Case v. Galesburg Cottage Hosp.

• Decision Date: 13 December 2007
• Docket Number: No. 103879.,103879.
• Citation: 227 Ill.2d 207,880 N.E.2d 171
• Parties: Linda CASE et al., Appellants, v. GALESBURG COTTAGE HOSPITAL, an Illinois Not-For-Profit Corporation, et al., Appellees.
• Court: Illinois Supreme Court

880 N.E.2d 171

227 Ill.2d 207

Linda CASE et al., Appellants, v. GALESBURG COTTAGE HOSPITAL, an Illinois Not-For-Profit Corporation, et al., Appellees.

No. 103879.

Supreme Court of Illinois.

December 13, 2007.

Bryan A. Drew, John D. Drew, Benton, for appellants.

Karen L. Kendall, Roger R. Clayton, of Heyl, Royster, Voelker & Allen, Peoria, for appellees Galesburg Cottage Hospital et al.

Hinshaw & Culbertson, LLP, Chicago (Stephen R. Swofford, Paul C. Estes, James P. LeFante, of counsel), for appellees Galesburg Orthopedic Services, Ltd., et al.

OPINION

Justice BURKE delivered the judgment of the court, with 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 No. 3-05-0474 (unpublished order under Supreme Court Rule 23).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 5/2-4009 (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 [287 Ill.Dec. 748, 816 N.E.2d 715] (1st Dist.2004), the First District, in dicta, warned against the exact circumstances of this case when it said, `... under plaintiffs reasoning, a party would be permitted to file a lawsuit naming a defendant, not issue summons to that defendant advising him or her of the claim, and then, at some later date, dismiss the defendant due to the inability to obtain a section 2-622 report. To follow this reasoning of "what they don't know won't hurt them" would deny defendants the right to know that they have been named in a lawsuit, not to mention denying them the protections of Rule 103(b).' This is precisely what happened in the case sub judice."

The appellate court affirmed the circuit court, with one justice dissenting. In his dissent, Justice Lytton stated that the decisions of the circuit court and the majority ignored plaintiffs statutory right to refile their suit under section 13-217 of the Code of Civil Procedure. The dissent stated, "In order to accomplish the purpose of both Supreme Court Rule 103(b) and section 13-217 of the Code, courts must consider a plaintiff's diligence prior to dismissal and after refiling but not the period in between when no complaint exists." Counting only the days that passed while the complaints were "on file," the dissent found that defendant went unserved for only 39 days: The dissent found that "such a short period of time does not demonstrate a lack of diligence." We granted plaintiffs petition for leave to appeal. 210 Ill.2d R. 315.

ANALYSIS

The issue before us is whether the circuit court erred when it granted defendants' motion to dismiss plaintiffs' complaint based on violation of Supreme Court Rule 103(b). A court may consider many factors when determining whether to allow or deny a Rule 103(b) motion, including, but not limited to: (1) the length of time used to obtain service of process; (2) the activities of plaintiff; (3) plaintiff's knowledge of defendant's location; (4) the case with which defendant's whereabouts could have been ascertained; (5) actual knowledge on the part of the defendant of pendency of the action as a result of ineffective service; (6) special circumstances that would affect plaintiffs efforts; and (7) actual service on defendant. Segal v. Sacco, 136 Ill.2d 282, 286, 144 Ill.Dec. 360, 555 N.E.2d 719 (1990). There is no specific time limitation provided by Rule 103(b). Rather, a court must consider the passage of time in relation to, all the other facts and circumstances of each case individually. Segal, 136 Ill.2d at 285-86, 144 Ill.Dec. 360, 555 N.E.2d 719. A ruling on a motion to dismiss pursuant to Rule 103(b) will not be disturbed absent an abuse of discretion. Womick v. Jackson County Nursing Home, 137 Ill.2d 371, 376, 148 Ill.Dec. 719, 561 N.E.2d 25 (1990).

In order to determine if the circuit court abused its discretion by granting defendants' motion to dismiss, we must resolve the threshold issue of whether it was proper for the circuit court to have counted the approximately 11 months that passed between the voluntary dismissal of plaintiffs' complaint on May 20, 2003, and its refiling on...