Appeal from Circuit Court of Adams County No. 94L102
The opinion of the court was delivered by: Justice Myerscough
IN THE COURT OF APPEALS OF THE STATE OF ILLINOIS
Honorable Dennis K. Cashman, Judge Presiding.
In September 1994, plaintiff Ronald Morrison filed this medical malpractice action in the circuit court of Adams County against defendants C.G. Wagner, M.D., a radiologist, St. Mary's Hospital, Inc. (St. Mary's), and Michael Feely, M.D., a neurosurgeon. Plaintiff Sharon Morrison filed counts for claims of loss of consortium against each defendant. In June 1997, plaintiffs filed a motion to voluntarily dismiss their case without prejudice, pursuant to section 2-1009 of the Code of Civil Procedure (Code) (735 ILCS 5/2-1009 (West 1996)), which the trial court denied "pursuant to [Supreme Court] Rule 219(e)" (166 Ill. 2d R. 219(e)).
On October 6, 1997, St. Mary's entered into a settlement agreement with plaintiffs, and the court entered an order of dismissal. Trial began on October 7, 1997, and on October 15 the court declared a mistrial as to defendant Feely. Trial resumed as to defendant Wagner, and on October 15, 1997, the jury returned a verdict in favor of Wagner. Plaintiffs filed motions for judgment notwithstanding the verdict (n.o.v.) and for a new trial. In May 1998, following a hearing, plaintiffs' posttrial motions were denied.
On appeal, plaintiffs argue that (1) the trial court abused its discretion in denying plaintiffs' motion for voluntary dismissal prior to trial, (2) the trial court erred in denying plaintiffs' motion for judgment n.o.v., and (3) the trial court erred in denying plaintiffs' motion for a new trial. We agree that the trial court abused its discretion in denying plaintiffs' motion for voluntary dismissal.
In June 1997, pursuant to section 2-1009 of the Code, plaintiffs filed a motion to voluntarily dismiss their case without prejudice. At the time plaintiffs filed their motion for voluntary dismissal, the case had been pending for three years and was scheduled for trial in just a few months.
Plaintiffs failed to comply with numerous discovery requests over the three-year period until a motion to compel was filed in March 1997. In addition, in March 1997, plaintiffs failed to disclose expert witnesses in violation of court orders. In May 1997, shortly before the motion to voluntarily dismiss was filed, the court entered an order barring the testimony of two of plaintiffs' opinion witnesses because of plaintiffs' failure to disclose them in a timely manner. The court, noting the file was "replete with instances of dilatory conduct of plaintiffs' counsel," also limited the testimony of two other opinion witnesses.
Defendants St. Mary's and Feely objected to the motion to dismiss because plaintiffs did not allege that costs had been tendered to defendants. Plaintiffs filed an amended motion in June 1997, alleging that plaintiffs had tendered payment of costs to each defendant. Wagner, not filing an objection to plaintiffs' motion, filed instead a motion for an award of costs. After a hearing on the amended motion, the trial court denied the motion "pursuant to [Supreme Court] Rule 219(e)." 166 Ill. 2d R. 219(e). This appeal followed.
The crucial question on appeal is whether the trial court had the discretion, pursuant to Supreme Court Rule 219(e), to deny the motion. We find it did not.
Section 2-1009 of the Code provides as follows:
"(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 1996). This court has held this section provides an absolute right to dismissal, "regardless of the nature of counsel's conduct." Kilpatrick v. First Church of the Nazarene, 177 Ill. App. 3d 83, 88-89, 531 N.E.2d 1135, 1138-39 (1988); see also Gibellina v. Handley, 127 Ill. 2d 122, 137-38, 535 N.E.2d 858, 866 (1989) (trial court may hear and decide a motion which has been filed prior to a section 2-1009 motion and which, if ...