dissenting.
In our zeal to assure that every litigant has a day in court on the merits, we, it seems to me, sometimes err by giving more than one day to a case not warranting such attention, the inevitable result of which is that at least another day of time is taken in already overburdened courts whereby the disposition of meritorious cases awaiting attention is further delayed. I think the present case had already had its full measure of time when it was carefully and correctly considered and decided by Judge Aspen. I therefore respectfully dissent.
This appeal is one, in my opinion, which could properly have been disposed of by adopting the excellent memorandum opinion and order of Judge Aspen as the opinion of this court. The majority, however, has not chosen to do so and is sending the case back for what seems rather obvious to me will be a waste of judicial time because of the probable ultimate result being a defense judgment on the merits. Because the case is being sent back, notwithstanding that I think we need to do nothing more than adopt Judge Aspen’s opinion, I will address certain aspects of the majority opinion.
As an initial matter, it seems to me that we need not even reach the res judicata issue as it appears that Harl did not raise the issue for-want-of-prosecution argument in the court below and, therefore, should be precluded from raising the argument in this court. The majority opinion attempts to brush aside this contention of the defendants in a footnote on the basis that Lambert v. Conrad, 536 F.2d 1183, 1186 (7th Cir. 1976) “makes clear, however, that it is within the court’s discretion to consider an argument not raised below.” Lambert, however, was not talking about the discretion of an appellate court to consider an argument not raised below. In Lambert the plaintiff had argued that it was not proper for the defendant to raise the issue of res judicata by a pre-answer motion because it was not one of the defenses enunciated in Fed.R.Civ.P. 12(b). This court held that we might properly disregard this argument because it was raised for the first time on appeal “but it is nevertheless clear that res judicata may be raised by pre-answer motion or at least that it is within the district court’s discretion to allow it to be so raised.” This court was simply saying that it was within the district court’s discretion which has no bearing upon the discretion we have when an argument is not brought to the attention of the district court and is first raised on appeal seeking reversal. This is certainly not the situation in which courts have affirmed a district court’s opin*129ion for grounds other than those upon which the district court based its opinion. This is a frequent situation1 but the general rule, as I understand it, is when a litigant fails to raise a theory to a trial court and have the trial court address that theory, the theory is ordinarily deemed waived insofar as raising it on appeal is concerned.2 This rule might arguably not be applicable in a situation in which the error was constitutionally egregious, but I do not regard the present case as presenting such a situation.
Turning to other aspects of the majority opinion, that opinion rests almost solely on one opinion of an intermediate appellate court of the State of Illinois, O’Reilly v. Gerber, 95 Ill.App.3d 947, 51 Ill.Dec. 11, 420 N.E.2d 425 (1981). When the factual situation in O’Reilly is compared to the case at bar, O’Reilly simply does not support the result the majority reaches. In O’Reilly, the initial pertinent action directed to the complaint was to strike it and order it to be made more definite. In the case at bar, the initial action was to dismiss the complaint on the defendant’s motion to dismiss. This difference is important and is not merely a matter of words or form. In O’Reilly, it is obvious that the plaintiff had trouble articulating a sufficiently specific complaint to withstand a challenge to what in the old common law practice would have been denominated as a motion to make more specific. The motion to strike the complaint was granted and, as stated above, the pleader was ordered to make the complaint more definite and was ordered that the plaintiff should have twenty-eight days to file a third amended complaint.
There was nothing in the nature of the motion to dismiss in the present case, however, similar to a procedural or dilatory motion which was involved in O’Reilly. Here in its first ground directed to each count of the complaint the defendants went expressly for the jugular by asserting that plaintiff had failed to allege facts to state a cause of action. In the state court in the present case, the plaintiff filed no memorandum but there was a hearing before the trial judge in which, even though no transcript was made, we can assume, unless the plaintiff is now relying upon incompetence of counsel, that the plaintiff presented reasons responsive to the defendant’s motion for denying the granting of the motion. We know from the record in this case that the merits of the case were argued to the federal district court and although they may appear to be of questionable validity, the record demonstrates that plaintiff was aware of what arguments could be made to demonstrate that the complaint set forth facts sufficient to state a cause of action. The district court, of course, did not have to reach the merits because of the conclusion, which I think was justified, that res judicata was applicable.
The majority opinion in a footnote addresses the four grounds of the motion to dismiss and apparently concedes that two of the four grounds pertain to the merits of the litigation. As to one of the other grounds, failure to provide “statutory notice,” the footnote opines that this would be a dismissal for lack of jurisdiction, citing Luker v. Nelson, 341 F.Supp. Ill, 114-15 (N.D.Ill.1972). While it is true that in Luk*130er the district court held that dismissal because of failure to give notice was jurisdictional, however, with due respect to that opinion, it does not agree with the law of Illinois.3 In Schear v. City of Highland Park, 104 Ill.App.2d 285, 244 N.E.2d 72 (1968), Justice Moran, then a member of the Illinois Appellate Court, now on the Illinois Supreme Court, in speaking for the court, stated:
Failure to comply [with the notice requirement] is a complete bar to the action and we, therefore, regard the requirement as a matter of substance rather than procedure.
