{ "id": 1442037, "name": "DENNIS CLEMONS, Appellant, v. MECHANICAL DEVICES COMPANY, Appellee", "name_abbreviation": "Clemons v. Mechanical Devices Co.", "decision_date": "2002-11-21", "docket_number": "(No. 91306", "first_page": "344", "last_page": "361", "citations": [ { "type": "official", "cite": "202 Ill. 2d 344" } ], "court": { "name_abbreviation": "Ill.", "id": 8772, "name": "Illinois Supreme Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "141 Ill. App. 3d 750", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3496875 ], "year": 1986, "pin_cites": [ { "page": "771" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/141/0750-01" ] }, { "cite": "9 Ill. 2d 286", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5319673 ], "year": 1956, "pin_cites": [ { "page": "295" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/9/0286-01" ] }, { "cite": "63 Ill. 2d 61", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5426153 ], "year": 1976, "pin_cites": [ { "page": "68-69" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/63/0061-01" ] }, { "cite": "174 Ill. 2d 77", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 223609 ], "year": 1996, "pin_cites": [ { "page": "106-09" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/174/0077-01" ] }, { "cite": "373 Ill. 415", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2530057 ], "weight": 4, "year": 1940, "pin_cites": [ { "page": "420" }, { "page": "420" }, { "page": "420" }, { "page": "420" } ], "opinion_index": 0, "case_paths": [ "/ill/373/0415-01" ] }, { "cite": "86 Ill. 2d 291", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5468706 ], "year": 1981, "pin_cites": [ { "page": "308" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/86/0291-01" ] }, { "cite": "70 Ill. 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App. 3d 631", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3347096 ], "weight": 2, "year": 1978, "pin_cites": [ { "page": "634-35" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/61/0631-01" ] }, { "cite": "401 Ill. 605", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5307314 ], "year": 1948, "pin_cites": [ { "page": "610" } ], "opinion_index": 0, "case_paths": [ "/ill/401/0605-01" ] }, { "cite": "399 Ill. 559", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2459958 ], "year": 1948, "pin_cites": [ { "page": "570" } ], "opinion_index": 0, "case_paths": [ "/ill/399/0559-01" ] }, { "cite": "91 Ill. 2d 122", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3092064 ], "year": 1982, "pin_cites": [ { "page": "128" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/91/0122-01" ] }, { "cite": "407 Ill. 602", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2639226 ], "weight": 2, "year": 1950, "pin_cites": [ { "page": "609" }, { "page": "609" } ], "opinion_index": 0, "case_paths": [ "/ill/407/0602-01" ] }, { "cite": "182 Ill. 2d 234", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 864535 ], "year": 1998, "pin_cites": [ { "page": "238" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/182/0234-01" ] }, { "cite": "146 Ill. 2d 263", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5597010 ], "weight": 5, "year": 1992, "pin_cites": [ { "page": "273" }, { "page": "273-74" }, { "page": "274" }, { "page": "273-74" }, { "page": "276" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/146/0263-01" ] }, { "cite": "152 Ill. 2d 432", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5602939 ], "weight": 3, "year": 1992, "pin_cites": [ { "page": "467-68" }, { "page": "467" }, { "page": "467-68" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/152/0432-01" ] }, { "cite": "292 Ill. App. 3d 242", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1725095 ], "weight": 5, "year": 1997, "pin_cites": [ { "page": "247-51" }, { "page": "252-53" }, { "page": "248" }, { "page": "254" }, { "page": "247-48" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/292/0242-01" ] }, { "cite": "184 Ill. 2d 328", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 926960 ], "weight": 7, "year": 1998, "pin_cites": [ { "parenthetical": "Clemons I" }, { "page": "338" }, { "page": "337" }, { "page": "337-38" }, { "page": "339" }, { "page": "335" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/184/0328-01" ] }, { "cite": "87 Ill. 2d 167", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3031543 ], "year": 1981, "pin_cites": [ { "page": "171", "parenthetical": "interlocutory orders in a pending case are not directly appealable but instead are reviewable on appeal from the final order" } ], "opinion_index": 1, "case_paths": [ "/ill-2d/87/0167-01" ] }, { "cite": "103 