2021 IL App (1st) 190264-U
No. 1-19-0264 Order filed March 31, 2021 Sixth Division
NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1). ______________________________________________________________________________ IN THE APPELLATE COURT OF ILLINOIS FIRST DISTRICT ______________________________________________________________________________ THE VILLAGE OF WILMETTE, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County. ) v. ) No. L 1 430 129 ) 1618 SHERIDAN ROAD CONDO ) Honorable ASSOCIATION, ) James Allegretti, ) Judge, Presiding. Defendant-Appellee. ) ________________________________________________ ) MARSHALL SPIEGEL, MATTHEW SPIEGEL, AND ) MARSHALL SPIEGEL AS OWNER OF THE ) BENEFICIAL INTEREST OF CHICAGO TITLE LAND ) TRUST NO. 8002351713 ) ) Proposed Intervenors-Appellants. )
JUSTICE ODEN JOHNSON delivered the judgment of the court. Presiding Justice Mary Mikva and Justice Sheldon Harris concurred in the judgment.
ORDER
¶1 Held: The circuit court should have considered the prior filed petition to intervene before granting the motion for voluntary dismissal pursuant to section 2-1009 (735 ILCS 5/2-100 (West 2018)), nevertheless this court finds that even if the court had heard No. 1-19-0264
the petition to intervene first, it would have been denied and the motion for voluntary dismissal with prejudice would have been granted. Additionally, the circuit court did not err in denying the amended motion to reconsider and vacate because it did not misapply the law. We affirm.
¶2 Proposed intervenors Marshall Spiegel (Marshall), Matthew Spiegel, and Marshall Spiegel
as owner of the beneficial interest of Chicago Title Trust No. 8002351713 (Collectively Proposed
Intervenors) appeal the circuit court’s order that granted plaintiff the Village of Wilmette’s
(Village) oral motion to voluntarily dismiss with prejudice an ordinance violation against
defendant 1618 Sheridan Road Condominium Association (Association). Proposed intervenors
contend that the circuit court erred by: (1) denying the proposed intervenor’s amended petition to
intervene, (2) granting the Village’s oral motion to voluntarily dismiss with prejudice; and; (3)
denying the proposed intervenor’s motion to reconsider and vacate. For the following reasons, we
affirm.
¶3 BACKGROUND
¶4 The following facts were detailed by this court in a prior appeal involving the proposed
intervenors and the Association. Spiegel v. Hall1, 2020 IL App (1st) 190840-U. 2 The plaintiffs
were Marshall and the trustee of Chicago Title Trust No. 8002351713, while the defendant
consisted of several parties, namely: the 1618 Sheridan Condominium board members,
condominium owners, and their associates. Defendant, 1618 Sheridan, is a building that consists
of eight condominium units located in Wilmette, Illinois. Id. at ¶ 7. The condominium is managed
1 Hall was a Board member of the Association. 2 This case is relevant to the instant proceedings because the Village and Association both contend that the proposed intervenors were barred from bringing forth the amended petition to intervene based on res judicata. In Spiegel, this court held that the circuit court did not err in denying Marshall and the trustee’s complaint for failure to state a claim and denying leave to implead because they recycled the same allegations without stating a coherent cause of action. One of those allegations was a breach of fiduciary duty, which the proposed intervenors also raised in a proposed complaint attached to the amended petition to intervene in this case. -2- No. 1-19-0264
by the Association. Marshall, who is the owner of Unit 2 in said building, was once the self-
proclaimed president of the Association and has had a very litigious relationship with the
Association. 3
¶5 The instant litigation resulted from the Association’s failure to correct a water leak that
lasted for more than a year and damaged Marshall’s unit. Consequently, on November 15, 2017,
the Village issued a complaint naming the Association, through its attorney Michael Kim, as
defendants under case number L 1 430 129 4 alleging violation of section 304.2 of the International
Property Maintenance Code 2006 (the Maintenance Code) (adopted by the Village pursuant to the
Wilmette Village Code (Ch. 8 art. 1 section 8.3 (eff. Dec. 13, 2016)). The Association was cited
for allowing an active water intrusion into Marshall’s unit.5 However at some point before the
case was set for trial, the Village and Association reached an agreement to dismiss the case.
