represent bank financial in this case this appeal involves the misapplication of the equitable doctrine of res judicata when i say miss application i mean it fails for lack of an essential element namely a final order that firmly and finally disposes of an issue between the parties so the september eighth order in the february fourth d w p order those orders are not final wor not a final order and it doesn't become final until such time as the period for refiling under thirteen dash to seventeen has expired flores has been echoed throughout the last thirty one years in s c vonn versus trout the court again to reaffirm that a d w p order is not final time of the entry of the february fourth two thousand and eight d w p then it in a laboratory order made the two thousand and six order judge quinn fight i believe that's their argument i believe that's our argument as well your honor ok i believe it's flawed because this is not a voluntary dismissal i think that hudson and r interlocking tory orders answered in that case becoming final an appeal that's not in dispute this was not a voluntary dismissal so what we've got is kind of circular reasoning here hudson stands for the proposition picking up and relying and finding rhyme as dispositive that if you've got a plaintive who has gone into final order i'm any aspect of ryan what the plaintiff chose to do was then voluntarily dismissed the balance and there were a number of other statutory securities counts and they dismissed the balance of all remaining claims and then a notice of appeal from the final orders that were entered with respect to the rescission claims the appeal was ultimately unsuccessful and not until seventeen months after the voluntary dismissal strike that until after the orders that resolved decision claims did ryan file another complaint and that complain t under well established case law becomes subject to even though it's not time are to come subject to defenses such as latches and raise judicata all of those cases are distinguish because there was no voluntary dismissal in this case rather the bank financial two thousand and three case was disposed of by d w p order and the defense has cited no case law final order there is no claims letter and that's what we have here because if you look at the language of hudson and again picking up on the wrong time on hudson at page four seventy three the standard is set and it says quote ryan in the stands for the proposition that a plaintiff who splits his claims by voluntarily dismissing and refiling part of an action and here's the important part after a final judgment has been entered on another part of the case subjects himself to race jud and again that's hudson at four seventy three citing rhyme at three thirty seven what's missing here there never was as a trial court correctly and expressly found there never was a final i've been before the trial judge on a number of complex issues and this one was not an easy one and the court allowed the parties extensive supplemental briefing on this issue because it was potentially she meaning judge quinn signed an order that specifically said it was stricken without prejudice and without prejudice indicates to the court that bank financial had an opportunity to refile the foreclosure count at some later date which is you agree with i absolutely think the court got that right but then the court analyzed the case as though it was the standard in hudson ryan and to being namely that it was a voluntary dismissal which then would have made all prior interlocutory orders final and appealable but that's not the and particularly the smith vs pace case and that's at three twenty three philip third ten sixty seven that case  quote as a result the order granting the plaintiff motion to voluntarily dismissed as original action never acted to fix absolutely and finally the rights of the partners consequently the non orders and served in the case were permanently rendered interlocutory in nature the only way that the character of an otherwise non final order changes to a final  is by expiration of the saving statute the time for filing so yes i believe the court got it right in looking at the character of the order at the time that it was enter and we have extensively brief that and the court considered every circumstance attendant to that order being after the court got it wrong and then analyzing the case from the standpoint of a voluntary dismissal and absent a voluntary dismissal you have no claims living so that's where i think the trial court got it wrong or right now by extension claims that doesn't make any sense frankly ironic that would be claims living by subtraction i suppose and it seems to suggest that the pla in order to properly avail itself of the saving statute of thirteen dash to seventeen has to file a mirror image of the complaints that was dismissed that's not the law it hasn't been the law if it were the law then under no circumstances would anyone be able to avail itself of the saving statute where the circumstances from that i know to have no basis in fact or law without subjecting my client myself my firm to the possibility of sanctions on the rule one thirty seven will your dirty voluntarily dismissed but if i had to refile the account knowing that the collateral that was supposed to be secured by that leasehold mortgage was constructed on another portion of the propping never secured by the mortgage and if i have what the other can't you had it once was american environmental incorporated was the mortgage or they own the property or the lease full that was supposed to be where the code generator power whit was built mr