Jones v. Chicago Cycle Center

SUPREME COURT CASES

Laws-info.com » Cases » Illinois » 1st District Appellate » 2009 » Jones v. Chicago Cycle Center

State: Illinois

Court: 1st District Appellate

Docket No: 1-07-0724 Rel

Case Date: 05/05/2009

Preview:SECOND DIVISION May 5, 2009

No. 1-07-0724 DALE B. JONES and SALLY JONES, Plaintiffs-Appellants, v. CHICAGO CYCLE CENTER; CHICAGO CYCLE CENTER, INC., an Illinois Corporation; KINGS' MOTORSPORTS, INC., an Illinois Corporation Individually and d/b/a CHICAGO CYCLE CENTER, Assumed Name; BMW OF NORTH AMERICA LLC; BAYERISCHE MOTOREN WERKE, AKTIENGESELLSCHAFT, Defendants-Appellees. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Appeal from the Circuit Court of Cook County

Honorable Thomas L. Hogan, Judge Presiding.

PRESIDING JUSTICE KARNEZIS delivered the opinion of the court: Plaintiffs Dale and Sally Jones (plaintiffs) appeal from an order of the circuit court awarding defendants Chicago Cycle Center, Inc., BMW of North America LLC and Bayerische Motoren Werke, Aktiengesellschaft (defendants), $181,256.52 in costs pursuant to Supreme Court Rule 219(e) (210 Ill. 2d R. 219(e)). The court awarded the costs as a condition of its granting of plaintiffs' motion for voluntary dismissal pursuant to section 2-1009(a) of the Illinois Code of Civil Procedure (735 ILCS 5/2-1009(a) (West 2006)). It ordered that plaintiffs' right to refile their complaint was dependent on proof of their payment of the award to defendants prior to refiling and that defendants'

1-07-0724 right to collect the award arose only if plaintiffs chose to refile. Plaintiffs argue (1) the court had no authority to condition plaintiffs' absolute right to refile their complaint upon proof that they paid the award and the order is, therefore, a legal nullity; (2) the court erred as a matter of law in awarding the costs to defendants pursuant to Rule 219(e) because plaintiffs had not engaged in discovery misconduct; and (3) the court abused its discretion in ordering plaintiffs to pay $181,256.52 based on evidence from which the reasonableness of the expenses could not be determined. In Jones v. Chicago Cycle Center, No. 1-07-0724 (July 29, 2008) (unpublished order pursuant to Supreme Court Rule 23), we dismissed the case for lack of jurisdiction. On March 17, 2009, pursuant to Illinois Supreme Court supervisory order No. 107411, we vacated the dismissal in order to consider the appeal on its merits. Upon consideration of the merits, we affirm the circuit court's order as modified. BACKGROUND In January 2001, Dale Jones had an accident while riding a BMW motorcycle and sustained injuries. In January 2003, Dale and his wife Sally sued defendants in the circuit court of Cook County for Dale's injuries, medical and economic losses and Sally's loss of consortium. Defendants are assorted manufacturers and sellers of BMW motorcycles. Plaintiffs alleged breach of warranty, negligence, failure to warn, strict product liability and consumer fraud. The action progressed for several years, with plaintiffs amending their complaint several times and all parties proceeding with discovery. In May 2006, on the parties' joint motion, the court set October 26, 2006, as 2

