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Rule 23 order filed
March 6, 2003;
Motion to publish granted
August 5, 2003.

JUSTICE GOLDENHERSH delivered the opinion of the court:

Helen S. (respondent) was found to be a person subject to involuntary admissionpursuant to a petition under the Mental Health and Developmental Disabilities Code (theCode) (405 ILCS 5/1-100 et seq. (West 2000)). The petition had been filed in the circuitcourt of Madison County. On appeal, respondent raises the issue of whether the petition forinvoluntary admission should have been barred under the doctrine of res judicata. Wereverse.

In November 2001 several petitions seeking the involuntary admission of respondentwere filed in the circuit court of Madison County. Respondent was found to be a personsubject to involuntary admission pursuant to a petition that was filed on November 30, 2001.

The first petition was filed on November 26, 2001. The petition was signed by therespondent's ex-husband and dated November 21, 2001. See 405 ILCS 5/3-600 (West2000). The petition alleged that respondent had taken 50 tablets of Excedrin P.M. in anapparent suicide attempt and had been taken to St. Joseph's Hospital. The petition allegedthat respondent had a history of schizophrenia, multiple hospitalizations, and refusals to takeher medications and that she was unwilling to talk about the situation.

The record also contains a document labeled "petition for involuntary admission" thatwas filed on November 27, 2001. Attached to the petition is a certificate signed bypsychiatrist Radhka Rao; however, no other paperwork was filed on that date.

On November 29, 2001, a petition dated November 27, 2001, signed by a crisiscounselor, Sheryl Phinney, was filed. See 405 ILCS 5/3-600 (West 2000). This petitionreiterated many of the allegations contained in the petition filed November 26, 2001. Thispetition also alleged that respondent was refusing to eat or drink liquids and was pacing theunit and refusing medical care.

On November 29, 2001, the matter was called for a hearing. Respondent moved todismiss on the grounds that the State had failed to file with the court proof of service within24 hours of admission and proof that respondent had been informed of her rights. See 405ILCS 5/3-611 (West 2000). The State presented testimony from Dr. Lenora Brown, alicensed clinical psychologist at the Alton Mental Health Center. Dr. Brown testified thatrespondent was admitted to St. Joseph's Hospital in Bond County on November 20, 2001. Pursuant to a petition and first certification, respondent was transferred to St. Elizabeth'sHospital in Granite City on November 21, 2001. On November 21, 2001, a secondcertification was done. Pursuant to a second petition, respondent was transferred to theAlton Mental Health Center on November 27, 2001. Dr. Brown testified that the secondpetition was served upon respondent; however, she had no records available for proof ofservice of the first petition. Dr. Brown testified that it was her understanding thatrespondent had been placed in the psychiatric unit at St. Elizabeth's Hospital and had beenconfined under an emergency petition upon her arrival at St. Elizabeth's Hospital. The trialcourt granted the motion to dismiss and the petitions were stricken.

The State moved for a temporary detention and an examination pursuant to section3-607 of the Code (405 ILCS 5/3-607 (West 2000)). Respondent objected to the courthearing new testimony on the State's motion. Based upon the testimony offered by the Statein opposition to the motion to dismiss, the court agreed to hear further evidence and heardtestimony from respondent's ex-husband, a son, and Dr. Brown. Respondent was presentedas a witness on her own behalf. Respondent was nonresponsive to several questions fromher own counsel, but she did state that she did not want to be there. Respondent failed toanswer any of the questions presented by the State on cross-examination. The court enteredan order detaining respondent for examination for a period of no more than 24 hours,pursuant to section 3-607 of the Code.

On November 30, 2001, a petition for involuntary admission was filed. It was datedNovember 29, 2001, and signed by Bobbie Laker, a licensed clinical social worker. See 405ILCS 5/3-600 (West 2000). The petition repeated many of the allegations contained in theprior petitions and stated that respondent's activities remained similar. The petition alsostated that on November 29, 2001, respondent had refused breakfast and only eaten 10% ofher lunch.

Respondent moved to dismiss the petition on the basis of res judicata. On December6, 2001, the petition and respondent's motion to dismiss were called for a hearing. The Statecalled Dr. Brown as a witness. Dr. Brown testified that based upon a review of the recordsand discussions with staff, she diagnosed respondent with schizophrenia, paranoid type. Dr.Brown stated that respondent's symptoms continued to be flat affect, poor eye contact,pacing the unit, eating poorly, and poor basic hygiene. Respondent was refusing treatmentand not taking her medication. Dr. Brown opined that respondent would be a danger toherself if she was discharged, and the doctor recommended admission. The court tookjudicial notice of testimony at the previous hearing by respondent's son and her ex-husband. Respondent presented no witnesses. The trial court found respondent to be a person subjectto involuntary admission and ordered her hospitalized for a period not to exceed 90 days. Respondent appeals.

