Hudson v. City of Chicago

CHIEF JUSTICE THOMAS

delivered the judgment of the court, with opinion.

Justices Freeman, Garman, and Karmeier concurred in the judgment and opinion.

Justice Kilbride dissented, with opinion, joined by Justice Fitzgerald.

Justice Kilbride dissented, with opinion, upon denial of rehearing, joined by Justice Fitzgerald.

Justice Burke took no part in the decision.

OPINION

On March 30, 1999, plaintiffs, George Hudson, Sr., on behalf of the estate of his deceased son, George Hudson, Jr., and Ednarine Hudson, individually and as mother and next friend of Ronita Milton, filed suit against the City of Chicago, former Chicago Fire Commissioner Edward E Altman, and unknown Chicago fire department personnel. Count I of plaintiffs’ complaint alleged negligence, and count II alleged willful and wanton misconduct in providing emergency services to George Hudson, Jr.

In October 1999, the circuit court of Cook County granted defendants’ motion to dismiss the negligence count on the ground that the City and its employees were immune under section 3.150 of the Emergency Medical Services (EMS) Systems Act (210 ILCS 50/3.150 (West 2000)).

On July 25, 2002, plaintiffs voluntarily dismissed the remaining willful and wanton misconduct count pursuant to section 2 — 1009 of the Code of Civil Procedure (the Code) (735 ILCS 5/2 — 1009 (West 2000)). On July 23, 2003, plaintiffs refiled their action, setting forth only one count for willful and wanton misconduct. Defendants moved to dismiss pursuant to section 2 — 619 of the Code (735 ILCS 5/2 — 619 (West 2006)), arguing that the refiled action was barred by res judicata. The circuit court granted the motion, and the appellate court affirmed (No. 1 — 04—0338 (unpublished order under Supreme Court Rule 23)). We allowed plaintiffs’ petition for leave to appeal (210 Ill. 2d R. 315), and we granted the Illinois Trial Lawyers Association (ITLA) leave to file a brief amicus curiae in support of plaintiffs (210 Ill. 2d R. 345).

BACKGROUND

In November 1998, five-year-old George Hudson, Jr., died from acute asthma exacerbation. On March 30,1999, plaintiffs filed a two-count wrongful-death complaint {Hudson I), alleging that on November 25, 1998, George Jr.’s mother, Ednarine, called 911 to request emergency assistance and informed the operator that the child was having breathing problems. Despite being informed that the child was suffering severe breathing problems, defendants dispatched a fire engine. The fire engine had no advanced life support and was the wrong equipment under the circumstances. An advanced life support ambulance arrived approximately 15 minutes after Ednarine’s 911 call. Plaintiffs claimed that George Jr. died as a result of the delay in providing advanced life support. Plaintiffs’ complaint alleged in count I that defendants were negligent and in count II that defendants had engaged in willful and wanton misconduct.

Defendants moved to dismiss the negligence count pursuant to section 2 — 619(a)(9) of the Code (735 ILCS 5/2 — 619(a)(9) (West 2000)), claiming immunity under section 3.150 of the EMS Act (210 ILCS 50/3.150 (West 2000)). In October 1999, the circuit court dismissed plaintiffs’ negligence claim with prejudice and continued the cause of action as to the willful and wanton misconduct count. On July 25, 2002, the circuit court granted plaintiffs’ motion to voluntarily dismiss the willful and wanton misconduct count.

On July 23, 2003, plaintiffs refiled their wrongful-death action, setting forth only one count for willful and wanton misconduct (Hudson II). The refiled complaint additionally claimed that prior to November 25, 1998, defendant City of Chicago knew that George Jr. had previously suffered serious asthmatic episodes at his home.

Defendants moved to dismiss Hudson II pursuant to section 2 — 619 of the Code (735 ILCS 5/2 — 619 (West 2000)), claiming that it was barred by res judicata. The circuit court agreed with defendants’ argument that the dismissal of plaintiffs’ negligence claim in Hudson I constituted an adjudication on the merits and that res judicata bars not only matters that were determined in the first action, but also matters that could have been determined in the original action. The circuit court therefore held that res judicata barred plaintiffs’ willful and wanton claim and granted defendants’ motion to dismiss plaintiffs’ refiled action.

