
                                             FOURTH DIVISION
                                             FILED: 02/21/02











No.  1-00-1742


MARTA VALDOVINOS, as parent, guardian, and next friend   )    Appeal from
                                             the
of DANIEL VALDOVINOS, a disabled minor; and THE CHICAGO  )    Circuit Court
                                             of
TITLE AND TRUST COMPANY, an Illinois corporation, as          )     Cook
                                             County
guardian of the estate of DANIEL VALDOVINOS, a disabled minor;      )
                                             )
      Plaintiffs-Appellees/Cross-Appellants,             )
                                             )
                 v.                          )
                                             )
LUNA-MANALAC MEDICAL CENTER, LTD., d/b/a ANTILLAS  )
FAMILY HEALTH CENTER, an Illinois corporation, and       )
JULIETTA LUNA JOSON, M.D., individually and as an agent  )
and employee of LUNA-MANALAC MEDICAL CENTER, LTD.,       )
d/b/a ANTILLAS FAMILY HEALTH CENTER;               )
                                             )
      Defendants-Appellants/Cross-Appellees.             )
                                             )
                 and                         )
                                             )     Honorable
PARKE, DAVIS & COMPANY, a Michigan corporation,          )    John V.
                                             Virgilio and
                                             )     Susan Zwick
      Defendants.                                  )     Judges Presiding.


      PRESIDING JUSTICE HOFFMAN delivered the opinion of the court:
      The defendants, Luna-Manalac  Medical  Center,  Ltd.  (Luna)  and  Dr.
Julietta Luna Joson (Joson) appeal from a circuit court order  allowing  the
plaintiffs, Marta Valdovinos (Valdovinos), as  parent,  guardian,  and  next
friend of Daniel Valdovinos (Daniel), and Chicago Title  and  Trust  Company
(Chicago Title), as guardian of the Estate of Daniel Valdovinos, a  disabled
minor, to voluntarily dismiss the instant action pursuant to section  2-1009
of the Code of Civil Procedure (Code) (735 ILCS 5/2-1009 (West 1996)).   The
plaintiffs  cross-appeal  from  the  portion  of  the  trial  court's  order
requiring that they pay the defendants' costs and expenses.  They also  seek
review of various pre-trial rulings.   For  the  reasons  which  follow,  we
affirm.
      This action commenced in the circuit court  some  10  years  ago  and,
despite the fact that it has never proceeded to trial, is before this  court
for the second time.  The record consists of 105 volumes, and,  needless  to
say, the procedural history of the case is  complex.   We  will  attempt  to
limit our recitation of  the  facts  to  those  necessary  for  an  adequate
understanding of the case and resolution of the issues presented.
      On June 6, 1991, Valdovinos, as parent  and  next  friend  of  Daniel,
filed the initial complaint in this action, asserting causes of  action  for
medical negligence against various doctors and  hospitals  involved  in  her
pre-natal care and  Daniel's  birth  and  post-delivery  care.   During  the
course of the  litigation,  Valdovinos  filed  multiple  amended  complaints
adding new defendants and new claims.  The seventh  amended  complaint,  the
final  one  filed,  lists  as  plaintiffs  not  only  Valdovinos,   in   her
representative  capacity,  but  also  Chicago  Title,  as  the  guardian  of
Daniel's estate.  In that complaint, the  plaintiffs  alleged  that,  during
Valdovinos'  pregnancy,  Joson  had  given  her  an  injection  of  a   drug
manufactured by Parke Davis and that, as a result of the  injection,  Daniel
had suffered severe neurological damage.   The  plaintiffs  asserted,  inter
alia, a negligence claim  against  Luna,  the  medical  clinic  where  Joson
worked, and Joson, individually and as an  agent  of  Luna,  and  a  product
liability claim against Parke Davis, which is not a party to this appeal.
      On June 21, 1997, counsel for Luna and Joson issued a subpoena to  Dr.
Tanadori Tomita, one of the doctors who treated  Daniel  shortly  after  his
birth, requiring him to appear for an  evidence  deposition.   On  July  28,
1997, the plaintiffs brought a motion to compel Dr.  Tomita  to  speak  with
their attorney prior to his deposition.   In  that  motion,  the  plaintiffs
alleged that, in June 1997, before  Dr.  Tomita  had  retained  counsel,  he
agreed to speak to the plaintiffs'  counsel  prior  to  his  deposition  but
that, after retaining attorney Pamela Gellen, he  refused  to  do  so.   The
plaintiffs further alleged that  Gellen had  "engaged  in  discussions  with
counsel for  Parke  Davis."   The  plaintiffs  expressed  concern  that  the
discussions between  Parke  Davis'  counsel  and  Gellen  were  "effectively
subverting prohibitions against discussions  with  treating  physicians"  in
violation of the rule pronounced in Petrillo v. Syntex  Laboratories,  Inc.,
148 Ill. App. 3d 581, 588, 499 N.E.2d 952  (1986).   The  plaintiffs  sought
orders prohibiting "indirect communications" between Gellen and counsel  for
Parke Davis and requiring Dr. Tomita to meet with  their  attorneys.   Judge
Susan Zwick denied the plaintiffs'  motion  that  same  day.   Dr.  Tomita's
deposition was taken on July 29, 1997.  Gellen  represented  Dr.  Tomita  at
the deposition.
      On August 18, 1997, the case was assigned  to  Judge  Denise  O'Malley
for trial.  Thereafter, the case was subject to  extensive  motion  practice
as the parties, in combination, filed a total of more than  100  motions  in
limine.  Also, on August 19, 1997, the  plaintiffs  filed  their  fifth  and
sixth supplements to their answers to Supreme Court Rule 213  (177  Ill.  2d
R. 213) interrogatories, in which  they  disclosed  new  witnesses  and  new
opinions of previously disclosed witnesses.
      On August 21, 1997, Judge O'Malley granted Pamela  Gellen's  emergency
motions to quash subpoenas which the plaintiffs had  issued  requiring  that
she appear for  discovery  and  evidence  depositions  and  at  trial.   The
plaintiffs contend that they issued the  subpoenas  in  question  to  Gellen
because, due to certain testimony Dr. Tomita gave at  his  deposition,  they
believed that Dr.  Tomita  had  engaged  in  ex  parte  communications  with
counsel for Luna and Joson, either personally or through Gellen.
