{ "id": 3443398, "name": "JUDITH KINCAID, Adm'r of the Estate of Lonnie G. Kincaid, Deceased, Plaintiff-Appellant, v. PARKS CORPORATION et al., Defendants-Appellees (AAA Equipment Service Company, Clarklift of Quincy, Inc., Third-Party Defendant)", "name_abbreviation": "Kincaid v. Parks Corp.", "decision_date": "1985-04-04", "docket_number": "No. 4\u201484\u20140336", "first_page": "417", "last_page": "421", "citations": [ { "type": "official", "cite": "132 Ill. App. 3d 417" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "460 N.E.2d 901", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "122 Ill. App. 3d 187", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3522840 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/122/0187-01" ] }, { "cite": "243 N.E.2d 847", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "103 Ill. App. 2d 269", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 1599874 ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/103/0269-01" ] }, { "cite": "435 N.E.2d 210", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "214" } ], "opinion_index": 0 }, { "cite": "105 Ill. App. 3d 951", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5471105 ], "pin_cites": [ { "page": "955-56" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/105/0951-01" ] }, { "cite": "424 N.E.2d 679", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "682" } ], "opinion_index": 0 }, { "cite": "98 Ill. App. 3d 485", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 8499538 ], "pin_cites": [ { "page": "487" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/98/0485-01" ] }, { "cite": "449 N.E.2d 125", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "pin_cites": [ { "page": "127" }, { "page": "126" } ], "opinion_index": 0 }, { "cite": "96 Ill. 2d 150", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3113729 ], "weight": 2, "pin_cites": [ { "page": "155" }, { "page": "153-54" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/96/0150-01" ] } ], "analysis": { "cardinality": 426, "char_count": 8022, "ocr_confidence": 0.756, "pagerank": { "raw": 6.32456879930895e-08, "percentile": 0.38882035207458043 }, "sha256": "e39f80dd104eaecaeb64cfce938f5cf17d37780616c3725d6c2819fb84c16fa6", "simhash": "1:476a5eb592451d3e", "word_count": 1241 }, "last_updated": "2023-07-14T22:48:37.184543+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "JUDITH KINCAID, Adm\u2019r of the Estate of Lonnie G. Kincaid, Deceased, Plaintiff-Appellant, v. PARKS CORPORATION et al., Defendants-Appellees (AAA Equipment Service Company, Clarklift of Quincy, Inc., Third-Party Defendant)." ], "opinions": [ { "text": "JUSTICE TRAPP\ndelivered the opinion of the court:\nPlaintiff Judith Kincaid brought this wrongful death action as administrator of her husband\u2019s estate. She alleged her husband died as a result of inhalation of acid that he had used during the course of his employment. Defendant Parks Corporation packaged and labeled the acid and sold it to defendant Garrelts Wholesale, Inc., which, in turn, resold it to defendant Abbott Automotive Supply, Inc. Abbott later resold the acid to decedent\u2019s employer, third-party defendant AAA Equipment Service Company, Clarklift of Quincy, Inc.\nPlaintiff filed a complaint against Parks, Garrelts, and Abbott in December 1980. Pursuant to defendants\u2019 motions, her complaint was dismissed but she was given leave to amend. Her first amended complaint was dismissed on her own motion. In December 1983, plaintiff filed a second amended complaint consisting of 14 counts. The following counts were brought separately against each defendant: one count in strict liability in tort alleging the acid was improperly labeled; a second count in strict liability alleging the acid was unreasonably dangerous for its intended purpose; a negligence count; and a count for breach of an implied warranty of merchantability. Additionally, plaintiff brought counts against Abbott alone for oral misrepresentation and breach of an implied warranty of fitness for a particular purpose.\nDefendants filed motions to dismiss various counts of the second amended complaint. The trial court dismissed the second strict liability count against each defendant but granted plaintiff leave to amend these counts. The court dismissed \u201cwith prejudice\u201d the counts based on an implied warranty of merchantability because of a lack of privity. Finally, the court dismissed the last two counts brought against Abbott with prejudice, also for lack of privity.\nThereafter, plaintiff amended her second amended complaint. This complaint contained five counts: count I against Parks based on strict liability in tort, count II against Parks under a negligence theory, count III against Abbott for strict liability, count IV against Abbott under a negligence theory, and count V against Garrelts for strict liability. During the course of the jury trial, plaintiff voluntarily dismissed both Abbott and Garrelts. The jury returned a verdict in favor of Parks. Following the trial, plaintiff again amended her complaint. This complaint contained only a strict liability count and a negligence count, both brought against Parks.\nPlaintiff appeals, contending the trial court erred in dismissing counts from her second amended complaint \u201cwith prejudice.\u201d She maintains section 2 \u2014 318 of the Uniform Commercial Code (Ill. Rev. Stat. 1983, ch. 26, par. 2 \u2014 318) dispenses with any privity requirement under her implied warranty counts. Defendants assert plaintiff waived any objection with regard to the court\u2019s rulings on her second amended complaint by filing a later complaint. The supreme court has recently held that \u201callegations in former complaints, not incorporated in the final amended complaint, are deemed waived.