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Lewis v. Collinsville Unit #10 School District

March 02, 2000

JENNIFER LYNN LEWIS, A MINOR, BY HER FATHER AND NEXT FRIEND, LARRY LEWIS, PLAINTIFF-APPELLEE,
v.
COLLINSVILLE UNIT #10 SCHOOL DISTRICT, DEFENDANT-APPELLANT, AND BENJAMIN TOON, JOSEPH TOON, AND PATRICIA TOON, DEFENDANTS.



Appeal from the Circuit Court of St. Clair County. No. 98-AR-346 (formerly 95-L-577) Honorable Scott Mansfield, Judge, presiding.

The opinion of the court was delivered by: Justice Kuehn

IN THE COURT OF APPEALS OF THE STATE OF ILLINOIS

Collinsville Unit #10 School District (Collinsville Unit #10) appeals from the trial court's July 31, 1998, and August 6, 1998, orders granting the plaintiff's motion for voluntary dismissal without prejudice. We reverse and remand with directions.

Jennifer Lynn Lewis (Jennifer) was a Collinsville High School student. On November 2, 1994, she was walking down a school hallway when an altercation between two male students broke out in front of her. An errant swing by one of these male students caught the strap of Jennifer's purse, and the momentum of the swing pulled her to the floor. In the process, Jennifer sustained a nondisplaced ankle fracture. Through her father, Jennifer filed suit against Collinsville Unit #10 and one of the male students involved in the altercation. Jennifer settled her case with the male student and proceeded towards trial with Collinsville Unit #10.

After numerous delays and a general pattern of no advancement of this case towards an ultimate resolution, the circuit court entered an order on Jennifer's motion, sending the case to mandatory arbitration. Arbitration was set for July 30, 1998. The record reflects that on July 27, 1998, Jennifer filed a motion for voluntary dismissal of her case, asking the court to order the parties to each bear their own costs. The motion contains no proof of service. Counsel for both sides acknowledge that there was telephonic communication regarding Jennifer's intent to voluntarily dismiss her case. Counsel for Collinsville Unit #10 apprised an employee of Jennifer's attorney that he intended to proceed with the scheduled arbitration.

On July 30, 1998, counsel for Collinsville Unit #10 appeared and announced his readiness to proceed with his case. Jennifer and her attorney did not appear. Collinsville Unit #10 did not present any evidence and did not ask the arbitration panel to enter an award in its favor. Instead, counsel sought a dismissal of Jennifer's case with prejudice. The arbitration panel made no findings and entered no award.

On July 31, 1998, without a formal hearing, the trial court entered an order relative to Jennifer's request for a voluntary dismissal as follows:

"This cause having come before the Court on Plaintiff's MOTION FOR VOLUNTARY DISMISSAL, the Court being thus advised in the premises, said MOTION is hereby granted."

The order makes no mention of costs.

The record reflects that on August 6, 1998, the trial court entered yet another ex parte order relative to Jennifer's previously filed July 27, 1998, motion. That order reads as follows:

"Case before the Court on Plaintiff's Motion for Voluntary Dismissal. Case is dismissed without prejudice. Issue of costs is reserved."

On August 11, 1998, counsel for Collinsville Unit #10 filed a motion to vacate the order of dismissal and to enter a dismissal with prejudice. This motion was amended on August 14, 1998. On August 28, 1998, the trial court denied the defendant's motion.

Collinsville Unit #10 appeals from the trial court's orders granting Jennifer's motion for voluntary dismissal and from the trial court's order denying its motion that sought a prejudicial dismissal of Jennifer's suit.

We first address the manner in which this case arrives in this court. Collinsville Unit #10 appeals pursuant to Supreme Court Rule 303(a) (155 Ill. 2d R. 303(a)). The appeal is actually taken pursuant to Supreme Court Rule 301(155 Ill. 2d R. 301), as it is a final and appealable order. Collinsville Unit #10's designation of a different rule does not affect this appeal, but we mention the distinction in case there is any doubt as to the final and appealable nature of a voluntary dismissal. See Kahle v. John Deere Co., 104 Ill. 2d 302, 307, 472 N.E.2d 787, 789 (1984). The Supreme Court explains that orders of voluntary dismissal may only be appealed by the defendant as the defendant's rights may have been prejudiced by the plaintiff's voluntary dismissal. See Kahle, 104 Ill. 2d at 306, 472 N.E.2d at 789. The plaintiff is protected from prejudice because the plaintiff has the luxury of an absolute right to refile his or her case within one year of the dismissal without prejudice. See Kahle, 104 Ill. 2d at 306, 472 N.E.2d at 789. If the ...


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