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08/11/89 Jerome J. Mancuso Et Al., v. Alda Blanche Beach Et Al.

August 11, 1989

JEROME J. MANCUSO ET AL., PLAINTIFFS-APPELLANTS

v.

ALDA BLANCHE BEACH ET AL., DEFENDANTS-APPELLEES



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIFTH DIVISION

543 N.E.2d 256, 187 Ill. App. 3d 388, 135 Ill. Dec. 21 1989.IL.1234

Appeal from the Circuit Court of Cook County; the Hon. Kenneth Gillis, Judge, presiding.

APPELLATE Judges:

JUSTICE COCCIA delivered the opinion of the court. LORENZ and PINCHAM, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE COCCIA

Plaintiffs Jerome and Joanne Mancuso have taken this appeal from an order entered by the circuit court, dismissing their third amended complaint. We have concluded that the circuit court erred in not following the mandate of this court issued after Mancuso v. Beach (1986), 149 Ill. App. 3d 188, 500 N.E.2d 589, was decided, when this case was first before us. Accordingly, we reverse and remand for proceedings consistent with that mandate.

The facts of this case are set forth in Mancuso I, and we shall only revisit them as necessary. Plaintiffs contracted for and ultimately purchased a home from Alda Blanche Beach and Robert Sanden, the beneficial owners, through Koenig & Strey, Inc., the real estate brokers. After purchasing the house, plaintiffs were dissatisfied not only with the condition of its roof, but also with the fact that the house was not air conditioned, contrary to alleged representations made by Koenig & Strey. Consequently, they brought an action for rescission or, alternatively, money damages in the circuit court.

Plaintiffs' original complaint was dismissed upon defendants' motions for failure to state a cause of action. Plaintiffs were allowed 28 days to replead, and they subsequently filed a first amended complaint. Beach and Sanden then moved to dismiss that complaint for failure to state a cause of action. Prior to a hearing on the motion to dismiss, plaintiffs moved for voluntary dismissal, pursuant to section 2-1009(a) of the Code of Civil Procedure (Ill. Rev. Stat. 1983, ch. 110, par. 2-1009(a)). Beach and Sanden opposed plaintiffs' motion, as did Koenig & Strey, which also moved to dismiss the first amended complaint for failure to state a cause of action. Judge Duff denied plaintiffs' motion for voluntary dismissal, granted defendants' motions to dismiss, and awarded defendants attorney fees on the grounds that plaintiffs' first amended complaint was filed in bad faith.

Plaintiffs appealed to this court. We determined in Mancuso I that the circuit court erred in denying plaintiffs' motion for voluntary dismissal and reversed the order awarding attorney fees. In light of that Disposition, we declined to reach the parties' arguments regarding the sufficiency of plaintiffs' first amended complaint. Our mandate ordered:

"The judgment of the Circuit Court of Cook County is REVERSED and this case is remanded for further proceedings consistent with the views expressed in the opinion of this Court filed herein."

After our mandate was filed in the circuit court, plaintiffs substituted attorneys. They also sought, and were given, leave to file what amounts to a second amended complaint, which the parties refer to as plaintiffs' "first amended complaint (No. 2)." Defendants moved to dismiss the second amended complaint, on the grounds that it was barred by Judge Duff's dismissal of plaintiffs' earlier complaints for failure to state a cause of action. (Ill. Rev. Stat. 1985, ch. 110, par. 2-619(a)(4).) Defendants contended that plaintiffs' second amended complaint was virtually identical to their previously dismissed complaints. Defendants also claimed that the circuit court only had authority to voluntarily dismiss plaintiffs' action, in light of our holding in Mancuso I.

Judge Gillis, who was assigned to the case upon remand, heard the defendants' motions on May 23, 1988. He disagreed with defendants' interpretation of our opinion. Unlike defendants, he concluded that plaintiffs had the option of seeking a voluntary dismissal, or amending their complaint, as it was his view that this court's mandate and decision in Mancuso I did not preclude them from amending their pleadings. Judge Gillis continued the hearing on the issue of whether plaintiffs' second amended complaint was barred by Judge Duff's rulings.

Thereafter, plaintiffs sought leave to file a third amended complaint. The continued hearing on defendants' motions to dismiss was held on July 7, 1988. Although plaintiffs were not given leave to file their third amended complaint before the hearing, the parties' arguments were based upon it, as if leave to file had indeed been granted. Judge Gillis was persuaded by defendants' claims that Judge Duff's rulings on the sufficiency of plaintiffs' earlier complaints barred the third amended complaint, so he granted the motions to dismiss. Counsel for plaintiffs then requested a formal ruling on the motion for leave to file the third amended complaint. He further asked for leave to "voluntarily dismiss" the second amended complaint. Defendants did not oppose the motion for leave to file the third amended complaint. Counsel for Beach and Sanden, however, contended that plaintiffs were not truly seeking a voluntary dismissal of their action, but rather a substitution of the third amended complaint for the second amended complaint. Counsel for plaintiffs admitted that he was asking to substitute the third amended complaint for the second amended complaint. Judge Gillis believed he had implicitly ruled upon plaintiffs' motion for leave to file by dismissing the third amended complaint, but he allowed the substitution of the third amended complaint for the second amended complaint. Finally, Judge Gillis reiterated that he was dismissing plaintiffs' third amended complaint on the grounds that it was barred by Judge Duff's previous rulings.

The order entered on July 7, 1988, from which plaintiffs appeal, clearly states that the third amended complaint was substituted for the second amended complaint, which plaintiffs were granted leave to withdraw. It is important to note that plaintiffs did not voluntarily dismiss within the meaning of section 2 -- 1009 of the Code of Civil Procedure, which is confirmed by the fact that they failed to pay ...


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