Plaintiffs appealed, contending that the circuit court improperly dismissed Hudson II based on res judicata. The appellate court affirmed, relying on Rein v. David A. Noyes & Co., 172 Ill. 2d 325 (1996), and held that res judicata barred plaintiffs from refiling their willful and wanton misconduct claim.

ANALYSIS

The central issue is whether the involuntary dismissal of plaintiffs’ negligence claim and plaintiffs’ subsequent voluntary dismissal of their remaining willful and wanton misconduct claim barred the refiling of their willful and wanton misconduct claim under the doctrine of res judicata. Plaintiffs contend that the appellate court erred in concluding that the willful and wanton misconduct claim in Hudson II was barred by res judicata because there was no final adjudication on the merits of their voluntarily dismissed willful and wanton misconduct claim in Hudson I. Defendants maintain that the dismissal of plaintiffs’ negligence count in Hudson I was a final adjudication on the merits for purposes of res judicata and that, applying this court’s decision in Rein, res judicata bars plaintiffs’ willful and wanton misconduct claim. We agree with defendants and hold that plaintiffs’ refiled willful and wanton misconduct claim is barred by res judicata.

“The doctrine of res judicata provides that a final judgment on the merits rendered by a court of competent jurisdiction bars any subsequent actions between the same parties or their privies on the same cause of action.” Rein, 172 Ill. 2d at 334. Res judicata bars not only what Was actually decided in the first action but also whatever could have been decided. La Salle National Bank v. County Board of School Trustees, 61 Ill. 2d 524, 529 (1975). Three requirements must be satisfied for res judicata to apply: (1) a final judgment on the merits has been rendered by a court of competent jurisdiction; (2) an identity of cause of action exists; and (3) the parties or their privies are identical in both actions. Downing v. Chicago Transit Authority, 162 Ill. 2d 70, 73-74 (1994).

Plaintiffs do not dispute that the second and third requirements are met here. Plaintiffs contend, however, that the first element is not satisfied because the willful and wanton misconduct count was never adjudicated on the merits. Plaintiffs concede that their negligence claim was dismissed on the merits in Hudson I. The trial court dismissed the negligence count based on the defendants’ statutory immunity, and Supreme Court Rule 273 provides that “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” (134 Ill. 2d R. 273). Accordingly, the involuntary dismissal of plaintiffs’ negligence claim in Hudson I constituted an adjudication on the merits for res judicata purposes.

After their negligence count was dismissed on the merits, plaintiffs voluntarily dismissed their willful and wanton count pursuant to section 2 — 1009(a) of the Code (735 ILCS 5/2 — 1009(a) (West 2000)). Section 2 — 1009(a) provides that “[t]he plaintiff may, at any time before trial or hearing begins, *** dismiss his or her action or any part thereof as to any defendant, without prejudice, by order filed in the cause.” 735 ILCS 5/2 — 1009(a) (West 2000). Once the voluntary dismissal was entered, Hudson I was terminated in its entirety and all final orders became immediately appealable. See Dubina v. Mesirow Realty Development, Inc., 178 Ill. 2d 496, 503 (1997). Approximately one year later, plaintiffs refiled their willful and wanton claim in Hudson II, purportedly pursuant to section 13 — 217 of the Code. This section provides:

“Reversal or dismissal. In the actions specified in Article XIII of this Act or any other act or contract where the time for commencing an action is limited, if judgment is entered for the plaintiff but reversed on appeal, or if there is a verdict in favor of the plaintiff and, upon a motion in arrest of judgment, the judgment is entered against the plaintiff, or the action is voluntarily dismissed by the plaintiff, or the action is dismissed for want of prosecution, or the action is dismissed by a United States District Court for lack of jurisdiction, or the action is dismissed by a United States District Court for improper venue, then, whether or not the time limitation for bringing such action expires during the pendency of such action, the plaintiff, his or her heirs, executors or administrators may commence a new action within one year or within the remaining period of limitation, whichever is greater, after such judgment is reversed or entered against the plaintiff, or after the action is voluntarily dismissed by the plaintiff, or the action is dismissed for want of prosecution, or the action is dismissed by a United States District Court for lack of jurisdiction, or the action is dismissed by a United States District Court for improper venue.” 735 ILCS 5/13 — 217 (West 1994).¹

This filing by plaintiffs was not a continuation of Hudson I, but rather an entirely new action. See Dubina, 178 Ill. 2d at 504. Plaintiffs contend that they were entitled to proceed with Hudson II because, as far as their willful and wanton misconduct claim was concerned, there was no order that was both final and meritorious.