¶6 Upon learning that the Village planned to voluntarily dismiss its complaint, Marshall filed
a petition to intervene on July 30, 2018, and requested permission to file a proposed complaint that
was attached to his petition. While the Village stated it was dismissing the matter because the
Association made the necessary repairs, Marshall contended that the repairs were insufficient and
had not yet been tested by cold weather and heavy rainfall. The petition alleged that Marshall
should be allowed to intervene as of right because he would be affected by the dismissal; he did
not believe the repairs had remedied the issue; he sought remedial and money damages; and his
3 The prior cases involved are 15 L 10817, 16 L 3564, and 15 CH 1882; they were all consolidated into 15 L 10817. 4 This case arose from a citation issued by the Village against the Association for a violation of a Village ordinance code. Village ordinances are heard at the Skokie Courthouse in the 2nd Municipal District before a Cook County judge. The circuit court also assigned this matter the docket number of 16 L 005572. 5 The citation specifically stated, “[a]ctive water intrusion into unit #2. Situation has been on-going for over a year.” -3- No. 1-19-0264
interests differed from those of the Village. Therefore, Marshall prayed for permissive intervention
alleging that there were questions of fact or law that existed.
¶7 Marshall’s proposed complaint alleged a breach of fiduciary duty. Marshall argued that,
based on The Declaration of Condominium Ownership and the Illinois Condominium Act, the
Association was responsible for the “operation, care, upkeep, maintenance, replacement, and
improvement of Common Elements.” The common elements included the outside flashing and
covering of the structural concrete of the building, which includes the southwest corner of
Marshall’s unit. Section 304.2 of the Maintenance Code mandates that all joints “between the
building envelope and the perimeter of windows, doors, and skylights shall be maintained weather
resistant and watertight.” Marshall contended that, according to “an assessment of experts,” water
from the common elements was leaking into his unit6 and therefore the Association was
responsible.
¶8 Marshall further alleged the Association’s refusal to make any repairs to stop the leaking
caused dangerous levels of mold resulting in removal of parts of the floor in his unit. He also had
mold remediation work done to his unit and was unable to use the room where the water damage
had occurred. As a result of the Association’s alleged breach of its fiduciary duty to maintain and
repair the common elements, Marshall sought a court order compelling the Association to do the
repair work, and awarding compensatory damages exceeding $50,000, attorney fees, costs, and
punitive damages.
¶9 On September 4, 2018, an amended petition to intervene was filed by the proposed
intervenors instead of Marshall. The petition stated that the proposed intervenors were bringing
this action because the Village sought to dismiss the case against the Association who took years
6 The complaint does not detail who the experts were, or the specific assessments made. -4- No. 1-19-0264
to address the water leaking into Marshall’s unit and still had not refunded him for damages. The
proposed intervenors sought leave to intervene as a matter of right and for permissive intervention
for the same reasons alleged in the initial petition to intervene.
¶ 10 The proposed intervenors attached the affidavit of Matthew Foster, a registered Illinois
architect, to the amended petition to intervene. On September 1, 2018, Foster inspected Marshall’s
unit and two front columns at the location, including the one that leaked into Marshall’s unit. Foster
also observed the repairs that had been made by the Association or their agents and opined that
they were not in compliance with industry standard. Specifically, the column in question did not
have a drainage or weep hole and the slope of the columns around the building were not made in
the correct direction. Foster concluded that, based on his experience and with a reasonable degree
of certainty, the repairs were inadequate, and water would again commence to seep into Marshall’s
unit, causing further water damage, mold, rust, and other problems.
