
30 June 1999

NO. 4-98-0497



IN THE APPELLATE COURT 

OF ILLINOIS

FOURTH DISTRICT

RONALD MORRISON and SHARON MORRISON,	)	Appeal from

Plaintiffs-Appellants,		)	Cir­cuit Court of

          v.						)	Adams County

C.G. WAGNER, M.D.,	 			 	)	No. 94L102

Defendant-Appellee,			)

and						)

ST. MARY'S HOSPITAL, INC., a			)

Not-for-Profit Corporation, and		)	Honorable

MICHAEL FEELY, M.D.,				)	Dennis K. Cashman,

Defendants.				)	Judge Presiding.

______________________________________________________________________

JUSTICE MYERSCOUGH delivered the opinion of the court:

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 neurosur­

geon.  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 preju­

dice, 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 settle­

ment 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 re­

turned 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.

I. BACKGROUND

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 wit­

nesses.

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 plain

tiffs' 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.

II. ANALYSIS

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 favorably ruled on by the court, could result in a final disposition of the case.  If that prior motion is without merit, the trial court must grant the subse­quent section 2-1009 motion).

In 
Gibellina
, the defendants asked the court to correct what they saw as an abusive situation where voluntary dismissal motions were being used to evade the consequences of a failure to comply with discovery.  The court, however, refused to deny a statutory right merely because one party was dissatis­fied with the circuit court's supervision of the litigation.  
Gibellina
, 127 Ill. 2d at 133, 535 N.E.2d at 864.

Similarly, in 
Crawford v. Schaeffer
, 226 Ill. App. 3d 129, 135-36, 590 N.E.2d 497, 501 (1992), the court recognized that "under current case law the right to nonsuit is virtually unas­sailable.  Accord­ingly, we hesitate to impose any restric­

tions, no matter how warranted by circumstances and policy, 
absent
 
guidance
 
from the
 
legislature
 
or
 
the
 
supreme
 
court
."  (Emphasis added.)  Similar­ly, in this case, absent guidance from the legisla­ture or the supreme court, we cannot impose any re­

stric­tions on plaintiffs' right to volun­tarily dismiss.

The case law and statutory enactments reveal that nowhere has the legis­la­ture or the supreme court given the trial court the discretion to deny a plaintiff's right to volun­tarily dismiss under section 2-1009 under these circumstances.  Instead of taking away a plaintiff's right to obtain a voluntary dismiss­

al, the supreme court has instead held plaintiffs ac­count­able for discovery abuses.  Accordingly, Supreme Court Rule 219, "Conse­

quences of Refusal to Comply with Rules or Orders Relating to Discovery or Pretrial Conferenc­es," has been re­vised to read in part:

"A party shall not be permitted to avoid compliance with discov­ery deadlines, orders[,] or applicable rules by voluntarily dismiss­ing a lawsuit.  In establishing discovery dead­

lines and ruling on permissible discovery and testi­mony, the court shall consider discovery undertaken (or the absence of same), any misconduct, and orders entered in prior liti­

gation involving a party."  166 Ill. 2d R. 219(e).

A close reading of the first sentence of Rule 219(e), above, reveals that this lan­guage does 
not
 say a party is prohib­

ited from volun­tarily dismissing a lawsuit to avoid compliance with discovery.  A party 
may
 volun­tarily dismiss a suit 
but
 he must face the consequences which are set forth in the second sen­

tence.  In addition, the court may, in the case being volun­tari­ly dis­missed, assess expenses hereto­fore not permitted to be as­

sessed--"an oppos­ing party['s] 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).

