THIRD DIVISION

                                  Date Filed: September 30, 2003

No. 1-01-3259

JOHN DEWAN, Indiv. and on Behalf 	    ) Appeal from the

of All Others Similarly Situated,      ) Circuit Court of

                                       ) Cook County.

              Plaintiff-Appellant,     )

                                       )                          

              v.                       ) No. 98 CH 15909          

                                       )

                                       ) Honorable 

FORD MOTOR COMPANY,                    ) Stephen A. Schiller,

                                       ) Judge Presiding.         

              Defendant-Appellee.      ) 		        

     JUSTICE HALL delivered the opinion of the court:

     The plaintiff, John Dewan, appeals from orders of the

circuit court of Cook County dismissing his complaint against the

defendant, Ford Motor Company (Ford), denying him leave to amend

his complaint and denying his motion to set a briefing schedule

and hearing date for his petition for attorney fees.  

     During the pendency of this appeal, Ford filed a motion to

strike those portions of the plaintiff's appellant's brief

dealing with the dismissal of his complaint and the denial of

leave to file an amended complaint on the basis that those

matters were barred by the doctrines of res judicata and/or law of the case.  We ordered Ford's motion taken with the case.

     Ford also raises an issue as to this court's jurisdiction to

hear this appeal.

     For reasons set forth in this opinion, we conclude that we

have jurisdiction of this appeal.  However, we do not reach the

merits of the issues raised by the plaintiff as to the dismissal

of his complaint and the denial of his request to file an amended

complaint because the July 6, 2000, order, denying him leave to file an amended complaint, was not final and appealable in the

absence of a finding pursuant to Supreme Court Rule 304(a) (155

Ill. 2d R. 304(a)).

     The jurisdictional questions raised by this appeal require

that we set forth the procedural history of this case in some

detail.

	Circuit Court Proceedings

     On November 17, 1998, the plaintiff, on behalf of himself

and all others similarly situated, filed suit against Ford,

alleging a breach of the warranty Ford provided to car purchasers

and violations of the Magnuson-Moss Warranty-Federal Trade

Commission Improvement Act (Magnuson-Moss) (15 U.S.C. §2301 et seq. (1994)) and the Illinois Consumer Fraud and Deceptive Business Practices Act (Consumer Act) (815 ILCS 505/1 et seq. (West 1998)).  The case was removed to federal court.  The case was remanded to the circuit court of Cook County on April 13,

1999.  On October 22, 1999, the plaintiff filed his motion for

class certification.  On October 29, 1999, Ford filed motions for

leave to file its motion to dismiss the complaint pursuant to

section 2-619(a)(9) of the Code of Civil Procedure (the Code)

(735 ILCS 5/2-619(a)(9) (West 1998)) and to defer consideration

of the plaintiff's motion for class certification.  On November

2, 1999, the circuit court granted Ford's motion for leave to

file its motion to dismiss and continued generally the motion for

class certification.  

     On February 24, 2000, a hearing was held on Ford's motion to

dismiss.  The arguments at the hearing centered on whether the

plaintiff would be able to prove damages in light of the fact

that the rear sensors on his car had been replaced by Ford.  In

response, the plaintiff maintained that his cause of action

ripened when Ford failed and then refused to repair the defect or

replace the car prior to the suit being filed.  The plaintiff

argued that in a breach of warranty action, the damages are based

on value as warranted less value as received.  The plaintiff's

attorney related that the plaintiff had received an offer from a

Ford dealer to purchase his car for $13,000 less than he had paid

for it six months before.  Therefore, the car the plaintiff

purchased was not worth what he paid because of the defect.  

     The circuit court granted Ford's motion to dismiss.  The

following colloquy then occurred:

	     "THE COURT: Based on the argument, I'm not sure you can

plead around the 2-619 motion.  Or if you wish to, I'll give

you an opportunity to file an amended complaint.  

	      MR. ROBINSON (the plaintiff's attorney): Let me think

about it.  You had mentioned when they brought their motion

that it may be a situation where we would replace the

plaintiff with someone who hasn't had their car fixed.

	      THE COURT: You also need a complaint.

	      Maybe the best thing to do is dismiss it at this point

unless you want to come in on a motion in 30 days to file an amended complaint, which I'll be amendable [sic] to.  But this isn't substituting a defendant [sic].