¶ 11 On September 6, 2018, the Association filed a motion in opposition to the proposed
intervenor’s amended petition to intervene. The Association argued the request was untimely, the
claims raised were barred by res judicata, and the proposed intervenors lacked the standing to
enforce the laws of the Village. The Association asserted that the proposed intervenors were well-
aware of their potential claims long before, but only sought intervention when they learned that
the Village planned to dismiss the matter. This is evidenced by Marshall’s filings dating back to
September 2017 in circuit court of Cook County case number 15 L 10817. The Association alleged
that the consolidated complaint in case number 15 L 10817 7 contained 10 claims that involved the
same alleged Maintenance Code violation: failure to maintain or repair the building to prevent a
leak. According to the Association, these claims were already previously denied by the circuit
7 Docket number 15 L 10817 was consolidated with 16 L 3564 and 15 CH 1882. -5- No. 1-19-0264
court when it dismissed Marshall and the land trust’s fourth amended complaint and denied leave
to file a fifth amended complaint: which essentially barred the proposed intervenors from raising
those claims again. Lastly, the Association alleged that the statutory authority for the Maintenance
Code enforcement lied solely with the municipality and that the proposed intervenors had not
provided any authority to support otherwise.
¶ 12 On September 7, 2018, the Village made the oral motion to voluntarily dismiss and stated
that the problem was resolved. 8 On the same day, the proposed intervenors filed an amended
petition to intervene, alleging that the problem had not in fact been resolved. After argument, the
circuit court granted the Village’s oral motion to dismiss, while denying the proposed intervenor’s
petition. The Village drafted the order, which stated that the matter was dismissed with prejudice,
citing no authority for the basis for the dismissal. The proposed intervenors objected to the order
stating that pursuant to section 2-1009 (735 ILCS 5/2-1009 (West 2018)), a voluntary dismissal
could not be with prejudice.
¶ 13 On the morning of October 9, 2018, the proposed intervenors filed a motion to vacate.
Later that day, they filed an amended motion to reconsider and vacate the September 7, 2018, order
granting the motion to dismiss and denying the motion to intervene. The proposed intervenors
alleged that the Village sought to orally dismiss with prejudice, without notice, and in retaliation
for the petition to intervene. Specifically, they alleged that the motion to dismiss should not have
been granted because 1) the Village did not provide advanced notice, in violation of circuit court
of Cook County Rule 2.1 (Cook Co. Cir. Ct. R. 2.1(a)) (eff. Aug. 21, 2000)); 2) section 2-1009 of
the Code of Civil Procedure (Code) (735 ILCS 5/2-1009 (West 2018)) does not permit dismissals
with prejudice and only provides for dismissal without prejudice; 3) res judicata did not apply here
8 The Village did not orally state any statutory authority for their motion. -6- No. 1-19-0264
because at the time of filing the amended petition to intervene, their consolidated appeal of the
other court’s denial of a motion to file an amended complaint was still pending, and thus, there
was not a final judgment on the merits of the other case; and, 4) where a tort was continuous, as
here with the continued leakage into Marshall’s unit, res judicata may not apply, citing Rein v.
David A. Noyes & Co., 172 Ill. 2d 325, 334 (1996) as support. The proposed intervenors finally
alleged that the circuit court erred in denying intervention because they met all of the statutory
requirements: (1) the petition was filed as soon as the proposed intervenors knew that the Village
would move to dismiss the matter and was therefore timely; (2) the Village and the Association
were not adequately representing the proposed intervenor’s interest, and; (3) the proposed
intervenor’s ownership interest and health were sufficient to establish an interest that would allow
them to intervene.
¶ 14 On November 16, 2018, the Association filed a response seeking a denial of the proposed
intervenor’s amended motion to reconsider and vacate order. The Association pointed out that the
proposed intervenors provided no reason for the reconsideration and merely realleged what was in
the initial petition for intervention. The Association argued that: (1) a right to private action did
not equate to a right to intervene; (2) the proposed intervenors were not parties to the case and
therefore were not required to be notified; and (3) the proposed intervenors provided no legal
authority that prohibited the Village from voluntarily dismissing a matter with prejudice.
Regarding res judicata, proposed intervenors were barred from raising those claims stemming
from the water intrusion because they had brought forth those claims in another action. In
summation, the Association argued that the proposed intervenors failed to provide sufficient
grounds to vacate the dismissal.
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¶ 15 On December 7, 2018, the proposed intervenors filed a reply in support of its amended
motion to reconsider and vacate the September 7, 2018, order. In addition to restating the
allegations and arguments contained in the amended petition to intervene, the proposed intervenors
requested that the trial court also conduct a hearing regarding whether the Association had properly
remedied the water leak issues and require the Association to undertake a permanent remedy to
fully comply with the Maintenance Code.
