author: JUSTICE SCARIANO

text:
    FLORENCE CURTIS FITZGERALD, Plaintiff-Appellee, v. LAKE SHORE ANIMAL HOSPITAL, INC., Defendant-Appellant.
    First District (2nd Division)
    No. 1—87—2198
    Opinion filed May 16, 1989.

      A. Marcy Newman, of Arvey, Hodes, Costello & Burman, of Chicago (Sidney Z. Karasik and Jill Kline, of counsel), for appellant.
    W.B. Martin Gross, Thomas H. Donohoe, and David L. Grobart, all of Martin, Craig, Chester & Sonnenschein, of Chicago, for appellee.
   JUSTICE SCARIANO

delivered the opinion of the court:

This action was brought to recover possession of commercial property leased to defendant. The trial court entered summary judgment in favor of plaintiff and awarded a portion of her attorney fees incurred in enforcing the terms of the lease. Defendant appeals, arguing that the trial court abused its discretion in awarding those fees.

Defendant has been the tenant in plaintiff’s building, located at 225 West Division Street in Chicago, since it was built in 1966. The facility is a single-use structure with specifically designed features, many of which were created and provided by defendant’s owner, the late Dr. Prasuhn, for use in his hospital. On January 31, 1985, the parties entered into a written lease for a term of one month, renewable by holding over. The holdover tenancy under the lease was on a month-to-month basis and was terminable by either party upon one month’s notice. The pertinent provision in the lease is as follows:

“At the termination of this lease, by lapse of time or otherwise, Lessee will yield up immediate possession of the Premises to Lessor, in good condition and repair, loss by fire and ordinary wear excepted, and will return the keys therefor to Lessor at the place of payment of rent. If Lessee retains possession of the Premises or any part thereof after the termination of the term by lapse of time or otherwise, then such holding over constitutes creation of a month to month tenancy, upon the terms of the lease, terminable by either party upon notice to the other party, prior to the beginning of the month next succeeding the date of the notice. Lessee shall also pay to Lessor all damages sustained by Lessor resulting from retention of possession by Lessee. The provisions of this paragraph shall not constitute a waiver by Lessor of any right of re-entry as hereinafter set forth; nor shall receipt of any rent or any other act in apparent affirmance of tenancy operate as a waiver of the right to terminate this lease for a breach of any of the covenants herein.”

On August 27, 1986, shortly after Dr. Prasuhn’s death, plaintiff served notice to terminate, requiring defendant to vacate the premises by October 1,1986.

On September 26, 1986, defendant and Mary Prasuhn, Dr. Prasuhn’s executor, filed a declaratory judgment against plaintiff in the chancery division of the circuit court of Cook County, claiming that plaintiff’s notice to vacate violated an oral agreement between plaintiff’s attorney and Dr. Prasuhn that defendant would be given a reasonable time to relocate and move before being required to yield possession. Defendant also sought in the same suit to enjoin plaintiff from instituting a forcible detainer action.

On or about September 30, 1986, defendant received a “Statement of Rent Due” for October 1986, which it promptly paid and which payment was accepted by plaintiff’s agent.

On October 2, 1986, plaintiff filed a forcible detainer action in circuit court, and, on November 5, 1986, she filed a motion for summary judgment thereon.

On November 13, 1986, defendant moved in the forcible action, pursuant to section 2 — 619 of the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2 — 619), to dismiss the forcible detainer suit or to consolidate it with defendant’s chancery action.

On December 3, 1986, the trial judge denied both defendant’s motion to dismiss or consolidate and plaintiff’s motion for summary judgment, required defendant to respond to the complaint within seven days, ordered that discovery be completed by December 31, 1986, and set the case for trial on January 7,1987.

On December 12, 1986, defendant filed a second motion to consolidate before another judge in the law division of the circuit court. That motion was continued until January 8, 1987, one day after the then scheduled trial date in the forcible detainer action.

During December, plaintiff brought an emergency motion to compel, and an order was entered regulating, discovery. In response to defendant’s motion to compel, and its emergency motion to extend, discovery, the trial court set a new trial date of February 2, 1987. By agreement of the parties, defendant’s motion to consolidate was continued until after the rescheduled trial date.

On December 15, 1986, defendant filed its answer and affirmative defenses and counterclaim in the forcible detainer action. In its affirmative defenses, defendant alleged an oral modification to the written lease allowing it a reasonable time to relocate and, in its counterclaim, it sought damages for having to defend itself in the forcible proceeding. On January 2, 1987, the trial court granted plaintiff’s motion to strike defendant’s affirmative defenses and counterclaim, in which she claimed that the alleged oral agreement for reasonable time to vacate was unenforceable under the parol evidence rule and was unsupported by consideration. (A transcript of that hearing is not included in the record on appeal.) Also on January 2, 1987, defendant filed a motion for summary judgment, arguing that plaintiff’s acceptance of rent after the notice to quit constituted a waiver of her right to possession.

On January 8, 1987, plaintiff filed a revised motion for summary judgment, arguing that all the admissible facts in evidence established that she was entitled to possession. Plaintiff also specifically denied making any agreements “external” to the lease. On January 9, 1986, defendant filed its amended affirmative defenses, in which it alleged that Dr. Prasuhn relied on the representations of plaintiff’s attorney that defendant would have a reasonable time to relocate and that plaintiff was therefore estopped “from sending a notice of termination or filing a forcible entry and detainer action until a reasonable time necessary for the Hospital to relocate has passed.” Plaintiff moved to strike and dismiss defendant’s amended affirmative defenses.

On January 26, 1987, the trial judge granted plaintiff’s motion to strike and dismiss defendant’s amended affirmative defenses, finding as a matter of law that there was no consideration supporting the alleged oral modification to the lease, granted plaintiff’s revised motion for summary judgment and denied defendant’s motion for summary judgment. The judge then stayed the judgment for possession in favor of plaintiff until such time as the judge presiding over the still pending chancery action could determine any “equitable issues” that may have existed. On March 24, 1987, the trial judge denied defendant’s motion for reconsideration.

On March 25, 1987, the judge sitting in chancery dismissed defendant’s action, stating in the order “that the complaint should be dismissed with prejudice based on issue preclusion because the allegations of the complaint that are the predicate for the substantive relief sought have already been stricken and dismissed *** in Fitzgerald v. Lake Shore Animal Hospital 86 M1 736961 and because the other elements of issue preclusion are present.” (A transcript of that hearing is not included in the record on appeal.)

On April 10, 1987, the parties entered into an agreed order in which defendant was given until August 1, 1987, to vacate the premises in return for its wavier of its right to appeal any judgment or order entered in the litigation except for “issues arising or orders entered with respect to plaintiff’s attorneys’ fees.” On June 11, 1987, the trial judge awarded plaintiff attorney fees in the amount of $25,000 and costs of $1,836.94, pursuant to paragraph 15 of the lease, which provides as follows:

“Lessee shall pay upon demand all Lessor’s costs, charges and expenses, including fees of attorneys, agents and other retained by lessor, incurred in enforcing any of the obligations of Lessee under this lease or in any litigation, negotiation or transaction in which Lessor shall, without Lessor’s fault, become involved through or on account of this lease.”

Plaintiff had sought attorney fees in the amount of $50,029.94. Defendant appeals the award of attorney fees, and plaintiff cross-appeals the denial of the balance of her attorney fees.

Opinion

Although acknowledging its waiver of its right to appeal all issues other than those arising from the award of attorney fees, defendant argues that the trial court erred in denying its motion to dismiss or consolidate, in rejecting its argument that plaintiff’s acceptance of the October 1986 rent constituted a waiver of her right to possession, and in ruling that the alleged oral modification was unenforceable. Defendant contends that, had the trial court not so erred, it would have considered “many important equitable factors” and ruled in defendant’s favor and defendant would not then be liable for plaintiff’s attorney fees; thus, these issues all “arise” from the award of attorney fees. Plaintiff responds that defendant has waived these issues and cannot raise them before this court.

As previously noted, defendant voluntarily waived its right to appeal from the rulings it now claims are necessary for us to consider in order that we might appreciate how the errors alleged to have been committed by the trial court needlessly required plaintiff’s attorneys to expend inordinate amounts of time and effort into this matter — at defendant’s expense, as it turns out. But we decline to render what would amount to an advisory opinion by reviewing obliquely those issues that defendant precluded itself from raising directly. Accordingly, the only issue before this court is whether the award of attorney fees and costs was unreasonable without regard to defendant’s assertions of the trial court’s oversights.

Defendant first argues that it should not be responsible for plaintiff’s attorney fees because a condition precedent to the tenant’s liability for such fees is that the landlord shall be “without fault.” In so arguing, defendant ignores the judge’s statement that this contention was “misguided” and that his clear ruling was that he was basing the imposition of fees pursuant to the provisions of the first part of paragraph 15, set forth above, which render the tenant liable when the fees are “incurred in enforcing any of the obligations of Lessee under this lease.”

Defendant also contends that the $25,000 award is “grossly excessive in the circumstances and a harsh miscarriage of justice.” It maintains that plaintiff could have avoided many of the fees by simply serving a second and proper notice to quit. It also asserts that much of the time claimed by plaintiff’s counsel reflects duplication of attorney time and talent, and that there was no need for senior partners to handle this case.

By letter dated December 16, 1986, counsel for defendant notified plaintiff’s attorney, Martin Gross, of their intention to call him as a witness at trial, which was then scheduled for January 7, 1987. The status of the case on December 16 was as follows: the accelerated discovery schedule was to expire on December 31, 1986, discovery requests were pending, plaintiff’s motion to strike and dismiss defendant’s affirmative defenses and counterclaims was scheduled for hearing on January 2, 1987, and defendant’s second motion to consolidate was set for hearing on January 8, 1987. Upon receiving the notice, plaintiff contacted Peter Sonderby of Chadwell & Kayser, Ltd. to represent her, and from that point forward, both Martin’s and Son-derby’s firms appeared for plaintiff, sending attorneys from both firms to depositions, hearings and court calls, and billing for a number of conferences with one another. Additionally, Gross’ firm, Martin, Craig, prepared motions and memoranda, and Sonderby argued those motions. Defendant maintains that Martin, Craig should have withdrawn after contacting Sonderby. It also asserts that much of the conference time is noncompensable, because the business transacted at those conferences is not specifically documented.

