Case v. Galesburg Cottage Hospital

880 N.E.2d 171, 227 Ill. 2d 207, 316 Ill. Dec. 693, 2007 Ill. LEXIS 1707
CourtIllinois Supreme Court
DecidedDecember 13, 2007
Docket103879
StatusPublished
Cited by72 cases

This text of 880 N.E.2d 171 (Case v. Galesburg Cottage Hospital) is published on Counsel Stack Legal Research, covering Illinois Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Case v. Galesburg Cottage Hospital, 880 N.E.2d 171, 227 Ill. 2d 207, 316 Ill. Dec. 693, 2007 Ill. LEXIS 1707 (Ill. 2007).

Opinion

JUSTICE BURKE

delivered the judgment of the court, with opinion.

Chief Justice Thomas and Justices Freeman, Fitzgerald, Kilbride, Garman, and Karmeier concurred in the judgment and opinion.

OPINION

At issue in this case is whether a circuit court should include the time that elapses between a voluntary dismissal of a complaint pursuant to section 2 — 1009 of the Code of Civil Procedure (Code) (735 ILCS 5/2 — 1009 (West 2006)) and its refiling under section 13 — 217 of the Code (735 ILCS 5/13 — 217 (West 1994)) when ruling on a motion to dismiss a case for violating Supreme Court Rule 103(b) (177 Ill. 2d R. 103(b)).

In the instant case, plaintiffs filed their complaint, then voluntarily dismissed it 25 days later, before any defendant was served. Approximately 11 months later, plaintiffs refiled their complaint and served defendants with process within 14 days of refiling. The circuit court of Knox County dismissed plaintiffs’ complaint pursuant to Rule 103(b), finding that the passage of over 12 months between the date of the original filing and the ultimate date of service, as well as additional factors, established a lack of diligence on the part of plaintiffs. The appellate court affirmed. No. 3 — 05—0474 (unpublished order under Supreme Court Rule 23). For the reasons that follow, we reverse the judgments of the circuit court and the appellate court, and remand the cause to the circuit court.

BACKGROUND

On April 25, 2003, Linda and her husband, Art, filed a complaint against defendants Dr. Myron Stachniw, Galesburg Cottage Hospital (Galesburg), Cottage Health Care Systems (Cottage Health), Galesburg Orthopedic Services, Ltd. (Orthopedic), Cottage Home Options L.L.C. (Cottage Home) and In-Home Medical Supplies and Service, Inc. (In-Home). The complaint alleged that defendants were negligent on May 1, 2001, May 6, 2001, and May 14, 2001. The complaint did not have an attached medical report, as required by section 2 — 622(a) of the Code (735 ILCS 5/2 — 622(a) (West 2006)). Instead, plaintiffs’ counsel attached an attorney’s affidavit requesting 90 days to file a report, as is allowed by section 2 — 622(a)(2) of the Code (735 ILCS 5/2 — 622(a)(2) (West 2006)). Upon filing their complaint, plaintiffs instructed the clerk not to issue a summons. No summons was issued on any defendant.

On May 20, 2003, plaintiffs voluntarily dismissed their suit pursuant to section 2 — 1009 of the Code (735 ILCS 5/2 — 1009 (West 2006)). Section 2 — 1009(a) provides: “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.” 735 ILCS 5/2 — 1009(a) (West 2006).

On April 12, 2004, plaintiffs refiled their complaint under section 13 — 217 of the Code, which provides:

“In *** any *** act or contract where the time for commencing an action is limited, if *** the action is voluntarily dismissed by the plaintiff, *** then, whether or not the time limitation for bringing such action expires during the pendency of such action, the plaintiff, his or her heirs, executors or administrators may commence a new action within one year or within the remaining period of limitation, whichever is greater, *** after the action is voluntarily dismissed by the plaintiff ***.” 735 ILCS 5/13 — 217 (West 1994).

Plaintiffs’ refiled complaint alleged the same dates of negligence by the same defendants as set forth in the first complaint, with the addition of a charge of negligence against Cottage Health on June 13, 2001. The required medical report was attached to the complaint. Process was served on Orthopedic on April 20, 2004, and on all other defendants on April 26, 2004.

On May 21, 2004, after receiving the refiled complaint, defendants filed motions to dismiss, arguing that the two years allowed by section 13 — 212 of the Code (735 ILCS 5/13 — 212 (West 2004)) for filing claims of medical malpractice had passed since the last alleged date of negligence in the complaint they received. Defendants then filed an answer to the complaint.

On August 2, 2004, plaintiffs responded to defendants’ motion to dismiss by stating that they did not violate the statute of limitations because their original complaint was filed on April 25, 2003, which was less than two years after the alleged dates of negligence in May 2001. Plaintiffs further alleged in their response to defendants’ motion to dismiss that they filed their new complaint on April 12, 2004, within one year of the voluntary dismissal.

When defendants learned that plaintiffs had previously filed and voluntarily dismissed the case, and purposely withheld issuing a summons, they filed a motion to withdraw their answer to the complaint. Defendants then filed a motion to dismiss the complaint for lack of reasonable diligence in serving process in violation of Illinois Supreme Court Rule 103(b), which provides:

“If the plaintiff fails to exercise reasonable diligence to obtain service on a defendant, the action as to that defendant may be dismissed without prejudice, with the right to refile if the statute of limitation has not run. The dismissal may be made on the application of any defendant or on the court’s own motion.” 177 Ill. 2d R. 103(b).

After a hearing on February 22, 2005, the circuit court held that plaintiffs had violated Rule 103(b) and dismissed the case with prejudice. The circuit court explained its decision in a letter opinion, in which it held that all of the factors it had to consider weighed in favor of defendants. The court held,

“The length of time used in serving the defendants was a few days short of one year after filing. The plaintiffs voluntarily dismissed the case within a month of filing it, and requested that the clerk hold summons. The defendants are all health care providers in Galesburg, and their locations are readily ascertainable. The defendants had no actual knowledge of the complaint as evidenced by the fact that they filed a Motion to Withdraw their answers after learning of the previous complaint. The plaintiffs did not advance any special circumstances affecting their actions. Finally, the defendants were all served within a few days of the complaint’s being filed.”

The court also held,

“[I]n Lewis v. Dillon, 352 Ill. App. 3d 512 (1st Dist.

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Bluebook (online)
880 N.E.2d 171, 227 Ill. 2d 207, 316 Ill. Dec. 693, 2007 Ill. LEXIS 1707, Counsel Stack Legal Research, https://law.counselstack.com/opinion/case-v-galesburg-cottage-hospital-ill-2007.