      On August 28, 1997, the plaintiffs sought  leave  to  file  a  seventh
amended complaint.  Judge O'Malley allowed the plaintiffs leave to file  the
complaint but subsequently ordered  certain  paragraphs  stricken  from  the
complaint, some with prejudice and others with leave to replead,  which  the
plaintiffs did not do.  She also ordered stricken  from  the  complaint  any
reference to Warner-Lambert Company, which was named for the first  time  in
that complaint.
       On  September  3,  1997,  Judge  O'Malley  entered  rulings  on   the
objections raised during the evidence depositions  of  several  of  Daniel's
treating  physicians,  including  Dr.  Tomita.   The   plaintiffs'   counsel
objected to certain of Gellen's comments being stricken  from  Dr.  Tomita's
deposition, asserting that the comments suggested Gellen had engaged  in  ex
parte communications with defense counsel.  Judge O'Malley stated: "We  have
had a ruling on this before based on Petrillo, I said  your  suspicion  that
Petrillo is violated by conversations  between  two  lawyers  and  you  have
nothing, no real evidence whatever to support it."
      On September 9, 1997, the plaintiffs first disclosed the existence  of
a computer animated videotape which, they alleged, depicted the opinions  of
their expert witnesses.  Judge O'Malley expressed doubt as  to  whether  she
would allow the tape to be presented at trial but stated she would  consider
the matter overnight.  On  September  10,  1997,  the  plaintiffs  filed  an
emergency petition for substitution of judge for cause pursuant  to  section
2-1001(a)(3) of the Code  (735  ILCS  5/2-1001(a)(3)  (West  1996)).   Judge
Jacqueline Cox heard and denied  the  petition  that  same  day.   When  the
parties returned to Judge O'Malley's  courtroom,  the  plaintiffs  indicated
their intent to file another motion for substitution of judge for cause  the
following day, containing more specific allegations of bias, ill  will,  and
prejudice.  Judge O'Malley stated that she believed the plaintiffs'  motions
for substitution were attempts at forum shopping because they  were  unhappy
with her rulings.  She informed  the  parties  that  she  was,  nonetheless,
contemplating recusing herself from the case but  that  she  would  consider
the matter overnight.  In urging Judge O'Malley not to recuse  herself  from
the case due  to  the  plaintiffs'  tactics,  counsel  for  Luna  and  Joson
expressed his belief that  the  plaintiffs  would  next  "pull  a  voluntary
dismissal."  The plaintiffs' counsel  responded:  "I  guarantee  that's  not
going to happen."
      On September 11, 1997, Judge O'Malley issued over 100  written  orders
regarding various of the parties' motions on which  she  had  already  heard
argument and ruled.  By way of these orders,  Judge  O'Malley,  inter  alia,
barred the plaintiffs  from  calling  certain  witnesses  at  all  and  from
eliciting  certain  testimony  or  opinions  from  other  witnesses  due  to
untimely or inadequate disclosures  and/or  the  cumulative  nature  of  the
proposed testimony.  Also  on  September  11,  1997,  the  plaintiffs  filed
another motion for substitution of judge for cause.  That  motion,  however,
was rendered moot when Judge O'Malley recused herself  from  the  case  that
same day for medical reasons.  Judge O'Malley specifically declined to  rule
on  the  admissibility  of  the  plaintiffs'  videotape   as   demonstrative
evidence, leaving the matter to be decided by the judge  to  whom  the  case
was next assigned.
      On September 12, 1997, the plaintiffs filed a motion for  a  mistrial.
Judge Donald O'Connell heard and denied the motion, noting  that  trial  had
not yet commenced.
      On September 19, 1997, the plaintiffs filed an action in the  chancery
division (docket number 97 CH  11755)  naming  as  defendants,  inter  alia,
counsel for Joson in the instant case, Dr. Tomita, and Pamela  Gellen.   The
plaintiffs also named the attorneys representing Parke Davis in the  instant
case as respondents in discovery in the  chancery  action.   The  plaintiffs
alleged that Dr. Tomita had refused to meet with their  attorneys  prior  to
giving his deposition in the instant action  and  that  certain  answers  he
gave at the deposition demonstrated that he had engaged, through Gellen,  in
prior ex parte communications with defense counsel.  In  count  one  of  the
complaint, the plaintiffs sought a mandatory injunction ordering Dr.  Tomita
to meet with their attorneys prior to giving his deposition in  the  instant
case.   In  count  two,  the  plaintiffs  alleged  a  cause  of  action  for
conspiracy to commit and  the  actual  commission  of  "outrageous  tortious
conduct" against Dr.  Tomita,  Gellen,  counsel  for  Luna  and  Joson,  and
others.  In their prayer for relief on  count  two,  the  plaintiffs  sought
orders: prohibiting, inter alia, Gellen and the defendants'  attorneys  from
communicating with  Daniel's  treating  physicians,  including  Dr.  Tomita,
either directly or indirectly through counsel;  enjoining  Dr.  Tomita  from
communicating with  anyone  regarding  Daniel's  medical  treatment,  either
directly or indirectly through counsel,  without  the  plaintiffs'  consent;
impounding the evidence deposition given by Dr. Tomita in the  instant  case
and restraining the parties in  this  case  from  offering  the  deposition;
barring Dr. Tomita from testifying in  the  instant  case  due  to  Petrillo
violations; and disqualifying certain of the defendants'  attorneys  in  the
instant case.
      After Judge O'Malley's recusal,  the  instant  case  was  assigned  to
Judge Virgilio for trial.  The plaintiffs filed a  motion  seeking  de  novo
review of all the motions in limine upon which  Judge  O'Malley  had  ruled,
asserting that false statements made to Judge O'Malley by  counsel  for  the
defendants had resulted in "patently erroneous" rulings.  On  September  22,
1997, the plaintiffs filed an emergency motion to stay  the  proceedings  in
the instant case so that they could proceed with a motion for a  preliminary
injunction and  discovery  on  an  expedited  basis  in  their  newly  filed
chancery action.  The  plaintiffs  asserted  that  the  allegations  in  the
chancery action provided grounds to disqualify counsel  for  the  defendants
in the instant case and to bar certain  witnesses  from  testifying  in  the
instant case.  Accordingly, they argued, if  the  chancery  division  action
proved successful, any judgment in the instant case would  have  to  be  set
aside as void as it would  be  "based  upon  illegally  obtained  evidence."
