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Docket No. 95593-Agenda 31-September 2003.
RANDELL L.D. SMITH, Appellant, v. CENTRAL ILLINOIS REGIONAL AIRPORT et al.,Appellees
Opinion filed November 20, 2003.

JUSTICE FREEMAN delivered the opinion of the court:

This appeal arises from the circuit court's denial of plaintiff's motionto voluntarily dismiss count III of a multicount complaint. The appellatecourt affirmed (335 Ill. App. 3d 1089), and we granted plaintiff leave toappeal (177 Ill. 2d R. 315). We reverse and remand the matter to thecircuit court for further proceedings.

Background

On November 22, 2000, plaintiff, Randell L.D. Smith, filed a pro secomplaint⁽¹⁾ against defendants, Central Illinois Regional Airport, ThePrairie Aviation Museum, and The Pantagraph, in the circuit court ofMcLean County. Count I of the complaint alleged that each summer,defendants operated, sponsored, and otherwise promoted a dangerousairshow near plaintiff's property in Bloomington, Illinois. According toplaintiff's allegations, the low-flying military and commercial aircraft thatparticipated in the shows engaged in acrobatic and stunt maneuvers whichwere unreasonably dangerous and unnecessary. The aircraft, plaintiffalleged, along with the loud noises, crowds, dirt, fumes, and other noxiousmaterials associated with the airshows constituted a nuisance, which "isdangerous, continuing, and recurrent each summer, and unless enjoined,will result in continued damage to the Plaintiff and other citizens of theBloomington-Normal community and possible death and destructioncaused by a low level air mishap occurring during stunts and airacrobatics." Plaintiff claimed no adequate remedy at law for his damagesand sought injunctive relief from the court. Count II contained similarallegations, but sought relief on the theory that the airshow constituted acommon law trespass upon plaintiff's property and requested $3 millionin damages. In count III, the subject of this appeal, plaintiff alleged thatdefendants' actions in operating the airshow constituted an inversecondemnation of his property, with plaintiff seeking $5 million incompensatory damages.

On December 29, 2000, each defendant filed a motion to dismiss thecomplaint pursuant to section 2-615 of the Code of Civil Procedure (735ILCS 5/2-615 (West 2000)). Defendants maintained that federal lawsand regulations preempted plaintiff's causes of action sounding in nuisanceand trespass. Defendant Central Illinois Regional Airport also asserted thatfederal laws and regulations preempted defendant's inverse condemnationaction. The remaining defendants argued in their respective motions thatplaintiff failed to state a cause of action against them sounding in inversecondemnation.⁽²⁾

The circuit court ruled on the motions in an order entered onFebruary 27, 2001. The court dismissed both the nuisance and trespasscounts of the complaint with prejudice. As to count III, the order read asfollows:

"Count III is dismissed with Plaintiff given 60 days to fileamended Count III, defendants shall reply or motion anyamended pleading within 30 days thereafter."

On February 28, 2001, plaintiff filed a notice of interlocutory appeal,challenging the circuit court's order with respect to count I.

While the interlocutory appeal was pending,⁽³⁾ plaintiff, on April 12,2001, filed a motion to voluntary dismiss count III without prejudice. Afterhearing arguments on the motion to voluntarily dismiss, the circuit court onMay 2, 2001, ruled that count III had been previously dismissed withleave to file an amendment within 60 days and that 60 days had passedwithout such a filing. The court concluded that plaintiff's failure to amendcount III was "determinative" and thereafter denied the motion forvoluntary dismissal.

Plaintiff then appealed both the February 27, 2001, and the May 2,2001, orders of the circuit court. In an unpublished order filed on January30, 2002, the appellate court concluded that it lacked jurisdiction to hearthe case because the order of February 27, 2001, was not a final orderfrom which an appeal could be taken. Smith v. Central Illinois RegionalAirport, No. 4-01-0388 (January 30, 2002) (unpublished order underSupreme Court Rule 23). Following the issuance of that order, plaintiffreturned to the circuit court and filed an "Amended Motion to Dismiss."In the motion, plaintiff asserted that he had an absolute right to a voluntarydismissal. After considering the motion, the circuit court entered thefollowing order:

"The Court rules that plaintiff's Complaint has previously beendismissed by the Court's Order of February 27, 2000. [sic]Plaintiff having failed to amend Count III within the timepermitted, Count III is hereby dismissed with prejudice.Plaintiff's Amended Motion to Dismiss is denied as moot."

