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02/22/89 Michael Gibellina, v. George Handley Et Al.

February 22, 1989

MICHAEL GIBELLINA, APPELLEE

v.

GEORGE HANDLEY ET AL., APPELLANTS. -- JOSEPH SCHMITT ET AL., APPELLEES,

v.

MOTOROLA COMMUNICATIONS AND ELECTRONICS, INC., ET AL. (MOTOROLA

COMMUNICATIONS AND ELECTRONICS, INC., APPELLANT). -- DAVID WARE, APPELLEE

v.

CENTRAL DUPAGE HOSPITAL ET AL., APPELLANTS



SUPREME COURT OF ILLINOIS

Nos. 65781, 66010, 66197 cons.

535 N.E.2d 858, 127 Ill. 2d 122, 129 Ill. Dec. 93 1989.IL.213

No. 65781. -- Appeal from the Appellate Court for the Second District; heard in that court on appeal from the Circuit Court of Du Page County, the Hon. Richard A. Lucas, Judge, presiding. No. 66010. -- Appeal from the Appellate Court for the First District; heard in that court on appeal from the Circuit Court of Cook County, the Hon. Edwin A. Berman, Judge, presiding. No. 66197. -- Appeal from the Appellate Court for the Second District; heard in that court on appeal from the Circuit Court of Du Page County, the Hon. Richard A. Lucas, Judge, presiding.

APPELLATE Judges:

JUSTICE CLARK delivered the opinion of the court. JUSTICE CALVO took no part in the consideration or decision of this case.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE CLARK

At issue in each of these cases is an interpretation of the scope and extent of the right extended to a plaintiff by the voluntary dismissal statute in the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2-1009). The cases are similar in these respects: In each case the appellant filed a pretrial motion for summary judgment and in each case the appellee subsequently filed a motion for voluntary dismissal before any decision had been entered on appellants' motion for summary judgment. Each trial court granted the motion for summary judgment and denied the appellees' motion for voluntary dismissal. The appellate court reversed in each instance, holding that, because the trial courts did not have the discretion to hear the appellants' motions in advance of appellees' motions for voluntary dismissal, they therefore erred in denying the motions for voluntary dismissal. (Gibellina, 158 Ill. App. 3d 866; Schmitt, 160 Ill. App. 3d 1059; Ware, 161 Ill. App. 3d 1160 (unpublished order under Supreme Court Rule 23).) Appellants' petitions for leave to appeal were each granted (107 Ill. 2d R. 315) and these cases were consolidated; Gibellina and Schmitt were consolidated before oral argument while Ware was added following oral argument before this court. The Illinois Association of Defense Trial Counsel was granted leave to file an amicus curiae brief in support of appellants' position and the Illinois Trial Lawyers Association was similarly granted leave to file an amicus curiae brief on behalf of appellees' position. While, for the reasons stated herein, we today affirm the decisions of the appellate court, we announce a prospective change, elaborated below, which is initiated to curb the current abuses of the voluntary dismissal statute.

Because each case presents a somewhat different procedural history, and because appellants assert that change in the law is required because of the extensive abuse of the statutory right, the procedural background of each case will be presented before a Discussion of the scope and extent of the rights embodied in the voluntary dismissal statute.

