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Governale v. Northwest Com. Hospital

OPINION FILED SEPTEMBER 12, 1986

GREGORY K. GOVERNALE, PLAINTIFF-APPELLANT,

v.

NORTHWEST COMMUNITY HOSPITAL ET AL., DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Cook County; the Hon. Thomas J. O'Brien, Judge, presiding.

PRESIDING JUSTICE SULLIVAN DELIVERED THE OPINION OF THE COURT:

This appeal is from the dismissal of plaintiff's personal injury action, the sole issue on review being the propriety thereof.

A chronological review of the procedural history of the litigation is critical to the disposition of this appeal. On September 13, 1976, plaintiff filed an action — No. 76 L 16712 — against Northwest Community Hospital, Medical Emergency Service Associates, Doctor Philip Kimball Newman and Nehi-Royal Crown Corporation (defendants) for injuries which, he alleges, resulted from the explosion of a soft-drink bottle on September 15, 1974, and from malpractice in medical treatment he received thereafter. In March 1980, a jury returned a verdict for plaintiff, but after a hearing on defendants' post-trial motions, the trial court ordered a new trial. Plaintiff's petition for leave to appeal from that order, pursuant to Supreme Court Rule 306(a) (87 Ill.2d R. 306(a)), was denied by this court on January 6, 1981 (No. 80-1645), and the case was then placed on the circuit court trial call of April 30, 1981, and thereafter continued, from time to time, until March 3, 1982. On that day, the trial assignment judge entered an order which read:

"Pursuant to GENERAL ORDER NO. 6.2(c) —

Remanded Actions:

It is ordered that the above entitled cause shall be renumbered by the Clerk of the Court with a current yearly number, first available, without fee, all fees having been previously paid."

The following day, March 4, 1982, the case appeared on the trial call and was dismissed for want of prosecution. On March 8, 1982, a document, apparently filed by the clerk of the circuit court and characterized by the parties as an "order renumbering the case" as No. 82 L 4388, was entered. On September 2, 1982, case No. 82 L 4388 appeared on the progress call and was dismissed for want of prosecution. On July 11, 1983, plaintiff refiled the action — No. 83 L 12971 (the 1983 case). After a hearing defendants' motion to dismiss on the ground that the action was not commenced within the time permitted by law was allowed, and this appeal followed.

OPINION

While he does not dispute that the applicable statutes of limitations had expired prior to the commencement of the 1983 action, plaintiff contends that it was properly and timely refiled under section 13-217 of the Code of Civil Procedure (Ill. Rev. Stat. 1983, ch. 110, par. 13-217), formerly section 24(a) of the Limitations Act (Ill. Rev. Stat. 1981, ch. 83, par. 24(a)), which provides in relevant part:

"[Where an] action is dismissed for want of prosecution * * * then, 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 * * * after * * * the action is dismissed for want of prosecution * * *."

Defendants conversely contend that section 13-217 was not available to plaintiff as a vehicle by which to extend the applicable limitations period for either of two reasons: (1) that the action was not refiled within one year after it was dismissed for want of prosecution as required by the statute, or (2) in the alternative, that institution of the July 1983 action constituted an impermissible attempt to invoke section 13-217 a second time.

• 1 It is well settled that section 13-217 affords a plaintiff an absolute right to refile an action previously dismissed for want of prosecution within one year after dismissal. (Kahle v. John Deere Co. (1984), 104 Ill.2d 302, 472 N.E.2d 787; Wold v. Bull Valley Management Co. (1983), 96 Ill.2d 110, 449 N.E.2d 112; Flores v. Dugan (1982), 91 Ill.2d 108, 435 N.E.2d 480.) It is, in effect, an extension of the applicable limitation period (Hupp v. Gray (1978), 73 Ill.2d 78, 382 N.E.2d 1211), and being remedial in nature should be liberally construed (Frankenthal v. Grand Trunk Western R.R. Co. (1983), 120 Ill. App.3d 409, 458 N.E.2d 530), although even the most liberal construction of its language does not justify an addition to or extension of the period fixed by the legislature therein (Smith v. Chicago Transit Authority (1978), 67 Ill. App.3d 385, 385 N.E.2d 62; see Hupp v. Gray (1978), 73 Ill.2d 78, 382 N.E.2d 1211; Skolnick v. Martin (1968), 98 Ill. App.2d 166, 240 N.E.2d 296; Sager Glove Corp. v. Continental Casualty Co. (1962), 37 Ill. App.2d 295, 185 N.E.2d 473).

Here, although the 1976 case was dismissed for want of prosecution on March 4, 1982, and not refiled by plaintiff until July 1, 1983 — nearly four months after expiration of the one-year period allowed by section 13-217 — he proffers several reasons why the 1983 action should not now be barred. His primary argument is that "the [March 4] order was not meant to remove the case from the docket because the clerk of the court had been ordered (the previous day) to assign the new 1982 number to the case." Elaborating in an affidavit attached to his memorandum in opposition to defendants' motion to dismiss, plaintiff's attorney stated that the March 4 order was not prepared by him, but by a court clerk, that it was signed by the judge after he left the courtroom, and that it "did not reflect what [he] was told from the bench." According to counsel, "[t]here was no statement [by the court] that the 1976 case would be dismissed because a current number was being assigned to [it]." *fn1

• 2, 3 Generally, the intention of the court is determined only by the order entered, and where the language of such order is clear and unambiguous, it is not subject to construction, nor can it be controlled by any alleged intent or purpose not expressed therein. (People ex rel. Waite v. Bristow (1945), 391 Ill. 101, 62 N.E.2d 545; see Culver v. Allerton (1971), 132 Ill. App.2d 137, 269 N.E.2d 507.) Here, the March 4, 1982, order states only that "[t]his cause coming on to be heard upon the regular call of cases for trial: IT IS ORDERED that the above entitled cause be and the same is hereby dismissed for want of prosecution." This language is clear and unambiguous and, ordinarily, would not be subject to attack or alteration on appeal, particularly since there was no motion to vacate or correct it, the latter of which could have been accomplished by way of a motion for a nunc pro tunc order, which is within the inherent power of the court to enter for the limited purpose of correcting a prior order to ...


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