Also on September 22, 1997, Luna  and  Joson  filed  a  motion  to  bar  the
plaintiffs from using the computer animated videotape.  The  following  day,
Parke Davis filed a motion to the same effect.
      On September 22, 1997, Judge Virgilio denied  the  plaintiffs'  motion
to stay the proceedings.  On September 23, 1997,  the  plaintiffs  presented
that same motion to Judge O'Connell.  Judge  O'Connell  denied  the  motion,
noting that all of the relevant relief sought in the chancery  action  could
be sought in the instant action.   After  denying  the  plaintiffs'  motion,
Judge O'Connell commented: "I'd say further, the plaintiffs, if  you're  not
ready to try the case, take a voluntary dismissal.  Relief is  available  to
you.  *** [I]f you're not ready  to  try  this  case,  you  have  the  tools
available."  Counsel for the plaintiffs responded:  "We're  -  we're  ready.
We're ready for trial."
      On September  25,  1997,  Judge  Virgilio  reversed  Judge  O'Malley's
denial of one of the plaintiffs' motions in limine but left undisturbed  the
remainder of Judge O'Malley's rulings, stating that they were not  "patently
incorrect."  Further, Judge Virgilio granted the defendants' motions to  bar
the plaintiffs from using the videotape as demonstrative evidence at  trial.
 After Judge Virgilio issued these rulings, he  asked  the  parties  whether
they had any questions they wished him to ask the jurors during  voir  dire.
One of the attorneys for the plaintiffs informed  the  judge  that  his  co-
counsel, who was not present  in  court  at  that  time,  was  bringing  the
questions and  should  be  arriving  shortly.   Co-counsel  arrived  shortly
thereafter and stated:
            "Your Honor, when we appeared  before  Judge  O'Connell  earlier
      this week after we were first with you, then we moved for a - we  gave
      them the motion for a stayed order.  He, at that time, said  that  you
      could give us that relief.
            And since you had already denied the motion, he  also  suggested
      that we take a voluntary nonsuit since we  have  a  minor,  and  we're
      going to do that, your Honor.  I have a motion for voluntary nonsuit."
Counsel presented Judge  Virgilio  with  a  written  motion  to  voluntarily
dismiss the case  without  prejudice.   The  defendants  objected,  arguing,
among other things, that they had not  been  given  notice  of  the  motion.
Judge Virgilio gave the defendants leave to file  responses  to  the  motion
and continued the matter to the next day, ordering that the plaintiffs  make
several  modifications  to  their  written  motion.   Later  that  day,  the
plaintiffs filed  a  pleading  styled  "Plaintiffs'  Revised  Motion  for  a
Voluntary Dismissal Without Prejudice", reflecting the changes  which  Judge
Virgilio had ordered.  In the revised motion, the plaintiffs  asserted  that
they were seeking a voluntary dismissal  because  both  Judge  Virgilio  and
Judge O'Connell had denied their motion to  stay  proceedings  in  the  case
pending expedited discovery in the chancery  action,  an  action  which  the
plaintiffs alleged would "materially affect" this action.
      On September 26, 1997, Parke Davis filed  its  written  objections  to
the plaintiffs' motion to voluntarily dismiss the  case  without  prejudice.
Joson and Luna also filed a memorandum  in  opposition  to  the  plaintiffs'
motion.  When the matter was heard on September 26, Judge  Virgilio  granted
the revised motion for a voluntary dismissal pursuant to section  2-1009  of
the Code.  The order granting the voluntary  dismissal  also  provided  that
"the plaintiff is ordered  to  pay  all  costs  associated  with  this  case
including the costs incurred by the defendants in the taking of  depositions
and those other costs as provided for in Galowich v. Beech  Aircraft  Corp.,
93 Ill. App. 3d 690, reversed on other grounds 92 Ill. 2d 157 (1981)."   The
order did not state the amount of costs to be paid or specify which  of  the
plaintiffs was to make the payment.
      On October 21, 1997, Judge Virgilio, inter alia, ordered  the  parties
to provide briefs "regarding Illinois Supreme Court Rule 219(e)."  166  Ill.
2d R. 219(e).  On October 27, 1997, Parke Davis filed a brief in support  of
its petition for costs, in which it also  requested  that  the  trial  court
reconsider its September 26, 1997, order  granting   a  voluntary  dismissal
without prejudice.  Also on October 27, 1997, the plaintiffs filed a  motion
to vacate the trial court's September 26, 1997, order and a  motion  seeking
an assessment of fees and costs pursuant to  Supreme  Court  Rule  137  (155
Ill. 2d R. 137).  The record is void of any indication that the  plaintiffs'
Rule 137 motion was ever noticed for hearing or  ruled  upon  by  the  trial
court.
      On November 12, 1997, the parties appeared before the court.  On  that
date, Judge Virgilio orally informed the parties that the motion  to  vacate
the voluntary dismissal without prejudice was denied.  That same day,  Judge
Virgilio entered a written "Memorandum and Order" in  which  he  found  that
the "plaintiff" had "abused section  2-1009"  and  "violated  Supreme  Court
Rule 219(e)" and set the amount of costs  to  be  paid  at  $117,059.41.  An
exhibit attached to the court's order indicates  that,  of  the  $117,059.41
awarded, $37,886.27 was due to Parke Davis and $79,173.14 was  due  to  Luna
and Joson.  Like the September 26, 1997, order, this order  does  not  state
which plaintiff is required to pay the assessed costs.
