                                                                                     FILED

                                                                                     June 21, 2018
                                   2018 IL App (4th) 170573                          Carla Bender

                                                                                 4th District Appellate

                                        NO. 4-17-0573                                  Court, IL
                                IN THE APPELLATE COURT

                                         OF ILLINOIS

                                     FOURTH DISTRICT


 GERALD R. WARD, Individually and as                      )   Appeal from the
 Administrator of the Estate of Clarence R. Ward,         )   Circuit Court of
 Deceased,                                                )   Macon County
               Plaintiff-Appellant,                       )   No. 16L51
               v.                                         )
 DECATUR MEMORIAL HOSPITAL,                               )   Honorable
               Defendant-Appellee.                        )   Thomas E. Little,
                                                          )   Judge Presiding.


               JUSTICE CAVANAGH delivered the judgment of the court, with opinion.
               Justices Steigmann and Harris concurred in the judgment and opinion.

                                          OPINION
¶1             Plaintiff, Gerald R. Ward, appeals from a summary judgment in favor of

defendant, Decatur Memorial Hospital, on the ground of res judicata. In our de novo review (see

Illinois Department of Financial & Professional Regulation v. Rodriguez, 2012 IL 113706,

¶ 10), we find an element of res judicata to be missing: a final adjudication on the merits.

Therefore, we reverse the trial court’s judgment, and we remand this case for further

proceedings.

¶2                                    I. BACKGROUND

¶3             Plaintiff filed the present case, Ward v. Decatur Memorial Hospital, Macon

County case No. 16-L-51 (Ward II), after voluntarily dismissing, without prejudice, a previous

case, Ward v. Decatur Memorial Hospital, Macon County case No. 09-L-209 (Ward I). We will

begin by recounting what happened in the two cases.
¶4                                          A. Ward I



¶5              1. The Dismissal of All But One Count of the Original Complaint,
                        With Permission To File an Amended Complaint

¶6             On December 17, 2009, in Ward I, plaintiff sued defendant, Decatur Memorial

Hospital Home Health Services (Home Health), and “unknown employees” of defendant for

alleged negligence in their medical treatment of his brother, Clarence R. Ward, whose death,

plaintiff claimed, resulted from the negligence.

¶7             On May 7, 2010, pursuant to section 2-619.1 of the Code of Civil Procedure

(Code) (735 ILCS 5/2-619.1 (West 2010)), defendant moved to dismiss all nine counts of the

complaint. (The movant was defendant alone because, as defendant explained in its motion for

dismissal, Home Health had no legal identity separate from defendant and, under Illinois law, it

was impermissible to sue “unknown employees.”)

¶8             On July 6, 2010, the trial court granted defendant’s motion for dismissal, except

as to count V, a survival action against Home Health. We need not enumerate the court’s reasons

for dismissing each of the eight counts. It is enough to observe that the court designated some

counts as dismissed “without prejudice” and other counts as simply stricken. Specifically, the

court dismissed counts I, II, III, IV, and VI “without prejudice” and struck counts VII, VIII, and

IX, without any designation of “with prejudice” or “without prejudice.” The court gave plaintiff

“leave to file an amended complaint *** within 28 days.”

¶9                     2. The Dismissal of the First Amended Complaint,
                     With Permission To File a Second Amended Complaint

¶ 10           On August 3, 2010, plaintiff filed a first amended complaint against defendant

and Home Health. It had four counts, two of which were pursuant to the Survival Act (755 ILCS



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5/27-6 (West 2006)) and the other two of which were pursuant to the Wrongful Death Act (740

ILCS 180/1 et seq. (West 2006)).

¶ 11           On August 23, 2010, pursuant to section 2-619.1, defendant moved to dismiss the

first amended complaint.

¶ 12           On October 25, 2010, the trial court granted the motion. The docket entry

designated count II as “dismissed without prejudice with leave to amend within 30 days” and the

remaining counts as simply dismissed. At the end, the docket entry “granted [plaintiff] leave to

file the second Amended Complaint within 30 days.”

¶ 13                 3. The Dismissal of the Second Amended Complaint,
                     With Permission To File a Third Amended Complaint

¶ 14           On November 24, 2010, plaintiff filed a second amended complaint, this time

against defendant alone, seeking recovery under the Survival Act and the Wrongful Death Act.

The second amended complaint consisted of four counts, two of which raised a theory of

respondeat superior and the other two of which raised a theory of “institutional negligence.”

