Docket No. 91306–Agenda 37–September 2001.

DENNIS CLEMONS, Appellant, v. MECHANICAL DEVICES 

								COMPANY, Appellee.

Opinion filed November 21, 2002.

	JUSTICE FREEMAN delivered the opinion of the court:

	This cause was remanded to the circuit court of McLean

County for a new trial. Plaintiff, Dennis Clemons, filed a motion to

amend his complaint against defendant, Mechanical Devices

Company, to add a count alleging retaliatory discharge for

exercising his rights under the Illinois Wage Payment and

Collection Act (Wage Act) (820 ILCS 115/1 et seq. (West 2000)). The trial court denied the motion and the appellate court affirmed.

No. 4–00–0639 (unpublished order under Supreme Court Rule

23).

	We allowed plaintiff’s petition for leave to appeal (177 Ill. 2d

R. 315(a)). We now reverse the courts below and remand the

cause to the trial court with directions to grant plaintiff’s motion to

amend.

BACKGROUND

	We previously recited the underlying facts of this case in

Clemons v. Mechanical Devices Co., 184 Ill. 2d 328 (1998) (Clemons I). Accordingly, we will describe only those facts pertinent to this appeal.

	Plaintiff brought a retaliatory discharge action against

defendant, alleging that defendant wrongfully discharged him in

retaliation for filing a workers’ compensation claim. The action

proceeded to a jury trial, where plaintiff presented evidence that

defendant’s method of paying him violated the Wage Act (820

ILCS 115/1 et seq. (West 2000)). Plaintiff’s counsel, during his examination of Linda Fillingham, defendant’s vice-president and

general manager, directed her, over defendant’s objection, to read

portions of the Wage Act. Plaintiff’s counsel questioned her about

the legality of defendant’s method of payment in light of the Act.

	At the close of evidence, the trial court allowed plaintiff to

amend his complaint by adding a paragraph which alleged that

defendant wrongfully discharged plaintiff “in retaliation of Plaintiff’s exercise of his statutory rights.” In granting plaintiff

leave to amend the complaint, the trial court specifically noted that

“the statutory rights referred to are in fact the workmen’s

comp[ensation] statutory rights.” In his amended complaint,

plaintiff did not allege a claim based on a violation of the Wage

Act, nor did he allege that defendant discharged him in retaliation

for pursuing rights afforded him under the Wage Act.

	During closing argument, plaintiff’s attorney stated:

		“If Mechanical Devices starts discharging their at-will

employees because of the color of their skin, they are

liable. If they start discharging employees for their gender,

they are liable. If they start discharging their employees in

violation of Illinois statute, they are liable. It is as simple

as that. Read the statute.”

Plaintiff’s attorney did not identify the “statute” to which he

referred. Also, the trial court instructed the jury regarding the

Wage Act.

	The jury found for plaintiff and awarded him damages. The

trial court entered judgment on the verdict.

	The appellate court reversed the judgment and remanded for

a new trial. The appellate court concluded that the Wage Act was

irrelevant to the issues in this case, and that the trial court erred by

allowing testimony regarding that statute. Clemons v. Mechanical Devices Co., 292 Ill. App. 3d 242, 247-51 (1997). The appellate court further concluded that the admission of the testimony

regarding the Wage Act, with corresponding jury instruction and

argument, prejudiced defendant so as to deprive defendant of a fair

trial. Clemons I, 292 Ill. App. 3d at 252-53.

	In the course of its opinion, the appellate court observed that

“the only allegation of retaliatory discharge properly before the jury involved [plaintiff’s] filing a workers’ compensation claim. ***

Accordingly, [plaintiff] did not have to show that [defendant] had

violated the Wage Act in order to prove a retaliatory discharge for

filing a workers’ compensation claim.” (Emphasis in original.)

Clemons I, 292 Ill. App. 3d at 248.

	This court affirmed the judgment of the appellate court.

