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12/15/88 Ferne Kilpatrick Et Al., v. First Church of the

December 15, 1988

FERNE KILPATRICK ET AL., PLAINTIFFS-APPELLEES

v.

FIRST CHURCH OF THE NAZARENE, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, FOURTH DISTRICT

531 N.E.2d 1135, 177 Ill. App. 3d 83, 126 Ill. Dec. 508 1988.IL.1813

Appeal from the Circuit Court of Woodford County; the Hon. Richard M. Baner, Judge, presiding.

APPELLATE Judges:

JUSTICE LUND delivered the opinion of the court. KNECHT and GREEN, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE LUND

Plaintiffs Ferne Kilpatrick and Raymond Kilpatrick moved for a voluntary dismissal under the authority of section 2-1009 of the Code of Civil Procedure (Code) (Ill. Rev. Stat. 1985, ch. 110, par. 2-1009). The motion followed the granting of a mistrial attributed to the conduct of plaintiffs' attorney and also following the denial of a motion for change of trial Judge. The motion was granted over defendant's objections. Defendant appeals.

This case has a history of conflict. The first trial was commenced in November 1986 with the selection of four jurors. The second trial in 1987, which resulted in the mistrial, proceeded into the evidentiary stage.

Section 2 -- 1009 of the Code provides, in relevant 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. Thereafter the plaintiff may dismiss, only on terms fixed by the court (1) upon filing a stipulation to that effect signed by the defendant, or (2) on motion specifying the ground for dismissal, which shall be supported by affidavit or other proof." Ill. Rev. Stat. 1985, ch. 110, par. 2-1009(a). I

Defendant argues that the proceeding in November 1986 was the commencement of the trial and, thus, plaintiffs' absolute right to dismissal is lost. On November 17, 1986, jury selection commenced in the case. After accepting the first panel of four jurors, plaintiffs tendered it to defendant. During defendant's voir dire, a dispute arose as to the presence of the issue of comparative fault in the case. Ultimately, plaintiffs' motion for a continuance was granted, the trial setting being vacated.

The general rule in Illinois is that a plaintiff can voluntarily dismiss his action without prejudice any time before trial begins. (Williams v. Joliet Mass Transit System (1983), 114 Ill. App. 3d 1004, 1005, 449 N.E.2d 1042, 1043.) However, the question of whether a trial has begun is not a matter of discretion but a substantial legal question. (Cummings v. Simmons (1988), 167 Ill. App. 3d 544, 547, 521 N.E.2d 634, 636.) In arguing the trial has commenced, defendant relies on Cummings. In Cummings, four jurors were sworn before plaintiff moved for a voluntary dismissal, which was granted. On appeal, this court reversed. After reviewing the case law and the legislative purpose, we held that once jury selection has commenced, a trial has begun, and the right to a section 2 -- 1009 dismissal is curtailed. We stated:

"As a practical matter, jury selection can take days, weeks, or months. To allow plaintiff to dismiss her cause of action after voir dire has begun and before all 12 jurors are sworn in can result in abuse analogous to that designed to be corrected by section 2 -- 1009. Under plaintiff's theory, a plaintiff who had expended all his peremptory challenges could move for voluntary dismissal in the later stages of jury selection if the remaining jurors were not to his liking. This would result in a waste of judicial resources as well as the resources of the parties. While inconvenience may occur in our adversary system (Kahle, 104 Ill. 2d at 305, 472 N.E.2d at 789), we are not persuaded the legislature intended that section 2 -- 1009 should cause this kind of result.

. . . Our legislature may wish to consider amending section 2 -- 1009 to provide guidance in future cases." Cummings, 167 Ill. App. 3d at 548, 521 N.E.2d at 637.

Defendant argues the present case is identical with Cummings since in the present case, plaintiffs accepted four jurors in November 1986. It, therefore, asserts the absolute right to dismissal is lost. Plaintiffs, in their 1 ...


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