{ "id": 3649922, "name": "JOHN METCALFE, Special Adm'r of the Estate of Andrew Metcalfe, Deceased, Plaintiff-Appellee, v. ST. ELIZABETH'S HOSPITAL et al., Defendants-Appellants", "name_abbreviation": "Metcalfe v. St. Elizabeth's Hospital", "decision_date": "1987-08-04", "docket_number": "No. 5\u201486\u20140507", "first_page": "47", "last_page": "54", "citations": [ { "type": "official", "cite": "160 Ill. App. 3d 47" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "361 N.E.2d 730", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "736" } ], "opinion_index": 0 }, { "cite": "47 Ill. App. 3d 233", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3369271 ], "pin_cites": [ { "page": "241" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/47/0233-01" ] }, { "cite": "410 N.E.2d 79", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1977, "pin_cites": [ { "page": "83-84" } ], "opinion_index": 0 }, { "cite": "86 Ill. App. 3d 964", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3188395 ], "year": 1977, "pin_cites": [ { "page": "969-71" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/86/0964-01" ] }, { "cite": "487 N.E.2d 385", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "388" } ], "opinion_index": 0 }, { "cite": "139 Ill. App. 3d 264", "category": "reporters:state", "reporter": "Ill. 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App.", "case_ids": [ 4948130 ], "weight": 2, "pin_cites": [ { "page": "501" } ], "opinion_index": 0, "case_paths": [ "/ill-app/325/0495-01" ] }, { "cite": "502 N.E.2d 1322", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "pin_cites": [ { "page": "1325" }, { "page": "1325" } ], "opinion_index": 0 }, { "cite": "151 Ill. App. 3d 807", "category": "reporters:state", "reporter": "Ill. 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ST. ELIZABETH\u2019S HOSPITAL et al., Defendants-Appellants." ], "opinions": [ { "text": "JUSTICE HARRISON\ndelivered the opinion of the court:\nPlaintiff, 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\u2019s 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 \u2014 622 of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2 \u2014 622). Plaintiff then filed a motion for voluntary dismissal pursuant to section 2 \u2014 1009(a) of the Code (Ill. Rev. Stat. 1985, ch. 110, par. 2 \u2014 1009(a)). The court granted plaintiff\u2019s motion for voluntary dismissal and did not rule on defendants\u2019 motions to dismiss with prejudice, finding defendants\u2019 motions to be moot. On appeal, defendants contend (1) plaintiff could not voluntarily dismiss the action because a hearing had occurred, (2) plaintiff\u2019s cause of action should be dismissed with prejudice for failure to comply with section 2 \u2014 622, and (3) plaintiff was not entitled to a voluntary dismissal because he failed to tender costs and give notice to defendants. We affirm.\nPlaintiff filed a complaint on March 3, 1986, alleging that Cheryl Metcalfe was admitted to St. Elizabeth\u2019s 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\u2019s 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.\nOn April 9, 1986, defendant St. Elizabeth\u2019s Hospital filed a motion to dismiss the action for failure to comply with section 2 \u2014 622 of the Code of Civil Procedure (El. Rev. Stat. 1985, ch. 110, par. 2\u2014 622), which requires an affidavit of the plaintiff\u2019s 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\u2019 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\u2019 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\u2019s 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.\nDefendants first contend that the hearing which had been held upon their motions to dismiss plaintiff\u2019s action was a \u201chearing\u201d for purposes of section 2 \u2014 1009(a) of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2 \u2014 1009(a)), and that consequently plaintiff no longer had a right to automatically dismiss the action. Section 2 \u2014 1009(a) provides in pertinent part:\n\u201cThe plaintiff may, at any time before trial or hearing begins, upon notice to each party who has appeared or each such party\u2019s 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.\u201d Ill. Rev. Stat. 1985, ch. 110, par. 2 \u2014 1009(a).