## I L L I N O I S 

## O F F I C I A L 

## R E P O R T S Suprem e Court

Hernandez v. Pritikin , 2012 IL 113054

Caption in S upreme Court: J ESSE E. HERNANDE Z et al.
, Appellee s, v. J EFF REY PRI TI KIN, Special Represe ntative of the Estate of I sadore Be rnstein, Dec ea s ed, et al. , Appellants.

Docke t No. 113054

Filed Dec ember 13, 2012

Held (Note : Thi s sy ll abus

con st it ute s n o par t of the opi nio n of the cour t but has bee n pre

par ed by t h e Repo rt er of D e c i s i o n s f

o r t h e

c o n v e n i e n c e o

f t h e

rea der

. ) Def endants in a ref

iled leg al malprac tice action who soug ht dismiss al on the basis of res judicata had not met their burden of proving its essential element of a final judgme nt wher e they relied on oral ruling s of succe ssor judge s as to when the discovery rule had commence d to run for purposes of limitations.

Dec ision Under Review Appea l from the Appellate Court for the First District; hear d in that court

on appea l fr o m t he Circuit Court of Cook County
, the Hon. J eff rey L awr ence , J udg e, pre siding.

J udg ment Affirmed and r emande d.Counsel on

Appea l Hinshaw & Culbert s o n L LP (Matthew R. Hende rson and Timothy G. Shelton, of co u n s el ), and Donohue Br own Mathewson & Smy th LL C (Donald J

. Br own, J r., and Kar en Kies DeGr and, of counsel)
, al l o f Chicag o, for a

ppellants.

Donald L

. J ohnson, J ulie A. Boynton and J oseph T. Gentleman, of Chicag o, for a

ppellees.

Elliot R. Schiff, of Schiff Gorman LL C, and David R. Nordwa ll, all of Chicag o, for amicus curiae I llinois Trial L awy ers Assoc iation.

J ustices J USTI CE KARMEIER delivere d the judgme nt of the court, with o p in ion. Chief J ustice Kilbride and J ustices Fr eeman, Thomas, Garman, Bur ke, and The is concurr ed in the judg ment and opinion.

OP INION

¶ 1 T h e overa

rching issue in this appea l is whether the circuit court of Cook Countyerr ed in dismiss ing plaintiffs’ ref iled leg al malprac tice action as b ar red by res judicata

. The appellate court held that it did. 2011 IL App (1st) 102646. We allowed defe ndants’ petition for leave to appea l. I ll. S. Ct. R. 315 (ef f. Fe b. 26, 2010). Be ca u s e the defe ndants, as the parties seeking to invoke the doctrine of res judicata
, have not borne their burden of proving

a final judgme nt was enter ed for purposes of the doctrine’ s application, we af fi rm the judgme nt of the appe llate court.

¶ 2 BA CKGROUND ¶ 3 T h e fa ct s t h at fo llow are taken from the parties’ pleading s, order s of rec ord, and the
transcripts that have been provided as part of the rec ord on appea l. For a better understanding of the case , we offe r a preliminary chronolog y of principal events, based on fac ts that appea r to be uncontested. J esse Hernandez, t h e p laintiff claiming to have been phy sically injured/disabled, worke d for Central Steel & Wire Company from May of 19 6 8 t h ro ug h Marc h of 1995. He develope d phy sical problems in the early 1990s, and was ultimately diag nosed with Parkinson’s disease. For a period of time from 1995 to 1996, he was repr esente d by the law firm of Spector & L enz, which filed a social secur ity disability claim

on his behalf

. I n early 1999, he met with the defe ndant attorney s here in, who, i n Marc h of 1999, filed a worke rs’ compensation claim for him. They co n t i n u ed represe nting him into late 2002. The application for adjustment of clai m that defe ndants filed on J esse’ s behalf indicated that he had been “exposed to chemicals” and the n at u re o f h is injury was “to be

-2-proven.” I n 2 0 0 4
, J esse reta ined new attorney s, who filed an action in the circ uit court

ag ainst various companies claimed to have been responsible for the manufa cture and sale of chemica ls c ontributing to his phy sical injury /disabilit y

. When that a ction was dismiss ed as time-barr ed, plaintiffs filed a leg al malprac tice action ag ainst the defe ndants in this case

. The action at issue here is a case refiled in 2009, afte r t he original action—filed in 2005—was voluntarily dismiss ed by plaintiffs. Wit h that overvie w, we discuss more fully the orig inal leg al malpra ctice a ction filed ag ainst these def endants in 2005. ¶ 4 I n 2005, plaintiffs, J esse and Yolanda Hernandez, filed a leg al malprac tice action ag ainst J esse’ s former attorney s, defe ndants I sadore Be rnstein, J ohn L