camden was an individual borrower on three notes each of which was subject to a council in the complaint in two thousand and three there were two notes that were paid off through settlements and through a u c c sale of the code generator equipment for the same reason that the plaint f could not in good faith refile a leasehold foreclosure counsel knowing it had no basis in fact or in law it could not refile a claim based on breach of a sixty six thousand four hundred dollars note or an eighty thousand dollars note there were the subjects of counts four and five of the two thousand and three complaint knowing full well that those notes had been satisfied and i think it's interesting that mr tandem doesn't raise or adopt the arguments of am a trial in this case as to the effect of failing to replete all counts because mr tendon knows darn well he can make that argument the notes were paid in full they were duly credited and bank financial could not restate counts one three or four one four or five of the two thousand three action all the court has to do is take a look at the case law to realize there is no requirement of a mirror image refiling under thirteen days to seventeen all that is necessary is that the refile complaint be the quote same cause and for as that which was subject to the prior dismissal or same cause in flores vs doogan in all the cases since that time thirty one years ago means that it arises out of the same operative core of facts now the trial court correctly noted that the council were subject to the refile complaint in two thousand and nine write down a call to the breach of notes and the breach of guarantee counts that were at issue in the two thousand and three case and i'm talking about the one point two eight million dollar note that was the subject of count one of the two thousand and three complaint that's the same cause the refiled complaint is the same cause for purpose of the same operative core of facts if you take a look at river park versus city of highland park one nine hundred ninety eight it says the same cause means the case arises from the same set the case law says there's no mirror image requirement and that's clear mayberry vs older b o l e r as a first district case from last december december two thousand and twelve it was a refile complaint alleging personal the same facts you don't have to file a marriage that's clear apollo real estate investment fund versus elbert g e l b e r first district two thousand and nine days to refile complaints at a completely new claim for the marketing versus ryan first district one nine hundred ninety one the complaint that was refile the alleged breach of contract but the court found that it was the same cause as a prior  that was subject to a dismissal order seeking relief on the basis of an accounting deal last versus huge and first district nine hundred ninety seven that was a refiled lawsuit asserting about a dozen new claims in addition to the dozen claims that were previously asserted nor subject to a dismissal order again it's the same cause so i submit that bank financials refile complaints in one thousand or two thousand and nine was the same cause and any inference that a mirror image is required to avoid the prospect of claims living is simply not in keeping with the law otherwise none of the cases i just cited for the court would have gone through the tortured analysis of whether or not it's the same cause they would just said well wait that's not a mirror image that's to spazz neither the supreme court nor the first district in any of the cases i've cited to that because that's not the law by extension we submit that saving statute in a circumstance where one of the original parties had died one of the original parties was subject to automatics day by bankruptcy one of the original parties the lawsuit was incapacitated what then would a plaintiff do if a cancer avail itself of the saving statue and again the saving statue is remedial and it's designed to avoid procedural speed identified in his brief one is a miracle for me and the other is a shame on them starting with the latter there's an additional argument raised by mr chandan that the final order requirement that is absolutely necessary to invoke the doctrine of res judicata can be found in a two thousand and five decision by judge mason in the same case that dismissed with prejudice certain of mr attendance affirmative defenses and counter claims yes now we have the final order requirement necessary and absolutely require for race judicata but now we have another problem that argument is fatally flawed for failure of another element that is essential to invoke the doctrine of race you've got a namely an identity of the cause of action correctly found looking at the avery versus state farm case relied upon by mr tanner that issue can never satisfy the final order requirement of risk you have it as to bank  the other issue that was raised in this to tandems brief is with respect to a hearing that occurred in february of two thousand and eleven before the trial court at which i appeared shortly after receiving  what is probably about five thousand pages and briefs i think there were six or eight contested motions heard of the february two thousand and eleven hearing the transcript of the hearing is in the about the character of the order that was entered by judge quinn september eighth two thousand and six i said it was i think a dismissal with prejudice well shame on me and i will tell the court as i've expressed in supplemental briefs that's the product of someone who is less than informed about all the facts and circumstances asking being ask