THE PERILS OF VOLUNTARILY DISMISSING WITHOUT PREJUDICE: "BEWARE WHAT YOU DREAM FOR"

AN OVERVIEW

ALAN R. BORLACK BAILEY BORLACK NADELHOFFER LLC 135 SOUTH LASALLE STREET #3950 CHICAGO IL 60603 (312) 629-2700 ABORLACK@BBN-LAW.COM 4-27-15

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ABOUT THE SPEAKER

Alan R. Borlack is a partner in Bailey Borlack Nadelhoffer LLC. A

graduate of Harvard Law School, Alan started at Mayer Brown & Platt and

has concentrated in complex commercial litigation ever since.

He has handled virtually every kind of commercial litigation case,

many involving sophisticated issues and sizeable amounts at stake,

including actions involving antitrust, securities fraud, consumer fraud,

intellectual property, shareholder, derivative, statutory and constitutional

issues, covenants not to compete, injunctions, and specific performance.

He has handled many appeals and been before the Illinois Supreme Court

on five occasions. He has spoken on litigation topics at many seminars.

Alan is co-Vice Chair of the Chicago Bar Association Civil Practice

Committee and is also Chair of the CBA Animal Law Committee where he

gives voice to his personal passion for protecting companion animals and

wildlife.

Alan suggests that for those of you who have too much time on their

hands and want to know more, including a recitation of some of his more

memorable cases, go to his firm's website at http://www.bbn-law.com.

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SECTION 2-1009 PERMITS VOLUNTARY DISMISSAL AT ANY TIME BEFORE TRIAL UPON PAYMENT OF COSTS § 2-1009. Voluntary dismissal. (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. (b) The court may hear and decide a motion that has been filed prior to a motion filed under subsection (a) of this Section when that prior filed motion, if favorably ruled on by the court, could result in a final disposition of the cause. (c) After trial or hearing begins, the plaintiff may dismiss, only on terms fixed by the court (1) upon filing a stipulation to that effect signed by the defendant, or (2) on motion specifying the ground for dismissal, which shall be supported by affidavit or other proof. (d) A dismissal under subsection (a) of this Section does not dismiss a pending counterclaim or third party complaint. (e) Counterclaimants and third-party plaintiffs may dismiss upon the same terms and conditions as plaintiffs. NOTE: NEAR UNFETTERED RIGHT TO VOLUNTARILY DISMISS IS ONLY UNTIL TRIAL BEGINS NOTE: ONCE TRIAL BEGINS, DISMISSAL IS ONLY UPON “TERMS FIXED BY THE COURT”

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SECTION 2-1009 GIVES A (NEAR) UNFETTERED RIGHT TO VOLUNTARILY DISMISS BEFORE TRIAL---BUT WITH CONDITIONS SUPREME COURT HAS NOTED THAT THERE ARE 3 CONDITIONS TO VOLUNTARILY DISMISS BEFORE TRIAL: (1) PLAINTIFF MUST FILE A MOTION TO VOLUNTARILY DISMISS PRIOR TO BEGINNING OF TRIAL; (2) PLAINTIFF MUST GIVE PROPER NOTICE; (3) PLAINTIFF MUST PAY COSTS BUT ALSO THAT (2) FAILURE TO GIVE NOTICE IS RELAXED WHERE THE DEFENDANT HAS SUFFERED NO PREJUDICE FROM THE LACK OF NOTICE, AND (3) REQUIREMENT OF COSTS IS ALSO RELAXED WHERE PLAINTIFF AGREES TO PAY COSTS AND ORDER REQUIRES PLAINTIFF TO PAY COSTS UPON PRESENTATION. In re Marriage of Tiballi 2014 IL 1163 at ¶¶19-20 (Ill.,2014) SUPREME COURT HAS ALSO NOTED THAT RIGHT TO VOLUNTARILY DISMISS UNDER ¶ 2-1009 BEFORE TRIAL IS “UNFETTERED” BUT SUBJECT TO TWO “QUALIFICATIONS”: (1) WHERE OPPOSING PARTY HAS PREVIOUSLY FILED A POTENTIALLY DISPOSITIVE MOTION; OR (2) DISMISSAL WOULD DIRECTLY CONFLICT WITH A SPECIFIC SUPREME COURT RULE” Morrison v. Wagner, 191 Ill.2d 162, 165 (2000)

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WHAT “COSTS” DO YOU HAVE TO PAY TO VOLUNTARILY DISMISS? "COSTS" UNDER § 5-108 ARE ONLY “COURT COSTS” AND, GENERALLY PRIOR TO TRIAL, QUITE LIMITED “IT IS UNDISPUTED THAT SECTION 5-108 MANDATES THE TAXING OF COSTS COMMONLY UNDERSTOOD TO BE ʻCOURT COSTS, SUCH AS FILING FEES, SUBPOENA FEES, AND STATUTORY WITNESS FEESʼ" Under its definition of “costs,” Black's Law Dictionary distinguishes between court costs, the “charges or fees taxed by the court, such as filing fees, jury fees, courthouse fees, and reporter fees,” and litigation costs, the “expenses of litigation, prosecution, or other legal transaction, esp [ecially] those allowed in favor of one party against the other.” Black's Law Dictionary 350 (7th ed. 1999). It is undisputed that section 5–108 mandates the taxing of costs commonly understood to be “court costs,” such as filing fees, subpoena fees, and statutory witness fees, to the losing party. Vicencio v. Lincoln–Way Builders, Inc., 204 Ill.2d 295, 302, (2003); In re Marriage of Tiballi 2014 IL 1163 at ¶ 26-27 (Ill.,2014)

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SECTION 13-217 PROVIDES AT MINIMUM ONE YEAR TO REFILE OR GREATER--EVEN IF LIMITATIONS PERIOD HAS EXPIRED “WITHIN ONE YEAR OR WITHIN THE REMAINING PERIOD OF LIMITATION, WHICHEVER IS GREATER” § 13-217. Reversal or dismissal. In the actions specified in Article XIII of this Act or any other act or contract where the time for commencing an action is limited, if judgment is entered for the plaintiff but reversed on appeal, or if there is a verdict in favor of the plaintiff and, upon a motion in arrest of judgment, the judgment is entered against the plaintiff, or the action is dismissed by a United States District Court for lack of jurisdiction, or the action is dismissed by a United States District Court for improper venue, then, whether or not the time limitation for bringing such action expires during the pendency of such action, the plaintiff, his or her heirs, executors or administrators may commence a new action within one year or within the remaining period of limitation, whichever is greater, after such judgment is reversed or entered against the plaintiff, or the action is dismissed by a United States District Court for lack of jurisdiction, or the action is dismissed by a United States District Court for improper venue. No action which is voluntarily dismissed by the plaintiff or dismissed for want of prosecution by the court may be filed where the time for commencing the action has expired.

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WHY FILE A MOTION FOR VOLUNTARY DISMISSAL BEFORE TRIAL? PERHAPS ONE CAN SPECULATE THAT DESIRE TO V.D. OFTEN ARISES OUT OF A DISCOMFORT WITH THE JUDGE, ... AND AUTOMATIC RIGHT TO SUBSTITUTE JUDGE UNDER § 2-1001(a)(2) HAS EXPIRED AS JUDGE HAS RULED ON A SUBSTANTIAL ISSUE OR PLAINTIFF HAS ALREADY USED “ONE FREE” SUBSTITUTION .... AND

• PLAINTIFF DOES NOT FEEL COMFORTABLE WITH THE JUDGE DECIDING MOTIONS OR TRYING THE CASE

• PLAINTIFF IS WORRIED ABOUT OUTCOME OF A LIKELY

MOTION TO DISMISS OR SUMMARY JUDGMENT?

• JUDGE HAS SET UNFAVORABLE DISCOVERY OR EVIDENTIARY ORDERS AND DEADLINES?

• A TRIAL DATE IS NEARING OR LOOMING?

