days.    There

is no indication in the record that the dismissal order was

written with an exception to claim-splitting in mind.    Judge

Lawrence's order contained no language granting Matejczyk the

right to file a subsequent suit seeking identical relief despite

the general prohibition against claim-splitting.   Allowing him to

refile would not be "within the purpose and spirit" of the

exception as Matejczyk claims; the exception clearly applies only

where the circuit court expressly reserves the plaintiff's right

to refile.

     Matejczyk also contends that this case should be allowed to

proceed to trial based upon this court's recent decision in

Piagentini.   We find that case distinguishable.

     In Piagentini, the plaintiffs were injured in a car accident

and filed suit against the automobile manufacturer.     Piagentini,

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387 Ill. App. 3d at 888.    The eight counts in the plaintiffs'

amended complaint sought recovery on strict liability and

negligence theories, but shared allegations that the defendant's

car was designed with insufficient stability and lacked an

adequate seatbelt system.    Piagentini, 387 Ill. App. 3d at 888-

89.   Based on the plaintiffs' failure to disclose any witnesses

to substantiate its "insufficient stability" allegations, the

circuit court entered an agreed order for partial summary

judgment related to those allegations.    Piagentini, 387 Ill. App.

3d at 889.   That order dismissed the plaintiffs' complaint, but

granted leave to replead under both theories so long as the

counts did not include any allegations regarding stability.

Piagentini, 387 Ill. App. 3d at 889.    The plaintiffs filed a

second amended complaint excluding the stability allegations, but

later voluntarily dismissed that complaint.    Piagentini, 387 Ill.

App. 3d at 889.   Nearly a year later, the plaintiffs refiled

their claims, including those relating to vehicle stability.

Piagentini, 387 Ill. App. 3d at 889.    After litigating for 3 1/2

years, the defendant filed a motion to dismiss on res judicata

grounds only three months prior to trial, which the circuit court

granted.    Piagentini, 387 Ill. App. 3d at 889-90.

      This court reversed the dismissal, holding that the circuit

court's partial summary judgment order in the original suit was

                                 20
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not final because it "was granted as to certain allegations

within separate counts of the complaint but no actual count was

dismissed."       Piagentini, 387 Ill. App. 3d at 893.   Because "both

counts [of the original complaint] remained standing as bases for

recovery," the order did not dispose of a separate branch of the

controversy and was not final.       Piagentini, 387 Ill. App. 3d at

894.       As an independent basis for its decision, the Piagentini

court also reasoned that the circuit court's summary judgment

order was not final because it "dismissed the complaint in its

entirety but expressly granted plaintiffs 28 days in which to

replead those allegations relating to defective seatbelts."

Piagentini, 387 Ill. App. 3d at 893.      Relying on Jackson v.

Victory Memorial Hospital, 387 Ill. App. 3d 342, 352, 900 N.E.2d

309 (2008), the Piagentini court held that "an order dismissing a

complaint is not final until the trial court enters an order

dismissing the suit with prejudice."       Piagentini, 387 Ill. App.

3d at 895, citing Jackson, 387 Ill. App. 3d 352.1



       1
            The Piagentini court separately found that even if the

summary judgment order was a final ruling on the merits, the

defendant's acquiesced in the refiling of the suit when the

defendant waited over 3 1/2 years before filing its motion to

dismiss based on res judicata.       Piagentini, 387 Ill. App. 3d at

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      Neither of the bases supporting the Piagentini decision

applies here.   Unlike the circuit court's order in Piagentini,

Judge Lawrence's order did not leave "both counts [of the initial

complaint] standing as bases for recovery" (Piagentini, 387 Ill.

App. 3d at 894); instead, Judge Lawrence dismissed one of the two

counts of Matejczyk's amended complaint, in addition to claims

that the City failed to properly warn about the hole or barricade

it.   This order disposed of a "separate branch" of the

controversy and was therefore final.    Piagentini, 387 Ill. App.

