Appellate Court of Illinois,

Second District.

Lusvey MORALES, Indiv. and as Mother Next Friend of Sandra Ramirez–Morales and Javier Ramirez–Morales, Minors, and as Special Adm’x of the Estate of Diana Ramirez–Morales, Deceased, Plaintiff–Appellant,

Francisco Javier RAMIREZ, Caffero Trucking, Inc. and James Castle, Defendants.

James Castle and Caffero Trucking, Inc., Third–Party Plaintiffs,

v.

Mohammed I. Quireshi, Third–Party Defendant–Appellee.

 

No. 2–11–0737.

June 17, 2013.

 

Appeal from the Circuit Court and of McHenry County. Nos. 09–LA–18, 09–LA–21, Michael T. Caldwell, Judge, Presiding.

 

ORDER

Justice McLAREN delivered the judgment of the court:

*1 ¶ 1 Held: The circuit court properly dismissed plaintiffs’ complaint for lack of subject matter jurisdiction based on sovereign immunity, relying on Shirley v. Harmon, 405 Ill.App.3d 86 (2010), which held that sovereign immunity applied to an IDOT snowplow driver; circuit court affirmed.

 

Res judicata and collateral estoppel did not bar defendant’s motion to dismiss plaintiffs’ complaint because the prior order plaintiffs relied on, the denial of a motion to dismiss, was not a final judgment.

 

Defendant’s affidavit was sufficient to establish a lack of material facts where the affidavit supported claim of sovereign immunity and plaintiffs failed to tender any counteraffidavits to refute the facts presented by defendant.

 

¶ 2 Plaintiffs, Lusvey Morales, Andres Valdivia–Morales and Marisela Gallardo appeal from a circuit court’s order dismissing their complaints against third-party defendant, Mohammed Quireshi, an Illinois Department of Transportation (IDOT) snowplow truck driver. On appeal, plaintiffs argue that the circuit court erred by granting Quireshi’s motion to dismiss because (1) the circuit court relied on this court’s erroneous decision, Shirley v. Harmon, 405 Ill.App.3d 86 (2010), which held that sovereign immunity applied to an IDOT “highway maintainer”; (2) the doctrine of res judicata applied to bar Quireshi from asserting that he was protected by sovereign immunity: (3) the doctrine of collateral estoppel barred Quireshi’s claim that sovereign immunity applied; and (4) there remains an issue of material fact as to the affirmative matter claimed. We affirm.

 

¶ 3 I. BACKGROUND

¶ 4 The following facts are taken from the pleadings and attached documents. At about 2 p.m. on December 19, 2008, during a snowstorm, Francisco Javier Ramirez, drove the following passengers in a Ford minivan on a shopping trip, his wife, Lusvey Morales, their three children, Javier Ramirez–Morales, Sandra Ramirez–Morales and Diana Ramirez–Morales, and two other passengers, Andres Valdavia–Morales and Marisela Gallardo. Francisco drove the minivan north on Route 47, a road that had one lane in each direction. At the same time, a snowplow truck was traveling south on the same road. The driver of the snowplow truck was Mohammed Quireshi who was working for IDOT at the time. The snowplow truck and its 11–foot blade were in both the northbound and southbound lanes. To avoid contact with the snowplow, Francisco drove the minivan toward the right-side shoulder of the road. When Francisco attempted to steer the minivan left, back to the road, he lost control of the vehicle. The minivan swivelled and veered left into oncoming traffic. The minivan crossed the center of Route 47 and collided with a Peterbilt semitruck driven by James Castle who was traveling southbound. The impact with the semi-truck caused the minivan to spin. Six-year-old Diana was ejected from her seat onto the side of the road and died as a result of her injuries. The other five passengers were taken to local hospitals.

 

*2 ¶ 5 On January 12, 2009, Lusvey filed a complaint against Francisco and Castle individually and as mother and next of friend of Sandra and Javier and as special administrator of Diana’s estate.FN1 Andres and Marisela filed a separate complaint against Francisco and Castle.FN2 Lusvey amended her complaint, adding as defendant, Caffero Trucking, Inc., the owner of the Peterbilt truck.FN3 Castle filed cross-claims for contribution against Francisco. In the Lusvey case, Francisco filed a counterclaim against Castle and Caffero Trucking. Andres and Marisela filed an amended complaint naming Caffero Trucking as a defendant, and Francisco filed a counterclaim against Castle in that case. Caffero Trucking filed counterclaims in both cases against Francisco. Lusvey filed a second amended complaint against Francisco, Castle and Caffero Trucking.

 

FN1. Case no. 09–LA–18

 

FN2. Case no. 09–LA–21

 

FN3. The circuit court consolidated the two cases.

 

¶ 6 On January 6, 2010, Castle and Caffero Trucking filed a third-party complaint for contribution against Quireshi. Quireshi filed a motion to dismiss the third-party complaint for contribution pursuant to section 2–619(a)(1) of the Code of Civil Procedure (Code), claiming sovereign immunity because Quireshi was “operating a motor vehicle in a manner unique to his State employment.” Quireshi attached to his motion an affidavit stating that when the accident occurred he was employed by IDOT and his snowplow blade was in the down position. On June 22, 2010, the circuit court denied Quireshi’s motion to dismiss Castle and Caffero Trucking’s third-party complaint for contribution. Quireshi filed a motion to reconsider on July 20, 2010.

 

¶ 7 On August 11, 2010, while Quireshi’s motion to reconsider was pending, this court decided Shirley v. Harmon, 405 Ill.App.3d 86 (2010). In Shirley we that held that sovereign immunity barred the plaintiff’s negligence action against an IDOT snowplow driver who veered across the center lane of the road and collided with the plaintiff while plowing snow. Id. at 97–97.

 

¶ 8 On November 12, 2010, plaintiffs Lusvey and Marisela FN4 filed separate third-amended complaints, naming, for the first time, Quireshi as a defendant. Plaintiffs alleged that Quireshi:

 

FN4. Andres had reached a settlement with Francisco on May 27, 2010 and was not included as a plaintiff in the count against Quireshi.

 

a. “Carelessly and negligently operated and controlled said motor vehicle at a speed greater than reasonable with regard for traffic conditions and the use of the highway, in violation of 625 ILCS 5/11–601;

 

b. Carelessly and negligently failed to keep an adequate lookout during the operation of said motor vehicle;

 

c. Carelessly and negligently operated and controlled said motor vehicle;

 

d. Carelessly and negligently failed to exercise that degree of care and caution that a reasonable person under similar circumstances would have exercised in the operation of said motor vehicle.

