{ "id": 3638902, "name": "GRACE S. BAILEY, Indiv. and as Ex'x of the Estate of Weldon J. Bailey, Deceased, Plaintiff-Appellee and Cross-Appellant, v. STATE FARM FIRE & CASUALTY COMPANY, Defendant-Appellant and Cross-Appellee", "name_abbreviation": "Bailey v. State Farm Fire & Casualty Co.", "decision_date": "1985-10-10", "docket_number": "No. 5-84-0524", "first_page": "155", "last_page": "159", "citations": [ { "type": "official", "cite": "137 Ill. App. 3d 155" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "449 N.E.2d 1042", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "1043" } ], "opinion_index": 0 }, { "cite": "114 Ill. App. 3d 1004", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3591076 ], "pin_cites": [ { "page": "1006" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/114/1004-01" ] }, { "cite": "452 N.E.2d 691", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "693" } ], "opinion_index": 0 }, { "cite": "116 Ill. App. 3d 875", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3519530 ], "pin_cites": [ { "page": "879" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/116/0875-01" ] }, { "cite": "472 N.E.2d 787", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "pin_cites": [ { "page": "790" }, { "page": "790" } ], "opinion_index": 0 }, { "cite": "104 Ill. 2d 302", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3147125 ], "weight": 2, "pin_cites": [ { "page": "309" }, { "page": "309" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/104/0302-01" ] }, { "cite": "461 N.E.2d 672", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "pin_cites": [ { "page": "673" }, { "page": "674" } ], "opinion_index": 0 }, { "cite": "122 Ill. App. 3d 895", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3524340 ], "weight": 2, "pin_cites": [ { "page": "897" }, { "page": "897" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/122/0895-01" ] } ], "analysis": { "cardinality": 463, "char_count": 9164, "ocr_confidence": 0.785, "pagerank": { "raw": 3.2244615025578234e-07, "percentile": 0.8673158164819648 }, "sha256": "e9413ca6920f739195aeb22f200e8ac860239242f6c26912ac6d00ff1559ce33", "simhash": "1:7a1cdd93c8e937e1", "word_count": 1507 }, "last_updated": "2023-07-14T17:48:08.242422+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "GRACE S. BAILEY, Indiv. and as Ex\u2019x of the Estate of Weldon J. Bailey, Deceased, Plaintiff-Appellee and Cross-Appellant, v. STATE FARM FIRE & CASUALTY COMPANY, Defendant-Appellant and Cross-Appellee." ], "opinions": [ { "text": "JUSTICE HARRISON\ndelivered the opinion of the court:\nDefendant, State Farm Fire & Casualty Company, appeals from an order of the circuit court of Madison County granting plaintiffs motion for voluntary dismissal of a declaratory judgment action and denying defendant\u2019s motion to dismiss the cause with prejudice. Defendant alleges plaintiff was not entitled to a voluntary dismissal as a matter of right, and that the court should have dismissed plaintiff\u2019s complaint for failure to amend her pleadings after a dismissal with leave to amend. Plaintiff has filed a cross-appeal for the purpose of preserving the right to appellate review of the sufficiency of her pleadings and the merits of her cause. We affirm.\nPlaintiff, Grace S. Bailey, individually and as executrix of the estate of Weldon J. Bailey, filed a complaint for declaratory judgment on December 5, 1980. She alleged the umbrella policy issued by defendant was a motor vehicle policy under section 143a of the Illinois Insurance Code (Ill. Rev. Stat. 1981, ch. 73, par. 755a), and that defendant had failed to offer the amount of uninsured motorist coverage required by that section. On May 22, 1981, defendant filed a motion to dismiss the complaint alleging it was substantially insufficient in law. Defendant alleged the statute did not apply to the policy in question. Plaintiff filed a motion for leave to amend her pleading. The motion was granted and an amended complaint was filed on February 5, 1982.