Notice
Decision filed 03/22/06. The text of
this decision may be changed or
corrected prior to the filing of a
Petition for Rehearing or the
disposition of the same. NO. 5-05-0250
IN THE
APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT
___________________________________________________________________________
JANE SMITH, as Special Administrator of ) Appeal from the
the Estate of Wilfred Smith, Deceased, ) Circuit Court of
) Perry County.
Plaintiff-Appellee, )
)
v. ) No. 04-L-42
)
WILLIAM BARTLEY, M.D., )
)
Defendant-Appellant, )
)
and )
)
HEALTHLINE MANAGEMENT, INC., ) Honorable
) James W. Campanella,
Defendant. ) Judge, presiding.
__________________________________________________________________________
JUSTICE WELCH delivered the opinion of the court:
On January 24, 2003, Jane Smith (the plaintiff), as the special administrator of the
estate of Wilfred Smith, deceased, filed a wrongful death/medical malpractice action in the
circuit court of Perry County against William Bartley, M.D. (the defendant), and Healthline
Management, Inc., the defendant's employer. 1 The complaint alleged that the plaintiff's
decedent had died on January 28, 2001, as a result of the defendant's medical malpractice.
Attached to the complaint was the affidavit of the plaintiff's attorney, required by section 2-
1
Healthline Management, Inc., is not a party to this appeal.
1
622(a)(2) of the Illinois Code of Civil Procedure (the Code) (735 ILCS 5/2-622(a)(2) (West
2002)), stating that the plaintiff had not previously voluntarily dismissed the same action and
that her attorney had been unable to obtain the consultation required by section 2-622(a)(1)
of the Code (735 ILCS 5/2-622(a)(1) (West 2002)) because a statute of limitations would
impair the action and the consultation could not be obtained before the expiration of the
statute of limitations.
The defendant was served with a summons on March 31, 2003. The defendant did not
enter an appearance, and no further proceedings were had on the complaint until August 26,
2003, when the plaintiff filed a motion to voluntarily dismiss the complaint. The defendant
was not given notice of the filing of the motion, and no hearing was held thereon. Through
inadvertent delay, the motion was granted one year later, on August 25, 2004. The defendant
was not served with notice of the entry of the voluntary dismissal order. However, one day
after the entry of that order, on August 26, 2004, the plaintiff refiled her action against the
defendant and Healthline Management, Inc. This complaint had attached to it the affidavit
and medical report required by section 2-622(a)(1) of the Code (735 ILCS 5/2-622(a)(1)
(West 2002)).
On December 13, 2004, the defendant filed an amended motion to dismiss the
complaint as having been filed beyond the two-year statute of limitations provided for
medical malpractice actions (735 ILCS 5/13-212(a) (West 2004)). The motion alleges that
the defendant had not received notice of the filing of the previous motion for voluntary
dismissal, notice of any hearing thereon, or notice of the entry of the voluntary dismissal
order. Accordingly, the motion argues, section 13-217 of the Code (735 ILCS 5/13-217
(West 2004)) does not operate to extend the statute of limitations for an additional year
beyond the voluntary dismissal. The motion alleges, "Order of Voluntary Dismissal is
improper and invalid and ex parte and does not extend the time for filing this lawsuit."
2
Accordingly, the defendant argues, the complaint was filed beyond the limitations period and
must be dismissed.
On April 18, 2005, the circuit court of Perry County entered an order denying the
amended motion to dismiss. The court found that, although the defendant had not received
notice of the motion for voluntary dismissal or the hearing thereon, he had suffered no
prejudice as a result. Accordingly, pursuant to section 13-217 of the Code (735 ILCS 5/13-
217 (West 2004)), the plaintiff had an additional year in which to refile her complaint
following the voluntary dismissal of the original complaint. Her refiled complaint was timely
filed, and the defendant's motion to dismiss was denied.
This cause comes before us on appeal pursuant to Supreme Court Rule 308 (155 Ill.
2d R. 308). The trial court identified for our review the following question of law:
"[W]hether or not failure to give notice on a motion for voluntary dismissal and order of
voluntary dismissal invalidates the order of dismissal and therefore deprives plaintiff of an
additional one year within which to file a cause of action."
On appeal, the defendant argues that where a party fails to comply with the statutory
requirements for a voluntary dismissal set forth in section 2-1009(a) of the Code (735 ILCS
5/2-1009(a) (West 2004)), as when she fails to give notice to the opposing party of the filing
of the motion or the hearing thereon, she is not entitled to take advantage of the provision of
section 13-217 of the Code, which grants an additional year within which to refile the
complaint after it has been voluntarily dismissed. The defendant cites no case in support of
this proposition, nor have we been able to find any such case. In any event, we reject the
defendant's argument for two reasons.
First, the plaintiff did comply with the requirements of section 2-1009(a) of the Code.
