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09/09/87 Joseph Schmitt Et Al., v. Motorola

September 9, 1987

JOSEPH SCHMITT ET AL., PLAINTIFFS-APPELLANTS

v.

MOTOROLA, INC., ET AL., DEFENDANTS-APPELLEES



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, THIRD DIVISION

513 N.E.2d 1069, 160 Ill. App. 3d 1059, 112 Ill. Dec. 460 1987.IL.1312

Appeal from the Circuit Court of Cook County; the Hon. Edwin A. Berman, Judge, presiding.

APPELLATE Judges:

PRESIDING JUSTICE McNAMARA delivered the opinion of the court. WHITE and FREEMAN, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MCNAMARA

Plaintiffs Joseph Schmitt and Anthony Carlin appeal from the trial court's denial of their motion for voluntary dismissal and the granting of defendants' motion for summary judgment. On appeal, plaintiffs claim that they have an absolute right to a voluntary dismissal without prejudice prior to trial or hearing pursuant to section 2-1009(a) of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2-1009(a)).

Plaintiffs filed this action on June 15, 1979, against defendants, Motorola Inc. (Motorola), Motorola Communications and Electronics, Inc. (Motorola Communications), and Industrial Electronics Service Company (Industrial Electronics), for personal injuries suffered as a result of using certain electronic communications equipment which was sold by defendants in an allegedly defective and unreasonably dangerous condition. On April 7, 1982, Motorola filed a counterclaim to recover the cost that plaintiffs agreed to pay for the equipment in question.

On January 21, 1982, the court directed plaintiffs to disclose any expert witnesses. Plaintiffs admitted that they had no such experts in a March 10, 1982, pretrial conference. On April 22, 1982, a court ordered plaintiffs to disclose an expert witness on or before July 22, 1982, or be barred from offering evidence as to causation at trial. Plaintiffs failed to disclose an expert by July 22, 1982.

On January 16, 1985, defendants Motorola and Motorola Communications sent supplemental interrogatories regarding plaintiffs' expert pursuant to Supreme Court Rule 220. When plaintiffs failed to respond, defendants filed a motion to bar plaintiffs from calling expert witnesses at trial. Plaintiffs were granted 60 days within which to name an expert. On June 13, 1986, plaintiffs were granted an additional 30 days within which to disclose an expert witness.

Plaintiffs failed to disclose an expert and on October 9, 1986, defendants presented motions for summary judgment. A hearing on these motions was scheduled for November 10, 1986. On November 6, 1986, plaintiffs filed a motion for voluntary dismissal without prejudice and presented it on November 10, prior to a hearing on defendants' motions for summary judgment. Plaintiffs' motion was denied. On December 18, 1986, the trial court, after reconsideration of plaintiffs' motion, again denied plaintiffs' motion for voluntary dismissal and granted summary judgment as to all defendants.

The Code of Civil Procedure, section 2-1009, allows a plaintiff to dismiss an action or any part thereof as to any defendant at any time before trial or hearing begins. However, after 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.) Section 13-217 of the Code of Civil Procedure allows a plaintiff who has voluntarily dismissed the complaint to commence a new action within one year after the dismissal or within the remaining period of limitations, whichever is greater. Ill. Rev. Stat. 1985, ch. 110, par. 13-217.

Motorola filed a counterclaim against plaintiffs to recover the purchase cost plaintiffs agreed to pay for the equipment in question. In addition, Motorola has not consented to the voluntary dismissal and therefore section 2 -- 1009 prohibits a voluntary dismissal by plaintiffs as to this defendant. Accordingly, the trial court properly denied plaintiffs' motion for voluntary dismissal as to Motorola.

Remaining for our consideration is the propriety of the denial of the voluntary dismissal in relation to the two other defendants.

In denying plaintiffs' motion, the trial court expressly relied on O'Connell v. St. Francis Hospital (1986), 112 Ill. 2d 273, 492 N.E.2d 1322. In O'Connell, defendants filed a motion to dismiss the lawsuit for lack of diligent service of process pursuant to Supreme Court Rule 103(b). (107 Ill. 2d R. 103(b).) Plaintiff then voluntarily dismissed and refiled his action pursuant to sections 2 -- 1009 and 13 -- 217 of the Illinois Code of Civil Procedure. Defendants raised their motion to dismiss for lack of diligent service in the new suit, claiming that plaintiff's right to dismiss and refile acted to defeat Rule 103(b)'s effort to insure prompt service and the prompt administration of Justice. Our supreme court found that section 2 -- 1009 conflicted with Rule 103(b) and resolved the conflict by applying the constitutional principle of separation of powers and the constitutional power vested in the supreme court to promulgate procedural rules. Where the statute conflicts with a supreme court rule, the rule ...


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