¶ 15           On December 23, 2010, pursuant to section 2-619.1, defendant moved to dismiss

the second amended complaint.

¶ 16           On April 6, 2011, the trial court granted the motion and gave plaintiff “leave to

file, within 28 days, a third amended complaint.”

¶ 17                            4. The Third Amended Complaint

¶ 18           On May 4, 2011, after the trial court granted more time to do so, plaintiff filed a

third amended complaint. This version of the complaint was against defendant alone. It consisted

of two counts, both of which relied on a theory of respondeat superior. One count was pursuant

to the Survival Act, and the other count was pursuant to the Wrongful Death Act.




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¶ 19              On June 1, 2011, defendant filed an answer and some affirmative defense to the

third amended complaint.

¶ 20              5. The Denial of Permission To File a Fourth Amended Complaint
                          and the Granting of Defendant’s Motion in Limine

¶ 21              A jury trial was scheduled for January 19, 2016.

¶ 22              On January 4, 2016, plaintiff moved for permission to file a fourth amended

complaint against defendant.

¶ 23              On January 5, 2016, the trial court denied the motion, finding that the proposed

fourth amended complaint was significantly different from the third amended complaint.

¶ 24              At the same time, the trial court granted defendant's motion in limine to bar two

nurses, Tracy Rodgers and Nichele Gavin, from testifying as expert witnesses for plaintiff.

¶ 25                                  6. The Voluntary Dismissal

¶ 26              On January 11, 2016, pursuant to section 2-1009 of the Code (735 ILCS 5/2-1009

(West 2016)), plaintiff moved to voluntarily dismiss Ward I. That same day, the trial court

granted the motion and dismissed the case without prejudice.

¶ 27                                          B. Ward II

¶ 28                                      1. The Complaint

¶ 29              On May 5, 2016, plaintiff commenced a new action, Ward II. The complaint was

almost identical to the fourth amended complaint the trial court had refused to allow plaintiff to

file in Ward I.

¶ 30                    2. Summary Judgment on the Ground of Res Judicata

¶ 31              On November 14, 2016, defendant filed a motion for summary judgment (735

ILCS 5/2-1005 (West 2016)) on the ground of res judicata. Citing Hudson v. City of Chicago,




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228 Ill. 2d 462 (2008), among other authorities, defendant argued that Ward II violated the rule

against claim-splitting.

¶ 32           Initially, on March 20, 2017, the trial court denied defendant’s motion for

summary judgment because the third amended complaint remained pending when plaintiff

voluntarily dismissed Ward I. Thus, there was no final judgment—no order that “fixed the

parties’ rights.” Without a final judgment, there could be no res judicata.

¶ 33           Defendant moved for reconsideration, and on May 11, 2017, the trial court

changed its mind, deciding that res judicata barred plaintiff’s claims in Ward II. The court

reasoned as follows:

                       “3. [R]es judicata bars not only every matter that was actually determined

               in the first suit, but also every matter that might have been raised and determined

               in that suit.

                       4. In [Ward I], the Plaintiff asserted a number of theories that were

               involuntarily dismissed but not repled, thereby rendering the dismissals final.

                       5. At the time the Plaintiff voluntarily dismissed [Ward I], the third

               amended complaint was pending[,] and the issues raised therein had not yet been

               determined but could have been determined therein.” (Emphasis in original.)

Consequently, the court granted defendant’s motion for reconsideration and entered a summary

judgment in defendant’s favor on the ground of res judicata. Afterward, the court denied

plaintiff’s own motion for reconsideration.

¶ 34           This appeal followed.

¶ 35                                      II. ANALYSIS




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¶ 36           Defendant maintains that, under Hudson, the trial court was correct to dismiss

Ward II, with prejudice, on the ground of res judicata. Defendant argues that in Ward II plaintiff

resorted to claim-splitting, which the supreme court forbade in Hudson.

¶ 37           Plaintiff disagrees. He insists that Hudson is distinguishable because, unlike him,

the plaintiffs in Hudson never received permission to replead in the original litigation.

¶ 38           In Hudson, the plaintiffs brought a tort action against the City of Chicago and

some of its employees in the fire department. Id. at 464. The complaint consisted of two counts:

count I, which alleged negligence, and count II, which alleged willful and wanton misconduct.

Id. The circuit court granted the defendants’ motion to dismiss count I with prejudice, pursuant

to section 2-619(a)(9) of the Code (735 ILCS 5/2-619(a)(9) (West 2000)), on the ground that the

city and its employees had immunity under section 3.150 of the Emergency Medical Services

(EMS) Systems Act (210 ILCS 50/3.150 (West 2000)). Hudson, 228 Ill. 2d at 464-65.

