*1 instructed the Commission “make findings respect of fact in odd-lot factors and give cite the evidence and reasons in support of findings.” complied Commission with the circuit court’s rul- ing. find Accordingly, no error.

III. CONCLUSION For above, the reasons set forth judgment we affirm the circuit of Cook County, which confirmed the decision of the Commission.

Affirmed.

McCULLOUGH, EJ, HOFFMAN, HOLDRIDGE, and DONO- VAN, JJ, concur. MOLINE,

DONNA Plaintiff-Appellant, VYAS, v. HARSHAVADAN Defendant-

Appellee. Third District No. 3 - 06-0030

Opinion filed June LYTTON, P.J, dissenting. Peters, Chicago, appellant.

Randall E Gos- Gorcowski, Dykema, both of Davis and Pamela Robert R. Gorbold Joliet, sett, Rooks, PLLC, appellee. Pitts, of the court: opinion delivered JUSTICE SCHMIDT defendant, Harshavadan Moline, sued the Donna plaintiff, trial, the One week M.D., alleging malpractice. medical Vyas, *2 awarded suit, the circuit court her and dismissed voluntarily plaintiff and stenographer, professional videographer, for to the defendant treating an out-of-state of an fees associated with the circuit court defendant has conceded Because the physician. fee, on the issue professional costs for should not have awarded plaintiff ordered the erred when it circuit court is whether the appeal from an evidence fees and videographer to pay in part. reverse part affirm in deposition. We

FACTS 30, 2000, alleging filed her suit on October plaintiff treatment of the negligent evaluation and was his defendant January 24, The case was set for trial on medical condition. plaintiffs 18, 2005, the pretrial hearing January plaintiff on At the final entered an order voluntarily her case. The circuit court dismissed of pursuant to section 2—1009 dismissing prejudice without the case 2004)). (735 (West (Code) the Code of Procedure ILCS Civil 5/2—1009 in the amount of $50 costs to the defendant The court also awarded Finally, the court ordered videographer fees and fees. plus witness of the regarding any for a hearing be scheduled that the case would objected. plaintiff fees which the 2005, pay- 26, approve filed a motion to January

On the defendant (1) following sought of the fees: payment The defendant able costs. (2) testimony of a fee; the trial witness fee for appearance $43.50 $50 (3) doctor; doctor; fee of another witness $43.50 (4) Dr. Deborah professional fee for the $750 (5) deposition; and videographer from the evidence Lightner; fee $171 (6) deposition. reporter fee from the $288.60 appearance fee. except all of for the plaintiff objected $50 the fees February hearing fees on circuit court held a on the Ill. 2d 441 N.E.2d Citing Corp., 92 Galowich v. Beech Aircraft voluntarily dismisses plaintiff who plaintiff argued that the defendant’s pay her be ordered to before trial cannot case distin that the case law expenses. The determined and that the guished discovery depositions from evidence discovery deposition fees. only to applied Galowieh line of cases Furthermore, depositions are used court found that evidence are therefore taxable as costs. The court then ordered the plaintiff appearance the $50 fee and videographer, stenographer, professional fees associated Dr. Lightner’s deposition, but ordered that the two $43.50 fees were not tax- able as costs. The appealed.

ANALYSIS On appeal, argues that the circuit court erred when it ordered her to videographer, stenographer, and professional fees from the Lightner. of Dr. The defendant professional concedes the fee improper, award was but contends that the circuit court properly awarded videographer and stenographer fees the defendant.