	      I find this defendant [sic] doesn't have a cause of action based upon what I have before me.  So in any event,

even if you did find a new plaintiff, the plaintiff would

have to allege something more than Mr. Dewan alleged here.

	      MR. ROBINSON: To assist me in determining whether to

amend, the repair negated any damages - -

	      THE COURT: There doesn't appear to be any cognizable

damages here.

	      Prepare an order.  As I said, if you come within 30

days, I'll consider the possibility of allowing an amended

complaint."  

     The February 24, 2000, order of dismissal provided in

pertinent part as follows:

	"PLAINTIFF'S COMPLAINT IS DISMISSED WITH PREJUDICE FOR THE

REASONS STATED IN COURT."  

     On March 23, 2000, the plaintiff filed a motion for leave to

file an amended complaint.  Ford filed an objection to the motion

arguing that because the complaint was dismissed with prejudice,

there was nothing left to amend.  Ford also argued that the

plaintiff's proposed amendments did not resolve the problems that

had resulted in the dismissal of the plaintiff's complaint.  

     On April 26, 2000, the plaintiff presented his motion for

leave to file his amended complaint.  Ford maintained that the circuit court lacked jurisdiction to consider whether the amended

complaint stated a cause of action because the plaintiff had not

filed a proper postjudgment motion challenging the February 24,

2000, order.  Addressing the jurisdictional question, the circuit

court stated as follows:

	     "I indicated that if there was some basis, I might

allow them to amend, and indicated that within the 30 day

period that I retain jurisdiction, I would consider such a

motion.  They say they filed such a motion within 30 days. 

So it is consistent with my holding."  

Ford's attorney also represented to the court that at the time

the dismissal order was drafted, the plaintiff's attorney

preferred that the dismissal be with prejudice because he

intended to appeal the decision immediately.  The circuit court

then stated as follows:

	     "I will decide that question now.  I have jurisdiction.

	      I think it is clear on the record I indicated that if

he filed within 30 days, I would consider granting him the

opportunity to file a new complaint.

	      With prejudice is to allow a party to attempt to

express a cause of action until it becomes abundantly clear

they can't do so.  They really haven't filed that much. 

They haven't made that much effort in that respect."  

     On July 6, 2000, a hearing was held on the plaintiff's

motion for leave to file an amended complaint.  Ford argued that even though the plaintiff's amended complaint included two new

factual allegations relating to the diminished value of his car

and two new legal counts, breach of promise to repair and

injunctive relief, these allegations and theories had previously

been raised and dealt with in the hearing on Ford's motion to

dismiss.  Ford also argued that the plaintiff could not now seek

injunctive relief because he sought only legal remedies in his

original complaint.  

     In response, the plaintiff maintained that Ford was still in

breach of its warranty because it had not replaced all of the

sensors, even though the front sensors had not yet caused a

problem.  The plaintiff argued that he had pleaded damages

because Ford had sold him a car with defects, making the car not

worth its purchase price.  The plaintiff sought injunctive relief

to force Ford to inform other car purchasers of the defective

sensors so that they could be replaced prior to the expiration of

the warranty period.  

     Based on section 2-619, the circuit court denied the motion

for leave to amend the complaint, finding that the plaintiff had

failed to plead any real cognizable damages. 

     The plaintiff's attorney informed the court that he intended

to file a petition for attorney fees, since the plaintiff's car

was not repaired until after he filed suit.  The court responded,

"I think you can do that."  The plaintiff's request for a finding

pursuant to Rule 304(a) was denied because the circuit court believed that there was nothing else pending. 

     On August 3, 2000, the plaintiff filed a petition for

attorney fees pursuant to the Consumer Act and Magnuson-Moss. 

Then, on August 7, 2000, the plaintiff filed a notice of appeal

from the circuit court's orders of February 24, 2000, dismissing

his original complaint and July 6, 2000, denying leave to amend

his complaint.  On September 13, 2000, the circuit court entered

an order continuing generally the plaintiff's petition for

attorney fees.  