. . . JUST FILE A MOTION FOR VOLUNTARY DISMISSAL AND THEN REFILE CASE AND GET A NEW JUDGE? . . . SO WHATS NOT TO LIKE? . . . NOT SO FAST

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OLD CHINESE PROVERB: "BEWARE WHAT YOU DREAM FOR" A PARADE OF HORRIBLES: ---IF PART OF YOUR CASE HAS ALREADY BEEN DISMISSED ON THE MERITS, YOU MAY RISK HAVING THE REMAINING CLAIMS IN YOUR REFILED CASE BARRED BY RES JUDICATA

• IF THAT HAPPENS, YOUR REFILED CASE IS DISMISSED

• YOU MAY RISK A MALPRACTICE ACTION AGAINST YOU ---IF YOU ARE FOUND TO HAVE ENGAGED IN MISCONDUCT BY AVOIDING "COMPLIANCE WITH DISCOVERY DEADLINES, ORDERS OR APPLICABLE RULES" UNDER S.CT RULE 219(e), YOU RISK HAVING YOUR CLIENT BEING ASSESSED WITH OPPOSING PARTIESʼ "REASONABLE EXPENSES" WHICH CAN BE MUCH SUBSTANTIAL THAN MERE "COSTS" ---NEW JUDGE IN REFILED CASE IS CHARGED UNDER RULE 219(e) WITH “CONSIDERING” DISCOVERY UNDERTAKEN OR NOT UNDERTAKEN, ANY MISCONDUCT AND ORDERS ENTERED IN PRIOR CASE AND MAY EVEN REIMPOSE THEM

• AS A RESULT, YOU MAY NOT GAIN MUCH RELIEF, IF ANY, BY REFILING

---IT IS POSSIBLE THAT YOUR REFILED CASE MAY BE ASSIGNED TO ORIGINAL JUDGE ---IF BEFORE YOU FILE YOUR MOTION TO VOLUNTARILY DISMISS, OPPOSING PARTY HAS FILED (OR MAYBE EVEN INDICATED) A POTENTIALLY DISPOSITIVE MOTION, PER § 2-1009(b) JUDGE MAY DECIDE TO RULE ON THAT MOTION BEFORE GRANTING YOUR MOTION TO VOLUNTARILY DISMISS

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• IF JUDGE GRANTS A DISPOSITIVE MOTION, ITS NOW TOO LATE TO VOLUNTARILY DISMISS--YOU LOST

• OR IF JUDGE GRANTS PARTIAL DISPOSITIVE MOTION,

YOU NOW FACE RES JUDICATA CLAIM-SPLITTING ISSUE ON THE REMAINING CLAIMS IF YOU THEN SEEK TO VOLUNTARILY DISMISS AND REFILE

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A REFILED CASE MAY END UP BEING ASSIGNED TO THE SAME JUDGE ----ONE UNPUBLISHED FIRST DISTRICT OPINION SAYS THAT UPON REFILING AN ACTION THE PRESIDING JUDGE "OBVIOUSLY" HAS "THE DISCRETION" TO RETURN THE REFILED CASE TO THE ORIGINAL JUDGE Advantage Equipment Resources, LLC v. Middleby Corp. 2013 IL App (1st) 121778-U ("Clearly, plaintiffs were not entitled to a different judge as a matter of right. ...We note that nothing would prohibit defendants from presenting a motion before the presiding judge requesting the re-filed lawsuit be assigned to Judge McGrath setting forth the reasons why the matter should be returned to her calendar, an administrative decision which is obviously within the discretion of the presiding judge") --ANOTHER FIRST DISTRICT CASE NOTED THAT A MOTION TO RETURN REFILED CASE TO ORIGINAL JUDGE (“ADMINISTRATIVE TRANSFER”) WAS DENIED Quintas v. Asset Management Group, Inc. 395 Ill.App.3d 324, 328 (1st Dist., 2009) (“On July 15, 2005, defendants filed a motion for administrative transfer, requesting that the same judge who presided over Quintas I also preside over Quintas I. Plaintiffs opposed the motion and it was denied.) ----A SECOND DISTRICT CASE (LAKE COUNTY) HINTED THAT BUT FOR ORIGINAL JUDGEʼS RETIREMENT THE REFILED CASE WOULD HAVE BEEN ASSIGNED TO ORIGINAL JUDGE Law Offices of Nye and Associates, Ltd. v. Boado 2012 IL App (2d) 110804 at ¶ 7 (2d Dist.,2012) (“The trial court judge in the previous case had retired, and the case was assigned to a different judge.”)

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TWO CASES HAVE HELD THAT WHEN SAME JUDGE IS ASSIGNED TO REFILED CASE A MOTION TO SUBSTITUTE MAY BE DENIED The Intersection Between § 2-1001(a) Substitution As Of Right And § 2-1009 Motion To Voluntarily Dismiss Ramos v. Kewanee Hosp. 2013 IL App (3d) 120001)

• Filed complaint in Circuit Court of Henry County

• In August 2010 Judge set trial date of January 10, 2011

• In October 2010, Judge struck jury demand as untimely

• On January 4, 2011 plaintiff announced his intention to file a Voluntary Dismissal

• On January 6, 2011 Judge entered order granting VD

“without prejudice”

• On February 16, 2011 plaintiff refiled case (obtained the same Judge)

• On February 28, 2011, plaintiff filed a motion for

substitution of judge as a matter of right, which Judge eventually denied

• On appeal, plaintiff argued that refiled case was a new and

distinct action and he was therefore entitled to a substitution as a matter of right

• Court agreed that per Ill. S.Ct. Dr. Ramos's voluntarily

dismissal of case “terminated the action in its entirety” and that “The original and refiled actions are completely distinct actions”. Dubina v. Mesirow Realty Development, Inc., 178 Ill.2d 496, 503, 687 N.E.2d 871 (1997).

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• Court noted case law which holds that even when the

judge has not made a substantive ruling, a motion for substitution can be denied “if the litigant “ʻhad an opportunity to test the waters and form an opinion as to the court's dispositionʼ”

• “Undoubtedly, plaintiff had an opportunity to do more than

just test the waters in” original case HELD: affirmed denial of motion to substitute because trial judge found that plaintiff had “tested the waters” in the original case: “Our best guess is that the supreme court would not endorse the exercise of the right to voluntary dismissal as an end run around the prohibition against judge shopping. We hold that under the facts of this case, where the trial judge found that plaintiff had tested the waters in the voluntarily dismissed action, the trial court did not err in denying plaintiff's motion for substitution of judge in the new action.” Bowman v. Ottney, 2015 IL App (5th) 140215:

• Filed complaint in Circuit Court of Jefferson County before Judge Overstreet

• Judge Overstreet made substantive rulings

• On March 27, 2013 Plaintiff moved to voluntarily dismiss

• On April 1, 2013 , Judge Overstreet granted motion to

voluntarily dismiss “without prejudice”

• On August 21, 2013 Plaintiff refiled

• “Purely coincidentally”, Plaintiff's action was again assigned to Judge Overstreet

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• On September 13, 2013-- prior to any rulings by Judge

Overstreet--Plaintiff filed Motion For Substitution per § 2-1001(a)

• On January 21, 2014 Judge Overstreet denied Motion To

Substitute HELD WITH ONE DISSENT: AFFIRMED DENIAL OF MOTION TO SUBSTITUTE APPARENTLY ON ALTERNATE GROUNDS:

• “We therefore hold that a trial court has the discretion to deny a plaintiff's immediately filed motion for substitution of judge where the court had made substantive rulings in the previously dismissed case. ....”

• “[Further], even if no substantial rulings were made by the

trial court in the plaintiff's second action, the motion may be considered untimely because it was made after the plaintiff had an opportunity to form an opinion as to Judge Overstreet's reaction to her cause of action. Frankly, the plaintiff's strategy was thwarted by chance; a purely coincidental re-assignment to Judge Overstreet brings this matter to our attention today.”

DISSENT: “. . . The primary basis for the majority's decision is its approval of the “test the waters” doctrine. In my view, the “test the waters” doctrine was thoroughly discredited and properly rejected by the Fourth District in its comprehensive and thoughtful opinion in Schnepf v. Schnepf, 2013 IL App (4th) 121142, 375 Ill.Dec. 75, 996 N.E.2d 1131” QUERY: SUPREME COURT WILL SELECT ITS NEXT ROUND OF PLAʼS IN LATE MAY--WILL BOWMAN (WITH ITS DISSENT AND CONFLICT IN CASES RE “TESTING THE WATERS”) BE ONE OF THEM?

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NOTE: A JUDGE MUST BE CAREFUL IN DENYING A MOTION TO SUBSTITUTE BECAUSE IF HE OR SHE IS WRONG, ALL ORDERS ENTERED THEREAFTER ARE NULL AND VOID

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CLAIM-SPLITTING

THREE REQUIREMENTS OF RES JUDICATA Res judicata bars a subsequent action if: (1) a final judgment on the merits was rendered by a court of competent jurisdiction, (2) an identity of cause of action exists, and (3) the parties or their privies are identical in both actions. Hudson v. City of Chicago, 228 Ill.2d 462, 467 (2008). NOTE: WE WILL DISCUSS "FINAL JUDGMENT" BELOW NOTE: AS TO IDENTITY OF CAUSE OF ACTION, ILLINOIS FOLLOWS THE “TRANSACTIONAL TEST” WHERE SEPARATE CLAIMS ARE CONSIDERED THE SAME CAUSE OF ACTION AND ARE BARRED BY RES JUDICATA, WHERE

• THEY ARISE FROM A SINGLE GROUP OF OPERATIVE FACTS,

• REGARDLESS OF WHETHER DIFFERENT THEORIES OF

RELIEF ARE ASSERTED

• CLAIMS MAY BE CONSIDERED PART OF THE SAME CAUSE OF ACTION EVEN IF THERE IS NOT A SUBSTANTIAL OVERLAP OF EVIDENCE, SO LONG AS THEY ARISE FROM THE SAME TRANSACTION

River Park, Inc. v. City of Highland Park, 184 Ill.2d 290, 309, 311 (1998)

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MY GUESS: IN MANY CASES THERE WILL NOT BE AN ISSUE ON REFILING OF WHETHER THE REFILED ACTION PRESENTS A NON-IDENTICAL TRANSACTION OR PARTY IF SO, THE ISSUE IS WHETHER THERE WAS A FINAL JUDGMENT ON THE MERITS WHEN PART OF CASE HAD BEEN DISMISSED

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RES JUDICATA BARS NOT JUST WHAT WAS ACTUALLY DECIDED BUT WHATEVER “COULD HAVE BEEN” DECIDED The doctrine of res judicata bars not only what was actually decided in the first action but also whatever could have been decided.