Because the recovery allowance and derogation costs is in law, common the authority to award costs must come via statute. Ga lowich, (735 92 Ill. 2d 441 N.E.2d 318. Section 5—109 of the Code (West 2004)) ILCS allows defendant to recover costs if the 5/5—109 plaintiff voluntarily dismisses her action. The expressly Code authorizes the supreme court to “provide by rule for the assess (West 2004). ment of costs.” 735 ILCS Supreme Court Rule 5/1—105 208) provides: Ill. 2d R. “(a) Pay. Who Shall at whose instance the *3 pay taken shall the fees of the witness and of the officer the charges attending. recorder or party at request whose a is transcribed and filed shall the charges for transcription filing. request at whose tape-recorded deposition is having filed without been transcribed charges filing, shall the if such is subse- quently party requesting charges transcribed the it shall pay the transcription. for such $ $ $

(d) Taxing as charges may Costs. aforesaid fees and in the discretion the trial court be taxed as costs.” Galowich, In plaintiffs voluntarily the dismissed their case before trial, and the defendants sought costs, to recover numerous fees and including Galowich, their deposition expenses. 157, 441 92 Ill. 2d 208(d) supreme N.E.2d court held that “Rule [authorizes] costs, discretion, to expenses only court tax as in its the depositions necessarily Galowich, used at trial.” 92 Ill. 2d at 166, 441 N.E.2d at 322. Because the did go case to the supreme discovery court held that the defendants could not recover deposition expenses. Galowich, 157, 92 Ill. 2d 441 N.E.2d 318. argues distinguishable

The defendant from this Galowich is discovery expenses case because Galowich involved associated with

1101 could the defendants whether in Galowich was depositions. The issue the discovery deposition when associated with recover the costs Galowich, 92 Ill. trial. voluntarily the case before dismissed plaintiffs cases, issue has 322. In several other 166, 2d 441 N.E.2d the costs associated plaintiff could recover been whether Builders, Inc., Lincoln-Way trial. v. depositions after Vicencio Ramey, App. 329 Ill. (2003); v. 295, 290 Boehm 204 Ill. 2d 789 N.E.2d McMillan, App. 322 Ill. 3d (2002); v. 357, 493 Irwin 3d 771 N.E.2d 1076, Harris, (2001); App. 308 Ill. 3d v. 861, Perkins 750 N.E.2d (1999). Here, whether the defendant we must decide N.E.2d 1131 when the associated with an evidence can recover the costs trial. dismissed the case before plaintiff voluntarily Thomp in Howell v. question The Second District addressed this (1987). 466, While the son, 3d 514 N.E.2d App. 161 Ill. discovery only depositions, recognized that Galowich involved apply supreme court intended Galowich court held that opinion “Although [Galowich] court’s depositions as well: holding depositions, its did types of recognized the two different applicable to evidence create a different rule purport to 467, Howell, 514 N.E.2d App. here.” 161 Ill. 3d and we cannot do so did not ad decline to follow Howell. Galowich respectfully at 814. We depositions. dress evidence out, before the Ga- pointed question

As previously we have discovery depositions, not evidence lowich court involved Furthermore, intending establish a rule do not read Galowich as regarding depositions; any by discussion regarding Therefore, look we must was obiter dictum. resolving in this issue. guidance elsewhere for (West Reading of the Code ILCS section 5—109 5/5—109 2004)) appear that a defendant conjunction with Rule it would regard deposition, with an evidence can recover the costs associated gone trial. The decision to award of whether the case has less (Perkins, App. court’s discretion rests within the circuit mean 1131); of costs does not 720 N.E.2d the award punished. losing party being Myers Bash, App. Ill. 778 N.E.2d 320 In v. *4 after the sought recovery deposition of evidence costs “neces Myers deemphasized trial. The Galowich’s prevailed at test, limited relevance with stating that it had sarily used at trial” taken with depositions are depositions evidence because all evidence Instead, the court focused its be at trial. they the intent that will used expenses associated with can analysis party on whether a recover Myers, trial. depositions prevailed evidence after the has Ill. App. 3d Noting N.E.2d 320. supreme court rules preference evidenced a for presenting the physicians via evidence rather than testimony, live the court held that a plaintiff could recover the depositions costs of evidence under Rule prevailed 208 after the plaintiff Myers, at trial. Ill. App. 778 N.E.2d 320.