Clemons I, 184 Ill. 2d 328 (1998). This court likewise held that the presentation of evidence regarding defendant’s alleged violation of the Wage Act, with corresponding jury instructions and argument,

constituted prejudicial error. Clemons I, 184 Ill. 2d at 338.

	In the course of its opinion, this court observed that “evidence

of the alleged violation of the Wage Act was not relevant to

plaintiff’s cause of action, which was based on an entirely different

theory–that plaintiff was discharged in retaliation for filing a

workers’ compensation claim.” Clemons I, 184 Ill. 2d at 337. The opinion observed that “plaintiff could not attempt to put forth what

was in essence a new and separate cause of action ***.” Clemons I, 184 Ill. 2d at 337-38.

	On remand, plaintiff filed a motion to amend his complaint to

add a second count, which alleges retaliatory discharge for

exercising his rights under the Wage Act. The trial court denied

plaintiff’s motion to amend. The court found that section 2–616(a)

of the Code of Civil Procedure (735 ILCS 5/2–616(a) (West

2000)) governed the amendment of plaintiff’s complaint. The court

found that: the motion to amend was not timely; plaintiff had prior

opportunities to amend; and defendant would sustain substantial

prejudice by allowing the amendment. See Lee v. Chicago Transit Authority, 152 Ill. 2d 432, 467-68 (1992); Loyola Academy v. S&S Roof Maintenance, Inc., 146 Ill. 2d 263, 273 (1992). Further, the court found that its order involved “a question of law as to which

there is substantial ground for difference of opinion and that an

immediate appeal from the order may materially advance the

ultimate termination of the litigation.” See 155 Ill. 2d R. 308(a).

The trial court also expressly found that there was no just reason

for delaying enforcement or appeal of its order. See 155 Ill. 2d R.

304(a).

	The appellate court affirmed, with one justice dissenting. No.

4–00–0639 (unpublished order under Supreme Court Rule 23).

The dissent observed that in Clemons I, this court criticized the trial court’s admission of evidence relating to the violation of the

Wage Act because plaintiff had not alleged a violation thereof. The

dissent also concluded that plaintiff’s amendment was timely, and

that defendant cannot be surprised by the evidence that was

presented at the previous trial. No. 4–00–0639, slip op. at 10

(Cook, J., dissenting) (unpublished order under Supreme Court

Rule 23). Plaintiff appeals to this court. 177 Ill. 2d R. 315.

ANALYSIS

I. Jurisdiction

	Although neither the parties nor the appellate court has raised

the issue of jurisdiction in this case, the dissent has. We have an

independent duty to ensure that appellate jurisdiction is proper.

Unless specifically authorized by the rules of this court, the

appellate court has no jurisdiction to review judgments, orders, or

decrees that are not final. Where the appellate court has considered

the merits of a case when it had no jurisdiction to do so, we must

vacate that court’s judgment and dismiss the appeal. Department of Central Management Services v. American Federation of State,

County & Municipal Employees, 182 Ill. 2d 234, 238 (1998).

	The appellate court had jurisdiction to consider the merits of

this case pursuant to Rule 304(a). Plaintiff moved to amend his

complaint to add a second count, which alleges retaliatory

discharge for exercising his rights under the Wage Act. Thus, the

trial court’s order denying plaintiff’s motion effectively terminated

one, but fewer than all, of the claims at issue in the case, as is

required under the rule. Further, the trial court expressly included

in the order the requisite finding of Rule 304(a). This case is

distinguishable from a case such as Peter G. Georges, Inc. v. Feldon Building Corp., 61 Ill. App. 3d 631 (1978), where: (1) the trial court’s denial of the motion to amend made it clear that

reconsideration was a possibility, and (2) the trial court refused the

appellant’s request to add Rule 304(a) language. Georges, 61 Ill. App. 3d at 634-35. The order in this case is appealable under Rule

304(a).