1-07-0724 the trial date. In September 2006, defendants moved for summary judgment. On October 24, 2006, the court heard argument on the motion for summary judgment and took it under advisement. On October 26, 2006, the court held a hearing on the parties' motions in limine. It decided plaintiffs' three motions and 10 of the 25 motions filed by defendants. Defendants made a motion in limine to preclude plaintiffs' witnesses from testifying regarding the costs of Dale's future medical care if plaintiffs had not previously disclosed that testimony pursuant to Supreme Court Rule 213(f) disclosures or a deposition. Plaintiffs told the court that Dale's condition had deteriorated over the past two months and one of their medical experts, Dr. Stephen Ondra, a neurosurgeon, was in the process of examining recent MRI and CAT scan results to determine what additional treatments and expenses Dale might incur as a result of his deteriorated condition. Plaintiffs had disclosed the expert but not that he would testify regarding future medical expenses. Defendants were not aware that Dale's condition had changed or that the expert was currently formulating opinions beyond those stated in his evidence deposition taken two years earlier. Plaintiffs stated they were taking the expert's evidentiary deposition that evening. The court questioned why plaintiffs had not disclosed Dale's new medical condition to the trial judge or assignment judge hearing the case the previous week. The court told plaintiffs that they were at trial and it was too late to disclose additional opinion testimony, but it nevertheless continued the motion in limine regarding barring undisclosed testimony about future medical 3

1-07-0724 expenses pending the result of the deposition. The next day, on October 27, 2006, plaintiffs filed a motion to voluntarily dismiss their action pursuant to section 2-1009(a). They asserted they needed to dismiss the case because Dale's medical condition had changed and further tests were needed to determine his prognosis and future medical condition. Defendants filed their response and objections to the motion to voluntarily dismiss and also filed a motion for costs pursuant to Rule 219(e) in the event the court granted the dismissal. Rule 219(e) provides, in relevant part, that "[a] party shall not be permitted to avoid compliance with discovery deadlines, orders or applicable rules by voluntarily dismissing a lawsuit. * * * The court may, in addition to the assessment of costs [allowed upon voluntary dismissal pursuant to section 2-1009(a)], 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, expert witness fees, reproduction costs, travel expenses, postage, and phone charges." 210 Ill. 2d R. 219(e).1

1

Our supreme court in Vicencio v. Lincoln-Way Builders, Inc., 204 Ill. 2d 295,

789 N.E.2d 290 (2003), noted that "costs" and "expenses" are not the same for purposes of Rule 219(e) and both may be imposed upon a voluntary dismissal pursuant to Rule 219(e). Vicencio, 204 Ill. 2d at 307 n.1, 789 N.E.2d at 297 n.1. The circuit court, however, used only the term "costs" to refer to the Rule 219(e) amounts it 4

1-07-0724 Because defendants' motion for summary judgment was still pending, the court addressed that motion first, denying the motion on the basis that plaintiffs had presented some factual basis to support their case. It then addressed plaintiffs' motion for a voluntary nonsuit, stating that it would grant the nonsuit but, before signing an order granting the nonsuit, would require plaintiffs to pay defendants all the costs associated with defendants' defense of the suit allowable by statute and supreme court rule. The court and the parties discussed when such costs would have to be paid, with defense counsel noting that plaintiffs would not perfect their voluntary dismissal until they paid the costs and plaintiffs would, therefore, be unable to refile unless they paid the costs. Defendants were concerned about the timing of entry of the nonsuit because they wanted to preserve the testimony of a witness scheduled to appear later in the week by taking his evidence deposition. The parties agreed with the court's suggestion that the motion for nonsuit be continued for two weeks, allowing defendants time to take the deposition and to prepare a bill of costs. The court entered two orders on October 27, 2006: one detailing the court's decisions on the motions in limine it had considered the previous day; the other denying defendants' motion for summary

assessed as a condition of plaintiffs' voluntary dismissal. It makes no difference for purposes of this appeal whether the assessed amounts are "costs" or "expenses." Therefore, we will employ the term used by the court, "costs," when referring to the costs and Rule 219(e) expenses awarded by the court. 5

