Kincaid v. Parks Corp.

• Decision Date: 04 April 1985
• Docket Number: No. 4-84-0336,4-84-0336
• Citation: 477 N.E.2d 68,132 Ill.App.3d 417,87 Ill.Dec. 467
• Parties: , 87 Ill.Dec. 467 Judith KINCAID, Administrator of the Estate of Lonnie G. Kincaid, deceased, Plaintiff-Appellant, v. PARKS CORPORATION, Garrelts Wholesale, Inc., and Abbott Automotive Supply, Inc., Defendants-Appellees, v. AAA EQUIPMENT SERVICE COMPANY, Clarklift of Quincy, Inc., Third Party Defendant.
• Court: United States Appellate Court of Illinois

Page 68

477 N.E.2d 68

132 Ill.App.3d 417, 87 Ill.Dec. 467

Judith KINCAID, Administrator of the Estate of Lonnie G.

Kincaid, deceased, Plaintiff-Appellant, v. PARKS CORPORATION, Garrelts Wholesale, Inc., and Abbott

Automotive Supply, Inc., Defendants-Appellees, v. AAA EQUIPMENT SERVICE COMPANY, Clarklift of Quincy, Inc.,

Third Party Defendant.

No. 4-84-0336.

Appellate Court of Illinois,

Fourth District.

April 4, 1985.

Richard P. O'Connell, Ltd., Quincy, for plaintiff-appellant.

Delmer R. Mitchell, Ted M. Niemann, Schmiedeskamp, Robertson, Neu & Mitchell, Quincy, for Garrelts Wholesale and Abbott Automotive Supply.

Grady E. Holley, Holley, Keith & Mehlick, Carol J. Hansen-Fines, Springfield, for Parks Corp.

TRAPP, Justice:

Plaintiff Judith Kincaid brought this wrongful death action as administrator of her husband's 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's employer, third-party defendant AAA Equipment Service Company, Clarklift of Quincy, Inc.

Plaintiff filed a complaint against Parks, Garrelts, and Abbott in December 1980. Pursuant to defendants' 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.

Defendants 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 "with prejudice" 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.

Thereafter, 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.

Plaintiff appeals, contending the trial court erred in dismissing counts from her second amended complaint "with prejudice." She maintains section 2-318 of the Uniform Commercial Code (Ill.Rev.Stat.1983, ch. 26, par. 2-318) dispenses with any privity requirement under her implied warranty counts. Defendants assert plaintiff waived any objection with regard to the court's rulings on her second amended complaint by filing a later complaint. The supreme court has recently held that "allegations in former complaints, not incorporated in the final amended complaint, are deemed waived." Foxcroft Townhome Owners Association v. Hoffman Rosner Corp. (1983), 96 Ill.2d 150, 155, 70 Ill.Dec. 251, 253, 449 N.E.2d 125, 127.

Plaintiff 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 "with prejudice." 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, 53 Ill.Dec. 888, 891, 424 N.E.2d 679, 682.) The trial court, however, need not have added the words "with prejudice." All dismissals, other than ones for lack of jurisdiction, improper venue, or failure to join an indispensible party, operate as an adjudication on the merits unless the order or a statute specifies otherwise. 87 Ill.2d R. 273.

Despite plaintiff's contention, we find Foxcroft indistinguishable from the present case. In Foxcroft, members of the Townhome Owners Association brought suit against the builder and...