"A determination of the existence of a lack of diligent prosecution rests within the sound discretion of the [circuit] court and should not be disturbed without a finding of an abuse of that discretion." Prosen v. Chowaniec, 271 Ill.App.3d 65, 67, 646 N.E.2d 1311, 1312 (1995). "An abuse of discretion occurs only when the circuit court's ruling is arbitrary or fanciful or when no reasonable person would adopt the view of the circuit court."
ΒΆ 40 We recognize that courts possess the inherent power to dismiss actions for want of prosecution, and the determination of the existence of a lack of prosecution rests within the sound discretion of the trial court. Prosen v. Chowaniec, 271 Ill.App.3d 65, 67 (1995). "However, a dismissal for want of prosecution is error unless the party has been guilty of inexcusable delay in prosecuting the suit."
Kruger, 2015 IL App (4th) 131080, ΒΆ 11 (citing Department of Revenue v. Steinkopf, 160 Ill. App. 3d 1008, 1018 (1987)). We will reverse the circuit court only if it has abused its discretion in dismissing for want of prosecution.Prosen v.Chowaniec, 271 Ill. App. 3d 65, 67 (1995). ΒΆ 12 Similarly, we will reverse the circuit court's denial of a motion to vacate a dismissal for want of prosecution only if the court abused its discretion.
Likewise, a request for an interlocutory appeal under Rule 308 is entirely optional, and "nothing in Rule 308 or in case law states that failure to assert one's rights under the rule amounts to waiver of the issue." Prosen v. Chowaniec, 271 Ill. App. 3d 65, 68, 646 N.E.2d 1311, 1313 (1995). A litigant is not required to pursue a permissive interlocutory appeal. Gabriel's decision not to pursue a permissive interlocutory appeal did not waive his right to appeal the Illinois court's decision to apply California law.
To plead a cause of action for the tort of interference with an expectancy of receiving property pursuant to a will, plaintiffs must allege: (1) the existence of an expectancy; (2) defendant's intentional interference with that expectancy; (3) interference that involves tortious conduct such as fraud, duress, or undue influence; (4) a reasonable certainty that the expected property would have been received but for defendant's interference; and (5) damages. Simon v. Wilson, 291 Ill. App. 3d 495, 507 (1997) (citing Prosen v. Chowaniec, 271 Ill. App. 3d 65, 67 (1995)). "The remedy for an intentional interference with a testamentary expectancy is not the setting aside of the will, but a judgment against the individual defendant.
To plead a cause of action for tortious interference with an expectancy of receiving property pursuant to a will, plaintiffs must allege (1) the existence of an expectancy; (2) defendant's intentional interference with that expectancy; (3) the interference involves tortious conduct such as fraud, duress, or undue influence; (4) a reasonable certainty that the devise would have been received but for defendant's interference; and (5) damages. Prosen v. Chowaniec, 271 Ill. App.3d 65, 67 (1995). In the present case, we agree with the trial court that plaintiffs have not sufficiently pled a cause of action for tortious interference with an expectancy under a will and affirm the trial court's dismissal of that count.