Defendants argue, and we agree, that plaintiffs’ argument is defeated by this court’s decision in Rein. In Rein, the plaintiffs filed an eight-count complaint {Rein I) alleging that the defendants fraudulently misrepresented the character of certain securities that they had sold to the plaintiffs. In some of the counts, the plaintiffs sought rescission of the purchase pursuant to section 13 of the Illinois Securities Law of 1953 (Ill. Rev. Stat. 1989, ch. 121V2, par. 137.13(A)(1)). In other counts, the plaintiffs alleged common law fraud and breach of fiduciary duty. The trial court dismissed three of the rescission counts on statute of limitations grounds. The trial court denied the plaintiffs’ request for a Rule 304(a) (155 Ill. 2d R. 304(a)) finding that there was no just reason to delay enforcement or appeal of the dismissed rescission counts. Plaintiffs then voluntarily dismissed the remaining counts of their complaint pursuant to section 2 — 1009(a) of the Code. Plaintiffs appealed the dismissal of the rescission counts, and the appellate court affirmed the dismissal. See Rein, 172 Ill. 2d at 328-30.

After the unsuccessful appeal, and approximately 19 months after voluntarily dismissing their remaining counts, plaintiffs refiled their entire case, including the rescission counts that were the subject of the unsuccessful appeal in Rein I in a complaint that was “virtually identical” to the complaint filed in Rein I. Rein, 172 Ill. 2d at 331. The trial court dismissed plaintiffs’ complaint based on res judicata and statute of limitations grounds. The appellate court affirmed the dismissal of plaintiffs complaint. Rein v. David A. Noyes & Co., 271 Ill. App. 3d 768 (1995). The majority held that both the rescission counts and the common law counts were barred by res judicata. One justice dissented, arguing that res judicata did not bar the common law counts. Rein, 271 Ill. App. 3d at 775-78 (Rathje, J., dissenting).

On appeal, this court affirmed the appellate court majority. This court first held that the rescission counts were clearly barred by res judicata. Those counts had been dismissed on statute of limitations grounds in Rein I, and the dismissal was upheld on appeal. Rein, 172 Ill. 2d at 334-36.

This court next discussed the common law counts, which had been voluntarily dismissed by the plaintiffs after the dismissal of the rescission counts. This court explained that three requirements must be met for res judicata to apply. There must be: (1) a final judgment on the merits rendered by a court of competent jurisdiction; (2) identity of cause of action; and (3) identity of parties or their privies. Rein, 172 Ill. 2d at 337. The court then determined that all three of these requirements had been met with respect to the counts that plaintiffs had voluntarily dismissed. Rein, 172 Ill. 2d at 338-39. This court determined that there was an identity of parties (Rein, 172 Ill. 2d at 338) and an identity of causes of action (Rein, 172 Ill. 2d at 338-39). With respect to whether there was an adjudication on the merits of the voluntarily dismissed counts, this court held the following:

“The first element of res judicata is met here because the dismissal of the rescission counts with prejudice in Rein I operates as an adjudication on the merits for purposes of res judicata, as explained earlier. Although there was not an adjudication on the merits of the common law counts in Rein I, the concept of res judicata is broader than plaintiffs suggest. If the three elements necessary to invoke res judicata are present, res judicata will bar 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. Torcasso v. Standard Outdoor Sales, Inc., 157 Ill. 2d 484, 490 (1993). Therefore, if the three requirements of res judicata are met and the common law counts could have been determined in Rein I, plaintiffs will he barred from litigating the common law counts in Rein II.

* * *

Because the common law counts arise out of the same set of operative facts as the rescission counts, plaintiffs could have litigated and resolved these claims in Rein I. Having failed to do so, plaintiffs are barred by the doctrine of res judicata from attempting to raise and litigate them in Rein II, even though there was no adjudication on the merits of these claims in the prior suit. See Restatement (Second) of Judgments §24 (1982).” Rein, 172 Ill. 2d at 337-39.