¶ 16 At the hearing held on January 11, 2019, the circuit court noted that it had looked at
everything in the case including the proceedings from the “99-count complaint downtown.” Based
thereon, the circuit court determined that the Village had an absolute right to dismiss its own case.
Nothing the circuit court read suggested that the proposed intervenors had a right to “step into the
prosecutor’s shoes” and prosecute the matter or compel the Village to proceed with the case. If the
proposed intervenors wanted to continue with a private action, that was their choice. However, the
proposed intervenors could not come and take over a Maintenance Code violation case and
transform it into something else. The circuit court found that the proper time to intervene was
before the Village decided to dismiss the matter: but even then, it had the right to dismiss it.
¶ 17 The proposed intervenors questioned the circuit court regarded the dismissal with
prejudice. The circuit court found that the Village had determined it was done with the case and
that meant a dismissal with prejudice; it did not preclude them from refiling in the future. The
proposed intervenors argued that the broader issue would be a matter of res judicata if indeed the
Village attempted to refile the same action. The proposed intervenors argued that the issue was
broader than res judicata. In response, the circuit court stated “in that case, all of this” was already
raised in the prior proceedings by the Chancery Division under the consolidated case number 15
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L 10817. For the aforementioned reasons, the circuit court denied the proposed intervenors’
motion to reconsider and vacate.
¶ 18 The proposed intervenors filed a notice of appeal on February 6, 2019. On November 5,
2019, the circuit court granted the proposed intervenors’ motion to file a bystander’s report.
¶ 19 ANALYSIS
¶ 20 On appeal, the proposed intervenors contend that the circuit court erred by: (1) denying
their amended petition to intervene; (2) granting the Village’s oral motion to voluntarily dismiss
with prejudice; and (3) denying the proposed intervenors’ motion to reconsider and vacate. We
will first review the proposed intervenors’ claim regarding denial of their amended petition to
intervene because the issue raised concerns the timing of the circuit court’s decision and the impact
thereof.
¶ 21 A. Amended Petition to Intervene
¶ 22 The proposed intervenors contend that section 5/2-408 of the Code (735 ILCS 5/2–408
(West 2018)) gives them the right to intervene because 1) the Village did not adequately represent
their interests by agreeing to voluntarily dismiss the matter even though the repairs were
insufficient to cure the defect, 2) the amended petition to intervene was timely filed, once they
learned of the Village’s intent to dismiss the suit against the Association, and 3) their interest in
enforcing the citation is greater than that of the Village because Marshall’s health and safety are
at issue due to the mold and wet floors that have resulted from the water leakage. The proposed
intervenors assert that they have established all the requirements to intervene as a matter of right
and the circuit court erred when it denied the petition. Conversely, the Village contends that the
proposed intervenors’ amended petition to intervene was not timely, because the case was open
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for nearly a year before the filing, and that the proposed intervenors failed to satisfy any of the
requirements to intervene as of right.
¶ 23 1. Standard of Review
¶ 24 The parties disagree regarding which standard of review this court should apply when
reviewing a circuit court’s denial of intervention as of right. Relying on Flood v. Richey, 2016 IL
App (4th) 150594 ¶ 15, the Village and the Association contend that the standard of review of
abuse of discretion is proper. See People ex rel. Birkett v. City of Chicago, 202 Ill. 2d 36, 58
(2002). They further state that the denial of leave to intervene as of right and permissive
intervention should not be disturbed absent an abuse of discretion, citing In re Application of the
County Collector of DuPage County for Judgment for Delinquent Taxes for the Year 1992, 181
Ill. 2d 237 (1998) and Flood, 2016 IL App (4th) 150594 ¶ 15, respectively.
¶ 25 To the contrary, the proposed intervenors contend that the standard of review for denying
leave to intervene as of right is de novo, citing Madison Two Associates v. Pappas, 371 Ill. App.
