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March 29, 1994


Appeal from the Circuit Court of Cook County. Honorable Donald J. O'Brien, Jr., Judge Presiding.

Petition for Leave to Appeal Denied October 6, 1994.

Hartman, Scariano, McCORMICK

The opinion of the court was delivered by: Hartman

JUSTICE HARTMAN delivered the opinion of the court:

Defendants appeal from a final order granting plaintiffs' motion for voluntary dismissal of twenty-three consolidated cases arising from the crash of United Airlines Flight 232 (Flight 232) at Sioux City, Iowa, on July 19, 1989. The issues raised here are whether (1) the circuit court erred in granting plaintiffs' motion for voluntary dismissal; (2) the voluntary dismissal statute as applied here violated constitutional separation of powers provisions; (3) plaintiffs are estopped from seeking or have waived their right to seek voluntary dismissal; and (4) the circuit court erred in refusing to exercise its discretion to hear and decide summary judgment motions.

The Flight 232 plane crash generated numerous lawsuits in over 36 state and federal jurisdictions. The federal cases were consolidated in the Northern District of Illinois. The Cook County complaints were consolidated before the presiding Judge of the law division of the circuit court of Cook County who, on March 23, 1990, coordinated all discovery with the federal actions pursuant to the parties' agreement. A written order, entered May 21, 1991, adopted federal discovery deadlines, but permitted exceptions for good cause. Thereafter, the matter was assigned to the present court.

On February 4, 1992, after the deadlines had expired, plaintiffs' motion to reopen discovery was denied, the circuit court finding that plaintiffs had failed to show good cause. During the hearing, the court suggested that the parties meet and seek a compromise on additional discovery, so that the cases docketed in the "89 L" series could proceed on track; otherwise, discovery with respect to oral testimony would not be reopened.

On February 11, 1992, the parties reported to the court that they were unable to agree to further discovery. Although the court questioned whether it could modify an agreed discovery schedule, it did order certain limited additional discovery. On April 7, 1992, plaintiffs filed another motion to open discovery. At the hearing on this motion, the circuit court, although acknowledging that discovery was closed, stated it would permit additional discovery upon a showing of good cause. Over the next nine months, the court presided over a number of hearings pertaining to discovery and motion matters, ultimately granted plaintiffs some additional discovery, and set a March 15, 1993 trial date.

On November 20, 1992, plaintiffs filed a motion to voluntarily dismiss all pending cases. At the hearing on the motion, the court urged the parties to compromise stating:

"While I agree with a lot of the defendants' equitable arguments, that the law, not the equities, favors the plaintiffs. * * * However, * * * it might be wise that you people sit down and see if there is a way that we can avoid the 2-1009 problem, because as I indicated with my opening remarks, that there is no question in my mind that this motion has been filed to avoid discovery deadlines and cut-offs, but there is a middle ground."

On January 12, 1993, the parties again met with the court and disclosed that they were unable to agree to additional discovery. The arguments of the parties were noted, including the fact that two defendants had motions for summary judgment pending that had been filed prior to plaintiffs' motion to dismiss. In granting plaintiffs' motion, the court stated that, "were it within my power to not grant the motion, my tendency would be to not grant the motion; but based on the law, as it exists in the state of Illinois, pursuant to Gibellina and its progeny, I feel that I must grant the motion." Defendants appeal, raising the points first noted.


Defendants contend that the circuit court erred in granting plaintiffs' motion for voluntary dismissal because it was operating under the erroneous belief that it lacked discretion to deny the motion, which, defendants argue, the court must have when a voluntary dismissal motion constitutes an egregious abuse of the judicial system. Given the complexity of this mass tort case as well as the parties' agreement concerning discovery scheduling, defendants ask this court to carve out an exception to plaintiffs' right to nonsuit in order to prevent discovery abuse.

At common law, plaintiff was permitted to take a nonsuit any time prior to entry of a decision by the Judge or the jury. ( Gibellina v. Handley (1989), 127 Ill. 2d 122, 132, 535 N.E.2d 858, 129 Ill. Dec. 93 (Gibellina).) The Illinois Legislature modified this right by statute so that section 5/2-1009 of the Civil Practice Law provides, in part, as follows:

"Voluntary dismissal. (a) 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 defendant, without prejudice, by order filed in the cause."

