THIRD DIVISION
April 23, 2003

PRESIDING JUSTICE SOUTH delivered the opinion of the court:

This appeal arises from a refiled wrongful death action by Janet Anderson, the specialadministrator of Mary Cooper's (decedent) estate. The original complaint, filed on July 17, 1997,was a wrongful death action against Humana Health Plans, Inc. (Humana), Dr. Robert Alter,West Suburban Hospital Medical Center (West Suburban) and Dr. Roy Horras. The complaintalleged that on February 28, 1995, Dr. Alter treated decedent at Humana and prescribed a drugcalled Coumadin, an anticoagulation blood thinner, and aspirin. Dr. Alter subsequently increasedthat dosage of Coumadin in June of 1995.

On July 21, 1995, decedent was taken to the emergency room at West Suburban andtreated by Dr. Horras. She remained under the care of Dr. Horras until her death on July 24,1995. The complaint alleged that decedent died due to Dr. Alter's and Dr. Horras's failure todiagnose excessive Coumadin. No complaints of negligence were alleged against any agents orapparent agents of West Suburban.

A second amended complaint was filed on January 20, 1999, essentially asserting thesame causes of action contained in the initial complaint against the previously named defendants. Once again, no complaints of negligence were alleged against any of the agents or apparentagents of West Suburban.

All defendants subsequently filed various motions for summary judgment. In its responseto defendants' motion for summary judgment, plaintiff alleged for the first time that Humana andWest Suburban were vicariously liable for the acts of its agents, servants and employees. OnSeptember 7, 2000, plaintiff filed an emergency motion to file a third amended complaint addingthe allegation of vicarious liability. That motion was denied. Defendants' motion for summaryjudgment was granted in part and denied in part. Partial summary judgment was entered in favorof defendants Dr. Alter and Humana on all allegations of negligence occurring on and after July25, 1995, and partial summary judgment was entered in favor of defendant West Suburban as toall allegations of negligence by any hospital agent, servant or employee, other than Dr. Horras. The motions were otherwise denied, and the court struck the Rule 304(a) (155 Ill. 2d R. 304(a))language.

On October 18, 2000, upon plaintiff's motion, the case was voluntarily dismissed andplaintiff was given leave to re-file within one year.

On April 13, 2001, plaintiff refiled her complaint against West Suburban, Humana, Dr.Alter and Dr. Horras. In her refiled complaint, she alleged negligence on the part of the nameddefendants and the agents and employees acting on their behalf.

All defendants subsequently filed various motions to dismiss. West Suburban and Dr.Horras' motions to dismiss argued that the circuit court's partial summary judgment order in theoriginal suit constituted res judicata barring plaintiff's claim that West Suburban was liable forthe negligent acts of its agents other than Dr. Horras; that res judicata barred plaintiff's claimsthat West Suburban was liable for Dr. Horras' alleged negligence because plaintiff chose tovoluntarily dismiss those claims instead of litigating them in her original suit; and that the statuteof repose barred plaintiff's claims that West Suburban and Dr. Horras were liable for the allegednegligence of agents other than Dr. Horras.

Humana and Dr. Alter's motions to dismiss asserted that they were not liable for any ofthe conduct allegedly occurring on or after decedent's admittance to West Suburban; that the newallegations of negligence were barred by the applicable statute of limitations; and that any newallegations in the refiled complaint should be dismissed based upon the doctrine of res judicata.

The trial court granted the motions to dismiss in their entirety with prejudice.

Plaintiff has raised five issues for our review: (1) whether the order denying Dr. Horras'motion for summary judgment constituted a final judgment barring the refiled cause of action; (2)whether the order granting summary judgment in favor of West Suburban as to the allegations ofnegligence by any hospital agent, servant, or employee other than Dr. Horras constituted a finaljudgment barring the refiled cause of action; (3) whether the order granting partial summaryjudgment in favor of Humana and Dr. Alter on all of the claims of negligence allegedly occurringon and after decedent's July 21, 1995, admission to the hospital constituted a final order thatbarring the refiled cause of action; (4) whether the partial summary judgment and final judgmentended the litigation between the parties on the merits so that only execution of that orderremained to be accomplished; and (5) whether the original complaint placed defendants on noticeas to the subject matter of this medical malpractice case so that any "new" allegations in therefiled action related back to the original complaint.