	Appellate Court Proceedings  

     Ford filed a motion to dismiss the plaintiff's appeal for

lack of appellate jurisdiction.  Ford contended that the

plaintiff's August 7, 2000, notice of appeal was untimely since

the plaintiff's complaint was dismissed with prejudice on

February 24, 2000, and that a motion for leave to file an amended

complaint did not extend the time for filing the notice of

appeal.  In addition, Ford argued that the circuit court had no

jurisdiction to enter the July 6, 2000, order since the court had

lost jurisdiction 30 days after the entry of the February 24,

2000, order.  

     On January 4, 2001, this court entered an order granting

Ford's motion and dismissed the plaintiff's appeal.

     The plaintiff filed a petition for rehearing requesting that

this court provide a basis for its dismissal of his appeal.  The

plaintiff argued, inter alia, that the February 24, 2000, order was not a final order because the circuit court had indicated

that he could file an amended complaint.  He further argued that,

because his claim for attorney fees had not yet been ruled on,

his notice of appeal was actually premature, rather than late.   

     On January 26, 2001, this court entered an order requiring

Ford to file a response to the petition for rehearing.  On

February 8, 2001, this court denied the plaintiff's petition for

rehearing.  

     Thereafter, the plaintiff's request for a supervisory order

from the Illinois Supreme Court and his petition for leave to

appeal were denied.

	Subsequent Circuit Court Proceedings

     On August 7, 2001, the plaintiff, having re-noticed his

petition for attorney fees, appeared before the circuit court and

requested that the court set a briefing schedule and a hearing

date.  Ford opposed the motion, citing this court's dismissal of

the plaintiff's appeal.  In light of this court's dismissal of

the appeal, the circuit court denied the plaintiff's motion for

lack of jurisdiction.    

     The plaintiff filed his notice of appeal on August 30, 2001.

			ANALYSIS

	I. Appellate Jurisdiction

	A. Standard of Review

     A dismissal based upon lack of jurisdiction is subject to de novo review where the facts are not in dispute.  In re Marriage of Wiseman, 316 Ill. App. 3d 631, 634-35, 737 N.E.2d 325, 329 (2000).  In this case, the facts as to the jurisdictional issue

raised are not in dispute.  

	B. Discussion

     Ford contends that this court lacks jurisdiction of the

plaintiff's present appeal because the plaintiff failed to file

his notice of appeal within 30 days of the circuit court's

February 24, 2000, order, which, Ford maintains, was final and

appealable.       

     An order is final and appealable if it terminates the

litigation between the parties on the merits or disposes of the

rights of the parties either on the entire controversy or a

separate part thereof.  Blott v. Hanson, 283 Ill. App. 3d 656, 660, 670 N.E.2d 345, 348 (1996).  

     The effect of a dismissal order is determined by its

substance and not by the incantation of any particular magic

words, and therefore, a trial court's description of a final

judgment as being "'without prejudice'" is of no greater logical

effect than a trial court's statement that a nonfinal dismissal

judgment is "'with prejudice.'"   Schal Bovis, Inc. v. Casualty Insurance Co., 314 Ill. App. 3d 562, 568, 732 N.E.2d 1082, 1087 (1999).  Whether a trial court's dismissal order is final is not

a function of its words but of its effect.  Schal Bovis, Inc., 314 Ill. App. 3d at 568, 732 N.E.2d at 1087.  If the dismissal is

because of a deficiency that could be cured by a simple technical amendment, the order is not the subject of appeal.  On the other

hand, if the dismissal is because of a perceived substantive

legal deficiency, the dismissal order is final.  Schal Bovis, Inc., 314 Ill. App. 3d at 568, 732 N.E.2d at 1087-88.  

     The orders of the trial court must be interpreted from the

entire context in which they were entered, with reference to

other parts of the record including the pleadings, motions and

issues before the court and the arguments of counsel.  P&A Floor Co. v. Burch, 289 Ill. App. 3d 81, 88, 682 N.E.2d 107, 111 (1997).  Orders must be construed in a reasonable manner so as to

give effect to the apparent intention of the trial court.  P&A Floor Co., 289 Ill. App. 3d at 88-89, 682 N.E.2d at 111; see also People v. Ryan, 259 Ill. App. 3d 611, 614, 631 N.E.2d 348, 351 (1994) ("[c]ollectively, the context in which the trial judge

ruled, the issues he was deciding, and the judge's own

observations about the defendant's motion demonstrate that he did

not intend his order to be a final adjudication on the merits").