¶ 39           After the involuntary dismissal of count I, the plaintiffs moved to voluntarily

dismiss the remaining count, count II, which alleged willful and wanton misconduct. Id. at 466.

The trial court granted their motion, dismissing that count without prejudice (see 735 ILCS 5/2­

1009 (West 2000)). Id. Hudson I thereby came to an end.

¶ 40           As section 2-1009 of the Code (735 ILCS 5/2-1009 (West 2000)) allowed, the

plaintiffs commenced a new action within one year after the voluntary dismissal of Hudson I.

Hudson, 228 Ill. 2d at 466. In the new action, Hudson II, the plaintiffs pleaded only one count,

the same count of willful and wanton misconduct they had pleaded, and voluntarily dismissed, in

Hudson I. Id. The circuit court granted a motion by the defendants to dismiss Hudson II as barred

by res judicata. Id.




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¶ 41            The supreme court upheld the dismissal because res judicata barred not only what

was decided but whatever could have been decided in the previous action. Id. at 467. Before an

action was barred, three conditions had to be satisfied: (1) a court of competent jurisdiction

rendered a “final judgment on the merits,” (2) the causes of action were identical, and (3) the

parties or their privies were the same in both actions. Id. It was undisputed in Hudson that the

second and third conditions were satisfied. Id. The plaintiffs disputed, however, that the first

condition was satisfied. They pointed out that the count alleging willful and wanton misconduct

never was adjudicated on its merits. Id. at 467-68.

¶ 42            Again, however, if a claim was finally adjudicated on its merits in the previous

litigation, res judicata barred not only that claim but also whatever should have been adjudicated

along with that claim. Id. at 467. The dismissal of count I was the actual adjudication, which

swept up whatever else should have been adjudicated in the same action, namely, count II.

Illinois Supreme Court Rule 273 (eff. Jan. 1, 1967) regarded the dismissal of count I as a final

adjudication on the merits (Hudson, 228 Ill. 2d at 468), and because count II “[arose] out of the

same set of operative facts” as count I (internal quotations marks omitted) (id. at 474),

res judicata treated the two counts as one claim—count II “could have been decided” in the same

action as count I (id. at 467).

¶ 43            Rule 273 provides, “Unless the order of dismissal or a statute of this State

otherwise specifies, an involuntary dismissal of an action, other than a dismissal for lack of

jurisdiction, for improper venue, or for failure to join an indispensable party, operates as an

adjudication upon the merits.” Ill. S. Ct. R. 273 (eff. Jan. 1, 1967) Although, generally, an

“action” is defined as “[a] civil or criminal judicial proceeding” (Black’s Law Dictionary (10th

ed. 2014)), the supreme court defined “action” to include the count of a complaint. Cf. Richter v.



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Prairie Farms Dairy, Inc., 2016 IL 119518, ¶ 28 (“Even if a plaintiff subsequently elects to

stand on his or her complaint, an order striking or dismissing a complaint is not final until a

subsequent order finally dismisses the action or suit.”). The dismissal of count I was unqualified.

Therefore, under Rule 273, it was a dismissal with prejudice and, as such, a final adjudication on

the merits. Hudson, 228 Ill. 2d at 468. Because the dismissal of count I was final in nature, it

became immediately appealable when the trial court ended Hudson I by granting the plaintiffs’

motion to voluntarily dismiss count II. Id. Given the final, unappealed judgment on the merits as

to count I in Hudson I¸ the rule against claim-splitting barred count II in Hudson II.

¶ 44           Plaintiff highlights what he regards as a crucial difference between his case and

Hudson. Ward I had something that Hudson I lacked: permission to file amended complaints. He

maintains that the rule against claim-splitting is inapplicable to the present case, Ward II,

because, in Ward I, each time the trial court granted a motion for involuntary dismissal, the court

gave him permission to replead. Consequently, according to plaintiff, Ward I contains no “final

judgment on the merits” See id. at 467. (He does not dispute the satisfaction of the other two

conditions of res judicata, i.e., identical causes of actions and identical parties or privies (see

id.).) He quotes Richter: “A dismissal order that grants leave to amend is interlocutory and not

final. *** [T]here was no ‘adjudication upon the merits’ [if, in the previous litigation,] ‘the order

of dismissal *** otherwise specifie[d]’ that [the plaintiff] had leave to file an amended

complaint.” Richter, 2016 IL 119518, ¶¶ 25-26 (quoting Ill. S. Ct. R. 273 (eff. Jan. 1, 1967)).

