{ "id": 2433881, "name": "CRUZ CARDENAS, Plaintiff-Appellant, v. THE VILLAGE OF OAK BROOK et al., Defendants-Appellees", "name_abbreviation": "Cardenas v. Village of Oak Brook", "decision_date": "1989-01-10", "docket_number": "No. 2-87-0355", "first_page": "605", "last_page": "609", "citations": [ { "type": "official", "cite": "178 Ill. App. 3d 605" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "117 Ill. 2d 543", "category": "reporters:state", "reporter": "Ill. 2d", "opinion_index": 0 }, { "cite": "158 Ill. App. 3d 866", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3577530 ], "weight": 7, "year": 1987, "pin_cites": [ { "page": "868-70" }, { "page": "867-68" }, { "page": "867-68" }, { "page": "868" }, { "page": "868" }, { "page": "869" }, { "page": "869-70" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/158/0866-01" ] }, { "cite": "112 Ill. 2d 273", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5539451 ], "pin_cites": [ { "page": "283" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/112/0273-01" ] }, { "cite": "101 Ill. 2d 291", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3160400 ], "pin_cites": [ { "page": "297" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/101/0291-01" ] }, { "cite": "156 Ill. App. 3d 545", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3506069 ], "weight": 4, "year": 1984, "pin_cites": [ { "page": "550" }, { "page": "552" }, { "page": "554" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/156/0545-01" ] }, { "cite": "119 Ill. 2d 344", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3192653 ], "pin_cites": [ { "page": "359" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/119/0344-01" ] }, { "cite": "162 Ill. App. 3d 1168", "category": "reporters:state", "reporter": "Ill. App. 3d", "opinion_index": 0 } ], "analysis": { "cardinality": 399, "char_count": 8157, "ocr_confidence": 0.766, "pagerank": { "raw": 4.89950402824256e-08, "percentile": 0.306979866393755 }, "sha256": "ab934269de1f862cff4885d4379e0440cea859fc0189cd10326859eb39e9d629", "simhash": "1:09ff495ece262781", "word_count": 1350 }, "last_updated": "2023-07-14T17:15:09.210343+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "CRUZ CARDENAS, Plaintiff-Appellant, v. THE VILLAGE OF OAK BROOK et al., Defendants-Appellees." ], "opinions": [ { "text": "JUSTICE. INGLIS\ndelivered the opinion of the court:\nPlaintiff, Cruz Cardenas, appeals from trial court orders granting summary judgment in favor of defendants, Village of Oak Brook (Village) and Saddle Brook Development Company (Saddle Brook), and holding plaintiff\u2019s motion for voluntary dismissal moot as a result of the summary judgment rulings. The issue raised on appeal is whether the trial court erred in ruling on defendants\u2019 motions for summary judgment prior to plaintiff\u2019s motion for voluntary dismissal. Plaintiff also challenges the propriety of the trial court\u2019s ruling on defendants\u2019 motions. We reverse.\nThe parties are familiar with the facts underlying this cause and they will be repeated here only as necessary to an understanding of our disposition.\nPlaintiff\u2019s complaint alleged a cause of action against defendants in three counts. Count III of plaintiff\u2019s complaint was dismissed on June 6, 1984, and no amended count III was filed. This cause was set for trial on the remaining counts on August 26,1986.\nOn August 12, 1986, Saddle Brook filed a motion for summary judgment on counts I and II of plaintiff\u2019s complaint, and Oak Brook later joined in that motion. The trial judge continued the hearing on defendants\u2019 motions to August 25,1986.\nOn August 25,1986, plaintiff presented a motion for voluntary dismissal pursuant to section 2 \u2014 1009 of the Code of Civil Procedure (Code) (Ill. Rev. Stat. 1987, ch. 110, par. 2 \u2014 1009). Plaintiff\u2019s motion was properly noticed and accompanied by a tender of defendants\u2019 costs as required by statute. (See Ill. Rev. Stat. 1987, ch. 110, par. 2\u2014 1009(a).) The court continued all of the motions to September 15, 1986. In its order, the court stated that plaintiff\u2019s motion would be considered after a hearing on defendants\u2019 motions for summary judgment.\nAfter two additional continuances, the court ruled on the motions on October 6, 1986. The court denied defendants\u2019 motions for summary judgment as to count I, but granted the motions as to count II. That order stated that there was no just reason to delay enforcement or appeal. In a separate order also entered on October 6, 1986, the court granted plaintiff\u2019s motion for voluntary dismissal as to count I, but found that plaintiff\u2019s motion for voluntary dismissal as to count II was rendered moot by the prior grant of summary judgment on that count in favor of defendants.\nOn November 5, 1986, plaintiff filed a motion for rehearing and to vacate the order granting summary judgment in favor of defendants. On March 23, 1987, the court denied plaintiff\u2019s motion for rehearing. Plaintiff brought this appeal on April 20,1987.