APPELLATE COURT OF ILLINOIS, FIFTH DISTRICT
JOHN METCALFE, Special Adm'r of the Estate of Andrew
513 N.E.2d 12, 160 Ill. App. 3d 47, 111 Ill. Dec. 766 1987.IL.1113
Appeal from the Circuit Court of St. Clair County; the Hon. Stephen Kernan, Judge, presiding.
JUSTICE HARRISON delivered the opinion of the court. KASSERMAN and WELCH, JJ., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE HARRISON
Plaintiff, John Metcalfe, in his capacity as special administrator of the estate of Andrew Metcalfe, filed a complaint in the circuit court of St. Clair County alleging Andrew was delivered stillborn as a result of the negligence of defendants, St. Elizabeth's Hospital in Belleville and Dr. Adele Roth. Defendants filed separate motions to dismiss the action with prejudice for failure to comply with the provisions of section 2-622 of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2-622). Plaintiff then filed a motion for voluntary dismissal pursuant to section 2-1009(a) of the Code (Ill. Rev. Stat. 1985, ch. 110, par. 2-1009(a)). The court granted plaintiff's motion for voluntary dismissal and did not rule on defendants' motions to dismiss with prejudice, finding defendants' motions to be moot. On appeal, defendants contend (1) plaintiff could not voluntarily dismiss the action because a hearing had occurred, (2) plaintiff's cause of action should be dismissed with prejudice for failure to comply with section 2-622, and (3) plaintiff was not entitled to a voluntary dismissal because he failed to tender costs and give notice to defendants. We affirm.
Plaintiff filed a complaint on March 3, 1986, alleging that Cheryl Metcalfe was admitted to St. Elizabeth's Hospital while in labor, and that on March 3, 1984, she delivered a stillborn male child. The complaint alleges the umbilical cord was wrapped around the infant's neck. The complaint further alleges the infant, named Andrew, was a viable fetus, and that his death was a result of the negligence of defendants.
On April 9, 1986, defendant St. Elizabeth's Hospital filed a motion to dismiss the action for failure to comply with section 2-622 of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2-622), which requires an affidavit of the plaintiff's attorney and a report of a medical professional to be filed with the complaint. Defendant Dr. Roth filed a similar motion to dismiss on April 10, 1986. A hearing on defendants' motions was held on June 30, 1986. On July 2, 1986, plaintiff filed his motion to voluntarily dismiss the action, and the court granted this motion on that same date and further found defendants' motions to dismiss were then moot. On July 24, 1986, defendant Dr. Roth filed a motion to reconsider the order granting the voluntary dismissal, and on August 1, 1986, defendant St. Elizabeth's Hospital filed a motion to set aside the order. The court held a hearing on the motion to reconsider and the motion to set aside on August 1, 1986, and denied the motions on that date. There is no question that defendants can appeal the granting of the motion to voluntarily dismiss. See Kahle v. John Deere Co. (1984), 104 Ill. 2d 302, 307, 472 N.E.2d 787, 789.
Defendants first contend that the hearing which had been held upon their motions to dismiss plaintiff's action was a "hearing" for purposes of section 2-1009(a) of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2-1009(a)), and that consequently plaintiff no longer had a right to automatically dismiss the action. Section 2-1009(a) provides in pertinent part:
"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. 1985, ch. 110, par. 2-1009(a).
Courts of this State have held that under section 2 -- 1009(a), a plaintiff's right to a voluntary dismissal without prejudice prior to trial or hearing is absolute and the court has no discretion to deny plaintiff's motion for dismissal in such cases. (Bailey v. State Farm Fire & Casualty Co. (1985), 137 Ill. App. 3d 155, 157, 484 N.E.2d 522, 524; Heinz v. County of McHenry (1984), 122 Ill. App. 3d 895, 897, 461 N.E.2d 672, 673.) Our supreme court recently defined the terms "trial" and "hearing" as used in section 2 -- 1009. In Kahle v. John Deere Co. (1984), 104 Ill. 2d 302, 309, 472 N.E.2d 787, 790, the court found that in the context of section 2 -- 1009, a "hearing" is the equitable equivalent of a trial. Then the court stated: "Both a trial and a hearing involve a determination of the parties' rights. [Citations.] In other words, a hearing is a non-jury proceeding in which evidence is taken on the merits." (104 Ill. 2d 302, 309, 472 N.E.2d 787, 790.) Thus a hearing "does not begin until the parties begin to present their arguments and evidence to the court sitting without a jury in order to achieve an ultimate determination of their rights." In re Marriage of Fine (1983), 116 Ill. App. 3d 875, 879, 452 N.E.2d 691, 693.
A hearing, as defined in Kahle and Fine, did not take place in the present case. There had been a hearing on defendants' motions to dismiss, but this hearing was not the equitable equivalent of a trial. No evidence was taken on the merits of the action. Therefore, plaintiff had an absolute right to voluntarily dismiss his action.
We acknowledge that our supreme court has recently carved out an exception to the absolute right to a voluntary dismissal before trial or hearing. In O'Connell v. St. Francis Hospital (1986), 112 Ill. 2d 273, 283, 492 N.E.2d 1322, 1327, the court held that where a plaintiff, relying on section 2-1009, moves to voluntarily dismiss his suit while a defendant's 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's motion. (O'Connell v. St. Francis Hospital (1986), 112 Ill. 2d 273, 283, 492 N.E.2d 1322, 1327.) The court noted that Rule 103(b) establishes a requirement of reasonable diligence to effect service of process, while section 2-1009 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 13-217 of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 13-217) 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'Connell v. St. Francis Hospital (1986), 112 Ill. 2d 273, 280, 492 N.E.2d 1322, 1325.) Observing that both the judiciary and the legislature may promulgate procedural rules, the court stated the principle that if a rule of the court is in conflict with a legislative enactment, the rule will prevail. (112 Ill. 2d 273, 281, 492 N.E.2d 1322, 1326.) Finding that reasonable ...