question answering the question and getting it exactly wrong so shame on me i think it's for much smarter people than i people who wear robes to determine the character of an order entered in the course that's not for me i'm not capable of determining what the character of that order is judge peers in the trial court was capable of making that determination did make that determination guided exactly right but the rest of the analysis is flawed we would ask that the trial court order granting summary judgment to the defendants based on the doctrine of refuted to be reversed and that the case be remanded for further proceedings thank you want unless the court has further questions i'll reserve any additional time interval thank you very of his argument counts for the kind of mention towards the end of his argument that there were there was an admission during some of the proceedings that he had characterized the order of september  and that was the one that was just that's the one that was stricken but is that it was it was not suited and there's a question as to exactly what happened but taking the plaintiffs the version they voluntarily dismissed or let's take the court's version was non secret it and then transferred it to the odds of it and there is some just caution to be had and i think this is something that the court should take into account is the issue about circumstance pursue count one as a substantive matter they couldn't do it because if they did they'd be subject to one thirty seven say which is the better relevance of that you're saying he was part of a mirror the fact that two or three claims that he says he couldn't bring anymore he couldn't bring them because he said they were substantively fully impossible for him to bring to that make it a final order does that make it when it was answered if you take a look at that transfer and before the transfer or take a look at the judge's order and if we take a look at the judge's order that was entered i'm ninety eight all sex at the same time that the order everywhere without prejudice so that that means that count as a girl because that was the only chance count there was procreated chance or the right if that will help then the appropriate thing is to transfer the case to the law of the vision and that's what  shared and they determined that they're not going to pursue this claim anymore and they're not going to bring it back in the subsequent litigation that they file and in fact they determine that only the only counts that they're going to bring back our count civil procedure code one count one ok so when when the plaintiff chose not to refile on count one because they said we don't have the  follow them out ok what happens is that the d w p back on february fourth two thousand and eight which was never make it thirty days later that becomes  fourteen zero one or whether he chooses to do what he's eligible to do under the saving statute and when he doesn't if he chooses one of those options that you know under the end according to mr crowley's affidavit that's what he claims he did if that motion is considered understood by the courts of be a motion to strike under six fifteen a motion to voluntarily str and we have to take the ordinary rules and if somebody out at the time right one of the parties did not believe that that adequately reflected the attention that they had who should have corrected the order that the hernandez case that this is a substantive reason why he is not right he cannot bring this claim back and that is the reason that i would just emphasize that there is nothing in the supreme court opinions in either hunts neuron that indicated that the disposed of claimed in the earlier litigation must be either voluntarily voluntary or involuntary that that that does not come into the concern of the court and while the case is that the pla were right on may have been involuntary claims that is just because the only or claims were relating to rule two seventy three which makes it so i'll start there and then i'll be happy answer any questions mr cheney began defending the claims brought by the plaintiff in this matter in two thousand and three the two thousand and three case was based on the following legal theories he was not arguing that in connection with this the bank was completely wrong as a matter of fact these facts are taken out of the initial portion of mr tanis brief in addition it noted that the bank incorrectly told you that there were only need to be replaced judge i think that question do they need to be replied i think under hudson which we're all bound to follow the question isn't about what needs to be replied the question is was there a final order in the end in the earlier case and that's and that's why i think we need to go step back a little bit and discuss the two thousand and three case during the course of the first case in two thousand and three mr  a counterclaim the found the affirmative defense has alleged unlike but the bank just eluded her suggested to you that there was a duty to mitigate damages that were sought by the bank and the million dollar note based on an energy code generation system which was the subject of the loan which is the which was all included in the million to note m thousand and six the trial court and this court for and that your twenty three order correctly found that when they when the case was dismissed for want of prosecution many times and the last one was not vacate did and a new action was filed that the two thousand and six order striking count one was a final order that's correct and you also go it relates to what i was discussing regarding the two thousand