. Gra zian, Richard S. Volpe, and Be rnstein and Gra zian, P.C., a profe ssional corpor ation eng ag ed in the prac tice of law. I n their initial complaint, the plainti ff s al l ege d that J esse hired defe ndants in 1999 to repr esent him with respe ct to injuri es he sustained at work. I n that complaint, plaintiffs specifie d that “Jesse *** suffer s from P arkinson’s disease caused by the injuries at wor

k.” Plaintiffs claimed that defe ndants owed them a duty “to inform them of all potential claims and cause s of action they possessed or which might arise from the injuries in question.” As noted, in Marc h of 1999, the defe ndants filed a worke rs’ compensation application for J esse. ¶ 5 Notwithstanding, plaintiffs alleg ed that defe ndants wer e neg l i gen t i n s o fa r as they : (a) failed to advise plaintiffs that they might have cl ai m s ag ainst parties other than J esse’ s employ er to rec over for the injuries J esse suffe red at work; (b) failed to file an action ag ainst others who had contributed to the events and conditions which cause d injuries to J esse; and/or (c) failed to advise plaintiffs that they neede d to reta in other counsel to file an action
ag ainst others who had contributed to the events and conditions which cau s ed injuries to J esse. ¶ 6 Plaintiffs stated that they fi rs t l ea rn ed from new attorney s, in 2004, that a claim could have been made ag ainst parties other than J esse’ s employ er for his injuries. Plaintiffs’ new attorney s took ove r the handling of J esse’ s worke rs’ compensation c laim, and also filed an action in the cir cu i t court ag ainst sever al companies claimed to have contributed to “the
events and conditions which cause d the in j u ri es.” The action ag ainst those companies—ba sed on theories of strict liability and neg lige nce—w as dismiss ed on Aug ust 12, 2005, as time-barr ed—Judge Kathy Flana g an fi n d i ng : “The evidenc e here shows that Plaintiff here clea

rly was possessed of sufficie nt knowledg e to put him on notice that he was injured and that his injury was wr ong fully cause d in 1999 when he filed his orig inal Adjustment of Claim. It was i n cu m bent upon him to then investigate further .” J udg e Flana g an’s dism i s s al p rompted the leg al malprac tice action ag ainst these defe ndants, the theory being that if plaintif fs wer e on notice as of that date that actions might be filed ag ainst parties other than J esse’ s employ er, so wer e these defe ndants. In their complaint, plaintiffs claimed, but for

the neg lige nce of these defendants, they would have ha d “g ood, valid and valuable cause s of action” and would have “in timely manner ” “prose cuted those actions to final judg ment or settlement.” ¶ 7 Def

endants moved to dismiss p l ai n t i ffs’ complaint, arg uing, inter alia
, that the statute of limit ations had run on plaintiffs’ product liability claim befor e defe ndants wer e reta ined as Jesse’s attorney s.

-3-¶ 8 A hearing on d ef en d an t s ’ m o tion was held on Aug ust 7, 2006, befor e J udg e Dona ld Suriano. At that hearing, the parties initially focuse d on the signific ance of J udg e Flana g an’s fi nding in the dismiss ed product liability action that J esse was on inquiry notice as o f t h e filing of his application for worke rs’ compensation in Marc h of 1999 that his injuries might have been wrong fully ca used by parties other than his employ er, i.e.
, that the statute of limit ations for a perso n al injury or product liability action (735 IL CS 5/13-202, 13-213 (West 1998) (two- y ear

limit ation periods)) beg an to run, at least, by that date. ¶ 9 I n the end, howeve r, J udg e Suriano conclude d that J esse was on inqui ry n o t i ce , fo r purposes of the persona l injury and product liability statutes of limit ation, much earlier than was reflec ted by J udg e Flanag an’s ruling. J udg e S uriano stated: “I g ues s, I ’m g oing to say the statute of limit ations beg an to run, at the latest, his last day of employ ment, which in [ sic ] ’95. Acc ording to those numbers then, the defe ndant should prevail on his motion, rig ht? Am I rig ht? ” ¶ 10 Counsel for plaintiff conce ded that the judge was corr ect with respe ct to the alleg ations of the orig inal complaint, but c ounsel asked f or, and was g rante d, leave to f ile an amende d complaint, adding alleg ations that defe ndants wer e neg lige nt for failing to file a malprac tice suit ag ainst th e S p ec t o r l aw firm for failing to file a product liability action on plaintiffs’ behalf

. ¶ 11 The en s u i ng written order
, signe d by J udg e Suriano, and filed Aug ust 7, 2006, simply
states that the “De fendants’ motion to dismiss is g rante d,” that “plaintiffs are g iven 30 day s to file an amende d complaint or until September 7, 2006,” and that “De fendants are g iven 28 day s to answe r or otherwise plead or by October 5, 2006.” The word “pre judice” does not appea r in the order of dismis s al ; n o r i s there any indication that plaintiffs wer e prec luded from pursuing any

particula r theory in support of rec overy

. ¶ 12 The amende d complaint ultimately filed by plaintiffs added fac tual alleg ations to support t h e alt ernative theory that defe ndants wer e also neg lige nt insofar as they failed to advis e plaintiffs of the possibili ty of a leg al malprac tice action ag ainst the law firm of Spector & L enz “for f

ailing to f ile a claim ag ainst [J esse’ s] employ er or third parties as alleg ed in the lawsuit discussed below and/or fail i n g t o advise J esse and Yolanda to seek counsel with
respe ct to those claims befor e the statute of limit ations expired o n those claims.” The amende d complaint reta ined the alleg at i o n s of the orig inal complaint that the defe ndants here in brea ched the duties they owed plaintiffs when they : (a) failed to advise plaintiffs that they might have claims ag ainst parties other than J esse’ s employ er to rec over for the injuries J esse suffe red at work; (b) failed to file an action ag ainst others who had contributed to the
events and conditions which cause d injuries to Jesse; and (c) failed to a dvise plaintiffs that they neede d to reta in other counsel to file an action ag ainst others who had contributed to the
events a nd conditions which caused injuries to J esse. ¶ 13 The complaint added signific ant fact u al al l egations appar ently aimed at establishing a basis for ap p lication of the discovery rule so as to leng then the statutory period in which plaintiffs could have filed the underlying product l i ab i lity action. Application of the discovery ru l e o b v i ously had the potential to make the suit ag ainst defe ndants under the theory of the orig inal complaint timely

. We cite some examples of these added alleg ations.