 

e. Carelessly and negligently crossed the center yellow line and proceeded into oncoming traffic.

 

5. As a direct and proximate result of one or more of the foregoing act of misconduct or omission on the part of the Defendant, MOHAMMAD QUIRESHI, said snow plow did cross the center yellow line causing the vehicle in which the Plaintiffs were riding to lose control and the Plaintiffs were caused to sustain the serious and permanent injuries as hereinafter set forth.”

 

*3 ¶ 9 On January 7, 2011, Quireshi filed a section 2–619(a)(1) motion to dismiss plaintiffs’ complaints claiming that plaintiffs lacked subject matter jurisdiction on the basis of sovereign immunity. Quireshi attached an affidavit to his motion stating that, when the accident occurred, he was employed by IDOT as a highway maintainer to do snow removal, he was performing his responsibilities as an IDOT employee, he was plowing snow, and his snowplow blade was in the down position. Quireshi cited Shirley, 405 Ill.App.3d 86, as well as other cases.

 

¶ 10 Also on January 7, 2011, the circuit court denied Quireshi’s motion to reconsider its denial of Quireshi’s motion to dismiss the complaint for contribution. The circuit court order stated “pursuant to rule 304(a) there is no just reason for delay of enforcement or appeal of this order.” As of the filing of this appeal, the third-party complaint for contribution remained pending in the circuit court.

 

¶ 11 On June 10, 2011, plaintiffs filed their response to Quireshi’s motion to dismiss. Plaintiffs argued that Quireshi’s motion to dismiss must be denied based on the doctrine of res judicata because Quireshi failed to appeal the denial of his motion to dismiss the third-party contribution complaint. Quireshi argued in his reply that res judicata did not apply because the denial of his motion to dismiss the contribution complaint was not a final judgment on the merits. Quireshi also argued that plaintiffs failed to distinguish Shirley.

 

¶ 12 During the hearing on Quireshi’s motion to dismiss plaintiffs’ complaints, Quireshi argued that res judicata did not apply because there was no identity of parties, that, in denying his motion in the third-party contribution case, the circuit court did not consider Shirley. Plaintiffs added to their arguments that when the circuit court ruled on Quireshi’s motion to reconsider, Shirley had not yet been published and was, therefore, not precedential. On reply, Quireshi argued that the denial of a motion to dismiss is not final under Supreme Court Rule 307 (Ill. S.Ct. R. 307 (eff.Feb.26, 2010)).

 

¶ 13 On June 28, 2011, the circuit court granted Quireshi’s motion to dismiss plaintiffs’ complaints. On July 26, 2011, plaintiffs filed their combined notice of appeal.

 

¶ 14 II. ANALYSIS

¶ 15 On appeal, plaintiffs argue that the circuit court erred by dismissing their complaints pursuant to section 2–619(a)(1) of the Code. Section 2–619(a)(1) provides for the involuntary dismissal of an action based on lack of subject matter jurisdiction. 735 ILCS 5/2–619(a)(1) (West 2010). In reviewing the grant of a section 2–619 motion, we interpret the pleadings and supporting documents in the light most favorable to the nonmoving party. See Snyder v. Heidelberger, 2011 IL 111052, ¶ 8. We review de novo the grant or denial of a section 2–619 motion to dismiss. Id.

 

¶ 16 Section 4 of article XIII of the Illinois Constitution provides, “[e]xcept as the General Assembly may provide by law, sovereign immunity in this State is abolished.” Ill. Const.1970, art. XIII, § 4. The legislature restored sovereign immunity by enacting the State Lawsuit Immunity Act, which provides that the State cannot be made a defendant or other party in court except as provided in the Court of Claims Act (705 ILCS 505/1 et seq. (West 2012)). 745 ILCS 5/1 (West 2010). Section 8(d) of the Court of Claims Act grants the court of claims exclusive jurisdiction to hear and determine all tort claims for damages against the State. 705 ILCS 505/8(d) (West 2010).

 

*4 ¶ 17 To determine whether an action is against the State courts consider the issues involved and the relief sought rather than the formal designation of the parties. Carmody v. Thompson, 2012 IL App (4th) 120202, ¶ 21. An action will be considered against the State, and thus, within the exclusive jurisdiction of the court of claims, where:

 

“(1) [T]here are no allegations that a state employee acted beyond the scope of his authority through wrongful acts; (2) the employee did not allegedly breach a duty owed to the public generally independent of his state employment; and (3) the complained-of actions involve matters ordinarily within the employee’s normal and official functions with the State.” Shirley, 405 Ill.App.3d at 91.

 

¶ 18 Regarding the second prong, courts analyze the source of the duty the employee was alleged to have breached. Currie v. Lao, 148 Ill.2d 151, 159 (1992). Sovereign immunity will bar a claim in the circuit court where a plaintiff alleges that a state employee breached a duty imposed on him solely due to his state employment. Id. However, a claim will not be barred by sovereign immunity where the plaintiff alleges that the employee breached a duty imposed on him independently of his state employment. Id.

 

¶ 19 This case is controlled by Shirley, 405 Ill.App.3d 86. In Shirley, the plaintiff, a driver, filed a complaint alleging negligence against an IDOT snowplow operator after the snowplow blade, which was lowered, veered across the center lane and collided with the driver’s vehicle. Shirley, 405, Ill.App.3d at 88. The plaintiff alleged, in part, that the defendant, a snowplow operator, drove too fast for conditions, failed to obey traffic laws, and drove in an unsafe manner. Id. The circuit court granted the defendant’s motion to dismiss based on lack of subject matter jurisdiction due to sovereign immunity. Id. This court affirmed, holding that sovereign immunity applied to bar the plaintiff’s complaint because the allegations were based on a breach of duty that arose out of the defendant’s state employment. Id. at 97. We reasoned that the defendant was plowing snow at the time of the accident and, therefore, the duty that he allegedly breached was to plow roads in a reasonably safe manner which was a unique duty imposed on him by virtue of his state employment. Id. We further considered the relief sought, stating that, “a judgment for plaintiff could operate to control the State’s actions, specifically IDOT’s policies and procedures related to plowing snow, such as the speed or manner in which snow is plowed.” Therefore, we held that sovereign immunity barred the plaintiff’s cause of action. Id.