¶ 45           Defendant counters that, even though the trial court gave plaintiff permission to

replead the original, amended, first amended, and second amended complaints, the permission

was qualified: the court specified certain counts as dismissed “without prejudice” and other

counts as simply dismissed. Defendant argues that, under Rule 273, the simple dismissals,



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lacking the qualification of “without prejudice,” were “adjudication[s] upon the merits” (Ill. S.

Ct. R. 273 (eff. Jan. 1, 1967)). Thus, defendant would extend the rationale of Hudson to cases in

which the trial court designated some counts as dismissed with prejudice and other counts as

dismissed without prejudice and gave permission to replead. In support of that extension of

Hudson, defendant cites Kiefer v. Rust-Oleum Corp., 394 Ill. App. 3d 485 (2009).

¶ 46           In Kiefer, the plaintiff, a Canadian citizen, sued two American corporations. Id. at

486. His amended complaint consisted of two counts, both premised on strict products liability.

Id. The defendants moved to dismiss the amended complaint because in British Columbia, where

the injury had occurred, the law did not recognize strict products liability. Id. at 486-87. The trial

court dismissed the amended complaint for that reason (id. at 487) but gave the plaintiff

permission to file a second amended complaint, then a third amended complaint, and, finally, a

fourth amended complaint (id. at 487-88). The fourth amended complaint consisted of two

counts, both alleging negligence. Id. at 488. A few weeks before the trial was scheduled to begin,

the court granted a motion by the plaintiff to voluntarily dismiss his negligence claims, without

prejudice, pursuant to section 2-1009 (735 ILCS 5/2-1009 (West 2006)). Kiefer, 394 Ill. App. 3d

at 488. Later, the plaintiff refiled his negligence claims in a new action. Id. The defendants

moved to dismiss the new action, with prejudice, on the ground of res judicata, and the court

granted their motion. Id.

¶ 47           On appeal, the plaintiff disputed that the order dismissing his strict products

liability claims in the previous action was a final order. Id. at 493-94. He argued that the order

was nonfinal because (1) it granted him leave to file a second amended complaint and (2) it

lacked the words “with prejudice.” Id. While acknowledging the truth of both of those




                                                -9­
observations, the First District treated them as “far from dispositive regarding the effect of the

order.” Id. at 494. The First District reasoned:

                       “Where, as here, a dismissal order does not explicitly state that it is

               entered ‘with prejudice’ or ‘without prejudice,’ it is necessary ‘to look to the

               substance of what was actually decided by the dismissal order’ to determine if the

               order is final. McMann v. Pucinski, 218 Ill. App. 3d 101, 106 (1991). Here, there

               can be no dispute that [the plaintiff’s] strict liability claims were adjudicated on

               its merits. ***

                       *** [The involuntary dismissal] was based on the *** trial court’s

               determination that [the plaintiff] could not plead any set of facts that would allow

               him to recover under a theory of strict product liability.” Id. at 494-95.

It appeared, from the transcript of the hearing on the motion for dismissal, that by “ ‘leave to

amend,’ ” the trial court in Kiefer intended to give the plaintiff permission to assert negligence

claims but not to amend his (legally untenable) strict products liability claims. Id. at 495. Thus,

the First District concluded, the inclusion of the words “ ‘leave to amend’ ” in the dismissal order

and the lack of the words “ ‘with prejudice’ ” did “not affect the finality of the order with regard

to [the plaintiff’s] strict product[s] liability claims[,] as the substance of the order show[ed] that

the order was determinative of those claims.” Id. When the trial court granted the plaintiff’s

motion for a voluntary dismissal, the “final order dismissing [the plaintiff’s] strict product[s]

liability claims became immediately appealable.” Id. Because the plaintiff never appealed it, that

final order barred not only every matter actually decided in the previous case but also every

matter that could have been decided—including the claims of negligence. Id. Therefore, in




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reliance on Hudson, the First District upheld the dismissal of the new action on the ground of

res judicata. Id.