Ill. 2d 536", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3152590 ], "year": 1984, "pin_cites": [ { "page": "539", "parenthetical": "the timely filing of a notice of appeal is jurisdictional" } ], "opinion_index": 1, "case_paths": [ "/ill-2d/103/0536-01" ] }, { "cite": "119 Ill. 2d 111", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3193671 ], "year": 1987, "pin_cites": [ { "page": "115" } ], "opinion_index": 1, "case_paths": [ "/ill-2d/119/0111-01" ] }, { "cite": "182 Ill. 2d 234", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 864535 ], "weight": 3, "year": 1998, "pin_cites": [ { "page": "238" }, { "page": "238" }, { "page": "238" } ], "opinion_index": 1, "case_paths": [ "/ill-2d/182/0234-01" ] }, { "cite": "146 Ill. 2d 263", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5597010 ], "year": 1992, "pin_cites": [ { "page": "273-74" } ], "opinion_index": 1, "case_paths": [ "/ill-2d/146/0263-01" ] }, { "cite": "184 Ill. 2d 328", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 926960 ], "weight": 3, "year": 1998, "pin_cites": [ { "page": "335" }, { "page": "338" }, { "page": "336-37" } ], "opinion_index": 1, "case_paths": [ "/ill-2d/184/0328-01" ] } ], "analysis": { "cardinality": 1015, "char_count": 29601, "ocr_confidence": 0.786, "pagerank": { "raw": 2.925651926413945e-07, "percentile": 0.8469682981517456 }, "sha256": "d69c5a0fe0bd90b70b802be03cb3e2c74dce68c09d4036ed3ad7611144bb422a", "simhash": "1:cfaad70f5f6c1577", "word_count": 4929 }, "last_updated": "2023-07-14T21:00:59.178217+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "DENNIS CLEMONS, Appellant, v. MECHANICAL DEVICES COMPANY, Appellee." ], "opinions": [ { "text": "JUSTICE FREEMAN\ndelivered the opinion of the court:\nThis cause was remanded to the circuit court of McLean County for a new trial. Plaintiff, Dennis Clemons, filed a motion to amend his complaint against defendant, Mechanical Devices Company, to add a count alleging retaliatory discharge for exercising his rights under the Illinois Wage Payment and Collection Act (Wage Act) (820 ILCS 115/1 et seq. (West 2000)). The trial court denied the motion and the appellate court affirmed. No. 4 \u2014 00\u20140639 (unpublished order under Supreme Court Rule 23).\nWe allowed plaintiffs petition for leave to appeal (177 Ill. 2d R. 315(a)). We now reverse the courts below and remand the cause to the trial court with directions to grant plaintiffs motion to amend.\nBACKGROUND\nWe previously recited the underlying facts of this case in Clemons v. Mechanical Devices Co., 184 Ill. 2d 328 (1998) (Clemons I). Accordingly, we will describe only those facts pertinent to this appeal.\nPlaintiff brought a retaliatory discharge action against defendant, alleging that defendant wrongfully discharged him in retaliation for filing a workers\u2019 compensation claim. The action proceeded to a jury trial, where plaintiff presented evidence that defendant\u2019s method of paying him violated the Wage Act (820 ILCS 115/1 et seq. (West 2000)). Plaintiffs counsel, during his examination of Linda Fillingham, defendant\u2019s vice-president and general manager, directed her, over defendant\u2019s objection, to read portions of the Wage Act. Plaintiffs counsel questioned her about the legality of defendant\u2019s method of payment in light of the Act.\nAt the close of evidence, the trial court allowed plaintiff to amend his complaint by adding a paragraph which alleged that defendant wrongfully discharged plaintiff \u201cin retaliation of Plaintiffs exercise of his statutory rights.\u201d In granting plaintiff leave to amend the complaint, the trial court specifically noted that \u201cthe statutory rights referred to are in fact the workmen\u2019s comp[ensation] statutory rights.\u201d In his amended complaint, plaintiff did not allege a claim based on a violation of the Wage Act, nor did he allege that defendant discharged him in retaliation for pursuing rights afforded him under the Wage Act.\nDuring closing argument, plaintiffs attorney stated: \u201cIf Mechanical Devices starts discharging their at-will employees because of the color of their skin, they are liable. If they start discharging employees for their gender, they are liable. If they start discharging their employees in violation of Illinois statute, they are liable. It is as simple as that. Read the statute.\u201d\nPlaintiff\u2019s attorney did not identify the \u201cstatute\u201d to which he referred. Also, the trial court instructed the jury regarding the Wage Act.\nThe jury found for plaintiff and awarded him damages. The trial court entered judgment on the verdict.