3d 352, 354 (2007). In Madison Two Associates, this court reviewed de novo whether the circuit
court properly interpreted the statute when it denied leave to intervene as of right, without applying
the relevant factors. We ultimately affirmed the trial court by holding that The Property Tax Code
(35 ILCS 200/23–30 (West 2002)), was not intended for the proposed intervenors of that case to
ever be a party. Id.
¶ 26 Here, the circuit court denied the proposed intervenor’s petition without addressing the
requirements for establishing intervention. According to the bystander’s report, the circuit court’s
decision was based on the Village’s motion to voluntarily dismiss (2-1009) the matter and not
based on an interpretation of section 2-408. Thus, because the circuit court based its decision on
interpretation of the statute, section 2-1009, a question of law exists. Hence, we agree with the
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proposed intervenors, albeit for different reasons, that the correct standard of review is de novo.
Madison Two Associates, 371 Ill. App. 3d at 354.
¶ 27 2. Timing of the Circuit Court’s Decision
¶ 28 The circuit court granted the Village’s voluntary motion to dismiss pursuant to section 2-
1009, with the agreement of the Association, prior to addressing the proposed intervenor’s
amended petition to intervene. The proposed intervenors contend that since the amended petition
to intervene was filed first, the oral motion to voluntarily dismiss was precluded. The proposed
intervenors cite to In re Marriage of Black, 133 Ill. App. 3d 59, 65 (1985), which held that an
intervenor has the right to claim the benefit of the original suit and a motion to dismiss cannot
defeat such a right after the filing and notice of the intervenor. Similarly, here, the Village made
its oral motion to voluntarily dismiss after notice and filing of the proposed intervenor’s petition
to intervene. Thus, we must agree that the circuit court should have decided the motion to
intervene prior to granting the dismissal.
¶ 29 The Village, however, argues that the circuit court was not prohibited from granting the
motion to dismiss pursuant to section 2-1009 (735 ILCS 5/2-1009 (West 2018)) citing Gibellina
v. Handley, 127 Ill. 2d 122, 138 (1989). In Gibellina, this court held that a circuit court has the
discretion to hear a motion pursuant to section 2-1009, even if there are existing motions filed
before it. Id. We have found no case, however, where this court has applied this rule to a motion
to intervene. Since 1904, our courts have held that “an intervener has the right to claim the benefit
of the original suit, and to prosecute it to judgment. Such right cannot be defeated by the dismissal
of the suit by the plaintiffs after the filing of the petition and notice thereof to such plaintiffs.”
Gage v. Cameron (1904), 212 Ill. 146, 171–72, 72 N.E. 204. Accordingly, the proposed
intervenor’s complaint requires review per section 2-408 prior to granting a subsequently filed
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motion for voluntary dismissal. Thus, we find that the circuit court erred in granting the motion
to dismiss pursuant to section 2-1009 prior to deciding the amended petition to intervene, which
we will decide herein.
¶ 30 3. Standing and Res Judicata
¶ 31 The Association and the Village both contend that the proposed intervenors have no
standing to intervene. The parties point out that there is no authority that would allow for the
proposed intervenors to step into the shoes of prosecutor and a violation must be brought in the
name of the corporate municipality. The Village contends that the proposed intervenors fail to cite
to any authority that allows a proposed intervenor the right to step in as a prosecutor for a
municipality.
¶ 32 Standing is an issue of law that this court reviews de novo. Powell v. Dean Foods Co., 2012
IL 111714, ¶ 35. “The doctrine of standing ensures that issues are raised only by parties having a
real interest in the outcome of the controversy.” Id. “Standing is shown by demonstrating some
injury to a legally cognizable interest.” Id.
¶ 33 The facts in this case are analogous to the facts in City of Chicago where a proposed
intervenor, who was a condominium owner, appealed the decision of the circuit court denying
leave to intervene. City of Chicago v. John Hancock Mut. Life Ins. Co., 127 Ill. App. 3d 140, 142
(1984). In that case, the city of Chicago filed a building code violation action against the owner
and operators of a condominium. Id. This court determined that the circuit court erred in denying
the petition to intervene because the claim of inadequate representation was reasonable, the
statutory requirements of timeliness and sufficiency of interest were met. Id. at 148. This court
found that the circuit court should have allowed them to intervene because of the interest that the
proposed intervenors had exceeded that of the city. Id. at 170. Similarly, in this case, the proposed
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intervenor’s have a real interest that has been shown through the damage that has occurred on
Marshall’s property. Powell, 2012 IL 111714, ¶ 35. The proposed intervenors have established
that they have standing in the instant case. Id.
