{ "id": 2587097, "name": "In re MARRIAGE OF SAMIR S. SALEH, Petitioner-Appellant, and NORA S. SALEH, Respondent-Appellee", "name_abbreviation": "In re Marriage of Saleh", "decision_date": "1990-08-08", "docket_number": "No. 1-89-1703", "first_page": "131", "last_page": "136", "citations": [ { "type": "official", "cite": "202 Ill. App. 3d 131" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "131 Ill. 2d 560", "category": "reporters:state", "reporter": "Ill. 2d", "opinion_index": 0 }, { "cite": "548 N.E.2d 783", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1990, "opinion_index": 0 }, { "cite": "192 Ill. App. 3d 435", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2507554 ], "year": 1990, "pin_cites": [ { "page": "440" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/192/0435-01" ] }, { "cite": "500 N.E .2d 589", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "149 Ill. App. 3d 188", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3458458 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/149/0188-01" ] }, { "cite": "502 N.E.2d 1322", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1986, "opinion_index": 0 }, { "cite": "151 Ill. App. 3d 807", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3541616 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/ill-app-3d/151/0807-01" ] }, { "cite": "509 N.E .2d 723", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1987, "opinion_index": 0 }, { "cite": "156 Ill. App. 3d 545", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3506069 ], "year": 1987, "opinion_index": 0, "case_paths": [ "/ill-app-3d/156/0545-01" ] }, { "cite": "513 N.E .2d 12", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1987, "opinion_index": 0 }, { "cite": "160 Ill. App. 3d 47", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3649922 ], "year": 1987, "opinion_index": 0, "case_paths": [ "/ill-app-3d/160/0047-01" ] }, { "cite": "535 N.E.2d 858", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "127 Ill. 2d 122", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5564244 ], "weight": 4, "pin_cites": [ { "page": "137" }, { "page": "138" }, { "page": "138" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/127/0122-01" ] }, { "cite": "492 N.E.2d 1322", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "112 Ill. 2d 273", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5539451 ], "weight": 5, "pin_cites": [ { "page": "283" }, { "page": "283" }, { "page": "280" }, { "page": "281" }, { "page": "283" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/112/0273-01" ] }, { "cite": "472 N.E.2d 787", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "104 Ill. 2d 302", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3147125 ], "weight": 2, "pin_cites": [ { "page": "307-08" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/104/0302-01" ] }, { "cite": "345 N.E.2d 493", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "63 Ill. 2d 128", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5426498 ], "opinion_index": 0, "case_paths": [ "/ill-2d/63/0128-01" ] } ], "analysis": { "cardinality": 522, "char_count": 10312, "ocr_confidence": 0.751, "pagerank": { "raw": 7.161564862667632e-08, "percentile": 0.4289578272710108 }, "sha256": "6a8a8b11497df15a216d80653e32b318ec98f1a0591c48fd56dc167a6482e346", "simhash": "1:bdad667d47b21494", "word_count": 1732 }, "last_updated": "2023-07-14T20:29:37.094110+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "In re MARRIAGE OF SAMIR S. SALEH, Petitioner-Appellant, and NORA S. SALEH, Respondent-Appellee." ], "opinions": [ { "text": "JUSTICE FREEMAN\ndelivered the opinion of the court:\nPetitioner, Samir S. Saleh, appeals from an order of the circuit court of Cook County denying his motion for voluntary dismissal pursuant to section 2\u20141009 of the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2\u20141009). Although no brief was filed on behalf of respondent in this matter, we will consider the merits of the case in accordance with the mandate of First Capitol Mortgage Corp. v. Talandis Construction Corp. (1976), 63 Ill. 2d 128, 345 N.E.2d 493.\nOn December 19, 1986, the petitioner filed a petition for dissolution of marriage in the circuit court of Cook County. The respondent, Nora S. Saleh, filed her response on April 21, 1987. In answering the petition, respondent requested, among other relief, that the court deny the petition and dismiss the action. No counterpetition for dissolution of marriage was filed. Thereafter on August 21, 1987, the respondent filed a petition for emergency relief, and on August 28, 1987, she was awarded temporary maintenance in the amount of $90 per week.