¶ 48            This result in Kiefer rests ultimately on the implied assumption that granting

permission to file an amended complaint does not undo the “with prejudice” part of a preceding

dismissal of a count with prejudice. Assume that in granting a motion to dismiss a complaint, the

trial court designates some counts as dismissed with prejudice and other counts as dismissed

without prejudice. (This would be a reasonable reading of the dismissal orders in Ward I;

designating some counts, but not others, as dismissed “without prejudice” signaled an intention

to dismiss some counts with prejudice.) Assume also that the court gives the plaintiff permission

to file an amended complaint. Seemingly, the court does so with the understanding that the

amended complaint will omit the counts dismissed with prejudice. After all, “with prejudice”

“means that [the] plaintiff will not be permitted to plead over.” Perkins v. Collette, 179 Ill. App.

3d 852, 854 (1989). So, the permission to amend the complaint appears to be qualified. Assume

the plaintiff files an amended complaint that omits the counts dismissed with prejudice and that,

before the date of the scheduled trial on the amended complaint, the court grants a motion by the

plaintiff to voluntarily dismiss the amended complaint. If the plaintiff afterward commences a

new action and if the counts of the complaint in the new action arise out of the same set of

operative facts as the counts dismissed with prejudice in the previous action, Kiefer would lead

to the conclusion that those counts are barred by res judicata—as defendant convincingly argues.

¶ 49            The trouble is, we are unconvinced by Kiefer because it is logically inconsistent

with Foxcroft Townhome Owners Ass’n v. Hoffman Rosner Corp., 96 Ill. 2d 150 (1983), and its

progeny. In Foxcroft, the supreme court held that if a trial court dismisses a complaint and the

plaintiff (with the court’s permission) files an amended complaint that omits counts that were in



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the original complaint, the plaintiff will be deemed to have “abandoned and withdrawn” those

counts (internal quotation marks omitted) (Foxcroft, 96 Ill. 2d at 154) and to have “waived” them

(id. at 155), and the reviewing court will decline to address the merits of those superseded counts

(id.). “Where an amendment is complete in itself and does not refer to or adopt the prior

pleading, the earlier pleading ceases to be a part of the record for most purposes, being in effect

abandoned and withdrawn.” (Internal quotation marks omitted.) Id. at 154. This is called “the

Foxcroft rule.” Bonhomme v. St. James, 2012 IL 112393, ¶ 27.

¶ 50           Significantly, the Foxcroft rule applies even to cases in which the trial court

dismissed counts “with prejudice.” Id. ¶ 19; Petrowsky v. Family Service of Decatur, Inc., 165

Ill. App. 3d 32, 35 (1987); Kincaid v. Parks Corp., 132 Ill. App. 3d 417, 419 (1985). To the

uninitiated, this application of the Foxcroft rule might seem paradoxical, considering that

(1) amendments filed without the trial court’s permission are a nullity (Kurczaba v. Pollock, 318

Ill. App. 3d 686, 703 (2000)) and (2) dismissing certain counts “with prejudice” would appear to

signify that, in an amended complaint, those counts will not be permitted (Jackson v. Alverez,

358 Ill. App. 3d 555, 559 (2005); O’Hara v. State Farm Mutual Automobile Insurance Co., 137

Ill. App. 3d 131, 133 (1985)). However, if the court gives permission to replead, the plaintiff not

only may but, on pain of waiver or forfeiture, must replead or otherwise incorporate the

dismissed counts in the amended complaint—even if the court dismissed those counts “with

prejudice.” See Bonhomme, 2012 IL 112393, ¶ 26 (“[E]ven assuming that the trial court in this

case had instructed [the] plaintiff to file a one-count third amended complaint and only then

appeal the dismissal [with prejudice] of her other six counts, [the] plaintiff could not treat that

instruction as license to ignore Foxcroft.” (Emphasis in original.)); Petrowsky, 165 Ill. App. 3d at




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35 (“[T]he waiver principle [in Foxcroft] applies whether or not the dismissal was ‘with

prejudice.’ ”).

¶ 51              Effectively, then, by granting the plaintiff permission to file an amended

complaint, the trial court vacates the designation of “with prejudice” in its dismissal of individual

counts of the original complaint. See Reed v. Retirement Board of the Fireman’s Annuity &

Benefit Fund, 376 Ill. App. 3d 259, 267 (2007) (“Even if the trial court originally declares it has

dismissed a complaint with prejudice, if[,] after reconsideration[,] the court allows the plaintiff to

file an amended complaint, the prejudice of the original dismissal is vacated[,] [and] it is no

longer a final order and is therefore not appealable.”). If a court dismisses certain counts “with

prejudice,” the phrase “with prejudice” means little if the court also gives permission to file an

amended complaint. (Maybe it would serve as a forecast of how the court likely would rule on a

motion to dismiss the repleaded counts.) Having given permission to file an amended complaint,

the court cannot require the plaintiff to leave out claims from the amended complaint and thereby

abandon and forfeit them. The plaintiff has the right to preserve dismissed counts for review (see