     In the present case, the circuit court was asked to rule on

Ford's section 2-619(a)(9) motion.  

     Section 2-615 motions (735 ILCS 5/2-615 (West 1998)) and

section 2-619 motions differ in that the former attack the

sufficiency of the complaint and the latter, while admitting the

legal sufficiency of the complaint, raise defects, defenses or

other affirmative matter appearing on the face of the complaint

or established by external submissions which defeat the action.  Joseph v. Chicago Transit Authority, 306 Ill. App. 3d 927, 930, 715 N.E.2d 733, 736 (1999).  

     The affirmative matter asserted by Ford in this case was the

fact that the plaintiff's car had been repaired and, therefore,

the plaintiff could not prove damages, a necessary element of his

cause of action. 

     Nonetheless, the record in the instant case demonstrates

that the circuit court intended that the plaintiff have an

opportunity to amend the complaint.1  This was not a case where the plaintiff had not sustained damages as a matter of law but,

rather, the damages that he had alleged at that point had been

resolved by the repair.  In his amended complaint, the plaintiff

again pleaded the diminished value of the car but now alleged as

the basis for the diminished value of his car the sensors that

Ford did not replace.  Thus, the plaintiff's failure to plead

damages beyond those resolved by the repair, which resulted in

the dismissal of his complaint, was a deficiency that could be

cured by a simple technical amendment, i.e., by pleading additional facts supporting his damages claim.  Therefore, the

fact that the order provided that the dismissal was "with

prejudice" did not make the order final and appealable when it

was entered.  See Schal Bovis, Inc., 314 Ill. App. 3d at 568, 732 N.E.2d at 1087-88. 

     Ford maintains, however, that the "with prejudice" language

was inserted in the order at either the plaintiff's request or at

least with his consent.  However, because the effect of the order

is determined by its substance, regardless of who added the "with

prejudice" language, the order was nonfinal for purposes of

appeal.

     We conclude that the plaintiff's failure to file an appeal

within 30 days of the entry of the February 24, 2000, order does

not deprive this court of jurisdiction of the plaintiff's appeal

in this case.

	II.  Res Judicata 

     Ford then contends that in the plaintiff's prior appeal,

this court determined that his appeal was late and, therefore,

the issues as to the dismissal of the complaint and denial of

leave to amend are barred by the doctrines of res judicata and law of the case.  

	A. Res Judicata

     The doctrine of res judicata is that a cause of action may not be relitigated by the same parties or those in privity with

them in a subsequent proceeding before the same or any other tribunal, except as the judgment may be brought before a court of

appellate jurisdiction for review in the manner provided by law.  People v. Kidd 398 Ill. 405, 410, 75 N.E.2d 851, 854 (1947).

     Ford contends that this court's dismissal of the plaintiff's

prior appeal was due to the fact the February 24, 2000, order was

a final order, and the plaintiff failed to file a timely appeal

from that order.  Ford reasons that, by its dismissal order of

January 4, 2002, this court has already determined that it could

not address the correctness of the circuit court's orders of

February 24, 2000, and July 6, 2000.

     This court's order did not set forth the specific

jurisdictional defect requiring the dismissal of the plaintiff's

prior appeal.  Nonetheless, Ford maintains that because our

January 4, 2001, order specified that this court was granting

Ford's motion to dismiss, this court must have dismissed the

plaintiff's original appeal on the basis cited in Ford's motion,

namely, that the plaintiff's notice of appeal was filed too late. 

We disagree.

     Inasmuch as we have determined that the February 24, 2000,

order was not a final order because the plaintiff was allowed to

amend his complaint, the plaintiff's appeal was not filed too

late but, in fact, was filed prematurely.

     In this case, the plaintiff requested attorney fees in his

complaint.  When the circuit court denied the plaintiff's motion

for leave to amend his complaint on July 6, 2000, it also denied the plaintiff's request for a finding pursuant to Supreme Court

Rule 304(a) (155 Ill. 2d R. 304(a)).  The plaintiff's attorney

informed the court that he intended to file a petition for

attorney fees.  On August 3, 2000, the plaintiff filed his

petition for attorney fees pursuant to the Consumer Act and

Magnuson-Moss.  On August 7, 2000, without waiting for the

circuit court to rule on the petition for attorney fees, the

plaintiff filed his notice of appeal.  