 

¶ 20 Plaintiffs do not dispute that this case is factually indistinguishable from Shirley. Rather, plaintiffs argue that Shirley was wrongly decided. Plaintiffs argue that in Shirley, we erred by determining that the defendant, “a highway maintainer” acted within the scope of his duties as an employee of the State. Plaintiffs contend that, although the duty to remove snow from the road by operating a snowplow was a duty imposed upon the defendant in Shirley and Quireshi by virtue of their State employment, operating a snowplow or any motor vehicle in a safe and reasonable manner was a duty imposed not just upon them, but by every other motorist. Plaintiffs argue that, therefore, the duty to operate a motor vehicle in a safe and reasonable manner could have been easily divorced from the defendants’ duties as state employees. Essentially, plaintiffs argue that, because Quireshi and the defendant in Shirley were operating motor vehicles, they had duties that arose independently of their state-imposed duties.

 

*5 ¶ 21 The plaintiff in Shirley made essentially the same argument as plaintiffs in this case. Id. at 96 (the plaintiff argued that the defendant’s duty to plow snow was separate from his duty to drive with due care and therefore, his conduct breached a duty imposed on him independently of his State employment). We rejected this argument in Shirley, and we reject it again in this case. Plaintiffs ignore that Quireshi, in this case, and the defendant in Shirley were plowing snow when the accidents occurred, in contrast to American Family Insurance Co. v. Seeber, 215 Ill.App.3d 314 (1991). In Seeber, this court held that sovereign immunity did not apply where the defendant IDOT employee ceased his plowing duties to attempt to assist with a disabled car. Id. at 316, 320. Similarly, in Lorenz v. Siano, 248 Ill.App.3d 946, 952–53 (1993), the appellate court held that sovereign immunity did not apply where the defendant IDOT employee was driving a front-end loader to a work site and had not yet engaged in work. In contrast to Seeber and Lorenz, Quireshi, in this case, and the defendant in Shirley “were plowing snow, and the act of plowing snow is intertwined with, and cannot be divorced from, the act of navigating the snowplow.” Shirley, 405 Ill.App.3d at 97. See also Landon v. Jarvis, 255 Ill.App.3d 439, 446 (1993) (the appellate court held that sovereign immunity applied where the “defendant’s actions [could not] be divorced from his State employment”). Accordingly, we determine that plaintiffs alleged that Quireshi breached duties imposed on him solely due to and not independently of his State employment. See Shirley, 405 Ill.App.3d at 97. Therefore, the circuit court properly dismissed plaintiffs’ complaints due to lack of subject matter jurisdiction based on sovereign immunity.

 

¶ 22 We also reject plaintiffs’ argument that we reconsider and essentially overrule Shirley based on the doctrine of stare decisis. The doctrine of stare decisis reflects the policy of the courts “ ‘to stand by precedents and not to disturb settled points.’ “ People v. Clemons, 2012 IL 107821, ¶ 9, quoting Neff v. George, 364 Ill. 306, 308–09 (1936). In other words, once a question has been deliberately examined and decided, it should be considered settled and closed to further argument to ensure that the law will develop in a principled and intelligent fashion, immune from erratic changes. Id. While the doctrine of stare decisis does not constitute an “inexorable command” ( Chicago Bar Association v. Illinois State Board of Elections, 161 Ill.2d 502, 510 (1994)), a departure from the doctrine is justified only upon a showing of “good cause.” People v. Williams, 235 Ill.2d 286, 294 (2009). “Good cause to depart from stare decisis also exists when governing decisions are unworkable or badly reasoned.” People v. Colon, 225 Ill.2d 125, 146 (2007). Plaintiffs in the instant case have failed to make a showing of good cause. Indeed, the grounds advanced by plaintiffs for the rejection of sovereign immunity are identical to the grounds we considered and rejected in Shirley. Further, plaintiffs failed to establish that Shirley is unworkable or badly reasoned. Therefore, we reject plaintiffs’ request to reconsider or overrule Shirley and hold that the circuit court in this case properly relied on Shirley in dismissing plaintiffs’ complaint against Quireshi.

 

*6 ¶ 23 Although the lack of subject matter jurisdiction would normally suffice to dispose of the appeal, we will address the other issues raised. Next, plaintiffs argue that the doctrine of res judicata applied to bar Quireshi from asserting that he was protected by sovereign immunity. Plaintiffs rely on the circuit court’s denial of Quireshi’s motion to dismiss Castle and Caffero’s third-party complaint for contribution, arguing sovereign immunity.

 

¶ 24 One of the three requirements that must be met for res judicata to apply is a final judgment on the merits. Cooney v. Rossiter, 2012 IL 113227, ¶ 18. An order denying a motion to dismiss is not a final and appealable judgment, rather, it is an interlocutory order. State Farm Mutual Automobile Insurance Co. v. Illinois Farmers Insurance Co., 226 Ill.2d 395, 415 (2007) (The holding superseded by 215 ILCS 5/143.13a (West 2008). Schultz v. Illinois Farmers Insurance Co., 237 Ill.2d 391, 396, (2010)).

 

¶ 25 In this case the circuit court’s orders denying Quireshi’s motions to dismiss and reconsider were not final judgments. See id. at 415. Further, these orders did not dispose of the case on the its merits. Indeed, the orders continued the cause for a future adjudication on the merits. The fact that the circuit court may have entered a 304(a) finding does not alter the fact that a disposition on the merits had not yet occurred. Accordingly, plaintiffs cannot establish that res judicata applied to bar Quireshi’s motion to dismiss.

 

¶ 26 Plaintiffs note that the order denying Quireshi’s motion to reconsider included Supreme Court 304(a) language finding, “no just reason for delay of enforcement of appeal” of the order and that Quireshi did not file a notice of appeal of those orders. However, such a finding by a circuit court is not effective to transform a disposition that is not final in its own right into a final judgment. Lamar Whiteco Outdoor Corp. v. City of West Chicago, 395 Ill.App.3d 501, 506 (2009). There, the 304(a) language in the circuit court’s order is of no consequence. See id.

 

¶ 27 Plaintiffs cite Bushue Corp. v. First National Bank of Effingham, 261 Ill.App.3d 797 (1994), to support their argument. However, in Bushue, there was a final order; i.e., the grant of a motion to dismiss. Id. at 801. In this case, Quireshi’s motion to dismiss was denied. Thus, Bushue is distinguishable from this case.

 

¶ 28 Plaintiff also notes that Quireshi failed to appeal the denial of his motion to reconsider. We note that Illinois Supreme Court Rule 307(a) (eff.Feb.26, 2010) lists the specific instances in which an interlocutory order is appealable as of right. The order denying Quireshi’s motion to reconsider did not fall under any of the specific Rule 307 instances that would allow an interlocutory appeal as of right. See Ill. S.Ct. R. 307. Thus, Quireshi’s failure to appeal the denial of his motion to reconsider is of no consequence.

