Lawyers Title Ins. Corp. v. Kneller
| Decision Date | 24 June 1988 |
| Docket Number | No. 3-87-0402,3-87-0402 |
| Citation | 121 Ill.Dec. 848,172 Ill.App.3d 210,525 N.E.2d 1155 |
| Parties | , 121 Ill.Dec. 848 LAWYERS TITLE INSURANCE CORPORATION, Plaintiff-Appellee, v. Gary A. KNELLER and Barbara J. Kneller, Defendants-Appellants (United States Title and Abstract Co., II, Grundy County Title Division, Robert Tyer II, and John V. Hanson, Plaintiffs). |
| Court | United States Appellate Court of Illinois |
Fred W. Potter (argued), Potter & Comba, Princeton, for Gary A. and Barbara J. Kneller.
Douglas L. Ziech (argued), Joliet, for Lawyers Title Ins. Corp.
Robert Adcock, Adcock & Dobbs, Ltd., Morris, for U.S. Title & Abstract Co., and Grundy Co. Title Div.
Defendants, Gary and Barbara Kneller, were purchasers of certain business property located in Grundy County, Illinois. Plaintiffs, Lawyers Title Insurance Corp. and United States Title & Abstract Co., were the issuer and issuing agent of a title insurance policy issued in connection with the transfer of the real estate from Verna and James Sak and Carol O'Neill to the Knellers. Plaintiffs, Robert Tyer II and John Hanson, were the attorneys who represented the sellers and buyers, respectively. Both the title policy and the warranty deed which were issued in connection with the conveyance appear in the record before us. Neither document contains an exception for a 35-foot easement which had been granted to and recorded by the property's former lessee, Shell Oil Company, for ingress to and egress from adjoining property.
On October 7, 1986, the plaintiffs filed a complaint acknowledging the liability of Lawyers Title under the policy of title insurance and praying for a determination of damages owed to the defendants. The defendants answered the complaint and prayed for damages up to $1,000,000 from each of the plaintiffs named in the complaint.
On November 24 the defendants moved for the entry of summary judgment against each of the plaintiffs. On December 18, Lawyer's Title moved for a substitution of attorneys. That motion was granted. Discovery ensued until March 19, 1987, when Lawyers Title moved to voluntarily dismiss its cause of action pursuant to section 2-1009 of the Code of Civil Procedure (Ill.Rev.Stat.1985, ch. 110, par. 2-1009). Counsel set the motion to be heard at 1:30 p.m. on March 23.
On March 24, 1987, defendants filed with the court their notice for hearing the summary judgment motion filed 4 months prior. The notice states that the latter motion was set to be heard at 1:45 p.m. on March 23, 1987. On that date, the court heard Lawyers Title's motion to voluntarily dismiss and took the matter under advisement. The parties briefed the issue, and on April 28 the court granted plaintiff's motion to dismiss. No action was taken on the summary judgment motion.
Defendants then moved for an order to vacate the April 28 dismissal order, to reconsider and deny Lawyers Title's motion for a voluntary nonsuit and to find Lawyers Title guilty of contempt. On June 4, that motion was denied. On motion of Lawyers Title on the same date, the court granted leave to file an amended complaint. An amended complaint was filed accordingly on June 15. Defendants subsequently moved to make the June 4 order appealable pursuant to Supreme Court Rule 304(a) (107 Ill.2d R. 304(a)). On June 29, the court allowed the motion and entered the order as presented by defendants' attorney. Defendants pursued their appeal to this court.
Initially, we note that the trial court's order of June 29, stating that "pursuant to Supreme Court Rule, being section 304(a) of chapter 110A, Illinois Revised Statutes, there is no just cause for delaying an appeal from the order entered herein on June 4, 1987 ..." , is an order which confers appellate court jurisdiction. Rule 304 specifically calls for a finding that there is no just reason for delaying "enforcement or appeal". However, we find that the trial judge's citation to the rule itself, specifically identifying it in his order, constructively fulfills the technical language requirement and confers the intended jurisdiction to review the order of June 4. There is no case authority to dictate otherwise. It has been often noted that the rules governing civil procedure are to be liberally construed so long as the substantive rights of all parties are protected. (Turner v. Smiley (1972), 8 Ill.App.3d 388, 291 N.E.2d 27.) All rules of practice, whether in trial or reviewing courts, are adopted to promote the orderly and effective operation of the judicial process. Vasco Trucking, Inc. v. Parkhill Truck Co. (1972), 6 Ill.App.3d 572, 286 N.E.2d 383.
Turning to the merits of the case, the central issue before this court is whether the plaintiff had an absolute right to dismiss his action for a declaratory judgment notwithstanding defendants' pending motion for summary judgment.