• Hudson v. City of Chicago, 228 Ill.2d 462, 467 (2008). NOTE: THIS IS A KEY CONCEPT IN ORDER TO UNDERSTAND WHEN CLAIM-SPLITTING IS BARRED BY RES JUDICATA BECAUSE ..... WHEN RES JUDICATA IS APPLICABLE, THE COURT FINDS THAT --PART OF THE CASE HAS BEEN INVOLUNTARILY DISMISSED ON THE MERITS, AND --THAT THE VOLUNTARILY DISMISSED CLAIMS--ALTHOUGH NOT ADJUDICATED ON THE MERITS--“COULD HAVE BEEN DECIDED” IN THE ORIGINAL CASE. Hudson v. City of Chicago, 228 Ill.2d 462, 471, 474 (2008).

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VOLUNTARY DISMISSALS AFTER A FINAL JUDGMENT ON PART OF THE ACTION CAN LEAD TO CLAIM -SPLITTING THAT IS BARRED BY RES JUDICATA “A PLAINTIFF WHO SPLITS HIS CLAIMS BY VOLUNTARILY DISMISSING AND REFILING PART OF AN ACTION AFTER A FINAL JUDGMENT HAS BEEN ENTERED ON ANOTHER PART OF THE CASE SUBJECTS HIMSELF TO A RES JUDICATA DEFENSE”.

• Hudson v. City of Chicago, 228 Ill.2d 462, 473 (2008)

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THRESHOLD ISSUE IS WHETHER THE INVOLUNTARY DISMISSAL OF PART OF THE ACTION WAS A “FINAL JUDGMENT ON THE MERITS” 1. MOST, BUT NOT ALL, INVOLUNTARY DISMISSALS OPERATE AS AN “ADJUDICATION ON THE MERITS” PER S.CT RULE 273: S.CT RULE 273: “UNLESS THE ORDER OF DISMISSAL OR A STATUTE OF THIS STATE OTHERWISE SPECIFIES, AN INVOLUNTARY DISMISSAL OF AN ACTION, OTHER THAN A DISMISSAL FOR LACK OF JURISDICTION, FOR IMPROPER VENUE, OR FOR FAILURE TO JOIN AN INDISPENSIBLE PARTY, OPERATES AS AN ADJUDICATION UPON THE MERITS”.

• Rein v. David A. Noyes & Co., 172 Ill.2d 325, 335 (1996); Hudson v. City of Chicago, 228 Ill.2d 462, 473 (2008)

2. THUS, ANY INVOLUNTARY DISMISSAL IS AN ADJUDICATION ON THE MERITS UNLESS (1) THE ORDER OF DISMISSAL OR A STATUTE OTHERWISE SPECIFIES, OR (2) THE DISMISSAL IS FOR LACK OF JURISDICTION, IMPROPER VENUE OR FAILURE TO JOIN AN INDISPENSIBLE PARTY.

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EXAMPLES OF CLAIM-SPLITTING A. Hudson v. City of Chicago, 228 Ill.2d 462, 474 (2008): 1. PLAINTIFFS BROUGHT A COUNT FOR NEGLIGENCE AND A COUNT FOR WILFUL AND WANTON CONDUCT 2. COURT DISMISSED NEGLIGENCE COUNT “WITH PREJUDICE” BASED ON STATUTORY IMMUNITY 3. PLAINTIFFS VOLUNTARILY DISMISSED AND REFILED THE WILFUL AND WANTON COUNT 4. DEFENDANT RAISED RES JUDICATA DEFENSE IN REFILED ACTION 5. PLAINTIFFS CONCEDED THAT RES JUDICATA ELEMENTS #2 AND #3 APPLIED: THERE WAS AN IDENTITY OF CAUSE OF ACTION AND OF PARTIES 6. PLAINTIFFS CONCEDED THAT THE DISMISSAL OF THE NEGLIGENCE COUNT WAS ON THE MERITS PER S.CT RULE 273 7. BUT PLAINTIFFS ARGUED RES JUDICATA COULD NOT APPLY BECAUSE THERE HAD NOT BEEN A FINAL ADJUDICATION OF THE WILFUL AND WANTON COUNT 8. HELD: ALL THREE RES JUDICATA ELEMENTS APPLIED TO BAR REFILED WILFUL AND WANTON CLAIM. (1) ELEMENT #1 (FINAL JUDGMENT) IS MET BECAUSE DISMISSAL OF NEGLIGENCE COUNT WITH PREJUDICE OPERATES AS AN ADJUDICATION ON THE MERITS (2) ALTHOUGH THE WILFUL AND WANTON COUNT WAS NOT ADJUDICATED ON THE MERITS, BECAUSE THE WILFUL AND WANTON COUNT ARISES OUT OF THE SAME OPERATIVE

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FACTS AS THE NEGLIGENCE COUNT, PLAINTIFFS “COULD HAVE” LITIGATED AND RESOLVED WILFUL AND WANTON COUNT IN THE ORIGINAL ACTION (3) HAVING FAILED TO SO LITIGATE WILFUL AND WANTON COUNT, PLAINTIFFS ARE BARRED FROM RAISING WILFUL AND WANTON COUNT IN REFILED ACTION EVEN THOUGH THERE WAS NO ADJUDICATION ON THE MERITS B. Piagentini v. Ford Motor Co. 387 Ill.App.3d 887, 894-895 (1st Dist. 2009) 1. PLAINTIFF BROUGHT COUNT I FOR STRICT LIABILITY AND COUNT II FOR NEGLIGENCE 2. BOTH COUNTS CONTAINED ALLEGATIONS THAT (1) THAT THE VEHICLE WAS DESIGNED WITH INSUFFICIENT STABILITY, AND (2) LACKED AN ADEQUATE SEATBELT SYSTEM 3. THE COURT GRANTED PARTIAL SUMMARY JUDGMENT AS TO ALLEGATIONS THAT VEHICLE LACKED SUFFICIENT STABILITY (BECAUSE PLAINTIFF FAILED TO DISCLOSE AN EXPERT) 4. COURT ORDER, HOWEVER, PERMITTED LEAVE TO AMEND THE REMAINING ALLEGATIONS 5. PLAINTIFF THEN FILED AN AMENDED COMPLAINT WHICH OMITTED THE STRICKEN ALLEGATIONS, 6. PLAINTIFF LATER FILED A MOTION TO VOLUNTARILY DISMISS AND THEN REFILED THE AMENDED COMPLAINT, 7. HELD: PARTIAL SUMMARY JUDGMENT WAS NOT A “FINAL” ORDER SUBJECT TO RES JUDICATA BECAUSE AN ORDER GRANTING LEAVE TO AMEND INDICATES THAT THERE

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HAS BEEN NO FINAL DISPOSITION AND CANNOT BE A FINAL ORDER....THERE MUST BE A DISMISSAL WITH PREJUDICE.

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A DISMISSAL OF A “THEORY OF RECOVERY” (AS OPPOSED TO A “CAUSE OF ACTION”) MAY NOT BE A FINAL JUDGMENT Wilson v. Edward Hospital, 2012 IL 112898: 1. PLAINTIFF BROUGHT AN ACTION AGAINST HOSPITAL AND DOCTORS FOR MEDICAL MALPRACTICE 2. PLAINTIFF ALLEGED IN A SINGLE COUNT THAT DOCTORS WERE EITHER ACTUAL OR APPARENT AGENTS OF THE HOSPITAL 3. COURT GRANTED PARTIAL SUMMARY JUDGMENT ON ALLEGATIONS THAT DOCTORS WERE ACTUAL AGENTS OF HOSPITAL, 4. COURT FOUND A QUESTION OF FACT AS TO WHETHER THEY WERE APPARENT AGENTS 5. PLAINTIFFS VOLUNTARILY DISMISSED CASE AND REFILED AND ALLEGED THAT DOCTORS WERE APPARENT AGENTS 6. DEFENDANTS RAISED RES JUDICATA 7. HELD: NO RES JUDICATA BECAUSE PARTIAL SUMMARY JUDGMENT WAS NOT A FINAL JUDGMENT ON THE MERITS. 8. APPARENT AGENCY AND ACTUAL AGENCY WERE NOT SEPARATE CLAIMS, BUT RATHER SEPARATE THEORIES OF RECOVERY.

• A SINGLE CAUSE OF ACTION MAY GIVE RISE TO SEVERAL THEORIES OF RECOVERY

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• PLAINTIFFS HAVE ONE CLAIM FOR NEGLIGENCE EVEN WITHOUT THE STRICKEN ALLEGATIONS OF ACTUAL AGENCY

• PLAINTIFFS MAY BE ABLE TO PROVE HOSPITAL LIABLE

FOR NEGLIGENCE BASED ON APPARENT AGENCY An order is final if it either terminates the litigation between the parties on the merits or disposes of the rights of the parties on the entire controversy or a separate branch thereof. This may occur when the grounds for recovery under the various counts arise from different statutes or common law doctrines or when different elements are required to recover under different theories. While “claim” and “cause of action” are synonymous, a “theory of recovery” is not a cause of action. Rather, a single cause of action may give rise to several theories of recovery. Because the trial court's grant of partial summary judgment on actual agency merely removed some of the allegations against the defendant hospital, the plaintiffs could still possibly prove the defendant hospital liable for negligence based upon their remaining allegations of apparent agency. For this reason, the partial summary judgment order did not dispose of the rights of the parties on a separate branch of the controversy, and the order was not final for res judicata purposes. ISSUE: IS THE DISMISSAL A DISMISSAL OF A “CAUSE OF ACTION” (A FINAL ORDER) OR IS IT DISMISSAL OF ONE OF SEVERAL “THEORIES OF RECOVERY” (NOT A FINAL ORDER)?

