we are going jointly and argue they have agreed that i will take fifteen minutes to address the appellate court's final order analysis which is the main issue in the case namely whether the involuntary dismissal entered by the additional argument if necessary on the main issue and address the if need be the secondary issue of express reservation exception to to the prohibition again case in this case plaintiffs originally brought a single theory of liability a single claim of legal negligence against the defendant namely that they had failed to pursue a products liability claim arising out of their representation of the plaintiffs in a worker's compensation matter negligence but a different claim based on a different aggregate set of operative facts namely that the defendants had failed to advise them about a possible legal malpractise action against previous attorneys specter and lens who had represented them much earlier they then voluntarily dismissed the play the entire case they kept repeating both claims but they dismissed the single theory of recovery analysis does not fit the the situation we have here the circumstances where there was actually a separate distinct claim decided more attention paid to that then they were allowed to repeat how that's different from the theory that single theory of recovery cases using teenie and all of the hall and other cases that rice and so on in which there were allegations on on the table at the beginning were made certain claims were we in each case we have the overarching cause of action single cause of action we have to for real ledge those claims to make different allegations within those claims to make to try to establish a right or liability that can be enforced by the court in either case there was  pursue that claim to resolution not litigated resolution but rather voluntarily dismissed that they engaged in clean slating because at that point they began a brand new round of on this before but to the degree a claim is an aggregate set of operative facts this is black giving rise to a right enforceable it seems to me you have to look at the a set of facts giving rise to that claim and what when you talk about a the first time they meant they they made the aggregate set of facts had only to do with even fence and conditions that caused the injuries to jesse hernandez we're only talking about what happened to him we had a products liability claim you didn't pursue it wasn't only advise about it was you didn't bring it then we get a different aggregate set of africa facts which have something to do with failure to two that the injury now becomes the three whenever they had they were deprived of the ability to bring a legal malpracti vest dismissed and now new allegations surface when they were allowed to replete of the same claim well then i guess you didn't tell us about the claim we had with respect to legal malpractise against the law firm  a because they failed with in they were given leave to plead new planes a new plane so you can come up with allegations that will support the new plane i know it's a subtle difference it's it's where we hang our h on the table if you can do something with those replete and make that into a viable claim that would have been run thing but it did not it said ok i'm going to allow you to he first talked about this and other cases about you can't look at just the without prejudice or leave to amend the language without looking at the whole context of the order that the  intent of the court which has been made clear in this record very clear the court intended that that plane be gone three different judges looked at it and said it should be gone and if the substance of the claim and it is a two six for products liability maybe now for chemical exposure but certainly for legal malpractise you guns law for me you know exactly what it is do you need it you can you can read that part of the transcript yes that he knew what he was doing i'm not sure that that affects the fact that he was eliminated extinguishing one claim it entirely i know they believe both fall under legal malpractise  when one of them all arising from the same marital dissolution problem and when one of them was removed the others fell it's just the fact that it was another legal malpractise claim and other negligence claim that the  by the fact that they replaced it i mean when they did amend their complaint they pleaded that again they kept it on hand for appeal it can't say it yes it became a final order on voluntary dismissal yes it was not a final order in the sense that the proceedings couldn't go forward and that they had to appeal in thirty days from the entry that order in august no they didn't they had the thirty days after voluntary dismissal almost your time is sorry if you have answered justice tice's question and i have enough i five minutes reserved for mr green and yes thank you an issue that just as calm i raged raise which is the express reservation exception to the application of the rule against claims flooding and the ad is an issue that the appellate court didn't reach  this court may or may not reach that issue should it determine to reverse the final order analysis the issue is a little bit of a strange or unusual i should say procedural pasture because the issue was not raised in the trial court the trial court granted summary or granted the motion for the defendant without express reservation ever have been raised as an exception in then  issue based on its final order analysis but it was it was our position then it was position now that the plaintiff had forfeited that issue by failing to bring it before the trial court  raise on the merits i would just briefly submit to the court that whether the record here could be construed to show the express reservation exception based on that i don't believe that's correct is contemplated by hudson and by running the argument in my judgment at best shows of recognition that there is a statutory right to refile but according to this was also mentioned in ryan such as president or any other legitimate defense it's thirteen to seventeen really pertains only to the limitations period and so i think that's an important distinction that has to be made in determining whether a poor has made a finding or the the record supports a finding that there's been an express reservation of the right to refile by the trial court a recognition rather than express reservation of the right to maintain the action as opposed to merely filing the action and even even setting that aside in this case one telling distinction between the quintus and severino cases there were emphasized by the plaintiff and the situation in this case was that in this case in the filing the action that we've identified as hernandez to  the plaintiff included all of the allegations including the initial theory based on the product liability action and certainly the notation