 

*7 ¶ 29 Even if we were to assume that circuit court’s orders denying Quireshi’s motion to dismiss Castle and Caffero’s complaint for contribution and its order denying Quireshi’s motion for reconsideration were final orders, we would determine that res judicata did not bar Quireshi’s motion to dismiss plaintiffs’ complaints under the current facts. Normally, res judicata works to prevent repetitious lawsuits over decided matters. Statler v. Catalano, 293 Ill.App.3d 483, 486–87(1997). Thus, the doctrine extends only to the facts and conditions that existed at the time the original judgment was entered and a change in circumstances can create a new basis for a claim and thus obviates the danger of repetitive litigation. See id. at 487. For those reasons, “[a] change in law occurring between two successive causes of action on the same subject matter renders res judicata inapplicable.” Bernstein v. Department of Human Services, 392 Ill.App.3d 875, 895 (2009).

 

¶ 30 In this case, at the time the circuit court denied Quireshi’s motion to dismiss and motion to reconsider Castle and Caffero’s third-party complaint for contribution, Shirley had not yet been published. Accordingly, the circuit court’s orders reflected its understanding of the law as it existed at the time it rendered its decisions. Thus, even if we accepted plaintiffs’ argument that the circuit court’s orders denying Quireshi’s motion to dismiss Castle and Caffero’s third-party complaint and motion to reconsider were final orders on the merits, res judicata would not apply to bar Quireshi’s motion to dismiss against plaintiffs complaints.

 

¶ 31 Next, plaintiffs argue that the doctrine of collateral estoppel bars Quireshi’s claim that sovereign immunity applied. Quireshi argues that this argument appears for the first time on appeal and is, thus, waived. Plaintiffs urge us to address the issue of collateral estoppel because, “even though [their] proponent in the circuit court argued res judicata, [he] meant collateral estoppel.” Plaintiffs do not cite to the record to support their argument.

 

¶ 32 Even if we accept plaintiffs’ contention that they did not waive the issue of collateral estoppel, they could not prevail with this argument. Like res judicata, one of the requirements of the application of collateral estoppel is a final judgment on the merits in the former proceeding. Farwell v. Senior Services Associates, Inc., 2012 IL App (2d) 110669, ¶ 13. Because there was no final judgment in a former proceeding, plaintiffs’ argument regarding collateral estoppel fails.

 

¶ 33 Plaintiffs also argue that we should reverse the circuit court decision because there remains an issue of material fact as to the affirmative matter claimed. More specifically, plaintiffs contend that issues of material fact exist as to whether or not Quireshi was actually employed by the State and was acting within the scope of his duty at the time the alleged negligence occurred. Plaintiffs argue that the affidavit Quireshi attached to his motion to dismiss was insufficient. We disagree.

 

*8 ¶ 34 For purposes of a motion a section 2–619(a)(9) motion defendant bears the initial burden to prove the affirmative matter defeating the plaintiff’s claim. Lawson v. Schmitt Boulder Hill, Inc., 398 Ill.App.3d 127, 130 (2010). Unless the grounds for the motion appear on the face of the complaint being challenged, the section 2–619 motion must be supported by affidavit. 735 ILCS 5/2–619(a) (West 2012). If the defendant meets his burden, “the burden then shifts to the plaintiff to establish that the defense is ‘unfounded or requires the resolution of an essential element of material fact before it is proven.’ “ Reilly v. Wyeth, 377 Ill.App.3d 20, 36 (2007), quoting Kedzie & 103rd Currency Exchange, Inc. v. Hodge, 156 Ill.2d 112, 116 (1993). Affidavits in support of motions under section 2–619 are controlled by Illinois Supreme Court Rule 191 (eff.Aug.1, 1992). Rule 191(a) provides that affidavits submitted in connection with a motion for involuntary dismissal shall be made on the personal knowledge of the affiant; set forth with particularity the facts upon which the claim, counterclaim, or defense is based; have attached thereto sworn or certified copies of all papers upon which the affiant relies; not consist of conclusions but of facts admissible in evidence; and affirmatively show that the affiant, if sworn as a witness, can testify competently thereto. Ill. S.Ct. R. 191(a) (eff.Aug.1, 1992).

 

¶ 35 Quireshi’s affidavit satisfies the requirements of Rule 191. In his affidavit Quireshi averred that “[I]f called as [a] witness [I] would depose and state the following [and][t]he facts of this affidavit are true and correct to the best of my knowledge and belief.” Further, Quireshi averred that on December 19, 2008, the day that plaintiffs alleged the accident occurred, he “was employed with [IDOT] as a Highway Maintainer[, and] was assigned to do snow removal on Route 47 * * * in McHenry County.” Quireshi averred, as plaintiffs also alleged in their complaints, that as he was traveling south on Route 47, an accident occurred “while I was performing my job responsibilities for [IDOT].” Quireshi also averred that [i]mmediately prior to and at the time of the accident I was plowing snow from the southbound lanes of Route 47[and] [m]y plow was in the down position.” We determine that Quireshi’s affidavit submitted in support of his motion to dismiss plaintiffs’ complaints complied with Rule 191(a). Further, it established that Quireshi was employed by the State as an IDOT snowplow operator and was performing his duties, plowing snow, at the time of the accident.

 

¶ 36 Plaintiffs argue that Quireshi’s affidavit is self-serving and contains “impossible factual and legal conclusions” because he averred that an accident occurred on Route 47, and that at the time of the accident he was performing his official duties and his snowplow was down, but he did not witness the accident. Plaintiffs ignore that they alleged, and there is no dispute, that there was an accident on December 19, 2008 and that the vehicle plaintiffs were passengers in collided with the truck being driven by Castle. Further, plaintiffs did not allege that the vehicle they were passengers in collided with Quireshi’s snowplow. Further, plaintiffs also alleged that they were traveling in the opposite direction as Quireshi just prior to the accident. Accordingly, Quireshi’s averments that an accident occurred but he did not witness it, were not self-serving, factually impossible or legally conclusory.

 

*9 ¶ 37 Plaintiff also argue that Quireshi was required to attach an affidavit from the State establishing that he was a State employee acting within the scope of his official duties at the time the accident. We have determined that Quireshi’s affidavit properly established these material facts. Therefore, Quireshi was not required to produce an affidavit from the State.

 

¶ 38 Quireshi’s affidavit supported his claim of sovereign immunity and shifted the burden to plaintiffs. See Kedzie, 156 Ill.2d at 116. Plaintiffs failed to tender any counteraffidavits to refute the facts presented by Quireshi. Thus, the circuit court properly granted Quireshi’s section 2–619 motions to dismiss.