     A request for attorney fees is a claim within the meaning of

Supreme Court Rule 304(a) (155 Ill. 2d R. 304(a)).  Brown & Kerr, Inc. v. American Stores Properties, Inc. 306 Ill. App. 3d 1023, 1028, 715 N.E.2d 804, 808 (1999).  This is so whether the fees

are sought pursuant to statute, such as the entry of sanctions

for false pleadings, or pursuant to a contract provision.  Brown & Kerr, Inc., 306 Ill. App. 3d at 1028, 715 N.E.2d at 808-09.  

     "[I]f a trial court has jurisdiction to hear a claim for fees, any other judgment entered in the case before the claim for fees is ruled upon is or becomes nonfinal and nonappealable when

the claim for fees is made, unless the prior judgment contains

the language set forth in [Rule 304(a)], that there is no just

reason to delay enforcement or appeal."  (Emphasis in original.) 

F.H. Prince & Co. v. Towers Financial Corp., 266 Ill. App. 3d 977, 983-84, 640 N.E.2d 1313, 1317 (1994). 

     However, a claim for attorney fees is not a posttrial motion

within the ambit of sections 2-1202 and 2-1203 of the Code of Civil Procedure (735 ILCS 5/2-1202, 2-1203 (West 2000)), nor,

even if viewed as a motion to modify the judgment, is it a

posttrial motion "'directed against the judgment'" within the

meaning of Supreme Court Rule 303(a) (155 Ill. 2d R. 303(a)). 

Brown & Kerr, Inc., 306 Ill. App. 3d at 1028, 715 N.E.2d at 809.  

     Our courts have recognized a distinction between a claim for

fees that is brought as part of a principle action and a claim

made after the principal action has been decided.  Servio v. Paul Roberts Auto Sales, Inc., 211 Ill. App. 3d 751, 759, 570 N.E.2d 662, 666 (1991).  In the latter situation, a Rule 304(a) finding

is not required.  Servio, 211 Ill. App. 3d at 759, 570 N.E.2d at 666. 

     In Servio, the court determined that the defendants' motion for attorney fees pursuant to the Consumer Act was not a

posttrial motion and did not need to be resolved before the last

posttrial motion was disposed of for the purposes of Rule 303. 

Servio, 211 Ill. App. 3d at 758, 570 N.E.2d at 666.  The court noted that in construing similar federal statutes, the federal

courts generally interpreted attorney fee claims under those

statutes as collateral and not affecting the finality or

appealability of the judgment in the principal action.  Servio, 211 Ill. App. 3d at 760, 570 N.E.2d at 667.   However, if the

judgment sought includes an order to pay attorney fees but leaves

the calculation for a later date, the judgment is not final for

purposes of federal appellate jurisdiction.  Servio, 211 Ill. App. 3d at 760, 570 N.E.2d at 667.

    The court also determined that a Rule 304(a) finding was not

necessary in the case before it, explaining as follows:

	"If the defendant raises his claim as a counterclaim, it

must be resolved or a Rule 304(a) finding must be entered

before the order disposing of the plaintiff's claim is

appealable.  In contrast, if the defendant brings his claim

as a separate action, the trial court's failure to rule on

the motion will not prevent the order disposing of the

original claim from being appealable without a Rule 304(a)

finding."  Servio, 211 Ill. App. 3d at 759, 570 N.E.2d at 667, relying on Hise v. Hull, 116 Ill. App. 3d 681, 684-85, 452 N.E.2d 372, 375 (1983).2

See also Brown & Kerr, Inc., 306 Ill. App. 3d at 1029, 715 N.E.2d at 809 (both the complaint and counterclaim raised attorney fee

claims, and the failure to dispose of the claims rendered the

judgment order nonfinal for purposes of appeal in the absence of

Rule 304(a) language).  

     In the case before us, the plaintiff made a claim for fees in his complaint.  Thus this case differs from Servio in that in Servio, the defendants did not make a claim for attorney fees until after the judgment had been entered, while in the present

case, the plaintiff made a claim for attorney fees in his

complaint.3

     Because the plaintiff had raised the claim for attorney fees

in his complaint, the July 6, 2000, judgment was nonfinal and

nonappealable until after the resolution of the plaintiff's

request for attorney fees.

