Docket No. 88014–Agenda 18–January 2000.

RONALD MORRISON et al., Appellees, v. C.G. WAGNER et  								al. (C.G. Wagner, Appellant).

Oiniopinion filed April 20, 2000.

	CHIEF JUSTICE HARRISON delivered the opinion of the

court:

	The issue in this case is whether Supreme Court Rule 219(e)

(166 Ill. 2d R. 219(e)) confers on circuit courts the authority to

deny pretrial motions for voluntary dismissal filed under section

2–1009(a) of the Code of Civil Procedure (735 ILCS 5/2–1009(a)

(West 1998)). With one justice dissenting, the appellate court ruled

that it did not. 305 Ill. App. 3d 885. We granted the petition for

leave to appeal. 177 Ill. 2d R. 315. For the reasons that follow, we

now affirm the appellate court’s judgment.

	The litigation which gave rise to this appeal involves a medical

malpractice action brought by plaintiff Ronald Morrison against

defendants C.G. Wagner, a radiologist; Michael Feely, a

neurosurgeon; and St. Mary’s Hospital. Loss of consortium claims

were also brought against those defendants by Morrison’s wife.

Prior to trial, the Morrisons filed a motion to voluntarily dismiss

their case without prejudice pursuant to section 2–1009(a) of the

Code of Civil Procedure. That statute provides, in part:

			“(a) The plaintiff may, at any time before trial or hearing

begins, upon notice to each party who has appeared or

each such party’s 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.”

735 ILCS 5/2–1009(a) (West 1998).

	St. Mary’s Hospital and Dr. Feely objected to the motion on

the grounds that the Morrisons had not tendered payment for costs

to the defendants. The Morrisons thereupon filed an amended

motion alleging that they had tendered payment for costs. Once

this amendment was made, none of the defendants objected to the

Morrisons’ request for a voluntary dismissal.

	Despite the absence of an objection, the circuit court denied

the Morrisons’ motion. It based its decision on Illinois Supreme Court

Rule 219(e) (166 Ill. 2d R. 219(e)), which provides that

			“A party shall not be permitted to avoid compliance

with discovery deadlines, orders or applicable rules by

voluntarily dismissing a lawsuit. In establishing discovery

deadlines and ruling on permissible discovery and

testimony, the court shall consider discovery undertaken

(or the absence of same), any misconduct, and orders

entered in prior litigation involving a party. The court

may, in addition to the assessment of costs, require the

party voluntarily dismissing a claim to pay an opposing

party or parties reasonable expenses incurred in defending

the action including but not limited to discovery expenses,

opinion witness fees, reproduction costs, travel expenses,

postage, and phone charges.”

	After the motion to dismiss was denied, St. Mary’s Hospital

settled with the Morrisons and was dismissed from the case. The

matter then proceeded to trial against Dr. Feely and Dr. Wagner.

A mistrial was declared as to Feely, but the jury returned a verdict

against the Morrisons on their claims against Wagner. The circuit

court entered judgment on that verdict.

	The Morrisons moved for judgment notwithstanding the

verdict or for a new trial. When those motions proved

unsuccessful, they appealed. On review, the appellate court

concluded that Supreme Court Rule 219(e) could not be construed

as conferring on trial courts the discretion to deny an otherwise

proper motion for voluntary dismissal under section 2–1009(a) of

the Code of Civil Procedure. Accordingly, the appellate court ruled

that the circuit court should not have denied the Morrisons’ motion

for voluntary dismissal. It vacated the circuit court’s judgment in

favor of Wagner and against the Morrisons and remanded the

cause to the trial court with directions to conduct a hearing on the

amount of costs the Morrisons were required to pay under section

2–1009(a) to secure the dismissal they sought. 305 Ill. App. 3d at

890-91.

	In reviewing the lower courts’ judgments, we begin by noting

that section 2–1009(a) of the Code of Civil Procedure, by its terms, confers on plaintiffs an unfettered right to voluntarily dismiss their

claims without prejudice, upon proper notice and payment of costs,

“at any time before trial or hearing begins.” Although the statute itself contains no exceptions, our court has held that it is That provision , however,  is subject to two qualifications. First, where a previously

filed defense motion could result in a final disposition of the cause

of action if ruled upon favorably by the court, the court has the

discretion to hear and decide that motion before ruling on the

plaintiff’s motion for voluntary dismissal. Bochantin v. Petroff, 145 Ill. 2d 1, 7 (1991); Gibellina v. Handley, 127 Ill. 2d 122, 137-38 (1989) 735 ILCS 5/2–1009(b)

(West 1998). Second, where the circumstances of the case are such

that dismissal under section 2–1009 would directly conflict with a

specific rule of this court, the terms of the rule take precedence.