      On November 26, 1997, Parke Davis,  Luna,  and  Joson  filed  a  joint
motion requesting that the  court  vacate  its  September  26,  1997,  order
granting the plaintiffs' motion for a voluntary  dismissal  and  resume  the
trial of the cause as costs had not been paid, or, in the alternative,  that
it dismiss the case "with prejudice."  Judge Virgilio denied the  motion  on
December 11,  1997.   During  the  hearing  on  December  11,  the  attorney
representing Joson and Luna asked the court for clarification as to who  was
responsible for the payment of the costs  awarded  on  November  12.   Judge
Virgilio declined to decide the matter, indicating his belief  that  another
tribunal, such as the probate court or this court, should determine who  was
responsible for paying costs.
      Between October 24, 1997, and January 28,  1998,  the  plaintiffs  and
all three defendants filed  numerous  notices  of  appeal  and  cross-appeal
under various docket numbers.  In an opinion issued on  September  2,  1999,
we  dismissed  all  of  the  appeals  and  cross-appeals  for  a   lack   of
jurisdiction, concluding that none of the  various  orders  from  which  the
parties appealed were final orders, and remanded the  case  to  the  circuit
court.  Valdovinos v. Luna-Manalac Medical Center, Ltd., 307  Ill.  App.  3d
528, 718 N.E.2d 612 (1999).   In relevant  part,  we  held  that  the  trial
court's orders granting the plaintiffs' motion  for  a  voluntary  dismissal
and assessing costs were not capable of  enforcement,  and  thus  not  final
orders, as the trial court assessed costs against the  "plaintiff"  but  did
not specify which of the two plaintiffs was to pay.
      On remand, on January 5, 2000, Parke Davis filed a  motion  to  assign
the case to a trial judge "to correct the orders involved in  the  voluntary
dismissal and rule on the motions for sanctions pursuant to the  opinion  of
the appellate court." The case was assigned to Judge Susan Zwick, who set  a
briefing schedule for the motion.  On April 3, 2001, the plaintiffs filed  a
single pleading which included their response to  Parke  Davis'  motion  and
their own motion for reconsideration  of  Judge  Virgilio's  order  awarding
expenses pursuant to Rule 219(e).  That same day, Luna  and  Joson  filed  a
memorandum of law in support of Judge Virgilio's prior rulings.
      On April 21, 2000, Judge Zwick issued a memorandum opinion  and  order
in which she denied the plaintiffs' motion to  reconsider  Judge  Virgilio's
order assessing costs and granted  Parke  Davis'  motion  to  correct  Judge
Virgilio's November 12, 1997,  order.   Judge  Zwick's  order  provided,  in
part, as follows:
            "(3) The court's order  of  November  12,  1997,  including  the
      provision granting Plaintiff's motion pursuant to 735  ILCS  5/2-1009,
      and its specific findings pursuant to Supreme Court  Rule  219(e),  is
      adopted, incorporated and made a part of this court's order;
            (4) The Plaintiffs,  Marta  Valdovinos,  in  her  representative
      capacity only, as guardian of the person, and next  friend  of  Daniel
      Valdovinos, and  Chicago  Title  and  Trust  Company,  in  it's  [sic]
      representative capacity only, as guardian  of  the  Estate  of  Daniel
      Valdovinos, a disabled minor are ordered to pay the  defendants  costs
      and other expenses in the amount of $117,059.41."
The order also contained Rule 304(a) (155 Ill. 2d  R.  304(a))  language  of
finality and appealability.
      On May 17, 2000, the plaintiffs filed a  motion  to  reconsider  Judge
Zwick's April 21 order.   On May 19,  Luna  and  Joson  filed  a  notice  of
appeal, docketed under number 1-00-1742, from, inter alia, Judge  Virgilio's
September 26, 1997, and November 12, 1997, orders and  Judge  Zwick's  April
21, 2000, order.  On May  23,  2000,  Judge  Zwick  denied  the  plaintiffs'
motion for reconsideration.  Thereafter, on June 6,  2000,  Luna  and  Joson
filed an additional notice of appeal  under  docket  number  1-00-1742.   On
June 8, 2000, the plaintiffs filed a notice of cross-appeal.[1]
      As a preliminary matter, we note that the notice of  appeal  filed  by
Luna and Joson on May 19, 2000, prior to the trial  court's  May  23,  2000,
ruling on the plaintiffs' motion for reconsideration of its April 21,  2000,
order, was premature and did not vest this court with jurisdiction.   In  re
Marriage of Cynthia Kay Uphoff, 99 Ill. 2d 90, 95, 457  N.E.2d  426  (1983).
Their second notice of appeal, filed on June 6, 2000,  and  the  plaintiffs'
notice of cross-appeal, filed on June 8, 2000,  were,  however,  timely  and
vest this court with jurisdiction.  We further  wish  to  clarify  that  our
jurisdiction over the instant case is pursuant to Rule 304(a) (155  Ill.  2d
R. 304(a)), as Luna and Joson assert, rather than Rule 301 (155 Ill.  2d  R.
301) as the plaintiffs assert.  This is because, at the time the  notice  of
appeal and cross-appeal were filed, the  plaintiffs'  motion  for  sanctions
pursuant to Rule 137 remained pending.  See Valdovinos, 307 Ill. App. 3d  at
537-38.
      We now turn to the merits of the defendants' appeal.   The  defendants
argue that the trial court erred  in  granting  the  plaintiffs'  motion  to
voluntarily dismiss the case.   Section  2-1009(a)  of  the  Code  of  Civil
Procedure provides:
            "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  entered
      in the cause."  735 ILCS 5/2-1009 (West 1996).
When a party complies with the requirements of section 2-1009, her right  to
a dismissal without prejudice is, with very limited exceptions,  unfettered.
 Morrison v. Wagner, 191 Ill. 2d 162, 165, 729 N.E.2d 486 (2000).
      We first address the argument, raised  by  the  defendants,  that  the
plaintiffs were not entitled to a voluntary dismissal as  of  right  because
trial had already commenced.  The argument is without merit.
