{
  "id": 5293877,
  "name": "CARMEN H. PEREZ, Plaintiff-Appellee, v. DAVID P. LEIBOWITZ, Defendant-Appellant",
  "name_abbreviation": "Perez v. Leibowitz",
  "decision_date": "1991-06-14",
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  "last_updated": "2023-07-14T22:48:50.210219+00:00",
  "provenance": {
    "date_added": "2019-08-29",
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  "casebody": {
    "judges": [],
    "parties": [
      "CARMEN H. PEREZ, Plaintiff-Appellee, v. DAVID P. LEIBOWITZ, Defendant-Appellant."
    ],
    "opinions": [
      {
        "text": "JUSTICE MURRAY\ndelivered the opinion of the court:\nDefendant David R Leibowitz (Leibowitz) appeals from an order of the circuit court, granting plaintiff Carmen H. Perez (Perez) a voluntary dismissal. The issue on appeal is one of first impression, i.e., whether a voluntary dismissal may be granted, as of right, pursuant to section 2 \u2014 1009(a) of the Illinois Code of Civil Procedure (Code) (Ill. Rev. Stat. 1987, ch. 110, par. 2 \u2014 1009(a)), after the parties have participated in mandatory arbitration proceedings as provided for in section 2 \u2014 1001A et seq. of the Code (Ill. Rev. Stat. 1987, ch. 110, par. 2 \u2014 1001A et seq.) and Supreme Court Rules 86 through 95 (134 Ill. 2d Rules 86 through 95).\nA brief overview of the pertinent facts of the case follows.\nPerez and Nina Petersen each filed separate complaints against Leibowitz to recover for injuries allegedly sustained in conjunction with an automobile accident that occurred on July 16, 1983. The two causes of action were then consolidated on December 12, 1985. After several years of discovery and pretrial activity, the cases were transferred to the mandatory arbitration calendar by an order dated April 24, 1990. On July 12, 1990, the consolidated matters proceeded to an award after proceedings were held before three arbitrators, as provided by the mandatory arbitration procedures adopted in Cook County. On August 10, 1990, a notice of rejection of the arbitration award was filed by defendant Petersen, and on November 19, 1990, Perez was granted a voluntary dismissal or nonsuit.\nThe portion of section 2 \u2014 1009(a) of the Illinois Code of Civil Procedure relevant to this case provides:\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, 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. Thereafter the plaintiff may dismiss, only on terms fixed by the court (1) upon filing a stipulation to that effect signed by the defendant, or (2) on motion specifying the ground for dismissal, which shall be supported by affidavit or other proof.\u201d Ill. Rev. Stat. 1983, ch. 110, par. 2 \u2014 1009(a).\nAlthough it is not completely clear how or why Leibowitz was injured by the dismissal granted to Perez, there is no doubt that he has the right to appeal such an order (Kahle v. John Deere Co. (1984), 104 Ill. 2d 302, 472 N.E.2d 787) and he does so now, contending that Perez was not entitled to an unconditional, voluntary dismissal because arbitration proceedings had already taken place in conjunction with the matter. He contends that compulsory arbitration proceedings should be construed as \u201ca trial or hearing\u201d within the meaning of the cited statute.\nThe question of whether compulsory arbitration proceedings constitute \u201ca trial or hearing\u201d as contemplated by section 2 \u2014 1009 of the Code has never been addressed by an Illinois appellate court, although \u201ca considerable diversity of analysis exists on the question of when \u2018trial or hearing begins\u2019 for the purposes of this section.\u201d See Ill. Ann. Stat., ch. 110, par. 2 \u2014 1009, Historical and Practice Notes, at 416-18 (Smith-Hurd 1983).\nAt common law and under section 70 of the Practice Act of 1907 (Ill. Rev. Stat. 1931, ch. 110, par. 70), a plaintiff had an absolute right of dismissal without prejudice (or nonsuit) any time before judgment was returned. The legislature, attempting to discourage vexatious lawsuits, enacted section 52 of the Civil Practice Act (Ill. Rev. Stat. 1935, ch. 110, par. 180), predecessor of the present section 2 \u2014 1009 of the Code of Civil Procedure, limiting plaintiff\u2019s freedom by preventing automatic dismissal without prejudice once trial or hearing began. See Kahle v. John Deere Co., 104 Ill. 2d at 307-08; In re Marriage of Wright (1980), 92 Ill. App. 3d 708, 415 N.E.2d 1196.\nIn Kahle v. John Deere, the court had an opportunity to consider the meaning of \u201ctrial or hearing\u201d as used in section 2 \u2014 1009. It cited a number of court opinions on the issue and concluded that the terms, \u201ctrial\u201d and \u201chearing,\u201d referred to judicial proceedings, whether it be at law or in equity, wherein the merits of the conflict are ultimately determined. (104 Ill. 2d at 308-10.) The Kahle court also held that \u201c[a]ny further limits on the plaintiff\u2019s common law rights should be enacted by the legislature, not declared by this court.\u201d 104 Ill. 2d at 308.\nArbitration is a substitute for a court proceeding and a form of settlement for litigation, but not a trial. In fact, errors of judgment in law are not even grounds for vacating an arbitrator\u2019s award. (Board of Education v. Chicago Teachers Union, Local No. 1 (1981), 86 Ill. 2d 469, 427 N.E.2d 1199.) The purpose of arbitration is the disposition of litigation in an easier, quicker, and more economical manner than by litigation. (Kalish v. Illinois Education Association (1988), 166 Ill. App. 3d 406, 519 N.E.2d 1031.) To hold that arbitration, especially the nonbinding arbitration instituted pursuant to supreme court rule, was equivalent to a \u201ctrial or hearing,\u201d would, we believe, extend the meaning of those terms beyond what was contemplated by the drafters of the statute. We also believe that it would be contrary to the purpose of arbitration. For this reason, we find that participation in mandatory arbitration proceedings does not preclude a plaintiff from seeking a voluntary dismissal without prejudice. Arbitration proceedings are not the same as a trial and, since a plaintiff is entitled to a voluntary dismissal at any time prior to the time that trial begins, trial has not \u201cbegun,\u201d for the purposes of section 2\u2014 1009 of the Code, when the parties enter into settlement negotiations in the form of mandatory arbitration pursuant to court rule.\nAs stated in Kdhle, it is up to the legislature, not the courts, to further limit the plaintiff\u2019s common law right to dismissal.\nAffirmed.\nGORDON and McNULTY, JJ., concur.",
        "type": "majority",
        "author": "JUSTICE MURRAY"
      }
    ],
    "attorneys": [
      "Donald A. Tedeschi, of James M. Hoffman & Associates, of Schaumburg, for appellant.",
      "Fred I. Benjamin and Laurence M. Landsman, both of Benjamin & Shapiro, Ltd., of Chicago, for appellee."
    ],
    "corrections": "",
    "head_matter": "CARMEN H. PEREZ, Plaintiff-Appellee, v. DAVID P. LEIBOWITZ, Defendant-Appellant.\nFirst District (5th Division)\nNo. 1\u201490\u20143538\nOpinion filed June 14, 1991.\nDonald A. Tedeschi, of James M. Hoffman & Associates, of Schaumburg, for appellant.\nFred I. Benjamin and Laurence M. Landsman, both of Benjamin & Shapiro, Ltd., of Chicago, for appellee."
  },
  "file_name": "0900-01",
  "first_page_order": 922,
  "last_page_order": 925
}