¶ 34 Next, the parties contend that proposed intervenors’ amended petition to intervene was
barred due to res judicata. The Association argues, and the Village has adopted its argument, that
the circuit court’s involuntarily dismissal, pursuant to 735 ILCS 5/2-615 (West 2016), of the
proposed intervenor’s complaint in the associated consolidated case (15 L10817), acted as an
adjudication of the merits. The proposed intervenors’ amended petition to intervene attached a
complaint which contained a claim of breach of fiduciary duty, which was also previously raised
in the associated consolidated case (15 L10817).
¶ 35 Under the doctrine of res judicata, “a final judgment on the merits rendered by a court of
competent jurisdiction bars any subsequent actions between the same parties or their privies in the
same cause of action.” Hudson v. City of Chicago, 228 Ill. 2d 462, 467 (2008). The doctrine
provides for “not only what was actually decided in the first action but also whatever could have
been decided.” Id. In order for res judicata to apply, the following must occur: “(1) a final
judgment on the merits rendered by a court of competent jurisdiction; (2) an identity of cause of
action exists; and (3) identity of parties or their privies.” Id.
¶ 36 The proposed intervenors attached a complaint that raised a claim of breach of fiduciary
duty that was raised previously amongst the same parties and their privies. Hudson, 228 Ill. 2d at
467. A final adjudication of the merits occurred in the matter; namely the circuit court’s
determination, in consolidated case number 15 L 10817, that Marshall and the trustee failed to
state a cause of action in their fourth amended complaint, which was affirmed on appeal. Seigel,
2020 IL App (1st) 190840-U, ¶ 17. The proposed intervenors are therefore barred from raising this
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claim. Even if the proposed intervenors contend that the complaint makes a claim for breach of
fiduciary duty that in some way differs from the previously raised claim, they are still barred
because, as with Hudson, the claim could have been brought and decided in the previous case.
Lastly, it is worth noting that we have not addressed and make no findings regarding res judicata
as to the remaining allegations of the proposed complaint as they were not raised here.
¶ 37 4. Permissive Intervention- Common Fact
¶ 38 The proposed intervenors contend that they should have been allowed to permissively
intervene based on section 2-408(b) (735 ILCS 5/2-408(b) (West 2018)) because there was a
common fact as to whether the Association sufficiently complied with the Village Maintenance
Code to warrant dismissal of the case. Since this issue involves a question of fact and the relevant
statute grants the court discretion, the standard of review for permissive intervention remains abuse
of discretion. People ex rel. Birkett, 202 Ill. 2d at 58.
¶ 39 Section 2-408(b) states:
“(b) Upon timely application anyone may in the discretion of the court be permitted
to intervene in an action: (1) when a statute confers a conditional right to intervene; or (2)
when an applicant's claim or defense and the main action have a question of law or fact in
common.” 735 ILCS 5/2-408(b) (West 2018)
¶ 40 The Village contends that there was no common fact that existed based on the allegations
contained in the proposed complaint that was attached to the amended petition to intervene. The
proposed intervenors insist that the complaint is not relevant for this action. This court disagrees,
as we have held that permissive intervention may be denied if issues would be injected that are
new and complicated. Chicago, Milwaukee, St. Paul & Pac. R. Co. v. Harris Trust and Sav. Bank,
63 Ill. App. 3d 1012, 1022 (1978). The circuit court was presiding over a single Maintenance Code
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violation, however, the proposed intervenors’ proposed complaint, which alleged a breach of a
fiduciary duty, was beyond the scope of the initial case. Since an entirely different action from the
Maintenance Code violation was proposed, it cannot be said that a common fact existed. Id.
Consequently, we find that the circuit court did not abuse its discretion when it denied the proposed
intervenors request for permissive intervention.
