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Swisher v. Duffy

OPINION FILED DECEMBER 27, 1985.

ROBERT L. SWISHER, JR., PLAINTIFF-APPELLANT,

v.

JOHN E. DUFFY, M.D., ET AL., DEFENDANT-APPELLEES.



Appeal from the Circuit Court of Will County; the Hon. Thomas M. Ewert and Hon. Charles P. Connor, Judges, presiding.

JUSTICE STOUDER DELIVERED THE OPINION OF THE COURT:

The plaintiff, Robert L. Swisher, appeals from an order of the circuit court of Will County dismissing for untimely refiling the plaintiff's cause of action against the defendants, John E. Duffy, M.D., and the Franciscan Sisters Health Care Corporation, d/b/a St. Joseph Hospital. We reverse.

On October 13, 1981, the plaintiff filed a medical malpractice action against the defendants. On October 1, 1982, counsel for all parties appeared before Judge Connor. The plaintiff moved to voluntarily dismiss his suit pursuant to section 2-1009 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 2-1009). The motion was granted and the dismissal entered on the judge's docket on the same day:

"Charles Hahn for plaintiff. Mr. Sandberg and Mr. Gorbold for the defendants. Plaintiff's motion for voluntary non-suit is allowed. Case dismissed. CONNOR/kjk/mbs."

No written order of dismissal was entered by the judge, nor does it appear that the judge requested or required that a dismissal order be prepared on that date.

Subsequently, on October 21, 1982, the plaintiff, apparently without notice to the other parties, presented a written voluntary dismissal order to the trial court. Judge Connor signed that order and the signing was noted in the docket.

Thereafter plaintiff retained new counsel, and the following year, on October 21, 1983, the plaintiff refiled the cause of action pursuant to section 13-217 of the Code of Civil Procedure (Ill. Rev. Stat. 1983, ch. 110, par. 13-217). Both defendants moved to dismissal the new action. They argued that the effective date of dismissal was October 1, 1982, the date on which the dismissal was entered in the judge's docket, rather than October 21, 1982, the date on which the written order was signed and noted. Therefore, the defendants argued, the plaintiff's new action was not timely refiled under section 13-217.

On December 13, 1983, the defendants' motion to dismiss was granted by a different judge, Judge Ewert. That judge, Judge Ewert, noted that it was the practice in Will County not to require a written order for voluntary dismissals.

Section 13-217 provides, in relevant part, that following a voluntary dismissal by the plaintiff, the plaintiff may commence a new action within one year or within the remaining period of limitation, whichever is greater, after "the action is voluntarily dismissed." Ill. Rev. Stat. 1983, ch. 110, par. 13-217.

Because in the instant case the limitations period apparently expired prior to October 21, 1983, resolution of the present controversy requires that we decide the effective date of the plaintiff's voluntary dismissal. If the effective date of dismissal is October 1, 1982, then the plaintiff's second suit was untimely filed and, therefore, properly dismissed. If, on the other hand, the effective date was October 21, 1982, then the plaintiff's second cause of action was timely filed and we must reverse the trial court.

Section 2-1009 provides in relevant part:

"(a) 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." (Emphasis added.) (Ill. Rev. Stat. 1981, ch. 110, par. 2-1009.)

The plaintiff asserts that the language of section 2-1009 requires a written order of dismissal before the cause is effectively dismissed. Thus, the plaintiff contends, since a written order was not signed and entered by the trial court in the instant cause until October 21, 1982, the plaintiff's second cause of action, filed on October 21, 1983, was timely under section 13-217 and, thus, improperly dismissed.

The defendants respond by asserting that section 2-1009 does not require a written order. According to the defendants, an order of dismissal entered on the court's docket is an "order filed in the cause" for purposes of the section. Additionally, the defendants argue that considering the Will County custom of omitting written orders, the relevant supreme court rules, and the equities of the case, the voluntary dismissal was effective upon the October 1, 1982, docket entry of the oral order. Thus, the defendants contend that the plaintiff's second action, ...


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