3d at 894, citing Hull v. City of Chicago, 165 Ill. App. 3d 732,

733, 520 N.E.2d 720 (1987).   Further, unlike the order in

Piagentini dismissing the case in its entirety, Judge Lawrence's

order dismissed only part of Matejczyk's original complaint, with

leave to replead, if he wished, the remainder; because the entire

complaint was not dismissed, leave was not granted to replead the

complaint in its entirety because the date alleged in count II

fell outside the statute of limitations.   As discussed earlier,

dismissal of count II rendered Judge Lawrence's ruling a final

judgment on the merits of count II.    Dubina v. Mesirow Realty

Development, Inc., 178 Ill. 2d 496, 502-03, 687 N.E.2d 871



895-96.   The City, here, promptly moved to dismiss Matejczyk's

refiled lawsuit on res judicata grounds.

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1-08-1208


(1997); see also Doe v. Gleicher, 393 Ill. App. 3d 31, 36, 911

N.E.2d 532 (2009) ("Claims dismissed without an opportunity to

amend are final even if the case is not dismissed in its

entirety").

     If Matejczyk desired review of Judge Lawrence's August 31,

2007, order, he was obligated to litigate his suit to judgment on

count I, which he premised on his claim that the City negligently

failed to fill the hole, and only then appeal the earlier

involuntary dismissal of count II and his alternative claims.    Of

course, given that counts I and II were nearly identical but for

the date allegation, litigation of count I to a final judgment

would likely have rendered the dismissal of count II moot.

However, rather than continue with the litigation, Matejczyk

inexplicably elected to file a new suit.   Had Matejczyk not

insisted on pursuing his negligence suit in two counts that

offered him no greater chance of recovery, he would not be in the

predicament he finds himself today.   See Hudson, 228 Ill. 2d at

480 ("had the plaintiffs themselves not insisted on bringing a

negligence suit against an entity that is statutorily immune,

they would not be in [this] predicament").

                           CONCLUSION

     Matejczyk's first amended 2006 complaint contained two

counts, each including claims based upon the City's failure to

                               23
1-08-1208


fill the hole, post any warnings, or barricade the area

surrounding the hole in a public sidewalk.   On August 31, 2007,

Judge Lawrence dismissed count II.   Under Rule 273, that order

was a final adjudication on the merits of count II.    As such, the

order bars Matejczyk, after a voluntary dismissal of that

litigation, from refiling in his 2007 lawsuit those claims that

could have been litigated in his original 2006 suit.   We affirm

Judge Larsen's dismissal of this refiling on res judicata

grounds.

     Affirmed.

     HALL, P.J., and LAMPKIN, J., concur.




                               24
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           REPORTER OF DECISIONS - ILLINOIS APPELLATE COURT
______________________________________________________________________________
                  ANTONI MATEJCZYK,

                                Plaintiff-Appellant,

                                v.

                   THE CITY OF CHICAGO, a Municipal Corporation,

                              Defendant-Appellee.
       _______________________________________________________________

                                     No. 1-08-1208

                              Appellate Court of Illinois
                             First District, First Division

                           Filed: December 21, 2009
      _________________________________________________________________

                 JUSTICE GARCIA delivered the opinion of the court.

                     HALL, P.J., and LAMPKIN, J., concur.
      _________________________________________________________________

                  Appeal from the Circuit Court of Cook County
                    Honorable Diane J. Larsen, Judge Presiding
      _________________________________________________________________

For PLAINTIFF-           Sidney Ezra
APPELLANT                Law Office of Sidney Ezra
                         55 W. Wacker Dr., 9th Floor
                         Chicago, Illinois 60601

                         Theodore T. Scudder
                         332 South Michigan, Suite 1000
                         Chicago, Illinois 60604

For DEFENDANT-           Benna Ruth Soloman, Deputy Corporation Counsel
APPELLEE                 Myriam Zreczny Kasper, Chief Assistant Corporation Counsel

                                          25
1-08-1208


            Julian N. Henriques, Jr., Senior Counsel
            MARA S. GEORGES, Corporation Counsel, City of Chicago
            30 North LaSalle Street, Suite 800
            Chicago, Illinois 60602




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