{ "id": 5254024, "name": "RICHARD HECK et al., Plaintiffs-Appellees, v. CILCORP, INC., Defendant (Central Illinois Light Company et al., Defendants-Appellants)", "name_abbreviation": "Heck v. Cilcorp, Inc.", "decision_date": "1991-12-13", "docket_number": "No. 4-91-0430", "first_page": "301", "last_page": "307", "citations": [ { "type": "official", "cite": "223 Ill. App. 3d 301" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "535 N.E.2d 858", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "865" } ], "opinion_index": 0 }, { "cite": "127 Ill. 2d 122", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5564244 ], "pin_cites": [ { "page": "136" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/127/0122-01" ] }, { "cite": "459 N.E.2d 1083", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "pin_cites": [ { "page": "1083-84" }, { "page": "1085" } ], "opinion_index": 0 }, { "cite": "121 Ill. App. 3d 556", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3559139 ], "weight": 3, "pin_cites": [ { "page": "557" }, { "page": "558-59" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/121/0556-01" ] }, { "cite": "477 N.E.2d 1359", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 4, "year": 1984, "pin_cites": [ { "page": "1360" }, { "page": "1363" }, { "page": "1363-64" } ], "opinion_index": 0 }, { "cite": "133 Ill. App. 3d 59", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3530241 ], "weight": 4, "year": 1984, "pin_cites": [ { "page": "60" }, { "page": "64" }, { "page": "64-65" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/133/0059-01" ] }, { "cite": "203 N.E.2d 897", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "pin_cites": [ { "page": "900" }, { "page": "899" } ], "opinion_index": 0 }, { "cite": "32 Ill. 2d 115", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2841524 ], "weight": 3, "pin_cites": [ { "page": "120" }, { "page": "119" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/32/0115-01" ] }, { "cite": "331 N.E.2d 190", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "193" } ], "opinion_index": 1 }, { "cite": "29 Ill. App. 3d 746", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2496434 ], "pin_cites": [ { "page": "749" } ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/29/0746-01" ] }, { "cite": "203 N.E.2d 897", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "pin_cites": [ { "page": "899" } ], "opinion_index": 1 }, { "cite": "32 Ill. 2d 115", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2841524 ], "weight": 2, "pin_cites": [ { "page": "119-20" } ], "opinion_index": 1, "case_paths": [ "/ill-2d/32/0115-01" ] } ], "analysis": { "cardinality": 616, "char_count": 12618, "ocr_confidence": 0.777, "pagerank": { "raw": 5.8591662004228935e-08, "percentile": 0.36623409318458333 }, "sha256": "c5402a9229b2b390131841bccf3cb6ce9b8b1d663f8e61ffec9ec220956b0534", "simhash": "1:bb7154ae77e09ff4", "word_count": 2052 }, "last_updated": "2023-07-14T19:46:44.574739+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "RICHARD HECK et al., Plaintiffs-Appellees, v. CILCORP, INC., Defendant (Central Illinois Light Company et al., Defendants-Appellants)." ], "opinions": [ { "text": "JUSTICE STEIGMANN\ndelivered the opinion of the court:\nDefendants, Central Illinois Light Company (CILCO) and Donald Koch, d/b/a Koch Trucking, and Randy Koch, appeal from the granting of the motion of plaintiffs, Richard Heck and Dennis Roberts, to voluntarily dismiss this case. The issue we address is whether a defendant\u2019s filing of a counterclaim for contribution precludes a plaintiff from voluntarily dismissing his cause of action. We conclude that it does and therefore reverse and remand.