-4-¶ 14 Plaintiffs alleg ed that during J esse’ s employ ment with Central Steel & Wire Company
,

“he was not told by any one employ ed by CS&WC, nor did he know or learn from any other

source , that he was, or was may be, being exposed to harmful or potentially harmful fumes, dust or other emissions from the proce ss of burning /cutting steel plate or that such exposures

wer e harmful or pot entially harmful to his health, either temporar ily or permanently .” The following two para g raphs addre ssed J esse’ s history of medical evaluation and treatment, and his inquiries reg arding the cause of a condition ultimately diag nosed as Parkinson’s disease:

“11. Fr om approximately 1992 throug h 1994, J esse was medically evaluated and
treated and he consulted with various phy sicians at Mey er Medica l Group, 10444 South Kedzie Avenue
, Chicag o , IL 60655, including Drs. Sikand, My int and McCarthy

. In 1992 or 1993, Jesse was ex perie ncing balanc e problems and movi ng slower. J esse develope d left-sided wea kness and problems with hand dexterity

. J esse

saw Dr. Sikand during this time. She observe d and rema rked that J esse had a masked expression, and stated to him that in light of my other sy mptoms, she wanted him to

see a neurolog ist.
12. I n 1993, J esse saw various doctors in the Neur ology Depa rtment at Rush Presbyterian St

. L

uke’s Medical C enter in Chicag o, including the Chairm an o f the Depa rtment, Dr. Goetz, and Drs. Pappert and Kujaw a. T h e neurolog ists evaluated him, and told him that he had Parkinson’s Disease

. Eac h time J esse asked one of the neurolog ists at Rush what ca u sed his condition, they told him they did not know. None of the doctors at Mey er Medica l Group, in cl u d i ng Drs. Sikand, Myint and McCarthy

ever told J esse the c ause of

the Parkinson’s Disea se.” ¶ 15 I n subsequent para g raphs, the plaintiffs alleg ed that they fully informed attorney s at the law firm of Spector & L enz, in 1995, and the Be rnstein law firm, in 1999, of “Jesse’s work history
, medical condition, medical treatment, about J esse’ s inability to work, the conditions of the workplac e,” and specific ally of the diag nosis of Parkinson’s disease, and asked them to “help them in any

way [t hey ] could.” ¶ 16 Plaintiffs alleg ed: “Jesse was first told that his n eu ro l o gi ca l co n d i t ion diag nosed as Parkinson’s Disease was cause d by his exposure to mang anese fumes an d du s t while working

as a steel cutter/burne r at CS & WC when he was evaluated on Fe bruary 6
, 2 0 0 3 b y Dr. Katherine Duvall at the Occ upational Health Service I nstitut e at the University of I llinois at Chicag o. At that time, Dr. Duvall told J esse that his Parkinson’s disease is more likely than
not related to work exposure to mang anese while emplo y ed at Central Steel and Wire C o m p any

. Prior to this time J esse believed that he contra cted Parkinson’s diseas e fr o m natura l cause s.” ¶ 17 Def

endants filed a motion to dismiss plaintiffs’ amende d complaint arg uing, inter alia
, “a l l cl aim s and cause s of action are time-barred by the limit ations period imposed by 7 3 5 IL CS 5/13-202 and 735 IL CS 214.3.” Pertinent to the issues now befor e this court, defe ndants noted, in their “I ntroduction”: “Parag raphs 1-3 [of the amended c omplaint] are identical to those asserted in the orig inal complaint.” Def endants arg ued: “As such, they are improperly re- asserted in the instant pleading .” Def endants followed that contention with these a ssertions:

-5-“Plaintiffs alleg e they first learned of potential claims ag ainst third parties, in addition to Central, sometime in 2004. A lawsuit was filed ag ainst these third parties, and was dismiss ed in September, 2005, for being time barr ed. It is further alleg ed that but for the neglig ence of t he Defendants, Plaintiffs would have had a viable action
ag ainst the third parties as well as ag ainst Spector for malprac tice. This neg lige nce

was purportedly

unknown to the Plaintiffs until S eptember 2005 when their claims
ag ainst the additional third party defe ndants wer e dismissed.
As noted pre v i o u s l y , Plaintiffs’ orig inal complaint for malprac tice ag ainst the Def endants was dismiss ed on Aug ust 7, 2006. During the hearing of that motion, the Court specific ally noted that the Plaintiffs’ statute of limit ations in the Underly ing actions (ag ainst his employ er and potential third parties)
, beg an to run no later than 1995 , on his last date of e mploy ment.” (Empha sis in original.) ¶ 18 De fe n d an t s, in their introduction, then proce eded to the foca l thesis of their motion t o d i s miss: “Plaintiffs’ Amended Complaint still fails to state a cause of action b ec au s e Plaintiffs can neither show that Spector ever ag ree d t o p u rsue a persona l injury action on their behalf or owed them any duty to do so.” A discussion of that contention ensued, culminating in defe ndants’ assertion that “the Plaintiffs can never show that ‘but/for’ the actions of the Def

endants he would have p re v ail ed in any action ag ainst ‘other’ parties, including Spector, or show t h at an y d uty would have ever been owed by Spector to file claims other t h an the social security claim he reta ined them specific ally to perf orm.” Def endants conclude d their introduction with this statement: “Alternatively
, and as was the

