No. 2--01--0569

________________________________________________________________

	IN THE

	APPELLATE COURT OF ILLINOIS

	SECOND DISTRICT

________________________________________________________________

In re MARRIAGE OF	)	Appeal from the Circuit Court

AMY L. WEBB,	)	of Du Page County.

	)

	Petitioner-Appellant,	)

	)	No.	00--D--1424

and	)	No.	00--D--1424

	)

PATRICK M. WEBB,	)	Honorable

	)	John W. Demling,

	Respondent-Appellee.	)	Judge, Presiding.

________________________________________________________________

	JUSTICE BOWMAN delivered the opinion of the court:

	Petitioner, Amy L. Webb (Amy), appeals from a trial court

order that assessed expenses against her, pursuant to Supreme Court Rule 219(e) (166 Ill. 2d R. 219(e)), as a condition for granting

the voluntary dismissal of her action for dissolution of marriage

against respondent, Patrick M. Webb (Patrick).  Amy contends that

the trial court erred by assessing the expenses under the rule

without first determining whether she had engaged in discovery

misconduct.  For the reasons that follow, we agree with Amy,

reverse the order, and remand the cause for further proceedings.

	On June 6, 2000, Amy filed a petition for dissolution of

marriage against Patrick.  On April 23, 2001, prior to trial, Amy

filed a petition for the voluntary dismissal of the dissolution

action.  Along with the dismissal petition, Amy tendered to Patrick

a check in the amount of $117 as payment of Patrick's appearance

fee.  On the same date, Patrick filed a motion seeking leave to file a counterpetition for dissolution of the marriage.  Patrick

later also filed a motion to strike and dismiss Amy's petition for

voluntary dismissal on the ground that, in filing the petition, Amy

had not complied with local court rules.

	On May 2, 2001, following a hearing on these matters, the

trial court entered an order that denied Patrick's motion to strike

and dismiss Amy's petition for voluntary dismissal;  granted Amy’s

petition for the voluntary dismissal of the dissolution action

without prejudice; pursuant to Rule 219(e), conditioned the

dismissal on the payment of reasonable expenses by Amy to Patrick;

and set a date for a hearing to determine the amount of the

expenses to be assessed against Amy.

	On May 8, 2001, the trial court entered an order requiring Amy

to pay Patrick $10,625 in expenses on or before May 21, 2001.  The

order also provided that, if Amy did not pay the expenses as

ordered,  without further notice, the May 2, 2001, order would be

vacated and Patrick's motion for leave to file a counterpetition

for dissolution of the marriage would be granted.  If Amy paid the 

expenses as ordered, then the dissolution action was dismissed

voluntarily.  Amy's timely notice of appeal followed.

	On appeal, Amy contends that she is entitled to the reversal

of the May 8 order.  Amy argues that the trial court erred in

entering the order without first determining whether she engaged in

discovery misconduct (the discovery misconduct issue).

	Patrick initially responds by arguing that we should not

consider the merits of the discovery misconduct issue because Amy

failed to raise the issue in the trial court and it is therefore waived (the waiver argument).  In addition, Patrick has filed a

motion in this court to strike the first three paragraphs of Amy's

appellate reply brief.  Those three paragraphs constitute Amy's

response to the waiver argument.  In those paragraphs, Amy cites

various places in the record and asserts that the record at those

places shows that she raised the discovery misconduct issue in the

trial court.  Patrick's motion seeking to strike the paragraphs was

ordered taken with the case.  Because the motion is directly

related to the waiver argument, we will consider the motion and the

waiver argument together.

	In the waiver argument, Patrick asserts that Amy failed to

raise the discovery misconduct issue in the trial court.  As a

general rule, questions not raised in the trial court are deemed

waived and may not be raised for the first time on appeal.  In re Marriage of Rodriguez, 131 Ill. 2d 273, 279 (1989).  

	In the first three paragraphs of her reply brief, Amy asserts

that the discovery misconduct issue is not waived because her

counsel raised the issue on several occasions in the trial court. 

In support of this assertion, Amy cites several places in the

record where, she argues, her counsel raised the discovery

misconduct issue.  Patrick asserts in the motion to strike the

paragraphs that the record, at the places Amy cites, does not

support Amy's argument.