	The dissent concludes that the appellate court lacked

jurisdiction in this case. According to the dissent, the order was not

final because it did not absolutely and finally fix the rights of the

parties with respect to plaintiff’s motion to amend. Noting that the

trial court did not deny plaintiff’s motion “with prejudice,” the

dissent reasons that the trial court can reconsider its denial of the

motion at any time prior to final judgment. More basically, the

dissent reasons that an order relating to a claim that has not been

filed cannot constitute a final judgment as to that claim. Slip op. at

11-12 (Thomas, J., dissenting, joined by Fitzgerald and Garman,

JJ.).

	The dissent focuses on the form of the order and speculates as

to what the trial court might do in the future, rather than focusing

on the actions the trial court actually took. “The definition of a

final order has been discussed by this court many times in all its

phases ***.” Mills v. Ehler, 407 Ill. 602, 609 (1950). It is quite settled that in determining whether an order is final, one should

look to its substance and effect rather than to its form. In re J.N., 91 Ill. 2d 122, 128 (1982); Altschuler v. Altschuler, 399 Ill. 559, 570 (1948). The question of finality must be considered with

reference to the particular facts and circumstances of each case.

Mills, 407 Ill. at 609; Roddy v. Armitage-Hamlin Corp., 401 Ill. 605, 610 (1948).

	In this case, it is clear that the order denying plaintiff’s motion

to amend was substantively and effectively “final.” Although the

trial court did not deny plaintiff’s motion “with prejudice,” the

court expressly found, under section 2--–616(a) of the Code of Civil

Procedure (735 ILCS 5/2--–616(a) (West 2000)), that defendant

would be prejudiced if plaintiff’s complaint were amended. Further,

the trial court’s attempt at Rule 308 certification, in addition to adding the Rule 304(a) finding, strongly supports the conclusion that the trial court was firm in its conviction about the denial of

plaintiff’s motion to amend and wanted the case to proceed to a

court of review for a final determination on this matter before the

start of trial.

 	This case is distinguishable from a case such as Peter G. Georges, Inc. v. Feldon Building Corp., 61 Ill. App. 3d 631 (1978), where: (1) the trial court’s denial of the motion to amend

made it clear that reconsideration was a possibility, and (2) the trial

court refused the appellant’s request to add Rule 304(a) language. Georges, 61 Ill. App. 3d at 634-35. The order in this case is appealable under Rule 304(a).

II. Standard of Review

	The parties disagree as to the standard of review. Plaintiff

contends that our review of the trial court’s order should be de novo because that order centers on an issue of law. Defendant contends that our review should be deferential because it was

within the discretion of the trial court to enter such an order. The

appellate court employed a deferential standard of review.

	A trial court has discretion in deciding a motion to amend

pleadings, and a reviewing court will not reverse the trial court’s

decision absent abuse of that discretion. Lee, 152 Ill. 2d at 467; Loyola Academy, 146 Ill. 2d at 273-74. However, a trial court must exercise its discretion within the bounds of the law. Loyola Academy, 146 Ill. 2d at 274; People v. Williams, 188 Ill. 2d 365, 369 (1999). After a remand, the trial court is required to exercise its discretion within the bounds of the remand. Whether it has done

so is a question of law. See Ptaszek v. Konczal, 10 Ill. 2d 326 (1957); compare 2 Nichols Illinois Civil Practice §33:1 et seq. (rev. 2002) (“Amendments and Supplemental Pleadings”) with 6 Nichols

Illinois Civil Practice §121.01 et seq. (rev. 1998) (“Procedure After Remand”). A reviewing court determines a legal question

independently of the trial court’s judgment. Williams, 188 Ill. 2d at 369; In re Lawrence M., 172 Ill. 2d 523, 526 (1996).

	So there are two different standards of review applicable to

what are essentially two distinct issues in this case. The first issue

is whether our mandate required the trial court to allow the

amendment. This question of law we address de novo. If this question of law is answered in the negative, i.e., the trial court had discretion to allow or deny amendment, the question becomes

whether the trial court erred in denying amendment, a decision

which we review only for abuse of discretion.

