{ "id": 3458458, "name": "JEROME J. MANCUSO et al., Plaintiffs-Appellants, v. ALDA BLANCHE BEACH et al., Defendants-Appellees", "name_abbreviation": "Mancuso v. Beach", "decision_date": "1986-10-31", "docket_number": "No. 85-3075", "first_page": "188", "last_page": "193", "citations": [ { "type": "official", "cite": "149 Ill. App. 3d 188" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "456 N.E.2d 327", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "119 Ill. App. 3d 174", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3629468 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/119/0174-01" ] }, { "cite": "471 N.E.2d 654", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "128 Ill. App. 3d 886", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3525887 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/128/0886-01" ] }, { "cite": "466 N.E.2d 1119", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "126 Ill. App. 3d 411", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3596932 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/126/0411-01" ] }, { "cite": "483 N.E.2d 307", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "opinion_index": 0 }, { "cite": "136 Ill. App. 3d 170", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3566037 ], "weight": 2, "pin_cites": [ { "page": "172" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/136/0170-01" ] }, { "cite": "492 N.E.2d 1322", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "opinion_index": 0 }, { "cite": "112 Ill. 2d 273", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5539451 ], "weight": 2, "pin_cites": [ { "page": "282" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/112/0273-01" ] }, { "cite": "484 N.E.2d 522", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1986, "opinion_index": 0 }, { "cite": "137 Ill. App. 3d 155", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3638902 ], "weight": 2, "year": 1986, "opinion_index": 0, "case_paths": [ "/ill-app-3d/137/0155-01" ] }, { "cite": "472 N.E.2d 787", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "opinion_index": 0 }, { "cite": "104 Ill. 2d 302", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3147125 ], "weight": 2, "pin_cites": [ { "page": "308" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/104/0302-01" ] } ], "analysis": { "cardinality": 565, "char_count": 11703, "ocr_confidence": 0.758, "pagerank": { "raw": 3.1086932993672853e-07, "percentile": 0.8598314032980301 }, "sha256": "87688a650819bcd40d6ab954ba26384efe13974489e0138c5410aa79fb6470f6", "simhash": "1:2f287466d2421df4", "word_count": 1898 }, "last_updated": "2023-07-14T21:36:15.078878+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "JEROME J. MANCUSO et al., Plaintiffs-Appellants, v. ALDA BLANCHE BEACH et al., Defendants-Appellees." ], "opinions": [ { "text": "JUSTICE MURRAY\ndelivered the opinion of the court:\nThis is an appeal by plaintiffs, James and Joanne Mancuso, from an order of the circuit court of Cook County denying their motion for voluntary dismissal of their complaint, granting defendants\u2019 motions to dismiss, and awarding attorney fees to defendants.\nPlaintiffs initially filed a complaint seeking rescission of a real estate sales agreement for the purchase of a home at 925 Woodland Drive in Glenview or, alternatively, for money damages. Plaintiffs named as defendants Alda Beach and her son, Robert Sanden (Beach and Sanden), the former beneficial owners of the property; Koenig & Strey, Inc. (Koenig), the real estate brokers; and the Harris Trust & Savings Bank, the legal title holder. Plaintiffs\u2019 complaint charged defendants with negligent misrepresentations, breach of contract, and violation of the Consumer Fraud and Deceptive Business Practices Act (Ill. Rev. Stat. 1983, ch. 121%, par. 261 et seg.). All allegations pertain to the condition of the roof of the house and the existence of an air conditioning system.\nDefendants filed their answers to plaintiffs\u2019 complaint in September 1984. On June 13, 1985, defendants filed motions to dismiss plaintiffs\u2019 complaint pursuant to section 2 \u2014 615(a) of the Code of Civil Procedure (Ill. Rev. Stat. 1983, ch. 110, par. 2\u2014615(a)) for failure to state a cause of action. After considering plaintiffs\u2019 memoranda in opposition to defendants\u2019 motions and defendants\u2019 responses thereto, the trial court granted defendants\u2019 motions to dismiss, but allowed plaintiffs 28 days within which to replead.\nOn July 31, plaintiffs filed an amended complaint containing allegations similar to those in their original complaint. On August 19, Beach and Sanden filed a motion to dismiss the amended complaint. On September 13, prior to a hearing on the motion to dismiss, plaintiffs filed a section 2 \u2014 1009 motion for voluntary dismissal of their complaint (Ill. Rev. Stat. 1983, ch. 110, par. 2\u20141009) and, on September 13, Beach and Sanden filed a motion in opposition thereto. On September 19, Koenig also filed a motion to dismiss plaintiffs\u2019 amended complaint, as well as a motion in opposition to plaintiffs\u2019 motion for voluntary dismissal. After a hearing on September 19, the court denied .plaintiffs\u2019 motion, granted defendants\u2019 motions to dismiss and awarded defendants attorney fees subject to their filing of a petition for same.