After holding that the voluntarily dismissed counts were barred by res judicata, this court next discussed the policy against claim-splitting. This court explained that the principle that res judicata prohibits a party from seeking relief on the basis of issues that could have been resolved in a previous action serves to prevent parties from splitting their claims into multiple actions. Rein, 172 Ill. 2d at 339-42. This court then adopted the exceptions to claim-splitting set forth in section 26(1) of the Restatement (Second) of Judgments (1982). Under this section, the rule against claim-splitting would not bar a second action if:

“(1) the parties have agreed in terms or in effect that plaintiff may split his claim or the defendant has acquiesced therein; (2) the court in the first action expressly reserved the plaintiffs right to maintain the second action;[²] (3) the plaintiff was unable to obtain relief on his claim because of a restriction on the subject-matter jurisdiction of the court in the first action; (4) the judgment in the first action was plainly inconsistent with the equitable implementation of a statutory scheme; (5) the case involves a continuing or recurrent wrong; or (6) it is clearly and convincingly shown that the policies favoring preclusion of a second action are overcome for an extraordinary reason.” Rein, 172 Ill. 2d at 341.

The court found that none of these exceptions were present. Rein, 172 Ill. 2d at 341-42. Next, this court addressed plaintiffs’ claim that sections 2 — 1009 and 13— 217 of the Code gave them an absolute right to refile the voluntarily dismissed counts within one year or within the remaining period of limitations. This court acknowledged plaintiffs’ rights under these sections, but held that these legislatively created rights did not automatically immunize plaintiffs against res judicata or any other legitimate defenses that a defendant might assert. Rein, 172 Ill. 2d at 342-43. Finally, this court noted two policy justifications for its holding. First, it would prevent a party from filing an action with multiple claims, dismissing several of the counts, obtaining a final judgment on the undismissed counts and, if unsuccessful on the counts not dismissed, refiling the previously dismissed counts. Second, it would prohibit plaintiffs from using voluntary dismissals to circumvent a judge’s refusal of a Rule 304(a) certification. Rein, 172 Ill. 2d at 343.

Rein thus 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. Once the holding of Rein is understood, the analysis in the present case becomes an unremarkable exercise. If we simply insert the case names and the types of counts from this case into the above-quoted passage from Rein, we would get the following:

“The first element of res judicata is met here because the dismissal of the [negligence count] with prejudice in [Hudson I] operates as an adjudication on the merits for purposes of res judicata, as explained earlier. Although there was not an adjudication on the merits of the [willful and wanton count] in [Hudson I], the concept of res judicata is broader than plaintiffs suggest. If the three elements necessary to invoke res judicata are present, res judicata will bar 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. Torcasso v. Standard Outdoor Sales, Inc., 157 Ill. 2d 484, 490 (1993). Therefore, if the three requirements of res judicata are met and the [willful and wanton count] could have been determined in [.Hudson I], plaintiffs will be barred from litigating the [willful and wanton count] in [.Hudson m.

* * *

Because the [willful and wanton count] arises out of the same set of operative facts as the [negligence count], plaintiffs could have litigated and resolved [this claim] in [.Hudson I\. Having failed to do so, plaintiffs are barred by the doctrine of res judicata from attempting to raise and litigate [it] in [Hudson II], even though there was no adjudication on the merits of [this claim] in the prior suit.”³ See Rein, 172 Ill. 2d at 337-39.

We next look to see if any of the exceptions to the rule against claim-splitting are applicable. See Rein, 172 Ill. 2d at 341. Just as none of them were present in Rein, none of them are present here. Accordingly, Rein compels an affirmance of the appellate court’s decision.

Plaintiffs and ITLA take two different approaches in trying to avoid this clearly controlling authority. Plaintiffs argue that Rein is distinguishable, while ITLA argues that Rein was right for the wrong reason. According to ITLA, Rein reached the correct result but the analysis it used threatens separation of powers principles. We address plaintiffs’ arguments first.

