George v. Ospalik

No. 3--97--0967
_________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

A.D., 1998
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CAROL GEORGE and ) Appeal from the Circuit Court
RONALD GEORGE, ) of the 12th Judicial Circuit,
) Will County, Illinois
Plaintiffs-Appellants, )
)
v. ) No. 94--L--16195
)
RONALD E. OSPALIK, )
) Honorable Thomas M. Ewert,
Defendant-Appellee. ) Judge Presiding

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JUSTICE HOMER delivered the opinion of the court:
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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 Dismissal
The 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
section conflicts with supreme court rules. Catlett v. Novak,
116 Ill. 2d 63, 506 N.E.2d 586 (1987).
Supreme Court Rule 93(a) provides that within 30 days after
the filing of an award with the clerk of the court and upon
payment of the sum of $200 to the clerk any party present at the
arbitration hearing may file a written notice of rejection of the
award and proceed to trial. 166 Ill. 2d R. 93(a). The defendant
contends that this rule required the plaintiffs to reject the
arbitration award before they could obtain a voluntary dismissal.
The defendant argues that allowing a voluntary dismissal without
a rejection of the arbitration award would render the mandatory
arbitration process meaningless. We agree.
Rule 93(a) acts as a bar to a voluntary dismissal when
necessary to effectuate its purpose. See Arnett v. Young, 269
Ill. App. 3d 858, 646 N.E.2d 1265 (1995). If it did not, a
plaintiff could always avoid the filing of a rejection of the
award and payment of the fee as required by Rule 93(a), by simply
moving for voluntary dismissal. The plaintiffs may not avoid
Rule 93(a) by a voluntary dismissal.
The plaintiffs point out that mere participation in
mandatory arbitration proceedings does not preclude a plaintiff
from seeking a voluntary dismissal without prejudice. Perez v.
Leibowitz, 215 Ill. App. 3d 900, 576 N.E.2d 156 (1991). The
Perez court, in allowing the plaintiff's voluntary dismissal
following arbitration, reasoned that arbitration is a substitute
for a court proceeding and a form of settlement for litigation
but not a "trial or hearing" under section 2--1009. Perez, 215
Ill. App. 3d at 902, 576 N.E.2d at 158. However, the defendant
in that case filed a timely notice of rejection. Perez, 215 Ill.
App. 3d at 901, 576 N.E.2d at 157. The rejection of the award by
the defendant enabled the plaintiff in Perez to proceed to trial.
See Supreme Court Rule 93(a) (166 Ill. 2d R. 93(a)). Therefore,
the trial court in that case properly entertained the plaintiff's
motion for a voluntary dismissal of his lawsuit. Because the
arbitration award in the instant case was not rejected, the
plaintiffs did not have a right to proceed to trial. As a
result, the trial court properly denied the plaintiffs' motion
for a voluntary dismissal.

Entry of Judgment on Arbitration Award
The plaintiffs also contend that the trial court erred in
entering judgment on the arbitration award sua sponte. They
argue that the trial court can only enter a judgment on an
arbitration award pursuant to a motion by a party.
Supreme Court Rule 92(c) provides:

"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." 155
Ill. 2d R. 92(c).

In Lollis v. Chicago Transit Authority, 238 Ill. App. 3d
583, 606 N.E.2d 479 (1992), the first district appellate court
held that the trial court erred by entering judgment on an
arbitration award sua sponte. The court observed that "[r]ule
92(c) places the obligation on the parties to bring the motion;
it makes no provision for the court to enter judgment on its own
motion." Lollis, 238 Ill. App. 3d at 585, 606 N.E.2d at 480.
We agree with Lollis that Supreme Court Rule 92(c) places
the obligation on the parties to bring a motion to enter judgment
on the award. Rule 92(c) has no provision that allows the trial
court to enter a judgment on its own motion. In the instant
case, the record reflects that the trial court indicated it would
enter judgment on the award with or without the parties being
present, if a rejection was not filed. We have reviewed the
record and cannot find a motion made by a party to enter judgment
on the arbitration award.
The defendant claims he orally made a motion for entry of
judgment on the arbitration award at the November 6 hearing. A
reviewing court will not consider anything that is not contained
in the record (Rosengard v. McDonald, 205 Ill. App. 3d 208, 562 N.E.2d 583 (1990)); therefore, we must decide the case on the
record before us. The record on appeal does not contain a
verbatim transcript, a stipulation, or other report of
proceedings supporting the defendant's contention as provided in
Supreme Court Rule 323 (166 Ill. 2d R. 323). In the absence of
evidence in the record that such a motion was made by a party to
the arbitration, we are required to vacate the trial court's
judgment entered on the award.

CONCLUSION
For the foregoing reasons, we affirm the circuit court's
denial of the plaintiffs' motion for voluntary dismissal.
However, we vacate the court's entry of judgment on the
arbitration award.
Affirmed in part, and vacated in part.
BRESLIN and HOLDRIDGE, JJ., concurred.