case with the prior pleadi ng eff ort, Plaintiffs’ curr ent leg al malprac tice action must fail beca use Plaintiffs’ ability to r ecove r in the Underly ing persona l injury action expired prior
t o t h e time he reta ined the Def endants, as was determined by this Court at the heari n g o f Aug ust 7, 2006.” ¶ 19 I n t h e argume nt portion of their motion, defe ndants first arg ued that “the scope of the work ag ree d to be tween Plaintiff and Spector & L enz did not rise to anything perta ining to litigation outside of the social security benef its soug ht by Hernandez as evidenc ed by Plaintiffs’ Affida vit and the reta iner ag ree ment with Spector.” Fr om that position
, d e f e n d an ts conclude d: “De fendants did not commit mal p ra ct i ce for not discussing the issue with the Plaintiffs either for

there was no malpra ctice to discuss.” ¶ 20 Def

endants then proce eded to their second arg ument: “Plaintiffs’ action ag ainst Spector & L enz expired prior to his rete ntion of t he defendants.” Ag ain, the defendants included a pref at o ry reiter ation: “Initially
, this Court has previously ruled on Aug ust 7, 2006, that Plaintiffs’ cause of action ag ainst Def endants for failing to sue Underly ing parties potentially involved in his acc ident could not stand beca use Plaintiff’s time to sue the Underly ing parties expired before h e r e ta

in e d th e Def

endants’ service s. There fore
, this Court should dismiss that portion of the Amende d Complaint that contains dupl icate a lleg ations ag ainst Defe ndants, namely
, all assertions of a brea ch of duty but for the new alleg ation involving a possible leg al malprac tice ac tion ag ainst Spector.” ¶ 21 I n their second arg ument, defe ndants ag ain used J udg e Suriano’s f inding at the Aug ust 7, 2006, hearing. U tiliz ing Judge Suriano’s statements, they arg ued:

-6-“[B]ased on this c ourt’s own ruling
, the Plaintiff kne w, or should ha ve known, that he had a potential cause of action beg inning in 1995. There fore
, not o n l y did his limit ations period to sue the Underly ing parties expire as of 1997 (bef ore he reta ined the Def endants), but his time period to sue Spector also lapsed befor e he retained the Def endants. This is true bec au se based on the Court’s own ruling
, finding that Plaintiff had notice of a p o t enti al injury as of 1995, then he should have been on

n o t ice as of 1995 (whe n he retained Spector), and at least as of 1996 (the last y ear Plaintiff w orked with Spec tor), that no action had been filed on his behalf asserting
any cause of ac tion based on any wrong doing by

any party .” Citi ng J udg e Suriano’s statements at the Aug ust 7, 2006, hear i n g, and implicitl y acknow ledg ing that the circ uit court had not established, via ruling
, a definitive date when the persona l injury statute of limit ations bega n to run, defe ndants arg ued: “It rema ins possible that the limit at i o n s p er iod lapsed even sooner than 1995, as evidenc ed by the Court’s own indication that the Plaintiff was on notice ‘at the latest in 1995.’ ” ¶ 22 Def

endants conclude d t h ei r m otion with a reque st for dismiss al of plaintiffs amende d complaint on the bases that “Plaintiff could never have proven any duty was owed by Spector for the filing of such claims” and, alternatively
, “any potential action ag ainst the Def endants would have be en time bar red pur suant to 735 IL CS 5/ 13-202 and 735 IL CS 214.3 because Plaintiffs’ cause of action ag ainst any Underly ing party , including Spec tor, lapsed as early as 1997 or 1998.” ¶ 23 The hearing on defe ndants’ motion to dismiss plaintiff’s amende d complaint took place

on Marc h 28, 2007, befor e J udg e Eliz abeth Budzinski. At o n e p o i nt in the hearing, J udg e Budzinski c ut of

f a discussion of the statute of limit ations in an eff ort to f ocus on the issue of duty
, stating: “[T] he only alleg ations that I ’m dealing with—I ’m not rec onsidering J udg e Suriano’s ruling. That’s not on the t able.” The court advised counsel the “only alleg ation” in the complaint she was dealing with was whether “the Be rnstein firm owed a duty to advise of third-party claims,” and, in turn, “whe ther or not Spector & L enz s h o u l d have advised them of potential medica l malprac tice or any other third-pa

rty claims.” ¶ 24 After

further discussion f

ocusing
, ag ain, on the scope of the Spec tor law firm’s duty to J esse, the judge , without presag ing any ruling whatsoeve r, abr

uptly stated: “We can g o off the rec ord.” Subsequent pare nthetical notations in the transcript indicate that a discussion

was then had off the rec ord, and that the court would rec onvene at 2 p.m. Ther e is no transcript of any further proce eding s on that date in the rec ord on appea l. The court reporter’s

certification indicates her transcript “contains all the proce eding s had at the said hear ing on the motion.” It is not clear what, if anything, took plac e later on that date. ¶ 25 What is clea

r is that a written order resulted, dated Marc h 2 8
, 2 0 0 7
, entered by J udg e Budzinski, de ny ing, in its entirety , defe ndants’ motion to dismiss. The pertinent portion of the court’s order simply states: “De fendant’s Motion to Dismiss the Amended Complaint is denied[.]” This order appe ars to havebeen pr epar ed by defe ndants’ own attorney

. ¶ 26 The case continued, with plaintiffs’ amende d complaint intact, and without any eff ort on the part of defe ndants to c larify the written order s of the circ uit c ourt if, in f act, defe ndants believed those order s did not a ccur ately ref lect the judicial pronounce ments of the court to

-7-that point in the procee dings.