Plaintiffs first contend that Nowak v. St. Rita High School, 197 Ill. 2d 381 (2001), is more similar to this case than Rein and that Nowak compels a reversal of the appellate court. This argument is easily refuted. In Nowak, the plaintiff sought recovery for a violation of the Americans with Disabilties Act of 1990 (ADA) (42 U.S.C. §12101 et seq. (1994 & Supp. 1997)). He brought his action, along with a pendent state claim, in federal court. The district court granted the defendant summary judgment on the ADA claim, finding that the plaintiff was not a “qualified individual” under the ADA. The court then exercised its statutory discretion to decline jurisdiction over the pendent state claim and dismissed that claim for lack of jurisdiction. When the plaintiff refiled the state claim in state court, the defendant argued that it was barred by res judicata. This court agreed with the appellate court’s conclusion that res judicata did not bar the claim. The defendant in Nowak relied on River Park, Inc. v. City of Highland Park, 184 Ill. 2d 290 (1998), in which this court held that a plaintiff was barred by res judicata from bringing claims in state court that he could have asserted in a previous federal action. This court distinguished River Park as follows:

“Because plaintiff was required to assert all of its related claims in the federal action, and failed to do so, and because the dismissal of the federal action constituted an adjudication on the merits for purposes of Supreme Court Rule 273 (134 Ill. 2d R. 273), we found that the doctrine of res judicata had been properly applied by the circuit court to bar the subsequent assertion of claims that should have been raised in the federal action.

In this case, plaintiff asserted his contract tenure claim in the federal action, as required by the transactional test, only to have his claim dismissed by the district court ‘for lack of jurisdiction’ after an adverse decision on his ADA claim. Whether that dismissal was discretionary or otherwise is beside the point; it was a dismissal for lack of jurisdiction. There was no adjudication of the merits on that claim despite plaintiffs proper and timely assertion of the claim. With respect to that timely asserted claim, plaintiff did not get his day in court and, therefore, res judicata does not apply.” (Emphases in original.) Nowak, 197 Ill. 2d at 392.

Plaintiffs argue that Nowak is indistinguishable from the present case, focusing on the above statement that “there was no adjudication of the merits on that claim despite plaintiff’s proper and timely assertion of the claim.” However, the very next sentence shows why the two cases are different. The plaintiff in Nowak did not get his day in court on his dismissed state law claim. The federal court declined to exercise jurisdiction over that claim, so plaintiff had not had the opportunity to litigate that claim when he filed it in state court. By contrast, plaintiffs here, just like the plaintiffs in Rein, did have the opportunity to litigate all of their claims. However, they chose to voluntarily dismiss part of their case and commence a second action, after part of their case had been finally determined in a previous action. Thus, it is the following passage from Rein, rather than the above passage from Nowak, that applies to plaintiffs:

“Thus, following the final adjudication of the rescission counts in Rein I, plaintiffs were barred from litigating the common law counts in a subsequent action. To avoid the bar of res judicata, plaintiffs could have proceeded to a decision on the merits of the common law counts in Rein I and, if unsuccessful, appealed both the result regarding the common law counts and the trial judge’s order dismissing the rescission counts with prejudice. By failing to proceed on the common law counts in the first action, plaintiffs are barred from attempting to litigate those issues in a subsequent suit. See Restatement (Second) of Judgments §24 (1982).” Rein, 172 Ill. 2d at 340.

We also noted above that Rein relied on the Restatement (Second) of Judgments in setting forth six exceptions to the rule against claim-splitting and determined that none of the exceptions were present in Rein. By contrast, the situation in Nowak falls squarely within the third of these exceptions: “the plaintiff was unable to obtain relief on his claim because of a restriction on the subject-matter jurisdiction of the court in the first action.” See Rein, 172 Ill. 2d at 341. Nowak is plainly distinguishable.

Plaintiffs next argue that Rein is distinguishable and does not apply here. According to plaintiffs, Rein set forth a “case-specific, anti-abuse doctrine.” Plaintiffs bypass Rein’s holding on the res judicata issue and focus in on the two policy considerations that Rein gave in support of its holding: (1) that a contrary holding would mean that any plaintiff could file a complaint with multiple counts, voluntarily dismiss some, proceed to judgment on the undismissed counts and, if unsuccessful, refile the other counts; and (2) a contrary holding would emasculate Rule 304(a) by allowing plaintiffs to use voluntary dismissals as a means to appeal when a trial judge denies a plaintiff’s request to make a Rule 304(a) finding. See Rein, 172 Ill. 2d at 343. This, however, was not Rein’s holding, nor was it Rein’s explanation of why res judicata applied. These were simply policy reasons that the court gave in favor of the result it had already reached. Rein’s holding on the res judicata issue, which we have discussed in detail above, was stated several paragraphs earlier in the opinion. This court held that res judicata applied because all three elements of res judicata were present. Moreover, we do not find any indication in Rein that its holding was meant to be limited to these two situations.