\nThe appellate court reversed the judgment and remanded for a new trial. The appellate court concluded that the Wage Act was irrelevant to the issues in this case, and that the trial court erred by allowing testimony regarding that statute. Clemons v. Mechanical Devices Co., 292 Ill. App. 3d 242, 247-51 (1997). The appellate court further concluded that the admission of the testimony regarding the Wage Act, with corresponding jury instruction and argument, prejudiced defendant so as to deprive defendant of a fair trial. Clemons I, 292 Ill. App. 3d at 252-53.\nIn the course of its opinion, the appellate court observed that \u201cthe only allegation of retaliatory discharge properly before the jury involved [plaintiffs] filing a workers\u2019 compensation claim. *** Accordingly, [plaintiff] did not have to show that [defendant] had violated the Wage Act in order to prove a retaliatory discharge for filing a workers\u2019 compensation claim.\u201d (Emphasis in original.) Clemons I, 292 Ill. App. 3d at 248.\nThis court affirmed the judgment of the appellate court. Clemons I, 184 Ill. 2d 328 (1998). This court likewise held that the presentation of evidence regarding defendant\u2019s alleged violation of the Wage Act, with corresponding jury instructions and argument, constituted prejudicial error. Clemons I, 184 Ill. 2d at 338.\nIn the course of its opinion, this court observed that \u201cevidence of the alleged violation of the Wage Act was not relevant to plaintiffs cause of action, which was based on an entirely different theory \u2014 that plaintiff was discharged in retaliation for filing a workers\u2019 compensation claim.\u201d Clemons I, 184 Ill. 2d at 337. The opinion observed that \u201cplaintiff could not attempt to put forth what was in essence a new and separate cause of action ***.\u201d Clemons I, 184 Ill. 2d at 337-38.\nOn remand, plaintiff filed a motion to amend his complaint to add a second count, which alleges retaliatory discharge for exercising his rights under the Wage Act. The trial court denied plaintiffs motion to amend. The court found that section 2 \u2014 616(a) of the Code of Civil Procedure (735 ILCS 5/2 \u2014 616(a) (West 2000)) governed the amendment of plaintiffs complaint. The court found that: the motion to amend was not timely; plaintiff had prior opportunities to amend; and defendant would sustain substantial prejudice by allowing the amendment. See Lee v. Chicago Transit Authority, 152 Ill. 2d 432, 467-68 (1992); Loyola Academy v. S&S Roof Maintenance, Inc., 146 Ill. 2d 263, 273 (1992). Further, the court found that its order involved \u201ca question of law as to which there is substantial ground for difference of opinion and that an immediate appeal, from the order may materially advance the ultimate termination of the litigation.\u201d See 155 Ill. 2d R. 308(a). The trial court also expressly found that there was no just reason for delaying enforcement or appeal of its order. See 155 Ill. 2d R. 304(a).\nThe appellate court affirmed, with one justice dissenting. No. 4 \u2014 00\u20140639 (unpublished order under Supreme Court Rule 23). The dissent observed that in Clemons I, this court criticized the trial court\u2019s admission of evidence relating to the violation of the Wage Act because plaintiff had not alleged a violation thereof. The dissent also concluded that plaintiffs amendment was timely, and that defendant cannot be surprised by the evidence that was presented at the previous trial. No. 4 \u2014 00\u20140639, slip op. at 10 (Cook, J., dissenting) (unpublished order under Supreme Court Rule 23). Plaintiff appeals to this court. 177 Ill. 2d R. 315.\nANALYSIS\nI. Jurisdiction\nAlthough neither the parties nor the appellate court has raised the issue of jurisdiction in this case, the dissent has. We have an independent duty to ensure that appellate jurisdiction is proper. Unless specifically authorized by the rules of this court, the appellate court has no jurisdiction to review judgments, orders, or decrees that are not final. Where the appellate court has considered the merits of a case when it had no jurisdiction to do so, we must vacate that court\u2019s judgment and dismiss the appeal. Department of Central Management Services v. American Federation of State, County & Municipal Employees, 182 Ill. 2d 234, 238 (1998).\nThe appellate court had jurisdiction to consider the merits of this case pursuant to Rule 304(a). Plaintiff moved to amend his complaint to add a second count, which alleges retaliatory discharge for exercising his rights under the Wage Act. Thus, the trial court\u2019s order denying plaintiffs motion effectively terminated one, but fewer than all, of the claims at issue in the case, as is required under the rule. Further, the trial court expressly included in the order the requisite finding of Rule 304(a).