 

¶ 39 III. CONCLUSION

¶ 40 For the reasons stated, we affirm the circuit court’s dismissal of plaintiffs’ complaints against Quireshi.

 

Presiding Justice BURKE and Justice HUDSON concurred in the judgment.

¶ 41 Affirmed.

Appellate Court of Illinois,

First District, First Division.

MAXUM SPECIALTY INSURANCE GROUP, a/s/o Z & K Fuel Transportation, Inc., Plaintiff–Appellant/Cross–Appellee,

v.

McLEAN COUNTY TRUCK COMPANY d/b/a Peterbilt Chicago–Bolingbrook, JX Leasing, Inc., d/b/a JX Paclease–Bloomington, and JX Enterprises, Inc., Defendants–Appellees/Cross–Appellants.

 

No. 1–12–2976.

June 17, 2013.

 

Appeal from the Circuit Court of Cook County. No. 11 L 010241, Thomas R. Mulroy, Jr., Judge Presiding.

 

ORDER

Justice ROCHFORD delivered the judgment of the court:

*1 ¶ 1 Held: On plaintiff’s appeal, we reversed the trial court’s order dismissing counts I through V and counts XI through XV of plaintiff’s amended complaint on res judicata grounds, as there was no final judgment on the merits acting as a res judicata bar to those counts. We affirmed the dismissal of counts VI through X of plaintiff’s amended complaint, as those counts improperly attempted to subrogate against an additional insured on plaintiff’s insurance policy. We dismissed defendants’ cross-appeal from the trial court’s order denying their motion to dismiss counts XVI through XVIII of plaintiff’s amended complaint, as the denial of the motion to dismiss was a non-final judgment and, therefore, we lacked appellate jurisdiction to consider defendants’ cross-appeal.

 

¶ 2 Z & K Fuel Transportation, Inc. (Z & K) leased a tractor-trailer truck that detached from its tractor while its driver was making a left turn, struck a guardrail, and spilled nearly 2,000 gallons of gasoline. Z & K’s insurer, Maxum Specialty Insurance Group (plaintiff), paid for damage to the tractor-trailer truck and also paid property damage claims of multiple other parties damaged by the fuel spill. Plaintiff, as subrogee of Z & K, then filed an amended, 18–count complaint against the following defendants: JX Enterprises, Inc., which owned the heavy and medium-duty truck dealership that provided the tractor-trailer truck involved in the accident here; JX Leasing, Inc. d/b/a JX Paclease Bloomington (JX Leasing), which leased Z & K the tractor-trailer truck; and McLean County Truck Company d/b/a Peterbilt Chicago–Bolingbrook (McLean), which was a JX Enterprises and JX Leasing subsidiary engaged in servicing, maintaining, and inspecting vehicles leased by JX Leasing. Counts I through XV of plaintiff’s subrogation action sought recovery for defendants’ alleged negligence in repairing, maintaining, cleaning, servicing, inspecting and testing the tractor-trailer truck. Counts XVI through XVIII sought recovery against defendants for breach of contract by failing to properly maintain, clean, inspect, service and test the tractor-trailer truck. Defendants moved to dismiss plaintiff’s subrogation case on res judicata grounds, predicated on a settlement of a previous lawsuit arising out of the same incident. The trial court dismissed with prejudice the counts in plaintiff’s subrogation action sounding in negligence (counts I through XV). The trial court denied the motion to dismiss as to the counts in plaintiff’s subrogation action sounding in breach of contract (counts XVI through XVIII). Plaintiff then voluntarily dismissed counts XVI through XVIII without prejudice and filed this appeal from the trial court’s order dismissing counts I through XV. Defendants filed this cross-appeal from the trial court’s order denying their motion to dismiss counts XVI through XVIII. For the reasons that follow, on plaintiff’s appeal we affirm the dismissal of counts VI through X, reverse the dismissal of counts I through V and counts XI through XV and remand for further proceedings. On defendants’ cross-appeal, we dismiss for lack of appellate jurisdiction.

 

*2 ¶ 3 On August 9, 2010, a Z & K employee, Yousef F. Mansour, was driving a tractor-trailer truck that had been leased by Z & K from JX Leasing. Mr. Mansour made a routine left turn and, in the course of doing so, the fifth wheel allegedly malfunctioned, causing the trailer to detach from the tractor and collide with a guardrail. The trailer ruptured, spilling approximately 2,000 gallons of gasoline. The spilled gasoline damaged the property of several third parties and required extensive remediation and environmental clean-up.

 

¶ 4 The tractor-trailer truck was insured under an insurance policy issued by plaintiff to Z & K. Plaintiff paid over $30,000 for the repair of the extensive damage to its insured’s tractor and trailer. Plaintiff further paid in excess of $83,000 to settle claims made by 10 fire departments and emergency response teams that responded to the fuel spill and subsequently contained and treated the fuel spill. Plaintiff paid in excess of $23,000 to Mabas 21 Hazmat for the equipment and products (such as fire fighting foam) necessary to treat the fuel spill. Plaintiff also paid the Illinois Department of Transportation more than $3,000 for property damage as a result of the fuel spill.

 

¶ 5 Plaintiff also settled a lawsuit that had been filed against Z & K, Mr. Mansour, and JX Enterprises by JKC Trucking, Inc. and Chicago Title Land Trust Company (collectively referred to as JKC Trucking). Counts I and II of JKC Trucking’s lawsuit were against Z & K and Mr. Mansour and alleged they:

 

“a. Carelessly and negligently operated the tractor-tanker trailer combination.

 

b. Approached and entered an intersection at a speed greater than was reasonable and proper, having regard to traffic conditions and the use of the roadway, in violation of the Illinois Consolidated Statutes.

 

c. Drove a motor vehicle at a speed greater than was reasonable and proper, having regard to traffic conditions and the use of the roadway, in violation of the Illinois Consolidated Statutes.

 

d. Failed to inspect the connection between the tractor and trailer tanker to insure said connection was safe and secure.”

 

¶ 6 Count I of JKC Trucking’s complaint sought damages for the costs of: replacing the tires of JKC Trucking’s tractor-trailers that were parked in the area affected by the fuel spill; paying its employees for their down-time while they waited for the spill to be cleaned; and paying cargo claims for perishables that had spoiled when the refrigeration units on JKC Trucking’s tractor-trailers exhausted their fuel while the spill was cleaned. Count II of JKC Trucking’s complaint sought damages due to the spilling of gasoline on JKC Trucking’s property, which diminished its value.