Plaintiffs seem to have no quarrel with the proposition that res judicata would apply to the first of the two situations described in Rein. The second of the two situations is closer to what happened here, except for the fact that the attorney here did not seek Rule 304(a) language after the negligence count was dismissed and did not appeal that dismissal when it became appeal-able.⁴ This, however, is a distinction without a difference. An attorney’s subjective motivation in taking a voluntary dismissal is not part of a res judicata analysis. As Rein recognized, three factors determine whether res judicata applies: (1) a final judgment on the merits rendered by a court of competent jurisdiction; (2) identity of cause of action; and (3) identity of parties or their privies. Rein, 172 Ill. 2d at 337. Rein’s discussion of why these factors were met applies equally here.

If Rein’s central thesis — that if there is an adjudication on the merits of one claim in a case, this determination will have res judicata effect on the filing of any other claims that could have been raised and determined in the first case — is accepted, there are only two possible ways to reach different results in Rein and the present case. One possibility is that res judicata generally does not apply to the refiling of voluntarily dismissed counts after a final, appealable judgment has been entered in the first case, but that this court decided to apply that doctrine in Rein anyway because it did not like the behavior of the plaintiffs’ attorneys. The other possibility is that res judicata generally does apply to the refiling of voluntarily dismissed counts after a final appealable judgment has been entered in the first case, but that some exception applies here. It cannot be the first of these two possibilities, because surely no one would argue that courts are free to invoke wholly inapplicable legal doctrines as punitive measures. Thus, if Rein is distinguishable it would have to be on the basis that an exception to res judicata applies here. However, as we noted above, this court in Rein set forth the six situations in which it would be inequitable to apply the rule against claim-splitting, and none of those exceptions are present here.

Plaintiffs refer to Rein as a “pernicious error” and complain that applying Rein here would mean that “whenever any count in a multi-count complaint is dismissed on the merits, none of the surviving counts may be voluntarily dismissed and subsequently refiled.” Plaintiffs are incorrect. This court has set forth six situations in which plaintiffs will be allowed to split their claims into multiple actions. Moreover, one of these situations is if the defendant acquiesces in the claim-splitting. Rein, 172 Ill. 2d at 341. Thus, if an attorney is considering taking a voluntary dismissal after a final judgment has been entered on part of his case, he can seek the defendant’s acquiescence in the refiling. If the defendant is unwilling to do so, then the attorney will know that he proceeds at his peril.

Finally, plaintiffs argue that Rein will have a chilling effect on plaintiffs’ willingness to allege novel or speculative theories of recovery. According to plaintiffs, a party will have to think twice about adding novel or speculative theories of recovery to a complaint because that party may lose his or her right to take a voluntary dismissal and to refile the complaint if the novel or speculative counts are dismissed on the merits. Defendants respond that plaintiffs are as free after Rein as before to bring novel or speculative claims. Moreover, they are still free to voluntarily dismiss and refile, as long as they do so before any final judgments are entered in the case. Defendants contend that the only effect of Rein is that plaintiffs who have both sound claims and speculative ones may have to weigh whether it is more important to take a chance with the speculative claim or to have a better chance of being able to maintain an absolute right to voluntarily dismiss and refile. The stronger the claim, the greater the likelihood that a plaintiff will opt to include it. For more speculative or frivolous claims, however, there will be an incentive for the plaintiff to think twice about including it. Defendants see nothing wrong with such a result and argue that, had plaintiffs themselves not insisted on bringing a negligence suit against an entity that is statutorily immune from negligence suits, they would not be in the predicament they find themselves in today. Be that as it may, we add once more that Rein allows plaintiffs to claim-split in six different situations, and one of these is if the defendant acquiesces.