     In the absence of a Rule 304(a) finding, the July 6, 2000,

order was not appealable, because of the pending attorney fees

issue.  Lacking jurisdiction of the plaintiff's prior appeal because it was premature, not because it was late, we were

required to dismiss that appeal.  

     Since the plaintiff's prior appeal was premature, this court's order of January 4, 2001, dismissing the appeal was not a

final judgment or decree upon the merits, since the plaintiff

could appeal those issues once he received a final and appealable

order.  

     Therefore, the doctrine of res judicata does not bar review of the orders of February 24, 2000, and July 6, 2000.

	B.  Law of the Case

     "Under the law of the case doctrine:

	          '[A] legal decision made at one stage of      

litigation, unchallenged in a subsequent appeal when      

the opportunity to do so existed, becomes the law of      

the case for future stages of the same litigation, and      

the parties are deemed to have waived the right to      

challenge that decision at a later time.  [Citations.]       

The doctrine encompasses a court's explicit decisions,      

as well as those issues decided by necessary      

implication.' [Citation.]"  Aardvark Art, Inc.  v.             Lehigh/Steck-Warlick, Inc., 284 Ill. App. 3d 627, 632-        33, 672 N.E.2d 1271, 1276 (1996).

"'The law of the case doctrine provides that a question of law

decided on a previous appeal is binding on the trial court on

remand as well as the appellate court on a subsequent appeal.'

[Citation.]"  Aardvark Art, Inc., 284 Ill. App. 3d at 633, 627 N.E.2d at 1276.

     However, "'invoking the law of the case might still not preclude reconsideration of an earlier judge's order if the facts

before the court changed or error or injustice were manifest.'

[Citation.]"  Aardvark Art, Inc., 284 Ill. App. 3d at 633, 627 N.E.2d at 1276.

     Although this court did not state the basis for the January

4, 2001, dismissal of the plaintiff's prior appeal, we have now

determined that plaintiff's prior appeal was premature in the

absence of a Rule 304(a) finding.  We decided no other issues of

law in dismissing the appeal, and therefore, the law of the case

doctrine does not bar the present appeal.

	III.   Circuit Court's Dismissal for Lack of Jurisdiction   

     The circuit court ruled that it lacked jurisdiction to rule

on the plaintiff's petition for attorney fees in light of this

court's dismissal of the plaintiff's original appeal.  Given our

conclusion that the plaintiff's prior appeal was premature,

rather than late, the circuit court's determination that it

lacked jurisdiction to rule on the plaintiff's fee petition was

error.  Because the plaintiff's first appeal was dismissed as

premature, the plaintiff may ultimately seek review of the issues

as to the dismissal of his complaint and the denial of leave to

amend. 

	IV. Conclusion

	     In summary, we conclude that the February 24, 2000, order,

was a nonfinal order and therefore, the plaintiff's failure to

appeal from that order did not deprive this court of jurisdiction of either the plaintiff's prior or present appeal.  We further

conclude that the plaintiff's August 7, 2000, notice of appeal

was premature, rather than late, due to the pendency of his

attorney fee claim and in the absence of a Rule 304(a) finding.

Neither res judicata nor the law of the case doctrine bars the ultimate consideration of the dismissal of the plaintiff's

complaint and the denial of leave to amend.  Finally, we conclude

that the circuit court's order dismissing the plaintiff's

petition for attorney fees for lack of jurisdiction was error.

     The July 6, 2000, order was not a final and appealable

order, because the plaintiff's claim for attorney fees was

pending, and in the absence of a Rule 304(a) finding, the issues

raised by plaintiff in this appeal are not yet properly before

us.  See F.H. Prince & Co., 266 Ill. App. 3d at 992-93, 640 N.E.2d at 1323.

     We deny Ford's motion to strike.  The judgment of the

circuit court is reversed, and the cause is remanded for a

hearing on the plaintiff's petition for attorney fees or, in the

alternative, for a Rule 304(a) finding. 

     Reversed and remanded with directions.

     SOUTH and WOLFSON, JJ., concur.

.