	After carefully reviewing the record at the places indicated

by the citations in question, we conclude that the record supports

Amy’s argument.  The first pages in the record that Amy cites are

pages 19 through 21 in the report of the proceedings for the May 2 hearing.  Patrick's counsel had just argued that, under Supreme

Court Rule 219(e) (166 Ill. 2d R. 219(e)), a trial court could

require a party seeking to voluntarily dismiss a claim to pay an

opposing party's reasonable expenses incurred in defending the

action such as discovery expenses, opinion witness fees,

reproduction costs, travel expenses, postage, and phone charges. 

Patrick claimed that he was entitled to be reimbursed for more than

$16,000 in such expenses.

	As part of his response, Amy's attorney stated:

	"[L]et's look at Supreme Court Rule 219.  Is there any order

saying my client did something wrong as far as discovery goes? 

I don't believe there is.  I certainly haven't seen one.  Is

there anything my client has done wrong?  And the answer is

no.  219 is a discovery rule, your Honor."

	After the trial court asked Amy's counsel if another supreme

court rule authorized the assessment of expenses such as those in

question, the response of Amy's counsel included the following:

		"These depositions and these costs [sic] must have been absolutely necessary in prosecuting the case, number one.  And

there also must be some finding that [Amy] either did

something -- didn't comply with discovery, violated a rule

regarding discovery, so on and so forth.

		[Patrick's] [c]ounsel has not said any of those things. 

What he said was, we don't want her to dismiss her case. 

Let's stick her with, you know, a mountain of costs [sic].  The law does not provide for that, nor does the case law, your

Honor."

	Our reading of these passages and other similar passages in

the record at the places cited by Amy convinces us that Amy's

counsel plainly argued in the trial court that in order for the

court to properly assess expenses against Amy under Rule 219(e) it

was necessary that there be a finding that Amy engaged in discovery

misconduct.  We believe these arguments sufficiently raised the

discovery misconduct issue in the trial court to overcome Patrick's

waiver argument.  Accordingly, the waiver argument fails and

Patrick's motion to strike the first three paragraphs of Amy’s

reply brief is denied.  We now turn to the merits of the discovery

misconduct issue.

	The discovery misconduct issue involves the trial court's

construction of Supreme Court Rule 219(e) (166 Ill. 2d R. 219(e)).

Amy contends that the trial court erred when it construed Rule

219(e) to allow it to require her to pay Patrick his expenses of

defending the dissolution action, as a condition of granting her

petition to voluntarily dismiss the dissolution action, without

first determining whether she had engaged in discovery misconduct. 

Amy argues that the proper construction of Rule 219(e) requires a

trial court to determine whether a party has engaged in discovery

misconduct before assessing such expenses against the party.

	The discovery misconduct issue involves the construction of a

supreme court rule.  The construction of a supreme court rule is a

question of law subject to de novo review.  In re Marriage of Zuberbier, 309 Ill. App. 3d 386, 388 (1999).  In interpreting a supreme court rule, we apply the same principles that are employed to construe a statute, and our goal is to determine the intent of

the drafters of the rule.  Zuberbier, 309 Ill. App. 3d at 388.

	In support of her contention that the trial court erred in

construing Rule 219(e), Amy relies heavily on Scattered Corp. v. Midwest Clearing Corp., 299 Ill. App. 3d 653 (1998).  The plaintiff in Scattered Corp. brought an action alleging conversion and breach of contract.  Prior to trial, after discovery had largely closed,

the plaintiff filed a motion to voluntarily dismiss the case

without prejudice pursuant to section 2--1009 of the Code of Civil

Procedure (735 ILCS 5/2--1009 (West 1996)).  The defendant

responded by filing a petition for reimbursement of its reasonable

expenses pursuant to Rule 219(e).  Without determining whether the

plaintiff had engaged in discovery misconduct, the trial court

awarded the defendant more than $135,000 as reasonable expenses and

required the plaintiff to pay this amount to the defendant as a

condition of granting the voluntary dismissal.  After the trial

court denied the plaintiff's motions to stay the judgment, withdraw

the dismissal, and amend the complaint, the plaintiff appealed. 

Scatterred Corp., 299 Ill. App. 3d at 655-66.