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SIX EXCEPTIONS TO CLAIM-SPLITTING THE S.CT ADOPTED THE 6 EXCEPTIONS TO CLAIMS SPLITTING SET FORTH IN § 26(1) OF RESTATEMENT (SECOND) OF JUDGMENTS (1982) (1) the parties have agreed in terms or in effect that plaintiff may split his claim or the defendant has acquiesced therein; (2) the court in the first action expressly reserved the plaintiff's right to maintain the second action; (3) the plaintiff was unable to obtain relief on his claim because of a restriction on the subject-matter jurisdiction of the court in the first action; (4) the judgment in the first action was plainly inconsistent with the equitable implementation of a statutory scheme; (5) the case involves a continuing or recurrent wrong; or (6) it is clearly and convincingly shown that the policies favoring preclusion of a second action are overcome for an extraordinary reason. Rein v. David A. Noyes & Co., 172 Ill.2d 325, 342 (1996); Hudson v. City of Chicago, 228 Ill.2d 462, 471-472 (2008)

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WHAT CONSTITUTES AN “EXPRESS RESERVATION” BY THE COURT? HELD: MUST “CLEARLY AND UNMISTAKABLY COMMUNICATE; DIRECTLY STATE” Quintas v. Asset Management Group, Inc. 395 Ill.App.3d 324, -333 (1st Dist. 2009) (quoting Blackʼs Dictionary definition of “express”)

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THE WORDS “WITH LEAVE TO REINSTATE AS A MATTER OF RIGHT” ARE SUFFICIENT TO CONSTITUTE AN “EXPRESS RESERVATION” ORDER PROVIDING THAT “THE PLAINTIFF IS GRANTED LEAVE TO VOLUNTARILY DISMISS WITH LEAVE TO REINSTATE AS A MATTER OF RIGHT” WAS SUFFICIENT TO CONSTITUTE AN “EXPRESS RESERVATION” Green v. Northwest Community Hosp. 401 Ill.App.3d 152, 156 (1st Dist., 2010)

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THE WORDS “WITHOUT PREJUDICE” THEMSELVES MAY NOT CONSITITUTE AN EXPRESS RESERVATION Hudson v. City of Chicago 228 Ill.2d 462, 473, 889 N.E.2d 210, 216 (Ill.,2008): FN2. The comments to section 26 of the Restatement indicate that an example of a court expressly maintaining a plaintiff's right to maintain a second action may be when the court indicates that its judgment is without prejudice to the bringing of a second action. See Restatement (Second) of Judgments § 26(1), Comment b (1982). This comment further references section 20(1)(b), and comments f through i thereto (Restatement (Second) of Judgments § 20(1)(b), Comments f through i (1982)), which sets forth the unremarkable proposition that a voluntary dismissal of an action is typically without prejudice to the bringing of a second action. When commenting on this particular exception to claim-splitting, this court explained in Rein that the use of “without prejudice” language is not sufficient to protect a plaintiff against the bar of res judicata when another part of plaintiff's case has gone to final judgment in a previous action: “the trial judge's granting plaintiffs' motion to voluntarily dismiss the common law counts without prejudice under section 2–1009 should not be interpreted as immunizing plaintiffs against defenses defendants may raise when the voluntarily dismissed counts were refiled.” Rein, 172 Ill.2d at 342, 216 Ill.Dec. 642, 665 N.E.2d 1199. As Rein pointed out, a plaintiff could not file a complaint with multiple counts, take a voluntary dismissal without prejudice of some of the counts, pursue the undismissed counts to final judgment, and then harass the defendant with successive suits simply because the dismissals of those counts were entered “without prejudice.” Rein, 172 Ill.2d at 343, 216 Ill.Dec. 642, 665 N.E.2d 1199. QUERY: IS “WITHOUT PREJUDICE” A TRAP FOR THE UNWARY?

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THE FACT THAT THE MOTION TO VOLUNTARILY DISMISS EXPRESSLY SEEKS LEAVE TO REFILE WILL NOT ITSELF CONSTITUTE “EXPRESSLY RESERVE” WHEN THE ORDER ITSELF IS OTHERWISE SILENT Law Offices of Nye and Associates, Ltd. v. Boado 2012 IL App (2d) 110804 (2d Dist., 2012)

• PLAINTIFFʼS MOTION TO VOLUNTARILY DISMISS SOUGHT LEAVE TO REFILE

• DEFENDANT OBJECTED IN A WRITTEN RESPONSE BUT

DID NOT OBJECT AT THE HEARING IN COURT

• THE COURT GRANTED THE MOTION AND ADOPTED THE WRITTEN ORDER DRAFTED BY PLAINTIFF

• THERE WAS NO MENTION IN THE ORDER OF ANY “LEAVE

TO REFILE” HELD: RES JUDICATA BARRED REFILING HELD: DEFENDANT WAS NOT REQUIRED TO OBJECT TO REQUEST FOR LEAVE TO REFILE--IT MAY OBJECT IN THE REFILED CASE

• . . . nor was [defendant] required to object to the voluntary dismissal. See Matejczyk, 397 Ill.App.3d at 10, 337 Ill.Dec. 166, 922 N.E.2d 24 (“ ʻUntil the plaintiffs attempted to refile * * * no reason existed for the defendants to object.ʼ ”) (quoting Rein, 172 Ill.2d at 342, 216 Ill.Dec. 642, 665 N.E.2d 1199)).

HELD: THE FACT THAT MOTION ITSELF ASKED FOR LEAVE TO REFILE IS NOT SUFFICIENT

• “The fact that Nye's motion asked for leave to refile is not sufficient to show that the court actually agreed to allow it to do so. This is especially true in light of the fact that Boado filed a response that moved to strike the portion of the motion that sought leave to refile.”

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HELD: THE COURT MUST EXPRESSLY STATE THE RIGHT TO REFILE

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EVEN IF THE ORDER IS SILENT AS TO RIGHT TO REFILE, THE WORDS ON A DOCKET SHEET ENTRY CAN BE DEEMED TO "EXPRESSLY RESERVE" PAY ATTENTION CIRCUIT COURT OF COOK COUNTY PRACTITIONERS! THREE 1ST DISTRICT OPINIONS HAVE HELD: REFILING WAS “EXPRESSLY RESERVED” WHERE ORDER WAS SILENT ON WHETHER REFILING WAS PERMITTED, BUT DOCKET SHEET ENTRY STATED “VOLUNTARY DISMISSAL W[ITH] LEAVE TO REFILE—ALLOWED” Quintas v. Asset Management Group, Inc. 395 Ill.App.3d 324, 330-333 (1st Dist. 2009) Severino v. Freedom Woods, Inc. 407 Ill.App.3d 238, 248-251 (1st Dist., 2010) Sams v. Gildea 2014 IL App (1st) 123044-U at ¶ 31-45 (1st Dist.,2014) (unpublished) SAMS, AN UNPUBLISHED DECISION, EXPLAINED HOW THE COOK COUNTY CIRCUIT COURT DOCKET ENTRY WORKED:

• IN THE CIRCUIT COURT OF COOK COUNTY, COURT ORDERS ARE ENTERED INTO AN ELECTRONIC DOCKET SYSTEM;

• CLERK ENTERS INFORMATION REGARDING THE ORDER,

INCLUDING AN ACTIVITY CODE THAT CORRESPONDS WITH THE ORDER;

• THERE IS AN ACTIVITY CODE FOR DENIAL OF A MOTION

TO VOLUNTARILY DISMISS WITH LEAVE TO REFILE;

• THERE IS AN ACTIVITY CODE (4040) THAT AUTOMATICALLY GENERATES THE WORDS

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“VOLUNTARY DISMISSAL WITH LEAVE TO REFILE ALLOWED”;

• CLERK HAS NO ABILITY TO CHANGE THE LANGUAGE IN

THE CODE;

• ONE CLERK TESTIFIED THAT WHENEVER A MOTION TO VOLUNTARILY DISMISS PER § 2-1009 IS BROUGHT, IT INDICATES TO HER THAT IT WAS BROUGHT WITH THE INTENT TO REQUEST LEAVE TO REINSTATE.