¶ 41 B. Motion to Dismiss
¶ 42 After having determined pursuant to section 2-408 that even if the petition to intervene was
heard first, it should have been denied, we now address whether the voluntary motion to dismiss
should have been granted. The proposed intervenors first contend that the circuit court erred in
granting the voluntary motion to dismiss because the Village did not provide notice to them or the
Association and no written motion was filed. Secondly, the dismissal was defective because it
failed to require the Village to pay costs as required by section 2-1009(a) (735 ILCS 5/2-1009
(West 2018)). Lastly, the proposed intervenors assert that pursuant to section 2-1009(a), a
voluntary dismissal cannot be made with prejudice.
¶ 43 It is worth noting that the Village and Association both insist that the motion to dismiss
was not brought pursuant to section 2-1009(a). Nevertheless, neither they nor the record state any
other statutory authority in support of the motion to dismiss. Thus, despite the Village and
Association’s contention to the contrary, we agree with the proposed intervenors that voluntary
dismissal by a plaintiff is governed by section 2-1009. Vaughn v. Northwestern Memorial Hosp.,
210 Ill. App. 3d 253, 257 (1991). Section 2-1009 provides in pertinent part:
“Voluntary dismissal.
(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
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her action or any part thereof as to any defendant, without prejudice, by order filed in the
cause.
(b) The court may hear and decide a motion that has been filed prior to a motion filed under
subsection (a) of this Section when that prior filed motion, if favorably ruled on by the
court, could result in a final disposition of the cause.
(c) After trial or hearing begins, 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.
(d) A dismissal under subsection (a) of this Section does not dismiss a pending
counterclaim or third party complaint * * * ” 735 ILCS 5/2-1009 (West 2018).
The three requirements for a section 2-1009(a) motion are: (1) no trial or hearing shall have begun;
(2) costs must be paid; and (3) notice must be given to each party who has appeared. Vaughn, 210
Ill. App. 3d at 257.
¶ 44 The question here is one of compliance with the relevant statute: hence, a question of law.
Questions of law are reviewed de novo. Wexler v. Wirtz, 211 Ill. 2d 18, 23 (2004).
¶ 45 Upon review and application to the facts at hand, we find that the circuit court did not err
in granting the voluntary motion to dismiss pursuant to section 2-1009(a) even though the movant
did not give notice. A plain reading of the statute dictates that notice shall be given to each party
that has appeared. Here, the proposed intervenors were not parties to the case when the circuit
court granted the Village’s motion to dismiss. Therefore, the proposed intervenors were not
entitled to notice. Vaughn, 210 Ill. App. 3d at 257. With regard to the Village not providing notice
to the Association, the proposed intervenors have no standing to make this argument on behalf of
the Association. Our court have routinely held that objections to notice cannot be made by or on -16- No. 1-19-0264
behalf of another party. See JPMorgan Chase Bank, et als. v. Jones and Zataunia 2019 Ill. App.
(1st) 181909.
¶ 46 Lastly, the circuit court’s September 7, 2018, order provided that all parties were to pay
their own costs; which, the proposed intervenors allege was an error. Consistent with our
conclusion regarding the notice provision, it is our contention that the costs are also limited to
those parties that have appeared. Further, our review of the record reveals that there was no
evidence of costs being due: the proposed intervenors did not even allege a specific amount of
costs that they believed were due. As such, we cannot accept as true, mere conclusions
unsupported by any legal authority. Tyrka v. Glenview Ridge Condominium Ass’n, 2014 IL App
(1st) 132762, ¶ 39.
¶ 47 Next, proposed intervenors contend that the motion to dismiss was entered in error because
it was entered with prejudice. This court has readily held that a voluntary motion to dismiss
pursuant to section 2-1009 may be with prejudice. See Douglas v. Walter, 147 Ill. App. 3d 1010,
1073 (1986). Therefore, the circuit court did not err in granting the motion to dismiss with
prejudice.
