{ "id": 3524340, "name": "HEATHER HEINZ, a Minor, by Bonnie Heinz, her Mother and Next Friend, Plaintiff-Appellant, v. THE COUNTY OF McHENRY et al., Defendants-Appellees", "name_abbreviation": "Heinz v. County of McHenry", "decision_date": "1984-03-19", "docket_number": "Nos. 83\u2014200, 83\u2014485 cons.", "first_page": "895", "last_page": "900", "citations": [ { "type": "official", "cite": "122 Ill. App. 3d 895" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "99 Ill. App. 3d 637", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3100868 ], "pin_cites": [ { "page": "650" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/99/0637-01" ] }, { "cite": "18 Ill. 2d 502", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5328089 ], "pin_cites": [ { "page": "505" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/18/0502-01" ] }, { "cite": "79 Ill. App. 3d 1051", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5608228 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/79/1051-01" ] }, { "cite": "82 Ill. App. 3d 884", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3226303 ], "pin_cites": [ { "page": "892" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/82/0884-01" ] }, { "cite": "58 Ill. App. 3d 64", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5625916 ], "pin_cites": [ { "page": "67" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/58/0064-01" ] }, { "cite": "60 Ill. 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App. 3d 406", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5382166 ], "pin_cites": [ { "page": "409" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/39/0406-01" ] }, { "cite": "12 Ill. App. 3d 284", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2853724 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ill-app-3d/12/0284-01" ] }, { "cite": "87 Ill. App. 3d 643", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3182239 ], "year": 1973, "opinion_index": 0, "case_paths": [ "/ill-app-3d/87/0643-01" ] }, { "cite": "100 Ill. App. 3d 189", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5500825 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/ill-app-3d/100/0189-01" ] }, { "cite": "17 Ill. App. 3d 460", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2509661 ], "pin_cites": [ { "page": "461" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/17/0460-01" ] } ], "analysis": { "cardinality": 544, "char_count": 10446, "ocr_confidence": 0.764, "pagerank": { "raw": 1.5042654305385373e-07, "percentile": 0.6662396147420178 }, "sha256": "12cc5dd9b5e57c5c0a3bd4135a98aa3a6d32a513f1d2225d909bbf2230adf775", "simhash": "1:aebfa50aec4fa1ed", "word_count": 1776 }, "last_updated": "2023-07-14T18:37:51.597464+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "HEATHER HEINZ, a Minor, by Bonnie Heinz, her Mother and Next Friend, Plaintiff-Appellant, v. THE COUNTY OF McHENRY et al., Defendants-Appellees." ], "opinions": [ { "text": "JUSTICE VAN DEUSEN\ndelivered the opinion of the court:\nThe procedural history of these cases in the trial court may be briefly summarized as follows. On October 19, 1982, Heather Heinz, by her mother, filed a six-count complaint for personal injuries sustained in a two-car collision that occurred February 20, 1982, against the county of McHenry (count I) and James R. Rakow, McHenry County Superintendent of Highways (count II) (hereinafter defendants), and others. On February 1, 1983, the trial court granted defendants\u2019 section 2 \u2014 615 motion (Ill. Rev. Stat. 1981, ch. 110, par. 2 \u2014 615) to dismiss counts I and II of plaintiff\u2019s complaint and further ordered that plaintiff had 14 days in which to file an amended complaint. On February 8, 1983, the trial court heard plaintiff\u2019s motion for a voluntary nonsuit, found that proper notice had been given to all parties of record and that all costs had been paid to all defendants, and ordered that plaintiff\u2019s cause of action be dismissed pursuant to' the terms and provisions of section 2 \u2014 1009 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 2 \u2014 1009). On February 17, 1983, plaintiff filed a new but substantially identical suit against defendants and others in McHenry County. On February 22, 1983, defendants moved to partially vacate the dismissal order of February 8, 1983, and asked for an award of attorney fees pursuant to section 2 \u2014 611 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 2 \u2014 611). On March 2, 1983, the trial court vacated the voluntary dismissal order of February 8, 1983, as to defendants, amended nunc pro tunc its order of February 1, 1983, by making the dismissal of counts I and II of the complaint to be with prejudice, and continued defendants\u2019 motion for attorney fees. On April 21, 1983, after an evidentiary hearing the trial court denied the motion for attorney fees.