¶ 27 De fe n d an t s s u b s eq u en t l y filed an answe r to plaintiffs’ amende d complaint. T h ei r ambivalenc e reg arding the finality
, and binding nature , of any pronounce ments made by J udg e Suriano o n Aug ust 7, 2006, is ref lected in their response s to certain para g raphs of plaintiffs’ amende d complaint. Their response s to three numbere d para g raphs of plaintiffs’ amende d complaint are identical, except for the cited pa

rag raph numbe r in ea ch:
“De fendants make no answe r with respe ct to [num bere d para g raph] of Plaintiffs’ Am en ded Complaint inasmuch as said alleg ations wer e dismiss ed pursuant to t h e Orde r of J udg e Suriano dated Aug ust 7, 2006. To the extent the alleg ations contained within this [sub] para g raph are deeme d to remain despite the dismiss al in the afor esaid Or der, D efe ndants deny the alleg ations contained the rein.” ¶ 28 Def

endants also raised a number of aff irmative defe nses. Def

endants’ fourth af

firmative defe nse re ads as f

ollows: “The state of scientific and medical knowledg e at the time of the alleg ed conduct of the defe ndants cited in Ex hibit 1 of Plaintiffs’ Complaint [refer ring to defe ndants in plaintiffs’ product liability complaint and their conduct from 1968 to 1995] and the date of the alleg ed injury or damag e to J esse Hernandez was not sufficie nt to apprise the defe ndan t s ci t ed in Ex hibit 1 of Plaintiffs’ Complaint of the dang ers and risks alleg edly resulting from exposure to the produc ts in question.” ¶ 29 An order of rec ord, enter ed by J udg e Marci a M ar as o n Marc h 17, 2009, indicates that defe ndants filed a motion for summary judgme nt, which was hear d on that d at e and continued for ruling to April 3, 2009. Def endants repr esent in their brief that their motion

was “broug ht on the bases that Spector & L enz owed no duty to advise plaintiffs of potential claims for products liability and/or chemica l exposure and that plaintiffs could not prove the merits of their underlying case .” The pag e cited by defe ndants in the rec ord on appea l does

n o t disclose their motion or the bases relied upon; it is a copy of the afor esaid order

. Def endants also repr esent that the motion was set for ruling on April 7, 2009. Neither pag e ci t ed

— b o t h o f which are copies of order s enter ed on Marc h 17 and April 3, 2009,
respe ctively

—indicates that a

dispositi ve ruling was sche duled for A pril 7, 2009. ¶ 30 The rec ord does substantiate that plaintiffs filed a m o t i o n t o voluntarily dismiss their

case , without prejudice
, pursuant to section 2-1009 of the Code of Civil Procedur e (735 IL CS 5/2-1009 (West 2008)), and that plaintiffs’ motion was g rante d via orde r ente red by J udg e Marc ia Mara s on April 14, 2009. I n their motion, plaintiffs a cknowledg ed the pe ndency of defe ndants’ motion for summary judgme nt, and aver red that they h ad prese nted sufficie nt evidenc e to avoid the entry of summary judgme nt. The y c la ime d the ir motion was occa sioned by an “issue perta ining to document s p roduce d by Central Steel and Wire during an underlying action.” P l ai n t i ff s conclude d, “in the interests of justice and to asce rtain a complete and acc urate rec ord plaintiff seeks to dismiss this case at this time.” J udg e Mara s’ dispositi ve order of April 14, 2009, rea ds, simply : “This matter is dismiss ed p u rsuant to section 5/2-1009 with all applica ble costs to be paid upon r efiling .” ¶ 31 A complaint for leg al malprac tice was there afte r filed on September 22, 2009, stati ng that is was “a ref iling of c ase numbe r 05 L 12564.”

-8-¶ 32 Def endants moved to dismiss the ref iled action pursuant to section 2-619.1 of the Code of Civil Procedure (735 IL CS 5/2-619.1 (West 2008)). Def endants noted that plai n t i ff s’ orig inal complaint for leg al malprac tice was dismiss ed by J udg e Suriano on Aug ust 7, 2006. They then repr esente d to the court that plaintiffs “subseque ntly filed an Amended Complaint in which the sole allegation was that the Be rn s t ei n firm was neg lige nt in failing to sue Spector & L enz.” (Emphasis in orig inal.) They observe d that the ref iled complaint included both a lleg ations of neg lige nce for failing to sue or advise suit a g ainst the Spector law firm, and alleg ations supporting the “claim” ag ainst defe ndant s for failing to sue or advise suit
ag ainst the product liability defe ndants, a “ claim” whic h defe ndants submit wa s dismiss ed by J udg e Suriano. ¶ 33 Def

endants arg ued that the ref iled com p l ai n t s h o u l d b e d i s m i s s ed, with prejudice
, pursuant to sec tion 2-619(4) of the Code on the basis that the e ntire ac tion is barred by the doctrine of res judicata and the prohibition ag ainst claim-splitting espoused by this court in Rein v. David A. Noyes & Co.
, 172 I ll. 2d 325 (1996). Def endants rec og nized that contention depende d upon the entry

