JUSTICE STEIGMANN
delivered the opinion of the court:
In November 2000, plaintiff, Randell L.D. Smith, filed a complaint against defendants, the Central Illinois Regional Airport (Airport), the Prairie Aviation Museum, and the Pantagraph, alleging that an annual air show sponsored and operated by defendants (1) created a nuisance (count I), (2) constituted a trespass upon Smith’s property (count II), and (3) amounted to an inverse condemnation of his property (count III). Count I of the complaint sought to enjoin defendants from operating the annual air show, and counts II and III sought to recover damages arising from the air show.
In February 2001, the trial court dismissed count III with leave to amend and counts I and II with prejudice. In April 2001, Smith brought an interlocutory appeal under Supreme Court Rule 307(a) (188 Ill. 2d R. 307(a)), challenging the court’s dismissal of count I.
Later in April 2001, Smith filed a motion to voluntarily dismiss count III. Following a May 2001 hearing, the trial court denied Smith’s motion. Smith appealed the court’s denial of his motion, and this court dismissed the appeal for lack of jurisdiction (Smith v. Central Illinois Regional Airport, No. 4 — 01 — 0388 (January 30, 2002) (unpublished order under Supreme Court Rule 23)).
After this court’s mandate issued, Smith filed an amended motion to voluntarily dismiss count III. Following an April 2002 hearing, the trial court denied the motion.
Smith appeals the trial court’s denial of his motion to voluntarily dismiss count III, and we affirm.
I. BACKGROUND
In November 2000, Smith filed a complaint against defendants, alleging in count III that the Airport’s operation of an annual air show amounted to an inverse condemnation of his property.
In December 2000, defendants filed separate motions to dismiss the complaint under section 2 — 615 of the Code of Civil Procedure (Code) (735 ILCS 5/2 — 615 (West 1998)). The Airport’s motion alleged, in pertinent part, that count III failed to allege sufficient facts to establish a claim for inverse condemnation. On February 27, 2001, the trial court (1) dismissed count III with leave to amend within 60 days, and (2) dismissed counts I and II with prejudice, upon finding that those claims were preempted by federal statutory laws and regulations.
In April 2001, Smith brought an interlocutory appeal under Supreme Court Rule 307(a) (188 Ill. 2d R. 307(a)), arguing that the trial court erred by dismissing count I of his complaint. In October 2001, this court affirmed the trial court’s judgment in an unpublished order (Smith v. Central Illinois Regional Airport, No. 4 — 01 — 0168 (October 1, 2001) (unpublished order under Supreme Court Rule 23)).
On April 12, 2001, while his appeal was still pending, Smith filed a motion to voluntarily dismiss count III. Following a May 2001 hearing, the trial court denied Smith’s motion.
Smith later filed a notice of appeal from the trial court’s (1) February 2001 order dismissing count III with leave to amend, and (2) May 2001 order denying his motion to voluntarily dismiss count III. In January 2002, this court dismissed the appeal for lack of jurisdiction (Smith v. Central Illinois Regional Airport, No. 4 — 01 — 0388 (January 30, 2002) (unpublished order under Supreme Court Rule 23)).
After this court’s mandate issued, Smith filed an amended motion to voluntarily dismiss count III of his complaint. Following an April 2002 hearing, the trial court denied Smith’s motion as moot, upon finding that (1) the court had previously dismissed Smith’s complaint with leave to amend within 60 days in its February 27, 2002, order; and (2) Smith had failed to amend his complaint within that time period. The court thus dismissed count III with prejudice.
This appeal followed.
II. ANALYSIS
Smith argues that the trial court erred by denying his motion to voluntarily dismiss count III without prejudice because he had an unfettered right to voluntarily dismiss that count, pursuant to section 2 — 1009(a) of the Code (735 ILCS 5/2 — 1009(a) (West 2000)). We disagree.
Section 2 — 1009(a) of the Code provides, in pertinent part, that a plaintiff “may, at any time before trial or hearing begins, *** dismiss his or her action or any part thereof as to any defendant, without prejudice” (735 ILCS 5/2 — 1009(a) (West 2000)). That provision is subject to two qualifications: (1) when a previously filed defense motion could result in a final disposition of the cause of action if ruled upon favorably by the trial court, the court may hear and decide that motion before ruling on the plaintiffs motion for voluntary dismissal (735 ILCS 5/2 — 1009(b) (West 2000)); and (2) when the circumstances of the case are such that dismissal under section 2 — 1009 would directly conflict with a supreme court rule, the rule takes precedence (Morrison v. Wagner, 191 Ill. 2d 162, 165, 729 N.E.2d 486, 488 (2000)).
