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01/27/95 TAMIKO ARNETT v. J.D. YOUNG AND JIFFY CAB

January 27, 1995

TAMIKO ARNETT, A MINOR, BY HER NEXT FRIEND, PINKY ARNETT, PLAINTIFF-APPELLANT,
v.
J.D. YOUNG AND JIFFY CAB COMPANY, DEFENDANTS-APPELLEES.



APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. THE HONORABLE SIDNEY JONES, III JUDGE PRESIDING.

Released for Publication March 21, 1995.

Presiding Justice Cousins delivered the opinion of the court: Gordon and O'brien, T. JJ., concur.

The opinion of the court was delivered by: Cousins

PRESIDING JUSTICE COUSINS delivered the opinion of the court:

Tamiko Arnett (plaintiff) brought an action against J.D. Young and the Jiffy Cab Company (defendants) seeking to recover damages from an automobile accident. The case proceeded to a mandatory arbitration hearing. Neither the plaintiff nor her counsel attended the arbitration hearing, and an award was entered against her on behalf of both defendants. Plaintiff then filed a motion for voluntary dismissal pursuant to section 2-1009 of the Illinois Code of Civil procedure. (735 ILCS 5/2-1009 (West 1992).) The trial court denied the motion and entered judgment on the arbitration award in favor of defendants. On appeal, the plaintiff contends that she has an absolute right to voluntary dismissal under section 2-1009.

We affirm.

BACKGROUND

Plaintiff was injured in a car accident on November 26, 1989. On November 25, 1991, plaintiff filed her complaint against defendants to recover damages due to the car accident. The complaint was transferred to the court-annexed mandatory arbitration calendar on May 1, 1992, and was set for arbitration hearing on January 6, 1993.

On January 6, 1993, neither the plaintiff nor her counsel attended the arbitration hearing. At the hearing, an award was entered in favor of both defendants.

On January 8, 1993, plaintiff filed a motion for voluntary dismissal pursuant to section 2-1009 of the Illinois Code of Civil Procedure, which states:

"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." (735 ILCS 5/2-1009 (West 1992).)

The defendants opposed the motion, citing the authority of Supreme Court Rule 91:

"The failure of a party to be present, either in person or by counsel, at an arbitration hearing shall constitute a waiver of the right to reject the reward and a consent to the entry by the court of a judgment on the award. In the event the party who fails to be present thereafter moves, or files a petition to the court, to vacate the judgment as provided therefor under the provisions of the Code of Civil Procedure for the vacations of judgments by default, sections 2-1301 and 2-1401, the court, in its discretion, in addition to vacating the judgment, may order the ...


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