\nI. Facts\nThis case arises from a multivehicle accident that occurred on Interstate 55 near Bloomington, Illinois. A Koch trucking vehicle driven by Randy Koch struck plaintiff Heck\u2019s tractor trailer from behind. Plaintiff Roberts was a passenger in Heck\u2019s vehicle. Heck had stopped his vehicle on Interstate 55 because CILCO employees were doing maintenance work on power lines near the road. On June 2, 1989, plaintiffs filed a negligence complaint naming CILCORP, a corporation, as well as CILCO, Koch Trucking Company, and Randy Koch as defendants. In January 1990, CILCO filed a counterclaim for contribution against Koch. CILCORP\u2019s motion for summary judgment was granted on December 12, 1990, because CILCORP was merely the holding company for CILCO. CILCO remained a defendant in this cause of action. In May 1991, Koch filed a counterclaim for contribution against CILCO.\nOn April 5, 1991, the trial court granted CILCO\u2019s motion to strike counts I and III of plaintiffs\u2019 first amended complaint, which alleged a cause of action premised on the Road Construction Injuries Act (Act) (111. Rev. Stat. 1989, ch. 121, pars. 314.1 through 314.8). On April 23, 1991, plaintiffs filed a second-amended complaint, again alleging violations under the Act. On May 10, 1991, CILCO again filed a motion to strike those counts premised on the Act. On May 20, 1991, plaintiffs filed a motion for voluntary dismissal under section 2 \u2014 1009 of the Code of Civil Procedure (Code) (Ill. Rev. Stat. 1989, ch. 110, par. 2\u2014 1009). On May 22, 1991, defendants filed an objection to that motion, claiming that plaintiffs were barred from voluntarily dismissing because each defendant had filed a counterclaim against the other. Despite defendants\u2019 objections, the trial court granted plaintiffs\u2019 motion and dismissed the action.\nII. Analysis\nThe sole issue in this case is whether the filing of a counterclaim by a defendant bars plaintiffs\u2019 motion for voluntary dismissal. We hold that it does. The relevant part of the Code states the following:\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. 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\u2019s consent.\u201d (Emphasis added.) Ill. Rev. Stat. 1989, ch. 110, par. 2 \u2014 1009(a).\nThe first question we need to resolve is whether a counterclaim for contribution is a counterclaim within the meaning of section 2 \u2014 1009(a) of the Code. Section 2 \u2014 608(a) of the Code defines the term \u201ccounterclaim\u201d as follows:\n\u201cAny claim by one or more defendants against one or more plaintiffs, or against one or more codefendants, whether in the nature of setoff, recoupment, cross claim or otherwise, and whether in tort or contract, for liquidated or unliquidated damages, or for other relief, may be pleaded as a cross claim in any action, and when so pleaded shall be called, a counterclaim.\u201d (Emphasis added.) Ill. Rev. Stat. 1989, ch. 110, par. 2 \u2014 608(a).\nThe plain meaning of the text of that section makes clear that a claim \u201cby one or more defendants *** against one or more codefendants\u201d (Ill. Rev. Stat. 1989, ch. 110, par. 2 \u2014 608(a)) is a counterclaim, as that term is used in the Code, including section 2 \u2014 1009(a) thereof.\nPlaintiffs argue that the supreme court, in People v. American National Bank & Trust Co. (1965), 32 Ill. 2d 115, 203 N.E.2d 897, held that a defendant\u2019s counterclaim must allege an independent, substantive cause of action against plaintiff in order to bar plaintiff\u2019s voluntary dismissal. However, we do not read the holding in that case as expansively as do plaintiffs.\nIn American National Bank, a tax foreclosure case, defendant filed a \u201ccross-complaint\u201d in response to a motion to dismiss. Defendant\u2019s \u201ccross-complaint\u201d alleged that the purchaser of delinquent taxes \u201ccould not oust the court from jurisdiction nor prevent the foreclosure by its subsequent purchase of the forfeited taxes.