\nCourts of this State have held that under section 2 \u2014 1009(a), a plaintiff\u2019s right to a voluntary dismissal without prejudice prior to trial or hearing is absolute and the court has no discretion to deny plaintiff\u2019s 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 \u201ctrial\u201d and \u201chearing\u201d as used in section 2 \u2014 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 \u2014 1009, a \u201chearing\u201d is the equitable equivalent of a trial. Then the court stated: \u201cBoth a trial and a hearing involve a determination of the parties\u2019 rights. [Citations.] In other words, a hearing is a nonjury proceeding in which evidence is taken on the merits.\u201d (104 Ill. 2d 302, 309, 472 N.E.2d 787, 790.) Thus a hearing \u201cdoes 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.\u201d In re Marriage of Fine (1983), 116 Ill. App. 3d 875, 879, 452 N.E.2d 691, 693.\nA hearing, as defined in Kahle and Fine, did not take place in the present case. There had been a hearing on defendants\u2019 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.\nWe 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\u2019Connell 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 \u2014 1009, moves to voluntarily dismiss his suit while a defendant\u2019s 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\u2019s motion. (O\u2019Connell 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 \u2014 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 \u2014 217 of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 13 \u2014 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\u2019Connell 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 diligence in serving process is essential to rendering justice fairly and promptly, the court held that sections 2 \u2014 1009 and 13 \u2014 217 unduly infringe upon the judiciary where a plaintiff takes a voluntary dismissal under section 2 \u2014 1009 when his diligence is challenged and then refiles under section 13 \u2014 217. 112 Ill. 2d 273, 281-82, 492 N.E.2d 1322, 1326. See also Catlett v. Novak (1987), 116 Ill. 2d 63, 506 N.E.2d 586.\nDefendants here argue for a broad interpretation of the exception carved out in O\u2019Connell, contending that because their motions to dismiss with prejudice were pending at the time plaintiff filed his motion fpr voluntary dismissal, their motions to dismiss should have been heard prior to any ruling on plaintiff\u2019s motion to voluntarily dismiss. We cannot agree. There is no conflict here between a court rule and a statute as there was in O\u2019Connell. Furthermore, this court has rejected the suggestion that O\u2019Connell indicates a change in the law. (See Kern v. Peabody Coal Co. (1987), 151 Ill. App. 3d 807, 811, 502 N.E.2d 1322, 1325.) The supreme court in Kahle noted that \u201c[a]t common law, the plaintiff could voluntarily dismiss without prejudice at any point before the judgment was returned. The legislature attempted to discourage vexatious suits by limiting the plaintiff\u2019s freedom, but only by preventing an automatic voluntary dismissal without prejudice after trial or hearing commenced. [Citation.] Any further limits on the plaintiff\u2019s common law rights should be enacted by the legislature, not declared by this court.\u201d Kahle v. John Deere Co. (1984), 104 Ill. 2d 302, 307-08, 472 N.E.2d 787, 789. We believe that outside of the limited exception established in O\u2019Connell, a plaintiff\u2019s right to a voluntary dismissal prior to trial or hearing is still an absolute right.\nDefendants also place strong reliance upon the decision in Bernick v. Chicago Title & Trust Co. (1945), 325 Ill. App. 495, 60 N.E.2d 442, which held that when there has been a hearing pursuant to a motion to dismiss filed under section 48 of the former Civil Practice Act, now section 2 \u2014 619 of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2 \u2014 619), a plaintiff no longer has an absolute right to a voluntary dismissal. Defendant\u2019s motion in Bernick alleged res judicata as a complete defense to the action. The court reasoned that since a section 2 \u2014 619 motion would terminate the litigation if sustained, a hearing had begun within the meaning of the statute regarding voluntary dismissals. 325 Ill. App. 495, 501, 60 N.E.2d 442, 444; see also City of Palos Heights v. Village of Worth (1975), 29 Ill. App. 3d 746, 331 N.E.2d 190.\nDefendants note that pursuant to the express language of section 2 \u2014 622(g) of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2 \u2014 622(g)), their motions to dismiss in the present case were section 2 \u2014 619 motions, and they contend that the holding in Bernick applies here. Defendants argue that by referring to section 2 \u2014 619, the legislature, in adopting section 2 \u2014 622, intended for the failure to comply with the provisions of section 2 \u2014 622 to result in a dismissal with prejudice.