Plaintiff responds that the litigation resulted from defendant’s deliberate strategy to delay its relocation and that the amount of her attorney fees is a result of that tactic. She notes that defendant at no time contested her ultimate right to possession of the premises, nor did it raise its waiver defense until January 1987. Plaintiff further asserts that she cannot be denied her fees incurred in enforcing her rights under the lease. She claims that Martin, Craig had no obligation to withdraw until such time as it became clear that Gross’ testimony would be prejudicial to her (107 Ill. 2d R. 5 — 102(b)); that Martin, Craig acted reasonably in not withdrawing, because they were familiar with the case and therefore should not have recused themselves unless it became absolutely necessary; and that it was necessary to share responsibility for the case with Sonderby in order to prepare him adequately in case he had to handle the trial. She contends that no duplication occurred or was charged as part of her petition, and, although the issues in the case were not complex, much time and effort was needed in order to prevail.

During a lengthy hearing on plaintiff’s petition for attorney fees, the trial judge reviewed her attorneys’ billings and reduced the amount of time charged when he felt it was excessive. The court stated:

“I think when it comes down to at some point Mr. Sonderby, as capable as he is, should have been able to handle it.
* * *
I think at some point there’s got to be a cutoff date for work of [the Martin, Craig] firm.
* * *
*** [A]s I stated before[,] the reasonableness of this whole thing is the ultimate issue, no matter how much time you spent. I’ve got to say by virtue of the cases that I read, the seriousness of the issue, there’s no question but that you spent the money that you did, and certainly you’re entitled to get reimbursed for those expenditures. I think that predicated upon what I find, and this is as probably a wild a guess I can take, I certainly think that I can see nothing wrong with Mr. Sonderby’s time; and I look at it — I think all in all, the totalities in this case, reasonable fees would be $25,000; and that’s what I’m going to order, plus costs.”

A trial court’s determination of reasonable attorney fees and costs will not be disturbed on review absent a showing of abuse of discretion. (Arcadia Upholstering, Inc. v. 165 Restaurant, Inc. (1987), 163 Ill. App. 3d 129, 516 N.E.2d 523.) The party seeking the fees bears the burden of presenting sufficient evidence from which the trial judge can render a decision as to their reasonableness. (Kaiser v. MEPC American Properties, Inc. (1987), 164 Ill. App. 3d 978, 983, 518 N.E.2d 424.) A petition for fees must specify the services performed, by whom they were performed, the time expended thereon and the hourly rate charged therefor. (Kaiser, 164 Ill. App. 3d 978.)

“Once presented with these facts, the trial court should consider a variety of additional factors such as the skill and standing of the attorneys, the nature of the case, the novelty and/or difficulty of the issues and the work involved, the importance of the matter, the degree of responsibility required, the usual and customary charges for comparable services, the benefit to the client [citation], and whether there is a reasonable connection between the fees and the amount involved in the litigation.” Kaiser, 164 Ill. App. 3d at 984.

Applying these factors to the instant case, we find that $26,836.94 is an unreasonable award. As the trial judge commented at the hearing to set attorney fees, this was not a complicated case. The parties are in agreement that plaintiff’s right to possession was never at issue and that the dispute was purely and simply over when defendant would vacate the premises, an issue neither novel nor difficult, nor one requiring any extraordinarily skilled legal talent. Although there were a number of motions and court appearances made in the trial court, no legal research and minimal preparation time was needed for many of these, e.g., two identical motions to consolidate were argued, and plaintiff’s motion to strike defendant’s affirmative defenses and her motion to strike defendant’s amended affirmative defenses addressed the same claim, namely, that there had been an oral modification to the written lease. More important, the usual and customary charge for a simple eviction case surely must be far less than the fee that was awarded here, to say nothing of the one demanded, despite its crescendo into what appears to have become a career for the attorneys on both sides.

The trial judge did not make clear what billings he was striking as duplicitous or unnecessary; rather, it is quite apparent that, although he characterized it as a “wild guess,” the judge’s resolution was nothing short of Solomonic — he clove the baby in two. No matter: whether a “wild guess” or Solomonic, such a ruling, in light of the facts of this case, is an abuse of discretion. Without a full, complete and detailed hearing on this matter, and without a ruling on each billing entry, taking into careful consideration the elements delineated in Kaiser and keeping in mind that the plaintiff is the burdened party, there can be no way of determining what a reasonable fee might be in this case. We note also that defendant has not suggested what it considers to be a reasonable award under the circumstances of this case. Accordingly, for all of the reasons expressed herein, the judgment of the circuit court of Cook County is reversed, and this cause is remanded for a hearing on plaintiff’s petition for attorney fees consistent with the views expressed in this opinion.

Reversed and remanded.

BILANDIC, P.J., and HARTMAN, J., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE SULLIVAN JUSTICE COCCIA

license: Public Domain

text:
    ESTATE OF ROBERT M. JACKSON, Deceased, by Doris Jackson, Special Adm’r, et al., Plaintiffs-Appellants, v. LEONARD SMITH et al., Defendants-Appellees.
    First District (5th Division)
    No. 1—86—3532
    Opinion filed December 31, 1987.
    — Supplemental opinion filed on denial of rehearing June 2, 1989.

      Ronald S. Fishman, of Chicago (Mark D. Debofsky, of counsel), for appellants.
    Clausen, Miller, Gorman, Caffrey & Witous, P.C., of Chicago (James T. Ferrini, Richard R. Winter, and Mayer Goldberg, of counsel), for appellee Leonard Smith, M.D.
    Peterson, Ross, Schloerb & Seidel, of Chicago (Thomas S. White and Theodore T. Schuld, of counsel), for appellee Mercy Hospital and Medical Center.
   PRESIDING JUSTICE SULLIVAN

delivered the opinion of the court:

This is an appeal from orders barring plaintiff from presenting an expert witness at trial, denying her motion for a voluntary dismissal and granting defendants’ motions for summary judgment.

On December 7, 1982, plaintiff, Doris Jackson, individually and as special administrator of the estate of Robert M. Jackson, filed a medical malpractice action against defendants Mercy Hospital and Medical Center (Mercy) and Dr. Leonard Smith. Her three-count complaint, in which she sought damages for the wrongful death and the loss of the support and companionship of her husband, Robert Jackson (decedent), alleged that he was admitted to Mercy on October 21, 1981, and the following day underwent knee surgery performed by Dr. Smith. On October 25, he complained of pain in his leg and of having difficulty breathing. Over the next few days, he became increasingly agitated and confused and experienced swelling in the lower portion of his left leg. In the early morning of October 27, he suffered cardiopulmonary arrest. Resuscitation efforts were unsuccessful, and he died. The postmortem examination revealed that the cause of death was a pulmonary embolism. Plaintiff alleges that decedent’s death resulted from the negligence of defendants in their diagnosis and treatment of him.

On February 22, 1983, defendants served plaintiff with a notice to produce the names of any experts she intended to call as witnesses at trial. On June 8, 1983, plaintiff responded “none at this time.” At the first pretrial conference, on December 5, 1984, the trial court entered an order requiring disclosure by February 1, 1985. Plaintiff neither named an expert on that date nor requested an extension of time in which to do so. On July 30, 1985, a second order was entered (a) directing plaintiff to identify her expert by October 1, 1985, and (b) continuing the pretrial until February 6, 1986. On October 3, 1985, defendants presented a motion requesting that the trial court enter an order, pursuant to Supreme Court Rule 220 (107 Ill. 2d R. 220), barring plaintiff from presenting expert testimony at trial. Defendants assert that they personally served plaintiff’s attorney with the motion and notice of it on September 30, 1985; however, plaintiff maintains that she received only the motion but not notice that a hearing on it was scheduled for October 3 and, thus, did not appear at the hearing whereat the court entered an order barring her from presenting an expert witness at trial. On October 22, 1985, plaintiff served defendants with a motion for an extension of time in which to name an expert. In response thereto, defendants served plaintiff with a motion to strike, based upon entry of the October 3 order. On November 18, defendants filed a motion for summary judgment, together with the affidavit of Dr. Richard Jones, their expert witness, who stated that the treatment rendered by defendants to decedent met the accepted standard of care. A hearing on the motion was set for January 21, 1986. Plaintiff thereafter filed the first of several motions to vacate the order barring her expert witnesses. A hearing thereon was conducted on January 15, 1986, but when plaintiff’s attorney stated that he required additional time to secure an expert, the trial court denied the motion to vacate for lack of diligence. The motion for summary judgment was continued to April 8, 1986, and then again to July 14. On April 17, plaintiff served defendants with her second motion to vacate the October 3 order, indicating therein that she had secured an expert witness — Dr. Lawrence Dry, Jr. On June 18, the trial court denied her motion on the bases that plaintiff had failed to disclose the identity of the expert when given the opportunity at the January 15 hearing and that in the light of plaintiff’s dilatory conduct, the sanction was appropriate. The. court did, however, grant plaintiff’s request for an extension to file her response to defendants’ motions for summary judgment, and the matter was continued to August 21, 1986. Plaintiff’s third motion to vacate was filed on July 2 before a judge in the pretrial and mediation division who declined to entertain the motion on the ground that he lacked authority to consider it, and he transferred the case back to the motion judge who had entered the order. On August 7, Mercy filed a motion to strike the affidavit of Dr. Dry which plaintiff had attached to her response to the motions for summary judgment, arguing that the order barring expert testimony at trial operated to also exclude an expert’s affidavit for purposes of raising a question of fact to defeat a motion for summary judgment. Plaintiff then filed a fourth motion to vacate the sanction order, which was heard and denied on August 27, 1986. The hearing on the motions for summary judgment having been set for final arguments on December 1, plaintiff filed a motion to voluntarily dismiss the action in early September 1986. That motion was denied on November 10 and, at the December 1 hearing, the trial court granted defendants’ motions to strike the affidavit of plaintiff’s expert and entered summary judgment in their favor. This appeal followed.