\nIn appeal No. 83 \u2014 200 plaintiff has sought review of the trial court\u2019s order of March 2, 1983, vacating the voluntary dismissal order of February 8, 1983, and modifying nunc pro tunc its order of February 1, 1983. In appeal No. 83 \u2014 485 defendants have sought review of the trial court\u2019s order of April 21, 1983, denying their motion for attorney fees.\nAppeal No. 83 \u2014 200\nWe reverse. Upon giving of notice and payment of proper costs, as here, a plaintiff\u2019s right to a voluntary dismissal without prejudice prior to trial or a hearing is absolute, and the court has no discretion to deny plaintiff\u2019s motion for dismissal in such cases. (E.g., Gilbert-Hodgman, Inc. v. Chicago Thoroughbred Enterprises, Inc. (1974), 17 Ill. App. 3d 460, 461.) This right is restricted after the trial has begun or where a counterclaim has been filed so that cases cited by defendants concerning motions made in these situations (Clyde Savings & Loan Association v. May Department Stores (1981), 100 Ill. App. 3d 189; In re Marriage of Weiss (1980), 87 Ill. App. 3d 643; Juen v. Juen (1973), 12 Ill. App. 3d 284) are clearly inapposite. Illinois courts have held that hearings pursuant to a section 2 \u2014 615 motion (formerly section 45), as held here, did not mark the commencement of trial or hearing under section 2 \u2014 1009 (North Park Bus Service, Inc. v. Pastor (1976), 39 Ill. App. 3d 406, 409), nor does the granting of such a motion with leave to amend, as here, affect plaintiff\u2019s absolute right to voluntarily dismiss her complaint (Bernick v. Chicago Title & Trust Co. (1945), 325 Ill. App. 495, 501). Moreover, the filing of another action shortly after the voluntary dismissal order does not affect plaintiff\u2019s absolute right to such a dismissal without prejudice where, as here, the trial had not begun, and notice was given and costs were tendered. See In re Marriage of Brown (1980), 86 Ill. App. 3d 964, 971-72. Compare Juen v. Juen (1973), 12 Ill. App. 3d 284 (plaintiff\u2019s voluntary dismissal motion properly denied where counterclaim was pending and plaintiff failed to comply with notice and costs requirements). But see Smith v. Monumental Life Insurance Co. (1939), 301 Ill. App. 217, 218-19.\nHowever, as a trial court may upon its own motion set aside any judgment or order during the pendency of the term or its equivalent (Miller v. Bloomberg (1978), 60 Ill. App. 3d 362, 364-65), an order setting aside a former order of dismissal will not be disturbed unless the vacation constitutes an abuse of discretion (Smith v. Monumental Life Insurance Co. (1939), 301 Ill. App. 217, 218). See Miller v. Bloomberg (1978), 60 Ill. App. 3d 362, 364-65.\nDefendants\u2019 motion for vacation of the February 8 voluntary dismissal had two stated bases: (1) plaintiff\u2019s failure to comply with the court\u2019s \u201cOrder *** to file an Amended Complaint\u201d and (2) plaintiff\u2019s attempt to avoid compliance with the change of venue statute by dismissing her lawsuit with the intention of refiling it so as to be heard before a different judge. As to the first stated basis, it should be observed that the plaintiff was granted leave to file an amended pleading, not ordered to do so. Moreover, as we have previously noted, the granting of defendants\u2019 section 2 \u2014 615 motion with leave to amend does not affect plaintiff\u2019s absolute right to a voluntary dismissal under section 2 \u2014 1009. Bernick v. Chicago Title & Trust Co. (1945), 325 Ill. App. 495, 501.\nAs tc the second stated basis of defendants\u2019 motion, plaintiff may very well have avoided the effect of the change of venue statute (III. Rev. Stat. 1981, ch. 110, par. 2 \u2014 1001), which would bar her absolute right to a change after the judge had, as here, ruled on a substantial issue. However, she would have been able to do so, not owing to any misconduct on her part, but, as the trial judge observed, due to the system then used by the county in assigning cases. The cases cited by defendants in support of their argument all relate to recognized change of venue principles and are inapposite in that no motion for change of venue was filed in this cause.