Obviously, Galowictis “necessarily used at trial” test also has limited relevance in our situation. There nowas trial. The evidence deposition at issue was that of an treating out-of-state physician. Even though it trial,” not “necessarily was used at this deposition expense was necessarily incurred before was incurred for trial. The physician beyond out-of-state was the reach anof Illinois subpoena. trial A judge going trial is not to recess trial and send the jury home the lawyers jurisdiction while travel to another to obtain a deposition. taking Given the fact that this evidence given trial was necessary, supreme preference court rules’ taking depositions of physicians, that, we hold after a voluntary dismissal, a may defendant be entitled to recover the costs of necessary anticipation taken in of an upcoming trial. existing precedent,

Under the defendant in this case would have been able to recover Lightner’s associated with Dr. (1) (2) deposition if gone trial; the case had was used (3) trial; prevailed the defendant Vicencio, at trial. See 789 N.E.2d 290. The circuit court Lightner’s found that Dr. necessary was and that it have would been used at awarding trial. We find no abuse of reporter’s discretion fees deposition. this evidence 208) Lastly, Supreme we note that Court Rule 208 Ill. 2d R. recovery allows the of recording or costs associated with In case, this only the evidence was not recorded by reporter, videotaped. a court A attorney but also has a choice present as to how he or deposition testimony jury. See, she will to a (“The e.g., 206(g)(6) videotape 188 Ill. 2d R. deposition may of a be presented trial in reading stenographic lieu of transcrip from deposition”). particular very tion If a good witness makes a physical appearance during deposition, lawyer may present decide to hand, videotape jury. lawyer to the On the other a trial will often not even a videotape witness with critical evidence if that has may mannerisms from being detract the evidence that Instead, presented. jury by will be read someone in, present hopefully, who can the evidence a more credible fashion (or than Clearly, videotape the actual witness. whether or

1103 strategy is a matter videotape) deposition therefore, award was, abuse of discretion to an that it and we believe videographer’s fees.

CONCLUSION the reasons, portion of court’s affirm the foregoing For the with stenographer fee associated directing plaintiff pay the order portions of the Lightner, reverse the of Dr. but the evidence videographer associated directing plaintiff court’s order fees. professional and County in La is affirmed judgment of circuit court of Salle in

part part. and reversed part. in in part Affirmed reversed McDADE,J., concurs. LYTTON,dissenting: JUSTICE

PRESIDING Thompson, in agree District’s decision Howell v. I Second who plaintiff that App. 514 N.E.2d 813 required his case trial cannot be voluntarily dismisses 208(d). Rule expenses pursuant Supreme Court hold the court’s majority’s decision in this case contravenes 208(d) authority for the assess ing in Galowich that “Rule cannot be against a who deposition expenses ment of a defendant’s Galowich, Ill. at trial.” voluntarily dismisses his case before discovery depositions Although the in Galowich addressed holding to limit its the court did discovery depositions. deposi that evidence

Nothing supports in the conclusion Galowich differently. The be discovery depositions tions and should treated 208(d) authorizes] in that “Rule court Galowich stated costs, discretion, expenses only deposi its court to tax as added.) Galowich, Ill. 2d (Emphasis used at trial.” tions holding Thus, majority’s that evidence at 441 N.E.2d at 322. they if are not even can be taxed as costs at used trial defies Galowich. conjecture conclude majority speculation relies on a different rule to apply

the court would in this case “would the evidence majority speculates that Well, But perhaps. App. trial.” Ill. 3d at been used at have trial, actual and it that it was not used we know for certain the court to tax deposition at trial that authorizes use of the 208(d). expense pursuant as costs Howell, to Rule See 161 Ill. App. 3d 514 N.E.2d at 814. Because there nowas trial in this case and no use of I would find that the trial court improperly ordered plaintiff to pay defendant’s expenses.

THE ILLINOIS, PEOPLE OF THE OF Plaintiff-Appellee, STATE v. MONTGOMERY,

MARTEL Defendant-Appellant. Fourth District No. 4 - 05-0151 Opinion Rehearing July 24, filed June denied