of a finaljudgme nt by

J udg e Suriano on Aug ust 7, 2006. ¶ 34 Def

endants, howeve r, also arg ued an “alternative” position, contending
, if there was no final adjudication on that date: “[T] he dismiss ed alleg ations, that the Be rnstein firm failed to advise Mr. Hernandez that he had a potential chemica l exposure case , should be stricken in acc ordanc e with § 5/2-615 for the same rea son that J udg e Suriano dismiss ed the orig inal Complaint, namely that any chemica l exposure case was barred by the statute of limit ations when the Be rnstein firm wa s re t ained to prosec ute a Workers Compensation claim until 1999 g iven that Mr. Hernandez’s last d ay o f em p loy ment at Central Steel & Wire was in 1995.” ¶ 35 For their res judicata arg ument, the defe ndan t s re l i ed s u b s t antially upon this court’s decisions in Rein and Hudson v. City of Chicago , 228 I ll. 2d 462 (2008). ¶ 36 On Marc h 24, 2 0 1 0
, t h e m at t er wa s h ea rd befor e J udg e J eff rey L awr ence . J udg e L awr encenoted the nature of the alleg ations in plaintiffs’ first leg al malprac tice complaint

an d J udg e Suriano’s dismiss al there of. He observe d that plaintiffs then filed an amende d complaint in which they “re asserted” the orig inal “claims” and “made an additional claim” involving the Spec tor firm. The judge found “those two claims do not rise out of the same

o perative set of fac ts.” J udg e L awr ence acknow ledg ed plaintiffs’ arg ument that J u d ge Suriano’s order should not be considere d a final adjudication on the merits beca use it did not state that the initial complaint was dismiss ed with prejudice
, and he indicated he was “on the point of ag ree ing” until he rea d the appellate court’s opinion in Matejczy k v. City of Chicago
, 397 I ll. App. 3d 1 (2009), wher ein, he believed, “the identical arg ument was raised.” J udg e L aw re n ce ultimately determined that he was “constrained t o apply the res j udicata rule o f Hudson ,” that the line of ca ses re prese nted by Rein
, Hudson
, and Matejczy k “wa s intended
to prohibit this ty p e o f claim splitt ing and rea sserting the same claim in two separ ate actions.” ¶ 37 The ap p el l at e co u rt re v er sed and rema nded, framing the issue here as “whe ther the Aug ust Order

bars the instant litigation,” and conc luding: “I t does not.” 2011 IL App (1st)

-9-102646, ¶ 6. The court reje cted the defe ndant’s contention that the August order was final

beca use, alleg edly , it “disposed of one of plaintiffs’ two g rounds for r ecove ry ,” i.e. , “ ‘that the Be rnstein defe ndants wer e neg lige nt in failing to advise plaintiffs with respe ct to suing Spector & L enz for failing to bring a products liability

or che mical exposure ca se.’ ” 2011 IL App (1st) 102646, ¶ 7. In the view of the appellate court: “Plaintiffs have alleg ed only a

s i n gl e t h eory of rec overy : leg al neg lige nce.” Id

. The appellate court explained: “The trial court’s order did not alter plaintiffs’ theory of rec overy —neg lige nce. It simply allowed them
t o p l ead new facts i n support of t hat claim.” Id

. The court quoted from Piagentin i v. Fo rd Motor Co. , 387 I ll. App. 3d 887 (2009):
“ ‘This court has held that the dismissal of certain alleg ations under a single theory of rec overy does not terminate litigation betwee n the parties on the merits or dispose of the rig hts of the parties on a separ ate branc h of the controve rsy

. [C itation.] Rather, the dismiss al of certain alleg ations under one theory of rec overy mere ly determines which alleg ations under that theory are allowed to rema in.’ ” Id

. (quoting Piagentini
, 387 I ll. App. 3d at 894). The appellate court, in this case , found it of no conseque nce that “the fac tual alleg ations here
appea red in two separ ate pleading s, as oppos ed to a single complaint, *** since the all ega t i o n s wer e made to advanc e a single theory of rec overy : neg lige nce based on defe ndants’ alleg ed failure ‘to inform [pl aintiffs] of all potential claims and cause s of action they possessed or which might arise from the injuries in q u es t i o n

. ’ As the Aug ust Orde r barr ed only certain alleg ations in support of that theory
, as opposed to the entire neg lige nce claim, the Aug ust Order

was not final.” Id. ¶ 38 The appellate court purported to distinguish Matejczy k on the basis that the plaintiffs here did not file a multicount complaint, as did plaintiff in Matejczy k
, wher e one count was dismiss ed “with Matejczyk being g rante d leave to ref ile count I I .” Id. ¶ 8 (quoting Matejczy k
, 397 I ll. App. 3d at 2). This appellate panel found it signific ant that plaintiffs “filed a single

count complaint that the trial court dismiss ed with leave to reple ad.” Id. The appellate court stated that an “ ‘orde r dismiss ing a complaint but g ranting leave to reple ad is not a final order for purposes of res judicata until the trial court enter s an o rd er d ismiss ing the suit with prejudice .’ ” Id

. ¶ 9 (quoting W illiams v. Ingalls Mem orial Hospital
, 408 I ll. App. 3d 360, 364 (2011), and citing Piagentini , 387 I ll. App. 3d at 894). The a ppellate c ourt found Rein and Hudson in ap p o s i t e as the rendition of a “fina l” order was essential in the analy sis of

eac h. 2011 IL

App (1st) 102646, ¶ 10.