\nOn April 2, 1982, defendant moved to dismiss plaintiff's complaint as amended. On April 12, 1982, defendant moved for leave to amend the motion from one to dismiss to a motion for summary judgment. On May 3, 1982, the court granted plaintiff leave to again amend her complaint. On August 10, 1982, the court, treating defendant\u2019s motion as one to dismiss and not as one for summary judgment, granted the motion to dismiss, but gave plaintiff leave to amend. On September 2, 1982, plaintiff filed yet another amended complaint. On September 17, 1982, defendant filed another motion to dismiss the latest amended complaint, again claiming substantial insufficiency in law.\nThe court entered the following order on January 10,1983:\n\u201cDefendant State Farm Fire & Casualty Co.\u2019s Motion to Dismiss Amended Count II of Plaintiff\u2019s Complaint as Recast and Count V of Plaintiff\u2019s Complaint considered and allowed. The court finds no breach of duty for failure to offer increased limits as complained of, it being the opinion of the court that the excess policy issued by Defendant is not a policy contemplated by Ill. Revised Statutes Ch. 73, Par. 755(a). Clerk to send copy of order to attorneys Strawn and Thompson. Plaintiff granted 30 days to amend if desired.\u201d\nThe court later granted plaintiff an extension of time until February 28 to amend the complaint. Plaintiff filed an amended complaint on March 1, 1983. On March 25, 1983, defendant filed a new motion to dismiss, again claiming substantial insufficiency in law. On May 2, 1983, the court entered the following order:\n\u201cDefendant\u2019s motion to dismiss Second Amended Count II as recast and Amended Count V as recast called for argument, both parties present by their attorneys, arguments made and the Court having taken this matter under advisement; and the Court being fully advised in the premises;\nIt is hereby ordered that said motion be and it is hereby allowed. Plaintiff granted twenty-eight (28) days to amend.\u201d\nOn June 13, 1984, defendant filed a motion to dismiss with prejudice, alleging plaintiff had failed to file an amended complaint within 28 days of the order of May 2, 1983. On June 19, 1984, plaintiff filed a motion to voluntarily dismiss her complaint against defendant. Plaintiff\u2019s motion to dismiss without prejudice was granted on July 13, 1984, and defendant\u2019s motion to dismiss with prejudice was denied. Plaintiff has since filed a complaint in Peoria County.\nDefendant first contends the court could not grant plaintiff\u2019s motion for voluntary dismissal because a hearing had already taken place. Section 2 \u2014 1009(a) of the Civil Practice Law provides for voluntary dismissals by plaintiffs. It provides: \u201cThe plaintiff may, at any time before trial or hearing begins, upon notice to each party who has appeared or each such party\u2019s 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.\u201d (Ill. Rev. Stat. 1983, ch. 110, par. 2 \u2014 1009(a).) When notice is given and proper costs paid, \u201ca 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.\u201d Heinz v. County of McHenry (1984), 122 Ill. App. 3d 895, 897, 461 N.E.2d 672, 673.\nDefendant contends a hearing had been conducted, meaning plaintiff could no longer voluntarily dismiss. Defendant relies on the language in the court\u2019s January 10, 1983, order which appeared to give a reason for the dismissal of plaintiff\u2019s complaint upon one of defendant\u2019s motions to dismiss. Despite this language, the court granted plaintiff leave to amend the complaint.\nWe note first defendant did not ask for judgment on the pleadings. Plaintiff was free to rely on a different theory in subsequent pleadings. Defendant\u2019s motions to dismiss attacked plaintiff\u2019s complaint as being \u201csubstantially insufficient in law.