Gibellina v. Handley, No. 65781, is a medical malpractice action first initiated in the Cook County circuit court in early 1983. Appellee filed a complaint which alleged that surgery had been negligently performed at Central DuPage Hospital in Du Page County in March 1981. Nineteen defendants were named in the suit; 18 of the defendants resided in Du Page County and one resided in Cook County. In July 1985 the case was transferred to the circuit court of Du Page County, where a status hearing was held on December 30, 1985. At the status hearing the court set a pretrial conference for July 11, 1986, with trial to commence on August 11, 1986. During the early months of 1986, appellants, the defendants in the court below, filed various interrogatories and requests for identification of the appellee's expert witnesses. Failing a full response to the interrogatories and requests, on May 5, 1986, the court ordered that appellee respond to all outstanding discovery requests by May 19, 1986. Appellee, however, indicated that he had not as yet selected an expert witness. Appellants then filed additional requests during May and June, to which appellee did not respond. During the pretrial conference on July 11, 1986, the appellee was still not prepared to name an expert witness; on appellants' motion the trial court therefore barred appellee from presenting expert witnesses at the trial pursuant to Supreme Court Rule 220 (107 Ill. 2d R. 220). Following this ruling barring testimony from expert witnesses, appellants individually filed affidavits and motions for summary judgment. On August 4, 1986, the appellee filed a motion to vacate the July 11 order barring expert witnesses, asserting that more time was needed to complete discovery prior to naming experts. The court denied the motion to vacate, but did order that the deposition of one of the appellants be completed by August 8, 1986, the date on which the court had scheduled a hearing on the summary judgment motions. In the interim, appellee filed a section 2-1009 motion (Ill. Rev. Stat. 1985, ch. 110, par. 2-1009) for voluntary dismissal and scheduled arguments on the motion for August 7. Appellants objected to the section 2-1009 motion, asserting that their previously filed and potentially dispositive motions for summary judgment took precedence. Based on our decision in O'Connell v. St. Francis Hospital (1986), 112 Ill. 2d 273, the trial court denied appellee's motion pending a hearing on the appellants' motions for summary judgment. Because appellee would be barred from presenting expert witness testimony at the trial to establish a deviation from the medical standard of care, the trial court granted summary judgment for the appellants. Appellee appealed from the orders barring expert testimony, denying the motion for voluntary dismissal and granting the motion for summary judgment. The appellate court reversed the trial court's denial of the motion for voluntary dismissal and did not address the remaining issues. 158 Ill. App. 3d 866.

Schmitt v. Motorola Communications and Electronics, Inc., No. 66010, is a products liability case first filed on June 15, 1979, against three parties: Motorola, Inc., Motorola Communications and Electronics, Inc., and Industrial Electronics Service Corporation. The complaint alleged that communications equipment purchased on June 21, 1977, had generated excessive amounts of electromagnetic radiation which caused loss of hair, loss of hearing, headaches, sporadic blurred vision, muscle spasms and pain. Approximately three years later, on April 17, 1982, one of the named defendants, Motorola, Inc., filed a counterclaim against appellees based on their failure to pay for the communications equipment. A few days later, on April 22, 1982, Motorola, Inc., also requested that the court regulate discovery. Although appellees had previously responded to interrogatories by naming 11 individuals as their expert witnesses, it appears from the record that they had merely named nationally known authorities on radio wave emissions and had never personally contacted these authorities to serve as experts for this litigation. At the April 22 hearing, appellees were ordered to disclose their experts on or before July 22, 1982. However, 2 1/2 years later, on January 16, 1985, appellants again filed interrogatories pursuant to Supreme Court Rule 220 because appellees had not, as of that date, disclosed experts. Subsequently, one year later, on February 24, 1986, Motorola, Inc., moved to bar appellees from calling any expert witnesses at trial based on their failure to comply with the Rule 220 interrogatories. However, the court again instructed the appellees to name an expert, this time requiring that disclosure be made on or before June 13, 1986. On June 13 the court granted an additional 30-day extension with the stipulation that should appellees fail to disclose experts by that time they would be barred from calling any experts at trial. Appellees failed to disclose expert witnesses as ordered and on October 9, 1986, all appellants moved for summary judgment based on the assertion that appellees would be unable to establish a defect in the products without expert testimony. The motion was set for a briefing schedule and a hearing date; however, before the hearing could be held on the summary judgment motion, the appellees, on November 6, 1986, filed a section 2 -- 1009 motion to voluntarily dismiss the suit. On November 10 the motion for voluntary dismissal was preliminarily denied, again based on O'Connell, but subject to a rehearing after briefing by all the parties. On rehearing, held December 18, 1986, the court denied the voluntary dismissal motion and granted appellants' motion for summary judgment. The appellate court affirmed the trial court's denial of the voluntary dismissal as to Motorola, Inc., since Motorola's previously filed counterclaim terminated the absolute right of the plaintiff to voluntarily dismiss, but reversed as to Motorola Communications and Electronics, Inc., and Industrial Electronics Service Company. It also affirmed the trial court's granting of Motorola, Inc.'s motion for summary judgment but reversed as to Motorola Communications and Industrial Electronics. 160 Ill. App. 3d 1059.

