a doctoring is not an absolute doctrine and i think we have to take that into perspective in this case as the court in hedging teenie versus ford motor company indicated  a cutter should not be technically applied if an equitable or unfair result would occur it shouldn't be applied if it's fundamentally unfair to apply and really should only be applied fairness and justice require i think some of that gets lost in all of the legal arguments surrounding this case and i think we have to go back to the time this case occurred to really take a look at what happened when this case occurred meaning the voluntary dismissal was that there was no huts there was no point this week at the bar and this is reflected in the wine case the the bar in the trial  action after the other claims the gun to judgment was not proposed until running and at that time it was introverted in a completely different way by the plaintiff's bar and it was not clarified that it applied to personally three lawsuits until the hudson case came about which was this voluntary dismissal occurred in this case and i think on an equitable basis i would ask the court to keep that's a keep that i pray that reality in mind because because of a neck little basis i think it's injury plaintiff and i think that this reflects the intention of the parties when a voluntary dismissed was entered which was clearly to refile the case and not be prejudiced and not have a bar to refile in the case right right well you'll agree that the willful want didn't have a prayer i mean that's outside of the box absolutely agree that the other one is i view it and i i i i am almost saying i don't think the supreme court agrees with themselves i think they're split in the middle because you had a dissent in the what is it that hudson yeah and to be honest with you i think the dissent makes more sense than the majority opinion so i am simply saying i think that to the dissented it appears are more knowledgeable in procedural law in the in the thing that i have been the major problem say how your case fits into what i'm thinking well what you're thinking i think was expressed by judge ward in the file for he had great difficulty in interpreting us and as to make it a  after i mean every case would have been dismissed on that basis in between right and hudson if that was really thought of as the law so that's and came down and i think most judges have a problem with it i'm not here to say that they're wrong i mean i say the supreme court is wrong but it certainly is an extremely extremely large unexpected result and i'm saying is that when you when you take a look at it and this is also in about an area of the long i think the courts where i think in several ways first of all this is a little bit different than hudson not counts it's better on the dismissal but it's a little bit different because of this appeal issue in the confusion that came about surrounding this appeal when the appeal was filed we took the position that the scale of the appeal should be dismissed and the the defendant took the position rapidly took the position that the heel should not be dismissed because all the orders were now final since that was a voluntary dismissal and the case was final order no it did not but really that was the only issue that was raised i mean in our motion that's all we said we said that you know it should be just the appeal should be dismissed i suspect it was from a different division because the motions are generally ending before and right before we get right but i mean we assume that certainly there was not going to be a bar only certain that their position would be at all libby's orders were suddenly final and then employed as i understand it did not did not go along the same lines as the issue that was before the public court in the motion st for whatever reason and i think even more importantly we have to look at the cases that came up afterwards because i think those deal with the equitable issues and again especially in light of cases that were filed were found they were just missiles that were entered before heads and even a clerk we have issues about allowing contemplating to leave the refile a case which goes to express their reservations by the court which i think i don't think there's any difference defendant can who is prejudiced roque do you feel and i guess what that kind of pushes the theory that is your case a new case when you refile or is this just a continuation of the prior case that in other words i would feel that a continuation is not prejudicial whereas a new case unfortunately your second one was a new case would be but you know that also falls into the area of what is really happening in the case i mean what is really happening you're taking in case you're found there really just missing everyone knows it's got to be refiled and it wouldn't have been down there really dismissed in the first place possibly people who decided right but even then it wasn't decided later i think it would have been brought up long before long ago so he decided to take about thirty dismissal based on his representation and the issue of claims splitting i mean i realize the court addresses the issue of claims that splitting in hudson but really is this really what was this really be a tenth of the parties i mean i think obviously not a person goes with a contemplating claims splitting i think that's the furthest thing from reality they're not that what i mean it's just not in the contemplation of what's going on and that's part of the equitable issue that it has to be taken in the context of what's really going on in the real green and they're saying if there's a reservation if there's an express