Plaintiff appealed, arguing that the circuit court erred in denying his motionbecause plaintiff had an unfettered right to voluntarily dismiss count IIIpursuant to section 2-1009(a) of the Code of Civil Procedure (735 ILCS5/2-1009(a) (West 2000)).

The appellate court affirmed, with one justice dissenting. The majorityof the appellate court ruled that once the circuit court dismissed count III,on February 27, plaintiff could have either amended that count oraccepted the court's dismissal. "However, he could not seek to voluntarilydismiss count III. Simply put, no matter how unfettered the right tovoluntarily dismiss one's claim, such a claim must exist before it can bedismissed." 335 Ill. App. 3d at 1092.

The dissenting justice disagreed, stating that "[u]nder the majority'slogic, [plaintiff] should have filed an amended complaint along with hismotion for voluntary dismissal, so that there would have been a 'count IIIto voluntarily dismiss.' " 335 Ill. App. 3d at 1094 (Cook, J., dissenting).The dissenting justice also believed that the decision stripped plaintiff of his"unfettered" right to voluntarily dismiss his action. 335 Ill. App. 3d at1094-95 (Cook, J., dissenting).

Analysis

In this court, plaintiff maintains that the appellate court's decisiondirectly conflicts with our opinion in Morrison v. Wagner, 191 Ill. 2d 162(2000). Echoing the dissent filed in the appellate court, he contends thathe has an absolute right to a voluntary dismissal. Defendants respond thatthe appellate court correctly held that plaintiff was not entitled to avoluntary dismissal under the circumstances of this case.

This state originally followed the common law rule that allowed aplaintiff to take a nonsuit any time prior to entry of a decision by the judgeor the jury. However, our General Assembly has, over the years, limitedthe common law rule by legislative enactment. See Gibellina v. Handley,127 Ill. 2d 122, 131 (1989) (explaining history of the right to voluntarydismissal and section 2-1009). Notwithstanding the legislative additionsof certain limits to the right to voluntary dismissal, our bench and bar stillsometime refer to the right as being one that is "unqualified" or"unfettered." In our view, such adjectives paint with too broad a brushbecause the right to voluntary dismissal can no longer be viewed asabsolute or without restraint. This court has made clear that a plaintiff'sright to a voluntary dismissal carries with it two important qualifications:

"First, where a previously filed defense motion could result in afinal disposition of the cause of action if ruled favorably by thecourt, the court has the discretion to hear and decide that motionbefore ruling on the plaintiff's motion for voluntary dismissal.[Citation.] Second, where the circumstances of the case are suchthat dismissal under section 2-1009 would directly conflict witha specific rule of this court, the terms of the rule takeprecedence." Morrison v. Wagner, 191 Ill. 2d 162, 165(2000).

With respect to the first qualification, this court in 1989 spoke clearly asto the discretion entrusted to the circuit court when a motion to dismiss hasbeen filed prior to the filing of a section 2-1009 motion for voluntarydismissal:

"[T]he trial court may hear and decide a motion which hasbeen 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. This, of course, does not assure anautomatic denial of the section 2-1009 motion, for it is quitepossible that the opposing party's prior filed motion is withoutmerit; in that case the subsequent section 2-1009 motion mustbe granted. This step by our court is necessitated by the notedabusive use of the voluntary dismissal statute." (Emphasis inoriginal.) Gibellina, 127 Ill. 2d at 138.

Several years later, we emphasized that our opinion in Gibellina left to thediscretion of the trial court the decision to consider a potentially dispositivedefense motion before granting a plaintiff's section 2-1009 motion.Bochantin v. Petroff, 145 Ill. 2d 1, 7 (1991). In our view, bothGibellina and Morrison stand for the proposition that a plaintiff's right toa voluntarily dismissal is not always absolute.

Defendants insist that the first qualification identified in Morrison isat play in this case because they had filed motions to dismiss pursuant tosection 2-615 prior to plaintiff's filing of his motion for voluntary dismissal.We disagree.

Defendants' motions challenged the sufficiency of the facts alleged byplaintiff to state a cause of action. Generally, such a motion, if successful,will not result in a final disposition of the case. That is so because thereexists in this state a policy, long adhered to by our courts, that favors anadequate and appropriate hearing of a litigant's claim on the merits, andit is well established that a cause of action should not be dismissed withprejudice unless it is clear that no set of facts can be proved under thepleading which would entitle the plaintiff to relief. See, e.g., BrownLeasing, Inc. v. Stone, 284 Ill. App. 3d 1035, 1045 (1996); Bowe v.Abbott Laboratories, Inc., 240 Ill. App. 3d 382 (1992). See also 30 Ill.L. & Prac. Pleading