 

¶ 7 Counts III and IV of JKC Trucking’s lawsuit were against JX Enterprises, and alleged that JX Enterprises:

 

“a. Carelessly and negligently maintained the tractor-tanker trailer combination, knowing that if the connection failed, the trailer would disconnect and the contents therein discharge if ruptured.

 

*3 b. Carelessly and negligently maintained the Fifth Wheel connection between tractor and tanker trailer combination, knowing that if the connection failed, the trailer would disconnect and the contents therein discharge if ruptured.

 

c. Failed to inspect the connection between the tractor and trailer tanker to insure said connection was and would at all times be safe and secure, knowing that if the connection failed, the trailer would disconnect and the contents therein discharge if the trailer ruptured.”

 

¶ 8 Counts III and IV sought the same damages against JX Enterprises as were sought against Z & K and Mr. Mansour in counts I and II.

 

¶ 9 JX Enterprises filed an answer to JKC Trucking’s complaint and a three-count counterclaim. Count I of the counterclaim sought contribution against Z & K and Mr. Mansour in the event JX Enterprises was found liable to JKC Trucking. Count II sought indemnity from Z & K in the event JX Enterprises was found liable to JKC Trucking. Count III alleged breach of contract against Z & K.

 

¶ 10 Plaintiff defended Z & K in JKC Trucking’s lawsuit and ultimately paid $40,000 to settle JKC Trucking’s claims. The case was dismissed with prejudice pursuant to the settlement agreement on August 12, 2011.

 

¶ 11 After paying approximately $109,000 to settle the various claims by multiple third parties, and approximately $30,000 to repair the damaged tractor-trailer truck as well as $40,000 to settle the JKC Trucking lawsuit, plaintiff, as subrogee of Z & K, filed a six-count complaint sounding in negligence and breach of contract to recoup the costs it had paid on Z & K’s behalf. Plaintiff named as defendants: (1) McLean; (2) JX Leasing; and (3) JX Enterprises.

 

¶ 12 In the negligence counts, plaintiff alleged that defendants had negligently failed to properly maintain, clean, inspect and service the tractor-trailer truck and its component parts, including the fifth wheel, to insure that the fifth wheel would lock properly. In the breach of contract counts, plaintiff alleged defendants had breached the lease agreement for the lease of the tractor-trailer truck by failing to properly maintain, clean, inspect and service the tractor-trailer truck and its component parts, including the fifth wheel.

 

¶ 13 Defendants filed a motion to dismiss pursuant to section 2–619 of the Code of Civil Procedure (Code) (735 ILCS 5/2–619 (West 2010)), arguing in relevant part that plaintiff’s negligence and breach of contract claims were barred under the doctrine of res judicata as they could have been brought in the earlier lawsuit filed by JKC Trucking against Z & K. The trial court found that plaintiff’s negligence counts were barred by res judicata but that plaintiff’s breach of contract counts survived under an exception to the application of res judicata in subrogation actions pursuant to section 2–403(d) of the Code (735 ILCS 5/2–403(d) (West 2010)) (which we will discuss later in this order).

 

*4 ¶ 14 The trial court granted plaintiff leave to file an amended complaint. Plaintiff, as subrogee of Z & K, subsequently filed an 18–count amended complaint against defendants sounding in negligence and breach of contract. Counts I through XV again alleged negligence against defendants for failing to properly maintain, clean, inspect, service and test the tractor-trailer truck and its component parts, including the fifth wheel. The amended complaint addressed in greater detail items of damage that were never specifically raised or settled in JKC Trucking’s prior action against Z & K, including: (1) the claims of 10 fire departments and emergency responders for their emergency services (counts II, VII and XII); (2) the claim of Mabas 21 Hazmat for the products and equipment used to clean up the gasoline spill (counts III, VIII and XIII); (3) the claim of the Illinois Department of Transportation for the damage caused to State assets (counts IV, IX and XIV); and (4) the costs plaintiff paid to repair the damage suffered by Z & K’s tractor-trailer truck (counts I, VI and XI).

 

¶ 15 Counts XVI through XVIII alleged beach of contract against defendants for failing to properly maintain, clean, inspect, service and repair the tractor-trailer truck and its component parts, including the fifth wheel.

 

¶ 16 Defendants filed a section 2–619 motion to dismiss, arguing, in part, that because counts I through XV alleged defendants acted negligently, those claims were barred by the trial court’s previous order finding that plaintiff’s negligence claims were barred by res judicata. Defendants also argued that plaintiff’s breach of contract claims in counts XVI through XVIII should be dismissed because: (1) neither McLean nor JX Enterprises were parties to the lease contract and cannot be held liable for any breach thereof; (2) plaintiff’s insured (Z & K), to whom plaintiff is subrogated, waived any claim against JX Leasing for the purported damages alleged here; and (3) JX Leasing is an additional insured under the insurance policy issued to Z & K by plaintiff, and Illinois law prevents an insurer from subrogating against an additional insured under the policy. Defendants further argued that even assuming any recovery can be made against JX Leasing, the contract limits recovery to the cost of the repair of the tractor-trailer’s fifth wheel.

 

¶ 17 The trial court granted defendants’ section 2–619 motion to dismiss counts I through XV of the amended complaint (the subrogation counts alleging negligence), and denied the motion to dismiss counts XVI through XVIII (the subrogation counts alleging breach of contract). After the trial court denied plaintiff’s motion for an Illinois Supreme Court Rule 304(a) (Ill.S.Ct. R. 304(a) (eff.Feb. 26, 2010)) finding, plaintiff moved the court to allow it to voluntarily dismiss counts XVI through XVIII without prejudice so as to be able to file an immediate appeal of the order dismissing counts I through XV. The trial court granted plaintiff’s motion. Plaintiff filed a timely appeal of the order dismissing counts I through XV of its amended complaint. Defendants cross-appealed from the order denying their motion to dismiss counts XVI through XVIII of plaintiff’s amended complaint.

 

*5 ¶ 18 A section 2–619 motion to dismiss admits as true all well-pleaded facts, along with all reasonable inferences gleaned from the facts. Cooney v. Rossiter, 2012 IL 113227, ¶ 17. “An appeal from a section 2–619 dismissal is the same in nature as one following a grant of summary judgment; both are matters given to de novo review. [Citation.] In such cases, the reviewing court must determine whether the existence of a genuine issue of material fact should have precluded the dismissal or, absent such an issue of fact, whether dismissal is proper as a matter of law.” Guzman v. C.R. Epperson Construction, Inc., 196 Ill.2d 391, 397 (2001).