NOTE: IN CASE OF CONFLICT BETWEEN ORDER AND DOCKET ENTRY, THE ORDER TRUMPS DOCKET ENTRY. ... BUT THE FACT THAT AN ORDER IS SILENT DOES NOT MEAN THAT IT CONFLICTS WITH THE DOCKET ENTRY Quintas v. Asset Management Group, Inc. 395 Ill.App.3d 324, 330-331 (1st Dist. 2009)

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FAILURE TO TIMELY OBJECT ON RES JUDICATA GROUND TO REFILING CONSTITUTES “ACQUIESCENCE” HELD: “UNTIL THE PLAINTIFFS ATTEMPTED TO REFILE . . . NO REASON EXISTED FOR THE DEFENDANTS TO OBJECT” Rein v. David A. Noyes & Co., 172 Ill.2d 325, 342 (1996); HELD: WHERE DEFENDANTS ASSERTED AFFIRMATIVE DEFENSE OF RES JUDICATA IN ANSWER, “OBJECTION WAS TIMELY AND DOES NOT CONSTITUTE ACQUIESCENCE” Quintas v. Asset Management Group, Inc. 395 Ill.App.3d 324, -334 (1st Dist. 2009) HELD: OBJECTION MUST BE “TIMELY”--WHERE DEFENDANT DID NOT RAISE RES JUDICATA AS AN AFFIRMATIVE DEFENSE AND WAITED 3-1/2 YEARS TO OBJECT TO RE-FILING THROUGH MOTION FOR SUMMARY JUDGMENT, DEFENDANT “ACQUIESCED” Piagentini v. Ford Motor Co. 387 Ill.App.3d 887, 897-898 (1st Dist., 2009) (after 3-1/2 years defendant filed motion for summary judgment asserting res judicata) Curtis v. Lofy 394 Ill.App.3d 170, 174,188 (4th Dist., 2009) (after 3-1/2 years defendant filed motion for summary judgment asserting res judicata) QUESTION: WHAT ARE THE OUTER LIMITS OF “TIMELY” OBJECTION? MEASURE BY SECTION 2-616(a) AMENDMENT STANDARDS (I.E. 4-PART LOYOLA TEST)? Loyola Academy v. S & S Roof Maintenance, Inc. 146 Ill.2d 263, 273 (Ill. 1992) (promulgated a 4-factor test as whether a party should be permitted to amend a pleading: (1) whether the proposed amendment would cure the defective pleading; (2)

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whether other parties would sustain prejudice or surprise by virtue of the proposed amendment; (3) whether the proposed amendment is timely; and (4) whether previous opportunities to amend the pleading could be identified).

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RULE 219(e): NOTWITHSTANDING AN ORDER TO VOLUNTARILY DISMISS, A PARTY SHALL NOT BE PERMITTED TO AVOID COMPLIANCE WITH “DISCOVERY DEADLINES, ORDERS OR APPLICABLE RULES”:

• DIRECTS COURT IN REFILED CASE TO “CONSIDER” PRIOR DISCOVERY DEADLINES AND ORDERS, AND

• (2) PERMITS AWARD (IN ORIGINAL CASE) OF

“REASONABLE EXPENSES” FOR AVOIDING COMPLIANCE WITH DISCOVERY DEADLINES, ORDERS AND RULES

(e) Voluntary Dismissals and Prior Litigation. A party shall not be permitted to avoid compliance with discovery deadlines, orders or applicable rules by voluntarily dismissing a lawsuit. In establishing discovery deadlines 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 litigation involving a party. 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, expert witness fees, reproduction costs, travel expenses, postage, and phone charges. COMMITTEE COMMENTS: (Revised June 1, 1995) Paragraph (e) addresses 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. This paragraph does not change existing law regarding the right of a party to seek or obtain a voluntary dismissal. However, this paragraph does clearly dictate that when a case is refiled, the court shall consider the prior litigation in determining what discovery will be permitted, and what witnesses and evidence may be

36

barred. The consequences of noncompliance with discovery deadlines, rules or orders cannot be eliminated by taking a voluntary dismissal. Paragraph (e) further authorizes the court to require the party taking the dismissal to pay the out-of-pocket expenses actually incurred by the adverse party or parties. This rule reverses the holdings in In re Air Crash Disaster at Sioux City, Iowa, on July 19, 1989, 259 Ill. App. 3d 231, 631 N.E.2d 1302 (1st Dist. 1994), and Galowich v. Beech Aircraft Corp., 209 Ill. App. 3d 128, 568 N.E.2d 46 (1st Dist. 1991). Paragraph (e) does not provide for the payment of attorney fees when an action is voluntarily dismissed.

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TWO DIFFERENT CONSEQUENCES OF RULE 219(e) “Rule 219(e) is intended to prevent “voluntary dismissals from being used as an artifice for evading discovery requirements” by (1) enhancing the monetary burden associated with such a dismissal by permitting the award of expenses in addition to the costs allowed pursuant to section 2–1009, and

• 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, expert witness fees, reproduction costs, travel expenses, postage, and phone charges.

(2) upon re-filing, requiring the court hearing the refiled action to consider the previous litigation and any discovery determinations the court made during that litigation.”

• In establishing discovery deadlines 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 litigation involving a party.

Jones v. Chicago Cycle Center 391 Ill.App.3d 101, 109 (1st Dist., 2009) (citing Morrison v. Wagner, 191 Ill.2d 162, 166-167 (Ill. 2000))

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JUDGE IN REFILED CASE MUST “CONSIDER” ORDERS IN PRIOR CASE--BUT NOT REQUIRED TO REIMPOSE COMMITTEE COMMENTS: Rule “clearly dictate[s] that when a case is refiled, the court shall consider the prior litigation in determining what discovery will be permitted, and what witnesses and evidence may be barred.” HELD: “When a case is refiled, the rule requires the court to consider the prior litigation in determining what discovery will be permitted, and what witnesses and evidence may be barred. [Citation.]" Morrison v. Wagner, 191 Ill.2d 162 (Ill. 2000) HELD: In response, the trial court correctly stated that “the defendants can, you know, move for previous discovery orders to be maintained.” . . . Defendants, therefore, have recourse to applicable discovery rules to limit the burden and expense of discovery should this action be refiled. Advantage Equipment Resources, LLC v. Middleby Corp. 2013 IL App (1st) 121778-U at ¶ 9. HELD: Although Rule mandates that the court "shall consider" a party's misconduct in the original action and any orders entered therein, the rule "does not, however, require the court to reimpose the sanctions that were entered against the party in the earlier case. Rather, the misconduct of a party in the original action and any sanctions entered against him therein are merely facts to be considered by the court in the refiled action when it determines what witnesses and evidence will be permitted." HELD: NEW COURT RE-IMPOSED PRIOR ORDER BARRING INTRODUCTION OF CERTAIN EVIDENCE

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Smith v. P.A.C.E., a Suburban Bus Div. of Regional Transp. Authority 323 Ill.App.3d 1067, 1074-1076 (1st Dist., 2001) ("reimpos[ing] the sanction entered in the plaintiff's original action. . . and barred him from introducing any evidence in support of a claim for “lost time, income, profits and business resulting from the complained of accident"). HELD: NEW COURT DENIED MOTION TO RE-OPEN DISCOVERY FOR PURPOSE OF FINDING A NEW EXPERT WITNESSS WHERE DISCOVERY HAD CLOSED IN PRIOR CASE Bettis v. Wade, 2011 WL 10481890 at *4 (4th Dist., 2011) (unpublished) ($4,767) HELD: WHERE PRIOR WILL COUNTY COURT IMPOSED RULE 219(E) AWARD OF REASONABLE EXPENSES, AND ... WHERE PLAINTIFF REFILED IN COOK COUNTY, AND ... WHERE DEFENDANTS ARGUED VOLUNTARY DISMISSAL WAS FORUM SHOPPING IN AN EFFORT TO AVOID THE WILL COUNTY COURTʼS DISCOVERY ORDERS, ... IT WAS ERROR FOR COOK COUNTY COURT TO DENY DEFENDANTSʼ MOTION TO DISMISS OR TRANSFER TO WILL COUNTY--RELYING IN PART ON VOLUNTARY DISMISSAL Wagner v. Eagle Food Centers, Inc., 398 Ill.App.3d 354, 364-365 (1st Dist., 2010) (“We find that the trial court erred in denying defendants' motion to dismiss or transfer where plaintiffs voluntarily dismissed their complaint the day after the court ordered them to respond to interrogatories. Further, the balance of the private and public interest factors strongly favors transfer to Will County. Accordingly, we conclude that the trial court abused its discretion.

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RULE 219(e) PERMITS AWARD FOR “REASONABLE EXPENSES” INCURRED IN DEFENDING THE ACTION--MUCH MORE THAN MERE COSTS (e) Voluntary Dismissals and Prior Litigation. A party shall not be permitted to avoid compliance with discovery deadlines, orders or applicable rules by voluntarily dismissing a lawsuit. In establishing discovery deadlines 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 litigation involving a party. 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, expert witness fees, reproduction costs, travel expenses, postage, and phone charges.

• “REASONABLE EXPENSES” ARE MUCH BROADER THAN MERE “COSTS” AND “INCLUDE”:

• discovery expenses, • expert witness fees, • reproduction costs, • travel expenses, • postage, • phone charges

• BUT DOES NOT INCLUDE ATTORNEYS FEES

• AWARD IS AGAINST THE PLAINTIFF--(". . . REQUIRE THE

PARTY VOLUNTARILY DISMISSING . . .)