Gibellina and Schmitt raise the following issues in their combined brief: (1) whether there is an absolute right to voluntarily dismiss when there are pending motions for summary judgment; (2) whether the voluntary dismissal statute unduly infringes on the judiciary's constitutional authority to regulate the judicial system; and (3) whether the voluntary dismissal statute is violative of the equal protection clause of the Illinois Constitution by conferring a right to plaintiffs and not to defendants. As discussed below, under current law we must answer the first question in the affirmative and the second and third in the negative. However, with today's decision, the right of a plaintiff to voluntarily dismiss a suit will henceforth be subject to certain further limitations as elaborated below.

The third case in this consolidation, Ware v. Central DuPage Hospital, No. 66197, is another medical malpractice action. The Ware case was filed in the Du Page County circuit court on August 14, 1985, alleging injuries suffered as a result of surgery and care provided in January and May 1984. From the record, it appears that the appellants first served written interrogatories and a production request on appellee on December 4, 1985. This was followed on January 14, 1986, by an official request pursuant to Rule 201(k) (107 Ill. 2d R. 201(k)). Appellee was ordered to comply with discovery by April 21, 1986, which was later extended to May 1, 1986, and was further instructed to disclose his expert by June 1, 1986. On June 23, when appellee had not yet disclosed his expert witness, the appellants filed a motion to bar experts at the trial based on the failure to comply with the court order for disclosure. The motion was granted but vacated one week later on June 30, 1986; the order to vacate granted an extension to July 21 for the disclosure of experts, and additionally set a date for a status hearing on August 4, 1986. At the August 4 status hearing, the appellants moved for summary judgment based on the appellee's continued refusal to disclose an expert, as that failure now barred appellee from providing expert testimony at the trial. The appellee, at the same hearing, moved for a voluntary dismissal pursuant to section 2 -- 1009. The circuit court granted the appellants' motion for summary judgment and dismissed appellee's motion for voluntary dismissal. Appellee subsequently moved to vacate the August 4 orders, which motion was denied on September 15, 1986. The appellate court reversed. (161 Ill. App. 3d 1160 (unpublished order under Supreme Court Rule 23).) Ware raises the following issues for review: (1) whether the trial court correctly considered the summary judgment motion prior to the voluntary dismissal motion; (2) whether the voluntary dismissal statute is unconstitutionally violative of the separation of powers requirement; and (3) whether the voluntary dismissal statute is permissive rather than mandatory when there is a previously filed motion that will dispose of the case. Again, as discussed below, while we answer these three questions in the negative, prospective changes announced herein will alter future analysis in some cases.

These three cases are representative of the myriad of ways in which plaintiffs have utilized the voluntary dismissal statute, ranging from the potentially abusive to the innocuous. While appellants categorize plaintiffs' conduct in all three cases as unequivocally abusive of the judicial process, on review that contention is not so clear. To briefly summarize the cases, we note that Schmitt v. Motorola, which could be characterized as an egregious example of tactical delay, was first filed in 1979, almost a decade ago, based on complaints about a product bought two years before that. The record indicates sporadic efforts at resolution by defendants as well as plaintiffs. One of the original defendants, for example, filed a counterclaim three years after the original complaint was filed and five years after the products were purchased. Gibellina v. Handley represents a less egregious example. That case was initiated in Cook County in 1983 based on alleged medical malpractice which occurred in 1981, but was only transferred to Du Page County in mid-1985. While its first status hearing in Du Page County was held in December 1985, the orders here in dispute were filed in August 1986, less than one year after entering the Du Page County court system. Ware v. Central DuPage Hospital, however, is a less egregious example of a plaintiff's utilization of the voluntary dismissal statute. Ware first filed his complaint in August 1985 in the Du Page County circuit court, well before the expiration of the statute of limitations. Ware's claim was based on alleged medical malpractice occurring in January and May 1984. One year after the appellee first filed the action, the court denied appellee's motion for voluntary dismissal under section 2 -- 1009.

While each appellant phrases the issues presented to this court a little differently, the gist of their argument is that, in any case, once a motion has been filed for summary judgment that motion should be heard ...


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