Id. at 289, 244 N.E.2d at 74. Illinois Appellate Courts have consistently followed this position. In Stanley v. Denning, 130 Ill.App.2d 628, 264 N.E.2d 521 (1970), the court again speaking through Justice Moran stated:
We adhere to our former decision. In Schear we found the notice provision to be substantive rather than procedural. This was based upon the fact that the six months’ notice required was a condition precedent to the cause of action. As such, it becomes an additional element necessary to be alleged and proved, the same as the other basic elements in the plaintiff’s cause of action. Failure to so allege would be failure to state a cause of action. See, Walters v. City of Ottawa, 240 Ill. 259, 88 N.E. 651 (1909); also Hoffman v. Evans, [129] Ill.App.2d 439, 263 N.E.2d 140 (1970).
Id. at 631, 264 N.E.2d at 524. See also Brown v. Shook, 132 Ill.App.2d 246, 268 N.E.2d 883 (1971).
The majority opinion footnote also cites Luker for the proposition that the failure to exhaust was also jurisdictional. Luker does not seem to address that question at all. While it may be arguable whether on the merits exhaustion is required, if it is required it would also seem to be a bar to the action if there had been no exhaustion.
In O’Reilly, as contrasted to the present case, the court made it clear that at no time did the defendant treat the dismissal as one for failure to state a cause of action nor did the defendant at anytime, in its brief to the O’Reilly appellate court, deny that the dismissal was for want of prosecution. 51 Ill.Dec. at 14-15, 420 N.E.2d at 428-29.
In the case at bar, every aspect of the motion to dismiss was oriented to the lack of merits or to matters which would be a bar to the action as it was stated in the plaintiff’s complaint. The court, granting that motion, dismissed the complaint.
Proceeding now to the order of September 3rd, I find no basis for the majority opinion’s expressions that the only fair interpretation of the order is that it was a dismissal for want of prosecution or that it amounted to dismissal for lack of prosecution. First of all, I find no significance in the fact that the dismissal of the “said suit” was sua sponte on the part of the court.4 Further, the majority opinion seems to me unrealistic in analyzing the September 3rd dismissal of the suit. It is customary and good judicial practice where a cause of action is not stated to afford a litigant another bite at the apple and that is all that the state trial court did here in giving to a specified date the privilege of amending the pleadings. If, for example, the plaintiff had in fact given notice she was to have the privilege of alleging that fact. Instead, the plaintiff let the time go by and did not file a further pleading nor did she make any effort to discover which of the various grounds advanced were the basis of the July 10, 1980, ruling which allowed her more than a month to amend.
The court having waited until two weeks after the specified date for amending then *131did on its own motion dismiss the suit. Under these circumstances I fail to see why the plaintiff should be permitted to start over again in another forum. As far as the matter stood before the state trial court, plaintiff had elected to stand on her pleading. I disagree with the majority as to the inapplicability of Brainerd v. First Lake County National Bank, 1 Ill.App.3d 780, 275 N.E.2d 468 (1971), and think on the basis of that case alone, the judgment of the district court should be affirmed.
. Helvering v. Gowran, 302 U.S. 238, 245, 58 S.Ct. 154, 158, 82 L.Ed. 224 (1937) (“In the review of judicial proceedings the rule is settled that if the decision below is correct, it must be affirmed, although the lower court relied upon a wrong ground or gave a wrong reason.”)
Miller v. Gateway Transportation Co., 616 F.2d 272, 275 n.7 (7th Cir. 1980) (“As in other cases, we ‘may affirm on any ground that finds support in the record,’ Mints v. Board of Education, 523 F.2d 711, 716 n.2 (7th Cir. 1975), in appeals from summary judgments.”)
. Browzin v. Catholic University of America, 527 F.2d 843 (D.C.Cir.1975). (“Where the plaintiff tries his case on one theory in the District Court, without any indication of other possible theories, he will not ordinarily be heard to press those other theories on appeal.” Id. at 849 n.10 (This was a rule 41(b) dismissal below)).
United States v. Home Indemnity Co., 489 F.2d 1004 (7th Cir. 1973). (“Although the rule is not absolute, a litigant cannot ordinarily expect to lose in the trial court on one theory and win on appeal under another.” Id. at 1007 (footnote omitted) (citation omitted) (There was a dismissal of the case below)).
. For the present purposes, I accept the majority opinion that Illinois law controls the question of whether a judgment is final on the merits for res judicata purposes in a later federal court proceeding, notwithstanding some apparent exceptions to that doctrine and some doubt being cast upon the doctrine by commentators, which collateral matter need not be pursued here.
. I do agree with the majority opinion that no weight should be accorded to the self-serving affidavit of the state trial judge filed by Harl.