      The Illinois Supreme Court's decision in Kahle v. John Deere Co.,  104
Ill. 2d 302, 472 N.E.2d 787 (1984) is instructive.  In Kahle, the  defendant
argued that the trial court erred in allowing the plaintiff  to  voluntarily
dismiss her case without prejudice.   It asserted  that  trial  had  already
begun as, on the day trial was set to begin and before the  plaintiff  moved
for voluntary  dismissal  without  prejudice,  the  trial  court  had  spent
several hours ruling on motions in limine.   Our supreme court rejected  the
argument, noting that motions in limine are not part of the  trial.   Kahle,
104 Ill. 2d at 307, 309.  The court concluded trial had not yet begun  where
"no jury had been selected; no  prospective  jurors  had  been  examined  or
sworn; and counsel had made no opening statement."  Kahle, 104  Ill.  2d  at
309.
      The defendants argue that the instant  case  is  distinguishable  from
Kahle in several respects.  They point  out  that  the  plaintiff  in  Kahle
moved for voluntary dismissal without prejudice on the date  the  trial  was
set to begin after the trial court had spent only a few hours ruling on pre-
trial motions.  In contrast, they assert, the plaintiffs here  moved  for  a
voluntary dismissal without prejudice six weeks after the case was  assigned
out for trial and after the court had ruled on more than 100  motions.   The
fact, however, that the trial court in the instant case had issued far  more
pre-trial rulings than did the trial court in  Kahle  does  not  change  the
principle, as stated in Kahle, that pre-trial motion practice  is  not  part
of the trial itself.  In further support of their assertion that  the  trial
had begun, the defendants cite to statements made by attorneys for  each  of
the parties and the trial judge to the effect that the case was "on  trial."
 The question of whether a trial or hearing has begun within the meaning  of
section 2-1009 of the Code is a legal one.  Baird v. Adeli,  214  Ill.  App.
3d 47, 52, 573 N.E.2d 279 (1991).  The terminology used by the  parties  and
the trial judge in the instant  case  is  of  no  import  in  answering  the
question.  At the time the plaintiffs moved for  voluntary  dismissal  here,
jury selection had not yet begun.  As such, trial had not started.
      The defendants next assert that the plaintiffs waived their  right  to
seek a voluntary dismissal by virtue of their prior assurances to the  court
and parties that they would not do so.  Waiver is defined as the  "voluntary
relinquishment of a known right, claim or privilege".   Vaughn  v.  Speaker,
126 Ill. 2d 150, 161, 533 N.E.2d 885 (1988).
      On September 10, 1997, when Judge O'Malley informed the  parties  that
she  was  considering  recusing  herself  from  the  case,  defense  counsel
expressed a belief that  the  plaintiffs  would  voluntarily  dismiss  their
action.  Counsel for the  plaintiffs  responded:  "I  guarantee  that's  not
going to happen."  On September 23, 1997, Judge O'Connell heard  and  denied
the plaintiffs' motion to stay the proceedings in the instant  case  pending
expedited discovery in  the  chancery  action.   Judge  O'Connell  told  the
plaintiffs that, if they  were  unprepared  to  try  the  case,  they  could
voluntarily dismiss it.  Plaintiffs' counsel stated: "We're -  we're  ready.
We're ready for trial."  It is upon these comments that the defendants  base
their claim that the plaintiffs waived their right  to  voluntarily  dismiss
the case  without  prejudice.   We  disagree.   On  each  of  the  dates  in
question, the plaintiffs, through their counsel, indicated that they had  no
present intention  of  voluntarily  dismissing  their  case.   There  is  no
indication, however, that they intended  to,  or  did  in  fact,  relinquish
their statutory right to do so if they should so choose.
      We next address the defendants' argument that the  trial  court  erred
in granting  the  plaintiffs'  motion  for  a  voluntary  dismissal  without
prejudice  because  the  plaintiffs  did  not  comply  with   all   of   the
requirements of section 2-1009 of the Code.   Pursuant  to  section  2-1009,
three requirements must be met in  order  for  a  plaintiff  to  voluntarily
dismiss her case without prejudice as of right: 1) the plaintiff  must  move
for the voluntary dismissal prior to the beginning of trial or  hearing;  2)
the plaintiff must give proper notice; and 3) the plaintiff must pay  costs.
 735 ILCS 5/2-1009 (West 1996); Vaughn v.  Northwestern  Memorial  Hospital,
210 Ill. App. 3d 253, 257, 569 N.E.2d 77 (1991).  This court has  held  that
the failure to comply with any of the three  requirements  can  deprive  the
plaintiff of her right to  voluntarily  dismiss  her  case.   See  Lewis  v.
Collinsville Unit No. 10 School District, 311 Ill. App.  3d  1021,  1027-28,
725 N.E.2d 801 (2000)(reversing grant of motion for voluntary dismissal  and
remanding for new hearing on motion where plaintiff  had  not  given  proper
notice prior to ex parte hearing);  Vaughn, 210 Ill. App. 3d  253;  Crawford
v. Schaeffer, 226 Ill. App. 3d 129, 590 N.E.2d 497 (1992)  (reversing  grant
of motion for voluntary dismissal and  remanding  for  determination  as  to
whether  plaintiff  gave  requisite  notice);   contra   Metcalfe   v.   St.
Elizabeth's Hospital, 160  Ill.  App.  3d  47,  54,  513  N.E.2d  12  (1987)
(affirming grant of motion for voluntary dismissal  absent notice  where  no
prejudice to defendants).
      It is undisputed that the plaintiffs did not give the  defendants  the
requisite notice of their motion to voluntarily  dismiss  the  case  without
prejudice.  They gave, in fact, no notice.   Further,  the  plaintiffs  have
not paid the defendants $79,173.14, their share of the  costs  and  expenses
awarded by the trial court.  Luna and Joson argue that the  plaintiffs  were
not entitled to voluntarily dismiss their case without  prejudice  for  this
reason.  We cannot agree.
      In Mizell v. Passo, 147 Ill. 2d 420, 428-29, 590  N.E.2d  449  (1992),
our supreme court affirmed the grant of a  motion  for  voluntary  dismissal
without prejudice despite the fact that the plaintiff had not  given  notice
or tendered costs.  The court concluded that, where the defendant  had  been
given a short recess to review the motion  and  an  opportunity  to  present
argument  thereon  and  the  trial  court's  order  granting  the  voluntary
dismissal required that the plaintiff pay costs, no prejudice had  resulted.
