NO. 4-02-0353

JUSTICE STEIGMANN delivered the opinion of the court:

In November 2000, plaintiff, Randell L.D. Smith, fileda complaint against defendants, the Central Illinois RegionalAirport (Airport), the Prairie Aviation Museum, and thePantagraph, alleging that an annual air show sponsored andoperated by defendants (1) created a nuisance (count I), (2)constituted a trespass upon Smith's property (count II), and (3)amounted to an inverse condemnation of his property (count III). Count I of the complaint sought to enjoin defendants from operating the annual air show, and counts II and III sought to recoverdamages arising from the air show.

In February 2001, the trial court dismissed count IIIwith leave to amend and counts I and II with prejudice. In April2001, Smith brought an interlocutory appeal under Supreme CourtRule 307(a) (188 Ill. 2d R. 307(a)), challenging the court'sdismissal of count I.

Later in April 2001, Smith filed a motion to voluntarily dismiss count III. Following a May 2001 hearing, thetrial court denied Smith's motion. Smith appealed the court'sdenial of his motion, and this court dismissed the appeal forlack of jurisdiction (Smith v. Central Illinois Regional Airport,No. 4-01-0388 (January 30, 2002) (unpublished order under SupremeCourt Rule 23)).

After this court's mandate issued, Smith filed anamended motion to voluntarily dismiss count III. Following anApril 2002 hearing, the trial court denied the motion.

Smith appeals the trial court's denial of his motion tovoluntarily dismiss count III, and we affirm.

In November 2000, Smith filed a complaint againstdefendants, alleging in count III that the Airport's operation ofan annual air show amounted to an inverse condemnation of hisproperty.

In December 2000, defendants filed separate motions todismiss the complaint under section 2-615 of the Code of CivilProcedure (Code) (735 ILCS 5/2-615 (West 1998)). The Airport'smotion alleged, in pertinent part, that count III failed toallege sufficient facts to establish a claim for inverse condemnation. On February 27, 2001, the trial court (1) dismissedcount III with leave to amend within 60 days, and (2) dismissedcounts I and II with prejudice, upon finding that those claimswere preempted by federal statutory laws and regulations.

In April 2001, Smith brought an interlocutory appealunder Supreme Court Rule 307(a) (188 Ill. 2d R. 307(a)), arguingthat the trial court erred by dismissing count I of his complaint. In October 2001, this court affirmed the trial court'sjudgment in an unpublished order (Smith v. Central IllinoisRegional Airport, No. 4-01-0168 (October 1, 2001) (unpublishedorder under Supreme Court Rule 23)).

On April 12, 2001, while his appeal was still pending,Smith filed a motion to voluntarily dismiss count III. Followinga May 2001 hearing, the trial court denied Smith's motion.

Smith later filed a notice of appeal from the trialcourt's (1) February 2001 order dismissing count III with leaveto amend, and (2) May 2001 order denying his motion to voluntarily dismiss count III. In January 2002, this court dismissedthe appeal for lack of jurisdiction (Smith v. Central IllinoisRegional Airport, No. 4-01-0388 (January 30, 2002) (unpublishedorder under Supreme Court Rule 23)).

After this court's mandate issued, Smith filed anamended motion to voluntarily dismiss count III of his complaint. Following an April 2002 hearing, the trial court denied Smith'smotion as moot, upon finding that (1) the court had previouslydismissed Smith's complaint with leave to amend within 60 days inits February 27, 2002, order; and (2) Smith had failed to amendhis complaint within that time period. The court thus dismissedcount III with prejudice.

This appeal followed.

Smith argues that the trial court erred by denying hismotion to voluntarily dismiss count III without prejudice becausehe had an unfettered right to voluntarily dismiss that count,pursuant to section 2-1009(a) of the Code (735 ILCS 5/2-1009(a)(West 2000)). We disagree.

