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01/10/89 Cruz Cardenas, v. the Village of Oak Brook

January 10, 1989

CRUZ CARDENAS, PLAINTIFF-APPELLANT

v.

THE VILLAGE OF OAK BROOK ET AL., DEFENDANTS-APPELLEES



APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

533 N.E.2d 947, 178 Ill. App. 3d 605, 127 Ill. Dec. 865

Appeal from the Circuit Court of Du Page County; the Hon. Richard A. Lucas, Judge, presiding. 1989.IL.10

APPELLATE Judges:

JUSTICE INGLIS delivered the opinion of the court. UNVERZAGT, P.J., and DUNN, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE INGLIS

Plaintiff, Cruz Cardenas, appeals from trial court orders granting summary judgment in favor of defendants, Village of Oak Brook (Village) and Saddle Brook Development Company (Saddle Brook), and holding plaintiff's motion for voluntary dismissal moot as a result of the summary judgment rulings. The issue raised on appeal is whether the trial court erred in ruling on defendants' motions for summary judgment prior to plaintiff's motion for voluntary dismissal. Plaintiff also challenges the propriety of the trial court's ruling on defendants' motions. We reverse.

The parties are familiar with the facts underlying this cause and they will be repeated here only as necessary to an understanding of our Disposition.

Plaintiff's complaint alleged a cause of action against defendants in three counts. Count III of plaintiff's complaint was dismissed on June 6, 1984, and no amended count III was filed. This cause was set for trial on the remaining counts on August 26, 1986.

On August 12, 1986, Saddle Brook filed a motion for summary judgment on counts I and II of plaintiff's complaint, and Oak Brook later joined in that motion. The trial Judge continued the hearing on defendants' motions to August 25, 1986.

On August 25, 1986, plaintiff presented a motion for voluntary dismissal pursuant to section 2-1009 of the Code of Civil Procedure (Code) (Ill. Rev. Stat. 1987, ch. 110, par. 2-1009). Plaintiff's motion was properly noticed and accompanied by a tender of defendants' costs as required by statute. (See Ill. Rev. Stat. 1987, ch. 110, par. 2-1009(a).) The court continued all of the motions to September 15, 1986. In its order, the court stated that plaintiff's motion would be considered after a hearing on defendants' motions for summary judgment.

After two additional continuances, the court ruled on the motions on October 6, 1986. The court denied defendants' motions for summary judgment as to count I, but granted the motions as to count II. That order stated that there was no just reason to delay enforcement or appeal. In a separate order also entered on October 6, 1986, the court granted plaintiff's motion for voluntary dismissal as to count I, but found that plaintiff's motion for voluntary dismissal as to count II was rendered moot by the prior grant of summary judgment on that count in favor of defendants.

On November 5, 1986, plaintiff filed a motion for rehearing and to vacate the order granting summary judgment in favor of defendants. On March 23, 1987, the court denied plaintiff's motion for rehearing. Plaintiff brought this appeal on April 20, 1987.

This cause was originally set on our January 1988 docket. On December 8, 1987, we dismissed plaintiff's appeal in an order pursuant to Supreme Court Rule 23 (107 Ill. 2d R. 23) after concluding that the appeal was not timely. (Cardenas v. Village of Oak Brook (1987), 162 Ill. App. 3d 1168 (unpublished Rule 23 order).) In so ruling, we relied on our supreme court's decision in Elg v. Whittington (November 16, 1987), No. 64396, wherein the court held that the filing of a timely post-trial motion did not toll the 30-day period for filing an appeal from a final and appealable order. Subsequent to our order dismissing plaintiff's appeal, the supreme court modified its opinion in Elg and held that the rule stated in that opinion should be given prospective application only. (Elg v. Whittington (1987), 119 Ill. 2d 344, 359.) Pursuant to its supervisory authority and in accordance with its modified opinion in Elg, the supreme court has remanded the cause to this court for consideration of the appeal on its merits.

Plaintiff first contends that the trial court erred in continuing plaintiff's motion for voluntary dismissal until after the hearing on defendants' ...


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