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                                     Appellate Court                            Date: 2018.08.15
                                                                                14:30:02 -05'00'




                 Ward v. Decatur Memorial Hospital, 2018 IL App (4th) 170573



Appellate Court          GERALD R. WARD, Individually and as Administrator of the Estate
Caption                  of Clarence R. Ward, Deceased, Plaintiff-Appellant, v. DECATUR
                         MEMORIAL HOSPITAL, Defendant-Appellee.



District & No.           Fourth District
                         Docket No. 4-17-0573



Filed                    June 21, 2018
Rehearing denied         July 23, 2018



Decision Under           Appeal from the Circuit Court of Macon County, No. 16-L-51; the
Review                   Hon. Thomas E. Little, Judge, presiding.



Judgment                 Reversed and remanded.


Counsel on               Randall A. Wolter, of Wolter, Beeman, Lynch & Londrigan, of
Appeal                   Springfield, for appellant.

                         Michael J. Kehart and Regan Lewis, of Kehart, Wise, Toth & Lewis,
                         of Decatur, for appellee.



Panel                    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 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.



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¶ 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.
¶ 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.




                                                   -3-
¶ 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, 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
¶ 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.


                                                    -4-
¶ 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)). Hudson, 228 Ill. 2d at 466. 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.
¶ 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. 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,

                                                   -5-
       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, 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 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.


                                                     -6-
       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 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 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,


                                                    -7-
       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 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.
¶ 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


                                                    -8-
       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.” 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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