III. The Merits

	In reversing the trial court in Clemons I, the appellate court concluded: “For the reasons stated, we reverse and remand for a new trial consistent with the views expressed herein.” (Emphases added.) Clemons I, 292 Ill. App. 3d at 254. In affirming the appellate court, this court concluded its opinion by stating: “For the foregoing reasons, the judgment of the appellate court, which reversed the judgment of the circuit court of McLean County, is

affirmed.” (Emphasis added.) Clemons I, 184 Ill. 2d at 339. This court incorporated its opinion in Clemons I in the mandate to the appellate court. The appellate court subsequently issued its

mandate, which directed as follows: “It is the decision of this court

that the order on appeal from the [trial] court be REVERSED and

the cause be REMANDED to the [trial court], for such other proceedings as required by the opinion of this court, a copy of

which is attached hereto.” (Emphasis added.)

	The controlling principles are quite established. After a

judgment is reversed and the cause is remanded, the trial court can

hold only such further proceedings as conform to the judgment of

the appellate tribunal. Nye v. Nye, 411 Ill. 408, 413 (1952); Roggenbuck v. Breuhaus, 330 Ill. 294, 297 (1928); see Jones v. Board of Fire & Police Commissioners, 204 Ill. App. 3d 1004, 1010 (1990); Zokoych v. Spalding, 84 Ill. App. 3d 661, 666 (1980).

	Before this court, defendant acknowledges this principle.

However, defendant observes that neither this court nor the

appellate court specifically directed the trial court to allow plaintiff

to amend the complaint. At oral argument, defendant contended

that “the opinion was silent as to the pleadings.” Defendant argues

that, due to the “general remand” of this court and of the appellate

court in Clemons I, the trial court retained the discretion to allow or deny plaintiff leave to amend the complaint.

	As the dissent notes, the reviewing courts in Clemons I did not explicitly demand that the trial court allow plaintiff to amend the

complaint. Slip op. at 13 (Thomas, J., dissenting, joined by

Fitzgerald and Garman, JJ.). However, it is not required that a

reviewing court state specific directions in an order reversing a

judgment and remanding a cause. In such a case, it is then the duty

of the court to which the cause is remanded to examine the

reviewing court’s opinion and to proceed in conformity with the

views expressed in it. Nye, 411 Ill. at 413-14; Roggenbuck, 330 Ill. at 298; see Pinelli v. Alpine Development Corp., 70 Ill. App. 3d 980, 1007 (1979). “[T]hen, of course, the content of the opinion

is significant.” PSL Realty Co. v. Granite Investment Co., 86 Ill. 2d 291, 308 (1981).

	In this regard, the trial court will in some cases be required to

allow the amendment of pleadings even when the reviewing court

has not explicitly so ordered:

		“When a judgment is reversed and the cause remanded

with directions to proceed in conformity to the opinion

then filed, and it appears from the opinion that the grounds of reversal are of a character to be obviated by

subsequent amendment of the pleadings or the introduction of additional evidence, it is the duty of the

trial court to permit the cause to be re-docketed and then

to permit amendments to be made and evidence to be

introduced on the hearing just as if the cause was then

being heard for the first time.” (Emphasis added.)

Roggenbuck, 330 Ill. at 298.

See also Kinney v. Lindgren, 373 Ill. 415, 420 (1940).

	Roggenbuck “contains a thorough and still valid discussion of proceedings that may take place after remand.” J. Eaton, W.

Quinlan & R. Stern, Filing of Mandate in Circuit Court & Proceedings thereafter in Illinois State Court (Ill. Supreme Court

Rule 369) in Illinois Civil Appellate Practice: State & Federal §27–9 (Ill. Inst. for Cont. Legal Educ. 1997); see 6 Nichols Illinois

Civil Practice §121.25, at 204 (rev. 1998). The dissent overlooks

this well-settled principle.