	In Scattered Corp., the appellate court stated that the issue before it was whether a trial court, in considering a motion to

voluntarily dismiss an action in the context of a request for

expenses pursuant to Rule 219(e), was required by Rule 219(e) to

make a preliminary finding as to whether the party seeking to

dismiss the action had engaged in discovery misconduct before it

could impose expenses under the rule.  Thus, the issue in Scattered Corp. was virtually identical to the discovery misconduct issue raised by Amy in this case.

	In resolving the issue, the Scattered Corp. court first noted that Rule 219 was entitled "Consequences of Refusal to Comply with

Rules or Order Relating to Discovery or Pretrial Conferences."  166

Ill. 2d R. 219.  The court then considered the language of Rule

219(e), which provides:

		"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."  166 Ill. 2d R. 219(e).

	The Scattered Corp. court determined that the language of Rule 219(e) was ambiguous because the words "avoid compliance" in Rule

219(e) were susceptible to reasonably divergent interpretations. 

The words were ambiguous because, by definition, a voluntary

dismissal necessarily avoided all further litigation obligations. 

The court then turned to the committee comments related to Rule

219(e), which provide:

		"Paragraph (e) addresses the use of voluntary dismissals

to avoid compliance with discovery rules or deadlines, or to

avoid the consequences of discovery failures, or orders

barring witnesses or evidence.  This paragraph does not change

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

a voluntary dismissal.  However, this paragraph does clearly

dictate that when a case is refiled, the court shall consider

the prior litigation in determining what discovery will be

permitted, and what witnesses and evidence may be barred.  The

consequences of noncompliance with discovery deadlines, rules

or orders cannot be eliminated by taking a voluntary

dismissal.  Paragraph (e) further authorizes the court to

require the party taking the dismissal to pay the out-of-

pocket expenses actually incurred by the adverse party or

parties.  This rule reverses the holdings in In re Air Crash Disaster at Sioux City, Iowa, on July 19, 1989, 259 Ill. App. 3d 231, 631 N.E.2d 1302 (1st Dist. 1994), and Galowich v. Beech Aircraft Corp., 209 Ill. App. 3d 128, 568 N.E.2d 46 (1st Dist. 1991).  Paragraph (e) does not provide for the payment

of attorney fees when an action is voluntarily dismissed." 

166 Ill. 2d R. 219(e), Committee Comments, at cxiv.

	The Scattered Corp. court stated that the statement in the committee comments that "[Tt]he consequences of noncompliance with

discovery deadlines, rules or orders cannot be eliminated by taking

a voluntary dismissal." (166 Ill. 2d R. 219(e), Committee Comments,

at cxiv) had a "particular resonance" for it in construing Rule

219(e).  Scattered Corp., 299 Ill. App. 3d at 658.  The court explained that it believed the committee's emphasis on

noncompliance indicated that there must be some "disobedience" on

the plaintiff's part in order for the rule to apply.  Scattered Corp., 299 Ill. App. 3d at 658.  The court also stated that the committee's reference to the case of In re Air cCrash Disaster further supported its interpretation of Rule 219(e).  Scattered Corp., 299 Ill. App. 3d at 658.

	The Scattered Corp. court then stated:

		"Based upon the language of Rule 219(e) and illumination

from the Committee Comments, we find that Rule 219(e)'s

reference to voluntary dismissals taken to 'avoid compliance'

with 'discovery deadlines, orders or applicable rules' (166

Ill. 2d R. 219(e)) requires the circuit court to make a

preliminary finding of misconduct, analogous to the

'unreasonable noncompliance' standard invoked in Rule 219(c)

cases (166 Ill. 2d R. 219(c)), before imposing expenses

pursuant to Rule 219(e).  [Citation.]  To determine whether

the noncompliance is unreasonable, the standard is whether the

conduct of the noncomplying party shows a deliberate,

contumacious or unwarranted disregard for the court's

authority.  [Citation.]"  Scattered Corp., 299 Ill. App. 3d at 659.

	Finally, the Scattered Corp. court stated that its construction of Rule 219(e) was "consistent with the language and

spirit of the authority vested in the circuit court pursuant to

Supreme Court Rule 219 generally and Rule 219(c) in particular. 

[Citation]."  Scattered Corp., 299 Ill. App. 3d at 659.  The court then noted that Rule 219(c) allowed for a continuum of sanctions

for discovery violations and added, "we believe the purposes behind

Rule 219(c) and Rule 219(e) are similar."  Scattered Corp., 299 Ill. App. 3d at 659.  Based on its construction of Rule 219(e), the

Scattered Corp. court reversed the order awarding expenses to the defendant because the trial court had not made the required finding

as to whether the plaintiff engaged in discovery misconduct.

