specially concurring:
The significant facts in this case are simple. Plaintiff filed his lawsuit in March 1982. After defendant filed a responsive pleading, defendant filed interrogatories. In March 1986, while the interrogatories remained unanswered by plaintiff, defendant filed a motion to dismiss for failure to comply with the supreme court rules relating to discovery. To support his motion to dismiss, defendant filed documents demonstrating that letters and phone calls were made requesting compliance with the supreme court rules. At the hearing on defendant’s motion to dismiss, plaintiff moved to voluntarily dismiss his case pursuant to section 2—1009 (Ill. Rev. Stat. 1985, ch. 110, par. 2 — 1009), with the apparent intention to refile the same case pursuant to section 13 — 217 (Ill. Rev. Stat. 1985, ch. 110, par. 13—217). The trial court denied a hearing on defendant’s motion to dismiss, and the trial court entered an order allowing plaintiff to take a voluntary dismissal notwithstanding defendant’s pending motion to dismiss for failure to comply with the supreme court rules relating to discovery. In my opinion, although the trial court ruled correctly in accordance with section 2 — 1009, I believe the trial court’s ruling once again demonstrates the unfairness and abuses that are created by section 2 — 1009.
I do not find it necessary to discuss the obvious unfairness and abuse that this case presents, nor do I find it necessary to discuss the obvious unfairness and abuses that are presented in the many cases which have involved sections 2 — 1009 and 13 — 217. I list some of the other recent cases here merely to demonstrate the extent of the problem that the two legislative enactments have created:
Muskat v. Sternberg (1988), 122 Ill. 2d 41; Catlett v. Novak (1987), 116 Ill. 2d 63, 506 N.E.2d 586; People v. Joseph (1986), 113 Ill. 2d 36, 495 N.E.2d 501; Meyers v. Bridgeport Machines Division of Textron, Inc. (1986), 113 Ill. 2d 112, 497 N.E.2d 745; O’Connell v. St. Francis Hospital (1986), 112 Ill. 2d 273, 492 N.E.2d 1322; Kiven v. Mercedes-Benz of North America, Inc. (1986), 111 Ill. 2d 585, 491 N.E.2d 1167; Dillie v. Bisby (1985), 106 Ill. 2d 487, 478 N.E.2d 1338; Kahle v. John Deere Co. (1984), 104 Ill. 2d 302, 472 N.E.2d 787; Whamond v. McGill (1988), 168 Ill. App. 3d 66; Semersky v. West (1988), 166 Ill. App. 3d 637; In re Estate of Jackson (1987), 161 Ill. App. 3d 573; Dassion v. Homan (1987), 161 Ill. App. 3d 141, 514 N.E.2d 41; Jacobsen v. Ragsdale (1987), 160 Ill. App. 3d 656, 513 N.E.2d 1112; Schmitt v. Motorola, Inc. (1987), 160 Ill. App. 3d 1059, 513 N.E.2d 1069; Metcalfe v. St. Elizabeth’s Hospital (1987), 160 Ill. App. 3d 47, 513 N.E.2d 12; Gibellina v. Handley (1987), 158 Ill. App. 3d 866, 511 N.E.2d 884; Griffin v. Area E-7 Hospital Assoc. (1987), 158 Ill. App. 3d 720, 511 N.E.2d 256; Martinez v. Erickson (1987), 155 Ill. App. 3d 1093, 509 N.E.2d 1032; Kendle v. Village of Downers Grove (1987), 156 Ill. App. 3d 545, 509 N.E.2d 723; Sylvester v. Steinberg (1987), 152 Ill. App. 3d 962, 505 N.E.2d 28; Kern v. Peabody Coal Co. (1987), 151 Ill. App. 3d 807, 502 N.E.2d 1322; Miller v. Alexander (1986), 150 Ill. App. 3d 594, 502 N.E.2d 40; Penrod v. Sears, Roebuck & Co. (1987), 150 Ill. App. 3d 125, 501 N.E.2d 367; Mancuso v. Beach (1986), 149 Ill. App. 3d 188, 500 N.E.2d 589; Hughley v. Alcaraz (1986), 144 Ill. App. 3d 726, 494 N.E.2d 706; Jackson v. Schencker & Schencker (1986), 145 Ill. App. 3d 232, 494 N.E.2d 669; Swisher v. Duffy (1985), 139 Ill. App. 3d 691, 487 N.E.2d 696; Land v. Greenwood (1985), 133 Ill. App. 3d 537, 478 N.E.2d 1203.
Under the circumstances, it appears to me that the General Assembly should consider limiting a plaintiff’s right to take a voluntary dismissal under section 2 — 1009 or limiting the right to refile after a voluntary dismissal under section 13 — 217, to prevent the unfairness and abuse apparent in this case from reoccurring, and the unfairness and abuses created in similar cases.
The fact that section 13 — 217 should be examined by the legislature has already been noted by Justices Ryan and Moran of our Illinois Supreme Court. In Justice Ryan’s concurring opinion, joined by Justice Moran, in Kahle v. John Deere Co., Justice Ryan stated: “I suggest that the General Assembly consider limiting the right to refile after a voluntary dismissal under section 13 — 217 to prevent the abuse apparent in this case.” Kahle, 104 Ill. 2d at 311, 472 N.E.2d at 792.