\nWe need not decide whether a dismissal for noncompliance with the provisions of section 2 \u2014 622 must be a dismissal with prejudice. In view of the definition of a \u201chearing\u201d in Kahle, the holding in Bernick can no longer be the law. We note that the First District, which decided Bernick, has rejected its own decision. The court in In re Marriage of Fine (1983), 116 Ill. App. 3d 875, 452 N.E.2d 691, albeit in dicta, stated that a hearing on a section 2 \u2014 619 motion is \u201cno more a \u2018hearing\u2019 under section [2 \u2014 1009] than are other proceedings relating to preliminary motions.\u201d 116 Ill. App. 3d 875, 880, 452 N.E.2d 691, 693.\nWe therefore reject the holding in Bernick and the similar view stated recently in Highland v. Stevenson (1987), 153 Ill. App. 3d 390, 397-98, 505 N.E.2d 776, 781, that the trial court should have discretion to consider any defense motion which might result in a dismissal with prejudice prior to a ruling on a plaintiff\u2019s voluntary dismissal motion. We conclude that a hearing on a motion to dismiss for failure to comply with section 2 \u2014 622 is not a \u201chearing\u201d as provided in section 2 \u2014 1009(a). In doing so we follow the numerous decisions which have found that a plaintiff has an absolute right to a voluntary dismissal prior to trial or hearing even though pending is a motion by a defendant which, if granted, could result in a dismissal with prejudice or final judgment. In Hale v. Ault (1980), 83 Ill. App. 3d 78, 403 N.E.2d 635, and North Park Bus Service, Inc. v. Pastor (1976), 39 Ill. App. 3d 406, 349 N.E.2d 664, the plaintiffs were allowed to voluntarily dismiss their actions even though there had been a hearing on defense motions for summary judgment. This court has recently held that a plaintiff has an absolute right to a voluntary dismissal even though a defense motion for summary judgment is pending. (See Rohr v. Knaus (1987), 153 Ill. App. 3d 1013, 506 N.E.2d 634; Russ v. Gandhy (1986), 149 Ill. App. 3d 660, 500 N.E.2d 1032.) Courts have also held that hearings pursuant to a motion to dismiss filed under section 2 \u2014 615 of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2 \u2014 615) do not mark the commencement of a trial or hearing under section 2 \u2014 1009, and that a plaintiff has an absolute right to a voluntary dismissal after such hearings have been held (see Bailey v. State Farm Fire & Casualty Co. (1985), 137 Ill. App. 3d 155, 484 N.E.2d 522; Heinz v. County of McHenry (1984), 122 Ill. App. 3d 895, 461 N.E.2d 672), even though a section 2 \u2014 615 motion can result in a dismissal with prejudice (Ill. Rev. Stat. 1985, ch. 110, par. 2 \u2014 615(d); see Plocar v. Dunkin\u2019 Donuts of America, Inc. (1981), 103 Ill. App. 3d 740, 750, 431 N.E.2d 1175, 1182). Therefore, the fact a hearing has been held on a defense motion alleging grounds which could result in a judgment or dismissal of the action with prejudice is of no consequence if there has been no trial or hearing as defined in Kahle.\nDefendants next argue that allowing plaintiff to voluntarily dismiss his action, with the right to refile under section 13 \u2014 217 of the Code, allows him to circumvent the legislature\u2019s intention to prevent frivolous lawsuits in the area of medical malpractice. (See Bernier v. Burris (1986), 113 Ill. 2d 219, 252, 497 N.E.2d 763, 779.) Defendants claim that because the legislature provided in section 2\u2014 622(g) (Ill. Rev. Stat. 1985, ch. 110, par. 2 \u2014 622(g)) that the failure to comply with section 2 \u2014 622 shall be grounds for dismissal under section 2 \u2014 619, that plaintiff should not be allowed to avoid the consequences of his noncompliance.\nWe note first that plaintiff will be required to comply with section 2 \u2014 622 if he refiles his action. Furthermore, because plaintiff moved to dismiss the action prior to trial or hearing, we have held he had an absolute right to voluntarily dismiss, and his motive for doing so is of no consequence. (See Rohr v. Knaus (1987), 153 Ill. App. 3d 1013, 506 N.E.2d 634, 636.) The present case is analogous to Moody\u2019s Investors Service, Inc. v. Department of Revenue (1984), 101 Ill. 2d 291, 461 N.E.2d 972, where the supreme court allowed a plaintiff to voluntarily dismiss an action and refile within one year even though the plaintiff, a taxpayer bringing an action for administrative review of a ruling of the Department of Revenue, had failed to post bond within 20 days of the Department\u2019s ruling as required by section 