735 ILCS 5/2-1009(a) (West 1992) (formerly Ill. Rev. Stat. 1991, ch. 110, par. 2-1009(a)).

Recently, our supreme court placed certain limitations on plaintiff's right to nonsuit and, while doing so, held that where a statute conflicts with a rule of the supreme court in such a way that the statute unduly infringes upon the court's constitutional authority to regulate the judicial system, the rule will control. ( O'Connell v. St. Francis Hospital (1986), 112 Ill. 2d 273, 281, 492 N.E.2d 1322, 97 Ill. Dec. 449 (O'Connell).) Later, the supreme court held that the circuit court "may hear and decide a motion which has been filed prior to a section 2-1009[(a)] motion when that motion, if favorably ruled on by the court, could result in a final Disposition of the case." ( Gibellina, 127 Ill. 2d at 138.) Essentially the same Gibellina language was codified into law by the legislature (Pub. Act 88-157, eff. January 1, 1994 (amending 735 ILCS 5/2-1009 (West 1992) (formerly Ill. Rev. Stat. 1991, ch. 110, par. 2-1009))). See also Fumarolo v. Chicago Board of Education (1990), 142 Ill. 2d 54, 566 N.E.2d 1283, 153 Ill. Dec. 177 (holding that under certain circumstances, even a later filed dispositive defense motion could preclude nonsuit).

We have held recently that, other than these limited exceptions, under current case law the right to nonsuit cannot be challenged. ( Crawford v. Schaeffer (1992), 226 Ill. App. 3d 129, 135, 590 N.E.2d 497, 168 Ill. App. 860.) We also have stated that we would "hesitate to impose any restrictions, no matter how warranted by circumstances and policy, absent guidance from the legislature or the supreme court." Crawford, 226 Ill. App. 3d at 135-36.

In the case sub judice, the circuit court acknowledged that plaintiffs' motion for voluntary dismissal arose "out of a discovery problem" and had "been filed to avoid discovery deadlines and cut-offs." Defendants raise valid concerns about the potentially abusive motives underlying plaintiffs' motion to dismiss; however, discovery abuse has not been identified by the legislature or supreme court as a basis for eliminating or restricting the right to nonsuit. (See Gibellina (court granted discretion to hear a previously filed, potentially dispositive defense motion); O'Connell (lack of diligence in service of process on defendants); Bochantin v. Petroff (1991), 145 Ill. 2d 1, 582 N.E.2d 114, 163 Ill. Dec. 848 (Bochantin) (refusal to extend Gibellina to require the circuit court to hear a previously filed defense motion notwithstanding a history of procedural and discovery abuses by plaintiff); Mizell v. Passo (1992), 147 Ill. 2d 420, 590 N.E.2d 449, 168 Ill. Dec. 812 (plaintiff's delay in obtaining a certificate required by section 2-622 of the Code of Civil Procedure); Galowich v. Beech Aircraft Corp. (1982), 92 Ill. 2d 157, 441 N.E.2d 318, 65 Ill. Dec. 405 (refusal to assess defendants' deposition costs against a plaintiff who voluntarily dismisses since litigants must bear their own litigation and trial-preparation expenses).) Defendants' contention that this court should carve out a further exception to eliminate abuse of discovery is beyond precedent.

An argument analogous to that raised by defendants here was rejected by the supreme court in Gibellina. There, appellants asked the court to correct an abusive situation where voluntary dismissal motions were being used to evade the consequences of a failure to comply with discovery rules. ( Gibellina, 127 Ill. 2d at 134.) The court, however, noted the existence of a panoply of other available remedies for discovery abuse, such as Supreme Court Rule 219(c) (107 Ill. 2d R. 219(c)), and refused to strip plaintiffs of a statutory right. The court stated that it would "not accept appellants' invitation to unequivocally alter a statutory protection merely to remedy the perceived reticence of the trial court to manage and control litigation as tightly as a defendant might like." ( Gibellina, 127 Ill. 2d at 135.) Similarly, the supreme court in Bochantin ...

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