¶ 48 C. Amended Motion to Reconsider and Vacate
¶ 49 The proposed intervenors contend that the circuit court erred in denying their amended
motion to reconsider and vacate the September 7, 2018, order. The proposed intervenors’ motion
alleged that the circuit court misstated the law when it stated that the Village had an “absolute
right” to dismiss this case. The proposed intervenors contend that because they filed a petition to
intervene, the Village did not have an absolute right to voluntarily dismiss this case. The proposed
intervenors’ motion further alleged that the trial court further erred and misapplied the law when
it granted the dismissal because it did not make sure that the Village satisfied all of the notice
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requirements pursuant to section 2-1009 (735 ILCS 5/2-1009 (West 2018)). Lastly, the proposed
intervenors’ motion alleged that the circuit court misapplied the law when it granted the dismissal
with prejudice.
¶ 50 The parties disagree regarding which standard of review this court should apply. The
Association contends that the proposed intervenor’s have introduced new matters which require
that the court utilize an abuse of discretion standard of review. Liceaga v. Baez, 2019 IL App
(1st) 181170, ¶ 26. However, here, the proposed intervenors allege that the circuit court
misstated the law, which requires a de novo standard of review. Id. We agree with the proposed
intervenors that the standard of review is de novo because the basis of their motion was that there
was a misstatement of existing law. Horlacher v. Cohen, 2017 IL App (1st) 162712, ¶ 80.
¶ 51 “[A] motion to reconsider is to bring to the court's attention newly discovered evidence
that was not available at the time of the hearing, changes in the law or errors in the court's previous
application of existing law.” Neighborhood Lending Services, Inc. v. Callahan, 2017 IL App (1st)
162585, ¶ 26. Absent the contention that proper notice was not given to the Association, we have
previously discussed the remaining contentions herein. Therefore, we will only discuss the issue
of whether the circuit court misapplied the law regarding notice to the Association.
¶ 52 When a plaintiff seeks to file a motion to dismiss pursuant to section 2-1009, notice is
required by Cook County Rule 2.1 (Cook Co. Cir. Ct. R. 2.1(a) (eff. Aug. 21, 2000)), which states,
in pertinent part:
“(a) Notice required—Except in actions appearing on the daily trial call or during the
course of trial, written notice of the hearing of all motions shall be given to all parties who
have appeared * * *” Cook Co. Cir. Ct. R. 2.1(a) (eff. Aug. 21, 2000).
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Although the proposed intervenors contend that proper notice was not served on the Association,
the bystander report indicates that the Association and the Village agreed that the case should be
dismissed. This court has held that when the defendant has knowledge of the motion and is not
prejudiced by a lack of notice, a voluntary motion to dismiss will not be reversed based on the
plaintiff’s failure to strictly comply with the requirements of section 2-1009. Valdovinos v. Luna-
Manalac Medical Center, Ltd., 328 Ill. App. 3d 255, 267-68 (2002). Defendant, the Association,
has not alleged that it was prejudiced by this dismissal. Accordingly, the circuit court did not err
when it denied the motion to reconsider.
¶ 53 The moving party has the burden of establishing sufficient grounds for vacating the
judgement. Standard Bank and Trust Co. v. Madonia, 2011 IL App (1st) 103516, ¶ 8. This court
must determine whether the circuit court’s ruling denying the motion was a fair and just result,
which did not deny the moving party of substantial justice. Id. The standard of review for this issue
is abuse of discretion. Id. An abuse of discretion occurs when the trial court acts arbitrarily without
judgement or its decision exceeds the bounds of reason and ignores principles of law. Id. Based
on our review of the record, we find that the circuit court’s decisions were not arbitrary and did
not ignore principles of law; case law upholds its findings. Thus, an abuse of discretion has not
occurred, and the proposed intervenors have not shown sufficient grounds for vacating the
judgment of the circuit court.
¶ 54 CONCLUSION
¶ 55 In summary, we conclude that while the circuit court did not decide the petition to intervene
prior to granting the Village’s oral motion to voluntarily dismiss, such error was harmless where
the petition to intervene should have still been denied had it been heard first. Further, the dismissal
with prejudice was not improper where such motion was made by agreement of the parties.
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¶ 56 The judgment of the circuit court is affirmed.
¶ 57 Affirmed.
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