\u201d (American National Bank, 32 Ill. 2d at 120, 203 N.E.2d at 900.) The supreme court ruled that defendant\u2019s \u201ccross-complaint\u201d failed to state a substantive claim at all, therefore ruling that the \u201ccross-complaint\u201d was not a counterclaim which would bar voluntary dismissal. (American National Bank, 32 Ill. 2d at 119, 203 N.E.2d at 899.) (We add parenthetically that the supreme court indirectly expressed its assessment of the worth of defendant\u2019s response by putting quotations marks around \u201ccross-complaint\u201d whenever in its opinion it referred to defendant\u2019s pleading.) The language in that case, which suggests a counterclaim bars a voluntary dismissal only when it is filed against a plaintiff, is dicta taken out of the context of the peculiar circumstances present in that tax foreclosure proceeding.\nAlthough we are not aware of any case directly on point \u2014 where counterclaims brought between codefendants barred a plaintiff from voluntary dismissal \u2014 we find the cases of In re Marriage of Black (1985), 133 Ill. App. 3d 59, 477 N.E.2d 1359, and Edwards v. Fox (1984), 121 Ill. App. 3d 556, 459 N.E.2d 1083, support our holding in the present case. In Black, a wife filed a petition for dissolution of her marriage. Some months later, she filed a petition for temporary custody, and child support; on the same date, the maternal grandmother and paternal grandparents of the child of the parties to the marriage petitioned to intervene and for custody. The trial court granted the petitions to intervene of all grandparents. (Black, 133 Ill. App. 3d at 60, 477 N.E.2d at 1360.) After a hearing on the petition for temporary custody, the court found neither of the parents was then able to provide for the best interests of the child, and awarded temporary custody to the paternal grandparents. The cause was set for trial. Moments before trial, petitioner moved to voluntarily dismiss her petition for dissolution. The trial court denied her motion, and she appealed that denial. (Black, 133 Ill. App. 3d at 64, 477 N.E.2d at 1363.) The appellate court construed the grandparents\u2019 petitions to intervene to be counterclaims under section 2 \u2014 608(a) of the Code. The court deemed those petitions sufficient reason to bar petitioner\u2019s voluntary dismissal of the action and affirmed the trial court\u2019s order denying petitioner\u2019s motion for voluntary dismissal. Black, 133 Ill. App. 3d at 64-65, 477 N.E.2d at 1363-64.\nIn Edwards, Lodia Edwards brought an action against defendant Fox for injuries caused by an automobile accident. In a separate personal injury action, Ronald Edwards, Lodia\u2019s husband, also sued Fox. Fox filed a third-party complaint for contribution against Ronald in the action filed by Lodia. Fox thereafter made an oral motion to consolidate the two actions, which the trial court granted. The trial court later denied Ronald\u2019s subsequent motion for voluntary dismissal pursuant to section 2 \u2014 1009 because the court construed Fox\u2019s third-party complaint as a counterclaim. (Edwards, 121 Ill. App. 3d at 557, 459 N.E.2d at 1083-84.) Ronald appealed the denial of his motion for voluntary dismissal, and the appellate court affirmed. The court held that Fox\u2019s third-party complaint was a counterclaim within the meaning of section 2 \u2014 608(a) of the Code, which thus barred voluntary dismissal under section 2 \u2014 1009. Edwards, 121 Ill. App. 3d at 558-59, 459 N.E.2d at 1085.\nOur conclusion in the present case is further supported by Gibellina v. Handley (1989), 127 Ill. 2d 122, 136, 535 N.E.2d 858, 865, wherein the Illinois Supreme Court wrote as follows: \u201cThe limitations within section 2 \u2014 1009 protect the rights of any litigant \u2014 plaintiff, counterclaimant, or third-party plaintiff \u2014 to pursue and control a claim for relief.\u201d\nPlaintiffs also contend that because they have refiled their action in Madison County (Madison County case No. 91 \u2014 L\u2014676), whether a cause of action continues to exist in McLean County \u2014 the issue before us in this appeal \u2014 is moot. We disagree. Upon remand of this case, defendants may elect to attack the cause of action in Madison County by filing a motion for involuntary dismissal based upon section 2 \u2014 619(a)(3) of the Code (Ill. Rev. Stat. 1989, ch. 110, par. 2\u2014 619(a)(3)).