Respondent contends that the trial court should have dismissed the final petition on the basis of res judicata. See 134 Ill. 2d R. 273; DeLuna v. Treister, 185 Ill. 2d 565, 573,708 N.E.2d 340, 344 (1999). The State responds that there was no adjudication on themerits of the previous petitions and that there is no identity of causes of action for thepetitions. See People v. Valentine, 201 Ill. App. 3d 10, 12, 558 N.E.2d 807, 809 (1990). Further discussion of these arguments, however, is not necessary because the record revealsthat the dismissal of the prior petitions was without prejudice. See Forest Preserve Districtof Will County v. Vanderlaan, 226 Ill. App. 3d 692, 695, 589 N.E.2d 599, 601 (1992); Inre Estate of Norris, 143 Ill. App. 3d 741, 748, 493 N.E.2d 121, 126 (1986). Respondentmade an oral motion to dismiss the prior petitions at the beginning of the hearing onNovember 29, 2001. The trial court never entered a written order on the motions. After thecourt had ruled upon the motions to dismiss, the court did allow a hearing to proceed undersection 3-607 in order to determine whether a further period for examination was neededimmediately. The context of these rulings indicates that at the time the court dismissed theprior petitions, the court was entertaining the notion of the State refiling a petition forinvoluntary admission.

This does not mean that the petition was valid. Respondent contends that the petitionviolated the notice and filing requirements set forth in section 3-611 of the Code (405 ILCS5/3-611 (West 2000)). This section requires that the petition must be filed and notice mustbe given to a detainee within 24 hours of admission for any petition filed under article VIof the Code (405 ILCS 5/3-600 through 3-611 (West 2000)). A failure to comply with thenotice and filing requirements justifies a dismissal of a petition. In re Demir, 322 Ill. App.3d 989, 994, 751 N.E.2d 616, 620 (2001).

The State contends that for purposes of this petition, the date of admission was notNovember 21, 2001, but was when the court entered the order for temporary detentionpursuant to section 3-607 of the Code on November 29, 2001. The State argues that bydismissing the prior petitions and ordering a new admission under section 3-607 in the sameproceeding, respondent was no longer being held under the new petitions but was beingexamined under section 3-607. See 405 ILCS 5/3-600, 3-601, 3-607 (West 2000). TheState concludes that for purposes of the notice provisions, the time should then begin on thedate of the court's order of temporary detention for examination. To support its position, theState relies primarily upon two cases, In re Shaw, 153 Ill. App. 3d 939, 506 N.E.2d 456(1987), and People v. Read, 228 Ill. App. 3d 664, 592 N.E.2d 1178 (1992)(Goldenhersh, P.J., dissenting).

In Read, an initial petition was dismissed because the respondent had not beenexamined within 24 hours of admission. A second petition was executed the same day asthe order of dismissal and filed the next day. The respondent was involuntarily admitted onthe second petition. On appeal, the respondent argued that the order of involuntaryadmission was void because he had not been physically released from the facility after thefirst petition. The court rejected the respondent's claim, describing the factual basis for theruling as follows:

"In this case the actual physical release of Read from the facility was notnecessary in order to comply with the statutory definition of a 'discharge'. The'Notice of Change in Status' indicates that Read was in fact discharged and released,albeit to himself, on August 30, 1990, the same day the court ordered it. There isnothing in the record to indicate the exact time of day that the petition in cause No.90-MH-224 was filed. Furthermore, there is nothing in the record showing that Readtried to leave the facility or that he wanted to leave or that he was prevented fromleaving. Under the circumstances herein[,] we do not find that the failure tophysically release Read from Choate Center precluded the State from subsequentlyfiling an involuntary commitment petition. Based on the facts of this case, requiringRead to physically leave Choate Center before filing the second petition wouldrequire that we construe the statute as requiring the performance of an emptyformality when the legislative intent has been otherwise achieved." Read, 228 Ill.App. 3d at 667, 592 N.E.2d at 1180.

The majority in Read relied upon In re Shaw. In In re Shaw, a mental patient whohad initially been admitted voluntarily sought his discharge. The mental health facility failedto file a petition for involuntary commitment within the five-day period after a patientrequest for discharge pursuant to section 3-403 of the Code (Ill. Rev. Stat. 1985, ch. 91