Heinz by Heinz v. McHenry County, s. 83-200

• Decision Date: 19 March 1984
• Docket Number: Nos. 83-200,83-485,s. 83-200
• Citation: 122 Ill.App.3d 895,461 N.E.2d 672,78 Ill.Dec. 88
• Parties: , 78 Ill.Dec. 88 Heather HEINZ, a minor, by Bonnie HEINZ, her mother and next friend, Plaintiff- Appellant, v. COUNTY OF McHENRY, a municipal corporation, and James R. Rakow, County Superintendent of Highways, Donald Wagner, Heidi Heinz, Bill L. Finley, Hetty L. Finley, Jerrell Babb and Judy Babb, Defendants-Appellees. Heather HEINZ, a minor, by Bonnie HEINZ, her mother and next friend, Plaintiff- Appellee, v. COUNTY OF McHENRY, a municipal corporation, and James R. Rakow, County Superintendent of Highways, Defendants-Appellants.
• Court: United States Appellate Court of Illinois

Page 672

461 N.E.2d 672

122 Ill.App.3d 895, 78 Ill.Dec. 88

Heather HEINZ, a minor, by Bonnie HEINZ, her mother and next

friend, Plaintiff- Appellant, v. COUNTY OF McHENRY, a municipal corporation, and James R.

Rakow, County Superintendent of Highways, Donald Wagner,

Heidi Heinz, Bill L. Finley, Hetty L. Finley, Jerrell Babb

and Judy Babb, Defendants-Appellees.

Heather HEINZ, a minor, by Bonnie HEINZ, her mother and next

friend, Plaintiff- Appellee, v. COUNTY OF McHENRY, a municipal corporation, and James R.

Rakow, County Superintendent of Highways,

Defendants-Appellants.

Nos. 83-200, 83-485.

Appellate Court of Illinois,

Second District.

March 19, 1984.

Louis F. Aiello, Janice Metros Johnston, Woodstock, Judge & Knight, Jay S. Judge, Thomas G. Leavy, Kristine A. Karlin, Park Ridge, for plaintiff-appellant.

Judge & Knight, Ltd., Kristine A. Karlin, Park Ridge, Louis F. Aiello, Janice Metros Johnston, Woodstock, for defendants-appellees.

VAN DEUSEN, Justice:

The procedural history of these cases in the trial court may be briefly summarized as follows. On October 19, 1982, Heather Heinz, by her mother, filed a six-count complaint for personal injuries sustained in a two-car collision that occurred February 20, 1982, against the County of McHenry (Count I) and James R. Rakow, McHenry County Superintendent of Highways, (Count II) (hereinafter defendants) and others. On February 1, 1983, the trial court granted defendants' section 2-615 motion (Ill.Rev.Stat.1981, ch. 110, par. 2-615) to dismiss counts I and II of plaintiff's complaint and further ordered that plaintiff had fourteen days in which to file an amended complaint. On February 8, 1983, the trial court heard plaintiff's motion for a voluntary nonsuit, found that proper notice had been given to all parties of record and that all costs had been paid to all defendants, and ordered that plaintiff's cause of action be dismissed pursuant to the terms and provisions of section 2-1009 of the Code of Civil Procedure (Ill.Rev.Stat.1981, ch. 110, par. 2-1009). On February 17, 1983, plaintiff filed a new but substantially identical suit against defendants and others in McHenry County. On February 22, 1983, defendants moved to partially vacate the dismissal order of February 8, 1983, and asked for an award of attorney fees pursuant to section 2-611 of the Code of Civil Procedure (Ill.Rev.Stat.1982, ch. 110, par. 2-611). On March 2, 1983, the trial court vacated the voluntary dismissal order of February 8, 1983, as to defendants, amended nunc pro tunc its order of February 1, 1983, by making the dismissal of counts I and II of the complaint to be with prejudice, and continued defendants' motion for attorney fees. On April 21, 1983, after an evidentiary hearing, the trial court denied the motion for attorney fees.

In appeal number 83-200 plaintiff has sought review of the trial court's order of March 2, 1983, vacating the voluntary dismissal order of February 8, 1983, and modifying nunc pro tunc its order of February 1, 1983. In appeal number 83-485 defendants have sought review of the trial court's order of April 21, 1983, denying their motion for attorney fees.