 

¶ 19 I. Plaintiff’s Appeal

¶ 20 First, we address whether the trial court erred in dismissing counts I through XV of plaintiff’s amended complaint, the subrogation counts alleging negligence. Subrogation is an equitable remedy allowing one who has involuntarily paid a debt or claim of another to succeed to the rights of the other with regard to the claim or debt so paid. CNA Insurance Co. v. DiPaulo, 342 Ill.App.3d 440, 442 (2003). The right of subrogation may be grounded in equity or on an express or implied agreement. Id. “The doctrine rests on the principle that justice is attained by placing ultimate responsibility for the loss on the one against whom in good conscience it ought to fall.” Id.

 

¶ 21 “A subrogee ‘steps into the shoes’ of the person whose claim he has paid and may only enforce those rights which the latter could enforce.” Id. In the present case, plaintiff may assert a right of subrogation against defendants if: (1) Z & K could maintain an action against defendants; and (2) it would be equitable to allow plaintiff to enforce a right of subrogation against defendants. Id. at 442–43.

 

¶ 22 Plaintiff argues it should be allowed to enforce a right of subrogation against defendants, and that the trial court erred in dismissing counts I through XV based on res judicata. The doctrine of res judicata provides that a final judgment on the merits rendered by a court of competent jurisdiction bars any subsequent lawsuits between the same parties or their privies involving the same cause of action. Rein v. David A. Noyes & Co., 172 Ill.2d 325, 334 (1996); River Park, Inc. v. City of Highland Park, 184 Ill.2d 290, 302 (1998). The bar extends to what was actually decided in the first lawsuit, as well as those matters that could have been decided in that suit. Id. “[T]he doctrine bars suits based on facts that would have constituted a counterclaim or defense in the earlier proceeding where successful prosecution of the later action would either nullify the earlier judgment or impair the rights established in the earlier action.” Kosydor v. American Express Centurion Services Corp., 2012 IL App (5th) 120110, ¶ 19.

 

¶ 23 “For the doctrine of res judicata to apply, the following three requirements must be satisfied: (1) there was a final judgment on the merits rendered by a court of competent jurisdiction, (2) there is an identity of cause of action, and (3) there is an identity of parties or their privies.”   River Park, 184 Ill.2d at 302.

 

*6 ¶ 24 Plaintiff argues the trial court erred in finding that the dismissal of JKC Trucking’s lawsuit against Z & K acted as a res judicata bar to plaintiff’s subrogation action sounding in negligence against defendants. Plaintiff contends that since the JKC Trucking lawsuit ended in a dismissal pursuant to an agreed settlement, there was no final judgment on the merits that would act as a res judicata bar to plaintiff’s subrogation suit against defendants. Plaintiff waived review by failing to raise this argument in the trial court or in its initial brief on appeal. See Martinez v. River Park Place, LLC, 2012 IL App (1st) 111478, ¶ 29; Berggren v. Hill, 401 Ill.App.3d 475, 479 (2010). However, waiver is a limitation on the parties, not this court. First National Bank of LaGrange v. Lowrey, 375 Ill.App.3d 181, 202 (2007). We will address the issue on the merits.

 

¶ 25 Courts in Illinois are split on the issue of whether a dismissal with prejudice pursuant to a settlement agreement operates as a final judgment on the merits. See Jackson v. Callan Publishing, Inc., 356 Ill.App.3d 326, 340 (2005) (noting split of authority). Some earlier cases held that a dismissal with prejudice pursuant to a settlement does operate as a final judgment on the merits for res judicata purposes. See SDS Partners, Inc. v. Cramer, 305 Ill.App.3d 893, 896 (1999); 4901 Corp. v. Town of Cicero, 220 F.3d 522, 529 (7th Cir.2000). However, we agree with more recent cases from the Appellate Court, First District, holding that a dismissal with prejudice pursuant to a settlement agreement is not a final judgment on the merits, because such an agreed order is not a judicial determination of the parties’ rights, but rather is a recordation of the parties’ agreement. See Goodman v. Hanson, 408 Ill.App.3d 285, 300 (2011) and Currie v. Wisconsin Central, Ltd., 2011 IL App (1 st) 103095, ¶ 29. Since the dismissal of the JKC Trucking lawsuit pursuant to a settlement agreement did not constitute a final judgment on the merits, plaintiff’s subrogation action is not barred by res judicata.

 

¶ 26 The parties next argue the applicability of section 2–403(d) of the Code to plaintiff’s subrogation action. Section 2–403(d) states:

 

“A judgment in an action brought and conducted by a subrogee by virtue of the subrogation provision of any contract or by virtue of any subrogation by operation of law, whether in the name of the subrogor or otherwise, is not a bar or a determination on the merits of the case or any aspect thereof in an action by the subrogor to recover upon any other cause of action arising out of the same transaction or series of transactions.” 735 ILCS 5/2–403(d) (West 2010).

 

¶ 27 Plaintiff argues section 2–403(d) provides an exception to the application of res judicata in insurance subrogation actions such as the one here. Having determined that the dismissal of the JKC Trucking lawsuit pursuant to a settlement agreement was not a final judgment on the merits and thus did not act as a res judicata bar to plaintiff’s subrogation action, we need not address whether any exception to res judicata as set forth in section 2–403(d) applies.

 

*7 ¶ 28 Defendants argue that several of plaintiff’s counts (specifically, counts V, X, XV, and paragraph 16(e) of counts XVI, XVII, and XVIII) seek contribution from defendants with respect to the JKC Trucking lawsuit in violation of section 2(e) of the Contribution Among Joint Tortfeasors Act (Contribution Act) (740 ILCS 100/2(e) (West 2010)). Section 2(e) states:

 

“A tortfeasor who settles with a claimant pursuant to paragraph c [i.e., in good faith] is not entitled to recover contribution from another tortfeasor whose liability is not extinguished by the settlement.” 740 ILCS 100/2(e) (West 2010).

 

¶ 29 Our supreme court has held, under section 2(e), that “[a] party that settles may seek contribution only from parties whose liability was extinguished by that same settlement.” Dixon v. Chicago and North Western Transportation Co., 151 Ill.2d 108, 116 (1992). Defendants argue that the settlement plaintiff entered into on behalf of Z & K in the JKC Trucking lawsuit did not extinguish any of defendants’ liability and, therefore, that plaintiff cannot now seek contribution from defendants under section 2(e).