In the defendants' brief on appeal, they allege that their answer to the plaintiffs' complaint, joining with the plaintiffs in a request for a determination of the controversy presented by the complaint, is to be construed as a counterclaim. When a counterclaim has been pleaded by a defendant, no dismissal may be had as to the defendant except by defendant's consent. (Ill.Rev.Stat.1985, ch. 110, par. 2-1009.) We wholly reject this position as it finds no support in the record. The defendants filed an "answer" requesting the same declaratory relief as the plaintiffs' complaint prayed for. No counterclaim was pled or arose and the propriety of the dismissal does not involve consideration of the defendants' consent.
Further, the law is clear that the trial court acted properly in passing upon the plaintiff's motion to dismiss even though the defendants had made a prior motion for summary judgment which remained pending.
In Kahle v. John Deere Co. (1984), 104 Ill.2d 302, 84 Ill.Dec. 650, 472 N.E.2d 787, the supreme court held that a plaintiff's absolute right to a voluntary dismissal had been limited by the legislature, pursuant to section 2-1009, to prevent an automatic voluntary dismissal without prejudice after a trial or hearing commenced. The court noted that any further limits on a plaintiff's common law right to an automatic dismissal without prejudice should be enacted by the legislature, not declared by the court.
Subsequently, in O'Connell v. St. Francis Hospital (1986), 112 Ill.2d 273, 97 Ill.Dec. 449, 492 N.E.2d 1322, the court determined that a conflict existed between Supreme Court Rule 103(b) (107 Ill.2d R. 103(b)) and sections 2-1009 and 13-217 of the Code of Civil Procedure (Ill.Rev.Stat.1985, ch. 110, pars. 2-1009, 13-217). The court reasoned that the rule prevailed over the statute and went on to hold that a defendant's previously filed rule 103(b) motion to dismiss for lack of due diligence in obtaining service of process, must be heard on its merits prior to ruling on plaintiff's motion for voluntary dismissal.
Subsequent cases have limited the holding of O'Connell to situations involving Rule 103(b) motions and have refused to give other supreme court rules or legislative enactments consideration before granting a plaintiff's section 2-1009 motion for voluntary dismissal. See Schmitt v. Motorola, Inc. (1987), 160 Ill.App.3d 1059, 112 Ill.Dec. 460, 513 N.E.2d 1069, appeal all'd, 117 Ill.2d 553, 115 Ill.Dec. 409, 517 N.E.2d 1095; Gibellina v. Handley (1987), 158 Ill.App.3d 866, 110 Ill.Dec. 707, 511 N.E.2d 884, appeal all'd, 117 Ill.2d 543, 115 Ill.Dec. 400, 517 N.E.2d 1086; Highland v. Stevenson (1987), 153 Ill.App.3d 390, 106 Ill.Dec. 229, 505 N.E.2d 776, appeal denied (1987), 116 Ill.2d 555, 113 Ill.Dec. 299, 515 N.E.2d 108; Rohr v. Knaus (1987), 153 Ill.App.3d 1013, 106 Ill.Dec. 834, 506 N.E.2d 634, appeal denied (1987), 116 Ill.2d 575, 113 Ill.Dec. 317, 515 N.E.2d 126; Russ v. Gandhy (1986), 149 Ill.App.3d 660, 102 Ill.Dec. 931, 500 N.E.2d 1032, appeal denied (1987), 113 Ill.2d 584, 106 Ill.Dec. 55, 505 N.E.2d 361; each case addressing the propriety of granting plaintiff's section 2-1009 motion to dismiss while a motion for summary judgment pended. See also Lafin v. Allstate Insurance Co. (1988), 168 Ill.App.3d 1075, 119 Ill.Dec. 638, 523 N.E.2d 106; Mancuso v. Beach (1986), 149 Ill.App.3d 188, 102 Ill.Dec. 696, 500 N.E.2d 589; each case addressing the propriety of granting plaintiff's section 2-1009 motion to dismiss while a defense motion to dismiss pended.
Regarding the case at bar, there exists no authority that would allow the trial court to consider the summary judgment motion prior to making a ruling on the plaintiff's motion to dismiss. The reviewing courts of this state have expressly noted that the plaintiff's right to dismiss a case and refile it at a later time is subject to abuse. In some cases, the procedure has been employed to avoid the effect of clearly meritorious defenses that would terminate the litigation. However, it is the duty of the General Assembly, not that of the courts, to consider limiting a plaintiff's right to take a voluntary dismissal under section 2-1009 in order to prevent potential unfairness and abuse. We emphasize, under section 2-1009, the statute does not recognize the court's discretion, but rather the plaintiff's right to voluntarily dismiss. Davis v. International Harvester Co. (1985), 139 Ill.App.3d 264, 93 Ill.Dec. 718, 487 N.E.2d 385.
Lastly, this court finds no merit in the defendant's contention that the plaintiff should be held in contempt of court for delaying the expeditious determination of its liability by filing a motion to dismiss. The plaintiff was exercising its statutory right under the procedural rules of the court.
For all of the foregoing reasons the judgment of the circuit court of Grundy County is affirmed.
Affirmed.
I take exception only with my colleagues' treatment of the question of this court's jurisdiction. As...
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