Appeal No. 83-200

We reverse. Upon giving of notice and payment of proper costs, as here, a plaintiff's right to a voluntary dismissal without prejudice prior to trial or a hearing is absolute, and the court has no discretion to deny plaintiff's motion for dismissal in such cases. (E.g., Gilbert-Hodgman, Inc. v. Chicago Thoroughbred Enterprises, Inc. (1974), 17 Ill.App.3d 460, 461, 308 N.E.2d 164.) This right is restricted after the trial has begun or where a counterclaim has been filed so that cases cited by defendants concerning motions made in these situations (Clyde Savings & Loan Association v. May Department Stores (1981), 100 Ill.App.3d 189, 55 Ill.Dec. 630, 426 N.E.2d 955; In re Marriage of Weiss (1980), 87 Ill.App.3d 643, 42 Ill.Dec. 714, 409 N.E.2d 329; Juen v. Juen (1973), 12 Ill.App.3d 284, 297 N.E.2d 633) are clearly inapposite. Illinois courts have held that hearings pursuant to a section 2-615 motion (formerly section 45), as held here, did not mark the commencement of trial or hearing under section 2-1009 (North Park Bus Service, Inc. v. Pastor (1976), 39 Ill.App.3d 406, 409, 349 N.E.2d 664), nor does the granting of such a motion with leave to amend, as here, affect plaintiff's absolute right to voluntarily dismiss her complaint (Bernick v. Chicago Title & Trust Co. (1945), 325 Ill.App. 495, 501, 60 N.E.2d 442). Moreover, the filing of another action shortly after the voluntary dismissal order does not affect plaintiff's absolute right to such a dismissal without prejudice where, as here, the trial had not begun, and notice was given and costs were tendered. See In re Marriage of Brown (1980), 86 Ill.App.3d 964, 971-72, 43 Ill.Dec. 79, 410 N.E.2d 79. Compare Juen v. Juen (1973), 12 Ill.App.3d 284, 297 N.E.2d 633 (plaintiff's voluntary dismissal motion properly denied where counterclaim was pending and plaintiff failed to comply with notice and costs requirements). But see Smith v. Monumental Life Insurance Co. (1939), 301 Ill.App. 217, 218-19, 22 N.E.2d 399.

However, as a trial court may upon its own motion set aside any judgment or order during the pendency of the term or its equivalent (Miller v. Bloomberg (1978), 60 Ill.App.3d 362, 364-65, 17 Ill.Dec. 602, 376 N.E.2d 748), an order setting aside a former order of dismissal will not be disturbed unless the vacation constitutes an abuse of discretion (Smith v. Monumental Life Insurance Co. (1939), 301 Ill.App. 217, 218, 22 N.E.2d 399). See 60 Ill.App.3d 362, 364-65, 17 Ill.Dec. 602, 376 N.E.2d 748.

Defendants' motion for vacation of the February 8 voluntary dismissal had two stated bases: (1) plaintiff's failure to comply with the court's "Order * * * to file an Amended Complaint" and (2) plaintiff's attempt to avoid compliance with the change of venue statute by dismissing her lawsuit with the intention of refiling it so as to be heard before a different judge. As to the first stated basis, it should be observed that the plaintiff was granted leave to file an amended pleading, not ordered to do so. Moreover, as we have previously noted, the granting of defendants' section 2-615 motion with leave to amend does not affect plaintiff's absolute right to a voluntary dismissal under section 2-1009. Bernick v. Chicago Title & Trust Co. (1945), 325 Ill.App. 495, 501, 60 N.E.2d 442.

As to the second stated basis of defendants' motion, plaintiff may very well have avoided the effect of the change of venue statute (Ill.Rev.Stat.1981, ch. 110, par. 2-1001), which would bar her absolute right to a change after the judge had, as here, ruled on a substantial issue. However, she would have been able to do so, not owing to any misconduct on her part, but, as the trial judge observed, due to the system then used by the county in assigning cases. The cases cited by defendants in support of their argument all relate to recognized change of venue principles and are inapposite in that no motion for change of venue was filed in this cause.

The two stated bases for vacation of the dismissal here do not support the action. While this court may affirm on any basis appearing in the record regardless of whether the trial judge's stated rationale was correct (Hintz v. Lazarus (1978), 58 Ill.App.3d 64, 67, 15 Ill.Dec. 546, 373 N.E.2d 1018), there appears to be no other basis in the record upon which to do so. Under the total circumstances shown by the record in this case, plaintiff was entitled to a voluntary dismissal as a matter of absolute right, and that portion of the trial court's order of March 2, 1983, vacating the February 8,...