 Mizell, 147 Ill. 2d at 428-29.  Similarly, the defendants here  were  given
an opportunity to respond to the plaintiffs'  motion  despite  the  lack  of
notice, and the trial court's order  granting  the  plaintiffs  a  voluntary
dismissal without prejudice requires that they pay  costs  and  expenses  to
the defendants.  We fail to see how the  defendants  have  been  prejudiced.
In accordance with Mizell, we decline to reverse  the  trial  court's  order
granting the plaintiffs' motion  for  voluntary  dismissal  based  upon  the
plaintiffs' failure to strictly comply with the requirements of  section  2-
1009.
      Finally, we address the defendants' argument that the plaintiffs  were
not entitled to voluntarily dismiss their  case  without  prejudice  because
their motives for doing so were improper.   The  plaintiffs,  they  contend,
engaged in forum shopping and dilatory tactics all along,  culminating  with
their motion for a voluntary dismissal without  prejudice  after  the  trial
court made evidentiary rulings not in their  favor.   Where  the  plaintiffs
attempt to use section 2-1009 in  such  a  flagrantly  abusive  manner,  the
defendants argue, a court is not required to, and indeed must not,  grant  a
motion for voluntary  dismissal  without  prejudice.   This  argument,  too,
lacks merit.
      As our supreme court stated recently in Morrison v. Wagner,  191  Ill.
2d 162, 165, 729 N.E.2d 486 (2000):
            "[S]ection 2-1009 of the Code of Civil Procedure, by its  terms,
      confers on plaintiffs an unfettered right to voluntarily dismiss their
      claims without prejudice, upon proper notice and payment of costs, 'at
      any time before trial or hearing begins.'  That provision, however, is
      subject to  two  qualifications.   First,  where  a  previously  filed
      defense motion could result in a final disposition  of  the  cause  of
      action if ruled upon  favorably  by  the  court,  the  court  has  the
      discretion to hear  and  decide  that  motion  before  ruling  on  the
      plaintiff's motion for  voluntary  dismissal.   735  ILCS  5/2-1009(b)
      (West 1998).  Second, where the circumstances are such that  dismissal
      under section 2-1009 would directly conflict with a specific  rule  of
      this court, the terms of the rule take precedence.  Catlett v.  Novak,
      116 Ill. 2d 63, 69 (1987); O'Connell v. St. Francis Hospital, 112 Ill.
      2d 273 (1986)."
      In the instant case,  there  was  no  potentially  dispositive  motion
pending at the time the plaintiffs moved  for  voluntary  dismissal  without
prejudice.[2]  Nor does  the  plaintiffs'  exercise  of  their  right  to  a
section 2-1009 voluntary  dismissal  without  prejudice  conflict  with  any
supreme court rule.  As our supreme court  held  in  Morrison,  Rule  219(e)
does not restrict a  plaintiff's  right  to  voluntarily  dismiss  his  case
without prejudice pursuant to section 2-1009.  Morrison, 191 Ill. 2d at 166-
67.  Accordingly, the plaintiffs' right to voluntarily  dismiss  their  case
was absolute, and the trial court properly granted the motion.
      We now turn to  the  plaintiffs'  argument,  raised  in  their  cross-
appeal, that the trial court erred in ordering them to pay  Luna  and  Joson
costs and expenses in the amount of $79,173.14.
      The plaintiffs first argue that the trial  court  erred  in  assessing
the defendants' litigation expenses as "costs" pursuant  to  section  2-1009
of the Code, which, they assert, authorizes only an award  of  court  costs.
In support of this contention, the plaintiffs  rely  on  Galowich  v.  Beech
Aircraft Corp., 92 Ill. 2d 157, 441 N.E.2d 318 (1982), in which our  supreme
court held that deposition expenses cannot be taxed  as  costs  pursuant  to
section 2-1009.   As the plaintiffs acknowledge,  after  our  supreme  court
issued its decision in Galowich,  it  amended  Supreme  Court  Rule  219  by
adding paragraph (e) thereto.  Rule 219(e) provides that:  "The  court  may,
in addition to the  assessment  of  costs,  require  the  party  voluntarily
dismissing a claim to pay an opposing party or parties  reasonable  expenses
incurred in defending the action including  but  not  limited  to  discovery
expenses,  opinion  witness  fees,  reproduction  costs,  travel   expenses,
postage, and phone charges."    166  Ill.  2d  R.  219(e).   The  plaintiffs
acknowledge  that  deposition  costs  and  other  expenses  can  be  awarded
pursuant to Rule 219(e) but apparently argue that the  trial  court  awarded
expenses not as a Rule 219(e) "expense" but as a section  2-1009  "cost"  in
contravention of Galowich.
      We agree with the plaintiffs  that  there  is  a  distinction  between
section 2-1009 "costs" and Rule 219(e) "expenses."  The text of Rule  219(e)
itself states that the "reasonable expenses" for which it  provides  may  be
awarded "in addition to the assessment of costs".  166 Ill.  2d  R.  219(e).
It is true that the trial court, in its September  26,  1997,  and  November
12, 1997, orders provided that the  plaintiff  was  to  pay   "costs."   The
trial court, however, ordered the parties to file briefs  on  the  issue  of
Rule 219(e) expenses and stated in its November 12,  1997,  order  that  the
plaintiff had "violated Supreme Court Rule 219(e)."  Further, in  its  April
21, 2000, order, the trial court ordered that the plaintiffs pay "costs  and
other expenses in the amount of $117,059.41."  Accordingly, the  plaintiffs'
argument  that  the  deposition  costs  and  other  expenses  were  assessed
pursuant to section 2-1009 is meritless.