Opinion

On appeal, plaintiff contends that (1) the trial court’s order barring expert witnesses from testifying at trial was void because it was entered without notice to her; (2) the trial court abused its discretion in denying her motion to vacate that order; (3) the court erred in (a) refusing to allow her to voluntarily dismiss the action, and (b) granting summary judgment for defendants. Section 2 — 1009 of the Code of Civil Procedure (Code) (Ill. Rev. Stat. 1985, ch. 110, par. 2 — 1009(a)), provides in pertinent part:

“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 her action or any part thereof as to any defendant, without prejudice, by order filed in the cause.”

In Kahle v. John Deere Co. (1984), 104 Ill. 2d 302, 472 N.E.2d 787, the defendants appealed from an order granting the plaintiff’s motion for a voluntary dismissal which had been filed after the trial court had ruled on various motions in limine on the date set for trial. Responding to the defendants’ arguments that trial began when the court ruled on those motions and that the plaintiff should not be allowed to “test the waters” and then voluntarily dismiss after receiving adverse rulings, the supreme court held that arguments and rulings on pretrial motions did not constitute the commencement of trial and stated:

“At common law, the plaintiff could voluntarily dismiss without prejudice at any point before the judgment was returned. The legislature attempted to discourage vexatious suits by limiting the plaintiff’s freedom, but only by preventing an automatic voluntary dismissal without prejudice after trial or hearing commenced. [Citation.] Any further limits on the plaintiff’s common law rights should be enacted by the legislature, not declared by this court.” 104 Ill. 2d at 307-08, 472 N.E.2d at 789.

Its statement in Kahle notwithstanding, the supreme court did, as defendants point out, subsequently carve out an additional exception to the common law rule that a plaintiff has an absolute right to a voluntary dismissal in O’Connell v. St. Francis Hospital (1986), 112 Ill. 2d 273, 492 N.E.2d 1322. In that case, the defendants filed a motion, pursuant to Supreme Court Rule 103(b) (107 Ill. 2d R. 103(b)), to dismiss the plaintiff’s complaint with prejudice for lack of diligent service of process. Plaintiff moved for and was granted a voluntary dismissal without prejudice and thereafter refiled the action pursuant to section 13 — 217 (Ill. Rev. Stat. 1985, ch. 110, par. 13 — 217) of the Code. Defendants again moved to dismiss under Rule 103(b), reasserting plaintiff’s lack of diligence in effecting service of process in the original suit. The trial court denied the motions but certified an interlocutory appeal, which was denied by the appellate court. The supreme court granted leave to appeal and found that a conflict existed between its Rule 103(b) and sections 2 — 1009 and 13 — 217 of the Code, and that under the circumstances of the case, the Code provisions unduly infringed upon the judiciary’s ability to discharge its duties fairly and expeditiously and its exclusive authority to render judgments, noting that “[n]othing is more critical to the judicial function than the administration of justice without delay [citation]” and that “[c]entral to discharging this function, the judiciary must be unimpeded in considering and rendering judgments on matters before it.” (112 Ill. 2d at 282, 492 N.E.2d at 1326.) The court held that “[w]here a rule of this court on a matter within the court’s authority and a statute on the same subject conflict, the rule will prevail” (emphasis in original) (O’Connell, 112 Ill. 2d at 281, 492 N.E.2d at 1326); and it thus ruled that where a plaintiff relying on section 2 — 1009 moves to voluntarily dismiss his action while a Rule 103(b) motion is pending, the trial court must hear the Rule 103(b) dismissal motion on its merits prior to ruling on plaintiff’s motion for a voluntary dismissal.

Defendants acknowledge that in numerous recent decisions this court has refused to extend the holding in O’Connell to defense motions other than those for dismissal with prejudice for failure to effect diligent service of process under Rule 103(b). (Kendle v. Village of Downers Grove (1987), 156 Ill. App. 3d 545, 509 N.E.2d 723; Rohr v. Knaus (1987), 153 Ill. App. 3d 1013, 506 N.E.2d 634; Kern v. Peabody Coal Co. (1987), 151 Ill. App. 3d 807, 502 N.E.2d 1322; Mancuso v. Beach (1986), 149 Ill. App. 3d 188, 500 N.E.2d 589.) Nevertheless, they advance numerous arguments in support of their position that O’Connell represents a change in the law and is controlling of the case before us; and they urge us to “take a controversial stand” in adopting the reasoning and holding of O’Connell to affirm the trial court’s orders denying plaintiff’s motion for voluntary dismissal and granting summary judgment in their favor.

Defendants first posit that granting a voluntary dismissal without prejudice after a sanction which is “potentially dispositive” of the case has been imposed for noncompliance with orders to disclose expert witnesses and while a motion for summary judgment is pending creates a conflict between section 2 — 1009 and Supreme Court Rule 220 of the same type found in O’Connell between section 2 — 1009 and Rule 103(b). They argue that by voluntarily dismissing the action without prejudice to refiling it under section 13 — 217 within one year, the plaintiff is able to defeat the purpose and evade the effect of Rule 220 to compel the timely disclosure of expert witnesses. This, they claim, results in an infringement upon the constitutional authority of the judiciary to promulgate and enforce rules to promote the prompt, fair and efficient administration of justice and to render judgments and therefore requires, under the reasoning in O’Connell, that the rule must prevail.

Virtually identical arguments in the context of near-identical factual situations were recently made — and rejected — in Schmitt v. Motorola, Inc. (1987), 160 Ill. App. 3d 1059, 513 N.E.2d 1069, and Gibellina v. Handley (1987), 158 Ill. App. 3d 866, 511 N.E.2d 884. In both cases, the plaintiffs, who had been barred from presenting expert testimony at trial as a sanction for failure to comply with orders to disclose the names of their experts, moved to voluntarily dismiss their actions prior to hearings on pending defense motions for summary judgment. The voluntary dismissal motions were denied and summary judgment was entered as to all defendants.

In reversing those orders, the appellate panels adopted the reasoning in Highland v. Stevenson (1987), 153 Ill. App. 3d 390, 505 N.E.2d 776, on the issue of the relationship between section 2 — 1009 and Rule 220. In Highland, the decision of plaintiff’s original counsel to not call expert witnesses at trial prompted defendants to move for summary judgment. However, following that attorney’s withdrawal from the case and a review of the file by substitute counsel, plaintiff filed a motion for a voluntary dismissal, which was granted. Relying on O’Connell, the defendants argued on appeal that allowing the dismissal rendered Rule 220 nugatory. The Highland court determined that O’Connell was not controlling, reasoning that unlike Rule 103(b), Rule 220 does not mandate dismissal of the action with prejudice nor is its effect negated by a voluntary dismissal without prejudice, because if a plaintiff wishes to introduce expert testimony in a subsequently filed case, he is obligated by the terms of the rule to disclose the identity of the experts well in advance of trial. The Gibellina and Schmitt courts agreed with Highland to the extent that it holds that section 2 — 1009 does not conflict with Rule 220 and, following the numerous other decisions of this court, which are cited above, ruled that O’Connell is limited to those cases where a voluntary dismissal is sought in response to a Rule 103(b) motion to dismiss. See also Jacobsen v. Ragsdale (1987), 160 Ill. App. 3d 656, 513 N.E.2d 1112; Metcalfe v. St. Elizabeth’s Hospital (1987), 160 Ill. App. 3d 47, 513 N.E.2d 12.

We are in accord with the conclusion reached by the Schmitt, Gibellina and Highland courts in finding that O’Connell is inapplicable to the facts before us because section 2 — 1009 does not conflict with Supreme Court Rule 220, as it does when it is invoked in response to a Rule 103(b) motion. Expanding upon the reasoning therein, we note that Rule 103(b) is, by its title and terms, a dismissal provision. As stated by the supreme court in O’Connell, due diligence in serving process is essential in that “it is the sole legally sufficient means of alerting defendants to the pendency of a civil suit” and, “[i\n addition, *** shortens the time needed to investigate, prepare and litigate the issues raised.” (Emphasis added.) (O’Connell, 112 Ill. 2d at 282, 492 N.E.2d at 1326.) In contrast, Rule 220 is not a dismissal provision, but, rather, a discovery provision (see Addison v. Whittenberg (1987), 159 Ill. App. 3d 585, 512 N.E.2d 76), the sole purpose of which — according to the committee comments — is to insure the parties to a lawsuit sufficient time in advance of trial for the preparation of their case by “eliminating the last-minute disclosure of experts on the courthouse steps or during the course of trial.” Ill. Ann. Stat., ch. 110A, par. 220, Committee Comments, at 438 (Smith-Hurd 1985).

We in no way minimize the importance of expeditious discovery or intend our remarks to countenance disregard of discovery rules and orders; however, we do not believe that failing to timely provide an opponent with information as to the identity of an expert who will testify regarding already identified issues in an existing action constitutes an “infringement” on the administration of justice of the same type or degree as failing to give an opponent timely, legal notice of an impending action as to necessitate expansion of the O’Connell exception to the general rule that a plaintiffs right to a voluntary dismissal prior to trial is absolute.