ITLA, as amicus curiae, argues that the result in Rein was correct but that the court’s res judicata analysis was not. ITLA argues that the real problem in Rein was that the plaintiffs attempted to use a voluntary dismissal as a way to avoid the trial court’s denial of Rule 304(a) language. ITLA seizes on the following sentence from Rein: “Moreover, an interpretation contrary to that reached here would emasculate Rule 304(a) by allowing a plaintiff to circumvent a trial judge’s denial of a Rule 304(a) certification by refiling previously dismissed counts following an unsuccessful judgment or appeal on counts not previously dismissed.” Rein, 172 Ill. 2d at 343. ITLA points out that this court has previously recognized the legislative prerogative in enacting sections 2 — 1009 and 13 — 217, while at the same time maintaining this court’s right to regulate the judicial system. See Gibellina v. Handley, 127 Ill. 2d 122 (1989); O’Connell v. St. Francis Hospital, 112 Ill. 2d 273 (1986). ITLA maintains that this court can use this rationale to clarify that Rein was meant to apply only to those plaintiffs who use the voluntary dismissal and refile procedure as a means of circumventing a trial court’s denial of Rule 304(a) language.

There are several problems with ITLA’s argument. First, it is difficult to accept ITLA’s assertion that this court’s true concern in Rein was that the plaintiffs used the voluntary nonsuit and refile procedure as a means of circumventing the trial court’s denial of Rule 304(a) certification. It seems unlikely that, if this were the court’s true concern, this court would have devoted a single sentence to the issue and buried it at the end of an 11-paragraph discussion that was simply window dressing. Rather, it seems clear that the court’s true concern in Rein was exactly what this court stated it to be: the plaintiffs split their claims into multiple actions. Their rescission counts were finally resolved in Rein I, and they then instituted a new action, Rein II, in which they wanted their common law counts to be resolved. See Rein, 172 Ill. 2d at 338-42.

Second, rewriting Rein in the manner ITLA suggests would not address the other policy concern that this court raised in Rein. ITLA ignores the two sentences immediately preceding the one mentioning Rule 304(a). There, this court stated: “If plaintiffs were permitted to proceed on their common law counts, any plaintiff could file an action -with multiple counts, dismiss some but not all of the counts, obtain a final judgment on the undismissed counts, and if unsuccessful on the counts not dismissed, refile the previously dismissed counts. Such a practice would impair judicial economy and would effectively defeat the public policy underlying res judicata, which is to protect the defendant from harassment and the public from multiple litigation.” Rein, 172 Ill. 2d at 343. ITLA fails to explain how rewriting Rein to apply only to those plaintiffs who use the voluntary dismissal as a means of circumventing the denial of Rule 304(a) certification would address this concern, which the Rein court raised before even mentioning Rule 304(a).

Third, ITLA fails to realize that Rein is already based on this court’s right to regulate the judicial system. As defendants point out, res judicata is a common law doctrine created by the courts to regulate the judicial system, and it exists to avoid burdening the courts and litigants with duplicative litigation. If a plaintiff uses sections 2 — 1009 and 13 — 217 to voluntarily dismiss and refile a claim after another part of the cause of action has gone to final judgment in a previous case, that plaintiff will have engaged in claim-splitting. Thus, in Rein, this court acknowledged a plaintiff’s rights under sections 2 — 1009 and 13 — 217 but stated that “we do not believe that these sections should be read to automatically immunize a plaintiff against the bar of res judicata or other legitimate defenses a defendant may assert in response to the refiling of voluntarily dismissed counts.” Rein, 172 Ill. 2d at 342-43.

Fourth, ITLA fails to grasp the consequences of the rule it proposes. For instance, would every plaintiff who takes a voluntary dismissal after a denial of Rule 304(a) certification be barred from proceeding with a second action? How would the courts know which plaintiffs are seeking to undermine the court’s authority and which plaintiffs simply genuinely determine later that they need to voluntarily dismiss? Further, under ITLA’s rule, the plaintiff who is determined to appeal the dismissed counts at all costs would likely not even ask for the Rule 304(a) certification before voluntarily dismissing the remaining counts. This way, he or she would not have to run the risk of having the request denied and later being accused of circumventing the denial of Rule 304(a) certification. It appears, then, that rewriting Rein in the manner ITLA proposes would emasculate Rule 304(a), which is precisely what Rein claimed that it was trying to avoid. See Rein, 172 Ill. 2d at 343.