\nThe dissent concludes that the appellate court lacked jurisdiction in this case. According to the dissent, the order was not final because it did not absolutely and finally fix the rights of the parties with respect to plaintiffs motion to amend. Noting that the trial court did not deny plaintiffs motion \u201cwith prejudice,\u201d the dissent reasons that the trial court can reconsider its denial of the motion at any time prior to final judgment. More basically, the dissent reasons that an order relating to a claim that has not been filed cannot constitute a final judgment as to that claim. 202 Ill. 2d at 358-59 (Thomas, J., dissenting, joined by Fitzgerald and Garman, JJ.).\nThe dissent focuses on the form of the order and speculates as to what the trial court might do in the future, rather than focusing on the actions the trial court actually took. \u201cThe definition of a final order has been discussed by this court many times in all its phases ***.\u201d Mills v. Ehler, 407 Ill. 602, 609 (1950). It is quite settled that in determining whether an order is final, one should look to its substance and effect rather than to its form. In re J.N., 91 Ill. 2d 122, 128 (1982); Altschuler v. Altschuler, 399 Ill. 559, 570 (1948). The question of finality must be considered with reference to the particular facts and circumstances of each case. Mills, 407 Ill. at 609; Roddy v. Armitage-Hamlin Corp., 401 Ill. 605, 610 (1948).\nIn this case, it is clear that the order denying plaintiffs motion to amend was substantively and effectively \u201cfinal.\u201d Although the trial court did not deny plaintiffs motion \u201cwith prejudice,\u201d the court expressly found, under section 2 \u2014 616(a) of the Code of Civil Procedure (735 ILCS 5/2 \u2014 616(a) (West 2000)), that defendant would be prejudiced if plaintiffs complaint were amended. Further, the trial court\u2019s attempt at Rule 308 certification, in addition to adding the Rule 304(a) finding, strongly supports the conclusion that the trial court was firm in its conviction about the denial of plaintiff\u2019s motion to amend and wanted the case to proceed to a court of review for a final determination on this matter before the start of trial.\nThis case is distinguishable from a case such as Peter G. Georges, Inc. v. Feldon Building Corp., 61 Ill. App. 3d 631 (1978), where: (1) the trial court\u2019s denial of the motion to amend made it clear that reconsideration was a possibility, and (2) the trial court refused the appellant\u2019s request to add Rule 304(a) language. Georges, 61 Ill. App. 3d at 634-35. The order in this case is appealable under Rule 304(a).\nII. Standard of Review\nThe parties disagree as to the standard of review. Plaintiff contends that our review of the trial court\u2019s order should be de nova because that order centers on an issue of law. Defendant contends that our review should be deferential because it was within the discretion of the trial court to enter such an order. The appellate court employed a deferential standard of review.\nA trial court has discretion in deciding a motion to amend pleadings, and a reviewing court will not reverse the trial court\u2019s decision absent abuse of that discretion. Lee, 152 Ill. 2d at 467; Loyola Academy, 146 Ill. 2d at 273-74. However, a trial court must exercise its discretion within the bounds of the law. Loyola Academy, 146 Ill. 2d at 274; People v. Williams, 188 Ill. 2d 365, 369 (1999). After a remand, the trial court is required to exercise its discretion within the bounds of the remand. Whether it has done so is a question of law. See Ptaszek v. Konczal, 10 Ill. 2d 326 (1957); compare 2 Nichols Illinois Civil Practice \u00a7 33:1 et seq. (rev. 2002) (\u201cAmendments and Supplemental Pleadings\u201d) with 6 Nichols Illinois Civil Practice \u00a7 121.01 et seq. (rev. 1998) (\u201cProcedure After Remand\u201d). A reviewing court determines a legal question independently of the trial court\u2019s judgment. Williams, 188 Ill. 2d at 369; In re Lawrence M., 172 Ill. 2d 523, 526 (1996).\nSo there are two different standards of review applicable to what are essentially two distinct issues in this case. The first issue is whether our mandate required the trial court to allow the amendment. This question of law we address de nova. If this question of law is answered in the negative, i.e., the trial court had discretion to allow or deny amendment, the question becomes whether the trial court erred in denying amendment, a decision which we review only for abuse of discretion.