\nOn September 25, the trial court entered a written order, in accordance with its rulings on September 19, which indicated that it denied plaintiffs\u2019 motion for voluntary dismissal \u201cbecause the plaintiffs *** refused to argue the issues of said motion, including the issue of the bad faith of the plaintiffs\u2019 First Amended Complaint and its lack of conformity with this court\u2019s ruling of July 3, 1985,\u201d and that it was the court\u2019s opinion that plaintiffs\u2019 amended complaint was filed in bad faith.\nOn October 8, the court denied plaintiffs\u2019 motion for reconsideration of its rulings of September 19 and order of September 25 and awarded $1,598 in attorney fees to Koenig and $2,455 to Beach and Sanden. On the same day, the court also entered a nunc pro tunc order correcting the form of its September 25 order to indicate that it \u201cintended the September 25, 1985 Order to reflect that Plaintiff\u2019s Motion for Voluntary Dismissal was denied prior to the Court\u2019s ruling that the Defendants\u2019 Motions to Dismiss were granted.\u201d\nOn appeal plaintiffs argue that the trial court erred in denying their motion for voluntary dismissal, granting defendants\u2019 motions to dismiss their amended complaint with prejudice, and in awarding attorney fees to defendants.\nWe first note that section 2 \u2014 1009 of the Code of Civil Procedure (the Code) (Ill. Rev. Stat. 1983, ch. 110, par. 2\u20141009) provides, in pertinent part, that a plaintiff may, at any time before trial or hearing begins, voluntarily dismiss his complaint without prejudice upon notice to all parties and upon payment of costs. In Kahle v. John Deere Co. (1984), 104 Ill. 2d 302, 472 N.E.2d 787, our supreme court observed that this right is not a right given by the Code, but rather a right stemming from the common law. At common law, a plaintiff had the right to voluntarily dismiss without prejudice at any time prior to judgment. The purpose of the legislature\u2019s enactment of section 2\u2014 1009, limiting the exercise of the right to voluntary dismissal prior to trial or hearing, was to avoid vexatious lawsuits. The Kahle court noted, however, that \u201c[a]ny further limits on the plaintiff\u2019s common law rights should be enacted by the legislature, not declared by this court.\u201d 104 Ill. 2d 302, 308, 472 N.E.2d 787.\nNotwithstanding a plaintiff\u2019s absolute right to voluntary dismissal under section 2 \u2014 1009 (Bailey v. State Farm Fire & Casualty Co. (1985), 137 Ill. App. 3d 155, 484 N.E.2d 522), however, our supreme court recently held in O\u2019Connell v. St. Francis Hospital (1986), 112 Ill. 2d 273, 492 N.E.2d 1322, that an exception exists where section 2 \u2014 1009 conflicts with Supreme Court Rule 103(b), which provides that a defendant may move for a dismissal of a plaintiff\u2019s complaint where the plaintiff fails to diligently pursue service of process (87 Ill. 2d R. 103(b)). In O\u2019Connell the defendants moved to dismiss the plaintiff\u2019s complaint with prejudice pursuant to Supreme Court Rule 103(b). The plaintiff then moved for and was granted a voluntary dismissal of his complaint pursuant to section 2 \u2014 1009. The plaintiff subsequently refiled his complaint under section 13 \u2014 217 of the Code (Ill. Rev. Stat. 1983, ch. 110, par. 13\u2014217), and defendants again filed a Rule 103(b) motion to dismiss, reasserting the plaintiff\u2019s lack of diligence in serving process on the original complaint. The trial court denied defendants\u2019 motions to dismiss, but certified an interlocutory appeal to this court, which we denied.\nThereafter, our supreme court granted leave to appeal to consider the conflict between Rule 103(b), which imposes a requirement of due diligence in effecting service of process, and section 2 \u2014 1009, under which a plaintiff may voluntarily dismiss his complaint even where service of process is not effected until expiration of the applicable statute of limitations, and section 13 \u2014 217, which permits a plaintiff to refile his complaint after a voluntary dismissal regardless of lack of diligence as to the original complaint. Based on the court\u2019s concurrent authority with the legislature to promulgate procedural rules in certain circumstances and its corresponding authority to strike down procedural legislative enactments which unduly infringe upon its constitutional rule-making authority, the court held that a Rule 103(b) motion to dismiss must be considered on the merits prior to consideration of a plaintiff\u2019s section 2 \u2014 1009 motion. It based its determination on its observation that \u201c[njothing is more critical to the judicial function than the administration of justice without delay\u201d and due diligence in serving process is essential to that purpose. (O\u2019Connell v. St. Francis Hospital (1986), 112 Ill. 2d 273, 282, 492 N.E.2d 1322.) Under the circumstances in the case, the court therefore found that sections 2\u20141009 and 13\u2014217 constituted an undue infringement upon the judiciary\u2019s function to discharge its duties fairly and expeditiously.