Section 2-1009(a) of the Code provides, in pertinentpart, that a plaintiff "may, at any time before trial or hearingbegins, *** dismiss his or her action or any part thereof as toany defendant, without prejudice" (735 ILCS 5/2-1009(a) (West2000)). That provision is subject to two qualifications: (1)when a previously filed defense motion could result in a finaldisposition of the cause of action if ruled upon favorably by thetrial court, the court may hear and decide that motion beforeruling on the plaintiff's motion for voluntary dismissal (735ILCS 5/2-1009(b) (West 2000)); and (2) when the circumstances ofthe case are such that dismissal under section 2-1009 woulddirectly conflict with a supreme court rule, the rule takesprecedence (Morrison v. Wagner, 191 Ill. 2d 162, 165, 729 N.E.2d486, 488 (2000)).

In this case, the trial court entered its February 2001written order dismissing count III of Smith's complaint withleave to amend within 60 days. Thus, Smith's April 2001 motionto voluntarily dismiss count III was a nullity because there wasno count III to voluntarily dismiss. Once the court dismissedcount III, Smith either could have amended that count or acceptedthe court's dismissal. See Cole v. Hoogendoorn, Talbot, Davids,Godfrey, & Milligan, 325 Ill. App. 3d 1152, 1155-56, 759 N.E.2d110, 113-14 (2001) (discussing a plaintiff's options followingthe trial court's dismissal with leave to amend). However, hecould not seek to voluntarily dismiss count III. Simply put, nomatter how unfettered the right to voluntarily dismiss one'sclaim, such a claim must exist before it can be dismissed. Accordingly, we conclude that the trial court did not err bydenying Smith's motion to voluntarily dismiss count III.

In so concluding, we acknowledge that the Fifth District Appellate Court in Bailey v. State Farm Fire & CasualtyCo., 137 Ill. App. 3d 155, 484 N.E.2d 522 (1985), reached theopposite conclusion. In that case, the plaintiff filed anamended complaint for declaratory judgment, and the defendantlater filed a motion to dismiss the complaint. The trial courtgranted the defendant's motion and gave the plaintiff leave toamend her complaint within 28 days. The defendant later filedanother motion to dismiss the plaintiff's complaint, allegingthat the plaintiff had failed to amend her complaint. Theplaintiff then filed a motion to voluntarily dismiss her complaint, which the court later granted. Bailey, 137 Ill. App. 3dat 157, 484 N.E.2d at 523-24. On appeal, the Fifth Districtupheld the trial court's judgment, upon concluding that (1) notrial or hearing had begun; and (2) the plaintiff had an absoluteright to voluntarily dismiss her complaint. Bailey, 137 Ill.App. 3d at 158-59, 484 N.E.2d at 525.

We decline to follow Bailey for two reasons. First,the Fifth District did not specifically address whether a trialcourt's dismissal with leave to amend rendered a subsequentmotion to voluntarily dismiss a nullity. In addition, inGibellina v. Handley, 127 Ill. 2d 122, 137, 535 N.E.2d 858, 865(1989), the supreme court implicitly criticized Bailey when itcited that case as an example of "an ever[-]increasing number ofplaintiffs [who] are using a section 2-1009 motion to avoid apotential decision on the 'merits' or to avoid an adverse rulingas opposed to using it to correct a procedural or technicaldefect." Similarly, in this case, Smith was attempting to use asection 2-1009 motion to avoid the trial court's ruling thatcount III did not state a claim for inverse condemnation, asopposed to using the motion as it was intended--to correct aprocedural or technical defect.

For the reasons stated, we affirm the trial court'sjudgment.

Affirmed.

McCULLOUGH, J., concurs.

COOK, J., dissents.

JUSTICE COOK, dissenting:

I respectfully dissent. I would reverse the trialcourt's judgment and remand for the entry of an order allowingplaintiff to voluntarily dismiss his cause of action.

"[T]he trial court may hear and decide a motion whichhas been filed prior to a section 2-1009 motion when that motion,if favorably ruled on by the court, could result in a finaldisposition of the case." (Emphasis in original.) Gibellina,127 Ill. 2d at 138, 535 N.E.2d at 866; 735 ILCS 5/2-1009(b) (West2000). Section 2-615 motions to dismiss (735 ILCS 5/2-615 (West2000)) generally do not result in a final disposition of thecase. "Applying the rule that leave to amend should be allowedunless it clearly appears that no set of facts can be proved thatwill allow the pleader to prevail on the cause of action ordefense asserted in the pleading, a dismissal without leave toamend would be improper in such a case." 3 R. Michael, IllinoisPractice