      The plaintiffs also argue that the  trial  court  erred  in  assessing
Rule 219(e) expenses against them.  As stated in the committee  comments  to
Rule 219, paragraph (e)  is  designed  to  address  "the  use  of  voluntary
dismissals to avoid compliance with discovery  rules  or  deadlines,  or  to
avoid the consequences of discovery failures, or  orders  barring  witnesses
or evidence."  166 Ill. 2d R.  219(e),  Committee  Comments.   In  Scattered
Corp. v. Midwest Clearing Corp., 299 Ill. App. 3d 653, 659, 702  N.E.2d  167
(1998), this court held that:
            "Based upon the language of Rule 219(e)  and  illumination  from
      the Committee Comments,  we  find  that  Rule  219(e)'s  reference  to
      voluntary dismissals  taken  to  'avoid  compliance'  with  'discovery
      deadlines, orders, or  applicable  rules'  (166  Ill.  2d  R.  219(e))
      requires  the  circuit  court  to  make  a  preliminary   finding   of
      misconduct, analogous to  the  'unreasonable  noncompliance'  standard
      invoked in Rule 219(c) cases (166 Ill. 2d R. 219(c)), before  imposing
      expenses pursuant to Rule 219(e). [Citation].   To  determine  whether
      the noncompliance is unreasonable, the standard is whether the conduct
      of  the  noncomplying  party  shows  a  deliberate,  contumacious   or
      unwarranted disregard for the court's authority. [Citation]."
      The plaintiffs contend that they  did  not  voluntarily  dismiss  this
case  to  avoid  the  effect  of  their  own  noncompliance  with  discovery
deadlines or orders but that they did so to correct procedural or  technical
defects.   In  their  revised  motion  for  a  voluntary  dismissal  without
prejudice, the plaintiffs  asserted  that  they  were  dismissing  the  case
because the trial court had denied their motions to stay  the  instant  case
pending expedited discovery in the chancery action.   In  their  brief,  the
plaintiffs assert they exercised their right to a  voluntary  dismissal  not
only because the trial court refused to provide them with a  forum  to  "air
the truth about the Petrillo violations,"  but  also  because,  during  pre-
trial motions, the  trial  court  struck  Warner-Lambert  Company  from  the
caption of the case, thus removing a necessary party from the lawsuit.
      Contrary to the plaintiffs' assertion, we  do  not  believe  that  the
trial judge was bound to  accept  their  proffered  reason  for  voluntarily
dismissing the case.  In  his  November  12,  1997,  order,  Judge  Virgilio
stated in relevant part as follows:
            "The applicability of the rule [Rule 219] to  the  plaintiff  is
      clear.  Time and time again, the plaintiff has  brought  many  of  the
      same or similar motions before different  judges,  including  but  not
      limited to Judge Cox, Judge Zwick, Judge O'Malley, Judge O'Connell and
      this court.  The plaintiff  even  filed  an  action  in  the  Chancery
      Division  in an  attempt  to  correct  his  perceived  'procedural  or
      technical defects.'  Only after Judge O'Connell told the plaintiff  he
      was on trial and this court  reaffirmed  the  motions  in  limine  and
      barred the video did  the  plaintiff  indicate  he  would  voluntarily
      dismiss the case. *** Only at the last minute, when it was clear  that
      certain rulings would not be entered in the plaintiff's favor, did the
      plaintiff decide to seek a dismissal.
            Clearly,  the  plaintiff  has  abused  section  2-1009  and  has
      violated Supreme Court Rule 219(e)."
It is clear from these comments that Judge Virgilio based his assessment  of
expenses  on  his  conclusion  that  the  plaintiffs  sought  the  voluntary
dismissal in order to avoid his orders  reaffirming  Judge  O'Malley's  pre-
trial rulings, many of which barred the plaintiffs from  presenting  certain
witnesses  or  evidence  due  to  untimely  disclosure,  and   barring   the
plaintiffs from using at trial the computer animated  videotape  which  they
first disclosed several weeks prior to trial.  The  record  not  only  amply
supports the trial court's finding in this  regard,  it  dispels  any  other
possible finding.  There is no question  that  the  assessment  of  expenses
pursuant  to  Rule  219(e)  was  proper  in  the  instant  case,  where  the
plaintiffs exercised their right to voluntarily dismiss the  action  without
prejudice in order to avoid the effects  of  pre-trial  evidentiary  rulings
based on their own failure to comply with discovery deadlines.
      The plaintiffs alternatively  assert  that  the  trial  court's  order
assessing Rule  219(e)  expenses  against  them  is  unconstitutional.   The
plaintiffs correctly note that, at the time this case  was  filed  in  1991,
paragraph (e) of Rule 219 was not yet in existence.  They assert that,  upon
filing the case, they obtained a vested right to dismiss  the  case  without
prejudice upon payment of only section 2-1009 costs.  The  plaintiffs  argue
that paragraph (e) of Rule 219, which became effective on January  1,  1996,
at least as applied to the instant case, constitutes a  retroactive  law  as
it interferes with this vested right.  We disagree.
      It is well-settled that  the  legislature  is  without  constitutional
authority to enact a law that is retroactive in  nature  (First  of  America
Trust Co. v. Armstead, 171 Ill. 2d 282, 290, 664 N.E.2d 36 (1996)),  and  we
do not question the plaintiffs' assertion that the same  limitation  applies
with respect to supreme court rules.  It is also, however, settled  that  an
amendment is retroactive only if it takes away or impairs a vested right  or
imposes a new obligation or duty or attaches a new disability  with  respect
to transactions already past.  Dardeen v. Heartland Manor,  Inc.,  186  Ill.
2d 291, 295, 710 N.E.2d 827 (1999).
      Our supreme court has defined a  vested  right  alternatively  as  "an
expectation that is so far  perfected  that  it  cannot  be  taken  away  by
legislation" and "a complete and unconditional demand or exemption that  may
be equated with a property interest."  First of America Trust Co., 171  Ill.
2d at 290-91.  There is no vested right in the mere continuance  of  a  law.
Envirite Corp. v. Illinois Environmental  Protection  Agency,  158  Ill.  2d
210, 215, 632 N.E.2d 1035 (1994).  We agree with  the  defendants  that  the
plaintiffs did not, upon the filing of their case, acquire  a  vested  right
to dismiss their case upon payment of only section 2-1009 costs.   As  such,
the application of Rule 219(e)  to  the  instant  case  does  not  implicate
constitutional concerns.
      In a final attempt to obtain a reversal of the trial court's award  of
Rule 219(e) expenses, the plaintiffs remind this court of its  duty  to  act
in the best interests of Daniel,  a  disabled  minor.   It  has  often  been
stated that the courts are under a duty to protect the interests of a  minor
or disabled person who is a party to judicial proceedings  before  it.   See
Tymony v. Tymony, 331 Ill. 420, 163 N.E. 393  (1995);  City  of  Chicago  v.