\u201d Foxcroft Townhome Owners Association v. Hoffman Rosner Corp. (1983), 96 Ill. 2d 150,155, 449 N.E.2d 125,127.\nPlaintiff maintains the rule in Foxcroft must be limited to cases where a count is dismissed but leave to replead the count is granted. Plaintiff contends this case is factually distinguishable from Foxcroft because the trial court dismissed counts from her second amended complaint \u201cwith prejudice.\u201d A dismissal with prejudice is tantamount to an adjudication on the merits. (Van Slambrouck v. Marshall Field & Co. (1981), 98 Ill. App. 3d 485, 487, 424 N.E.2d 679, 682.) The trial court, however, need not have added the words \u201cwith prejudice.\u201d All dismissals, other than ones for lack of jurisdiction, improper venue, or failure to join an indispensable party, operate as an adjudication on the merits unless the order or a statute specifies otherwise. 87 Ill. 2d R. 273.\nDespite plaintiff\u2019s contention, we find Foxcroft indistinguishable from the present case. In Foxcroft, members of the Townhome Owners Association brought suit against the builder and developer of their condominiums. The original complaint contained three counts: count I alleged a breach of an implied warranty of habitability; count II asserted a negligence theory; and count III alleged breach of a fiduciary relationship. Pursuant to defendant\u2019s pretrial motion, the court dismissed counts II and III for failure to state a cause of action. The court refused to dismiss count I as to those plaintiffs who purchased directly from defendant, but the court granted the motion as to subsequent purchasers because they were not in privity with defendant. Thus, at least one count in Foxcroft was dismissed on the same grounds on which the counts in this case were dismissed.\nPlaintiffs in Foxcroft thereafter filed an amended complaint. Count I, brought on behalf of original purchasers, alleged breach of an implied warranty of habitability. Count II, also brought on behalf of original purchasers, was based on a negligence theory. Count III asserted the same negligence theory on behalf of subsequent purchasers. On defendant\u2019s motion, the trial court dismissed count III. Plaintiffs later filed a motion for reconsideration of the orders dismissing, as to subsequent purchasers, counts I and II of the original complaint as well as count III of the amended complaint. This motion was denied, indicating the trial court would not have allowed plaintiffs leave to replead those counts.\nOn appeal in Foxcroft, the subsequent purchasers asserted the trial court erred in dismissing counts I and III of the original complaint. The appellate court found the trial court had properly dismissed these counts \u201con the merits.\u201d (Foxcroft Townhome Owners Association v. Hoffman Rosner Corp. (1982), 105 Ill. App. 3d 951, 955-56, 435 N.E.2d 210, 214.) On appeal, the supreme court refused to reach the merits of the issue, holding that plaintiffs had waived any objection to the trial court\u2019s rulings on their original complaint. The court rejected plaintiffs\u2019 contention that the original complaint could be considered on review because they had not manifested an intent to abandon the original counts. The court also declined to follow Enlow v. Illinois Central R.R. Co. (1968), 103 Ill. App. 2d 269, 243 N.E.2d 847, which had held that when a trial court dismissed the original complaint on the merits, indicating it would not accept the theory of the original complaint as stated, plaintiff, in pleading over on the basis suggested by the trial court, does not waive dismissal of the original complaint. Instead, the court decided to adhere to the well-established principle that a party who files an amended pleading waives any objection to the trial court\u2019s ruling on former complaints. Foxcroft Townhome Owners Association v. Hoffman Rosner Corp. (1983), 96 Ill. 2d 150,153-54, 449 N.E.2d 125, 126.\nThe arguments that plaintiff now asserts were rejected in Foxcroft. Moreover, we note the rule in Foxcroft has already been applied when a count in a former complaint was dismissed \u201cwith prejudice.\u201d Kievman v. Edward Hospital (1984), 122 Ill. App. 3d 187, 460 N.E.2d 901.\nFor the foregoing reasons, the judgment of the trial court is affirmed.\nAffirmed.\nGREEN, P.J., and MILLS, J., concur.", "type": "majority", "author": "JUSTICE TRAPP" } ], "attorneys": [ "Richard P. O\u2019Connell, Ltd., of Quincy, for appellant.", "Delmer R. Mitchell and Ted M. Niemann, both of Schmiedeskamp, Robertson, Neu & Mitchell, of Quincy, for appellees Garrelts Wholesale, Inc., and Abbott Automotive Supply, Inc.", "Grady E. Holley, of Holley, Keith & Mehlick, and Carol J. Hansen-Fines, both of Springfield, for appellee Parks Corporation." ], "corrections": "", "head_matter": "JUDITH KINCAID, Adm\u2019r of the Estate of Lonnie G. Kincaid, Deceased, Plaintiff-Appellant, v. PARKS CORPORATION et al., Defendants-Appellees (AAA Equipment Service Company, Clarklift of Quincy, Inc., Third-Party Defendant).\nFourth District\nNo. 4\u201484\u20140336\nOpinion filed April 4, 1985.\nRichard P. O\u2019Connell, Ltd., of Quincy, for appellant.\nDelmer R. Mitchell and Ted M. Niemann, both of Schmiedeskamp, Robertson, Neu & Mitchell, of Quincy, for appellees Garrelts Wholesale, Inc., and Abbott Automotive Supply, Inc.\nGrady E. Holley, of Holley, Keith & Mehlick, and Carol J. Hansen-Fines, both of Springfield, for appellee Parks Corporation." }, "file_name": "0417-01", "first_page_order": 439, "last_page_order": 443 }