The opinion of the court was delivered by: Justice Freeman
Docket No. 95593-Agenda 31-September 2003.
This appeal arises from the circuit court's denial of plaintiff's motion to voluntarily dismiss count III of a multicount complaint. The appellate court affirmed (335 Ill. App. 3d 1089), and we granted plaintiff leave to appeal (177 Ill. 2d R. 315). We reverse and remand the matter to the circuit court for further proceedings.
On November 22, 2000, plaintiff, Randell L.D. Smith, filed a pro se complaint *fn1 against defendants, Central Illinois Regional Airport, The Prairie Aviation Museum, and The Pantagraph, in the circuit court of McLean County. Count I of the complaint alleged that each summer, defendants operated, sponsored, and otherwise promoted a dangerous airshow near plaintiff's property in Bloomington, Illinois. According to plaintiff's allegations, the low-flying military and commercial aircraft that participated in the shows engaged in acrobatic and stunt maneuvers which were unreasonably dangerous and unnecessary. The aircraft, plaintiff alleged, along with the loud noises, crowds, dirt, fumes, and other noxious materials associated with the airshows constituted a nuisance, which "is dangerous, continuing, and recurrent each summer, and unless enjoined, will result in continued damage to the Plaintiff and other citizens of the Bloomington-Normal community and possible death and destruction caused by a low level air mishap occurring during stunts and air acrobatics." Plaintiff claimed no adequate remedy at law for his damages and sought injunctive relief from the court. Count II contained similar allegations, but sought relief on the theory that the airshow constituted a common law trespass upon plaintiff's property and requested $3 million in damages. In count III, the subject of this appeal, plaintiff alleged that defendants' actions in operating the airshow constituted an inverse condemnation of his property, with plaintiff seeking $5 million in compensatory damages.
On December 29, 2000, each defendant filed a motion to dismiss the complaint pursuant to section 2-615 of the Code of Civil Procedure (735 ILCS 5/2-615 (West 2000)). Defendants maintained that federal laws and regulations preempted plaintiff's causes of action sounding in nuisance and trespass. Defendant Central Illinois Regional Airport also asserted that federal laws and regulations preempted defendant's inverse condemnation action. The remaining defendants argued in their respective motions that plaintiff failed to state a cause of action against them sounding in inverse condemnation. *fn2
The circuit court ruled on the motions in an order entered on February 27, 2001. The court dismissed both the nuisance and trespass counts of the complaint with prejudice. As to count III, the order read as follows:
"Count III is dismissed with Plaintiff given 60 days to file amended Count III, defendants shall reply or motion any amended pleading within 30 days thereafter."
On February 28, 2001, plaintiff filed a notice of interlocutory appeal, challenging the circuit court's order with respect to count I.
While the interlocutory appeal was pending, *fn3 plaintiff, on April 12, 2001, filed a motion to voluntary dismiss count III without prejudice. After hearing arguments on the motion to voluntarily dismiss, the circuit court on May 2, 2001, ruled that count III had been previously dismissed with leave to file an amendment within 60 days and that 60 days had passed without such a filing. The court concluded that plaintiff's failure to amend count III was "determinative" and thereafter denied the motion for voluntary dismissal.
Plaintiff then appealed both the February 27, 2001, and the May 2, 2001, orders of the circuit court. In an unpublished order filed on January 30, 2002, the appellate court concluded that it lacked jurisdiction to hear the case because the order of February 27, 2001, was not a final order from which an appeal could be taken. Smith v. Central Illinois Regional Airport, No. 4-01-0388 (January 30, 2002) (unpublished order under Supreme Court Rule 23). Following the issuance of that order, plaintiff returned to the circuit court and filed an "Amended Motion to Dismiss." In the motion, plaintiff asserted that he had an absolute right to a voluntary dismissal. After considering the motion, the circuit court entered the following order:
"The Court rules that plaintiff's Complaint has previously been dismissed by the Court's Order of February 27, 2000. [sic] Plaintiff having failed to amend Count III within the time permitted, Count III is hereby dismissed with prejudice. Plaintiff's Amended Motion to Dismiss is denied as moot."
Plaintiff appealed, arguing that the circuit court erred in denying his motion because plaintiff had an unfettered right to voluntarily dismiss count III pursuant to section 2-1009(a) of the Code of Civil Procedure (735 ILCS 5/2-1009(a) (West 2000)).
The appellate court affirmed, with one justice dissenting. The majority of the appellate court ruled that once the circuit court dismissed count III, on February 27, plaintiff could have either amended that count or accepted the court's dismissal. "However, he could not seek to voluntarily dismiss count III. Simply put, no matter how unfettered the right to voluntarily ...