At common law a plaintiff had an absolute right to dismiss his suit without prejudice at any time before verdict or judgment. Under strict common law pleading this rule prevented loss of legitimate claims because of technical errors. Abuse of the right, however, led to highly inequitable results. Moreover, in view of the present wide discretionary power of judges relating to continuances and amendments of pleading, the primary reasons for any absolute right to dismiss have generally disappeared. 27 Fed. Proc., L. Ed. §62:484 (1984); Note, Absolute Dismissal Under Federal Rule 41(a): The Disappearing Right of Voluntary Nonsuit, 63 Yale L.J. 738, 742 (1954).
The Illinois legislature attempted to discourage the inequitable results of an absolute right to voluntarily dismiss a suit by limiting a plaintiff’s freedom to obtain a voluntary dismissal, but only by preventing an automatic voluntary dismissal without prejudice after the trial or hearing commenced. (Kahle v. John Deere Co., 104 Ill. 2d at 307, 472 N.E.2d at 798.) However, as I have previously discussed, it is readily apparent that in spite of the present legislative limitation on a plaintiff’s freedom to take a voluntary dismissal, unfairness and abuses relating to voluntary dismissals have been and are occurring in Illinois. Viewing the problem of voluntary dismissals generally, at least one commentator has suggested “placing dismissals at the discretion of the court from the time the complaint is filed.” (Note, Absolute Dismissal Under Federal Rule 41(a): The Disappearing Right of Voluntary Nonsuit, 63 Yale L.J. 738, 743 (1954).) A more palatable change in Illinois would be simply to adopt the Federal rule on the subject. (D.C. Electronics, Inc. v. Nartron Corp. (6th Cir. 1975), 511 F.2d 294, 298.) The plaintiff may obtain a voluntary dismissal without order of the court under FRCP 41(aXl) in two manners: (1) by filing a notice of dismissal at any time before service by the adverse party of an answer or of a motion for summary judgment, whichever occurs first; or (2) by filing a stipulation of dismissal signed by all parties who have appeared in the action. (27 Fed. Proc., L. Ed. §62:484 (1984).) Specifically, FRCP 41(a)(l) states:
“(a) Voluntary Dismissal: Effect Thereof.
(1) By Plaintiff; by Stipulation. Subject to the provisions of Rule 23(e), of Rule 66, and of any statute of the United States, an action may be dismissed by the plaintiff without order of court (i) by filing a notice of dismissal at any time before service by the adverse party of an answer or of a motion for summary judgment, whichever first occurs, or (ii) by filing a stipulation of dismissal signed by all parties who have appeared in the action. Unless otherwise stated in the notice of dismissal or stipulation, the dismissal is without prejudice, except that a notice of dismissal operates as an adjudication upon the merits when filed by a plaintiff who has once dismissed in any court of the United States or of any state an action based on or including the same claim.” Fed. R. Civ. P. 41(a)(1).
It should be noted that at least 19 States presently follow the Federal rule:
Alabama (ARCP, Rule 41(a) (1983)); Arizona (16 A.R.S. Rules of Civil Procedure Rule 41(a) (1986)); Colorado (7A C.R.S. Rule 41(a) (1986)); Indiana (West’s Ann. Ind. Code, Title 34, Appendix, Tr. 41 (1986)); Kansas (K.S.A., R.C.P., Chapter 60-241 (1983)); Kentucky (K.R.A., Rule 41(a) (1984)); Maryland (Md. Rule 3 — 506 (1987)); Michigan (Mich. R. Civ. Pro. Rule 2.504(A) (1986)); New Jersey (N.J. Court Rules, 1969, R.4:37— (1) (1986)); Nevada (N.R.C.P., Rule 41 (1987)); Montana (Chapter 20, M.C.A., Rule 41(a) (1985)); Mississippi (Miss. Rule of Civ. Proc. 41 (1986)); North Dakota (N.D. Century Code, Vol. 5B, Rule 41(a) (1987)); South Dakota (SDCL 15-6-41 (1984)); South Carolina (South Carolina Rule of Civil Procedure 41 (1987)); Utah (Rule 41, Utah Rule of Civil Pro. (1987)); Vermont (V.R.C.P. 41(a) (1971)); Wyoming (WY. Rule of Civ. Pro. Rule 41 (1979)); West Virginia (West Virginia R.C.P., Rule 41 (1986)).
Six States presently follow a variation of the Federal rule:
Florida (“any time before a hearing on motion for summary judgment”) (Florida Stat. Ann., Rules of Court, R. 1.420 (West 1987)); New Mexico (“any time before filing of the answer”) (SCRA 1986, Rule 2 — 305 (1986)); Louisiana (“prior to a general appearance”) (La. Code Civ. Proc. art. 1671 (West 1961)); N.Y. (“any time before a responsive pleading *** or within 20 days after service of the pleading asserting the claim”) (N.Y. Civil Practice Law §3217(b) (McKinney 1970)); Oklahoma (“any time before a petition of intervention to answer praying for affirmative relief”) (Okla. Stat. Ann. tit. 12, §684 (West I960)); Wisconsin (any time before responsive pleading) (Wis. Stat. Ann. §805.04 (West 1977)).
Accordingly, I concur in the opinion of the majority, but I would like to suggest that the General Assembly reexamine sections 2— 1009 and 13 — 217 of the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, pars. 2-1009, 13-217).