\nIII. The Merits\nIn reversing the trial court in Clemons I, the appellate court concluded: \u201cFor the reasons stated, we reverse and remand for a new trial consistent with the views expressed herein.\u201d (Emphases added.) Clemons I, 292 Ill. App. 3d at 254. In affirming the appellate court, this court concluded its opinion by stating: \u201cFor the foregoing reasons, the judgment of the appellate court, which reversed the judgment of the circuit court of McLean County, is affirmed.\u201d (Emphasis added.) Clemons I, 184 Ill. 2d at 339. This court incorporated its opinion in Clemons I in the mandate to the appellate court. The appellate court subsequently issued its mandate, which directed as follows: \u201cIt is the decision of this court that the order on appeal from the [trial] court be REVERSED and the cause be REMANDED to the [trial court], for such other proceedings as required by the opinion of this court, a copy of which is attached hereto.\u201d (Emphasis added.)\nThe controlling principles are quite established. After a judgment is reversed and the cause is remanded, the trial court can hold only such further proceedings as conform to the judgment of the appellate tribunal. Nye v. Nye, 411 Ill. 408, 413 (1952); Roggenbuck v. Breuhaus, 330 Ill. 294, 297 (1928); see Jones v. Board of Fire & Police Commissioners, 204 Ill. App. 3d 1004,1010 (1990); Zokoych v. Spalding, 84 Ill. App. 3d 661, 666 (1980).\nBefore this court, defendant acknowledges this principle. However, defendant observes that neither this court nor the appellate court specifically directed the trial court to allow plaintiff to amend the complaint. At oral argument, defendant contended that \u201cthe opinion was silent as to the pleadings.\u201d Defendant argues that, due to the \u201cgeneral remand\u201d of this court and of the appellate court in Clemons I, the trial court retained the discretion to allow or deny plaintiff leave to amend the complaint.\nAs the dissent notes, the reviewing courts in Clemons I did not explicitly demand that the trial court allow plaintiff to amend the complaint. 202 Ill. 2d at 360 (Thomas, J., dissenting, joined by Fitzgerald and Gar-man, JJ.). However, it is not required that a reviewing court state specific directions in an order reversing a judgment and remanding a cause. In such a case, it is then the duty of the court to which the cause is remanded to examine the reviewing court\u2019s opinion and to proceed in conformity with the views expressed in it. Nye, 411 Ill. at 413-14; Roggenbuck, 330 Ill. at 298; see Pinelli v. Alpine Development Corp., 70 Ill. App. 3d 980, 1007 (1979). \u201c[T]hen, of course, the content of the opinion is significant.\u201d PSL Realty Co. v. Granite Investment Co., 86 Ill. 2d 291, 308 (1981).\nIn this regard, the trial court will in some cases be required to allow the amendment of pleadings even when the reviewing court has not explicitly so ordered:\n\u201cWhen a judgment is reversed and the cause remanded with directions to proceed in conformity to the opinion then filed, and it appears from the opinion that the grounds of reversal are of a character to be obviated by subsequent amendment of the pleadings or the introduction of additional evidence, it is the duty of the trial court to permit the cause to be re-docketed and then to permit amendments to be made and evidence to be introduced on the hearing just as if the cause was then being heard for the first time.\u201d (Emphasis added.) Roggenbuck, 330 Ill. at 298.\nSee also Kinney v. Lindgren, 373 Ill. 415, 420 (1940).\nRoggenbuck \u201ccontains a thorough and still valid discussion of proceedings that may take place after remand.\u201d J. Eaton, W. Quinlan & R Stern, Filing of Mandate in Circuit Court & Proceedings thereafter in Illinois State Court (III. Supreme Court Rule 369) in Illinois Civil Appellate Practice: State & Federal \u00a7 27 \u2014 9 (Ill. Inst, for Cont. Legal Educ. 1997); see 6 Nichols Illinois Civil Practice \u00a7 121.25, at 204 (rev. 1998). The dissent overlooks this well-settled principle.