In 
Wright v. Desate, Inc.
, 292 Ill. App. 3d 952, 686 N.E.2d 1199 (1997), the trial court barred the evidence deposi­

tion of plaintiff’s expert.  Plaintiff filed a motion to recon­

sider which the trial court denied.  Approxi­mately one month before trial, plaintiff filed a motion to voluntarily dismiss, which the court granted.  Finding the first sentence of Rule 219(e) ambiguous, the court looked to the committee comments.  After consid­er­ing the commit­tee com­ments to Rule 219(e), the court found that it was clear that it could not inter­pret the rule "as imposing any limitation on a plain­tiff’s right to voluntarily dismiss a case"; rather, the rule "merely orders the consid­er­ation of prior discov­ery misconduct and previously entered discovery orders in a subse­quently filed suit."  
Wright
, 292 Ill. App. 3d at 954-55, 686 N.E.2d at 1201-02.  More­over, the court refused to read the rule as requir­ing, "as a condi­tion precedent to volun­tary dismissal, that the plaintiff agree to be bound by prior dis­covery orders upon refiling the case.  Such a condition would clearly impose a limita­tion on the plaintiff’s right to volun­tarily dis­miss."  
Wright
, 292 Ill. App. 3d at 955, 686 N.E.2d at 1201-02.  Accordingly, it held "that the rule does not limit the plain­tiff’s right to voluntari­ly dismiss a suit."  
Wright
, 292 Ill. App. 3d at 954, 686 N.E.2d at 1201.

The first sentence of Rule 219(e) is subject to more than one interpretation.  When a statute is suscepti­ble to more than one reasonable interpretation, it is considered ambigu­ous.   
Wright
, 292 Ill. App. 3d at 954, 686 N.E.2d at 1201, citing 
Snyder v. Olmstead
, 261 Ill. App. 3d 986, 634 N.E.2d 756 (1994).  If a statute or rule is ambiguous, a court may consider other sources, such as its committee comments, to ascertain the purpose of the rule.  
Scattered Corp. v. Midwest Clearing Corp.
, 299 Ill. App. 3d 653, 657-58, 702 N.E.2d 167, 170 (1998), citing  
Wright
, 292 Ill. App. 3d at 954, 686 N.E.2d at 1201.

Upon consideration of the committee comments to Rule 219(e), it is clear that when amend­ing Rule 219, the draft­ers did not intend in any way to compro­mise a plaintiff's right to a volun­tary nonsuit.  Specifi­cally, the committee comments to Rule 219(e) state in relevant part:  "
This
 
paragraph
 
does
 
not
 
change exist­ing
 
law
 
regard­ing
 
the
 
right
 
of
 
a
 
party
 
to
 
seek
 
or
 
obtain
 
a
 
voluntary
 
dismiss­al
."  (Emphasis add­ed.)  166 Ill. 2d R. 219(e), Committee Com­ments, at cxiv.  A clear indication that it was not the intent to abolish the right to a voluntary dismissal but merely to hold plaintiffs ac­count­able is found in the comments on the in­struc­tion to the trial court when a case is re­filed:  

"[T]his paragraph does clearly dic­tate that when a case is refiled, the court 
shall
 
con­

sider
 
the
 
prior
 
litigation
 in deter­mining what discovery will be permitted, and what witness­es and evidence may be barred."  (Em­phasis added.) 166 Ill. 2d R. 219(e), Commit­tee Comments at cxiv.

While not taking away a plaintiff's right to voluntari­

ly dismiss, the supreme court has armed the trial court with the discre­tion and authority to impose sanctions upon a plaintiff for noncompliance with discov­ery orders and abuses of discovery.  The sanc­tions range from assessing monetary penalties, to dis­missing the action with or without preju­dice, to the court in a subse­

quent suit consider­ing orders entered in prior litiga­tion.  166 Ill. 2d Rs. 219(c), (e); see also 
Clymore v. Hayden
, 278 Ill. App. 3d 862, 869, 663 N.E.2d 755, 758 (1996) (case dismissed with preju­dice due to plaintiff's repeat­ed failure to abide by discov­

ery re­quests and orders).  In 
Clymore
, this court noted that the changes in the supreme court rules, effective January 1, 1996, "both tighten the discovery process and give trial courts greater authority to govern it."  
Clymore
, 278 Ill. App. 3d at 869, 663 N.E.2d at 759.  Specifical­ly, the court re­ferred to Supreme Court Rule 219(c), which sets forth the sanc­tions avail­able for viola­

tions of court orders or discovery rules in civil cases.  
Clymore
, 278 Ill. App. 3d at 869, 663 N.E.2d at 759.

