Appeal from the Circuit Court of Cook County; the Hon. John T.
Keleher, Judge, presiding.
JUSTICE WILSON DELIVERED THE OPINION OF THE COURT:
Prior to trial, Model Industries, Inc. (hereinafter Model), gave notice to Walsh Press & Die Company (hereinafter Walsh) and sought a voluntary dismissal of its suit pursuant to section 2-1009 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 2-1009) formerly section 52 of the Civil Practice Act (Ill. Rev. Stat. 1981, ch. 110, par. 52) (hereinafter section 2-1009). Subsequently, Walsh filed a motion for costs and attorney fees pursuant to section 2-611 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 2-611) formerly section 41 of the Civil Practice Act (Ill. Rev. Stat. 1981, ch. 110, par. 41) (hereinafter section 2-611) in the amount of $6,128.64, later amended to $6,248.64. After hearings were held on the motions, the trial court awarded to Walsh costs pursuant to section 2-1009 in the amount of $766.15 and also attorney fees pursuant to section 2-611 in the amount of $4,575.15. Model's sole issue on appeal is whether the trial court erred in awarding attorney fees to Walsh. In addition, Walsh cross-appeals for an increase in its attorney fees award. For the reasons that follow we reverse the trial court.
On April 10, 1978, Model filed a products liability suit against Walsh and Allen-Bradley Company to recover costs in the amount of $11,896, paid by Model pursuant to a successful worker's compensation claim filed by one of its employees for injuries sustained while working on a punch press, designed, manufactured and sold by Walsh and equipped with a foot pedal, designed, manufactured and sold by Allen-Bradley Company. After extensive pretrial discovery, Model filed an amended complaint which itemized several additional conditions of the press which rendered it not reasonably safe. Thereafter, Walsh filed affirmative defenses.
On February 27, 1980, Allen-Bradley Company filed a motion for summary judgment, stating that prior to the accident in question, the foot pedal on the punch press had been altered by Model, thus changing the condition of the pedal from that which it was in when it left Allen-Bradley's control. Several months later, Walsh filed a motion to join Allen-Bradley's summary judgment motion. The trial court granted the motion as per Allen-Bradley Company, but denied it as per Walsh.
On June 2, 1980, one day before trial, Model served notice on Walsh that the next day it would present a motion for voluntary dismissal pursuant to section 2-1009 "on the grounds that plaintiff's counsel has after great diligence been unsuccessful in locating witnesses for presentation of plaintiff's case." Subsequently, Walsh filed a motion for costs and attorney fees pursuant to section 2-611 alleging, in pertinent part, that (1) the claim against Walsh was not brought in good faith; (2) the claim was made without reasonable cause; (3) the suit was frivolous and vexatious; (4) the suit put an undue burden upon defendant to expend money upon attorney fees which the court should restore; and (5) "expenses and attornye's [sic] fees should be awarded when pleader's allegations are found to be untrue and made in bad faith without reasonable cause."
Thereafter, on December 22, 1980, a hearing was held on the motions for voluntary dismissal and for costs and attorney fees, after which the trial court entered an order allowing Model additional time to file proofs supporting its objection to Walsh's allegations. At that time, the court indicated that it was "gravitating to the position that [the suit] was unreasonable based on what [it had] heard so far."
At the second hearing, the court granted Model's motion for voluntary dismissal subject to payment of costs incurred by Walsh in the amount of $766.15. The next area of discussion was the award of attorney fees. At the outset, the record reveals that there was some confusion as to whether Walsh was proceeding under section 2-1009 or section 2-611.
"MR. KEEVERS: * * * I do have an objection to the interchangeable use of the word of `costs' and `attorney's fees'. These are two separate things recognized in the law. Section [2-1009] allows the costs. It does not allow for attorney's fees. Attorney's fees are conspicuous by their absence from Section [2-1009].
THE COURT: * * * which brings me back to a question, again, if Mr. Keevers' point is correct, and you say you are still proceeding under [2-1009]
THE COURT: You may do so, but then, that's in derogation of his view of the law. He thinks you should be under [2-611].
MR. KEATING: Well, my understanding is what you were doing, your Honor, is that you had read Section [2-1009] and that at the end of Section [2-1009], it says, dismissal, voluntary dismissal will be upon any other order of the court. I myself have never pursued the attorney's fees under Section [2-1009]. I thought that you were indicating to me that you believe that the attorney's fees might be pursued under [2-1009] under as other costs as the Court might deem reasonable.
THE COURT: Let me state for the record that I am aware of no case that permits me to allow attorney's fees under [2-1009].
MR. KEATING: I'm not either, your Honor.
THE COURT: I'm sorry if I
MR. KEATING: I wasn't going to close the gate and then ...