\nBefore this court, defendant correctly contends that the grounds for reversal in Clemons I were the incorrect admission of evidence and corresponding jury instruction regarding the Wage Act. However, the admission of evidence regarding the Wage Act, with corresponding jury instruction and argument, only constituted prejudicial error because plaintiff did not allege a violation of the Wage Act. See Clemons I, 184 Ill. 2d at 335; Clemons I, 292 Ill. App. 3d at 247-48. Had plaintiff alleged a Wage Act violation, the admission of evidence regarding the Wage Act, with corresponding jury instruction and argument, would not have been erroneous. Thus, these \u201cgrounds of reversal are of a character to be obviated by subsequent amendment of the pleadings.\u201d Roggenbuck, 330 Ill. at 298. Accordingly, it was the duty of the trial court to allow plaintiff to amend his complaint to add a count under the Wage Act. See Kinney, 373 Ill. at 420; Roggenbuck, 330 Ill. at 298. Of course, outside of the issues addressed by the reviewing courts in Clemons I, the trial court retains the discretion to allow or deny further subsequent amendments to the pleadings. See Kinney, 373 Ill. at 420; 735 ILCS 5/2 \u2014 616(a) (West 2000).\nWe note defendant\u2019s warning that a party opposing a pleading amendment following a remand from a reviewing court would never be able to prevail. According to defendant, such a pleading amendment would lead to unfair results, such as a defendant\u2019s open-ended exposure to liability.\nHowever, plaintiff counters, and we agree, that section 2 \u2014 616(b) of the Code of Civil Procedure (735 ILCS 5/2 \u2014 616(b) (West 2000)) protects a defendant under these circumstances. Pursuant to section 2 \u2014 616(b), a new cause of action alleged in an amended complaint, filed after the applicable limitations period has expired, will relate back to the filing of the original complaint only if: (1) the original pleading was timely filed; and (2) the original and amended pleadings indicate that the cause of action asserted in the amended pleading grew out of the same transaction or occurrence set up in the original pleading. 735 ILCS 5/2 \u2014 616(b) (West 2000); see Bryson v. News America Publications, Inc., 174 Ill. 2d 77, 106-09 (1996).\nBecause the trial court\u2019s order did not conform to the mandate on remand, it is reversed.\nWe lastly note that our result in this appeal would be the same even if we viewed the case through the discretionary standard embodied in section 2 \u2014 616(a) of the Code of Civil Procedure (735 ILCS 5/2 \u2014 616(a) (West 2000)). Generally, the decision whether to grant leave to amend a pleading rests within the sound discretion of the trial court. Absent abuse of that discretion, its decision will not be disturbed on review. The factors to be considered in determining whether or not to permit an amendment to the pleadings are whether: (1) the proposed amendment would cure a defect in the pleadings; (2) the proposed amendment would prejudice or surprise other parties; (3) the proposed amendment is timely; and (4) there were previous opportunities to amend the pleading. Lee, 152 Ill. 2d at 467-68; Loyola Academy, 146 Ill. 2d at 273-74.\nWe agree with the appellate court that the first factor is not relevant to our analysis. Plaintiff did not move to amend his complaint to cure a defective pleading. However, we disagree with the appellate court as to the remaining three factors.\nWe do not find any prejudice or surprise. At the first trial, defendant proffered a reason for its discharge of plaintiff \u2014 namely, that plaintiff demanded his paycheck by a certain date. Thus, defendant was not taken by surprise by the facts that formed the basis of plaintiffs new claim. There can be no serious claim of prejudice when the only surprise is that defendant did not realize the legal significance of the facts it was asserting as its defense.\nThe remaining factors are timeliness of the proposed amendment and whether there were previous opportunities to amend the pleading. Initially, we note that this was only plaintiffs second request to amend his original complaint. More fundamentally, however, this cause was on remand from the reviewing courts in Clemons I. The appellate court concluded that \u201cwhen a trial court is faced with a plaintiffs motion to amend his complaint upon remand, the court may appropriately consider proceedings that took place prior to remand.\u201d However, the controlling principle is settled:\n\u201c \u2018When a decree is reversed and the cause is remanded without specific directions, the judgment of the court below is entirely abrogated, and the cause stands there as if no trial had occurred. *** [The trial court] may permit amendments to the pleadings or the introduction of further evidence, so long as such steps are not inconsistent with the principles announced by the court of review ***.