Finally, ITLA suggests that rewriting Rein in the manner it suggests is necessary to avoid violating the separation of powers clause of the Illinois Constitution (Ill. Const. 1970, art. II, §1). ITLA does not develop this argument or cite any authority, but merely suggests that the analysis this court used in Rein shows that this court is unduly interfering with the legislatively created right to voluntarily dismiss and refile. There is simply no basis to this argument. Sections 2 — 1009 and 13 — 217 do not address the issues of claim-splitting or res judicata. Section 2 — 1009 gives plaintiffs the right to voluntarily dismiss an action, without prejudice, in whole or in part any time before trial or hearing begins. 735 ILCS 5/2— 1009(a) (West 2006). Section 13 — 217 is part of article XIII of the Code, which is entitled “Limitations.” This section sets forth the limitations period for, inter alia, voluntarily dismissed actions. An action that is voluntarily dismissed by the plaintiff may be refiled within one year or within the remaining limitations period, whichever is greater. 735 ILCS 5/13 — 217 (West 1994). It is true that this court has referred to section 13 — 217 as providing a plaintiff with an “absolute” right to refile a complaint within one year or within the remaining limitations period (see Timberlake v. Illini Hospital, 175 Ill. 2d 159, 163 (1997); Gendek v. Jehangir, 119 Ill. 2d 338, 340 (1988)), but this description referred only to a plaintiffs rights vis-a-vis the limitations period, which is the only subject addressed by section 13 — 217. These sections do not address what happens when a plaintiff commences a second action after part of his cause of action has gone to final judgment in a previous case. We see no basis for concluding that the legislature intended in sections 2 — 1009 and section 13 — 217 to give plaintiffs an absolute right to split their claims.

CONCLUSION

The appellate court concluded correctly that Rein is controlling. As in Rein, plaintiffs commenced a new action after part of their original cause of action had gone to final judgment in a previous case. None of the exceptions to the rule against claim-splitting are present here, and thus res judicata barred plaintiffs’ refiled complaint. We therefore affirm the appellate court’s judgment.

Appellate court judgment affirmed.

JUSTICE BURKE took no part in the consideration or decision of this case.

1 This version of section 13 — 217 preceded the amendments of Public Act 89 — 7, §15, eff. March 9, 1995. This court found Public Act 89 — 7 unconstitutional in its entirety in Best v. Taylor Machine Works, 179 Ill. 2d 367 (1997). The version of section 13 — 217 currently in effect is, therefore, the version that preceded the amendments of Public Act 89 — 7. See Unzicker v. Kraft Food Ingredients Corp., 203 Ill. 2d 64, 71 n.1 (2002).

2 The comments to section 26 of the Restatement indicate that an example of a court expressly maintaining a plaintiffs right to ' maintain a second action may be when the court indicates that its judgment is without prejudice to the bringing of a second action. See Restatement (Second) of Judgments §26(1), Comment b (1982). This comment further references section 20(l)(b), and comments f through i thereto (Restatement (Second) of Judgments §20(l)(b), Comments / through i (1982)), which sets forth the unremarkable proposition that a voluntary dismissal of an action is typically without prejudice to the bringing of a second action. When commenting on this particular exception to claim-splitting, this court explained in Rein that the use of “without prejudice” language is not sufficient to protect a plaintiff against the bar of res judicata when another part of plaintiffs 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 not be interpreted as immunizing plaintiffs against defenses defendants may raise when the voluntarily dismissed counts were refiled.” Rein, 172 Ill. 2d at 342. As Rein pointed out, a plaintiff could not file a complaint with multiple counts, take a voluntary dismissal without prejudice of some of the counts, pursue the undismissed counts to final judgment, and then harass the defendant with successive suits simply because the dismissals of those counts were entered “without prejudice.” Rein, 172 Ill. 2d at 343.

3 If there was any doubt whether this court viewed the refiling of a voluntarily dismissed count as a new action, it was resolved in Dubina v. Mesirow Realty Development, Inc., 178 Ill. 2d 496, 504 (1997), in which this court explained that a refiled count was a new, distinct action. Thus, when a plaintiff voluntarily dismisses the remaining part of an action, all final orders in the old action become immediately appealable. The refiling of the voluntarily dismissed count does not transform the final orders entered in the previous case into nonfinal ones, because the refiling commences a new action. Dubina, 178 Ill. 2d at 503-04.

4 It appears that this was not a conscious choice by plaintiffs. Defendants have asked this court to take judicial notice of Cook County circuit court case No. 04 — L—008252, in which plaintiffs are suing their original trial attorney for malpractice for, inter alia, failing to appeal the dismissal of their negligence count.