reservation or even implied reservation that the court wants this to refile the contemplates refiling we're going to allow that because that's what's going that's what's really going on bringing important judgment in and i mean that's different but in your basic personal injury cases we have to counsel one gets dismissed and especially before once and that was not what was going on so i think it equitable fairness test to be injected into the case and that's what we're asking this court to deal with and we're asking this court to do it especially in light of the reservation but i have the right to refile it's very clear it's on a certified  is no different than quite this it's in the worth i mean people wouldn't have put that in the order to refile it at such and such a time with cost being why would you go to the trouble to put that in the order that cost would be repaid in the future by the flight player when he refile or similar language if you want to kind of play refine it just doesn't make any sense so we have extremely harsh result and we have the obvious intention of the parties and the time frame which all a and i'm i'm you know when i'm having trouble i don't feel there's a determination based on the merits when you allow this to happen under residue to kind of because i don't really feel in in this situation it can be rescued a cat and i'm not so sure hudson really says that it is i think day they refer to  made a motion to dismiss based upon the supreme court ruling in the hudson case and to say that that's in case was new i think even the supreme court said this is not new this is an unremarkable exercise in filing the r decision for me personally the right decision flew under the radar and i wasn't aware apparently a lot of people weren't and when the hudson decision came down a lot of people became aware of it and acted upon with the supreme court has ruled  so that argument was there the people in the hudson case made that argument at the trial court level made that argument at the appellate court level made that argument at the supreme court level before it was finally published so that argument was being made by some people years earlier based on the right decision the fact that the supreme court ruled the way it did that's that's the way the court ruled and we are operating based on what the supreme court's ruling does and that's our case here is squarely the same fact pattern as the hudson case there are kind of three different areas i'd like to you know think the original action we filed a motion to dismiss the animal control act count and a motion to strike the negligence count an order was entered granting the dismissal with prejudice of the animal control intent of the court that that was a final order later we moved to after the plane to file the many complaint we moved to dismiss the amended complaint because dismissed when we filed an appeal and called severino why we did not appeal the grant of the dismissal of the animal control act we were the beneficiary of that decision we filed an appeal of the of our motion to dismiss and what we argued was that in a situation like this where there's a final order over there the dismissal of the animal control it count that that final order became final appealable upon the voluntary dismissal of the case and because there's a final an appealable order in this matter something to take up on appeal if anybody wanted to bother that horrible long those previously non final rulings and made them final the court ruled motion to dismiss is granted and if we so there was no final or no final order for the dismiss the denial of our move we were seeking that the appellate court ruled that the trial court was incorrect in the denial of our motion to dismiss based on statute of limitations this isn't really a claim splitting the same as what they were trying to get rid of the supreme court this is an example of a legitimate case where they went to far with well but they still had a negligence out and my belief is that that was not a final disposition on the merits but the front of this position on the merits was of the animal control act right now it really is there and i'm just saying when a refile they have an absolute right and then when they disposed of this they're saying it's full then because it could have been dealt with but when i listen to him i'm saying there's a perfect example where maybe it wasn't legitimately polled them and therefore these cases almost have to be determined on their fact basis rather than on a case that was determined not its own facts hudson it except this mirrors what happened in the hudson case where one count was dismissed on the merits and that became a final order and when the voluntary dismissal took place that was a filing filled order and because there was a final judgment on the merits on one count when the new e file the action was filed there was that final judgment on the merits it was an identity of the cause of action from the first case and there was an identity of parties in the it's in court said if we have those three things that's it that's that's what the supreme court ruled the the  war of the case from that appellate court decision in separate one was not that the dismissal of the animal control act was somehow not final but was the case was that none final orders don't become final simply because there's a final order over there when there's a voluntary dismissal that doesn't make it on final orders into final orders so we have a situation where we've got does become  i'm not i'm just saying i just the difficulty in my mind seeing how here it's not in five minutes later a death well and in it in this particular case