	Patrick responds that this court should not adopt the reasoning in Scattered Corp. because it is unpersuasive in view of our supreme court's opinion in Morrison v. Wagner, 191 Ill. 2d 162 (2000), and in view of the plain language of Rule 219(e).  In

Morrison, the issue before the court was whether Rule 219(e) conferred authority on a trial court to deny a pretrial motion for

voluntary dismissal that was filed pursuant to section 2--1009(a)

of the Code of Civil Procedure (735 ILCS 5/2--1009(a) (West 2000)). 

Morrison, 191 Ill. 2d at 163.  The court ruled that Rule 219(e) does not limit a party's right to voluntarily dismiss an action

without prejudice prior to trial and explained that this was so

because "Rule 219(e) prevents voluntary dismissals from being used

as an artifice for evading discovery requirements through two

entirely different mechanisms."  Morrison, 191 Ill. 2d at 166.  The court identified these mechanisms as the possible assessment of

costs as a condition of taking a voluntary dismissal and the

possible attachment of adverse consequences if the party who

obtained the dismissal seeks to refile the action.

	Accordingly, the Morrison court ruled that the trial court erred in basing its denial of the plaintiffs’ motion for a voluntary dismissal on Rule 219(e).  The court stated "[i]f the

[plaintiffs] 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."  Morrison, 191 Ill. 2d at 167.  The court then remanded the cause with directions to grant the plaintiffs’

motion for voluntary dismissal and to conduct a hearing to

determine whether the plaintiffs should be assessed additional

expenses as authorized by Rule 219(e).

	Contrary to Patrick's assertions, we find nothing in Morrison that requires us to repudiate the Scattered Corp. reasoning.  The Morrison court simply did not address the discovery misconduct issue that is before us in this case and even cited Scattered Corp. with approval on another point.  Moreover, to the extent that

Morrison did address the requirements for allowing the assessment of expenses under Rule 219(e), it did so by referring to sanctions

against a party who has sought to avoid compliance with discovery

requirements.  To the extent that this in any way impinges on the Scattered Corp. reasoning, it supports it.  For these reasons, we conclude that Patrick's reliance on Morrison  as support for his argument that we should not follow Scattered Corp. is misplaced.

	Patrick next argues that the plain language of Rule 219(e)

shows that the Scattered Corp. construction of the rule was erroneous.  We disagree.  In our view, the Scattered Corp. court correctly determined that the terms "avoid compliance" in Rule

219(e) were central to a resolution of the discovery misconduct

issue and that the terms were ambiguous.  It was therefore appropriate for the court to turn to the committee comments as an 

aid in construing Rule 219(e).  We agree with Scattered Corp. that the committee comments show that the committee emphasized

noncompliance and that this emphasis indicated that there must be

some misconduct on a plaintiff’s part in order for the rule to

apply.  Consequently, we also agree with the Scattered Corp. conclusion that, before imposing expenses pursuant to Rule 219(e),

a trial court must make a preliminary finding as to whether the

plaintiff engaged in discovery misconduct.  Accordingly, Patrick’s

reliance on the plain language of the rule does not persuade us

that the Scattered Corp. court erred in construing Rule 219(e).

	Finally, Patrick argues that we should affirm the trial

court's ruling because, even if Rule 219(e) requires a finding of

discovery misconduct before expenses can be imposed on a party

seeking a voluntary dismissal, the record in this case contains

sufficient justification for the imposition of expenses under the

rule against Amy.  It is undisputed that the trial court did not

make a determination as to whether Amy engaged in discovery

misconduct.  "[I]t is the province of the circuit court to make such factual determinations."  Scattered Corp., 299 Ill. App. 3d at 661.  Accordingly, Patrick's argument fails.

	In sum, because the trial court erred by not making a

preliminary determination of whether Amy engaged in discovery

misconduct before it assessed expenses against Amy under Rule

219(e) as a condition for allowing her to voluntarily dismiss her

dissolution action, the trial court's order entered on May 8, 2001, is reversed and the cause is remanded for further proceedings

consistent with this opinion.

	Reversed and remanded.

	HUTCHINSON, P.J., and GEIGER, J., concur.