Furthermore, unlike O’Connell, the “conflict” in this case, as well as in Schmitt, Gibellina and Highland, was not between a legislative enactment and a Supreme Court Rule but, rather, between sections 2 — 1009 (voluntary dismissal) and 2 — 1005 (Ill. Rev. Stat. 1985, ch. 110, par. 2 — 1005) (summary judgment) of the Code. (Cf. Metcalfe v. St. Elizabeth’s Hospital (1987), 160 Ill. App. 3d 47, 513 N.E.2d 12.) That plaintiff’s admitted motivation for seeking a voluntary dismissal was to prevent the termination of her action through the entry of summary judgment due to the Rule 220 sanction precluding her from submitting the affidavit of an expert to raise a genuine issue of fact or law does not, as defendants posit, create a conflict between section 2 — 1009 and the rule. Where the statutory requirements are met, the plaintiff is entitled to a voluntary dismissal regardless of the circumstances or motivations. Jacobsen v. Ragsdale (1987), 160 Ill. App. 3d 656, 513 N.E.2d 1112; Rohr v. Knaus (1987), 153 Ill. App. 3d 1013, 506 N.E.2d 634.

Defendants further assert that recent law “confirms that it was within the trial court’s discretion to resolve their pending motions for summary judgment prior to considering plaintiff’s motion to voluntarily dismiss.” Specifically, they cite Dillie v. Bisby (1985), 136 Ill. App. 3d 170, 483 N.E.2d 307, an appeal from the granting of plaintiff’s motion for a voluntary dismissal without consideration by the trial court of the defendant’s Rule 103(b) motion to dismiss. After determining that the holding in O’Connell required reversal and remandment of the case, the third district appellate court in Dillie added, “trial courts should have discretion to consider any defense motion which might result in a dismissal with prejudice prior to ruling on a plaintiff’s voluntary dismissal motion” (136 Ill. App. 3d at 172, 483 N.E.2d at 308).

Defendants acknowledge that in Mancuso v. Beach (1986), 149 Ill. App. 3d 188, 500 N.E.2d 589, we held that Dillie “is limited to its facts, i.e. to cases involving a section 2 — 1009 motion for voluntary dismissal filed in response to a Rule 103(b) motion to dismiss for lack of due diligence in service of process” (149 Ill. App. 3d at 192, 500 N.E.2d at 591). They submit, however, that the Mancuso decision “misinterprets the Dillie court’s reasoning.” In support thereof, they point out that although the court in Highland v. Stevenson (1987), 153 Ill. App. 3d 390, 505 N.E.2d 776, found no conflict between section 2 — 1009 and Rule 220 which warranted reversal of the order granting plaintiff’s motion to voluntarily dismiss, it expressly stated that its earlier opinion in Dillie modified previous law by giving the trial court discretion to consider any defense motion which might result in an involuntary dismissal prior to ruling on a motion for voluntary dismissal. In Mancuso, which preceded Highland, we did not criticize Dillie but merely refused to interpret its reference to “any” defense motion as inclusive of all such motions. However, in view of the pronouncement in Highland and defendants’ reliance on it, it is incumbent upon us to clarify our position. To the extent Highland holds that Dillie alters previously existing law by conferring on trial courts the discretion to defer ruling on a motion for voluntary dismissal until after consideration of any defense motion which could result in dismissal with prejudice, we, like the courts in Jacobsen v. Ragsdale (1987), 160 Ill. App. 3d 656, 513 N.E.2d 1112, Metcalfe v. St. Elizabeth’s Hospital (1987), 160 Ill. App. 3d 47, 513 N.E.2d 12, and Gibellina v. Handley (1987), 158 Ill. App. 3d 866, 511 N.E.2d 884, expressly decline to follow it. Instead, we reiterate our adherence to the rule enunciated in Kahle v. John Deere Co. (1984), 104 Ill. 2d 302, 472 N.E.2d 787, and hold that except for the limited exception established in O’Connell, the right to a voluntary dismissal without prejudice prior to the commencement of trial is an absolute right which a trial court has no discretion to deny, a position in accord with the weight of authority in this State. Schmitt v. Motorola, Inc. (1987), 160 Ill. App. 3d 1059, 513 N.E.2d 1069; Jacobsen v. Ragsdale (1987), 160 Ill. App. 3d 656, 513 N.E.2d 1112; Metcalfe v. St. Elizabeth’s Hospital (1987), 160 Ill. App. 3d 47, 513 N.E.2d 12; Gibellina v. Handley (1987), 158 Ill. App. 3d 866, 511 N.E.2d 884; Kendle v. Village of Downers Grove (1987), 156 Ill. App. 3d 545, 509 N.E.2d 723; Rohr v. Knaus (1987), 153 Ill. App. 3d 1013, 506 N.E.2d 634; Kern v. Peabody Coal Co. (1987), 151 Ill. App. 3d 1322, 807 N.E.2d 1322; Russ v. Gan dhy (1986), 149 Ill. App. 3d 660, 500 N.E.2d 1032; Davis v. International Harvester Co. (1985), 139 Ill. App. 3d 264, 487 N.E.2d 385.

Defendants’ correlative assertion, that Kahle itself “made a significant inroad into the ‘absolute’ nature of voluntary dismissals” by holding that they are subject to review on appeal, is wholly without merit. As discussed earlier, Kahle was an appeal from a voluntary dismissal granted after the trial court had ruled on motions in limine and denied the plaintiff’s motion for a continuance. In holding that the order was final and appealable, the supreme court reasoned that if the order were not subject to review, there would be no method by which to determine whether the trial court correctly decided, as a matter of law, that a trial had not begun and therefore correctly entered an order of voluntary dismissal. Clearly, the supreme court in Kahle did not place any additional restrictions on the right to a voluntary dismissal, but simply construed the single limitation imposed by the legislature on the otherwise unfettered common law right to a voluntary dismissal.

Finally, defendants argue that this case exemplifies the continuing abuse by plaintiffs of the privilege of voluntarily dismissing actions without prejudice. They point out that this case has been pending in the court system since 1982 and that they have expended considerable time and money incident to defending against it. They urge that not only would a voluntary dismissal work a severe hardship upon them but would also frustrate the efforts of the trial court to enforce established rules of procedure.

Reviewing courts are not unaware of the potential for abuse of the right to a voluntary dismissal. It has been observed, however, that whether abuse exists turns largely on the perspective of the litigants. (Jacobsen v. Ragsdale (1987), 160 Ill. App. 3d 656, 513 N.E.2d 1112; Rohr v. Knaus (1987), 153 Ill. App. 3d 1013, 506 N.E.2d 634.) In any event, as the court stated in Kahle:

“The defendants *** do not control the progress of the case
* * * * * *
While it is unfortunate that [they] have been inconvenienced, that sometimes happens in our adversary system. As long as the dismissal order is subject to review, the defendants have suffered no legal prejudice. (Kahle, 104 Ill. 2d at 307, 472 N.E.2d at 789.)

The court concluded, as we quoted earlier:

“Any further limits on the plaintiff’s common law rights should be enacted by the legislature, not declared by this court.” 104 Ill. 2d at 308, 472 N.E.2d at 789.

Accordingly, we hold that the trial court erred in denying plaintiff’s motion for a voluntary dismissal and entering summary judgment for defendants; and we reverse and remand the cause for further proceedings without consideration of the remaining issues presented for review.

Reversed and remanded.

LORENZ and PINCHAM, JJ., concur.

SUPPLEMENTAL OPINION ON DENIAL OF REHEARING

JUSTICE COCCIA

delivered the opinion of the court:

On December 31, 1987, Justice John J. Sullivan filed an opinion reversing and remanding this appeal. The opinion was concurred in by Justices Lorenz and Pinchara. Petitions for rehearing were filed by both defendants requesting this court to grant a rehearing, staying its ruling of December 31, 1987, pending the Illinois Supreme Court’s decision in the case of Gibellina v. Handley (1989), 127 Ill. 2d 122, 535 N.E.2d 858, a similar appeal, with identical issues, the disposition of which would be controlling here. Justice Sullivan retired on October 1, 1988, and the appeal was subsequently reassigned to Justice Michel A. Coccia.

In reversing the orders denying plaintiff's motion for a voluntary dismissal and granting summary judgment for defendants, we held that under section 2 — 1009 of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2 — 1009(a)), a plaintiff’s right to. a voluntary dismissal without prejudice prior to the commencement of trial is an absolute right which the trial court had no discretion to deny. Gibellina v. Handley (1989), 127 Ill. 2d 122, 535 N.E.2d 858, recently decided by the Illinois Supreme Court, is totally in accord with the opinion delivered by this court on December 31,1987.

As set forth in Justice Sullivan’s original opinion, this is an appeal from orders barring plaintiff from presenting an expert witness at trial, denying her motion for a voluntary dismissal and granting defendants’ motions for summary judgment.

On December 7, 1982, plaintiff, Doris Jackson, individually and as special administrator of the estate of Robert M. Jackson, filed a medical malpractice action against defendants Mercy Hospital and Medical Center (Mercy) and Dr. Leonard Smith. Her three-count complaint, in which she sought damages for the wrongful death and the loss of the support and companionship of her husband, Robert Jackson (decedent), alleged that he was admitted to Mercy on October 21, 1981, and the following day underwent knee surgery performed by Dr. Smith. On October 25, he complained of pain in his leg and of having difficulty breathing. Over the next few days, he became increasingly agitated and confused and experienced swelling in the lower portion of his left leg. In the early morning of October 27, he suffered cardiopulmonary arrest. Resuscitation efforts were unsuccessful, and he died. The post-mortem examination revealed that the cause of death was a pulmonary embolism. Plaintiff alleges that decedent’s death resulted from the negligence of defendants in their diagnosis and treatment of him.