\u2019 \u201d Crane Paper Stock Co. v. Chicago & Northwestern Ry. Co., 63 Ill. 2d 61, 68-69 (1976), quoting Kinney, 373 Ill. at 420.\nPlaintiff should not be denied the opportunity to amend his complaint because the invalidity of his case \u2014 based on his failure to plead a violation of the Wage Act \u2014 was determined first in the reviewing courts rather than at the trial level. See City of Aurora v. Young Men\u2019s Christian Ass\u2019n, 9 Ill. 2d 286, 295 (1956); In re Estate of Pirie, 141 Ill. App. 3d 750, 771 (1986).\nIn addition to the above factors, we note that the proposed amendment was clearly material to the case. See Loyola Academy, 146 Ill. 2d at 276. Consideration of these factors shows that the trial court clearly abused its discretion when it denied plaintiffs motion to amend his complaint.\nCONCLUSION\nFor the foregoing reasons, the judgment of the appellate court and the order of the circuit court of McLean County are reversed, and the cause remanded to the trial court with directions to allow plaintiff to amend his complaint.\nAppellate court reversed;\ncircuit court reversed;\ncause remanded.", "type": "majority", "author": "JUSTICE FREEMAN" }, { "text": "JUSTICE THOMAS,\ndissenting:\nUnlike the majority, I do not believe that the order appealed from in this case is final and appealable. See 202 Ill. 2d at 350.1 therefore respectfully dissent.\nThe law is well established that, unless specifically authorized by the rules of this court, the appellate court has no jurisdiction to review judgments, orders, or decrees that are not final. Department of Central Management, 182 Ill. 2d at 238. An order or judgment is final if, on the issues presented in the pleadings, it \u201cascertains and fixes absolutely and finally the rights of the parties.\u201d Department of Central Management, 182 Ill. 2d at 238. Where the appellate court considers the merits of a non-final order over which it lacked jurisdiction, we must vacate that court\u2019s judgment and dismiss the appeal. Department of Central Management, 182 Ill. 2d at 238.\nThe order appealed from in this case is neither final nor appealable. Again, that order simply denies Clemons\u2019 motion to amend his complaint to include an additional count of retaliatory discharge under the Wage Act. Clearly, that order did not terminate the litigation between the parties, as that litigation remains pending in the trial court. Moreover, that order neither ascertains nor fixes absolutely and finally the rights of the parties with respect to Clemons\u2019 request for leave to amend. Indeed, Clemons\u2019 motion was denied without prejudice, and section 2 \u2014 616 specifically provides that, on just and reasonable terms, an amendment \u201cadding new causes of action\u201d may be allowed \u201cat anytime before final judgment\u201d (735 ILCS 5/2 \u2014 616(a) (West 2000)). Thus, Clemons may renew his motion \u2014 and the trial court may reconsider its ruling \u2014 anytime before final judgment. Of course, whether Clemons in fact renews his motion or the trial court in fact reconsiders its ruling is irrelevant to a determination of finality; the mere fact that both options are available renders the order denying Clemons\u2019 motion for leave to amend nonfinal.\nThe trial court\u2019s inclusion of a Rule 304(a) finding in no way alters this result. Rule 304(a) provides:\n\u201cIf multiple parties or multiple claims for relief are involved in an action, an appeal may be taken from a final judgment as to one or more but fewer than all of the parties or claims only if the trial court has made an express written finding that there is no just reason for delaying either enforcement or appeal or both.\u201d (Emphasis added.) 155 Ill. 2d R 304(a).\nThus, by its own terms, Rule 304(a) applies only to final judgments. As demonstrated above, however, the trial court\u2019s order denying Clemons\u2019 motion for leave to amend is not final. Rule 304(a) therefore has no application in this case, and the trial court\u2019s Rule 304(a) finding \u201cwas to no purpose and did not render [that order] appealable.\u201d See Kellerman v. Crowe, 119 Ill. 2d 111, 115 (1987). More importantly, the trial court\u2019s order is not subject to a Rule 304(a) finding because it does not relate to a claim for relief involved in Clemons\u2019 action. Clemons was denied leave to file his Wage Act claim. How can an order relating to a claim that has never been filed constitute a final judgment as to that claim? Quite clearly, it cannot.