In 
Scattered Corp.
, 299 Ill. App. 3d at 660, 702 N.E.2d at 171, the court held that "Rule 219(e) does not act as a bar to a plaintiff's statutory right to a voluntary dismissal.  [Cita­

tions.]  Rule 219(e) does, however, curtail a plaintiff's use of the volun­tary dis­missal as a dilato­ry tactic."  Fur­thermore, the court deter­mined that when faced with a party’s failure to comply with discovery and court orders regard­ing discovery, Rule 219(e) clearly dic­tates that the trial court, in a refiled case, is to consider the previ­ous litigation in deter­mining what discovery will be permit­ted and what evidence and wit­nesses will be barred.  
Scattered Corp.
, 299 Ill. App. 3d at 658, 702 N.E.2d at 170.

In the present case, plaintiffs filed a motion to voluntari­ly dismiss pursuant to section 2-1009.  Interestingly, the only objec­tion to this motion by defendants St. Mary’s Hos­

pital and Michael Feely, was on the ground that plaintiffs failed to allege that costs had been tendered to defendants; therefore, the motion should be denied.  Wagner never objected at all.  None of the defen­dants argued that plain­tiffs were not enti­tled to the right to volun­tarily dis­miss.

If the trial court felt that plaintiffs, in this case, violated court orders and dis­covery rules, it had ample opportu­

nity, and the authority, to dismiss this case under Rule 219(c) (166 Ill. 2d R. 219(c)).  See 
Clymore
, 278 Ill. App. 3d at 869, 663 N.E.2d at 759 (commending the trial court for having the courage to dismiss when con­fronted with deliberate noncompli­ance of court orders and rules); see also 
Sander v. Dow Chemi­cal Co.
, 166 Ill. 2d 48, 71, 651 N.E.2d 1071, 1082 (1995) (the trial court had au­thority to sanction party per Rule 219(c) for vio­lation of discovery rules and for violation of trial court's orders).

We conclude the trial court had no discretion, pursuant to Rule 219(e), to deny the plaintiffs' motion to dis­miss.  Because we find the trial court had no discretion to deny plain

tiffs' motion to dismiss, we need not address plaintiffs' other two issues.

III. CONCLUSION

Accordingly, for the reasons stated, we vacate the judgment and remand with directions to the trial court for a hearing on plaintiffs' costs to defendants.

COOK, J., concurs.

McCULLOUGH, J., dissents.

JUSTICE McCULLOUGH, dissenting:

I respectfully dissent.  Pursuant to its supervisory powers and manageri­al authori­ty, the Supreme Court of Illinois has restrict­ed the "absolute" right to dismissal.  In 
Gibellina
, 127 Ill. 2d at 137, 535 N.E.2d at 865-66, the court stated:

"[A]n ever increasing number of plain­tiffs are using a section 2-1009 motion to avoid a poten­tial decision on the 'merits' or to avoid an ad­verse ruling as op­posed to using it to correct a procedural or technical de­

fect. [Citations.]  It has become clear that the allow­ance of an unre­stricted right to dismiss and refile an action in the face of a poten­tially disposi­tive motion is not only increas­ing the burden on the already crowd­ed dockets of our courts, but is also infringing on the authority of the judicia­ry to dis

charge its duties fairly and expedi­tiously."

In 
O'Connell v. St. Francis Hospital
, 112 Ill. 2d 273, 283, 492 N.E.2d 1322, 1327 (1986), the court stated that where a plain­tiff, relying on sections 2-1009 and 13-217 (735 ILCS 5/13-

217 (West 1994)) of the Code, files a motion to volun­tarily dismiss while a Rule 103(b) (177 Ill. 2d R. 103(b)) motion is pending, the trial court must hear the Rule 103(b) motion on the merits prior to ruling on plaintiff's motion to dismiss under section 2-1009.

