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"The plaintiff may, at any time before trial or hearing begins, upon notice to each partywho has appeared or each such party's attorney, and upon payment of costs, dismiss his orher action or any part thereof as to any defendant, without prejudice, by order filed in thecause." 735 ILCS 5/2-1009(a) (West 1998).

Whenever possible, a spouse's loss of consortium claim should be joined with theimpaired spouse's cause of action. Brown, 104 Ill. 2d at 35. Unless the deprived spouse canprove facts demonstrating why joinder with the impaired spouse was not possible, the loss ofconsortium action must be dismissed. Brown, 104 Ill. 2d at 35. Joinder is mandatory because"[j]oinder of these related claims will also reduce litigation expenses for the parties, conservejudicial time and resources, and contribute a bit to the reduction of court congestion." Brown,104 Ill. 2d at 35.

In adopting the joinder rule, the Brown court added Illinois to the steadily increasingnumber of jurisdictions that had similar joinder rules. Brown, 104 Ill. 2d at 35. Those foreignjurisdictions have interpreted their mandatory joinder rule as requiring the joinder of the loss ofconsortium claim with the underlying action through the conclusion of the joint action. See, e.g.,Hopson v. St. Mary's Hospital, 176 Conn. 485, 494, 408 A.2d 260, 264 (1979) (the joinder of theloss of consortium claim with the physical injury claim before a single trier of fact minimizes thedanger of improper verdicts); Deems v. Western Maryland Ry. Co., 247 Md. 95, 109, 231 A.2d514, 522 (1967) (the danger of duplicative awards is minimized if the consortium and injuryactions are regarded as a single right of action, to which both husband and wife are parties, inwhich only a single, joint verdict is allowed); Thill v. Modern Erecting Co., 284 Minn. 508, 514,170 N.W.2d 865, 869 (1969) (to guard against double recovery, a wife shall have her loss ofconsortium action only if it is joined for trial with the husband's own action for his injury againstthe same defendant).

Section 2-1009(a) of the Code gives plaintiffs "an unfettered right to voluntarily dismisstheir claims without prejudice, upon proper notice and payment of costs, 'at any time before trialor hearing begins.'" Morrison v. Wagner, 191 Ill. 2d 162, 165 (2000), quoting 735 ILCS 5/2-1009(a) (West 1998). Section 2-1009 is subject however, to the two qualifications: where apreviously filed defense motion could result in a final disposition of the cause of action if ruledupon favorably by the court, the court has the discretion to hear and decide that motion beforeruling on the motion for voluntary dismissal; and where the circumstances of the case are suchthat dismissal under section 2-1009 would directly conflict with a specific rule of the IllinoisSupreme Court, the terms of the rule take precedence. Morrison, 191 Ill. 2d at 165. Moreover,section 2-1009 does not automatically immunize a plaintiff against the bar of res judicata or anyother legitimate defenses a defendant may assert in response to the refiling of voluntarilydismissed counts. Rein v. David A. Noyes & Co., 172 Ill. 2d 325, 342-43 (1996). To allowsection 2-1009 to immunize plaintiffs against the defendants' defenses would impair judicialeconomy and defeat the public policy underlying res judicata. Rein, 172 Ill. 2d at 343.

Moises contends on appeal that the mandatory joinder requirement set forth in Brownrequires only that the loss of consortium action and the underlying action be joined at the time offiling. He argues that because our supreme court in Brown did not expressly declare that bothcauses of action must be tried together, the trial court erred when it dismissed the independentloss of consortium action.

The parties have not identified, nor has our research discovered, any Illinois case lawdiscussing the specific issue raised by Moises. However, we are compelled to reject theargument advanced by Moises because its adoption would constitute a deviation from the courseour supreme court, after thorough consideration, has set regarding the management of loss ofconsortium actions. See Brown, 104 Ill. 2d at 35-36. Although Moises is correct that Browndoes not explicitly state the loss of consortium action and the underlying action must be triedtogether, we believe such a requirement is presumed. The Brown court clearly articulated itsbelief that the mandatory joinder requirement was needed to eliminate the double recoveryproblems associated with loss of consortium claims, to reduce litigation expenses, to conservejudicial time and resources and to reduce court congestion. Brown, 104 Ill. 2d at 35. Limitingthe joinder rule as Moises proposes would erode the policy considerations inherent in section 13-203 of the Code (735 ILCS 5/13-203 (West 1998)) and amount to an unwarranted departure fromthe supreme court's guidance. Brown, 104 Ill. 2d at 35. If the reading of Brown urged by Moiseswere to be accepted, deprived spouses would be free to dismiss and later refile their loss ofconsortium claims, provided the claim and the underlying action were joined at the originalfiling. Such practice would necessarily lead to increased litigation costs, demand on limitedjudicial time and resources and potential for double recovery that our supreme court hasdetermined to avoid. See Brown, 104 Ill. 2d at 35.

We find, therefore, that the trial court correctly ruled Moises had not complied with themandatory joinder requirement and that dismissal of his independent loss of consortium actionwas proper.

Moises's second contention on appeal is that the trial court's erroneous interpretation ofthe mandatory joinder rule violates section 2-1009 of the Code, which grants plaintiffs anabsolute right to voluntarily dismiss their claims and refile them at a later date. Moises arguesthat as he was allowed to voluntarily dismiss his loss of consortium claim, he now has anabsolute right to refile his action.

The reasoning in Rein v. David A. Noyes & Co., 172 Ill. 2d 325 (1996), is instructive toour resolution of this issue. In Rein, after the trial court's section 2-619 dismissal of therescission counts in the plaintiffs' complaint, the plaintiffs voluntarily dismissed their commonlaw counts pursuant to section 2-1009. When the plaintiffs subsequently refiled their commonlaw counts, the trial court dismissed the action on the basis of res judicata and the statute oflimitations. In affirming, our supreme court stated that the grant of the plaintiffs' section 2-1009voluntary dismissal motion should not be interpreted as immunizing the plaintiffs against anylegitimate defenses the defendants might later raise when the dismissed counts were refiled. Rein, 172 Ill. 2d at 342.

As in Rein, Anna and Moises had a multiple-count action in Zuniga I. On June 8, 1999,the day Zuniga I was scheduled for trial, Anna and Moises voluntarily dismissed their loss ofconsortium claim and proceeded to trial on the two remaining negligence counts. The juryreturned a verdict in favor of Anna, who subsequently signed a release and satisfaction ofjudgment. Less than one month after the release was executed, Moises refiled his loss ofconsortium action. An action refiled pursuant to section 2-1009 is vulnerable to any legitimatedefenses raised by a defendant. See Rein, 172 Ill. 2d at 342. Brown mandates that absent proofof facts by the deprived spouse demonstrating why the joinder of the related actions was notpossible, the independent loss of consortium action must be dismissed. Brown, 104 Ill. 2d at 35. Here, Moises refused to set forth any reasons why joinder in the underlying action was notpossible, despite requests by the trial court to do so.⁽¹⁾ As discussed above, we conclude thatBrown's mandatory joinder rule extends beyond the mere filing of the action. Therefore, we findsection 2-1009 does not bar defensive application of the mandatory joinder rule. See Rein, 172Ill. 2d at 342-43.

For the reasons set forth above, the judgment of the trial court is affirmed.

Affirmed.

HARTMAN, P.J., and SOUTH, J., concur.

1. At the hearing on defendants' motion to dismiss the loss of consortium claim, counselfor Moises stated the consortium claim was voluntarily dismissed "[f]or a reason that I am not atliberty to discuss with this court."