However, the fee is not absolute, but it is burdened with the offer of dedication which has been made but not accepted. 120 Ill. App.3d at 672. Plaintiff contends that, since Fernwood Drive was platted as a road, he has the right to have it remain open for his use and that of the public, regardless of whether the county accepted the offer of dedication. ( Bond v. Dunmire (1984), 129 Ill. App.3d 796, 811.) In Bond v. Dunmire, the court discussed at great length the case of Welter v. Eaton (1937), 366 Ill. 143.

Under both Illinois and federal law, a dismissal for failure to state of claim operates as a disposition on the merits for res judicata purposes. See Federated Dep't Stores, Inc. v. Moitie, 452 U.S. 394, 399 n. 3 (citing Angel v. Bullington, 330 U.S. 183, 190 (1947), and Bell v. Hood, 327 U.S. 678 (1946)); Ryburn v. People, 811 N.E.2d 1209, 1212 (Ill. App. Ct. 2004) (citing Bond v. Dunmire, 473 N.E.2d 78, 82 (Ill. 1984)).

134 Ill.2d R. 273; Downing, 162 Ill.2d at 75. While the inclusion of " without prejudice" in an order signals the circuit court's intent to allow a plaintiff to refile an action (see Bond v. Dunmire, 129 Ill. App.3d 796, 802 (1984)), the inclusion of "with prejudice" in an order does not, alone, trigger Rule 273. The appellate majority next concluded that the United States Supreme Court's interpretation of Federal Rule of Civil Procedure 41(b) (Fed.R.Civ.P. 41(b)), from which we derived Rule 273 ( Towns v. Yellow Cab Co., 73 Ill.2d 113, 125 (1978)), should control interpretation of our Rule 273. 286 Ill. App.3d at 35.

The real estate sales contract at issue is attached as an exhibit to Kritt's petition to modify or vacate; thus, it is part of the pleadings. (See, e.g., Bond v. Dunmire (1984), 129 Ill. App.3d 796, 804, 473 N.E.2d 78, 84.) This contract provides that Kritt is to receive 6% of the sale price as a commission. The Stein defendants maintain that no commission is due because no sale occurred and the parties settled their dispute, thereby rescinding the contract.

Consequently, as the same facts and evidence are essential to the maintenance of both claims, there is then identity between them and the doctrine of res judicata necessarily takes effect. ( Morris v. Union Oil Co. (1981), 96 Ill. App.3d 148, 421 N.E.2d 278; see also Bond v. Dunmire (1984), 129 Ill. App.3d 796, 473 N.E.2d 78.) Therefore, we find this case to be moot as no decision we might issue would afford plaintiff any relief in light of the final judgment of the circuit court which rendered this action res judicata.

The parties submitted numerous pleadings from the Federal lawsuit which contained allegations that were relevant (though not directly on point) to the issue of forum non conveniens. It was not improper for the trial court to consider the facts alleged in those pleadings. (See Bond v. Dunmire (1984), 129 Ill. App.3d 796, 804, 473 N.E.2d 78, 84; Ill. Rev. Stat. 1989, ch. 110, par. 2-606.) The record indicates that the various factors of a forum non conveniens analysis were discussed at the initial hearing and the hearing on the motion to vacate.

• 1 Counts I and II were dismissed with prejudice on September 20, 1985, when an order of dismissal was entered that failed to specify that dismissal was without prejudice or that plaintiff was granted leave to amend. Plaintiff bears the burden of persuading the circuit court either to include a specification that the dismissal is without prejudice or to permit an amendment if he wishes to plead over. ( Illinois Municipal League v. Illinois State Labor Relations Board (1986), 140 Ill. App.3d 592, 488 N.E.2d 1040; Bond v. Dunmire (1984), 129 Ill. App.3d 796, 473 N.E.2d 78.) Where plaintiff does neither, Supreme Court Rule 273 (107 Ill.2d R. 273) states that an involuntary dismissal operates as an adjudication on the merits. Thus, the September 20 order was a final order where it did not state that dismissal was without prejudice and it did not grant leave to amend.

At first glance there appears to be validity to plaintiff's assertion that the two causes of action in question are different. Upon closer examination, however, we are of the opinion that the two actions must be regarded as the same and that the Cook County judgment is res judicata of the claims plaintiff seeks to litigate here. In Builders Plumbing Supply Co. v. Zambetta (1986), 143 Ill. App.3d 188, 192, and Lester v. Arlington Heights Federal Savings Loan Association (1985), 130 Ill. App.3d 233, 238, this court recently said that the test for determining when two causes of action are the same is whether they are based upon the same facts or whether the same evidence would be necessary to sustain both actions. This test has been employed in numerous other cases. E.g., Bond v. Dunmire (1984), 129 Ill. App.3d 796, 800; Edwards v. City of Quincy (1984), 124 Ill. App.3d 1004, 1011; Village of Northbrook v. County of Cook (1980), 88 Ill. App.3d 745, 750; Pierog v. H.F. Karl Contractors, Inc. (1976), 39 Ill. App.3d 1057, 1061. In the case before us, plaintiff's second amended complaint against Northbrook contains the same factual allegations of forgery and lack of notice regarding the loans, defaults and foreclosure proceedings that plaintiff raised in her petition for equitable redemption in Cook County.