Mizell v. Passo

• Decision Date: 19 March 1992
• Docket Number: Docket No. 69766
• Citation: 590 N.E.2d 449,168 Ill.Dec. 812,147 Ill.2d 420
• Parties: , 168 Ill.Dec. 812 Dennis R. MIZELL, Appellant, v. Thomas C. PASSO, M.D., Appellee.
• Court: Illinois Supreme Court

Page 449

590 N.E.2d 449

147 Ill.2d 420, 168 Ill.Dec. 812

Dennis R. MIZELL, Appellant, v. Thomas C. PASSO, M.D., Appellee.

Docket No. 69766.

Supreme Court of Illinois.

March 19, 1992.

James A. Martinkus, Erwin, Martinkus, Cole & Ansel, Champaign, for appellant.

Richard F. Record, Jr., and Richard C. Hayden, Craig & Craig, Mattoon, Todd M. Tennant, and Mark D. Henss, Dobbins, Fraker, Tennant, Joy & Perlstein, Champaign, for appellee.

Justice CUNNINGHAM delivered the opinion of the court:

On May 27, 1988, plaintiff, Dennis R. Mizell, filed a healing art malpractice action in the circuit court of Vermilion County against defendant, Thomas C. Passo, M.D. Attached to the complaint was an affidavit of plaintiff's attorney stating that plaintiff had been unable to obtain the written report of a reviewing health professional as required by section 2-622(a)(1) of the Code of Civil Procedure (the Code) (Ill.Rev.Stat.1987, ch. 110, par. 2-622(a)(1)).

On July 11, 1988, plaintiff filed a motion to waive the section 2-622 requirement. In his motion, plaintiff requested that the court relieve him from complying with section 2-622 or, in the alternative, allow him to procure the required affidavit within 90 days of the date of denial of the motion. At the same time, plaintiff sent a notice of hearing for August 19, 1988, and a notice of deposition of defendant to take place on August 24, 1988.

On August 15, 1988, defendant filed a motion for protective order, requesting that the court stay discovery until plaintiff complied with section 2-622. Defendant also sent a notice of hearing for August 19, 1988. On August 18, 1988, defendant filed a response to plaintiff's motion to waive section 2-622, maintaining that the affidavit and report requirements of section 2-622 are mandatory and cannot be waived.

On August 19, 1988, the parties appeared at the hearing as scheduled. The docket entry made at that time indicates that the court denied plaintiff's motion to waive section 2-622, but allowed an additional 90 days to procure the report. The court also entered an order staying discovery until plaintiff filed the report.

On November 18, 1988, plaintiff filed a motion for continuance to obtain a written report to attach to the affidavit demonstrating that plaintiff's attorney had consulted with a reviewing health professional about plaintiff's case. Plaintiff, however, did not request a hearing on the motion at that time.

On February 15, 1989, defendant filed a motion for judgment and sent a notice of hearing on that motion, showing that a hearing was scheduled on February 22, 1989. In that motion, defendant prayed for relief based on plaintiff's failure to comply with section 2-622. A revised notice of hearing on the motion was sent by defendant, rescheduling the hearing on defendant's motion for March 14, 1989.

On March 10, 1989, plaintiff sent a notice of hearing for March 14, 1989, on plaintiff's motion for a continuance to obtain a written report to attach to the affidavit.

On March 14, 1989, plaintiff's attorney filed a second affidavit in which he stated that he had spoken with a reviewing health professional who was willing and able to provide a written report. Also on March 14, plaintiff filed a written motion for voluntary dismissal pursuant to section 2-1009 of the Code (Ill.Rev.Stat.1987, ch. 110, par. 2-1009).

At the March 14, 1989, hearing, the court initially stated that the hearing concerned defendant's motion for judgment. Plaintiff then called to the court's attention the notice for hearing on the motion for a continuance to obtain a written report to attach to the affidavit, and asked that this motion be heard first. Defendant objected to hearing plaintiff's motion, citing Rule IV of the Uniform Rules of Practice Governing Civil Cases of the Fifth Judicial Circuit of Illinois (Rules of Practice of the Circuit Court, Fifth Judicial Circuit, Rule IV, at 7-9 (1977)) (Rule IV). Defendant argued that plaintiff violated Rule IV by failing to give defendant sufficient notice of the hearing and by failing to call the motion for a hearing within 90 days of its being filed. Plaintiff responded to this objection by stating that if the court did not elect to hear his motion for a continuance, he would ask the court to hear his motion for voluntary dismissal pursuant to section 2-1009 of the Code.