Catlett v. Novak, 116 Ill. 2d 63, 69 (1987); O’Connell v. St. Francis Hospital, 112 Ill. 2d 273 (1986).

	In the case before us, no potentially dispositive motion was

pending at the time plaintiffs moved for voluntary dismissal.

Accordingly, the only valid basis for refusing to allow plaintiffs to

voluntarily dismiss their action prior to trial under section 2–1009

is if such a dismissal would directly conflict with a supreme court

rule. No such conflict exists.

	As we have indicated, the circuit court premised its ruling on

our Rule 219(e), which prohibits a party from avoiding compliance

with discovery deadlines, orders or applicable rules by voluntarily

dismissing a lawsuit. The court apparently believed the Morrisons

had failed to properly respond to certain pretrial discovery matters

and were attempting to utilize section 2–1009 as a means to evade

court-imposed discovery sanctions. Regardless of whether this

characterization of the Morrisons’ actions is accurate, and the

Morrisons argue that it is not, Rule 219(e) does not sanction the

circuit court’s decision.

	While Rule 219(e) does provide that parties shall not be

permitted to avoid compliance with discovery deadlines, orders or

applicable rules by voluntarily dismissing their lawsuits, the

committee comments to the rule make clear that the rule “does not

change existing law regarding the right of a party to seek or obtain

a voluntary dismissal.” 166 Ill. 2d R. 219, Committee Comments,

at cxiv. That right remains unabridged, as the appellate court

recognized in this case (305 Ill. App. 3d at 889) and has held

elsewhere (see Scattered Corp. v. Midwest Clearing Corp., 299 Ill. App. 3d 653, 660 (1998); Wright v. Desate, Inc., 292 Ill. App. 3d 952, 954 (1997)).

	Instead of limiting a party’s right to voluntarily dismiss his

claims without prejudice prior to trial, Rule 219(e) prevents

voluntary dismissals from being used as an artifice for evading

discovery requirements through two entirely different mechanisms.

First, the rule enhances the monetary burden associated with such

dismissals. Under section 2–1009(a) of the Code of Civil

Procedure, plaintiffs must pay costs as a condition of taking a

voluntary dismissal without prejudice. Rule 219(e), however,

provides that in addition to the assessment of costs, the court may

require the party seeking dismissal to pay the opposing party or

parties their

		“reasonable expenses incurred in defending the action

including but not limited to discovery expenses, opinion

witness fees, reproduction costs, travel expenses, postage,

and phone charges.” 166 Ill. 2d R. 219(e).

	Second, Rule 219(e) discourages the abuse of voluntary

dismissals by attaching additional adverse consequences later, when

the party who obtained the dismissal seeks to refile. When a case

is refiled, the rule requires the court to consider the prior litigation

in determining what discovery will be permitted, and what

witnesses and evidence may be barred. 166 Ill. 2d R. 219(e),

Committee Comments, at cxiv.

	Because Rule 219(e) alters the consequences of taking a

voluntary dismissal rather than restricting a party’s right to obtain

such a dismissal, the circuit court in this case had no grounds for

preventing the Morrisons from voluntarily dismissing their claims

and forcing them to proceeding to trial. If the Morrisons deserved

to be sanctioned under Rule 219(e) for dismissing their case in

order to avoid compliance with discovery requirements, the court

could have assessed the additional expenses specified by the rule.

Any further adverse action could only be taken when and if

plaintiffs refiled their claim in a subsequent proceeding. The

appellate court was therefore correct in vacating the circuit court’s

judgment in favor of defendant Wagner and against the Morrisons

and in remanding the cause to the circuit court for further

proceedings.

	For the foregoing reasons, the judgment of the appellate court

is affirmed, the judgment of the circuit court is vacated, and the

cause is remanded to the circuit court with directions (1) to grant

the Morrisons’ motion for voluntary dismissal upon their payment

of costs, and (2) to conduct a hearing as to whether the Morrisons

should be required to pay expenses in addition to costs, as

authorized by Rule 219(e).

Appellate court judgment affirmed;

circuit court judgment vacated;

cause remanded with directions.