¶ 39 ANALYSI S ¶ 40 Def

endants, as the parties invoking the application of res j udicata
, and as t h e l i t i gan ts responsible for obtaining ruling s on their motions in the circ uit cour t , b ea r a substantial burden in this case

. ¶ 41 The burden of showing that r es judicata applies is on the party invoking the doctrine

. People ex rel. Scott v. Chicago Park District
, 66 I ll. 2d 65, 68 (1976); Taylor v. Police Board
, 2011 IL App (1st) 1011 5 6
, ¶ 19. A critical component in that showing is a final adjudication. Hudson
, 228 I ll. 2d at 470; Rein
, 172 I ll. 2d at 335. As we have often observe d,

-10-a movant has the responsibility to obtain a ruling on his motion if he is to avoid forf eiture on appea l. People v. Urdiales
, 225 I ll. 2d 354, 425 (2007). I n this context, wher e the nature of the ruling may be determinative, we may qualify that proposition f urther: a movant has the responsibilityto obtain a definitive ruling

. ¶ 42 Moreove r, where, as here
, multipl e judges and ruling s are involved, we are mindful of
p re ce dent rec og nizi ng the circ uit court’s inhere nt power to revie w, modify
, or vacat e interlocutory order s while the court reta ins jurisdiction over the entire con t rover sy

. For example, this court has repe atedly held that the circ uit court has the inhere nt power to modify

or vaca te an interlocutory order g ranting summary judgme nt any time befor e final judgme nt. Rowe v. State Bank of Lombard
, 125 I ll. 2d 203, 213-14 (1988). “In a varie ty of contexts, this
court has stated that an interlocutory order may be revie wed, modified or vacated at any time befor e final judgme nt, and it is of no conseque nce that the orig inal order was enter ed by another circ uit judge .” Balciunas v. Duff
, 9 4 I l l

. 2d 176, 185 (1983). See also Towns v. Y ellow Cab Co.
, 73 I ll. 2d 113, 121 (1978) (while the circ uit c ourt reta ins jurisdiction over the entire controve rsy , and whe re there is no evidenc e of “judg e shopping,” a court is not bound by the order of a previous judge and has the power to corr ect order s it considers to be

err oneous); Shaw v. Dorris
, 290 I ll. 196, 204 (1919) (“A t any time before the entering of *** final judgme nt the whole rec ord is before the court, and an err oneous ruling there tofore made
may be set a side and the e rror corr ecte d.”). ¶ 43 Application of t h e fo re go i n g p ri nciples require s aff irmance of the judgme nt of the appellate court. Irre spective of whether or not a single “claim” is involved in this case , as the appellate court determined, for purposes of res judicata
, we do not interpre t the cursory oral
pronounce ments of J udg es Suriano and Budzinski as definitively and finally fore closing the plaintiffs’ rig ht to attempt amendment of their complaint in such a way as to plead additional fac ts bearing upon application of the discovery rule to their un derlying product liability claim—which in turn could aff ect the viability of leg al malprac tice actions. The state of the pleading s when the plaintiffs voluntarily dismiss ed their action supports that assessment, as the “claim” or “theory ” o f plaintiffs’ orig inal leg al malprac tice complaint stood—neither stricken nor dismiss ed—as part of plaintiffs’ amende d complaint at that ti m e. No r do we believe that the actions, and inaction, of the d ef en d an t s in the circ uit court merit the application of res judicata under the se circ umstances. ¶ 44 First, we look at the oral pronounce ments o f J u d ges Suriano and Budzinski, and the resulting written orde rs. ¶ 45 J udg e Suriano indicated he was dismiss ing the orig inal complaint, that contained c erta in alleg ations, pursuant to de fendants’ motion to dismiss
, which was obviously filed af ter the complaint. When counsel for plaintiffs asked to “add” —not s ubstitut e—alleg ations supporting a theory of liability based upon the fa i l u re of defe ndants to sue, or advise suit
ag ainst, the Spector law fi rm , Suriano said, “I ’ll allow him to bring that.” Despite J udg e Suriano’s finding —based upon the factual allegations then befor e him—that the statute of limit ations b ega n to run i n 1995, nothing he said on Aug ust 7, 2006, indicates that further amendment on that score was precluded, or that he would not, or another j u d g e could not, revisit the matter later if prese nted with additional fac tual alleg ations impacting the time at which t he statute of limit ations could be deeme d to have commence d. It appea rs that

-11-plaintiffs attempted to pre sent those fa cts in their amende d complaint.

¶ 46 The resulting written order J udg e Suriano signe d simply states that plaintiffs wer e g iven 30 day s to file “an amende d complaint.” No restric tions or limit ations were p l ac ed o n the content of that complaint; there is no l ang uag e that sug g ests a final ruling was render ed or that the ca se, or any

part ther eof, w as dismissed with prejudice. ¶ 47 A fi n al j u d gm en t has been define d as “a determination by the court o n t h e i s s u es prese nted by the pleading s which asce rtains and fix es absolutely and finally the rig hts of the parties in the lawsuit.” (Emphasis added.) Flores v. Dugan
, 91 I ll. 2d 108, 112 (1982). There is no indication in J udg e S uriano’s oral pronouncement or written orde r that any thing was “absolutely and finally ” settled when he g rante d defe ndants’ mot i o n to dismiss
, but g ave plaintiffs leave to file “an amende d complaint.” It appea rs there was “no adjudication upon the merits” for purposes of Supreme Court Rule 273 (I ll. S. Ct. R. 273) beca use, as provided there in, “the order of dismiss al” in this case “other wise specifie s,” g ranting plaintiffs leave
to file an amende d complaint—which plaintiffs promptly did in the orig inal malprac tice action. ¶ 48 The stateme nt of J udg e B udzins ki, upon which def endants re ly , is even less de finitive, when place d in its proper context, than the pronounce ment of J udg e Suriano. At the time she made the brief rem ar k
, upon which defe ndants’ claim of res judicata so heavily depends, defe ndants’ counsel was attempting to arg ue the applicability of J udg e Suriano’s 1995 date in service of a c ontention that, “if [J esse] had a c ause of action that started to run i n ’95, it would have lapsed in ’97.” J udg e Budzinski appea rs to have cut off a d i s cussion of the
statute of limit ations at that point, stating: “[T] he only alleg ation that I ’m dealing with—I ’m
not rec onsidering J udg e Suriano’s ruling