The court decided to hear arguments on plaintiff's motion for a continuance to obtain a written report, and the motion was denied. Plaintiff then tendered his motion for voluntary dismissal. Defendant's attorneys requested a short recess so that they could read the motion and consult with each other. Defendant objected on the following grounds: (1) that Rule IV had been violated, (2) that section 2-1009 of the Code had been violated as there had been no tender of costs, and (3) that under Gibellina v. Handley (1989), 127 Ill.2d 122, 129 Ill.Dec. 93, 535 N.E.2d 858, defendant's motion for judgment must be heard prior to plaintiff's motion for voluntary dismissal.

The trial court allowed plaintiff's motion to voluntarily dismiss upon the payment of costs. The court's written order of May 9, 1989, stated in part:

"The Court finds that the Motion for Judgment is not a Motion for Summary Judgment as was the case in the causes before the Court in Gibellina.

The Court exercises its discretion to decline to hear the Motion for Judgment prior to the Plaintiff's Motion for Voluntary Dismissal. The Court finds that Gibellina, which was a Summary Judgment case, does not mandate that the Court must proceed to hearing on such a Motion but allows the trial Court to hear such a Motion if in the Court's discretion it is appropriate."

On appeal, defendant asserted that the trial court committed reversible error when it failed to follow the requirements of Gibellina. The appellate court majority stated that upon review of the record, it was not clear that the trial court understood that it had discretion to hear defendant's previously filed motion for judgment before hearing plaintiff's motion for voluntary dismissal. Stressing the importance that the trial court adequately understand its discretionary authority, the panel vacated the trial court's order granting plaintiff's motion for voluntary dismissal and remanded for further proceedings. The majority stated that on remand, the trial court should take into account the concerns underlying Gibellina as it exercised its discretion in choosing which motion to hear first. 192 Ill.App.3d 435, 139 Ill.Dec. 398, 548 N.E.2d 783.

In dissent, Justice McCullough stated that the trial court did exercise its discretion in granting plaintiff's motion for voluntary dismissal and, thus, he did not see sufficient justification for reversing the trial court. 192 Ill.App.3d at 442-43, 139 Ill.Dec. 398, 548 N.E.2d 783 (McCullough, J., dissenting).

Plaintiff's petition for leave to appeal to this court was allowed pursuant to Rule 315 (134 Ill.2d R. 315).

We agree with the appellate court dissent and hold that the trial court did exercise its discretion as indicated in its order of May 9, 1989.

The crux of this appeal is the interpretation of Gibellina v. Handley (1989), 127 Ill.2d 122, 129 Ill.Dec. 93, 535 N.E.2d 858. The appellate court correctly indicated that in Gibellina this court found it necessary to modify its previous constructions of the voluntary dismissal statute (section 2-1009 of the Code) because of abuses in the use of that statute. The appellate court further stated correctly that in Gibellina this court made clear it did not intend to limit a plaintiff's unfettered right to voluntarily dismiss prior to the filing of a dispositive motion by defendant, but emphasized that an increasing number of plaintiffs were using section 2-1009 motions to avoid potential decisions on the "merits" of their cases. Thus, the appellate court stated, this court held that the trial court had the discretion to decide whether to hear a previously filed dispositive motion.

The appellate court is correct in its evaluation of Gibellina, wherein the court stated:

"[T]he trial court may hear and decide a motion which has been filed prior to a section 2-1009 motion when that motion, if favorably ruled on by the court, could result in a final disposition of the case." (Emphasis in original.) Gibellina, 127 Ill.2d at 138, 129 Ill.Dec. 93, 535 N.E.2d 858.

By use of the permissive language "may hear," this court did indeed intend to give the trial court the discretion to hear and rule upon a motion that could dispose of the case prior to hearing a plaintiff's voluntary dismissal motion. By endowing the trial court with such discretion, the court intended to strike a balance between the legislative grant to plaintiffs of an "unfettered right to voluntarily dismiss" and the abuse which that unfettered right has engendered from some plaintiffs.

In Gibellina, this court did not establish a set of guidelines detailing when a plaintiff has abused the process such that a trial court is compelled to hear and allow a dispositive defense motion, nor did this court indicate what motions are potentially dispositive. Rather, the court intentionally left such matters to the discretion of the trial court and did not intend to tamper with that discretion unless it can be shown that the trial court has abused its discretion. Schoon v. Hill (1990), 207 Ill.App.3d 601, 152 Ill.Dec. 841, 566 N.E.2d 718; In re Estate of Wiese (1989), 178 Ill.App.3d 938, 128 Ill.Dec. 95, 533 N.E.2d 1183.

An abuse of discretion occurs where the court's decision is against the manifest weight of the evidence such that no reasonable person could take the view adopted by the trial court. (Jefco Laboratories, Inc. v. Carroo (1985), 136 Ill.App.3d 793, 91 Ill.Dec. 513, 483 N.E.2d 999; In re Marriage of Petrovich (1987), 154 Ill.App.3d 881, 107 Ill.Dec. 543, 507 N.E.2d 207.) Plaintiff's attorney had filed a second affidavit in which he...