In 
O'Connell
, the court placed certain limitations on a 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 constitu­

tional authority to regulate the judicial system, the rule will control. 
O'Connell
, 112 Ill. 2d at 281, 492 N.E.2d at 1326.  The court noted the plaintiff's rights to voluntarily dismiss and refile his com­plaint under section 13-217 are subject to the reasonable diligence standard of Rule 103(b).  In 
Catlett v. Novak
, 116 Ill. 2d 63, 70, 506 N.E.2d 586, 590 (1987), the court again held there is no "absolute right" to voluntary dismissal under section 2-1009 when that section conflicts with supreme court rules.  In 
Arnett v. J.D. Young
, 269 Ill. App. 3d 858, 862, 646 N.E.2d 1265, 1268 (1995), the court stated "[n]othing is more critical than the administration of justice without delay, and central to discharging this function, the judi­ciary must be unimpeded in considering and rendering judgments on matters before it." 

The rationale of 
O'Connell
 and 
Catlett
 is that the supreme court may not be thwarted in its constitutional mandate to render justice fairly and promptly by the manipulation of the statutory provisions relating to the dismissal and refil­ing of suits.  
Muskat v. Sternberg
, 122 Ill. 2d 41, 48, 521 N.E.2d 932, 935 (1988).

In light of (1) the restrictions placed upon the "absolute right" to dismissal by decisions of the supreme court, (2) the conclusion in 
Catlett
 and 
O'Connell
 that there is no "abso­lute right" to voluntary dismissal under section 2-1009 when that section conflicts with a supreme court rule, and (3) the plain language of Rule 219(e) (166 Ill. 2d R. 219(e)) that "[a] party shall not be permitted to avoid compliance with discovery deadlines, orders or applicable rules by voluntarily dismissing a lawsuit," it appears the 
Wright
 court's determination that Rule 219(e) "permits a voluntary dismissal even when the dismissal is prompted by discovery sanctions" is unneces­sarily broad.  
Wright
, 292 Ill. App. 3d at 953, 686 N.E.2d at 1200.  Although the rule may permit a voluntary dismiss­al, it does not 
require
 a court to allow the dismissal.  Clearly, the rule was written to control the abuses discussed in 
Gibellina
 and to comply with that court's sugges­tion that it was necessary to place restrictions on the right to voluntary dis­miss­al.  If a plaintiff is allowed the unfettered right to voluntarily dismiss, then the first part of Rule 219(e), "A party shall not be permitted to avoid compli­ance," is effec­tively rendered a nullity.  166 Ill. 2d R. 219(e).

Here, unlike in 
Wright
, the trial court denied plain

tiffs' motion to dismiss.  In 
Wright
, the trial court allowed the motion to dismiss, and the court on appeal addressed the question of whether the rule prohibited voluntary dismissal.  In this case, this court is being asked to determine if the rule gives the court the discretion to deny a motion to dismiss where discovery rules have been violated.  Consistent with the language of Rule 219(e), it is within the sanctioning power of the court to deny plaintiffs a voluntary dismissal, when it is done to avoid discovery orders or sanctions.

A review of the record in this case shows that plain­

tiffs had refused to comply with numerous discovery requests over the three-year period that the case had been pending, until a motion to compel had been filed on March 10, 1997.  In addi­tion, on March 24, 1997, the record shows plaintiffs failed to disclose expert witnesses in violation of court orders.  On May 5, 1997, shortly before the motion to voluntarily dismiss was filed, the court entered an order barring the testimony of two of plain

tiffs' 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.

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.  Aside from attorney fees, the costs incurred by defendants were substan­tial.  It was only after unfavorable rulings in regard to expert opinion witnesses that plaintiffs filed their motion to dismiss. 

Plaintiffs did not provide a transcript or a by

stander's report of the hearing on the motion, and we must assume, there­fore, the trial court acted correctly in denying the motion due to its determination that plaintiffs' counsel had engaged in continued violations of discovery.  I conclude the trial court had the discretion to deny the plaintiffs' motion to dismiss under the circumstances and did not abuse that discretion here.

I would also affirm the trial court's denial of the plaintiffs' motion for judgment 
n.o.v.
 and the motion for new trial.