• NOT AGAINST THE ATTORNEY

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COMPARE: RULE 219(c) PERMITS, AMONG OTHER THINGS, “SANCTIONS” FOR DISCOVERY RULE OR ORDER VIOLATIONS THAT CAN INCLUDE ATTORNEYS FEES AND CAN BE ASSESSED AGAINST THE ATTORNEY (c) Failure to Comply with Order or Rules. If a party, or any person at the instance of or in collusion with a party, unreasonably fails to comply with any provision of part E of article II of the rules of this court (Discovery, Requests for Admission, and Pretrial Procedure) or fails to comply with any order entered under these rules, the court, on motion, may enter, in addition to remedies elsewhere specifically provided, such orders as are just, including, among others, the following: (i) That further proceedings be stayed until the order or rule is complied with; (ii) That the offending party be debarred from filing any other pleading relating to any issue to which the refusal or failure relates; (iii) That the offending party be debarred from maintaining any particular claim, counterclaim, third-party complaint, or defense relating to that issue; (iv) That a witness be barred from testifying concerning that issue; (v) That, as to claims or defenses asserted in any pleading to which that issue is material, a judgment by default be entered against the offending party or that the offending party's action be dismissed with or without prejudice; (vi) That any portion of the offending party's pleadings relating to that issue be stricken and, if thereby made appropriate, judgment be entered as to that issue; or (vii) That in cases where a money judgment is entered against a party subject to sanctions under this subparagraph, order the offending party to pay interest at the rate provided by law for judgments for any period of pretrial delay attributable to the offending party's conduct. In lieu of or in addition to the foregoing, the court, upon motion or upon its own initiative, may impose upon the offending party or his or her attorney, or both, an appropriate sanction, which may include an order to pay to the other party or parties the amount of reasonable expenses incurred as a result of the misconduct, including a reasonable attorney fee, and when the misconduct is wilful, a monetary penalty. When appropriate, the court may, by contempt proceedings, compel obedience by any party or person to any subpoena issued or order entered under these rules. Notwithstanding the entry of a judgment or an order of dismissal, whether voluntary or involuntary, the trial court shall retain jurisdiction to enforce, on its own motion or on the

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motion of any party, any order imposing monetary sanctions, including such orders as may be entered on motions which were pending hereunder prior to the filing of a notice or motion seeking a judgment or order of dismissal. Where a sanction is imposed under this paragraph (c), the judge shall set forth with specificity the reasons and basis of any sanction so imposed either in the judgment order itself or in a separate written order. (d) Abuse of Discovery Procedures. The court may order that information obtained through abuse of discovery procedures be suppressed. If a party wilfully obtains or attempts to obtain information by an improper discovery method, wilfully obtains or attempts to obtain information to which that party is not entitled, or otherwise abuses these discovery rules, the court may enter any order provided for in paragraph (c) of this rule. NOTE: RULE 219(c) REQUIRES SPECIFIC REASONS IN A WRITING

• AS DOES RULE 137 WHICH USES SAME LANGUAGE ((d) Required Written Explanation of Imposition of Sanctions. Where a sanction is imposed under this rule, the judge shall set forth with specificity the reasons and basis of any sanction so imposed either in the judgment order itself or in a separate written order.)

NOTE: RULE 219(e) DOES NOT SO PROVIDE

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RULE 219(e) MONETARY AWARD OF “REASONABLE EXPENSES” REQUIRES “MISCONDUCT” i.e. “DELIBERATE, CONTUMACIOUS OR UNWARRANTED DISREGARD FOR THE COURTʼS AUTHORITY”

• THIS TEST DENOTED IN SCATTERED CORP. v. MIDWEST CLEARING CORP., 299 Ill.App.3d 653, 658-660 (1st Dist. 1998)

• WE BELIEVE THAT THE COMMITTEEʼS EMPHASIS ON

“NONCOMPLIANCE” INDICATES THAT THE VOLUNTARY DISMISSAL MUST INVOLVE SOME DISOBEDIENCE ON THE PLAINTIFFʼS PART

• RULE 219(e)ʼS REFERENCE TO VOLUNTARY DISMISSALS

TAKEN TO “AVOID COMPLIANCE” WITH DISCOVERY DEADLINES, ORDERS OR APPLICABLE RULES” REQUIRES THE CIRCUIT COURT TO MAKE A PRELIMINARY FINDING OF MISCONDUCT, ANALOGOUS TO THE “UNREASONABLE NONCOMPLIANCE” STANDARD INVOKED IN RULE 219(c) CASES”

• TO DETERMINE WHETHER THE NONCOMPLIANCE IS

UNREASONABLE, THE STANDARD IS WHETHER THE CONDUCT OF THE NONCOMPLYING PARTY SHOWS A DELIBERATE, CONTUMACIOUS OR UNWARRENTED DISREGARD FOR THE COURTʼS AUTHORITY

• RULE 219(e) DOES NOT ACT AS A BAR TO PLAINTIFFʼS

STATUTORY RIGHT TO A VOLUNTARY DISMISSAL, BUT IT DOES CURTAIL A PLAINTIFFʼS USE OF THE DISMISSAL AS A DILATORY TACTIC

• RULE 219(e) TARGETS THOSE STRATEGIC AND

TACTICAL LITIGATION DECISIONS WHICH, HAVING CROSSED THE LINE OF VIGOROUS ADVOCACY, BECOME DECISIONS AIMED NO LONGER AT BESTING THE

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OPPOSING PARTY BUT RATHER AT UNDERMINING THE INTEGRITY OF THE JUDICIAL SYSTEM

• RULE 219(e) EXPENSES “SERVE NOT AS A SANCTION

PER SE, BUT RATHER AS A DETERRENT TO THE DILATORY AND MANIPULATIVE USE OF A PLAINTIFFʼS VOLUNTARY DISMISSAL”

• COURT MUST MAKE A PRELIMINARY FINDING OF SUCH

“MISCONDUCT”

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AWARD OF RULE 219(e) REASONABLE EXPENSES IS “IN THE NATURE OF SANCTIONS FOR ITS ABUSE OF THE ABILITY TO TAKE A VOLUNTARY DISMISSAL WITHOUT PREJUDICE” Vicencio v. Lincoln-Way Builders, Inc. 204 Ill.2d 295, 307, 789 N.E.2d 290, 307 n.1 (Ill.,2003)

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RULE 219(e) MONETARY AWARD OF “REASONABLE EXPENSES” IMPOSED: SOME EXAMPLES HELD: AWARD WHERE .... COURT FOUND PLAINTIFFS HAD SOUGHT VOLUNTARY DISMISSAL .... “IN ORDER TO AVOID THE EFFECTS OF PRE-TRIAL EVIDENTIARY RULINGS BASED ON THEIR OWN FAILURE TO COMPLY WITH DISCOVERY DEADLINES .. . MANY OF WHICH BARRED THE PLAINTIFFS FROM PRESENTING CERTAIN WITNESSES OR EVIDENCE DUE TO UNTIMELY DISCLOSURE” Valdovinos v. Luna-Manalac Medical Center, Ltd., 328 Ill.App.3d 255, 271 (1st Dist., 2002) ($79,173.14) HELD: AWARD WHERE .... EVEN THOUGH COURT DID NOT FIND THAT PLAINTIFFS DELIBERATELY VIOLATED OR FAILED TO COMPLY WITH ANY ORDERS OR DEADLINES, AND DID NOT FIND THAT PLAINTIFFSʼ REASONS FOR DISMISSAL WERE PRETEXTUAL, BUT ... COURT STILL FOUND THAT PLAINTIFFS “HAD USED” THEIR RIGHT TO VOLUNTARILY DISMISS TO AVOID THE CONSEQUENCES OF THE COURTʼS RULINGS ON THE MOTIONS IN LIMINE, TO AVOID THE BARRING OF PLAINTIFFʼS WITNESSES AND EVIDENCE OCCASIONED BY PLAINTIFFʼS FAILURE TO DISCLOSE PURSUANT TO RULE 213(f) Jones v. Chicago Cycle Center 391 Ill.App.3d 101 (1st Dist., 2009) ($181,256.52) HELD: AWARD WHERE

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.... IN ORIGINAL CASE COURT BARRED PLAINTIFF FROM AMENDING COMPLAINT TO ADD DR. DARVEY DUE TO EXPIRATION OF STATUTE OF LIMITATIONS, AND .... PLAINTIFF SUBSEQUENTLY TOOK VOLUNTARY DISMISSAL AND REFILED AN ACTION AGAINST DR. DARVEY--.....“AN ATTEMPT TO CIRCUMVENT THE PRIOR COURT ORDER” Yehouenou v. St. Joseph Hosp. 2013 IL App (1st) 120393-U at ¶ 81 (unpublished) ($2,127) HELD: AWARD WHERE .... NEARLY 4 YEARS AFTER CASE FILED AND 2 MONTHS BEFORE TRIAL, ..... DEFENDANT “FILED” A MOTION IN LIMINE TO BAR PLAINTIFFʼS EXPERTS AND FOR A FRYE HEARING, ..... AND ONE WEEK LATER PLAINTIFF FILED MOTION TO VOLUNTARILY DISMISS Bettis v. Wade, 2011 WL 10481890 at *3-4 (4th Dist., 2011) (unpublished) ($4,767) HELD: AWARD WHERE .... PLAINTIFF FAILED TO ANSWER SUPPLEMENTAL INTERROGATORIES AND COURT ORDERED PLAINTIFF TO ANSWER AND .... WHERE COURT FOUND THE ANSWER “DISINGENUOUS” AND ORDERED PLAINTIFF TO FURTHER RESPOND, AND .... THE NEXT DAY PLAINTIFF FILED A MOTION TO VOLUNTARILY DISMISS.