On February 22, 1983, defendants served plaintiff with a notice to produce the names of any experts she intended to call as witnesses at trial. On June 8, 1983, plaintiff responded, “none at this time.” At the first pretrial conference, on December 5, 1984, the trial court entered an order requiring disclosure by February 1, 1985. Plaintiff neither named an expert on that date nor requested an extension of time in which to do so. On July 30, 1985, a second order was entered (a) directing plaintiff to identify her expert by October 1, 1985, and (b) continuing the pretrial until February 6, 1986. On October 3, 1985, defendants presented a motion requesting that the trial court enter an order, pursuant to Supreme Court Rule 220 (107 Ill. 2d R. 220), barring plaintiff from presenting expert testimony at trial. Defendants assert that they personally served plaintiff’s attorney with the motion and notice of it on September 30, 1985; however, plaintiff maintains that she received only the motion but not notice that a hearing on it was scheduled for October 3 and, thus, did not appear at the hearing whereat the court entered an order barring her from presenting an expert witness at trial. On October 22, 1985, plaintiff serviced defendants with a motion for an extension of time in which to name an expert. In response thereto, defendants served plaintiff with a motion to strike, based upon entry of the October 3 order. On November 18, defendants filed a motion for summary judgment together with the affidavit of Dr. Richard Jones, their expert witness, who stated that the treatment rendered by defendants to decedent met the accepted standard of care. A hearing on the motion was set for January 21, 1986. Plaintiff thereafter filed the first of several motions to vacate the order barring her expert witnesses. A hearing thereon was conducted on January 15, 1986, but when plaintiff’s attorney stated that he required additional time to secure an expert, the trial court denied the motion to vacate for lack of diligence. The motion for summary judgment was continued to April 8, 1986, and then again to July 14. On April 17, plaintiff served defendants with her second motion to vacate the October 3 order, indicating therein that she had secured an expert witness — Dr. Lawrence Dry, Jr. On June 18, the trial court denied her motion on the bases that plaintiff had failed to disclose the identity of the expert when given the opportunity at the January 15 hearing and that in the light of plaintiff’s dilatory conduct, the sanction was appropriate. The court did, however, grant plaintiff’s request for an extension to file her response to defendants’ motions for summary judgment, and the matter was continued to August 21, 1986. Plaintiff’s third motion to vacate was filed on July 2 before a judge in the pretrial and mediation division who declined to entertain the motion on the ground that he lacked authority to consider it and he transferred the case back to the motion judge who had entered the order. On August 7, Mercy filed a motion to strike the affidavit of Dr. Dry which plaintiff had attached to her response to the motions for summary judgment, arguing that the order barring expert testimony at trial operated to also exclude an expert’s affidavit for purposes raising a question of fact to defeat a motion for summary judgment. Plaintiff then filed a fourth motion to vacate the sanction order, which was heard and denied on August 27, 1986. The hearing on the motions for summary judgment having been set for final arguments on December 1, plaintiff filed a motion to voluntarily dismiss the action in early September 1986. That motion was denied on November 10 and, at the December 1 hearing, the trial court granted defendants’ motions to strike the affidavit of plaintiff’s expert and entered summary judgment in their favor. This appeal followed.

Opinion

On appeal, plaintiff contends that (1) the trial court’s order barring expert witnesses from testifying at trial was void because it was entered without notice to her; (2) the trial court abused its discretion in denying her motion to vacate that order; (3) the court erred in (a) refusing to allow her to voluntarily dismiss the action, and (b) granting summary judgment for defendants. Section 2 — 1009 of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2 — 1009(a)) provides in pertinent part:

“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 her action or any part thereof as to any defendant, without prejudice, by order filed in the cause.”

In Kahle v. John Deere Co. (1984), 104 Ill. 2d 302, 472 N.E.2d 787, the defendants appealed from an order granting the plaintiff’s motion for a voluntary dismissal which had been filed after the trial court had ruled on various motions in limine on the date set for trial. Responding to the defendants’ arguments that trial began when the court ruled on those motions and that the plaintiff should not be allowed to “test the waters” and then voluntarily dismiss after receiving adverse rulings, the supreme court held that arguments and rulings on pretrial motions did not constitute the commencement of trial and stated:

“At common law, the plaintiff could voluntarily dismiss without prejudice at any point before the judgment was returned. The legislature attempted to discourage vexatious suits by limiting the plaintiff’s freedom, but only by preventing an automatic voluntary dismissal without prejudice after trial or hearing commenced. [Citation.] Any further limits on the plaintiff’s common law rights should be enacted by the legislature, not declared by this court.” 104 Ill. 2d at 307-08, 472 N.E.2d at 789.

Its statement in Kahle notwithstanding, the supreme court did, as defendants point out, subsequently carve out an additional exception to the common law rule that a plaintiff has an absolute right to a voluntary dismissal in O’Connell v. St. Francis Hospital (1986), 112 Ill. 2d 273, 492 N.E.2d 1322. In that case, the defendants filed a motion, pursuant to Supreme Court Rule 103(b) (107 Ill. 2d R. 103(b)), to dismiss the plaintiff’s complaint with prejudice for lack of diligent service of process. Plaintiff moved for and was granted a voluntary dismissal without prejudice and thereafter refiled the action pursuant to section 13 — 217 (Ill. Rev. Stat. 1985, ch. 110, par. 13 — 217) of the Code. Defendants again moved to dismiss under Rule 103(b), reasserting plaintiff’s lack of diligence in effecting service of process in the original suit. The trial court denied the motions but certified an interlocutory appeal, which was denied by the appellate court. The supreme court granted leave to appeal and found that a conflict existed between its Rule 103(b) and sections 2 — 1009 and 13 — 217 of the Code, and that under the circumstances of the case, the Code provisions unduly infringed upon the judiciary’s ability to discharge its duties fairly and expeditiously and its exclusive authority to render judgments, noting that “[n]othing is more critical to the judicial function than the administration of justice without delay [citation]” and that “[c]entral to discharging this function, the judiciary must be unimpeded in considering and rendering judgments on matters before it.” (O’Connell, 112 Ill. 2d at 282, 492 N.E.2d at 1326.) The court held that “[w]here a rule of this court on a matter within the court’s authority and a statute on the same subject conflict, the rule will pre vail” (emphasis in original) (112 Ill. 2d at 281, 492 N.E.2d at 1326), and it thus ruled that where a plaintiff, relying on section 2 — 1009, moves to voluntarily dismiss his action while a Rule 103(b) motion is pending, the trial court must hear the Rule 103(b) dismissal motion on its merits prior to ruling on plaintiff’s motion for a voluntary dismissal.

Defendants acknowledge that in numerous recent decisions this court has refused to extend the holding in O’Connell to defense motions other than those for dismissal with prejudice for failure to effect diligent service of process under Rule 103(b). (Kendle v. Village of Downers Grove (1987), 156 Ill. App. 3d 545, 509 N.E.2d 723; Rohr v. Knaus (1987), 153 Ill. App. 3d 1013, 506 N.E.2d 634; Kern v. Peabody Coal Co. (1987), 151 Ill. App. 3d 807, 502 N.E.2d 1322; Mancuso v. Beach (1986), 149 Ill. App. 3d 188, 500 N.E.2d 589.) Nevertheless, they advance numerous arguments in support of their position that O’Connell represents a change in the law and is controlling of the case before us, and they urge us to “take a controversial stand” in adopting the reasoning and holding of O’Connell to affirm the trial court’s orders denying plaintiff’s motion for voluntary dismissal and granting summary judgment in their favor.

Defendants first posit that granting a voluntary dismissal without prejudice after a sanction which is “potentially dispositive” of the case has been imposed for noncompliance with orders to disclose expert witnesses and while a motion for summary judgment is pending creates a conflict between section 2 — 1009 and Supreme Court Rule 220 of the same type found in O’Connell between section 2— 1009 and Rule 103(b). They argue that by voluntarily dismissing the action without prejudice to refiling it under section 13 — 217 within one year, the plaintiff is able to defeat the purpose and evade the effect of Rule 220 to compel the timely disclosure of expert witnesses. This, they claim, results in an infringement upon the constitutional authority of the judiciary to promulgate and enforce rules to promote the prompt, fair and efficient administration of justice and to render judgments and therefore requires, under the reasoning in O’Connell, that the rule must prevail.

Virtually identical arguments in the context of near-identical factual situations were recently made — and rejected — in Schmitt v. Motorola, Inc. (1987), 160 Ill. App. 3d 1059, 513 N.E.2d 1069, and Gibellina v. Handley (1987), 158 Ill. App. 3d 866, 511 N.E.2d 884. In both cases, the plaintiffs, who had been barred from presenting expert testimony at trial as a sanction for failure to comply with orders to disclose the names of their experts, moved to voluntarily dismiss their actions prior to hearings on pending defense motions for summary judgment. The voluntary dismissal motions were denied and summary judgment was entered as to all defendants.

In reversing those orders, the appellate panels adopted the reasoning in Highland v. Stevenson (1987), 153 Ill. App. 3d 390, 505 N.E.2d 776, on the issue of the relationship between section 2 — 1009 and Rule 220. In Highland, the decision of plaintiff’s original counsel to not call expert witnesses at trial prompted defendants to move for summary judgment. However, following that attorney’s withdrawal from the case and a review of the file by substitute counsel, plaintiff filed a motion for a voluntary dismissal, which was granted. Relying on O’Connell, the defendants argued on appeal that allowing the dismissal rendered Rule 220 nugatory. The Highland court determined that O’Connell was not controlling, reasoning that unlike Rule 103(b), Rule 220 does not mandate dismissal of the action with prejudice nor is its effect negated by a voluntary dismissal without prejudice because if a plaintiff wishes to introduce expert testimony in a subsequently filed case, he is obligated by the terms of the rule to disclose the identity of the experts well in advance of trial. The Gibellina and Schmitt courts agreed with Highland to the extent that it holds that section 2 — 1009 does not conflict with Rule 220 and, following the numerous other decisions of this court, which are cited above, ruled that O’Connell is limited to those cases where a voluntary dismissal is sought in response to a Rule 103(b) motion to dismiss. See also Jacobsen v. Ragsdale (1987), 160 Ill. App. 3d 656, 513 N.E.2d 1112; Metcalfe v. St. Elizabeth’s Hospital (1987), 160 Ill. App. 3d 47, 513 N.E.2d 12.

