                           ILLINOIS OFFICIAL REPORTS
                                         Appellate Court




                           Swain v. Bruce, 2012 IL App (1st) 110425




Appellate Court            LINDA SWAIN, Plaintiff-Appellee, v. ANTHONY BRUCE, Defendant
Caption                    (Jozef Fryz, Defendant-Appellant).



District & No.             First District, First Division
                           Docket No. 1-11-0425


Rule 23 Order filed        November 21, 2011
Rule 23 Order
withdrawn                  January 3, 2012
Opinion filed              January 9, 2012


Held                       In an action arising from a collision between two automobiles where
(Note: This syllabus       plaintiff, an injured passenger in one of the vehicles, filed a motion to
constitutes no part of     voluntarily dismiss her case pursuant to section 2-1009(a) of the Code of
the opinion of the court   Civil Procedure after arbitrators found in favor of defendants, the trial
but has been prepared      court erred in granting plaintiff’s motion, since plaintiff did not file a
by the Reporter of         rejection of the arbitrators’ award, and to the extent that there is a conflict
Decisions for the          between Supreme Court Rule 92(c), which provides that when no
convenience of the         rejection is filed, a party to the arbitration may move the trial court to
reader.)
                           enter judgment on the award, and section 2-1009(a), which allows
                           voluntary dismissals, the rule controls; therefore, the order granting the
                           voluntary dismissal was reversed and the cause was remanded with
                           directions to the trial court to enter judgment on the award as requested
                           by one defendant.


Decision Under             Appeal from the Circuit Court of Cook County, No. 10-M1-300021; the
Review                     Hon. James E. Snyder, Judge, presiding.
Judgment                   Reversed and remanded, with directions.


Counsel on                 Busse, Busse & Grassé, of Chicago (Edward K. Grassé, of counsel), for
Appeal                     appellant.

                           No brief filed for appellee.


Panel                      JUSTICE KARNEZIS delivered the judgment of the court, with opinion.
                           Presiding Justice Hoffman and Justice Hall concurred in the judgment
                           and opinion.




                                             OPINION

¶1          Appellant Jozef Fryz appeals from the trial court’s order granting the motion of appellee
        Linda Swain to voluntarily dismiss her cause of action pursuant to section 2-1009(a) of the
        Code of Civil Procedure (Code) (735 ILCS 5/2-1009(a) (West 2010)). On appeal, Fryz
        contends that because Swain did not reject the arbitrators’ award, she could not voluntarily
        dismiss her case. Although Swain has not filed a brief on appeal, we will consider the appeal
        pursuant to the principles set forth in First Capitol Mortgage Corp. v. Talandis Construction
        Corp., 63 Ill. 2d 128, 131-33 (1976). For the following reasons, we reverse.
¶2          Swain filed suit on January 6, 2010, against defendants Fryz and Anthony Bruce to
        recover damages for injuries she sustained when the vehicles driven by Fryz and Bruce
        collided. Swain was a passenger in Bruce’s vehicle. The matter proceeded to arbitration, and
        on October 8, 2010, the arbitrators found in favor of defendants. Swain filed a motion for
        voluntary dismissal pursuant to section 2-1009(a) of the Code on October 28, 2010. Swain
        did not file a rejection of the arbitrators’ award. The trial court granted Swain’s motion for
        voluntary dismissal without prejudice on November 8, 2010. Fryz filed a motion to
        reconsider, in which he also requested the court to enter judgment on the arbitration award.
        The court denied the motion. Fryz now appeals.
¶3          On appeal, Fryz contends that because Swain did not reject the arbitrators’ award, she
        could not voluntarily dismiss her case. The issue presented on appeal involves the interplay
        of our supreme court rules governing arbitration and the voluntary dismissal statute.
¶4          Illinois Supreme Court Rule 93(a) (eff. Jan. 1, 1997) provides in part:
            “Within 30 days after the filing of an award with the clerk of the court *** any party who
            was present at the arbitration hearing *** may file with the clerk a written notice of
            rejection of the award and request to proceed to trial ***.”


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¶5          Illinois Supreme Court Rule 92(c) (eff. Jan. 1, 1994) provides in part:
            “In the event none of the parties files a notice of rejection of the award and requests to
            proceed to trial within the time required herein, any party thereafter may move the court
            to enter judgment on the award.”
¶6          In sum, these rules provide that a party has 30 days to reject an arbitration award and
       subsequently proceed to trial. If no rejection is filed, any party may move the court to enter
       judgment on the arbitration award.
¶7          The voluntary dismissal statute, section 2-1009(a) of the Code provides in 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.” 735 ILCS 5/2-1009(a) (West 2010).
¶8          The right to a voluntary dismissal is not absolute. George v. Ospalik, 299 Ill. App. 3d
       888, 889 (1998). Our supreme court has held that when section 2-1009 conflicts with a
       supreme court rule, there is no right to a voluntary dismissal and the supreme court rule
       controls. Catlett v. Novak, 116 Ill. 2d 63, 69 (1987). Rule 93(a) can act as a bar to a voluntary
       dismissal when necessary to effectuate its purpose. George, 299 Ill. App. 3d at 890.
¶9          Here, after the arbitrators found in favor of defendants, Swain had 30 days to file a
       rejection of the award in order to proceed to trial. Swain failed to do so. Instead, Swain filed
       a motion to voluntarily dismiss her case. Rule 92(c) provides that when a rejection is not
       filed, a party may move the court to enter judgment on the award. To the extent that this rule
       conflicts with section 2-1009, the rule controls. Since no rejection of the award was filed, all
       that remained to be done in the case was for the court to enter judgment on the award. Swain
       did not have the right to proceed to trial and voluntarily dismiss her case because she never
       rejected the award.
¶ 10        This court’s opinion in George supports our holding. In George, the arbitrators found in
       favor of the defendant and the plaintiffs did not file a rejection of the award. Instead, the
       plaintiffs filed a motion to voluntarily dismiss their case pursuant to section 2-1009 of the
       Code. This court held on appeal that the supreme court rules governing arbitration took
       precedence over the voluntary dismissal statute and the plaintiffs had no right to proceed to
       trial and voluntarily dismiss their case when they did not file a rejection of the award.
       George, 299 Ill. App. 3d at 890. Similarly here, because Swain did not file a rejection of the
       award, she has no right to proceed to trial and to voluntarily dismiss her case. See also Yanan
       v. Ewing, 205 Ill. App. 3d 96, 102 (1990) (by failing to file a notice of rejection of the
       arbitration award within the prescribed time period, there was no right to proceed to trial on
       the plaintiff’s complaint); Ianotti v. Chicago Park District, 250 Ill. App. 3d 628 (1993)
       (when rejection of arbitration award was filed seven days late, without a showing of good
       cause for the delay, the trial court properly entered judgment on the arbitration award and
       denied the plaintiff’s motion to voluntarily dismiss the case).
¶ 11        In conclusion, we reverse the trial court’s order granting Swain’s motion to voluntarily
       dismiss her case. Further, because Fryz requested the court to enter judgment on the
       arbitration award in his motion to reconsider, we direct the trial court to do so.

                                                 -3-
¶ 12       Accordingly, we reverse and remand with directions for the trial court to enter judgment
       on the arbitration award.

¶ 13      Reversed and remanded, with directions.




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