\nMoreover, although the trial court\u2019s order denying Clemons\u2019 motion for leave to amend invokes Supreme Court Rule 308 (155 Ill. 2d R. 308(a)), we know both that Clemons did not pursue this appeal under that rule and that the appellate court did not hear this appeal under that rule. Rule 308 provides:\n\u201cWhen the trial court, in making an interlocutory order not otherwise appealable, finds that the order involves a question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation, the court shall so state in writing, identifying the question of law involved. ***\n*** The appeal will be sought by filing an application for leave to appeal *** within 14 days after the entry of the order in the trial court or the making of the prescribed statement by the trial court, whichever is later.\u201d 155 Ill. 2d Rs. 308(a), (b).\nHere, Clemons did not file \u201can application for leave to appeal *** within 14 days after the entry of the order in the trial court.\u201d Rather, he filed a notice of appeal 27 days after the entry of that order. This alone precludes a finding of appellate jurisdiction under Rule 308. See Archer Daniels Midland Co. v. Barth, 103 Ill. 2d 536, 539 (1984) (the timely filing of a notice of appeal is jurisdictional). However, even if Clemons had filed a timely application under Rule 308(a), the appellate court still would have lacked jurisdiction, as the trial court\u2019s order failed even to identify the \u201cquestion of law\u201d it purported to certify. 155 Ill. 2d R. 308(a).\nFinally, I wish to note that this is not a case of the trial court misconstruing our mandate, a circumstance that conceivably could justify the exercise of this court\u2019s supervisory authority irrespective of the jurisdictional defect. Nowhere in Clemons I did this court order or even suggest that Clemons be allowed to amend his complaint to add an additional count under the Wage Act. Rather, after noting that Clemons specifically disavowed any intention of pursuing a remedy under the Wage Act (Clemons I, 184 Ill. 2d at 335), this court held simply that the trial court erred in admitting evidence of and instructing the jury on defendant\u2019s alleged violation of the Wage Act and that such error was prejudicial to defendant (Clemons I, 184 Ill. 2d at 338). In reaching this result, the court noted that:\n\u201cThe burden remains on the plaintiff to establish the elements of his cause of action, which here involved the discrete claim that the defendant wrongfully discharged plaintiff in retaliation for seeking recovery under the Workers\u2019 Compensation Act. *** Other remedies may exist for the other violation, but the burden still rests on plaintiff to prove the elements of the action he has pleaded.\u201d (Emphases added.) Clemons I, 184 Ill. 2d at 336-37.\nNothing in this language, or for that matter in all of Clemons I, could possibly be construed as a mandate to the trial court to allow Clemons\u2019 proffered amendment. Consequently, the propriety of the trial court\u2019s interlocutory order denying Clemons\u2019 motion for leave to amend must be reviewed as all such orders are reviewed \u2014 at the conclusion of the litigation and only for a manifest abuse of discretion. See Loyola Academy v. S&S Roof Maintenance, Inc. 146 Ill. 2d 263, 273-74 (1992).\nIn sum, the appellate court in this case considered the merits of a nonfinal order over which it lacked jurisdiction. I therefore would vacate that court\u2019s judgment and dismiss this appeal.\nJUSTICES FITZGERALD and GARMAN join in this dissent.\nOf course, this is not to say that the order denying Clemons\u2019 motion for leave to amend is not appealable. On the contrary, like any other nonfinal interlocutory order, it is appealable at the termination of the litigation in the trial court. See People ex rel. Scott v. Silverstein, 87 Ill. 2d 167, 171 (1981) (interlocutory orders in a pending case are not directly appealable but instead are reviewable on appeal from the final order).", "type": "dissent", "author": "JUSTICE THOMAS," } ], "attorneys": [ "James E Ginzkey, of Hayes, Hammer, Miles, Cox & Ginzkey, of Bloomington, for appellant.", "Costigan & Wollrab, EC., of Bloomington (John Casey Costigan and Robert W Neirynck, of counsel), for appellee." ], "corrections": "", "head_matter": "(No. 91306.\nDENNIS CLEMONS, Appellant, v. MECHANICAL DEVICES COMPANY, Appellee.\nOpinion filed November 21, 2002.\nTHOMAS, J., joined by FITZGERALD and GARMAN, JJ., dissenting.\nJames E Ginzkey, of Hayes, Hammer, Miles, Cox & Ginzkey, of Bloomington, for appellant.\nCostigan & Wollrab, EC., of Bloomington (John Casey Costigan and Robert W Neirynck, of counsel), for appellee." }, "file_name": "0344-01", "first_page_order": 362, "last_page_order": 379 }