We are in accord with the conclusion reached by the Schmitt, Gibellina and Highland courts in finding that O’Connell is inapplicable to the facts before us because section 2 — 1009 does not conflict with Supreme Court Rule 220 as it does when it is invoked in response to a Rule 103(b) motion. Expanding upon the reasoning therein, we note that Rule 103(b), is, by its title and terms, a dismissal provision. As stated by the supreme court in O’Connell, due diligence in serving process is essential in that “it is the sole legally sufficient means of alerting defendants to the pendency of a civil suit,” and “fi]n addition, *** shortens the time needed to investigate, prepare and litigate the issues raised.” (Emphasis added.) (O’Connell, 112 Ill. 2d at 282, 492 N.E.2d at 1326.) In contrast, Rule 220 is not a dismissal provision, but, rather, a discovery provision (see Addision v. Whittenberg (1987), 159 Ill. App. 3d 585, 512 N.E.2d 76), the sole purpose of which — according to the committee comments — is to insure the parties to a lawsuit sufficient time in advance of trial for the preparation of their case by “eliminating the last-minute disclosure of experts on the courthouse steps or during the course of trial.” Ill. Ann. Stat., ch. 110A, par. 220, Committee Comments, at 438 (Smith-Hurd 1985).

We in no way minimize the importance of expeditious discovery or intend our remarks to countenance disregard of discovery rules and orders; however, we do not believe that failing to timely provide an opponent with information as to the identity of an expert who will testify regarding already identified issues in an existing action constitutes an “infringement” on the administration of justice of the same type or degree as failing to give an opponent timely, legal notice of an impending action as to necessitate expansion of the O’Connell exception to the general rule that a plaintiff’s right to a voluntary dismissal prior to trial is absolute.

Furthermore, unlike O’Connell, the “conflict” in this case, as well as in Schmitt, Gibellina and Highland, was not between a legislative enactment and a supreme court rule but, rather, between sections 2— 1009 (voluntary dismissal) and 2 — 1005 (Ill. Rev. Stat. 1985, ch. 110, par. 2 — 1005) (summary judgment) of the Code. (Cf. Metcalfe v. St. Elizabeth’s Hospital (1987), 160 Ill. App. 3d 47, 513 N.E.2d 12.) That plaintiff’s admitted motivation for seeking a voluntary dismissal was to prevent the termination of her action through the entry of summary judgment due to the Rule 220 sanction precluding her from submitting the affidavit of an expert to raise a genuine issue of fact or law does not, as defendants posit, create a conflict between section 2 — 1009 and the rule. Where the statutory requirements are met, the plaintiff is entitled to a voluntary dismissal regardless of the circumstances or motivations. Jacobsen v. Ragsdale (1987), 160 Ill. App. 3d 656, 513 N.E.2d 1112; Rohr v. Knaus (1987), 153 Ill. App. 3d 1013, 506 N.E.2d 634.

Defendants further assert that recent law “confirms that it was within the trial court’s discretion to resolve their pending motions for summary judgment prior to considering plaintiff’s motion to voluntarily dismiss.” Specifically, they cite Dillie v. Bisby (1985), 136 Ill. App. 3d 170, 483 N.E.2d 307, an appeal from the granting of plaintiff’s motion for a voluntary dismissal without consideration by the trial court of the defendant’s Rule 103(b) motion to dismiss. After determining that the holding in O’Connell required reversal and remandment of the case, the Third District Appellate Court in Dillie added, “trial courts should have discretion to consider any defense motion which might result in a dismissal with prejudice prior to ruling on a plaintiff’s voluntary dismissal motion,” 136 Ill. App. 3d at 172, 483 N.E.2d at 308.

Defendants acknowledge that in Mancuso v. Beach (1986), 149 Ill. App. 3d 188, 500 N.E.2d 589, we held that Dillie “is limited to its facts, i.e., to cases involving a section 2 — 1009 motion for voluntary dismissal filed in response to a Rule 103(b) motion to dismiss for lack of due diligence in service of process” (149 Ill. App. 3d at 192, 500 N.E.2d at 591). They submit, however, that the Mancuso decision “misinterprets the Dillie court’s reasoning.” In support thereof, they point out that although the court in Highland v. Stevenson (1987), 153 Ill. App. 3d 390, 505 N.E.2d 776, found no conflict between section 2 — 1009 and Rule 220 which warranted reversal of the order granting plaintiff’s motion to voluntarily dismiss, it expressly stated that its earlier opinion in Dillie modified previous law by giving the trial court discretion to consider any defense motion which might result in an involuntary dismissal prior to ruling on a motion for voluntary dismissal. In Mancuso, which preceded in Highland, we did not criticize Dillie but merely refused to interpret its reference to “any” defense motion as inclusive of all such motions. However, in view of the pronouncement in Highland and defendants’ reliance on it, it is incumbent upon us to clarify our position. To the extent Highland holds that Dillie alters previously existing law by conferring on trial courts the discretion to defer ruling on a motion for voluntary dismissal until after consideration of any defense motion which could result in dismissal with prejudice, we, like the courts in Jacobsen v. Ragsdale (1987), 160 Ill. App. 3d 656, 513 N.E.2d 1112, Metcalfe v. St. Elizabeth’s Hospital (1987), 160 Ill. App. 3d 47, 513 N.E.2d 12, and Gibellina v. Handley (1987), 158 Ill. App. 3d 866, 511 N.E.2d 884, expressly decline to follow it. Instead, we reiterate our adherence to the rule enunciated in Kahle v. John Deere Co. (1984), 104 Ill. 2d 302, 472 N.E.2d 787, and hold that except for the limited exception established in O’Connell, the right to a voluntary dismissal without prejudice prior to the commencement of trial is an absolute right which a trial court has no discretion to deny, a position in accord with the weight of authority in this State. Schmitt v. Motorola, Inc. (1987), 160 Ill. App. 3d 1059, 513 N.E.2d 1069; Jacobsen v. Ragsdale (1987), 160 Ill. App. 3d 656, 513 N.E.2d 1112; Metcalfe v. St. Elizabeth’s Hospital (1987), 160 Ill. App. 3d 47, 513 N.E.2d 12; Gibellina v. Handley (1987), 158 Ill. App. 3d 866, 511 N.E.2d 884; Kendle v. Village of Downers Grove (1987), 156 Ill. App. 3d 545, 509 N.E.2d 723; Rohr v. Knaus (1987), 153 Ill. App. 3d 1013, 506 N.E.2d 634; Kern v. Peabody Coal Co. (1987), 151 Ill. App. 3d 807, 502 N.E.2d 1322; Russ v. Gan dhy (1986), 149 Ill. App. 3d 660, 500 N.E.2d 1032; Davis v. International Harvester Co. (1985), 139 Ill. App. 3d 264, 487 N.E.2d 385.

Defendants’ correlative assertion, that Kahle itself “made a significant inroad into the ‘absolute’ nature of voluntary dismissals” by holding that they are subject to review on appeal, is wholly without merit. As discussed earlier, Kahle was an appeal from a voluntary dismissal granted after the trial court had ruled on motions in limine and denied the plaintiff’s motion for a continuance. In holding that the order was final and appealable, "the supreme court reasoned that if the order were not subject to review, there would be no method by which to determine whether the trial court correctly decided, as a matter of law, that a trial had not begun and therefore correctly entered an order of voluntary dismissal. Clearly, the supreme court in Kahle did not place any additional restrictions on the right to a voluntary dismissal but simply construed the single limitation imposed by the legislature on the otherwise unfettered common law right to a voluntary dismissal.

Finally, defendants argue that this case exemplifies the continuing abuse by plaintiffs of the privilege of voluntarily dismissing actions without prejudice. They point out that this case has been pending in the court system since 1982 and that they have expended considerable time and money incident to defending against it. They urge that not only would a voluntary dismissal work a severe hardship upon them but would also frustrate the efforts of the trial court to enforce established rules of procedure.

Reviewing courts are not unaware of the potential for abuse of the right to a voluntary dismissal. It has been observed, however, that whether abuse exists turns largely on the perspective of the litigants. (Jacobsen v. Ragsdale (1987), 160 Ill. App. 3d 656, 513 N.E.2d 1112; Rohr v. Knaus (1987), 153 Ill. App. 3d 1013, 506 N.E.2d 634). In any event, as the court stated in Kahle:

“The defendants *** do not control the progress of the case *** [and] [w]hile it is unfortunate that [they] have been inconvenienced, that sometimes happens in our adversary system. As long as the dismissal order is subject to review, the defendants have suffered no legal prejudice. (Kahle, 104 Ill. 2d at 307, 472 N.E.2d at 789.)

The court concluded, as we quoted earlier:

“Any further limits on the plaintiff’s common law rights should be enacted by the legislature, not declared by this court.” 104 Ill. 2d at 308, 472 N.E.2d at 789.

Accordingly, and predicated upon the decision of the Illinois Supreme Court in Gibellina v. Handley (1989), 127 Ill. 2d 122, 535 N.E.2d 858, we hold that the trial court erred in denying plaintiff’s motion for a voluntary dismissal and entering summary judgment for defendants, and we reverse and remand the cause for further proceedings without consideration of the remaining issues presented for review.

In holding as we do, we call attention to the special instruction of our supreme court laid down in Gibellina v. Handley, wherein the court held:

“[T]he court today announces that, effective as of the date of filing of this opinion and prospectively only, the trial court may hear and decide a motion which has been filed prior to a section 2 — 1009 motion when that motion, if favorably ruled on by the court, could result in a final disposition of the case. This, of course, does not assure an automatic denial of the section 2— 1009 motion, for it is quite possible that the opposing party’s prior filed motion is without merit; in that case the subsequent 2 — 1009 motion must be granted. This step by our court is necessitated by the noted abusive use of the voluntary dismissal statute.” Gibellina, 127 Ill. 2d at 137-38.