\nFor the reasons stated, we reverse the trial court\u2019s order granting plaintiffs\u2019 motion for voluntary dismissal and dismissing plaintiffs\u2019 cause of action, and this case is remanded for further proceedings.\nReversed and remanded.\nKNECHT, J., concurs.", "type": "majority", "author": "JUSTICE STEIGMANN" }, { "text": "JUSTICE LUND,\ndissenting:\nI respectfully dissent from the majority opinion. I do not agree that a defendant can bar a plaintiff\u2019s voluntary dismissal, without prejudice, under the authority of section 2 \u2014 1009 of the Code (Ill. Rev. Stat. 1989, ch. 110, par. 2 \u2014 1009) by filing a counterclaim against a codefendant. I further suggest that a third-party action by one defendant bringing in a third-party defendant also does not bar the voluntary dismissal. The absence of a specific decision as to this issue probably results from what I suggest is a general assumption that a counterclaim blocking a voluntary dismissal must be against the plaintiff. People v. American National Bank & Trust Co. (1965), 32 Ill. 2d 115, 203 N.E.2d 897, certainly gives this impression when it states:\n\u201cIt is clear that the purpose of section 52 [(now section 2 \u2014 1009 of the Code)] is to prohibit claimants from voluntarily dismissing causes instituted by them to the prejudice of other parties named in the complaint who have subsequently properly alleged substantive causes of action against the original claimants.\u201d American National, 32 Ill. 2d at 119-20, 203 N.E.2d at 899.\nHistorically, a plaintiff has had the right to take a voluntary non-suit, and this right has only been limited by statutory provisions which are now included in section 2 \u2014 1009 of the Code. (See Ill. Ann. Stat., ch. 110, par. 2 \u2014 1009, Historical and Practice Notes, at 417 (Smith-Hurd 1983); 16 Ill. L. & Prac. Dismissal & Nonsuit \u00a7\u00a711, 12 (1971).) That right has been stated to be an \u201cabsolute right *** and the trial court has no discretion to interfere with the exercise of that right.\u201d City of Palos Heights v. Village of Worth (1975), 29 Ill. App. 3d 746, 749, 331 N.E.2d 190, 193.\nIt is my opinion that a counterclaim against a plaintiff is the only pleading that would bar that plaintiff from voluntarily dismissing as to the defendant filing the counterclaim. I suggest the majority\u2019s reliance on section 2 \u2014 608(a) of the Code (Ill. Rev. Stat. 1989, ch. 110, par. 2 \u2014 608(a)) is misplaced. That section provides for the use of the term \u201ccounterclaim\u201d in place of various terms which were formerly used. (Ill. Ann. Stat., ch. 110, par. 2 \u2014 608(a), Historical and Practice Notes, at 182 (Smith-Hurd 1983).) Nothing in section 2 \u2014 608(a) of the Code or the historical notes indicates the definition provided by that section was to define or limit the voluntary nonsuit authority statutorily recognized by section 2 \u2014 1009 of the Code.\nMy examination of the cases cited by the majority indicates they are not authority for the position taken in their opinion. I suggest the majority opinion is a judicial limitation of a historically recognized right to a voluntary nonsuit. I suggest a decision of this type is best left to the legislature.", "type": "dissent", "author": "JUSTICE LUND," } ], "attorneys": [ "Gordon R. Broom and J. Todd Hayes, both of Burroughs, Simpson, Hepler, Broom & MacDonald, of Edwardsville, for appellants.", "W. Loren Thomson, of Thomson & Weintraub, of Bloomington, for appellees." ], "corrections": "", "head_matter": "RICHARD HECK et al., Plaintiffs-Appellees, v. CILCORP, INC., Defendant (Central Illinois Light Company et al., Defendants-Appellants).\nFourth District\nNo. 4 \u2014 91\u20140430\nOpinion filed December 13, 1991.\nLUND, J., dissenting.\nGordon R. Broom and J. Todd Hayes, both of Burroughs, Simpson, Hepler, Broom & MacDonald, of Edwardsville, for appellants.\nW. Loren Thomson, of Thomson & Weintraub, of Bloomington, for appellees." }, "file_name": "0301-01", "first_page_order": 325, "last_page_order": 331 }