The issues raised by plaintiff may be disposed of by applying the Illinois Supreme Court'srulings in Dubina v. Mesirow Realty Development, Inc., 178 Ill. 2d 496, 687 N.E.2d 871 (1997).

In Dubina, various plaintiffs filed actions due to property damage arising from a fire. Dubina,178 Ill. 2d at 499. These causes of action were later consolidated into one case. Dubina, 178 Ill.2d at 499. Prior to trial, plaintiffs collectively settled their cases with all defendants, exceptdefendant Litgen. Pursuant to the settlement agreement, plaintiffs released all of their claimsagainst Litgen to Mesirow Realty Development. Dubina, 178 Ill. 2d at 499-500. The circuitcourt later found that the settlement agreements were made in good faith and that plaintiffs' directclaims against Litgen remained pending in the circuit court. Dubina, 178 Ill. 2d at 500.

Plaintiffs subsequently filed a motion to voluntarily dismiss their direct claims againstLitgen. Dubina, 178 Ill. 2d at 500. After plaintiffs' voluntary dismissal was granted, Litgenappealed the orders approving the settlement agreement and dismissing its contribution claims. While Litgen's appeal was still pending, plaintiffs refiled their case against Litgen in the circuitcourt. Dubina, 178 Ill. 2d at 500. Mesirow filed a motion to dismiss Litgen's appeal for lack ofsubject matter jurisdiction based upon plaintiffs' refiling of the case. Dubina, 178 Ill. 2d at 500.

The appellate court dismissed the appeal, stating that it lacked jurisdiction to hearLitgen's appeal because plaintiffs had refiled their case, and that the dismissal and good-faithorders had been transformed from final orders into nonfinal orders. Dubina, 178 Ill. 2d at 501. The appellate court also reasoned that "although the contribution claims were dismissed withprejudice, Litgen would not be barred by res judicata from filing its contribution claims in thesecond action" and "Litgen would not be prejudiced by waiting for the conclusion of the secondaction before being allowed to appeal." Dubina, 178 Ill. 2d at 501.

The supreme court disagreed, holding that while a dismissal with prejudice is usuallyconsidered a final judgment, if the dismissal does not dispose of all of the rights and claims ofthe parties in the litigation, under supreme court Rule 304(a) it is not always immediatelyappealable. If the dismissal order disposes of fewer than all of the parties and claims, the actionis not instantly appealable unless the court enters a Rule 304(a) finding that "there is no justreason for delaying either enforcement or appeal or both." 155 Ill. 2d R. 304(a); Dubina, 178 Ill.2d at 502-03. The court stated that since the dismissal of Litgen's contribution claims was withprejudice but lacked Rule 304(a) language, it was final but not immediately appealable. Dubina,178 Ill. 2d at 503.

However, when the court granted plaintiffs' voluntary dismissal, the action wasterminated in its entirety and all pending claims were dismissed. Dubina, 178 Ill. 2d at 503. Thesupreme court concluded that "[t]he order of voluntary dismissal, because it disposed of allmatters pending before the circuit court, rendered all orders which were final in nature, but whichwere not previously appealable, immediately final and appealable." Dubina, 178 Ill. 2d at 503.

Additionally, the supreme court rejected the appellate court's reasoning that the plaintiffs'refiled case somehow transformed final orders into nonfinal orders, thereby divesting theappellate court of jurisdiction over Litgen's appeal. Dubina, 178 Ill. 2d at 504. The court statedthat "the refiled action is an entirely new and separate action." Dubina, 178 Ill. 2d at 504. Assuch, "when the original action was terminated, the circuit court lost original jurisdiction of theoriginal action and all final orders became appealable under Rule 301." Dubina, 178 Ill. 2d at504.

Finally, citing its own opinion in Rein v. David A. Noyes & Co., 172 Ill. 2d 325, 665N.E.2d 1199 (1996), the supreme court addressed the issue of final judgments and the effect ofthe doctrine of res judicata in refiled cases.