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Wagner v. Eagle Food Centers, Inc., 398 Ill.App.3d 354, 356 (1st Dist., 2010)

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DETERMINATION OF WHETHER RULE 219(e) REASONABLE EXPENSES SHOULD BE IMPOSED AND THE REASONABLENESS OF THOSE EXPENSES LIE IN THE COURTʼS “DISCRETION”--CAN BE REVERSED ONLY IF “NO REASONABLE PERSON” COULD SO HOLD Vicencio v. Lincoln-Way Builders, Inc. 204 Ill.2d 295, 307 n.1 (Ill.,2003); Jones v. Chicago Cycle Center 391 Ill.App.3d 101, 116 (1st Dist., 2009) Mizell v. Passo, 147 Ill.2d 420, 425–26 (1992). “An abuse of discretion occurs where the court's decision is against the manifest weight of the evidence such that no reasonable person could take the view adopted by the trial court.” Bank of New York Mellon v. Maslowski 2013 IL App (2d) 130373-U at ¶ 22 (Nonetheless, the issue here is whether the trial court abused its discretion in denying defendants' motion for sanctions, not whether we would have reached a different conclusion from the trial court. . . . “The mere fact that reasonable persons could reach different conclusions on the facts of the case is insufficient to find that the trial court abused its discretion * * *.”) COMPARE; REVERSING A JUDGEMENT AS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE “A determination will be found to be against the manifest weight of the evidence only if the opposite conclusion is clearly evident ( C.N., 196 Ill.2d at 208, 256 Ill.Dec. 788, 752 N.E.2d 1030) or the determination is unreasonable, arbitrary, or not based on the evidence presented Leonardi v. Loyola University of Chicago, 168 Ill.2d 83, 106, 212 Ill.Dec. 968, 658 N.E.2d 450 (1995)). Under a manifest weight of the evidence standard, we give deference to the trial court as the finder of fact because it is in the best position to observe the conduct and demeanor of the parties and the witnesses and has a degree of familiarity with the evidence that a reviewing

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court cannot possibly obtain. A reviewing court, therefore, must not substitute its judgment for that of the trial court regarding the credibility of witnesses, the weight to be given to the evidence, or the inferences to be drawn. In re A.P., 179 Ill.2d 184, 204, 227 Ill.Dec. 949, 688 N.E.2d 642 (1997). In re D.F. 201 Ill.2d 476, 498-499, 777 N.E.2d 930, 942-943(Ill.,2002)

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A MOTION TO VOLUNTARILY DISMISS THAT PRECLUDES PRIOR NOTICED DISCOVERY SHOULD NOT IN AND OF ITSELF LEAD TO RULE 219(e) AWARD

• Plaintiff Bank brought foreclosure action

• Defendants noticed up deposition of a “reputed robosigner” i.e., a person who signs affidavits in a wholesale manner in foreclosure cases without possessing the requisite level of personal knowledge

• The next day plaintiff Bank orally moved to voluntarily

dismiss

• Defendants sought Rule 219(e) sanctions on basis that plaintiffʼs motion to dismiss “was a ruse to evade discovery”

HELD: “While plaintiff's voluntary dismissal necessarily prevented Selman from being deposed, we find nothing in this sequence of events that evidenced plaintiff's noncompliance with any discovery deadline, order, or applicable rule” Bank of New York Mellon v. Maslowski 2013 IL App (2d) 130373-U at ¶ 27 (unpubiished)

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MERELY BECAUSE PLAINTIFFʼS INTENT IS TO OBTAIN A DIFFERENT JUDGE SHOULD NOT IN AND OF ITSELF LEAD TO RULE 219(e) AWARD HELD: Defendants argued that plaintiff misused section 2–1009(a) of the Code as a “crude surrogate” for a motion for substitution of judge. BUT court did not find that plaintiffʼs conduct rose to the level of being an unwarranted disregard of the courtʼs orders.

• “We note that nothing would prohibit defendants from presenting a motion before the presiding judge requesting the re-filed lawsuit be assigned to Judge McGrath setting forth the reasons why the matter should be returned to her calendar, an administrative decision which is obviously within the discretion of the presiding judge.”

Advantage Equipment Resources, LLC v. Middleby Corp. 2013 IL App (1st) 121778-U at ¶ 29-30 (unpublished)

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TRIAL COURT DID NOT ABUSE DISCRETION IN NOT AWARDING RULE 219(e) SANCTIONS WHERE IT FOUND DISPUTED RESPONSE TO INTERROGATORY DID NOT VIOLATE ANY DISCOVERY ORDER The circuit court found that, “[h]ere there are various discovery disputes. I entered discovery orders on the disputes and the motions to compel. But at no time did I enter sanctions against plaintiff, and at no time did I find that their conduct rose to the level of being contumacious or an unwarranted disregard of the court's orders. And I can't [ sic ] say that at this point, as well.” We cannot say that this determination was an abuse of discretion. The circuit court found plaintiff's supplemental response to Interrogatory No. 7 was not in violation of any discovery order. The record shows that the parties were engaged in several discovery disputes including several motions to compel discovery against defendants and a motion for a protective order against plaintiff. Defendants take issue with the contents of the response to the interrogatory and the extensive discovery propounded by plaintiff. However, at the same time, defendants were the subject of motions to compel discovery that plaintiff claimed was necessary to complete the response to Interrogatory No. 7. Advantage Equipment Resources, LLC v. Middleby Corp. 2013 IL App (1st) 121778-U at ¶ 108 (unpublished) Cf. Jones v. Chicago Cycle Center 391 Ill.App.3d 101 (1st Dist., 2009) (awarding $181,256 even though court did not find a deliberate violation of court order or failure to comply with any order of deadline where plaintiff sought to avoid the consequences of the courtʼs rulings)

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COURT SHOULD NOT IMPOSE RULE 219(e) SANCTIONS JUST BECAUSE PLAINTIFF VOLUNTARILY DISMISSED IN ORDER TO AVOID GOING TO TRIAL HELD: A VOLUNTARY DISMISSAL “NECESSARILY AVOIDS” TRIAL . . . MUST STILL FIND THAT DISMISSAL ITSELF “EVIDENCED UNREASONABLE NONCOMPLIANCE”: “While the circuit court determined that this type of voluntary dismissal was contemplated by Rule 219(e), the court did not find that the dismissal itself, which necessarily avoided trial, evidenced unreasonable noncompliance with any discovery deadline, order or applicable rule by the plaintiff.” Scattered Corp. v. Midwest Clearing Corp., 299 Ill.App.3d 653 (1st Dist.1998): HELD: THE FACT THAT TRIAL COURT FOUND THAT VOLUNTARY DISMISSAL WAS TAKEN "TO AVOID GOING TO TRIAL"--THE DATE OF WHICH HAD BEEN SET BY THE COURT-- WAS INSUFFICIENT TO IMPOSE RULE 219(e) SANCTIONS ... WHERE NO FINDING OF MISCONDUCT OR UNREASONABLE NONCOMPLIANCE WITH COURT ORDER Ramos v. Kewanee Hosp. 2013 IL App (3d) 120001 at ¶ 111-112 (Ill.App. 3 Dist., 2013)

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RULE 219(e) AWARD OF “REASONABLE EXPENSES” MUST BE LEVIED IN ORIGINAL ACTION--NOT THE REFILED ACTION--BUT PAYMENT CAN BE A CONDITION OF REFILING HELD: “while a trial court has authority to take 'further' adverse action in the refiled matter such as barring witnesses or limiting discovery, ʻreasonable expenses incurred in defending the action . . . must be levied in the original action.ʼ” Ramos v. Kewanee Hosp. 2013 IL App (3d) 120001 (3d Dist., 2013) COMPARE: HELD: ordered that payment of award of $181,256 will only be due on refiling of voluntarily dismissed action Jones v. Chicago Cycle Center 391 Ill.App.3d 101, 109-111 (1st Dist., 2009) ($181,256.52)