Board of Education, 277 Ill.  App.  3d  250,  260,  660  N.E.2d  74  (1995);
Brandon v. DeBusk,  85  Ill.  App.  3d  645,  648,  407  N.E.2d  193  (1980)
(reversing order dismissing minor plaintiff's petition to  vacate  an  order
dismissing his action for failure to comply with discovery and remanding  to
circuit  court  to  determine  whether  any  lesser   sanctions   might   be
appropriate).  We are mindful of the fact  that  the  Rule  219(e)  expenses
awarded must be paid out of Daniel's estate, which,  the  plaintiffs  inform
us, already contains funds woefully inadequate to  meet  Daniel's  extensive
needs.  The duty to protect the interests of minors and  the  disabled  does
not, however, lie solely with the courts.  In the instant case,  Daniel  was
represented by guardians of both his person  and  his  estate.   During  the
course of the proceedings, various of the trial judges  presiding  over  the
case informed the plaintiffs' counsel  that  the  trial  tactics  they  were
employing were questionable.  This brought about  no  noticeable  change  in
counsel's conduct.  The plaintiffs made the decision  to  seek  a  voluntary
dismissal with  full  knowledge  of  the  costs  and  expenses  which  could
potentially be assessed.  Rule 219(e) provides no exception for cases  where
the plaintiff is the estate of a minor or disabled person.  See  Hoffman  v.
Central National Bank in Chicago, 130 Ill. App. 2d 246, 252, 264 N.E.2d  711
(1970)(refusing to excuse guardian of the minor's  estate  and  person  from
posting bond for costs).  In light of the purpose for which  the  plaintiffs
exercised their right to voluntarily dismiss  this  action,  we  cannot  say
that the  trial  court  abused  its  discretion  in  assessing  Rule  219(e)
expenses.
      The plaintiffs assert  that,  if  we  do  find  that  Rule  219(e)  is
applicable in the instant case, we must at least remand to the  trial  court
for a hearing  regarding  the  reasonableness  of  the  expenses  and  costs
awarded.  We disagree.
      On October 21, 1997, the trial  court  ordered  the  parties  to  file
briefs on the issue of Rule 219(e) expenses. During oral  argument,  counsel
for Luna and Joson asserted that his clients  had  filed  such  a  petition,
seeking far in excess of the $79,173.14 which  the  trial  court  ultimately
awarded them.  Counsel has provided us with  no  record  citation  for  this
petition, and we have been unable to locate the petition in  the  voluminous
record.  The plaintiffs' counsel, however, did not  contest  the  fact  that
Luna and Joson filed such a petition.  It  is  unclear  to  us  whether  the
trial court heard argument on the issue of Rule 219(e) expenses or took  the
issue under advisement on the parties' briefs alone.  During  oral  argument
before this court, counsel for Luna and Joson asserted that the court  heard
argument but, once again, we have been provided with no record citation  and
have been unable to locate the transcript of  any  such  argument.   At  any
rate, during oral  argument  before  this  court,  the  plaintiffs'  counsel
conceded that  the  plaintiffs  did  not,  before  the  trial  court,  raise
objections to any specific expenses sought by the  defendants  but,  rather,
only objected generally to the assessment of Rule 219(e) expenses.
      The parties have obviously provided us with a less than clear  picture
of the procedural steps leading to the entry of  Judge  Virgilio's  November
12, 1997, order, setting forth the amount of  Rule  219(e)  expenses  to  be
assessed, which order was later adopted  by  Judge  Zwick  and  incorporated
into her April 21, 2000, order. We do, however, know that the  parties  were
given an opportunity to brief the issue and  that  the  plaintiffs  made  no
objections as to any specific expense or category of expenses sought by  the
plaintiffs.  We also know  that  the  trial  court  ultimately  awarded  the
defendants significantly less than the amount they  were  seeking.   All  of
these facts belie the plaintiffs' assertion that the  trial  court  assessed
expenses without inquiring into or allowing the  plaintiffs  an  opportunity
to challenge the reasonableness of those expenses.
      As part of their cross-appeal, the plaintiffs also ask this  court  to
review various trial court rulings quashing depositions,  striking  portions
of their complaint, barring certain evidence  and  testimony,  and  granting
and denying certain motions in limine.   The  plaintiffs  sought  review  of
these same interlocutory orders the first time this case was before us.   As
we stated at that time, we lack jurisdiction  to  review  the  interlocutory
orders in question as none of  the  orders  constituted  a  procedural  step
leading to the trial court's  orders  granting  a  voluntary  dismissal  and
assessing Rule 219(e) expenses.  See Valdovinos, 307 Ill. App.  3d  at  537-
38; Arangold Corp. v. Zehnder, 187 Ill.  2d  341,  718  N.E.2d  191  (1999);
Hough v. Kalousek, 279 Ill. App. 3d 855,  863-64,  665  N.E.2d  433  (1996);
Saddle Signs, Inc. v. Adrian, 272 Ill. App. 3d 132, 135-40, 650  N.E.2d  245
(1995).
      For  the  foregoing  reasons,  we  affirm  the  trial  court's  orders
granting the plaintiffs' motion to voluntarily dismiss  the  action  without
prejudice pursuant to section 2-1009 of the  Code  and  requiring  that  the
plaintiffs pay the expenses of Luna and Manalac, in the sum  of  $79,173.14,
pursuant to Rule 219(e).
      Affirmed.
      HARTMAN and THEIS, JJ., concur.
-----------------------

      [1]  Parke Davis also filed notices of appeal docketed in  this  court
as numbers 1-00-1741 and 1-00-2114, from which the plaintiffs filed  notices
of cross-appeal.  Those appeals, however, have been dismissed pursuant to  a
settlement agreement between the parties.

      [2]  After the plaintiffs moved to voluntarily dismiss the action,
Parke Davis filed a motion for summary judgment, in which Luna and Joson
subsequently joined.  The trial court, however, declined to rule on the
motion before granting the plaintiffs' motion for a voluntary dismissal.