. That’s not on the table.” The judge then made clea r that the “only alleg ation” in the complaint she was focusing on, at that point in the hearing,

was the issue of duty

—that of the defe ndants here in, and that of the Spector law firm. Thus,

one could rea sonably interpre t J udg e Budzinski’s brief rema rk as intended to direc t and control the discussion in the cour se of an ong oing hearing in w hich “many lay ers of things [were] g oing on.” I t is not nece ssar i l y

— o r even rea sonably —interpre ted as a comment on the cha rac ter of Judge Suriano’s ruling or the fina lityshe would ac cord it. ¶ 49 I n t h e l at t er respe ct, we compar e the alleg ations and reque sts for relief in defe ndants’ motion to dismiss plaintiffs’ amende d complai n t for leg al malprac tice with the relief

acc orded them i n J u d g e Budzinski’s written order of Marc h 28, 2007. I n their motion to d is miss the amende d complaint, defe ndants repe atedly insisted that the th e o r y an d all e g ati o n s from plainti ffs’ orig inal malpractice complaint wer e “improperly re- asserted i n the i nstant pleading ,” that “Plaintiffs’ ability to rec over in the Underly ing persona l injury action expired prior to the time he reta ined the Def endants, as determined by this Court at the hear i n g of Aug ust 7, 2006,” and that, “[a]s a result of being on notice no later than 1995 of his potential claim, all of the Plaintiffs’ potential claims, including any claim ag ainst Spector, would have expired by the time Plaintiffs first reta ined Def endants in 1999.” De fe ndants made the following specific reque st for relief
, direc ted at excising plaintiffs’ alleg ations from t heir orig inal malprac tice complaint, which def endants a rg ued we re “ improperly

re- asserted in” their amende d complaint: “The ref ore, this Court should dismiss that portion of the Amended Complaint that contains duplicate alleg ations ag ainst Def endants, namely
, all assertions of

-12-a brea ch of duty but for the new alleg ation involving a possible leg al malprac tice action

ag ainst Spector.” ¶ 50 That reque st was not specific ally addre ss ed b y J u d ge Budzinski in the course of the hearing on the motion to dismiss
, and it most certainly was not in the resulting written order

. To the contra

ry , J udg e B udzins ki’s written orde r stated that de fendants’ motion to di smiss the amende d complaint was “ denied” —period—a nd defe ndants wer e g iven 28 day s to file

a responsive pleading

. No para g raphs of plaintiffs’ amended co m p l aint wer e stricken; nothing wa s dismiss ed. J udg e Budzinski left pl aintiffs’ amended c omplaint intact, and the

case went on. ¶ 51 Although defe ndants would have us believe that J udg e Suriano’s Aug ust 7, 2006, ruling

was undoubtedly a final adjudication, their own actions, from the filing of their motion to dismiss plaintiffs’ amende d co m p l ai n t, to their filing of a responsive pleading afte r their motion was den i ed
, evince their lack of conviction in the position they now espouse. As noted previously
, in their answe r to the amen d ed compl aint, they continued to arg ue the finality of J udg e Suriano’s ruling —implicitl y acknow ledg ing it was not a mat ter finally decide d—and conce ded the uncertainty of the situatio n by stating: “To the extent the alleg ations contained within this para g raph are deeme d to rema in despite the dismiss al in the afor esaid Or der, D efe ndants deny the alleg ations contained the rein.” ¶ 52 We believe a party claiming res judicata —as t h e party bearing the burden of showing that res judicata applies—has a duty to clarify the rec ord so as to clearly demonstrat e his entitlement to the doctrine’ s application. De fendants have failed to car ry their burde n. ¶ 53 We acknow ledg e defe ndants’ contention that, “ [t ]o the extent that the written order raises

a question reg arding J udg e Budzinski’s ruling
, her oral pronounce ments control.” We perc eive no such question: defe ndants’ motion to dismiss plaintiffs’ amende d complaint was expli cit in what it alleg ed and in the relief it soug ht, and i t wa s d en i ed i n its entirety

. Def endants cannot look to oral pronounce ments to explain otherwise unambig uous written order s wher e the oral pronounce ments themselves are , at best
, ambig uous indicators of the court’s intent. ¶ 54 I n sum, w e find that the def endants, a s the parties se eking to invoke the doctrine of res judicata
, have not borne their burden of proving a final judgme nt was enter ed for purposes of the doctrine’ s application. Consequently
, the judgme nt of the appellate court is aff irmed, albeit on different rea soning (s ee P eo ple v. McD onough
, 239 I ll. 2d 260, 275 (2010) (this
court is not bound by the appellate court’s rea soning and may aff irm on any basis prese nted in the rec ord))
, and this cause is rema nded to the circ uit cour t fo r fu rt her proce eding s consistent with this opi nion.

¶ 55 Affirmed and r emande d.

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