Appeal from the Appellate Court for the First District; heard
in that court on appeal from the Circuit Court of Cook County,
the Hon. Edwin M. Berman, Judge, presiding.
JUSTICE MORAN DELIVERED THE OPINION OF THE COURT:
Rehearing denied June 2, 1986.
Plaintiff, Thomas O'Connell, filed a complaint in the circuit court of Cook County alleging medical malpractice against defendants, St. Francis Hospital of Blue Island, Adhok Dholakia, M.D., and James Elmes, M.D. All defendants moved to dismiss the complaint with prejudice pursuant to Supreme Court Rule 103(b) (87 Ill.2d R. 103(b)), citing plaintiff's lack of diligence in serving process. Plaintiff then moved for voluntary dismissal of the complaint pursuant to section 2-1009 of the Code of Civil Procedure (Ill. Rev. Stat. 1983, ch. 110, par. 2-1009). The circuit court granted plaintiff's motion.
Plaintiff refiled his complaint as provided under section 13-217 of the Code of Civil Procedure (Ill. Rev. Stat. 1983, ch. 110, par. 13-217). Defendants again moved, under Rule 103(b), to dismiss the refiled complaint, reasserting plaintiff's lack of due diligence in serving process on the original complaint. The circuit court denied the motions but certified an interlocutory appeal to the appellate court as provided by Supreme Court Rule 308 (87 Ill.2d R. 308). Upon denial of the discretionary appeals by the appellate court, defendants petitioned this court for leave to appeal. Their petitions were allowed, and we consolidated the appeals for the purpose of disposition. Also allowed to be filed was the brief of the Illinois Trial Lawyers Association as amicus curiae.
The trial court certified the following:
"Whether [p]laintiff's refiled [c]omplaint may be dismissed with prejudice pursuant to Illinois Supreme Court Rule 103(b) and [s]section 13-212 of the Illinois Code of Civil Procedure where [p]laintiff in a prior suit responded to [d]efendants' 103(b) [m]otions to [d]ismiss by taking a voluntary non-suit and subsequently refiling this suit."
Plaintiff's claimed injury occurred June 29, 1981. His original complaint was filed on June 29, 1983, on the last day for filing under the applicable statute of limitations (Ill. Rev. Stat. 1983, ch. 110, par. 13-212). It was not until some eight months later, on February 24, 1984, that the first summons was issued. All defendants were served with process between March 12 and March 20, 1984. Defendants responded by filing motions to dismiss with prejudice, under Rule 103(b), for failure to exercise due diligence in obtaining service of process. A hearing on the motions to dismiss was set for June 6, 1984.
Plaintiff's attorney sought a continuance in order to prepare a written response to defendants' motions. A new date of July 23, 1984, was set for hearing on the pending motions. However, plaintiff did not file a response to defendants' motions but, instead, filed a motion for voluntary dismissal under section 2-1009. A hearing on plaintiff's motion was set for July 19, 1984. Defendants then scheduled their Rule 103(b) motions for hearing on the same date. On that date, without hearing argument or ruling on defendants' Rule 103(b) motions, the circuit court granted plaintiff's motion and dismissed the complaint.
Plaintiff's second complaint was filed on August 1, 1984, pursuant to section 13-217, which affords a plaintiff a minimum of one year to refile a complaint after taking a voluntary dismissal. Defendant St. Francis Hospital was served with process on the second complaint on August 10, 1984. In September 1984, all defendants moved to dismiss the second complaint with prejudice. Without holding a hearing on the merits, the circuit court denied defendants' Rule 103(b) motions.
Section 2-1009 provides in pertinent 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. * * *" (Ill. Rev. Stat. 1983, ch. 110, par. 2-1009.)
Section 13-217 provides in pertinent part:
"In * * * actions * * * where the time for commencing an action is limited, * * * [and] the action is voluntarily dismissed by the plaintiff, * * * whether or not the time limitation for bringing such action expires during the pendency of such action, the plaintiff * * * may commence a new action within one year or within the remaining period of limitation, whichever is greater, * * * after the ...