This statutory provision allowing a plaintiff to dismiss an action at any time before a trial or a hearing begins is an absolute right and is not tempered by any discretionary language in the statute. Kendle v. Village of Downers Grove (1987), 156 Ill. App.3d 545, 550; see also Moody's Investors Service, Inc. v. Department of Revenue (1984), 101 Ill.2d 291, 297. Defendants nonetheless argue that their motions for summary judgment had the same effect as a trial and that the trial court had discretion to consider those motions before plaintiff's motion for 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
(quoting Tenneco Inc. v. Saxony Bar & Tube, Inc. , 776 F.2d 1375, 1379 (7th Cir. 1985) )). For instance, in Kendle v. Village of Downers Grove , 156 Ill. App. 3d 545, 554, 109 Ill.Dec. 62, 509 N.E.2d 723 (1987), the court held that neither of the defendants' answers "contained a specific prayer for relief or raised a substantive cause of action against plaintiffs." Thus, they could not be considered counterclaims.
This is an absolute right and is not tempered by any discretionary language in the statute. Kendle v. Village of Downers Grove, 156 Ill. App. 3d 545, 550 (1987). When notice is given and proper costs paid, a plaintiff's right to a voluntary dismissal without prejudice prior to trial or hearing is absolute, and the court has no discretion to deny plaintiff's motion for dismissal. Kendle, 156 Ill. App. 3d at 550. ¶ 22 Here, the parties do not dispute that no trial or hearing had taken place on petitioners' declaratory judgment action to determine the right and title to funds purportedly held by the trust or their request for instructions on how to distribute the funds.
Where the trial court is vested with the authority to impose various sanctions for failure to comply, we conclude that the statutory provisions in question do not unduly infringe upon the supreme court's constitutional rulemaking authority when such sanctions are relied upon to escape a pending motion to dismiss premised upon Rule 219(c). Further, in reaching our conclusion we have reviewed Mancuso v. Beach (1986), 149 Ill. App.3d 188, 500 N.E.2d 589, Highland v. Stevenson (1987), 153 Ill. App.3d 390, 505 N.E.2d 776, appeal denied (1987), 116 Ill.2d 555, Rohr v. Knaus (1987), 153 Ill. App.3d 1013, 506 N.E.2d 634, appeal denied (1987), 116 Ill.2d 575, Russ v. Gandhy (1986), 149 Ill. App.3d 660, 500 N.E.2d 1032, appeal denied (1987), 113 Ill.2d 584, Kendle v. Village of Downers Grove (1987), 156 Ill. App.3d 545, 509 N.E.2d 723, appeal denied (1987), 116 Ill.2d 559, and Gibellina v. Handley (1987), 158 Ill. App.3d 866, 511 N.E.2d 884, appeal allowed No. 65781 and cause consolidated with No. 66010, Schmitt v. Motorola, Inc. (1987), 160 Ill. App.3d 1059, 513 N.E.2d 1069. In Mancuso, Highland, Rohr, Russ, Kendle and Gibellina, the appellate courts addressed the propriety of granting plaintiffs' section 2-1009 motions to dismiss while defense motions to dismiss premised upon section 2-615 of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2-615) ( Mancuso) or a motion for summary judgment ( Highland, Rohr, Russ, Kendle and Gibellina) were pending.
Kern v. Peabody Coal Co. (1987), 151 Ill. App.3d 807, 810-11, 502 N.E.2d 1322; Mancuso v. Beach (1986), 149 Ill. App.3d 188, 190-92, 500 N.E.2d 589. We recently reached the same conclusion, that O'Connell is limited to Rule 103(b) motions, in Kendle v. Village of Downers Grove (1987), 156 Ill. App.3d 545, 551, where we determined that the trial court had no discretion to deny the plaintiffs' motion for voluntary dismissal based on the alleged hardship to the defendants. We agree with the Fifth District approach that the trial court did not have discretion to rule on the defendants' summary judgment motions here, and, therefore, plaintiff's motion for voluntary dismissal pursuant to section 2-1009 should have been granted.
In declaratory judgment actions, an answer that includes a prayer for specific relief may be considered a counterclaim. Kendle v. Village of Downers Grove, 156 Ill. App.3d 545, 553 (1987); In re Estate of Soderholm, 127 Ill. App.3d 871, 875 (1984). Where the answer to a complaint for a declaratory judgment meets and controverts the issues raised by the complaint, no formal counterclaim is required to allow the court to declare the rights of all of the parties. Johnson v. Town of the City of Evanston, 39 Ill. App.3d 419, 423 (1976).
Furthermore, plaintiffs' absolute right to voluntary dismissal without prejudice is not affected by any hardship to the defendant. ( Kendle v. Village of Downers Grove (1987), 156 Ill. App.3d 545, 509 N.E.2d 723.) Finally, we note the most common use for this rule is to enable plaintiffs to correct technical errors in their pleadings.
O'Connell, 112 Ill.2d at 283. The O'Connell case, until our supreme court's decision in Gibellina v. Handley (1989), 127 Ill.2d 122, 535 N.E.2d 858, was the only exception ever made to the absolute right afforded a plaintiff by section 2-1009 to obtain a voluntary dismissal prior to the start of trial or hearing. Attempts 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) have been unsuccessful. ( Metcalfe v. St. Elizabeth's Hospital (1987), 160 Ill. App.3d 47, 513 N.E.2d 12; Kendle v. Village of Downers Grove (1987), 156 Ill. App.3d 545, 509 N.E.2d 723; 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.) Thus, outside of the limited exception established in O'Connell, a plaintiff's right to a voluntary dismissal was still absolute if requested prior to the start of trial or hearing.
r there was pending before it only plaintiffs' complaint, the defendants' motions to dismiss it premised upon sections 2-622 and 2-619 of the Code of Civil Procedure, and plaintiffs' motion for voluntary dismissal under section 2-1009. It is established that a plaintiff's absolute right to voluntary dismissal without prejudice has been limited only by the requirement that it be exercised prior to commencement of a trial or hearing equivalent to a trial ( Kahle v. John Deere Co. (1984), 104 Ill.2d 302, 472 N.E.2d 787) and after a hearing on the merits of any pending motion to dismiss by a defendant under Supreme Court Rule 103(b) (107 Ill.2d R. 103(b)) for lack of diligence in obtaining service of process. ( O'Connell v. St. Francis Hospital (1986), 112 Ill.2d 273, 492 N.E.2d 1322.) No other exceptions to plaintiff's right of voluntary dismissal have been interposed by our supreme court or the General Assembly. ( Gibellina v. Handley (1987), 158 Ill. App.3d 866, 868-69, 511 N.E.2d 884; Kendle v. Village of Downers Grove (1987), 156 Ill. App.3d 545, 551, 509 N.E.2d 723; Rohr v. Knaus (1987), 153 Ill. App.3d 1013, 1017, 506 N.E.2d 634.) It necessarily follows in the present case that upon vacating its earlier order, the trial court correctly granted plaintiff's motion to voluntarily dismiss its complaint under section 2-1009 of the Code of Civil Procedure. • 8 Defendants also contend that the hearing held on their motions to dismiss the complaint was a "hearing" for purposes of section 2-1009(a) of the Code of Civil Procedure, which provides that a plaintiff "at any time before trial or hearing begins" may dismiss his action without prejudice. It has been held that in the context of section 2-1009, a "hearing" is the equitable equivalent of a trial ( Kahle v. John Deere Co. (1984), 104 Ill.2d 302, 309, 472 N.E.2d 787) and does not commence until the parties begin to present evidence and arguments in order to achieve an ultimate determination of their rights.