In this case, the trial court entered its February 2001 written order dismissing count III of Smith’s complaint with leave to amend within 60 days. Thus, Smith’s April 2001 motion to voluntarily dismiss count III was a nullity because there was no count III to voluntarily dismiss. Once the court dismissed count III, Smith either could have amended that count or accepted the court’s dismissal. See Cole v. Hoogendoorn, Talbot, Davids, Godfrey, & Milligan, 325 Ill. App. 3d 1152, 1155-56, 759 N.E.2d 110, 113-14 (2001) (discussing a plaintiffs options following the trial court’s dismissal with leave to amend). However, he could not seek to voluntarily dismiss count III. Simply put, no matter how unfettered the right to voluntarily dismiss one’s claim, such a claim must exist before it can be dismissed. Accordingly, we conclude that the trial court did not err by denying Smith’s motion to voluntarily dismiss count III.
In so concluding, we acknowledge that the Fifth District Appellate Court in Bailey v. State Farm Fire & Casualty Co., 137 Ill. App. 3d 155, 484 N.E.2d 522 (1985), reached the opposite conclusion. In that case, the plaintiff filed an amended complaint for declaratory judgment, and the defendant later filed a motion to dismiss the complaint. The trial court granted the defendant’s motion and gave the plaintiff leave to amend her complaint within 28 days. The defendant later filed another motion to dismiss the plaintiffs complaint, alleging that the plaintiff had failed to amend her complaint. The plaintiff then filed a motion to voluntarily dismiss her complaint, which the court later granted. Bailey, 137 Ill. App. 3d at 157, 484 N.E.2d at 523-24.
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JUSTICE STEIGMANN
delivered the opinion of the court:
In November 2000, plaintiff, Randell L.D. Smith, filed a complaint against defendants, the Central Illinois Regional Airport (Airport), the Prairie Aviation Museum, and the Pantagraph, alleging that an annual air show sponsored and operated by defendants (1) created a nuisance (count I), (2) constituted a trespass upon Smith’s property (count II), and (3) amounted to an inverse condemnation of his property (count III). Count I of the complaint sought to enjoin defendants from operating the annual air show, and counts II and III sought to recover damages arising from the air show.
In February 2001, the trial court dismissed count III with leave to amend and counts I and II with prejudice. In April 2001, Smith brought an interlocutory appeal under Supreme Court Rule 307(a) (188 Ill. 2d R. 307(a)), challenging the court’s dismissal of count I.
Later in April 2001, Smith filed a motion to voluntarily dismiss count III. Following a May 2001 hearing, the trial court denied Smith’s motion. Smith appealed the court’s denial of his motion, and this court dismissed the appeal for lack of jurisdiction (Smith v. Central Illinois Regional Airport, No. 4 — 01 — 0388 (January 30, 2002) (unpublished order under Supreme Court Rule 23)).
After this court’s mandate issued, Smith filed an amended motion to voluntarily dismiss count III. Following an April 2002 hearing, the trial court denied the motion.
Smith appeals the trial court’s denial of his motion to voluntarily dismiss count III, and we affirm.
I. BACKGROUND
In November 2000, Smith filed a complaint against defendants, alleging in count III that the Airport’s operation of an annual air show amounted to an inverse condemnation of his property.
In December 2000, defendants filed separate motions to dismiss the complaint under section 2 — 615 of the Code of Civil Procedure (Code) (735 ILCS 5/2 — 615 (West 1998)). The Airport’s motion alleged, in pertinent part, that count III failed to allege sufficient facts to establish a claim for inverse condemnation. On February 27, 2001, the trial court (1) dismissed count III with leave to amend within 60 days, and (2) dismissed counts I and II with prejudice, upon finding that those claims were preempted by federal statutory laws and regulations.
In April 2001, Smith brought an interlocutory appeal under Supreme Court Rule 307(a) (188 Ill. 2d R. 307(a)), arguing that the trial court erred by dismissing count I of his complaint. In October 2001, this court affirmed the trial court’s judgment in an unpublished order (Smith v. Central Illinois Regional Airport, No. 4 — 01 — 0168 (October 1, 2001) (unpublished order under Supreme Court Rule 23)).
On April 12, 2001, while his appeal was still pending, Smith filed a motion to voluntarily dismiss count III. Following a May 2001 hearing, the trial court denied Smith’s motion.
