APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. HONORABLE ARTHUR L. DUNNE, JUDGE PRESIDING.
Released for Publication July 14, 1994. Petition for Leave to Appeal Denied October 6, 1994.
The opinion of the court was delivered by: Hoffman
JUSTICE HOFFMAN delivered the opinion of the court:
The defendants, Leo Pines and Phillip Pines, appeal from an order which denied them leave to file a motion for sanctions against the plaintiff, Robert Pines, after his action was dismissed with prejudice. The plaintiff cross-appeals for review of an order which denied his motion for voluntary dismissal without prejudice and dismissed the action with prejudice. We consider: (1) whether the trial Judge properly denied the defendants leave to file a motion for sanctions; (2) whether this court has jurisdiction over the plaintiff's cross-appeal to review the order dismissing the case with prejudice when the order stated that it was final and appealable, but the plaintiff dismissed his initial appeal from the order; (3) whether the trial Judge abused his discretion when he denied the plaintiff's motion for voluntary dismissal without prejudice and dismissed the case with prejudice; and (4) whether this court should review the denials of the defendants' motions for summary judgment and directed finding. For the following reasons, we reverse and remand with directions.
The plaintiff filed an action on August 7, 1989, against his father, Leo Pines, and his brother, Phillip Pines, requesting a constructive trust on certain stock. The complaint alleged that when the plaintiff was a minor his father converted the plaintiff's stock and transferred it to the plaintiff's brother as trustee of the father's trust.
The defendants answered the complaint, raised certain affirmative defenses, and subsequently filed a motion for summary judgment which was denied. The case was set for trial.
The bench trial was held on several days during a six-month period. After the plaintiff presented his case in chief, the defendants moved for a directed finding which was denied. While the defendants were presenting their case, they tendered documents for the first time which the plaintiff had requested during discovery. The plaintiff moved for a continuance indicating that he was considering reopening his case based on the documents. On December 14, 1992, the trial Judge reopened discovery and continued the trial generally.
Subsequently, the trial Judge retired from the bench and the case was reassigned to another Judge who denied the plaintiff's motion to amend his complaint and set a date for trial. There was no Discussion on the record as to whether the plaintiff would reopen his case or whether the trial would start over. The order, entered February 23, 1993, stated that "trial shall commence on March 3, 1993, at 11:00 a.m., with plaintiff's case."
The day after the order was entered, the plaintiff filed a motion for voluntary dismissal without prejudice under section 2-1009 of the Code of Civil Procedure (735 ILCS 5/2-1009 (West 1992)), asserting that the second trial had not yet begun and he was ready to tender the statutory costs to the defendants.
At the hearing on the motion, the defendants argued that the plaintiff was not entitled to a voluntary dismissal because they were in the middle of trial. The Judge responded, "Didn't we all agree the last time we were in here * * * that we were going to start anew?" After hearing the arguments of the parties, the Judge entered an order on February 26, 1993, denying the plaintiff's motion for voluntary dismissal without prejudice and dismissing the action with prejudice. The Judge stated that he found no reason to delay the enforcement or appeal of the order and the order recited that it was "final and appealable."
The plaintiff filed a notice of appeal within 30 days on March 19, 1993; the defendants filed a cross-appeal on March 25.
Several days later, on March 29, 1993, the defendants filed a motion for sanctions in the trial court arguing that the plaintiff's pleadings and answers to discovery violated Supreme Court Rule 137 (134 Ill. 2d R. 137) because the plaintiff made false allegations and statements in those documents. The defendants requested a lump sum for both attorney fees and costs.
The Judge denied the defendants leave to file the motion for sanctions on April 13, 1993, because it was "untimely" and struck the motion. The Judge acknowledged that the motion was filed within 30 days of the dismissal order and stated, "I'm not ...