Gilbert-Hodgman, Inc. v. Chicago Thoroughbred Enterprises, Inc.

• Decision Date: 31 January 1974
• Docket Number: INC,GILBERT-HODGMA,No. 58996,58996
• Citation: 308 N.E.2d 164,17 Ill.App.3d 460
• Parties: , an Illinois corporation, Plaintiff-Appellant. v. CHICAGO THOROUGHBRED ENTERPRISES, INC., a corporation authorized to transact business in the State of Illinois, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 164

308 N.E.2d 164

17 Ill.App.3d 460

GILBERT-HODGMAN, INC., an Illinois corporation, Plaintiff-Appellant. v. CHICAGO THOROUGHBRED ENTERPRISES, INC., a corporation authorized to transact business in the State of Illinois, Defendant-Appellee.

No. 58996.

Appellate Court of Illinois, First District, Third Division.

Jan. 31, 1974.

Hoffman & Davis, Chicago (David I. Hoffman, John L. Leonard, Chicago, of counsel), for plaintiff-appellant.

Daley, Reilly & Daley, Chicago (James M. O'Shaughnessy, Chicago, of counsel), for defendant-appellee.

McNAMARA, Presiding Justice.

Prior to trial, plaintiff gave notice to defendant and sought a voluntary dismissal of its suit pursuant to section 52 of the Civil Practice Act. (Ill.Rev.Stat.1971, ch. 110, par. 52) The circuit court of Cook County granted the dismissal but taxed as costs to the plaintiff attorney's fees and certain expenses incurred by defendant's counsel in the amount of $5,325.95. Plaintiff's sole issue on appeal is the propriety of the order imposing fees and expenses.

On March 23, 1970, plaintiff filed suit against defendant to recover $18,060.01 for the cost of repairs of certain fire damage which occurred on May 14, 1968 at the Arlington Park racetrack. Defendant's answer set forth the affirmative defense that plaintiff was responsible for the fire and had the duty to repair the damage at its own expense.

When the case reached the trial call, plaintiff served notice on defendant and requested a voluntary dismissal without prejudice, indicating that it was prepared to tender proper taxable costs to defendant. Defendant objected, and asked that the order of dismissal be entered with prejudice. In response to a question by the assignment judge, plaintiff indicated that in making its motion it proposed to refile the suit joining an additional party. Plaintiff's previous efforts to add an additional count and party and to consolidate the present action with one seeking declaratory relief against an insurance company had been objected to by defendant and had been denied by the trial court.

When plaintiff suggested that the court had no discretion in the granting of a voluntary dismissal upon the payment of proper costs, the trial judge entered an order dismissing the suit without prejudice. However, the court instructed defense counsel to submit an affidavit not only of the court costs, but also of their fees and expenses. Defense counsel submitted an affidavit setting forth a sum of $5,325.95. Of this amount defendant's appearance fee and the cost to defendant of transcripts of four depositions came to $317.40; attorneys' fees were listed at $4,487.50; and various expenses, including defense counsel's airline and cab fares in taking depositions, came to $521.05. The trial court thereupon entered an order taxing plaintiff $5,325.95 as costs under section 52 of the Civil Practice Act.

The language of section 52 is clear and unequivocal. Upon the giving of notice and the payment of proper costs, a plaintiff's right to a voluntary dismissal without prejudice prior to trial or hearing is absolute. And the court has no discretion to deny plaintiff's motion for a dismissal in such cases. Bernick v. Chicago Title and Trust Co. (1945), 325 Ill.App. 495, 60 N.E.2d 442.

Section 52 does not provide for the taxation of attorney's fees and expenses as costs, and the trial court erred in imposing such items as costs. The rule in Illinois is that, absent specific legislative direction, attorney's fees are not taxable as costs. (Ritter v....