 

¶ 30 We need not address this argument, as plaintiff’s claims against defendants are subrogation claims, not contribution claims. Subrogation and contribution are two distinct equitable doctrines. “Contribution as it pertains to insurance law is an equitable principle arising among coinsurers which permits one insurer who has paid the entire loss, or greater than its share of the loss, to be reimbursed from other insurers who are also liable for the same loss .” Home Insurance Co. v. Cincinnati Insurance Co., 213 Ill.2d 307, 316 (2004). “In contrast to contribution, subrogation and indemnification are devices for placing the entire burden for a loss on the party ultimately liable or responsible for it and by whom it should have been discharged.” (Emphasis in original.) Id.

 

¶ 31 Plaintiff’s subrogation action seeks to place the entire burden for the loss on defendants. As such, the Contribution Act does not apply here to bar plaintiff’s cause of action.

 

¶ 32 Defendants next argue that plaintiff cannot subrogate against JX Leasing, because JX Leasing is an additional insured on plaintiff’s policy. “[I]t is well settled that an insurer may not subrogate against its own insured or any person or entity who has the status of a co-insured under the insurance policy.” Chubb Insurance Co. v. DeChambre, 349 Ill.App.3d 56, 60 (2004). “The anti-subrogation rule is intended to prevent an insurer from recovering back from its insured that loss or damage the risk of which the insured had passed along to the insurer under the policy.” Id. at 62.

 

“ ‘The anti-subrogation rule is supported by two public policy considerations. First, the insurer should not be able to pass its loss to its own insured, thus avoiding coverage which its insured has purchased and paid in the forms of premiums. * * *

 

*8 The second public policy concern is that the insurer should not be placed in a situation where there exists a potential conflict of interest, thereby possibly affecting the insurer’s incentive to provide a vigorous defense for one of its insureds.” ‘ Id. (quoting Couch on Insurance 3d § 224.3, at 18–19 (2000)).

 

¶ 33 Although the trial court here did not dismiss the counts against JX Leasing pursuant to the anti-subrogation rule, we review the trial court’s judgment rather than its reasoning, and may affirm on any basis in the record. Geisler v. Everest National Insurance Co., 2012 IL App (1 st) 103834, ¶ 62. Accordingly, we will consider defendants’ argument.

 

¶ 34 We begin by considering the insurance policy. JX Leasing is listed as an additional insured under plaintiff’s policy for “ ‘bodily injury’ or ‘property damage’ resulting from the acts or omissions by [Z & K].” (Emphasis added.) “[T]he phrase ‘resulting from’ is ‘synonymous with the phrases “arising out of,” “connected with,” “originating from,” “growing out of,” and “flowing from” which have been recognized repeatedly as being broad as well as vague.” ’   St. Paul Fire and Marine Insurance Co. v. Antel Corp., 387 Ill.App.3d 158, 165 (2008) (quoting Farmers Automobile Insurance Ass’n v. Hunt, 301 Ill.App.3d 716, 719 (1998)). “Accordingly, ‘but for’ causation rather than proximate causation satisfies this language.” Id. Thus, JX Leasing is an additional insured here as long as the accident, gasoline leak, and resulting property damage would not have occurred but for Z & K’s acts or omissions. It is undisputed that Z & K’s employee, Mr. Mansour, was driving the tractor-trailer truck at issue and making a left turn when the fifth wheel allegedly malfunctioned, causing the trailer to detach from the tractor and collide with a guardrail. The trailer ruptured, spilling about 2,000 gallons of gasoline. “But for” Z & K’s use of the tractor-trailer truck, it would not have struck the guardrail, and the accident and resulting property damage would not have occurred. Accordingly, JX Leasing is an additional insured under plaintiff’s policy with respect to the property damage resulting from the accident and, thus, plaintiff may not subrogate against JX Leasing. Therefore, we affirm the portion of the order dismissing the subrogation counts alleging negligence against JX Leasing, specifically, counts VI, VII, VIII, IX, and X.

 

¶ 35 We reverse the order dismissing the remaining subrogation counts alleging negligence against McLean and JX Enterprises (counts I through V and counts XI through XV) on res judicata grounds and remand for further proceedings thereon.

 

¶ 36 II. Defendants’ Cross–Appeal

¶ 37 Defendants cross-appeal from the trial court’s denial of their motion to dismiss plaintiff’s breach of contract counts (counts XVI, XVII, and XVIII) in its amended complaint. Although the denial of a motion to dismiss is generally not a final and appealable judgment ( Saddle Signs, Inc. v. Adrian, 272 Ill.App.3d 132, 135 (1995)), defendants contend the denial of their motion to dismiss was made final and appealable here when the trial court subsequently granted plaintiff’s motion to voluntarily dismiss counts XVI through XVIII. We disagree. An order granting a plaintiff’s motion for a voluntary dismissal is final and appealable by the defendants and also by the plaintiff to the extent that it assesses costs against him or her. Valdovinos v. Luna–Manalac Medical Center, Ltd., 307 Ill.App.3d 528, 535 (1999). A voluntary dismissal also renders all other final orders immediately appealable; however, an otherwise non-final order does not become final and appealable upon voluntary dismissal of a suit. Hernandez v. Bernstein, 2011 IL App (1st) 102646, ¶ 10. See Saddle Signs, 272 Ill.App.3d 132 (denial of motion to dismiss was not a final order and could not be appealed after entry of voluntary dismissal). We may address the substantive merits of non-final orders entered by the trial court prior to the granting of a voluntary dismissal only if those orders constituted a procedural step in the progression leading to the entry of the final judgment from which the appeal was taken. Valdovinos, 307 Ill.App.3d at 537–38. Defendants here have made no argument that the denial of their motion to dismiss counts XVI through XVIII of plaintiff’s amended complaint was a step in the procedural progression leading to the voluntary dismissal. Therefore, we lack jurisdiction to consider defendants’ cross-appeal.

 

*9 ¶ 38 For the foregoing reasons, on plaintiff’s appeal we affirm the dismissal of counts VI, VII, VIII, IX, and X of plaintiff’s amended complaint and reverse the dismissal of counts I, II, III, IV, V, XI, XII, XIII, XIV, and XV of plaintiff’s amended complaint and remand for further proceedings. On defendants’ cross-appeal from the denial of their motion to dismiss counts XVI through XVIII of plaintiff’s amended complaint, we dismiss for lack of appellate jurisdiction. As a result of our disposition of this case, we need not address the other arguments on appeal.

 

¶ 39 Plaintiff’s appeal affirmed in part, reversed in part, and remanded; defendants’ cross-appeal dismissed.

 

Presiding Justice HOFFMAN and Justice CUNNINGHAM concurred in the judgment.