1-07-0724 judgment, granting plaintiffs' motion for a voluntary dismissal "subject to Plaintiffs' payment to Defendants of all costs allowable under Rule 219(e)," allowing defendants to take the evidence deposition and ordering the parties to reconvene on November 13, 2006, for submission and approval of defendants' bill of costs. On November 13, 2006, the court heard argument regarding defendants' motion for costs. It determined it needed additional information regarding the costs and plaintiffs needed additional time to respond to the bill of costs. Because the costs remained to be determined, the court discussed with the parties how it should structure an order granting the nonsuit and awarding costs. Plaintiffs informed the court they intended to move for a nonsuit even if they did not want to pay all the costs. Given this, the court suggested that it grant the nonsuit that day and leave only the question of the amount of costs open. Plaintiffs agreed the court's suggestion "sounds fair." Therefore, on November 13, 2006, the court entered an order stating that the parties agreed to dismissal of the action without prejudice, granting the voluntary dismissal, granting the court's award of costs and continuing the approval of costs in a specific amount until December 4, 2006. The court held two hearings on defendants' bill of the costs in December 2006. On January 17, 2007, after another hearing on the bill of costs, the court entered an order adopting and incorporating its prior findings regarding the motion to voluntarily dismiss and the award of costs, a "proposed findings of fact" submitted by defendants relating to the negative impact the court's decisions on the motions in limine had on 6

1-07-0724 plaintiffs' case and four additional findings the court made during the January 17 hearing, including the determination that plaintiffs' failure to notify the court or defense counsel earlier that Dale's medical condition might cause him to seek voluntary dismissal, and then to do so only after the court made rulings affecting the scope of permitted medical testimony, was "an even greater abuse within the meaning of Supreme Court Rule 219(e) than other sanctionable discovery violations found hereinabove." The court stated that it made all the findings in support of its award of costs under Rule 219(e). The court found defendants had submitted evidence adequate to establish that the costs they claimed under Rule 219(e) were reasonable and necessary and had been paid by defendants. It allowed Rule 219(e) costs "in the amount of $181, 256.52 as a condition of the Court's granting of Plaintiffs' motion for voluntary dismissal * * * as reflected in this Court's prior Orders dated October 27, 2006 and November 13, 2006." It ordered that plaintiffs' right to refile within one year of November 13, 2006, "is dependent on proof of payment to the Defendants of this $181,256.52 award prior to such refiling, and Defendants' corollary right to collect the award arises only if the Plaintiffs choose to exercise their right to refile within one year from the voluntary dismissal order entered on November 13, 2006, because Defendants will have received substantial value from their expenditures itemized in their Bill of Costs if Plaintiffs do not exercise their right to refile and the litigation is terminated." 7

1-07-0724 On March 27, 2007, we granted plaintiffs' motion seeking an extension of the time pursuant to Supreme Court Rule 303(d) (210 Ill. 2d R. 303(d)) within which to file their appeal of the January 17, 2007, motion. On April 10, 2007, plaintiffs filed their late notice of the appeal in the circuit court of the January 17, 2007, order. On October 16, 2007, plaintiffs moved in the circuit court to stay enforcement of the January 17, 2007, order awarding costs pending the outcome of this appeal. On October 22, 2007, the court granted the stay and ordered plaintiffs to deposit with the clerk of court the amount of the award, plus interest, prior to refiling. On October 26, 2007, plaintiffs deposited a check for $181, 256.52 with the clerk of court and on October 29, 2007, refiled their action. In Jones v. Chicago Cycle Center, No. 1-07-0724 (July 29, 2008) (unpublished order pursuant to Supreme Court Rule 23), we dismissed the appeal for lack of jurisdiction, finding the January 17, 2007, order awarding costs was not final and appealable on April 10, 2007, when plaintiffs filed their appeal. In supervisory order No. 107411, the Illinois Supreme Court directed that we vacate Jones v. Chicago Cycle Center, No. 1-07-0724 (July 29, 2008) (unpublished order pursuant to Supreme Court Rule 23), and address the appeal on its merits. We vacated the dismissal order on March 17, 2009, and heard oral argument on the case. During oral argument, defendants raised the issue of our lack of jurisdiction. The Illinois Constitution vests our supreme court with supervisory authority over all the lower courts of this state. Ill. Const. 1970, art. VI,

Download Jones v. Chicago Cycle Center.pdf