Section 2-1009(a) of the Code provides that a plaintiff may, at any time before the trial or
hearing begins, upon notice to each party who has appeared or each such party's attorney,
3
and upon the payment of costs, dismiss the action without prejudice. 735 ILCS 5/2-1009(a)
(West 2004). When a party complies with the requirements of section 2-1009(a), her right to
a voluntary dismissal without prejudice is, with very limited exceptions, unfettered.
Valdovinos v. Luna-Manalac Medical Center, Ltd., 328 Ill. App. 3d 255, 265 (2002). When
an action is voluntarily dismissed, whether or not the time limitation for bringing that action
expires during the pendency of that action, the plaintiff may commence a new action within
one year of the voluntary dismissal or within the remaining period of limitation, whichever is
greater. 735 ILCS 5/13-217 (West 2004). Section 2-1009(a) requires notice only to a party
who has appeared in the action. Although he had been served with a summons, the
defendant had not appeared prior to the voluntary dismissal and therefore was not statutorily
entitled to notice. Although this is not, and cannot be, an appeal from the grant of the motion
for voluntary dismissal, the first premise of the defendant's argumentBthat the plaintiff failed
to comply with section 2-1009(a)Bis false and the argument therefore fails.
Second, even if the voluntary dismissal order had been entered improperly for a lack
of notice, that is, if the trial court had abused its discretion in granting the motion in the
absence of proper notice, this would not invalidate or void the dismissal order and would not
affect the application of section 13-217 to the plaintiff's cause. The time for challenging the
propriety of the voluntary dismissal order has passed. The defendant does not, and could not
successfully, argue that the dismissal order is void and of no effect. Judgments may be
collaterally attacked as void only where there is a total want of jurisdiction in the court that
entered the judgment, either regarding the subject matter or regarding the parties. In re
Marriage of Mitchell, 181 Ill. 2d 169, 174 (1998). The defendant does not argue that the
circuit court lacked jurisdiction over the original parties or the proceedings resulting in the
voluntary dismissal. Once a court has obtained jurisdiction, an order will not be rendered
void merely because of an error or impropriety in the issuing court's determination of the
4
facts or law. In re Marriage of Mitchell, 181 Ill. 2d at 174. Accordingly, the voluntary
dismissal order stands as a final and unimpeachable judgment. Section 13-217 of the Code
allowed the plaintiff an additional one year after the voluntary dismissal in which to refile her
action. She did so in a timely manner.
The defendant argues that the trial court's ruling contravenes the requirement of
section 2-622(a)(2) of the Code (735 ILCS 5/2-622(a)(2) (West 2004)) that a certificate and
written report of a medical professional be filed within 90 days after the filing of the
complaint. The defendant argues that this deprived him of the opportunity to move for a
dismissal with prejudice when the certificate and written report were not timely filed. We
disagree. The defendant had been served with a summons in the original suit, was aware of
its pendency, and could have filed a motion to dismiss with prejudice at any time after the
expiration of the 90 days. The defendant did not avail himself of the opportunity. He cannot
be heard to complain now.
The defendant's motion to dismiss on the ground that the action was not commenced
within the time limited by law was brought pursuant to section 2-619 of the Code (735 ILCS
5/2-619 (West 2004)). Because it presents only a question of law, we review the grant or
denial of such a motion de novo. Gunther v. Illinois Civil Service Comm'n, 344 Ill. App. 3d
912, 914 (2003). The circuit court of Perry County did not err in denying the defendant's
motion to dismiss with prejudice the plaintiff's complaint on the ground that it was not
commenced within the time limited by law.
For the foregoing reasons, the order of the circuit court of Perry County is hereby
affirmed.
Certified question answered; judgment affirmed.
DONOVAN and McGLYNN, JJ., concur.
5
NO. 5-05-0250
IN THE
APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT
___________________________________________________________________________________
JANE SMITH, as Special Administrator of
) Appeal from the
the Estate of Wilfred Smith, Deceased,) Circuit Court of
) Perry County.
Plaintiff-Appellee, )
)
v. ) No. 04-L-42
)
WILLIAM BARTLEY, M.D., )
)
Defendant-Appellant, )
)
and )
)
HEALTHLINE MANAGEMENT, INC., ) Honorable
) James W. Campanella,
Defendant. ) Judge, presiding.
___________________________________________________________________________________
Opinion Filed: March 22, 2006
___________________________________________________________________________________
Justices: Honorable Thomas M. Welch
Honorable James K. Donovan, and
Honorable Stephen P. McGlynn,
Concur
___________________________________________________________________________________
Attorneys Richard M. Roessler, Andrew C. Corkery, Gundlach, Lee, Eggmann, Boyle &
for Roessler LLC, 5000 West Main Street, P.O. Box 23560, Belleville, IL 62223-0560
Appellant
___________________________________________________________________________________
Attorney John D. Alleman, Alleman & Hicks, 310 East Main Street, Carbondale, IL 62901
for
Appellee
___________________________________________________________________________________
Smith v. Bartley, M.D.
Combined Opinion