it was an order and i think so you're saying any order it doesn't mean what do order thought that makes it i think this or i think the this court has previously correctly found their order litigation and discovery and of substantive ruling on mr tandems counted from the defenses and a dismissal of his counter claim all related to that issue the plaintiffs determined that that count which was brought which arose out of the same transaction the facts was was substantively incorrect and they withdrew it and they got it stricken by the judge and involuntary order can be final there's nothing that says it can't be and i think if we  the three saying it but there may be there may be a case like that i don't know but let's take this case in this case the involuntary was in there was there was no involuntary it was a voluntary more than two thousand and three case so so mr kenyon's counterclaim and the two thousand and three case alleged damages caused in part by the banks failure to correctly disperse the funds which were the subject of the million dollar loan and no record in the two thousand and three case dismissed mr cain as a from the defense as with prejudice in doing so the court based its opinion in part on the collateral which was the subject of count one of the mortgage foreclosure complaint a co generation equipment transaction are facts and the count one which had been brought previously after three years of discovery after substantive rulings and the counter claim related to that as well as the no there was a striking of the complaint if there even at their request which is which when don't have the record from the two thousand and three case i don't know if you have the entire reckons you don't read your case but i'm saying your honors because the plaintiff split its claims and waited so long to pursue this action that the two thousand and three record appears to be incomplete caliph callsign three ninety four eleven third three twenty four dealt with hudson and dealt with it in the way that the trial court dealt with it here and your honour's had originally dealt with it in that case what you look at fred an identity when count one was admittedly substantively no longer good and the plaintiff had discovered that over years of litigation in the two thousand and three case they asked the judge assuming they're telling the truth exactly what it says are an end in this case it means i'll tell you what it means it means that after three years of litigation in pursuing count one after the judge in the two thousand and three case striking the count dismissing the counterclaim and dismissing the affirmative in that maybe a final order but as i said it that specific instance might get saved by the exceptions to this rule there are i think six exceptions the six of which is a catch all and i suspect that that that would fall you had your chance you can't later on try to raise something that arises same transaction in this case the bank had their chance they had five years of litigation where they had the chance to get to determine in that five years they actually determined that count one was needed to be stricken because there was no good faith basis in law in fact to have that count once you set out in the case previously issued ruled on by this court thus if there was a final order disposing of the rights of the parties on a branch of the dispute rescue caught up lies to defeat plaintiff's two thousand and nine action mr in mr tenet's case that the trial court and this quote an issue of twenty three order correctly found the order striking count one of the two thousand three case became final by the plaintiff not making the d w p and filing a new and separate ac finality of the order and the prohibition against claims splitting is what matters so the final thought here and i just like to read leave it this the issue in hudson is claims splitting it's not the refiling it's not  identity of the reef cases it's the claim splitting which is what occurred in this case and if you're looking for the record and the substantive rulings and  all those reasons as well and i would just leave with this the bank has been allowed to file three briefs in this case there was a an order prior to a motion for repairing we did not receive an order ruling on the petition for rehearing we received an order setting it for all argument so we'll see to it that you get the order well the thing is your honor if the petition for rehearing is granted we should c my apologies because i think we've all seriously underestimated the time within which we would make our remarks this reminds me of the old clara heller when these commercial acceptance of the substituting where's the beef you keep asking where's the final order and i still haven't heard a good answer to that question because indeed there is none the entire argument  that they've just made in in the response that you have to look beyond the four corners of the order to determine the character of it based on the motivation of the plaintiff's counsel and nine suitin and quote a very good reason for that very sound logic you don't want piecemeal appeals and subjective thoughts to enter into all of these analyses which are purely objective objectively that border entered september eighth two thousand and six is without prejudice the transfer order that accommodated it written within a day there of by the same judge says plaintiff nine suited  there was never a final order raise juda got me judicata cannot ever apply under those circumstances and for that reason the trial court did not get it right we respectfully request that order be reversed thank you thank you