APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIRST DIVISION
510 N.E.2d 84, 157 Ill. App. 3d 66, 109 Ill. Dec. 463 1987.IL.814
Appeal from the Circuit Court of Cook County; the Hon. Anthony J. Bosco, Judge, presiding.
JUSTICE CAMPBELL delivered the opinion of the court. QUINLAN, P.J., and BUCKLEY, J., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE CAMPBELL
This interlocutory appeal arises out of a cause of action filed on April 16, 1981, by plaintiff, Jack Lighthart, alleging common law negligence against defendants, Dr. Leo Pevner and The Irving-Itasca Industrial Medical Clinic, Inc. (the clinic). Following Dr. Pevner's death during the pendency of the lawsuit, Stella Pevner, decedent's wife, and American National Bank and Trust Company (the bank) were appointed as special administrators *fn1 of Dr. Pevner's estate and substituted as parties defendant.
On Friday, February 21, 1986, prior to commencement of voir dire, the trial court granted plaintiff's oral motion for voluntary dismissal of the co-executors with the express intent that the clinic remain as sole defendant. When the clinic asked if the dismissal of the co-executors was with prejudice, the court replied that it was. On Monday, February 24, 1986, the February 21 order granting dismissal of the co-executors was reduced to writing and entered. As written, the order stated, inter alia, that the dismissal of the co-executors was "with prejudice," effective nunc pro tunc to February 21, 1986.
At the same proceeding, predicated on the dismissal of the co-executors with prejudice, defendant clinic then moved for summary judgment, arguing that the complaint did not contain any theory against the clinic which would relate the clinic to the actions of Dr. Pevner. In response, plaintiff moved to add an allegation that Dr. Pevner had been president, an officer of the medical corporation, and had acted as the clinic's agent. The trial court denied the summary judgment motion, stating that the complaint had alleged a fiduciary relationship between Dr. Pevner and the clinic. However, the court further allowed plaintiff to amend the complaint to resolve any ambiguity with respect to the alleged fiduciary relationship.
Following denial of its summary judgment motion, the clinic clarified with the court that the cause of action against the clinic was predicated solely on the clinic's alleged derivative liability for any alleged acts or omissions of Dr. Pevner. When the court agreed, the clinic moved to dismiss the action on the ground that once the co-executors were dismissed with prejudice, the doctrines of res judicata and collateral estoppel barred plaintiff from asserting derivative liability against the clinic.
The trial court concurred with defendant's application of the law, but stated that when the February 21 order was amended nunc pro tunc by the first February 24 order to add the words "with prejudice," it had not been the intention of either the court or plaintiff to dismiss the entire cause of action. Accordingly, in the interests of Justice, the trial court entered a second February 24 order which vacated the first February 24 order and reinstated the oral February 21 order, amended to add the language "without prejudice" plus a statement that plaintiff agreed not to refile an action against Dr. Pevner's estate. As a result, defendant moved for a mistrial and also requested that the court add the "final and appealable" language of Supreme Court Rule 304(a) (103 Ill. 2d R. 304(a)) to its second February 24 order. The court granted the motion and defendant's interlocutory appeal followed.
On appeal, defendant contends that: (1) the trial court erred and abused its discretion in vacating the order dismissing the co-executors with prejudice and denying the clinic's motion to dismiss; and (2) the voluntary dismissal of the co-executors with prejudice acted as an adjudication on the merits and thus, pursuant to the doctrines of res judicata and collateral estoppel, plaintiff was barred from asserting a derivative claim against the clinic. For the reasons that follow, we affirm the second February 24 order entered by the circuit court.
Defendant first contends that the trial court abused its discretion when it permitted plaintiff to voluntarily dismiss the co-executors without prejudice after a jury had been selected without making the requisite showing under section 2-1009(a) of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2-1009(a)).
Section 2 -- 1009(a) states, in pertinent part:
"The plaintiff may, at any time before trial or hearing begins, upon notice to each party who has appeared or each such party's attorney, and upon payment of costs, dismiss his or her action or any part thereof as to any ...