	Before this court, defendant correctly contends that the

grounds for reversal in Clemons I were the incorrect admission of evidence and corresponding jury instruction regarding the Wage

Act. However, the admission of evidence regarding the Wage Act,

with corresponding jury instruction and argument, only constituted

prejudicial error because plaintiff did not allege a violation of the Wage Act. See Clemons I, 184 Ill. 2d at 335; Clemons I, 292 Ill. App. 3d at 247-48. Had plaintiff alleged a Wage Act violation, the

admission of evidence regarding the Wage Act, with corresponding

jury instruction and argument, would not have been erroneous.

Thus, these “grounds of reversal are of a character to be obviated

by subsequent amendment of the pleadings.” Roggenbuck, 330 Ill. at 298. Accordingly, it was the duty of the trial court to allow

plaintiff to amend his complaint to add a count under the Wage

Act. See Kinney, 373 Ill. at 420; Roggenbuck, 330 Ill. at 298. Of course, outside of the issues addressed by the reviewing courts in Clemons I, the trial court retains the discretion to allow or deny further subsequent amendments to the pleadings. See Kinney, 373 Ill. at 420; 735 ILCS 5/2–616(a) (West 2000).

	We note defendant’s warning that a party opposing a pleading

amendment following a remand from a reviewing court would

never be able to prevail. According to defendant, such a pleading

amendment would lead to unfair results, such as a defendant’s

open-ended exposure to liability.

	However, plaintiff counters, and we agree, that section

2–616(b) of the Code of Civil Procedure (735 ILCS 5/2–616(b)

(West 2000)) protects a defendant under these circumstances.

Pursuant to section 2–616(b), a new cause of action alleged in an

amended complaint, filed after the applicable limitations period has

expired, will relate back to the filing of the original complaint only

if: (1) the original pleading was timely filed; and (2) the original and amended pleadings indicate that the cause of action asserted in

the amended pleading grew out of the same transaction or

occurrence set up in the original pleading. 735 ILCS 5/2–616(b)

(West 2000)); see Bryson v. News America Publications, Inc., 174 Ill. 2d 77, 106-09 (1996).

	Because the trial court’s order did not conform to the mandate

on remand, it is reversed.

	We lastly note that our result in this appeal would be the same

even if we viewed the case through the discretionary standard

embodied in section 2–616(a) of the Code of Civil Procedure (735

ILCS 5/2–616(a) (West 2000)). Generally the decision whether to

grant leave to amend a pleading rests within the sound discretion

of the trial court. Absent abuse of that discretion, its decision will

not be disturbed on review. The factors to be considered in

determining whether or not to permit an amendment to the

pleadings are whether: (1) the proposed amendment would cure a

defect in the pleadings; (2) the proposed amendment would

prejudice or surprise other parties; (3) the proposed amendment is

timely; and (4) there were previous opportunities to amend the

pleading. Lee, 152 Ill. 2d at 467-68; Loyola Academy, 146 Ill. 2d at 273-74.

	We agree with the appellate court that the first factor is not

relevant to our analysis. Plaintiff did not move to amend his

complaint to cure a defective pleading. However, we disagree with

the appellate court as to the remaining three factors.

	We do not find any prejudice or surprise. At the first trial,

defendant proffered a reason for its discharge of plaintiff–namely,

that plaintiff demanded his paycheck by a certain date. Thus,

defendant was not taken by surprise by the facts that formed the

basis of plaintiff’s new claim. There can be no serious claim of

prejudice when the only surprise is that defendant did not realize

the legal significance of the facts it was asserting as its defense.