\nOn April 20, 1989, the respondent filed a petition for rule to show cause alleging that the petitioner had failed to pay the temporary maintenance previously awarded to her. It does not appear from the record that any hearing was requested on the petition for rule to show cause nor was any date set by the court to determine the validity of the allegations contained therein.\nOn May 3, 1989, the petitioner filed a motion for voluntary dismissal pursuant to section 2 \u20141009 of the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2\u2014 1009). The motion to dismiss was scheduled for hearing on May 16, 1989. At the time the motion was filed, trial had not yet commenced, nor had any counter-petition for dissolution of marriage or any other counterclaim been filed by the respondent.\nOn June 16, 1989, the trial court denied the petitioner\u2019s motion for voluntary dismissal. The trial court certified the following question for appeal pursuant to Supreme Court Rule 308 (107 Ill. 2d R. 308):\n\u201cWhether a petitioner who has timely filed a motion to voluntarily dismiss his Petition for Dissolution of Marriage is properly denied that relief as being against public policy where there is no counter-petition for Dissolution of Marriage on file but there is pending, but not yet set for hearing, a petition for rule to show cause which alleges that the petitioner has willfully failed to pay the temporary spousal maintenance as had been ordered by the court.\u201d\nOn September 18, 1989, this court granted the petition for leave to appeal. We reverse the trial court\u2019s order denying petitioner\u2019s motion for voluntary dismissal.\nSection 2\u20141009 of the Code of Civil Procedure provides in pertinent part:\n\u201cThe plaintiff may, at any time before trial or hearing begins, upon notice to each party who has appeared or each such party\u2019s 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.\u201d Ill. Rev. Stat. 1987, ch. 110, par. 2\u20141009.\nIn Kahle v. John Deere Co. (1984), 104 Ill. 2d 302, 472 N.E.2d 787, the defendants appealed from an order granting the plaintiff\u2019s motion for a voluntary dismissal which had been filed after the trial court had ruled on various motions in limine on the date set for trial. Responding to the defendant\u2019s argument that trial began when the court ruled on those motions and that the plaintiff should not be allowed to \u201ctest the waters\u201d and then voluntarily dismiss after receiving adverse rulings, our supreme court held that arguments and rulings on pretrial motions did not constitute the commencement of trial and stated:\n\u201cAt common law, the plaintiff could voluntarily dismiss without prejudice at any point before the judgment was returned. The legislature attempted to discourage vexatious suits by limiting the plaintiff\u2019s freedom, but only by preventing an automatic voluntary dismissal without prejudice after trial or hearing commenced. [Citation.] Any further limits on the plaintiff\u2019s common law rights should be enacted by the legislature, not declared by this court.\u201d Kahle, 104 Ill. 2d at 307-08.\nIts statement in Kahle notwithstanding, the supreme court subsequently carved out an additional exception to the common law rule that a plaintiff had an absolute right to a voluntary dismissal. In O\u2019Connell v. St. Francis Hospital (1986), 112 Ill. 2d 273, 283, 492 N.E.2d 1322, the court held that where a plaintiff, relying on section 2 \u2014 1009, moves to voluntarily dismiss his suit while a defendant\u2019s motion to dismiss for lack of diligent service under Supreme Court Rule 103(b) (107 Ill. 2d R. 103(b)) is pending, the trial court must hear the latter motion on its merits prior to ruling on the plaintiff\u2019s motion. (O\u2019Connell, 112 Ill. 2d at 283.) The court noted that Rule 103(b) establishes a requirement of reasonable diligence to effect service of process, while section 2\u20141009 allows a plaintiff to voluntarily dismiss his complaint even where service of process is not effected until expiration of the applicable statute of limitations. The court further noted that section 13\u2014217 of the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 13\u2014217) allows a plaintiff to refile his complaint within one year of his voluntary dismissal, without reference to the matter of diligence or service of process as to the original complaint. (O\u2019Connell, 112 Ill. 2d at 280.) Observing that both the judiciary and the legislature may promulgate rules, the court stated the principle that if a rule of the court is in conflict with a legislative enactment, the rule will prevail. (O\u2019Connell, 112 Ill. 2d at 281.) The court held that under the circumstances of that case, insofar as section 2\u20141009 directed the circuit court to dismiss a case without prejudice on motion of the plaintiff, it unduly infringed upon the judiciary to render judgments. The court also held that in ruling on the pending Rule 103(b) motion, the trial court may consider the circumstances surrounding plaintiff\u2019s service of process on his original as well as his refiled complaint. O\u2019Connell, 112 Ill. 2d at 283.