12 of the Retailers\u2019 Occupation Tax Act (Ill. Rev. Stat. 1979, ch. 120, par. 451). The court allowed the taxpayer to voluntarily dismiss the action even though the dismissal was designed to avoid the consequences of a failure to comply with a procedural requirement. In Kern v. Peabody Coal Co. (1987), 151 Ill. App. 3d 807, 811, 502 N.E.2d 1322, 1325, we held that a plaintiff had a right to a voluntary dismissal where he had failed to demand a jury at the time he filed his complaint, even though the obvious purpose of the dismissal was to refile the action to properly demand a jury. In Bailey v. State Farm Fire & Casualty Co. (1985), 137 Ill. App. 3d 155, 484 N.E.2d 522, the plaintiff\u2019s complaint had been dismissed with leave to file an amended complaint within 28 days, and the plaintiff failed to amend his complaint within the time allowed by the court. We held that he had a right to voluntarily dismiss the action even though the plaintiff was attempting to avoid a dismissal with prejudice. (137 Ill. App. 3d 155, 159, 484 N.E.2d 522, 525.) We reached the same conclusion in Davis v. International Harvester Co. (1985), 139 Ill. App. 3d 264, 269, 487 N.E.2d 385, 388, where the plaintiff, instead of complying with the court\u2019s order to respond to a discovery request within 30 days, moved to voluntarily dismiss, even though the court had stated the action would be dismissed with prejudice if plaintiff did not meet the deadline. These cases indicate that a plaintiff has a right to voluntarily dismiss an action even though the move is designed to avoid the consequences of a defect in the proceedings.\nWe conclude, therefore, that plaintiff had an absolute right to voluntarily dismiss the action.\nDefendants also contend that plaintiff was not entitled to a voluntary dismissal because he failed to comply with the provisions of section 2 \u2014 1009 requiring notice and payment of costs. Plaintiff\u2019s motion for voluntary dismissal was decided on the same date it was filed, and there is no indication that defendants received notice of the motion before it was decided. In addition, plaintiff\u2019s motion makes no reference to costs. However, the trial court\u2019s order of August 1, 1986, requires plaintiff to pay costs.\nWhile we agree defendants should have been notified of plaintiff\u2019s voluntary dismissal motion prior to the court\u2019s ruling thereon, and that plaintiff\u2019s motion should have stated that plaintiff was tendering costs, we fail to see how defendants were prejudiced in the present case. (See In re Marriage of Brown (1980), 86 Ill. App. 3d 964, 969-71, 410 N.E.2d 79, 83-84; Western Land Corp. v. Lichtenstein (1977), 47 Ill. App. 3d 233, 241, 361 N.E.2d 730, 736.) Defendants filed motions to reconsider the order granting the voluntary dismissal, and the court considered and ruled on these motions. Defendants therefore had notice of the voluntary dismissal motion prior to the court\u2019s ruling on the motions to reconsider. Furthermore, while plaintiff\u2019s motion made no reference to costs, the court\u2019s order requires him to pay costs and plaintiff concedes in his brief in this court that he is required to do so. Therefore, we reject defendants\u2019 argument.\nFor the foregoing reasons, the order of the circuit court of St. Clair County granting plaintiff\u2019s motion to voluntarily dismiss his action is affirmed.\nAffirmed.\nKASSERMAN and WELCH, JJ., concur.", "type": "majority", "author": "JUSTICE HARRISON" } ], "attorneys": [ "Burroughs, Simpson, Hepler & Broom, of Edwardsville, for appellant St. Elizabeth\u2019s Hospital.", "Thomas W. Alvey, Jr., and Tracy P. Christianson, both of Thompson & Mitchell, of Belleville, for appellant Dr. Adele M. Roth.", "Amiel Cueto and Christopher Cueto, both of Cueto, Daley, Williams, Moore & Cueto, Ltd., of Belleville, for appellee." ], "corrections": "", "head_matter": "JOHN METCALFE, Special Adm\u2019r of the Estate of Andrew Metcalfe, Deceased, Plaintiff-Appellee, v. ST. ELIZABETH\u2019S HOSPITAL et al., Defendants-Appellants.\nFifth District\nNo. 5\u201486\u20140507\nOpinion filed August 4, 1987.\nRehearing denied September 23, 1987.\nBurroughs, Simpson, Hepler & Broom, of Edwardsville, for appellant St. Elizabeth\u2019s Hospital.\nThomas W. Alvey, Jr., and Tracy P. Christianson, both of Thompson & Mitchell, of Belleville, for appellant Dr. Adele M. Roth.\nAmiel Cueto and Christopher Cueto, both of Cueto, Daley, Williams, Moore & Cueto, Ltd., of Belleville, for appellee." }, "file_name": "0047-01", "first_page_order": 69, "last_page_order": 76 }