that there could be a right to  refile in the case i don't think by any stretch could contemplate we file the action that originally had been dismissed by judge soriano so if there's no if there's no  morning your honor my name's julie point and i represent jesse and lana hernandez there was no claims in this case there was only ever one count of professional negligence we alleged in the original complaint and in refile complaint and in the amended complaint that the defendants failed to advise the plaintiffs that they might have claims against parties other than just the hernandez employers to recover for the injuries which mr hernandez suffered at work mr hernandez said three have news he could have perceived to help him live his life have funds that was social security disability claim a work comp claim and eventually a negligence claims against attorneys who failed to do that when they went he went to the first attorney cutting steel and these fumes and the the smoke was aggravating he was his illness he didn't know at the time the illness was actually being caused by that he just knew he had he had conditions which were being aggravated by that and so he went for two years he went to these s that's correct he did learn how well because the doctors eventually made that connection for the our client didn't know he's not a professional it wasn't until two thousand and three that the doctors finally told him that this is the cause of your injury he didn't know until that time and he thought maybe it was natural that's what he thought that was because the type of symptoms which are parkinson like can occur naturally in two thousand and two but nevertheless he had the claim to doctors and they had the attorneys advised him to see a doctor who could have made that connection they could have brought the claim and in fact the claim was attempted to be brought in two thousand and four judge flanagan rules that  would have the opportunity until judge soriano pushed the time forward for the statute of limitations it was only the defendants those changes but this didn't change the nature of plaintiff's claim our claim was that they weren't told about all th have to claim it was never two claims they either had a product a viable product liability claim or they had a claim against the prior czerny's who didn't bring that within the timeframe it's never too claims it's always been one claim he has your opinion of a definition order clearly didn't terminate the litigation so the test then becomes that it resolves some aspect of the underlying case and we said it didn't because our claim was that they failed to advise them about claims that mr hernandez had just because certain negligent acts are all missions coming go and a negligence claim doesn't mean there's been a resolution of that claim and clearly rain and hudson are distinguishable because in each of those cases different causes of limitation in terms of if you by judge siriano swirling in this rather than judge flanagan's as to which claim was with respect to the rule twenty two seventy three order that with regard to the august order that dismissed the original allegations are dismissed the original claim with only three plea i'm not sure whether they were arguing that it was final lenhart became final when you took the non suit and the judge at that time said i'm not going to revisit the denial of the first claim or first set of allegations at least it became final point as to whether it became final or not does that matter under your theory that there was table and i believe i believe she said that is because they have they did not ask for specific relief related to those allegations although they talked about the argument they are paying for relief and that motion to dismiss was to dismiss the complaint entire so she wasn't going to address those issues because they hadn't put them on the table that's not really fair to ask that in their request to admit but even if they had requested that relief i think it's clear that that order was not a final order because it was leave to a this court has made clear if there's leave to a man it's not a final order it could appear then appeal then because we are amending the complaint that complaint the first complaint then drops off they bring the you know we bring the second complaint we put those allegations and we direct product case at that time it was that against the attorneys who failed to tell about the products case because of the change in the time the statute of limitations but it was always just  feel for him and yes there could have been a yes it could have been done that way it was not and so then it went to the voluntary dismissal yes i'm sorry that i wasn't clear on that before  certain has said claims dismissed without an opportunity to amend our final even if the case is not dismissed in its entirety there was no opportunity to amend this claim it was dismissed without an opportunity to amend it to amend it as final because it was even if a case wasn't dismissed in its entirety it was the case went on to be there was a permission to plead some other claim  completely on whether we accept your argument that these are different claims or that these are theories or allegations as a basis for recovery of same legal mill records i believe that that's a fair statement of the of how the the case must be decided it depends upon whether we can view these as absolutely distinct claims branches of the controversy separate parts of the subject matter that was in legal malpractise against the first  right a liability amat or there's this the possibility of the law firm being liable for not having told them or pursued a products liability action was eliminated that what was added was the right or liability or matter of not fact that even there was the same elements of proof this is another thing we haven't quite talked about any time i'm sure it doesn't it aggravated form of negligence as process that so the fact that we are we were still in the area of negligence about the same event in hudson arising from that same event here arising out of five nine hundred ninety nine some time previous he didn't really know he says in his affidavit about the manganese or till two thousand and three but that affidavit also says i was very very sick from doing my work and that's what the church relied on so i think it the same facts were there it was it makes no difference whether between flanagan's ruling of what year it was an of what your it was they had they could have brought this cause of action i guess that's what i'm trying to say they had this they had knowledge it was all decided it's a matter of law in this case that they had knowledge in one thousand nine hundred five of what was going on and they could have pursued that which is the other huge part of course the phrase you got or claims that is whether or not you brought everything you could have