\u201d This language follows section 2 \u2014 615(a) of the Civil Practice Law, which addresses motions with respect to pleadings:\n\u201cAll objections to pleadings shall be raised by motion. The motion shall point out specifically the defects complained of, and shall ask for appropriate relief, such as: that a pleading or portion thereof be stricken because substantially insufficient in law, or that the action be dismissed, or that a pleading be made more definite and certain in a specified particular, or that designated immaterial matter be stricken out, or that necessary parties be added, or that designated misjoined parties be dismissed, and so forth.\u201d Ill. Rev. Stat. 1983, ch. 110, par. 2\u2014 615(a).\n\u201cIllinois courts have held that hearings pursuant to a section 2\u2014 615 motion (formerly section 45) * * * did not mark the commencement of trial or hearing under section 2 \u2014 1009 [citation], nor does the granting of such a motion with leave to amend *** affect plaintiff\u2019s absolute right to voluntarily dismiss her complaint [citation].\u201d Heinz v. County of McHenry (1984), 122 Ill. App. 3d 895, 897, 461 N.E.2d 672, 674.\nOur supreme court has recently defined the terms \u201ctrial\u201d and \u201chearing\u201d as used in section 2 \u2014 1009. In Kahle v. John Deere Co. (1984), 104 Ill. 2d 302, 309, 472 N.E.2d 787, 790, the court found that in the context of section 2 \u2014 1009, a \u201chearing\u201d is the equitable equivalent of a trial. Then the court stated: \u201cBoth a trial and a hearing involve a determination of the parties\u2019 rights. [Citations.] In other words, a hearing is a nonjury proceeding in which evidence is taken on the merits.\u201d (104 Ill. 2d 302, 309, 472 N.E.2d 787, 790.) A hearing or trial, then, \u201cdoes not begin until the parties begin to present their arguments and evidence to the court sitting without a jury in order to achieve an ultimate determination of their rights.\u201d In re Marriage of Fine (1983), 116 Ill. App. 3d 875, 879, 452 N.E.2d 691, 693.\nThus, following the specific rule in Heinz and' applying the rule in Kahle, we find no trial or hearing had begun under section 2\u2014 1009. Therefore, the granting of defendant\u2019s motion to dismiss, with plaintiff being granted leave to amend, did not prevent plaintiff from exercising her absolute right to a voluntary dismissal.\nDefendant next contends the court abused its discretion by failing to dismiss plaintiff\u2019s complaint with prejudice when plaintiff did not amend the complaint within the time given her by the court to do so. In the court\u2019s May 2, 1983, order, the court had given plaintiff 28 days to amend. Plaintiff never amended but rather filed a motion for voluntary dismissal on June 19, 1984.\nWe have already found plaintiff had an absolute right to a voluntary dismissal. This is not changed by the fact plaintiff had failed to amend her complaint within the time given by the court. The court has no discretion to deny the motion, even in such a case, as long as the requirements of section 2 \u2014 1009 are met. Williams v. Joliet Mass Transit System (1983), 114 Ill. App. 3d 1004,1006, 449 N.E.2d 1042, 1043.\nDue to our determination of the issues raised in defendant\u2019s appeal, we need not address the cross-appeal filed by plaintiff.\nFor the foregoing reasons, the judgment of the circuit court of Madison County is affirmed.\nAffirmed.\nJONES, P.J., and KASSERMAN, J., concur.", "type": "majority", "author": "JUSTICE HARRISON" } ], "attorneys": [ "Stephen W. Thomson, of Reed, Armstrong, Gorman & Coffey, of Edwardsville, for appellant.", "Evan A. Strawn, of Bloomington, for appellee." ], "corrections": "", "head_matter": "GRACE S. BAILEY, Indiv. and as Ex\u2019x of the Estate of Weldon J. Bailey, Deceased, Plaintiff-Appellee and Cross-Appellant, v. STATE FARM FIRE & CASUALTY COMPANY, Defendant-Appellant and Cross-Appellee.\nFifth District\nNo. 5 \u2014 84\u20140524\nOpinion filed October 10, 1985.\nStephen W. Thomson, of Reed, Armstrong, Gorman & Coffey, of Edwardsville, for appellant.\nEvan A. Strawn, of Bloomington, for appellee." }, "file_name": "0155-01", "first_page_order": 177, "last_page_order": 181 }