\nIn the instant case, defendants mistakenly rely on a case analogous to O\u2019Connell \u2014 Dillie v. Bisby (1985), 136 Ill. App. 3d 170, 483 N.E.2d 307. In Dillie, the court specifically held \u201cthat the trial courts should have discretion to consider any defense motion which might result in a dismissal with prejudice prior to ruling on a plaintiff\u2019s voluntary dismissal motion.\u201d (136 Ill. App. 3d 170, 172, 483 N.E.2d 307.) Here, defendants appear to interpret the phrase any defense motion as inclusive of all defense motions, such as their section 2\u2014615(a) motion to dismiss plaintiffs\u2019 complaint for failure to state a cause of action (Ill. Rev. Stat. 1983, ch. 110, par. 2\u2014615(a)). We do not agree with this interpretation. We believe Dillie is limited to its facts, i.e., to cases involving a section 2 \u2014 1009 motion for voluntary dismissal filed in response to a Rule 103(b) motion to dismiss for lack of due diligence in service of process. Dillie is therefore clearly inapplicable to the present case.\nWe further note that defendants cite no other supreme court rule, nor has our research revealed any, which authorizes denial of a proper motion for voluntary dismissal based upon a plaintiff\u2019s alleged bad faith or failure to obey a prior order of the court \u2014 the reasons advanced by the trial court here. On the other hand, it is well established that, where a trial court grants a plaintiff leave to file an amended complaint and he fails to do so, his absolute right to voluntary dismissal is not affected if he has complied with the provisions of section 2\u20141009. (Bailey v. State Farm Fire & Casualty Co. (1985), 137 Ill. App. 3d 155, 484 N.E.2d 522.) We see no reason to distinguish between a plaintiffs\u2019 failure to file an amended complaint and, as here, failure to file one allegedly sufficient in law.\nAccordingly, we hold that the trial court erred in denying plaintiffs\u2019 motion for voluntary dismissal and granting defendants\u2019 motions to dismiss. In light of this disposition, we do not consider the parties\u2019 arguments concerning the sufficiency of plaintiffs\u2019 amended complaint.\nWe also must reverse the trial court\u2019s order awarding attorney fees to defendants. It is well settled that attorney fees will not be awarded to a party in the absence of statutory authority or agreement of the parties. (Sanelli v. Glenview State Bank (1984), 126 Ill. App. 3d 411, 466 N.E.2d 1119.) The only basis for an award of attorney fees in this case is under section 2\u2014611 of the Code (Ill. Rev. Stat. 1983, ch. 110, par. 2\u2014611), which provides that \u201c\u00a1ajllegations and denials, made without reasonable cause and found to be untrue, shall subject the party pleading them to the payment of reasonable expenses ***, together with a reasonable attorney\u2019s fee.\u201d (Emphasis added.) Because this statute is penal in nature, it must be strictly construed (People ex rel. Donelson v. Cowling (1984), 128 Ill. App. 3d 886, 471 N.E.2d 654) and, accordingly, each of its requirements must be proved and the party seeking the remedy has the burden of proof (In re Eatherton (1983), 119 Ill. App. 3d 174, 456 N.E.2d 327).\nHere, the trial court predicated its award of attorney fees on its determination that plaintiffs\u2019 amended complaint was in \u201cbad faith.\u201d The court did not, however, make a finding that the allegations of plaintiffs\u2019 amended complaint were untrue. Although the finding of \u201cbad faith\u201d may or may not satisfy the reasonable-cause requirement of the statute, it does not meet the requirement that the allegations in plaintiffs\u2019 amended complaint were untrue. Accordingly, we hold that the trial court erred in awarding attorney fees to defendants.\nFor the foregoing reasons, therefore, the judgment of the circuit court of Cook County is reversed and the cause remanded for further proceedings consistent with this opinion.\nReversed and remanded.\nSULLIVAN, P.J., and PINCHAM, J., concur.", "type": "majority", "author": "JUSTICE MURRAY" } ], "attorneys": [ "John R. Doyle, Stephen P. Krchma, and Mark E. Shure, all of McDermott, Will & Emery, of Chicago, for appellants.", "Donald T. Bertucci, of Chicago, for appellees Alda Blanche Beach and Robert Sanden.", "Karl L. Felbinger, of Deerfield, for appellee Koenig & Strey, Inc." ], "corrections": "", "head_matter": "JEROME J. MANCUSO et al., Plaintiffs-Appellants, v. ALDA BLANCHE BEACH et al., Defendants-Appellees.\nFirst District (5th Division)\nNo. 85\u20143075\nOpinion filed October 31, 1986.\nJohn R. Doyle, Stephen P. Krchma, and Mark E. Shure, all of McDermott, Will & Emery, of Chicago, for appellants.\nDonald T. Bertucci, of Chicago, for appellees Alda Blanche Beach and Robert Sanden.\nKarl L. Felbinger, of Deerfield, for appellee Koenig & Strey, Inc." }, "file_name": "0188-01", "first_page_order": 210, "last_page_order": 215 }