Bonhomme, 2012 IL 112393, ¶ 26; Petrowsky, 165 Ill. App. 3d at 35), and an acceptable way of

doing so is to replead them in the amended complaint (Northbrook Bank & Trust Co. v. 2120

Division LLC, 2015 IL App (1st) 133426, ¶ 11). It follows that, regardless of whether the

dismissal order purports to dismiss certain counts “with prejudice,” “[a] dismissal order that

grants leave to amend is interlocutory and not final.” Richter, 2016 IL 119518, ¶ 25. Because the

whole point of res judicata is to prevent the resurrection of claims that already have been

decided (Scott v. Industrial Comm’n, 184 Ill. 2d 202, 219 (1998)), the dismissal of a count, even

“with prejudice,” cannot possibly be res judicata if the Foxcroft rule, as elaborated in Bonhomme

and other cases, allows the repleading of that count.



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¶ 52           As defendant observes, in Ward I, plaintiff did not always replead dismissed

counts. He omitted several previously dismissed counts from the final version of his complaint,

the third amended complaint. True, but that omission did not make the dismissal of those counts

a final order for purposes of res judicata. Instead, if plaintiff had appealed in Ward I, those

counts would have been regarded as abandoned, withdrawn, superseded, waived, or procedurally

forfeited. See Foxcroft, 96 Ill. 2d at 154-55; Bowman v. County of Lake, 29 Ill. 2d 268, 272

(1963); Amalgamated Transit Union, Local 241 v. Illinois Labor Relations Board, Local Panel,

2017 IL App (1st) 160999, ¶ 59 n.1 (by “waiver,” the supreme court sometimes means

“forfeiture”). The dismissal of a count that the plaintiff afterward abandoned in the amended

complaint does not have res judicata effect. Rather, the abandoned count “ ‘ceases to be a part of

the record for most purposes’ ” (Foxcroft, 96 Ill. 2d at 154 (quoting Bowman, 29 Ill. 2d at 272)),

and “ ‘any ruling of the court with relation to the sufficiency of the original pleadings is not

properly in the record’ ” (internal quotation marks omitted) (Consolidated Construction Co. v.

Great Lakes Plumbing & Heating Co., 90 Ill. App. 2d 196, 203 (1967) (quoting Wright v. Risser,

290 Ill. App. 3d 576, 581 (1937)). By leaving a previously dismissed count out of the amended

complaint, the plaintiff withdraws that count (Bonhomme, 2012 IL 112393, ¶ 17; Foxcroft, 96 Ill.

2d at 154), and “[t]he withdrawal of an earlier pleading leaves the issues in the same status as if

the abandoned pleading had not been filed” (Wheeler v. Sunbelt Tool Co., 181 Ill. App. 3d 1088,

1105 (1989); see also Guebard v. Jabaay, 117 Ill. App. 3d 1, 7 (1983); Blazina v. Blazina, 42 Ill.

App. 3d 159, 164 (1976)). Although “[t]he withdrawal does not eradicate the fact that the litigant

did file the pleading,” it “has the effect of removing the pleading from any and all consideration,

and the issues are left in the same status as though the withdrawn pleading had never been filed.”




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61B Am. Jur. 2d Pleading § 904 (1999). “Where a count is stricken by amendment, it will be

regarded as though never introduced.” 71 C.J.S. Pleading § 465 (2011).

¶ 53           In sum, the binding authority of Bonhomme and Foxcroft compels us to

respectfully disagree with Kiefer’s application of Hudson. We find Hudson to be distinguishable

because, in Hudson I, the trial court never gave permission to file an amended complaint after

dismissing a count of the complaint with prejudice (see Hudson, 228 Ill. 2d at 466). In Ward I,

by contrast, the trial court gave permission to amend, over and over again, all the way to the third

amended complaint—which remained pending and completely unadjudicated at the time of the

voluntary dismissal. “A dismissal order that grants leave to amend is *** not final” (Richter,

2016 IL 119518, ¶ 25), and without “a final judgment on the merits,” there can be no res judicata

(Hudson, 228 Ill. 2d at 467).

¶ 54                                   III. CONCLUSION

¶ 55           For the foregoing reasons, we reverse the trial court’s judgment, and we remand

this case for further proceedings.

¶ 56           Reversed and remanded.




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