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IS COURT OBLIGATED TO MAKE A PRELIMINARY FINDING OF MISCONDUCT AND EXPLAIN THE REASONS WITH SPECIFICITY? COMPARE: RULE 137 WHICH REQUIRES THE JUDGE TO SET FORTH WITH SPECIFICITY THE REASONS AND BASIS OF ANY SANCTION SO IMPOSED IN THE JUDGMENT ORDER ITSELF OR IN A SEPARATE WRITTEN ORDER” “(d) Required Written Explanation of Imposition of Sanctions. Where a sanction is imposed under this rule, the judge shall set forth with specificity the reasons and basis of any sanction so imposed either in the judgment order itself or in a separate written order.” Ill. S.Ct. R. 137(d) (eff.Feb.1, 1994). NOTE: RULE 219(c) FOR DISCOVERY MISCONDUCT HAS IDENTICAL LANGUAGE QUERY: ISNʼT THE PURPOSE OF RULE 137 AND RULE 219(c) REQUIREMENTS ON IMPOSING SANCTIONS AND FORCE REASONED ARTICULATION IN WRITING? QUERY: RULE 219(e) DOES NOT CONTAIN ANY SUCH LANGUAGE....WHY? HELD: RULE 219(e)ʼs REFERENCE TO VOLUNTARY DISMISSALS TAKEN TO “AVOID COMPLIANCE” WITH “DISCOVERY DEADLINES, ORDERS OR APPLICABLE RULES” REQUIRES THE CIRCUIT COURT TO MAKE A PRELIMINARY FINDING OF MISCONDUCT, . . . REVERSED TRIAL COURTʼS RULE 219(e) AWARD OF $135,756.11 BECAUSE (AT LEAST IN PART) COURT MADE NO FINDING OF MISCONDUCT OR UNREASONABLE NONCOMPLIANCE WITH ANY COURT ORDER

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• In the case before us, the circuit court made no finding of misconduct or unreasonable noncompliance with any court order. The court further noted there had been no “allegation of dishonesty or bad conductment [ sic ].” In fact, the court opined that the plaintiff's voluntary dismissal was strategically posited: “I'm sure that you decided to dismiss very simply because it was a good strategic position.” Moreover, the MCC has presented no evidentiary basis to support the notion that Scattered's voluntary dismissal, standing alone, constituted “unreasonable noncompliance” with the set trial date.

SCATTERED CORP. v. MIDWEST CLEARING CORP., 299 Ill.App.3d 653, 660 (1st Dist. 1998) HELD: REVERSING RULE 219(e) AWARD OF $10,625 BECAUSE TRIAL COURT DID NOT MAKE A PRELIMINARY DETERMINATION OF DISCOVERY MISCONDUCT In re Marriage of Webb 333 Ill.App.3d 1104, 112 (2d Dist., 2002) BUT SEE: ALTHOUGH THE COURTʼS ORDER DID NOT EXPLAIN THE BASIS FOR AWARDING COSTS, WE MAY AFFIRM THE COURTʼS JUDGMENT ON ANY BASIS SUPPORTED BY THE RECORD Yehouenou v. St. Joseph Hosp. 2013 IL App (1st) 120393-U at ¶ 77 (unpubished) NOTE: A COURT OF APPEALS COULD NOT ENTER THIS KIND OF RULING AS IN YEHOUENOU WHEN RULE 137 OR RULE 219(C) QUERY: IS MAKING A PRELIMINARY FINDING OF MISCONDUCT THE SAME AS EXPLAINING IT?

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COURT IN REFILED CASE MAY NOT AWARD RULE 219(e) SANCTIONS FOR CONDUCT IN ORIGINAL CASE Ramos v. Kewanee Hosp. 2013 IL App (3d) 120001 at ¶ 113 (Ill.App. 3 Dist.,2013) (“Common sense dictates that any possible deterrent effect is lost if expenses and fees are not awarded as part of the original action. One facing additional costs and expenses might rethink his decision to voluntarily dismiss. The award of costs and expenses related to the dismissed case in the refiled case can only be a sanction. It seems incongruous to give a plaintiff an absolute right to dismiss, let him dismiss, and to then award monetary sanctions against him when he refiles.”)

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POTENTIALLY DISPOSITIVE MOTIONS CAN TRUMP A MOTION TO VOLUNTARILY DISMISS HELD: “the trial court may hear and decide a motion which has been filed prior to a section 2–1009 motion when that motion, if favorably ruled on by the court, could result in a final disposition of the case.” Gibellina v. Handley, 127 Ill.2d 122 (1989) HELD: IT IS NOT NECESSARY THAT POTENTIALLY DISPOSITIVE MOTION BE “FILED” PRIOR TO FILING OF MOTION TO VOLUNTARILY DISMISS IF POTENTIALLY DISPOSITIVE MOTION IS “PUT” BEFORE COURT

• Defendants served plaintiffs with notice of intent to file a motion for summary judgment

• Two days later court granted defendants leave to file a

motion for summary judgment and briefing schedule set

• One month later plaintiffs filed motion to voluntarily dismiss

• Defendantsʼ summary judgment motion filed thereafter

• Finding the trial court had entertained oral motions for

summary judgment, which were “widely discussed” in the trial court, “a dispositive motion was, in fact, for all intents and purposes, on file” and the motion to voluntarily dismiss “was plainly made ʻin the face ofʼ a potentially dispositive motion,” the supreme court held the trial court properly exercised its discretion in ruling on the summary judgment motion before ruling on the motion to voluntary dismiss

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Fumarolo v. Chicago Board of Education, 142 Ill.2d 54, 65-66, 68-69 (1990) (trial court properly exercised “discretion” to rule on summary judgment motion before motion to voluntarily dismiss) Gibellina was codified into § 2-1009(b) effective January 1, 1994 (“the court may hear and decide a motion that has been filed prior to a motion filed under subsection (a) of this Section when that prior filed motion, if favorably ruled on by the court, could result in a final disposition of the cause.”) NOTE AND QUERY: Supreme Court later stated that Gibellina held that “This court determined that a plaintiff should not be permitted to abuse the statutory right to refile a nonsuited action within a year where a defendant files a motion that would dispose of the lawsuit on the merits.” Best v. Taylor Machine Works, 179 Ill.2d 367, 440 (1997) QUERY: "COULD" vs "WOULD": A DISTINCTION WITHOUT A DIFFERENCE?

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COURT HAS “DISCRETION” WHETHER TO HEAR POTENTIALLY DISPOSITIVE MOTION

• Fumarolo v. Chicago Board of Education, 142 Ill.2d 54, 65-66, 68-69 (1990) (trial court properly exercised “discretion” to rule on summary judgment motion before motion to voluntarily dismiss)

• Advantage Equipment Resources, LLC v. Middleby Corp. 2013 IL App (1st) 121778-U at ¶ 21 (“Clearly, under Gibellina, its progeny and section 2–1009(b), a trial court has the discretion to hear, but is not required to decide, a previously filed dispositive motion before ruling on a later filed motion for voluntary dismissal”).

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IS AN ORAL MOTION TO VOLUNTARILY DISMISS INEFFECTIVE? NOTE: IN 2014 S.CT. NOTED THAT PLAINTIFF MUST "ACTUALLY FILE" MOTION TO VOLUNTARILY DISMISS

• In re Marriage of Tiballi 2014 IL 1163 at ¶¶19-20 (Ill.,2014) NOTE: “NOTICE” IS ONE OF 3 PREREQUISITES FOR § 2-1009 VOLUNTARY DISMISSAL BUT IS RELAXED WHERE THE DEFENDANT HAS SUFFERED NO PREJUDICE FROM THE LACK OF NOTICE

• In re Marriage of Tiballi 2014 IL 1163 at ¶¶19-20 (Ill.,2014) NOTE: BUT SOME CASES NOTE THAT THE MOTION TO VOLUNTARILY DISMISS WAS “ORAL”.

• See e.g. Euro Parcel Service, LLC. v. Sitko, 2014 IL App (1st) 140107-U at ¶ 9, (1st Dist., 2014); Bank of New York Mellon v. Maslowski 2013 IL App (2d) 130373-U at ¶ 10, 27 (2d Dist., 2013); Bommiasamy v. Parikh, 2012 IL App (3d) 110769-U at ¶ 8 (3d Dist., 2012).

QUERY: WILL AN ORAL MOTION TO VOLUNTARILY DISMISS BE DEEMED INEFFECTIVE IF DEFENDANT SUBSEQUENTLY FILES A POTENTIALLY DISPOSITIVE MOTION TO DISMISS---ON THE BASIS THAT THE ORDER GRANTING VOLUNTARY DISMISSAL WAS THEREBY “VOID AB INITIO?

QUERY: WILL DEFENDANT BE HELD TO HAVE TO OBJECT ON THE SPOT TO AN ORAL MOTION TO VOLUNTARILY DISMISS?

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HISTORICAL PERSPECTIVE RE MOTION TO VOLUNTARILY DISMISS 1989: THE FIRST INROAD ON MOTION TO VOLUNTARILY DISMISS WAS 1989 Gibellina v. Handley, 127 Ill.2d 122 (1989) WHICH ALLOWED A COURT TO DEFER MOTION UNTIL A PRIOR FILED POTENTIALLY DISPOSITIVE MOTION WAS HEARD. JANUARY 1, 1994: SECTION 2-1009 AMENDED TO CODIFY GIBELLINA AND TO STRIKE PROVISION THAT IN EFFECT ELIMINATED VOLUNTARY DISMISSAL IF A COUNTERCLAIM HAD BEEN FILED: “Voluntary dismissal. (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. Thereafter the plaintiff may dismiss, only on terms fixed by the court (1) upon filing a stipulation to that effect signed by the defendant, or (2) on motion specifying the ground for dismissal, which shall be supported by affidavit or other proof. After a counterclaim has been pleaded by a defendant no dismissal may be had as to the defendant except by the defendant's consent. “(b) Counterclaimants and third-party plaintiffs may dismiss upon the same terms and conditions as plaintiffs.”

JANUARY 1, 1996: ADDED RULE 219(e)