\nThe two stated bases for vacation of the dismissal here do not support the action. While this court may affirm on any basis appearing in the record regardless of whether the trial judge\u2019s stated rationale was correct (Hintz v. Lazarus (1978), 58 Ill. App. 3d 64, 67), there appears to be no other basis in the record upon which to do so. Under the total circumstances shown by the record in this case, plaintiff was entitled to a voluntary dismissal as a matter of absolute right, and that portion of the trial court\u2019s order of March 2, 1983, vacating the February 8, 1983, order of voluntary dismissal was in error and must be vacated.\nAs defendants now concede, the trial court also erred on March 2, 1983, in amending nunc pro tunc the order of February 1, 1983, to be a dismissal with prejudice of counts I and II of the complaint. A nunc pro tunc order can be made at any time, even after the expiration of the term, to correct a final order or judgment to reflect what had been done, but not to alter the judgment actually rendered; it may not be used to supply omitted judicial action, to correct judicial errors, or to cure a jurisdictional defect (e.g., Freeman v. White Way Sign & Maintenance Co. (1980), 82 Ill. App. 3d 884, 892). Here, the trial judge himself observed that on February 1 he had given plaintiff the opportunity to amend her complaint. This type of change is not one to make the record speak for something previously done (see Kooyenga v. Hertz Equipment Rentals, Inc. (1979), 79 Ill. App. 3d 1051), and, therefore, that portion of the March 2, 1983, order granting a dismissal with prejudice nunc pro tunc February 1, 1983, is hereby vacated.\nDefendants go on to argue that the dismissal of plaintiff\u2019s complaint with prejudice on March 2, 1983, was still proper because it was within 30 days of the February 1 order. (See, e.g., Brockmeyer v. Duncan (1960), 18 Ill. 2d 502, 505.) The court had, according to defendants, simply amended its prior order. Defendants overlook entirely the fact that, although 30 days had not elapsed between entry of the February 1 order and March 2, 1983, when the court sought to modify that order, the plaintiffs had, in the intervening time, properly sought and received a voluntary dismissal of their lawsuit. Therefore, on March 2, 1983, there was no complaint on file upon which the court could grant defendants\u2019 motion to dismiss.\nHaving made the foregoing determinations, we need not address plaintiff\u2019s final contention, that the trial court\u2019s dismissal of her complaint with prejudice was erroneous because her complaint was sufficient to state a cause of action and because said dismissal precluded an opportunity to amend her complaint, and defendants\u2019 response, that said dismissal was proper inasmuch as the complaint failed to set forth facts to support its conclusory allegations and that it is apparent that plaintiff would be unable to plead a viable cause of action even with leave to amend.\nAppeal No. 83 \u2014 485\nIn Appeal No. 83 \u2014 485, the defendants assert that the trial court abused its discretion in denying a request for attorney fees pursuant to section 2 \u2014 611 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 2 \u2014 611) for false and untrue pleadings made without reasonable cause. Following an evidentiary hearing, the court found that plaintiff did not misstate facts and that this was not a proper case for assessing fees under section 2 \u2014 611. The allowance of fees pursuant to this section is discretionary with the trial court, and its determination should not be disturbed unless there is a clear abuse of discretion. (Tower Oil & Technology Co. v. Buckley (1981), 99 Ill. App. 3d 637, 650.) From our examination of the record it does not appear that the trial court here abused its discretion, and the order denying defendants\u2019 request for attorney fees is hereby affirmed.\nAppeal No. 83 \u2014 200\u2014reversed; Appeal No. 83 \u2014 485\u2014affirmed.\nHOPF and NASH, JJ., concur.", "type": "majority", "author": "JUSTICE VAN DEUSEN" } ], "attorneys": [ "Louis F. Aiello and Janice Metros Johnston, of Woodstock, for plaintiff-appellant and appellee Heather Heinz.", "Jay S. Judge, Thomas G. Leavy, and Kristine A. Karlin, all of Judge & Knight, of Park Ridge, for defendant-appellee and appellant County of McHenry et al." ], "corrections": "", "head_matter": "HEATHER HEINZ, a Minor, by Bonnie Heinz, her Mother and Next Friend, Plaintiff-Appellant, v. THE COUNTY OF McHENRY et al., Defendants-Appellees.\nSecond District\nNos. 83\u2014200, 83\u2014485 cons.\nOpinion filed March 19, 1984.\nLouis F. Aiello and Janice Metros Johnston, of Woodstock, for plaintiff-appellant and appellee Heather Heinz.\nJay S. Judge, Thomas G. Leavy, and Kristine A. Karlin, all of Judge & Knight, of Park Ridge, for defendant-appellee and appellant County of McHenry et al." }, "file_name": "0895-01", "first_page_order": 917, "last_page_order": 922 }