judge you know we do have the cl i'd like to address briefly the issue of this exception when you when you've got a situation like we have it that fits within hudson with the rule against claims splitting barring  court expressed expressly reserving the right of the plaintiff to refile if either one of those takes place that exception allows the plaintiff to do the refile and what i want to bring to the court's attention is that in the briefs now the appellant is essentially hanging their hat on the express reservation exception and that express reservation exception was never raised in the trial but also we have that case gallagher's case wasn't and i fact the law until either halfway through this case or after this i'm sorry is that the quintus case yeah i go play language with leave to refile neither of those concepts were addressed at the trial court level much less this body count that wasn't alleged before and i want to put this in context because this  be paid upon refiling language was mentioned in the survey response that was filed with the court ask us to brief the pageant teenie issue but in context hedging teenie was talking about acquiescence and the issue was that in that case when the new suit was filed the second complaint was filed the defendant here in answered filed affirmative defenses that didn't include rescue  they went through the virtually the whole life of the case was discovered i think three and a half years into it a few months before trial they filed a motion for summary judgment and edge and court said you acquiesced that's acquiescence to the refiling because you participated in it all this so we argued the acquiescence issue and the trial court agreed with us now we're faced with this express reservation issue which was not raised below which creates prejudice for us because we didn't have a chance to reach that issue below the trial court didn't have an opportunity to rule on that issue below there was no chance to address this whole wolf one situation regarding the quinta situation there was no chance there to for example depose the clerk of the court dorothy brown as to the import work lack of import of that so called docketing statement as we pointed out in our brief there is a disclaimer on that document that it's not an official record filed that's not an express reservation by the court of some right that would fall within the exception to the expressed reservations i might also ask the court if the court's going to take judicial notice that first the court doesn't need to take judicial notice that that so called docket sheet is not an official court record and second of all the case law talking about docket sheets i don't think it's talking about the high tech stuff this computer printout in cook county you look at for example i used to be anyway with the municipal division the judges were right on the outside of the file jack they'd make notations of things as of the judges write stuff down if there's not an order inside to look at that and that's the notation that was made by the judge that showed the intent was going on of course that's part of what what really happened were in other counties smaller counties the judge may say you know turn to the clerk and say and make a note of that and i said this is the last briefing schedule and  it's noted in there somewhere even if it's not the judge's right but here this is information that he didn't by somebody remotely based on some codes or something i'm not really sure but i can tell you and you can take judicial notice of this  accurate so so i don't think that the quintus decision really when you scrutinize them more closely published decision wasn't around but the lawyers in that case made the argument that so called docket sheet was there for the argument to be made nobody ever made an argument below about the expressed reservation by the court it was  filed that would be proper and the case could be refiled i think that's clear and counsel well the attorney who was present or was the attorney of record during this entire proceeding so you know bed mission goes directly to my argument secondly i in history contemplated refiling without a problem so counsel was just one among many and to say that he wasn't now after the fact i think is just rewriting history second of all  argument is inconsistent because he stated numerous times in the break that all orders were final and i think that's what since it's now at least a stating that the animal control act was final but the statute of limitations order was not final so this i don't see what the difference between quick this in this case is at all in fact this case is stronger than what this inquest this they'd specifically say that the docket entries not inconsistent with the judge perfectly logical and perfectly the thing to do on page nine of the decision where it says there's no conflict between a documentary that would that would require us as the court to determine which is control work and any so to say by some you know this is just a computer generated thing and it's not there's nothing to do with this case it's probably wrong like all the other ones are wrong i don't think that's reality i think we have to look at this case  reality and in that time frame of when this happened in the context of what this happened in the context would reflect the intention of all the lawyers and the court when this happened and there's really only one logical and just conclusion and reflected that acquiescence yes quick this wasn't around the decision wasn't around first argument but the court specifically talked below about the acquiescence that the entry and its you know whether it reflected acquiesce