holding that a plaintiff’s voluntary dismissal pursuant to section 2-1009 is “final and appealable by the defendants.”
How later courts described this case
- holding that a plaintiff’s voluntary dismissal pursuant to section 2-1009 is “final and appealable by the defendants.”
- allowing plaintiff to refile a cause of action within one year of its dismissal
- “[W]e hold that this [voluntary dismissal] order is final and appealable by the defendants.”
- observing that a plaintiff cannot appeal a voluntary dismissal order they requested
Written by the judges who cited it.
Distinguished
Distinguished by Gibellina v. Handley, 127 Ill. 2d 122 (1989)
Five years ago, our court decided Kahle v. John Deere Co. (1984), 104 Ill. 2d 302, a case which is factually distinguishable from the instant case, but in which members of our court noted the abusive utilization of the voluntary dismissal statute and further suggested that the legislature amend the statute to prevent such continued abuse.
The opinion
CHIEF JUSTICE RYAN, concurring:
In view of the prior holdings of this court, I concur in the holding of this case. However, the facts involved demonstrate a grave abuse of the extension of the statute of limitations provided in section 13 — 217 of the Code of CivH Procedure (Ill. Rev. Stat. 1983, ch. 110, par. 13—217), which permits the commencement of a new action within one year after a voluntary dismissal by the plaintiff.
The plaintiff in this case was injured more than 91/2 years ago. Since that time the attorneys have been jockeying for position, each seeking a favorable forum. In plaintiff’s brief, an emotional argument is made that the defendants “now seek to bar plaintiff, a paraplegic, from seeking any relief whatsoever.” In my opinion, the dispatch with which plaintiff’s claim has been handled by his counsel in this case does not show much concern for his plight.
The purpose of the statute authorizing the refiling within one year after the voluntary dismissal of the case is to protect the plaintiff from his loss of the right to relief on the merits because of some procedural defect. (Kutnick v. Grant (1975), 33 Ill. App. 3d 37 ; Brown v. Burdick (1974), 16 Ill. App. 3d 1071 .) Its provisions should not be abused by using the statute as a means of forum shopping.
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. Also, I invite my colleagues to consider amending our Rule 273 (87 Ill. 2d R. 273) for the same purpose.
JUSTICE MORAN joins in this concurrence.