SUPREME COURT OF ILLINOIS
535 N.E.2d 853, 127 Ill. 2d 112, 129 Ill. Dec. 88 1989.IL.214
Appeal from the Appellate Court for the Third District; heard in that court on appeal from the Circuit Court of Whiteside County, the Hon. Edward Keefe, Judge, presiding.
JUSTICE MILLER delivered the opinion of the court. JUSTICE CALVO took no part in the consideration or decision of this case.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MILLER
Resolution of the question common to these consolidated appeals requires that we revisit our recent decisions on the interplay of Supreme Court Rule 103(b) and section 13-217 of the Code of Civil Procedure (Ill. Rev. Stat. 1983, ch. 110, par. 13-217).
On October 24, 1980, the plaintiff, Lorenzo Martinez, brought an action in the circuit court of Cook County against Dr. John R. Erickson, Dr. Darroll Erickson, and the Sterling-Rock Falls Clinic, Ltd. (the Clinic). The complaint alleged medical malpractice and was filed the same day the applicable statute of limitations expired. On February 19, 1981, the plaintiff brought a factually related action in the circuit court of Cook County against Dr. Bakkiam Subbiah. This complaint also alleged medical malpractice, and it was filed one day before the applicable statute of limitations expired. On July 27, 1981, the plaintiff voluntarily dismissed his action against the Ericksons and the Clinic. On September 22, 1981, the plaintiff's action against Dr. Subbiah was dismissed for want of prosecution. In neither case had the plaintiff attempted or obtained service of process on any of the defendants.
Relying on section 13-217 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 13-217), the plaintiff refiled a single action in the circuit court of Whiteside County against all four defendants on July 26, 1982. Summonses were issued on that date; the Ericksons and the Clinic were served on July 29, and Dr. Subbiah was served on August 12.
Dr. Subbiah moved to dismiss the plaintiff's action under Supreme Court Rule 103(b) for failure to exercise reasonable diligence in obtaining service of process after the expiration of the applicable statute of limitations. (107 Ill. 2d R. 103(b).) The remaining defendants initially answered the complaint, and later they amended their answers to allege, as affirmative defenses, the statute of limitations and the plaintiff's unreasonable delay in effecting service of process under Rule 103(b).
On September 17, 1985, the trial Judge granted Dr. Subbiah's motion to dismiss, citing the appellate court's opinion on remand from our decision in Dillie v. Bisby (1985), 106 Ill. 2d 487. In Dillie we held that an order allowing a plaintiff's motion for voluntary dismissal of his action is final and appealable, and we remanded the cause to the appellate court for consideration of the propriety of the dismissal order in that case; the plaintiff in Dillie had taken the voluntary dismissal in the face of a pending defense motion for dismissal under Rule 103(b). The appellate court, in its decision on remand, noted the potential conflict between sections 2 -- 1009 and 13 -- 217 on the one hand and our Rule 103(b) on the other. The appellate court stated that "trial courts should have discretion to consider any defense motion which might result in a dismissal with prejudice prior to ruling on a plaintiff's voluntary dismissal motion." (Dillie v. Bisby (1985), 136 Ill. App. 3d 170, 171-72.) The trial Judge here, relying on the appellate court's opinion in Dillie, ruled that actions dismissed and later refiled under section 13 -- 217 are subject to the reasonable diligence requirement of Rule 103(b). Moreover, the trial Judge believed that an evaluation of a plaintiff's diligence must include consideration of the plaintiff's conduct with respect to the original action as well as the refiled action. The trial Judge concluded that the plaintiff, from the outset of the litigation here, had exhibited an extreme lack of diligence in effecting service of process.
On July 28, 1986, the trial Judge denied the plaintiff's motion for reconsideration of his previous order granting Dr. Subbiah's motion to dismiss. The trial Judge also granted the motion of Dr. John Erickson and the Clinic for summary judgment, relying on the appellate court's opinion in Dillie v. Bisby (1985), 136 Ill. App. 3d 170, and on our opinion in O'Connell v. St. Francis Hospital (1986), 112 Ill. 2d 273. In O'Connell we held that a trial Judge should consider a pending defense motion for dismissal under Rule 103(b) before taking up a plaintiff's motion for voluntary dismissal; in O'Connell we also stated that the trial Judge may weigh the circumstances surrounding service of process in the original action as well as in the refiled action.
The plaintiff appealed from the orders entered in favor of Dr. Subbiah, Dr. John R. Erickson, and the Clinic, and the appellate court reversed. The plaintiff did not challenge the circuit court's order in favor of Dr. Darroll Erickson, who was granted summary judgment on the ground that he had not been involved in the treatment of the plaintiff. The appellate court agreed with the plaintiff that O'Connell established a new principle of law that should not be applied retroactively to actions that were dismissed and refiled before that decision was announced. (155 Ill. App. 3d at 1099.) The appellate court also expressed the view that although this court had applied O'Connell retroactively in Catlett v. Novak (1987), 116 Ill. 2d 63, Catlett was not controlling. According to the appellate court, the Catlett Disposition "did not examine the fact that O'Connell represents a clear change in the law, nor did it mention the issue of retroactive application of the new principles." 155 Ill. App. 3d at 1100.
We granted the petitions for leave to appeal filed by Dr. John R. Erickson and the Clinic (No. 65595) and by Dr. Bakkiam Subbiah (No. 65596) (107 Ill. 2d R. 315), and the ...