\nThe O\u2019Connell case, until our supreme court\u2019s decision in Gibellina v. Handley (1989), 127 Ill. 2d 122, 535 N.E.2d 858, was the only exception ever made to the absolute right afforded a plaintiff by section 2 \u2014 1009 to obtain a voluntary dismissal prior to the start of trial or hearing. Attempts to extend the holding in O\u2019Connell to defense motions other than those for dismissal with prejudice for failure to effect diligent service of process under Rule 103(b) have been unsuccessful. (Metcalfe v. St. Elizabeth\u2019s Hospital (1987), 160 Ill. App. 3d 47, 513 N.E .2d 12; Kendle v. Village of Downers Grove (1987), 156 Ill. App. 3d 545, 509 N.E .2d 723; Kern v. Peabody Coal Co. (1987), 151 Ill. App. 3d 807, 502 N.E.2d 1322; Mancuso v. Beach (1986), 149 Ill. App. 3d 188, 500 N.E .2d 589.) Thus, outside of the limited exception established in O\u2019Connell, a plaintiff\u2019s right to a voluntary dismissal was still absolute if requested prior to the start of trial or hearing.\nIn Gibellina v. Handley, however, our supreme court determined that it was necessary to modify its previous construction of section 2 \u2014 1009 because \u201can ever increasing number of plaintiffs are using a section 2 \u2014 1009 motion to avoid a potential decision on the \u2018merits\u2019 or to avoid an adverse ruling as opposed to using it to correct a procedural or technical defect. [Citations.]\u201d (Gibellina, 127 Ill. 2d at 137.) Thus the court held that, effective as of the date of the filing of the opinion and prospectively only, the trial court may hear and decide a motion which has been filed prior to a section 2 \u2014 1009 motion when that motion, if favorably ruled on by the court, could result in a final disposition of the case. Gibellina, 127 Ill. 2d at 138.\nWe agree with the petitioner\u2019s interpretation of Gibellina that a plaintiff has an absolute right to take a voluntary dismissal unless there exists an unequivocal conflict between a specific rule of the supreme court and section 2 \u2014 1009, as in O\u2019Connell, or where a previously filed motion exists, which, if ruled upon favorably by the court, could result in a final disposition of the case. (Gibellina, 127 Ill. 2d at 138.) When deciding Gibellina, the court rejected the argument that a version of the Federal rule, which permits a plaintiff to take a voluntary dismissal as of right only prior to the filing of an answer or motion by the defendant (Fed. R. Civ. R 41(a)), should be adopted. We believe it is clear that, under Gibellina, the trial court only has the discretion to decide whether to hear a previously filed dispositive motion. See Mizell v. Passo (1989), 192 Ill. App. 3d 435, 440, 548 N.E.2d 783, appeal allowed (1990), 131 Ill. 2d 560.\nClearly then the petitioner in this case had an absolute right to voluntarily dismiss pursuant to section 2\u20141009. Unlike O\u2019Connell, which should be read and applied narrowly, this case does not present a situation where the statutory enactment permitting a voluntary dismissal directly conflicts with a specific supreme court rule. Additionally, respondent\u2019s petition for rule to show cause was not a motion which, if ruled upon favorably by the court, would have resulted in a final disposition of the case. We decline to place further limitations upon the common law and statutory right of plaintiffs to dismiss their cases than those provided for in O\u2019Connell and Gibellina. We therefore answer the question certified for appeal by the trial court in the negative and find that, under the circumstances of this case, the plaintiff has an absolute right to voluntarily dismiss his petition for dissolution of marriage.\nThe order of the trial court is vacated and the cause is remanded for further proceedings.\nVacated and remanded.\nCERDA, P.J., and WHITE, J., concur.", "type": "majority", "author": "JUSTICE FREEMAN" } ], "attorneys": [ "William D. Serpico and Kevin J. O\u2019Shea, both of Serpico, Novelle, Dvorak & Navigato, Ltd., of Chicago, for appellant.", "No brief filed for appellee." ], "corrections": "", "head_matter": "In re MARRIAGE OF SAMIR S. SALEH, Petitioner-Appellant, and NORA S. SALEH, Respondent-Appellee.\nFirst District (3rd Division)\nNo. 1\u201489\u20141703\nOpinion filed August 8, 1990.\nWilliam D. Serpico and Kevin J. O\u2019Shea, both of Serpico, Novelle, Dvorak & Navigato, Ltd., of Chicago, for appellant.\nNo brief filed for appellee." }, "file_name": "0131-01", "first_page_order": 153, "last_page_order": 158 }