	The remaining factors are timeliness of the proposed

amendment and whether there were previous opportunities to

amend the pleading. Initially, we note that this was only plaintiff’s

second request to amend his original complaint. More

fundamentally, however, this cause was on remand from the

reviewing courts in Clemons I. The appellate court concluded that “when a trial court is faced with a plaintiff’s motion to amend his complaint upon remand, the court may appropriately consider

proceedings that took place prior to remand.” However, the

controlling principle is settled:

		“ ‘When a decree is reversed and the cause is remanded

without specific directions, the judgment of the court

below is entirely abrogated, and the cause stands there as

if no trial had occurred. *** [The trial court] may permit

amendments to the pleadings or the introduction of further

evidence, so long as such steps are not inconsistent with

the principles announced by the court of review ***.’ ”

Crane Paper Stock Co. v. Chicago & Northwestern Ry. Co., 63 Ill. 2d 61, 68-69 (1976), quoting Kinney, 373 Ill. at 420.

Plaintiff should not be denied the opportunity to amend his

complaint because the invalidity of his case–based on his failure to

plead a violation of the Wage Act–was determined first in the

reviewing courts rather than at the trial level. See City of Aurora v. Young Men’s Christian Ass’n, 9 Ill. 2d 286, 295 (1956); In re Estate of Pirie, 141 Ill. App. 3d 750, 771 (1986).

	In addition to the above factors, we note that the proposed

amendment was clearly material to the case. See Loyola Academy, 146 Ill. 2d at 276. Consideration of these factors shows that the

trial court clearly abused its discretion when it denied plaintiff’s

motion to amend his complaint.

CONCLUSION

	For the foregoing reasons, the judgment of the appellate court

and the order of the circuit court of McLean County are reversed,

and the cause remanded to the trial court with directions to allow

plaintiff to amend his complaint.

Appellate court reversed;

circuit court reversed;

cause remanded.

	JUSTICE THOMAS, dissenting:

	Unlike the majority, I do not believe that the order appealed

from in this case is final and appealable. See slip op. at 4. I

therefore respectfully dissent.

	The law is well established that, unless specifically authorized

by the rules of this court, the appellate court has no jurisdiction to

review judgments, orders, or decrees that are not final. Department of Central Management, 182 Ill. 2d at 238. An order or judgment is final if, on the issues presented in the pleadings, it “ascertains and

fixes absolutely and finally the rights of the parties.” Department of Central Management, 182 Ill. 2d at 238. Where the appellate court considers the merits of a nonfinal order over which it lacked

jurisdiction, we must vacate that court’s judgment and dismiss the

appeal. Department of Central Management, 182 Ill. 2d at 238.

	The order appealed from in this case is neither final nor

appealable. Again, that order simply denies Clemons’ motion to

amend his complaint to include an additional count of retaliatory

discharge under the Wage Act. Clearly, that order did not

terminate the litigation between the parties, as that litigation

remains pending in the trial court. Moreover, that order neither

ascertains nor fixes absolutely and finally the rights of the parties with respect to Clemons’ request for leave to amend. Indeed,

Clemons’ motion was denied without prejudice, and section 2–616

specifically provides that, on just and reasonable terms, an

amendment “adding new causes of action” may be allowed “at

anytime before final judgment” (735 ILCS 5/2–616(a) (West

2000)). Thus, Clemons may renew his motion–and the trial court

may reconsider its ruling–anytime before final judgment. Of course,

whether Clemons in fact renews his motion or the trial court in fact reconsiders its ruling is irrelevant to a determination of finality; the mere fact that both options are available renders the order denying Clemons’ motion for leave to amend nonfinal.

	The trial court’s inclusion of a Rule 304(a) finding in no way

alters this result. Rule 304(a) provides:

			“If multiple parties or multiple claims for relief are

involved in an action, an appeal may be taken from a final judgment as to one or more but fewer than all of the parties or claims only if the trial court has made an express

written finding that there is no just reason for delaying either enforcement or appeal or both.” (Emphasis added.)