\nThis cause was originally set on our January 1988 docket. On December 8, 1987, we dismissed plaintiff\u2019s appeal in an order pursuant to Supreme Court Rule 23 (107 Ill. 2d R. 23) after concluding that the appeal was not timely. (Cardenas v. Village of Oak Brook (1987), 162 Ill. App. 3d 1168 (unpublished Rule 23 order).) In so ruling, we relied on our supreme court\u2019s decision in Elg v. Whittington (November 16, 1987), No. 64396, wherein the court held that the filing of a timely post-trial motion did not toll the 30-day period for filing an appeal from a final and appealable order. Subsequent to our order dismissing plaintiff\u2019s appeal, the supreme court modified its opinion in Elg and held that the rule stated in that opinion should be given prospective application only. (Elg v. Whittington (1987), 119 Ill. 2d 344, 359.) Pursuant to its supervisory authority and in accordance with its modified opinion in Elg, the supreme court has remanded the cause to this court for consideration of the appeal on its merits.\nPlaintiff first contends that the trial court erred in continuing plaintiff\u2019s motion for voluntary dismissal until after the hearing on defendants\u2019 motions for summary judgment. We agree.\nA plaintiff\u2019s right to take a voluntary dismissal is codified in section 2 \u2014 1009 of the Code (Ill. Rev. Stat. 1987, ch. 110, par. 2\u2014 1009). That section provides, in pertinent part:\n\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. 1987, ch. 110, par. 2 \u2014 1009(a).)\nThis statutory provision allowing a plaintiff to dismiss an action at any time before a trial or a hearing begins is an absolute right and is not tempered by any discretionary language in the statute. Kendle v. Village of Downers Grove (1987), 156 Ill. App. 3d 545, 550; see also Moody\u2019s Investors Service, Inc. v. Department of Revenue (1984), 101 Ill. 2d 291, 297.\nDefendants nonetheless argue that their motions for summary judgment had the same effect as a trial and that the trial court had discretion to consider those motions before plaintiff\u2019s motion for voluntary dismissal. Defendants seek support in this position by analogizing to our supreme court\u2019s decision in O\u2019Connell v. St. Francis Hospital (1986), 112 Ill. 2d 273, 283, wherein the court held that a trial court should rule on a motion to dismiss for failure to exercise due diligence pursuant to Supreme Court Rule 103(b) (107 Ill. 2d R. 103(b)) prior to ruling on a motion for voluntary dismissal. We have recently rejected these arguments in Kendle v. Village of Downers Grove (1987), 156 Ill. App. 3d 545, 551-53 and Gibellina v. Handley (1987), 158 Ill. App. 3d 866, 868-70, appeal allowed (1987), 117 Ill. 2d 543.\nThe facts in Gibellina are similar to those in the case at bar. (See Gibellina, 158 Ill. App. 3d at 867-68.) In that case, as in the instant action, the plaintiff filed his motion for voluntary dismissal after the defendants\u2019 motions for summary judgment were filed. (158 Ill. App. 3d at 867-68.) The Gibellina court denied the plaintiff's motion, stating that the defendants were entitled to a hearing on their pending motions for summary judgment. (158 Ill. App. 3d at 868.) The court subsequently granted summary judgment in favor of the defendants, and the plaintiff appealed. (158 Ill. App. 3d at 868.) In reversing the trial court, we distinguished O\u2019Connell on the basis that the O\u2019Connell court was merely resolving the conflict between a procedural rule of the court and a statutory provision, and did not support any alteration of a plaintiff\u2019s otherwise absolute right to take a voluntary dismissal prior to a trial or hearing. (158 Ill. App. 3d at 869; see also Kendle, 156 Ill. App. 3d at 552.) Accordingly, we held that the trial court did not have discretion to rule on the defendants\u2019 motions for summary judgment prior to the plaintiff\u2019s motion fo.r voluntary dismissal and erred in failing to grant the plaintiff\u2019s motion. Gibellina, 158 Ill. App. 3d at 869-70; see also Kendle, 156 Ill. App. 3d at 554.\nDefendants have not offered us any basis for departing from these holdings and, absent a contrary ruling from our supreme court, we find the law as expressed in Gibellina and Kendle to be controlling in the case before us. We therefore hold that the trial court erred in ruling on defendants\u2019 motions for summary judgment before ruling on plaintiff\u2019s motion for voluntary dismissal.\nFor the reasons set forth above and in accordance with our authority pursuant to Supreme Court Rule 366(a)(5) (107 Ill. 2d R. 366(a)(5)), we reverse the orders granting summary judgment on count II in favor of defendants and denying plaintiff\u2019s motion for voluntary dismissal on that count, and further order that count II be dismissed without prejudice.\nReversed and count II dismissed without prejudice.\nUNVERZAGT, P.J., and DUNN, J., concur.", "type": "majority", "author": "JUSTICE. INGLIS" } ], "attorneys": [ "Edward C. Erwin, of Steinberg, Polacek & Goodman, of Chicago, for appellant.", "Eileen M. O\u2019Sullivan, of Duffy & Tamillow, of Chicago, for appellee Village of Oak Brook.", "Dorothy E French, of French, Rogers, Kezelis & Kominiarek, P.C., of Chicago, for appellee Saddle Brook Development Company." ], "corrections": "", "head_matter": "CRUZ CARDENAS, Plaintiff-Appellant, v. THE VILLAGE OF OAK BROOK et al., Defendants-Appellees.\nSecond District\nNo. 2-87-0355\nOpinion filed January 10, 1989.\nEdward C. Erwin, of Steinberg, Polacek & Goodman, of Chicago, for appellant.\nEileen M. O\u2019Sullivan, of Duffy & Tamillow, of Chicago, for appellee Village of Oak Brook.\nDorothy E French, of French, Rogers, Kezelis & Kominiarek, P.C., of Chicago, for appellee Saddle Brook Development Company." }, "file_name": "0605-01", "first_page_order": 627, "last_page_order": 631 }