Galowich v. Beech Aircraft Corp.
| Decision Date | 10 February 1981 |
| Docket Number | No. 80-663,80-663 |
| Citation | 417 N.E.2d 673,48 Ill.Dec. 941,93 Ill.App.3d 690 |
| Parties | , 48 Ill.Dec. 941 Ronald GALOWICH, Executor of the Estate of Jerald Galowich, Deceased, Plaintiff-Appellee, v. BEECH AIRCRAFT CORPORATION, a corporation; Woodward Governor Company, a corporation; Hartzell Propeller, Inc., a subsidiary of Hartzell Industries, Inc., a corporation; Hartzell Industries, Inc., a corporation; Eldec Corporation, a corporation; National Flight Services, Inc., a corporation; United Aircraft of Canada Limited, a corporation; and Hartzog Aviation, Inc., a corporation and Beechcraft West, a corporation, Defendants-Appellants. RONALD H. GALOWICH ASSOCIATES, INC., a corporation, Plaintiff-Appellee, v. BEECH AIRCRAFT CORPORATION, a corporation; Woodward Governor Company, a corporation; Hartzell Propeller, Inc., a subsidiary of Hartzell Industries, Inc., a corporation; Hartzell Industries, Inc., a corporation; Eldec Corporation, a corporation; National Flight Services, Inc., a corporation; United Aircraft of Canada Limited, a corporation; and Hartzog Aviation, Inc., a corporation and Beechcraft West, a corporation, Defendants-Appellants. |
| Court | United States Appellate Court of Illinois |
Conklin & Adler, Ltd., Chicago (Thomas W. Conklin, John W. Adler and Franklin A. Nachman, Chicago, of counsel), for defendants-appellants.
Susan E. Loggans, Chicago (William J. Harte, Chicago, of counsel), for plaintiff-appellee.
Defendants appeal from an order of the circuit court of Cook County granting plaintiffs' motion for voluntary dismissal and taxing as costs to plaintiffs the appearance fees and jury demand fees incurred by defendants. The sole issue presented for review is whether the trial court erred in denying defendants' request for the imposition of additional expenses incurred by them. A summary of the necessary facts follows.
These consolidated cases arise from the crash of an aircraft manufactured by Beech Aircraft Corporation. 1 After extensive discovery the cases were assigned for trial on January 29, 1980. On February 11, 1980 plaintiffs moved for a six-month continuance in order to complete their investigation of a recent unrelated airplane crash in Canada. Plaintiffs' motion was denied. Plaintiffs thereafter moved for a voluntary dismissal pursuant to section 52 of the Civil Practice Act (Ill.Rev.Stat. 1979, ch. 110, par. 52), indicating an intention to refile pursuant to section 24a of the Limitations Act (Ill.Rev.Stat. 1979, ch. 83, par. 24a). In response to plaintiffs' motion for voluntary dismissal, defendants urged that the court dismiss plaintiffs' cases with prejudice and without leave to refile. Defendants urged in the alternative that the court "condition" any dismissal or refiling upon plaintiffs' payment to them of "their filing fees, jury demand fees, witness fees, costs of depositions, costs of transcripts, experts costs and related expenses and such other and further costs that the court considers just under these circumstances and in the exercise of its discretion." Defendants indicated that these costs "must include some substantial portion of the more than $1 million plaintiffs have forced the defendants to expend." Defendants estimated their expenses relating to the depositions as approximately $200,000.
Judge Wolfson granted plaintiffs' motion for voluntary dismissal and taxed as costs to plaintiffs the appearance fees and jury demand fees incurred by defendants in the amount of $219. In denying defendants' request for the imposition of the additional expenses he further remarked:
"I don't see the legal authority to do anything more than enter the order for costs contained in the clerk's bill. * * * if I though I had the authority I would do something more."
