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George v. Ospalik

October 06, 1998

CAROL GEORGE AND RONALD GEORGE, PLAINTIFFS-APPELLANTS,
v.
RONALD E. OSPALIK, DEFENDANT-APPELLEE.



The opinion of the court was delivered by: Justice Homer

IN THE COURT OF APPEALS OF THE STATE OF ILLINOIS

Appeal from the Circuit Court of the 12th Judicial Circuit, Will County, Illinois

No. 94--L--16195

Honorable Thomas M. Ewert, Judge Presiding

The appellants, plaintiffs in a personal injury and property damage action, contend that the trial court erred when it refused to grant their motion to voluntarily dismiss, and when it entered judgment on an arbitration award sua sponte in favor of the defendant.

FACTS

The plaintiffs Carol and Ronald George filed a personal injury and property damage action against the defendant Ronald Ospalik as the result of an automobile accident in Will County.

A mandatory arbitration hearing was held on September 11, 1997. The hearing was attended by the parties and their attorneys. The arbitrators ruled in favor of the defendant and against the plaintiffs.

On the same day, the trial Judge entered an order setting the case for a status report on October 27, 1997. The court order stated: "[i]f a rejection has not been filed a judgment will be entered pursuant to the award of the arbitrators and neither side need appear." (Emphasis in original.) No rejection of the award was filed.

On October 27, the plaintiffs filed a motion to voluntarily dismiss the case. The trial court set the hearing date on the motion for November 6, 1997, on which date the court denied the plaintiffs' motion and entered judgment in favor of the defendant on the arbitration award. The plaintiffs appeal.

We must decide whether the plaintiffs have a right to a voluntary dismissal of their action without prejudice, and whether the trial court erred in entering judgment on the arbitration award sua sponte.

ANALYSIS

Voluntary DismissalThe plaintiffs contend that they have a right to a voluntary dismissal of the action without prejudice. They argue that the trial court erred when it denied their motion for voluntary dismissal.

Section 2--1009(a) of the Code of Civil Procedure provides that a plaintiff may move for voluntary dismissal at any time before trial or hearing begins. 735 ILCS 5/2--1009(a) (West 1996). However, the right to a voluntary dismissal under section 2--1009 is not absolute. Our supreme court has held there is no right to voluntary dismissal under section 2--1009 when that ...


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