Smith later filed a notice of appeal from the trial court’s (1) February 2001 order dismissing count III with leave to amend, and (2) May 2001 order denying his motion to voluntarily dismiss count III. In January 2002, this court dismissed the appeal for lack of jurisdiction (Smith v. Central Illinois Regional Airport, No. 4 — 01 — 0388 (January 30, 2002) (unpublished order under Supreme Court Rule 23)).
After this court’s mandate issued, Smith filed an amended motion to voluntarily dismiss count III of his complaint. Following an April 2002 hearing, the trial court denied Smith’s motion as moot, upon finding that (1) the court had previously dismissed Smith’s complaint with leave to amend within 60 days in its February 27, 2002, order; and (2) Smith had failed to amend his complaint within that time period. The court thus dismissed count III with prejudice.
This appeal followed.
II. ANALYSIS
Smith argues that the trial court erred by denying his motion to voluntarily dismiss count III without prejudice because he had an unfettered right to voluntarily dismiss that count, pursuant to section 2 — 1009(a) of the Code (735 ILCS 5/2 — 1009(a) (West 2000)). We disagree.
Section 2 — 1009(a) of the Code provides, in pertinent part, that a plaintiff “may, at any time before trial or hearing begins, *** dismiss his or her action or any part thereof as to any defendant, without prejudice” (735 ILCS 5/2 — 1009(a) (West 2000)). That provision is subject to two qualifications: (1) when a previously filed defense motion could result in a final disposition of the cause of action if ruled upon favorably by the trial court, the court may hear and decide that motion before ruling on the plaintiffs motion for voluntary dismissal (735 ILCS 5/2 — 1009(b) (West 2000)); and (2) when the circumstances of the case are such that dismissal under section 2 — 1009 would directly conflict with a supreme court rule, the rule takes precedence (Morrison v. Wagner, 191 Ill. 2d 162, 165, 729 N.E.2d 486, 488 (2000)).
In this case, the trial court entered its February 2001 written order dismissing count III of Smith’s complaint with leave to amend within 60 days. Thus, Smith’s April 2001 motion to voluntarily dismiss count III was a nullity because there was no count III to voluntarily dismiss. Once the court dismissed count III, Smith either could have amended that count or accepted the court’s dismissal. See Cole v. Hoogendoorn, Talbot, Davids, Godfrey, & Milligan, 325 Ill. App. 3d 1152, 1155-56, 759 N.E.2d 110, 113-14 (2001) (discussing a plaintiffs options following the trial court’s dismissal with leave to amend). However, he could not seek to voluntarily dismiss count III. Simply put, no matter how unfettered the right to voluntarily dismiss one’s claim, such a claim must exist before it can be dismissed. Accordingly, we conclude that the trial court did not err by denying Smith’s motion to voluntarily dismiss count III.
In so concluding, we acknowledge that the Fifth District Appellate Court in Bailey v. State Farm Fire & Casualty Co., 137 Ill. App. 3d 155, 484 N.E.2d 522 (1985), reached the opposite conclusion. In that case, the plaintiff filed an amended complaint for declaratory judgment, and the defendant later filed a motion to dismiss the complaint. The trial court granted the defendant’s motion and gave the plaintiff leave to amend her complaint within 28 days. The defendant later filed another motion to dismiss the plaintiffs complaint, alleging that the plaintiff had failed to amend her complaint. The plaintiff then filed a motion to voluntarily dismiss her complaint, which the court later granted. Bailey, 137 Ill. App. 3d at 157, 484 N.E.2d at 523-24. On appeal, the Fifth District upheld the trial court’s judgment, upon concluding that (1) no trial or hearing had begun; and (2) the plaintiff had an absolute right to voluntarily dismiss her complaint. Bailey, 137 Ill. App. 3d at 158-59, 484 N.E.2d at 525.
We decline to follow Bailey for two reasons. First, the Fifth District did not specifically address whether a trial court’s dismissal with leave to amend rendered a subsequent motion to voluntarily dismiss a nullity. In addition, in Gibellina v. Handley, 127 Ill. 2d 122, 137, 535 N.E.2d 858, 865 (1989), the supreme court implicitly criticized Bailey when it cited that case as an example of “an ever[-]increasing number of plaintiffs [who] are using a section 2 — 1009 motion to avoid a potential decision on the ‘merits’ or to avoid an adverse ruling as opposed to using it to correct a procedural or technical defect.” Similarly, in this case, Smith was attempting to use a section 2 — 1009 motion to avoid the trial court’s ruling that count III did not state a claim for inverse condemnation, as opposed to using the motion as it was intended — to correct a procedural or technical defect.
III. CONCLUSION
For the reasons stated, we affirm the trial court’s judgment.
Affirmed.
McCullough, j., concurs.