Section 52(1) of the Civil Practice Act (Ill.Rev.Stat. 1979, ch. 110, par. 52) provides:
The language of section 52 is clear and unequivocal. Upon proper notice and payment of costs, a plaintiff has what numerous cases have referred to as an "absolute right" to dismiss his action before a trial or hearing has begun. E. g., City of Palos Heights v. Village of Worth (1st Dist. 1975), 29 Ill.App.3d 746, 749, 331 N.E.2d 190; Gilbert-Hodgman, Inc. v. Chicago Thoroughbred Enterprises, Inc. (1st Dist. 1974), 17 Ill.App.3d 460, 461, 308 N.E.2d 164.
At common law costs were not recoverable. Therefore costs can now be imposed and recovered only where authorized by statute. (Adams v. Silfen (1st Dist. 1951), 342 Ill.App. 415, 419, 96 N.E.2d 628.) Statutes which authorize the taxation of costs are penal in their nature, and unless authority to tax them is clearly granted by statute, their allowance cannot be sustained. (Wintersteen v. National Cooperage & Woodenware Co. (1935), 361 Ill. 95, 108, 197 N.E. 578; Adams v. Silfen, 342 Ill.App. at 419-420, 96 N.E.2d 628.) Section 52 does not define costs. However, in House of Vision v. Hiyane (1969), 42 Ill.2d 45, 51-52, 245 N.E.2d 468, our supreme court opined:
"Our oft-stated view is that, in the absence of statute (with exceptions not here germane) attorneys' fees and the ordinary expenses and burdens of litigation are not allowable to the successful party."
Defendants urge this court to modify our supreme court's decision in House of Vision v. Hiyane by expanding the definition of costs to include certain expenses incurred in pretrial discovery. In support of this argument defendants contend that Supreme Court Rule 208 (Ill.Rev.Stat. 1979, ch. 110A, par. 208) confers upon the trial court "the discretion to award fees and charges incurred in taking of depositions as 'costs'."
Supreme Court Rule 208 provides:
"(a) Who Shall Pay. The party at whose instance the deposition is taken shall pay the fees of the witness and of the officer and the charges of the recorder or stenographer for attending. The party at whose request a deposition is transcribed and filed shall pay the charges for transcription and filing. The party at whose request a tape recorded deposition is filed without having been transcribed shall pay the charges for filing, and if such deposition is subsequently transcribed the party requesting it shall pay the charges for such transcription. If, however, the scope of the examination by any other party exceeds the scope of examination by the party at whose instance the deposition is taken, the...
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Galowich v. Beech Aircraft Corp.
...expenses incurred in taking depositions, when a plaintiff moves for a voluntary dismissal pursuant to section 52. (93 Ill.App.3d 690, 48 Ill.Dec. 941, 417 N.E.2d 673.) We granted plaintiffs' petition for leave to The plaintiffs argue that an order dismissing a case on motion of the plaintif......
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...interpretation"); see also People v. Bole, 155 Ill.2d at 199, 184 Ill.Dec. 423, 613 N.E.2d 740; Galowich v. Beech Aircraft Corp. (1981), 93 Ill.App.3d 690, 48 Ill.Dec. 941, 417 N.E.2d 673, rev'd on other grounds (1982) 92 Ill.2d 157, 65 Ill.Dec. 405, 441 N.E.2d In light of our holding, it w......
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...incurred by the defendants in the taking of depositions and those other costs as provided for in Galowich v. Beech Aircraft Corp., 93 Ill. App.3d 690, 48 Ill.Dec. 941, 417 N.E.2d 673, reversed on other grounds 92 Ill.2d 157, 65 Ill.Dec. 405, 441 N.E.2d 318 (1982)." The order did not state t......
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Vicencio v. Lincoln-Way Builders, Inc.
...the expenses incurred in taking depositions when a plaintiff moves for voluntary dismissal. Galowich v. Beech Aircraft Corp., 93 Ill.App.3d 690, 693, 48 Ill.Dec. 941, 417 N.E.2d 673 (1981). In Galowich, after noting that the term "costs" has acquired a fixed and technical meaning in the law......