Reversed and remanded.

LORENZ and PINCHAM, JJ., concur.


author: JUSTICE WHITE

text:
      In re APPLICATION OF EDWARD BUSSE (Chicago Title and Trust Company, Trustee, et al., Petitioners-Appellants, v. Trustees of Schools of Township 41 North, Range 11, East of the Third Principal Meridian, Cook County, et al., Respondents-Appellees).
    First District (3rd Division)
    No. 1—88—0668
    Opinion filed May 17, 1989.

      Leo N. Cinquino and Sandra L. Hebenstreit, both of Righeimer, Martin, Bridewell & Cinquino, P.C., of Chicago, for appellants.
    Richard M. Daley, State’s Attorney, of Chicago (Joan S. Cherry, Susan Condon, and Patricia M. Shymankski, Assistant State’s Attorneys, of counsel), for appellee Registrar of Titles of Cook County, Illinois.
    John A. Relias and Brian F. Collins, both of Vedder, Price, Kaufman & Kammholz, of Chicago, for appellee.
   JUSTICE WHITE

delivered the opinion of the court:

Petitioners, Michael Schiessle (Schiessle) and Chicago Title and Trust Company, under provision of trust agreement dated the 17th day of November 1972 and known as trust No. 61065 (Chicago Title), appeal from an order of the circuit court of Cook County dismissing their petition for correction of registrar’s error (the petition). Since we agree with petitioners that the Petition is not barred by the dismissal of a similar petition filed by Chicago Title in 1976, we must reverse the order of the circuit court.

Facts

The history of this litigation up to 1986 is outlined in our opinion entitled In re Application of Busse (1986), 145 Ill. App. 3d 530, 495 N.E.2d 1188 (Busse I) and will not be repeated at length herein.

On October 28, 1976, Chicago Title filed a petition to correct an alleged error of respondent registrar of titles of Cook County (the Registrar) with regard to the registration of certain real property located in Mt. Prospect. The trustees of schools of township 41 North, range 11, east of the third principal meridian, Cook County (the School Trustees), who claim title to the real property, were also named as respondents. On November 10, 1982, respondents filed a motion to dismiss the 1976 Petition for failure to join Schiessle as an indispensable party plaintiff. The motion to dismiss was heard by Judge LaPorta who, on August 22, 1983, granted the motion and allowed Chicago Title 28 days to amend the 1976 Petition to join Schiessle as a copetitioner. Chicago Title then attempted to amend the 1976 Petition by adding Schiessle as a party defendant in light of his alleged refusal to be joined as a plaintiff. On October 3, 1983, Judge LaPorta struck the amendment as being inconsistent with the order of August 22 and gave Chicago Title an additional 14 days to add Schiessle as a copetitioner. However, Chicago Title failed to add Schiessle as a copetitioner, and, on January 9, 1984, Judge LaPorta dismissed the 1976 Petition.

Chicago Title filed a timely appeal from the dismissal of the 1976 Petition. We affirmed Judge LaPorta’s order in Busse I. On September 3, 1987, Chicago Title, joined by Schiessle, filed the petition at issue. The Petition was assigned to Judge Barth of the circuit court. On November 23, 1987, the School Trustees filed a motion to dismiss the Petition in which they argued that the 1976 Petition was dismissed as a sanction against Chicago Title and Schiessle for their failure to comply with rules or court orders concerning discovery. The School Trustees maintained that the dismissal was an adjudication on the merits and consequently barred the subsequent action by Chicago Title and Schiessle. Judge Barth allowed the Registrar to join in the School Trustees’ motion to dismiss, and, on January 28, 1988, granted the motion. Chicago Title and Schiessle have appealed from Judge Barth’s order.

Discussion

The Illinois Supreme Court has clearly held that “the burden of showing that an action is barred under res judicata is upon the party invoking the doctrine” and that “before an adjudication can stand as a bar to a subsequent action, it must be determined whether the first action resulted in a final judgment on the merits.” (People ex rel. Scott v. Chicago Park District (1976), 66 Ill. 2d 65, 68-69, 360 N.E.2d 773.) The court has also specified in Rule 273 (107 Ill. 2d R. 273) that an adjudication on the merits does not occur if a case is dismissed for failure to join an indispensable party. In the instant case, Judge Barth believed that Judge LaPorta dismissed the 1976 Petition as a sanction for petitioners’ failure to comply with court orders. Thus, Judge Barth concluded that the order of January 9, 1984, was an adjudication on the merits and barred the subsequent petition filed by Chicago Title and Schiessle. We believe that Judge Barth’s holding was incorrect. The 1976 Petition was dismissed for failure to join an indispensable party and, accordingly, does not bar the subsequent action filed by Chicago Title and Schiessle.

A judgment or decree, like any other written instrument, is to be construed reasonably and as a whole so as to give effect to the apparent intention of the court (Baldi v. Chicago Title & Trust Co. (1983), 113 Ill. App. 3d 29, 33, 446 N.E.2d 1205; Pope v. Pope (1972), 7 Ill. App. 3d 935, 937, 289 N.E.2d 9), and it must be read and construed in connection with the pleadings (Baldi, 113 Ill. App. 3d at 33). The history of this litigation shows that Judge LaPorta was concerned that Schiessle, a necessary and indispensable party, had not been joined as a petitioner. In his absence, Judge LaPorta could not proceed to a final judgment. Judge LaPorta’s concern is evident from her statement in an order that “failure to join [Michael Schiessle] as party petitioner is sufficient grounds for dismissal of the Second Amended Petition,” and her statement at the hearing on October 20, 1983, that “I will proceed no further with this case until Michael Schiessle is a party. I will not set it for trial. I will not order any discovery or anything until Mr. Schiessle is a party.” We believe that it was Judge LaPorta’s intention to require joinder of Schiessle as a copetitioner and not to impose sanctions upon Chicago Title. Judge LaPorta did not use the word “sanction” in her orders nor did she find that Chicago Title was in contempt of court.

Furthermore, it is evident from the court record that respondents understood that a dismissal of the 1976 Petition would not bar a subsequent action by Chicago Title and Schiessle. Thus, at the hearing on October 20, 1983, Mr. Gorman, the School Trustees’ attorney, asked Judge LaPorta “to enter an order *** dismissing the petition in its entirety for failure to join Michael Schiessle.” Mr. Gorman explained his position:

“I think the case should be dismissed; and then if Mr. Schiessle and Mr. Eley want to get the case back before your Honor, then they comply with [the court’s order to join Schiessle].” (Emphasis added.)

Respondents call our attention to the provision in the January 9, 1984, order that the 1976 Petition is “stricken for failure to comply with the orders of this Court entered on August 22, 1983 and October 3, 1983.” They maintain that this provision shows that the 1976 Petition was dismissed as a sanction. The fact that the order contains this provision, however, does not mean that the 1976 Petition was dismissed as a sanction. Judge LaPorta did not indicate in the order that she was imposing a sanction upon Chicago Title. Nor did she find Chicago Title to be in contempt of court. We believe that respondents have placed too much emphasis on the form of the order and have ignored its substance. See O’Reilly v. Gerber (1981), 95 Ill. App. 3d 947, 420 N.E.2d 425 (dismissal of plaintiff’s action after time allotted by trial court for plaintiff to amend complaint had elapsed was a dismissal for want of prosecution even though trial court stated in its order that the dismissal was for failure to comply with the court’s order regarding the amendment); see also Hare v. Ft. Smith & W.R. Co. (1912), 104 Ark. 187, 148 S.W. 1038 (upon refusal of plaintiff to comply with court order to join necessary parties to suit, the court should only have dismissed the complaint without prejudice); Vizier v. Howard (La. App. 1964), 165 So. 2d 655 (upon defendants’ motion to dismiss action for failure to comply with the order of the court regarding joinder of necessary parties, dismissal should have been without prejudice); Neal v. Hall (La. App. 1946), 28 So. 2d 131 (where plaintiff refused to comply with court order to add co-owners as parties, dismissal of plaintiff’s action should have been without prejudice).

We must also reject respondents’ contention that dismissal of the 1976 Petition was a sanction imposed pursuant to Illinois Supreme Court Rule 219 (107 Ill. 2d R. 219). Supreme Court Rule 219 gives the trial court the power to dismiss an action with prejudice for violation of Supreme Court Rules 201 through 218 (107 Ill. 2d Rules 201 through 218). However, Supreme Court Rules 201 through 218 relate solely to discovery and pretrial procedures. Judge LaPorta did not find that Chicago Title had violated any of these rules, so it is hardly likely that she would have dismissed the 1976 Petition pursuant to Supreme Court Rule 219.

Next, respondents maintain that, in Busse I, this court determined that the 1976 Petition was dismissed as a sanction. We disagree. It is well settled that what has been adjudicated is to be determined not from the opinion rendered but from a consideration of the judgment actually entered in reference to the issues presented for decision. (People ex rel. Scott, 66 Ill. 2d at 70.) In its brief in Busse I, the School Trustees stated the issue presented for review thus:

“The sole issue before this Court is properly stated as follows: ‘Whether the trial court, in the exercise of its discretion based upon the facts of this case, was correct in dismissing the Land Trustee’s Second Amended Petition for Correction of Registrar’s Error for failure to join an indispensible [sic] necessary party plaintiff.’ ”

The School Trustees also stated that the “only statute which relates to any issue properly before this court is Ill. Rev. Stat. ch. 110, §2— 407 which deals with, inter alia, the non-joinder of a necessary party.” The Registrar adopted “the arguments presented by the TRUSTEES OF SCHOOLS in response to petitioner’s allegation that the Trial Court erroneously dismissed the Second Amended Complaint for failure to join Michael Schiessle as an indispensable party.” Thus, all parties in Busse I believed that the issue on appeal was whether Judge LaPorta properly dismissed the 1976 Petition for failure to join an indispensable party. This court indicated its holding on the issue at page 536 of the opinion:

“We will not countenance any continuation of such abuse by one directing litigation from behind the curtain of a fictional entity and therefore affirm the trial court’s dismissal of the second amended petition and the amendments thereto for failure to join an indispensable party plaintiff.” Busse, 145 Ill. App. 3d at 536.