In Rein, there were two cases. In Rein I, the complaint alleged that the defendantsfraudulently misrepresented the nature of certain securities purchased by the plaintiffs andcontained counts for rescission and common law remedies. Rein, 172 Ill. 2d at 328. The circuitcourt ruled that the rescission counts were barred by the statute of limitation, and it refused toinclude Rule 304(a) language in its dismissal order. Rein, 172 Ill. 2d at 329-30. The plaintifftook a voluntary dismissal of the entire case and subsequently appealed the dismissal of therescission counts only under Rule 301. The appellate court affirmed the circuit court's ruling thatthe rescission count was barred by the statute of limitations. Rein, 172 Ill. 2d at 330.

Plaintiff then refiled the entire case, raising the rescission counts and the common lawcounts. However, the circuit court dismissed both counts pursuant to the doctrine of res judicata,which the appellate court affirmed. Rein, 172 Ill. 2d at 331-32.

The supreme court affirmed the appellate court, holding that "the final judgment in Rein Ibars subsequent actions involving the same claims or demands by the same parties or theirprivies." Rein, 172 Ill. 2d at 336.

As to the common law counts, plaintiffs' argument that there was no final adjudication onthe merits of the voluntarily dismissed common law counts that could be barred by res judicatawas rejected by the supreme court. Rein, 172 Ill. 2d at 337. The supreme court stated that"although there was not an adjudication on the merits of the common law counts of Rein I, ***res judicata will bar not only every matter that was actually determined in the first suit, but alsoevery matter that might have been raised and determined in that suit." Rein, 172 Ill. 2d at 337-38. Therefore, since the common law counts arose out of the same set of operative facts as therescission counts, plaintiffs could have litigated and resolved those issues in Reid I. Rein, 172Ill. 2d at 338.

We find the Illinois Supreme Court's reasoning and holdings in Dubina and Reidapplicable to the issues in the case at bar.

First of all, while the trial court's order denying Dr. Horras' motion for summary judgmentwas final but not immediately appealable, it became final and appealable once plaintiff's motionfor a voluntary dismissal was granted. However, as West Suburban correctly points out in itsappellate brief, plaintiff never appealed from the court's partial summary judgment order. Therefore, when plaintiff refiled the case, the court correctly dismissed the case in its entiretybased upon the principle of res judicata. The facts in this case are analogous to the facts in Rein,wherein the court ruled that although the common law counts were never adjudicated on themerits, res judicata barred not only every matter that was actually determined in the first suit butalso those matters that could have been raised and determined.

Secondly, we find that the aforementioned cases clearly address plaintiff's issuesregarding the finality of the trial court's orders granting partial summary judgment in favor ofWest Suburban, Humana and Dr. Alter. To reiterate, the grant of partial summary judgment wasan interlocutory order when it was entered but became final and immediately appealable onceplaintiff's motion for a voluntary dismissal was granted. Therefore, the trial court's order in thefirst case was an adjudication on the merits, which constituted res judicata barring plaintiff'ssubsequently refiled case against the same parties involving the same causes of action.

There are three requirements for the application of res judicata: (1) a final judgment onthe merits in the first suit; (2) an identity of the cause of action; and (3) an identity of the parties. Dubina, 178 Ill. 2d at 505. All three requirements have been met in this case.

Finally, plaintiff argues that defendants were placed on notice concerning the subjectmatter of the "new" allegations against them in the refiled action. However, plaintiff neverappealed from the trial court's order granting partial summary judgment in favor of defendants. Therefore, the court's ruling in the original case became res judicata to the issues raised again inthe refiled case. Furthermore, pursuant to Rein, the allegations that could have been raised anddetermined in the original suit are subject to the doctrine of res judicata. Consequently, since theallegations against the agents, servants and employees of Human and West Suburban could havebeen raised in the original cause of action, they were barred in the refiled case.

Based upon the foregoing, the circuit court's ruling is affirmed.

Affirmed.

HOFFMAN and HALL, JJ., concur.