155 Ill. 2d R. 304(a).

Thus, by its own terms, Rule 304(a) applies only to final

judgments. As demonstrated above, however, the trial court’s

order denying Clemons’ motion for leave to amend is not final. Rule 304(a) therefore has no application in this case, and the trial

court’s Rule 304(a) finding “was to no purpose and did not render

[that order] appealable.” See Kellerman v. Crowe, 119 Ill. 2d 111, 115 (1987). More importantly, the trial court’s order is not subject

to a Rule 304(a) finding because it does not relate to a claim for

relief involved in Clemons’ action. Clemons was denied leave to file his Wage Act claim. How can an order relating to a claim that has never been filed constitute a final judgment as to that claim? Quite clearly, it cannot.1

	Moreover, although the trial court’s order denying Clemons’

motion for leave to amend invokes Supreme Court Rule 308 (155

Ill. 2d R. 308(a)), we know both that Clemons did not pursue this

appeal under that rule and that the appellate court did not hear this

appeal under that rule. Rule 308 provides:

			“When the trial court, in making an interlocutory order

not otherwise appealable, finds that the order involves a

question of law as to which there is substantial ground for

difference of opinion and that an immediate appeal from

the order may materially advance the ultimate termination

of the litigation, the court shall so state in writing,

identifying the question of law involved. ***

			*** The appeal will be sought by filing an application

for leave to appeal *** within 14 days after the entry of

the order in the trial court or the making of the prescribed statement by the trial court, whichever is later.” 155 Ill. 2d

Rs. 308(a), (b).

Here, Clemons did not file “an application for leave to appeal ***

within 14 days after the entry of the order in the trial court.”

Rather, he filed a notice of appeal 27 days after the entry of that order. This alone precludes a finding of appellate jurisdiction under

Rule 308. See Archer Daniels Midland Co. v. Barth, 103 Ill. 2d 536, 539 (1984) (the timely filing of a notice of appeal is

jurisdictional). However, even if Clemons had filed a timely application under Rule 308(a), the appellate court still would have

lacked jurisdiction, as the trial court’s order failed even to identify

the “question of law” it purported to certify. 155 Ill. 2d R. 308(a).

	Finally, I wish to note that this is not a case of the trial court

misconstruing our mandate, a circumstance that conceivably could

justify the exercise of this court’s supervisory authority irrespective

of the jurisdictional defect. Nowhere in Clemons I did this court order or even suggest that Clemons be allowed to amend his

complaint to add an additional count under the Wage Act. Rather,

after noting that Clemons specifically disavowed any intention of

pursuing a remedy under the Wage Act (Clemons I, 184 Ill. 2d at 335), this court held simply that the trial court erred in admitting

evidence of and instructing the jury on defendant’s alleged

violation of the Wage Act and that such error was prejudicial to

defendant (Clemons I, 184 Ill. 2d at 338). In reaching this result, the court noted that:

		“The burden remains on the plaintiff to establish the

elements of his cause of action, which here involved the discrete claim that the defendant wrongfully discharged

plaintiff in retaliation for seeking recovery under the

Workers’ Compensation Act. *** Other remedies may exist for the other violation, but the burden still rests on plaintiff to prove the elements of the action he has

pleaded. (Emphases added.) Clemons I, 184 Ill. 2d at 336- 37.

Nothing in this language, or for that matter in all of Clemons I, could possibly be construed as a mandate to the trial court to allow

Clemons’ proffered amendment. Consequently, the propriety of the

trial court’s interlocutory order denying Clemons’ motion for leave

to amend must be reviewed as all such orders are reviewed–at the conclusion of the litigation and only for a manifest abuse of

discretion. See Loyola Academy v. S&S Roof Maintenance, Inc. 146 Ill. 2d 263, 273-74 (1992).

	In sum, the appellate court in this case considered the merits

of a nonfinal order over which it lacked jurisdiction. I therefore

would vacate that court’s judgment and dismiss this appeal.

	JUSTICES FITZGERALD and GARMAN join in this dissent.