We are aware of the language in Busse I that dismissal of the 1976 Petition “was a sanction imposed for failure to comply with the trial court’s orders.” However, all of the language in an opinion does not necessarily express the actual holding by the court. (People ex rel. Scott, 66 Ill. 2d at 70.) The statement in question was made in the discussion of another issue on appeal (that is whether the denial of Chicago Title’s motion for summary judgment should be reviewed). We do not believe that the statement modified the holding regarding the order of January 9, 1984, and joinder of Schiessle. We note that the actual discussion regarding the order of January 9, 1984, and joinder of Schiessle does not contain any reference to sanctions. The opinion in Busse I must be construed reasonably.

We note that respondents did not argue in their briefs in Busse I that the dismissal of the 1976 Petition was a sanction imposed by Judge LaPorta. Respondents did not raise this argument until Chicago Title and Schiessle filed the new petition in 1987. Respondents should not be heard to argue at this time that the 1976 Petition was dismissed as a sanction.

In conclusion, we are of the opinion that the 1976 Petition was dismissed for failure to join a necessary party. Such a dismissal cannot bar the subsequent action by Chicago Title and Schiessle. Accordingly, the judgment of the circuit court of Cook County is reversed.

Reversed.

FREEMAN, P.J., and RIZZI, J., concur.

      The petition filed in 1976 was twice amended. However, for the sake of clarity, we will refer to the original petition and to the amendments to the petition as the “1976 Petition.”


text:
    EXTEL CORPORATION, Plaintiff and Counterdefendant-Appellant, v. CERMETEK MICROELECTRONICS, INC., Defendant and Counterplaintiff-Appellee.
    First District (3rd Division)
    No. 1—88—0725
    Opinion filed May 17, 1989.

      Michael J. Garvey, of Baker & McKenzie, of Chicago, for appellant.
    John K. Kallman and Richard S. Davis, both of Rudnick & Wolfe, of Chicago, for appellee.
   JUSTICE WHITE

delivered the opinion of the court;

Plaintiff, Extel Corp., appeals from a partial summary judgment in favor of defendant, Cermetek Microelectronics, Inc., on a counterclaim filed by defendant in plaintiff’s action against defendant for breach of warranty. Plaintiff argues that a genuine issue of material fact existed and, therefore, the trial court erred in granting defendant’s motion for summary judgment.

Plaintiff is engaged in manufacturing and selling telecommunications equipment. Defendant is engaged in the manufacture and marketing of modems and modem components for use in computers, computer terminals, and other electronic equipment. In 1983 and 1984, plaintiff agreed to purchase 4,003 CH1760E modems from defendant, at a total purchase price of $840,000, for use in computer terminals to be sold to plaintiff’s customers. The modems were delivered in 1984 and 1985 and incorporated into plaintiff’s “ComWriter” terminals, which were sold to plaintiff’s customers. After receiving a number of complaints from customers that the modems were unsatisfactory and after unsuccessful repair attempts, plaintiff brought this action alleging that defendant had breached an implied warranty that the modems were of merchantable quality.

Defendant answered denying that its modems were not of a merchantable quality. In addition, defendant filed a counterclaim alleging that in 1986 it shipped 1,500 CH1812 modem components to plaintiff for which plaintiff had failed to pay. Defendant’s counterclaim sought to recover the purchase price of the modem components plus, as provided for in the shipment invoice, interest at 18% per annum.

Subsequently, defendant filed a motion for summary judgment on its counterclaim. In its motion, defendant pointed out that in plaintiff’s answer to defendant’s counterclaim and in plaintiff’s responses to defendant’s interrogatories, plaintiff did not deny that it owed defendant’s $22,940 for the modem components but stated that it was withholding payment as an offset against damages incurred as a result of the modem purchases. Defendant argued that plaintiff’s claim of breach of warranty in connection with the modems and defendant’s counterclaim for payment for the modem components arose from two different contracts and, therefore, plaintiff could not withhold payment for the modem components as an offset for damages allegedly suffered in connection with the sale of the modems.

In its response to defendant’s motion, plaintiff argued that a genuine issue of material fact existed as to whether the purchase of the modems and the purchase of the modem components were related. In support of its argument, plaintiff filed the affidavit of David Wonak, plaintiff’s vice-president of engineering. Wonak’s affidavit stated that he “understood *** that Cermetek would resolve problems with modems and modem components on an overall basis.”

Defendant filed a counteraffidavit in which its chairman, Howard Raphael, stated that defendant never agreed that plaintiff could withhold payment for the modem components because of its dissatisfaction with the modems. Raphael also stated that plaintiff never suggested or requested such a setoff.

Following a hearing, the trial court entered summary judgment on defendant’s counterclaim and granted defendant’s request for prejudgment interest. This appeal followed.

Plaintiff contends that the trial court’s grant of summary judgment was improper because the statements in David Wonak’s affidavit raised a genuine issue of material fact. We disagree.

A court will grant a motion for summary judgment when the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. (Ill. Rev. Stat. 1985, ch. 110, par. 2 — 1005.) The purpose of a summary judgment proceeding is to ascertain whether there is any genuine issue of material fact and to dispose of those cases where none exists. (Loveland v. City of Lewistown (1980), 84 Ill. App. 3d 190, 405 N.E.2d 453.) In order to defeat a motion for summary judgment, the opponent must show, through affidavits or other proper materials, that a material issue of evidentiary fact exists. (Prince v. Wolf (1981), 93 Ill. App. 3d 505, 417 N.E.2d 679; Cohen v. Washington Manufacturing Co. (1979), 80 Ill. App. 3d 1, 398 N.E.2d 202.) Under Supreme Court Rule 191(a), an affidavit in opposition to a motion for summary judgment must be based on the personal knowledge of the affiant, it must set forth with particularity the facts upon which the defense is based, and it must show affirmatively that the affiant can testify competently to the facts therein. (107 Ill. 2d R. 191(a); Manuel v. McKissack (1978), 60 Ill. App. 3d 654, 377 N.E.2d 219.) The affidavit must recite facts, not mere conclusions. (Brewer v. Daubert Chemical Co. (1979), 72 Ill. App. 3d 718, 391 N.E.2d 110.) An allegation that a genuine issue of fact exists, without presentation of supporting documentation, does not create a genuine issue of material fact. GoTane Service Stations, Inc. v. Sharp (1979), 78 Ill. App. 3d 785, 397 N.E.2d 249; Illinois Valley Minerals Corp. v. Royal-Globe Insurance Co. (1979), 70 Ill. App. 3d 296, 388 N.E.2d 253.

In Go-Tane Service Stations, Inc. v. Sharp, an affidavit filed in opposition to a motion for summary judgment stated that the affiant had been in the banking business for 25 years and that, after examining certain checks, he had concluded that they had not been returned before the midnight deadline. The appellate court found that this affidavit was insufficient under Supreme Court Rule 191(a) since it merely asserted an opinion and failed to state the specific facts which formed the basis of the affiant’s conclusions.

In Cohen v. Washington Manufacturing Co., this court upheld the trial court’s grant of summary judgment for defendant where the only evidence in opposition to the motion was a statement in plaintiff’s deposition that he “understood” that he was to receive a commission from defendant. This court pointed out that plaintiff had failed to file an affidavit showing that defendant had agreed to such an arrangement or setting forth the facts of the agreement. The court stated that it appeared that the alleged agreement was based solely on plaintiff’s assumptions and that because there was nothing in the record to support the existence of an agreement, summary judgment was proper.

It appears that in the present case, as in Cohen, the alleged agreement was based solely on plaintiff’s assumptions. The affidavit filed in opposition to defendant’s motion for summary judgment merely stated that the affiant “understood” that defendant would resolve problems with the modems and modem components on an overall basis. There was no claim that defendant had agreed that payment for the modem components could be used to offset damages incurred as a result of the modem purchases, and no facts were presented setting forth the basis of the alleged agreement between plaintiff and defendant. Because plaintiff’s affidavit failed to state the specific facts which formed the basis for plaintiff’s assumption that an offset agreement existed, the affidavit was insufficient to raise a genuine issue of material fact.

Plaintiff also argues that the trial court erred in granting defendant’s request for prejudgment interest. Under the terms of the invoices that accompanied the modem components delivered to plaintiff, accounts not paid in full within 30 days were subject to an 18% per annum finance charge. Plaintiff contends that defendant’s invoices were unilateral documents and that, because there was no agreement between the parties as to interest, the trial court’s award of interest was improper. This argument is without merit.

Under section 2 — 207 of the Uniform Commercial Code (Ill. Rev. Stat. 1985, ch. 26, par. 2 — 207), an additional term in an acceptance or written confirmation will become part of a contract between merchants unless the offer expressly limits acceptance to the terms of the offer; the additional terms materially alter the contract; or an objection to the terms is made within a reasonable time.

In the present case, there was no showing that acceptance was limited to the terms of the offer or that plaintiff objected to the interest provision within a reasonable time. Further, a clause providing for interest on overdue invoices does not constitute a material alteration of a contract. (Ill. Ann. Stat., ch. 26, par. 2 — 207, Uniform Commercial Code Comment, at 153 (Smith-Hurd 1963).) Accordingly, the terms in defendant’s invoices became a part of the parties’ contract and the trial court award of prejudgment interest was proper.

For the foregoing reasons, the judgment of the circuit court of Cook County is affirmed.

Affirmed.

McNAMARA and RIZZI, JJ., concur.

       Justice McNamara participated in this opinion prior to his assignment to the sixth division.