Swisher v. Duffy , 117 Ill. 2d 376 ( 1987 )

JUSTICE RYAN

delivered the opinion of the court:

Robert Swisher filed a medical malpractice action in the circuit court of Will County against Dr. John Duffy and St. Joseph’s Hospital. On October 1, 1982, prior to trial on the merits, the circuit court granted plaintiff’s motion for voluntary dismissal (Ill. Rev. Stat. 1985, ch. 110, par. 2 — 1009). On October 21, 1982, three weeks after granting the voluntary dismissal, the trial court signed a written order for voluntary dismissal of the case.

Plaintiff refiled this action in the circuit court of Will County on October 21, 1983, one year from the date that the circuit court signed the written order of voluntary dismissal. On December 13, 1983, the trial court granted defendants’ motion to dismiss the action on the grounds that it was not filed within one year of the date that the voluntary dismissal was granted, as required by statute. (Ill. Rev. Stat. 1985, ch. 110, par. 13 — 217.) The appellate court reversed, concluding that the one-year period for refiling did not begin to run until the trial court signed the written order of voluntary dismissal. (Swisher v. Duffy (1985), 139 Ill. App. 3d 691.) We granted defendants’ petition for leave to appeal, and we now reverse the appellate court.

Plaintiff filed his original medical malpractice action on August 12, 1981. When the circuit court granted plaintiff’s motion for voluntary dismissal on October 1, 1982, the clerk made the following entry on the official docket:

“Charles Hahn for Plaintiff. Mr. Sandberg and Mr. Gar-bold for the Defendants. Plaintiff’s motion for voluntary non-suit is allowed. Case dismissed.

CONNOR/hjk/mbs”

On October 21, 1982, plaintiff’s attorney presented a written order of voluntary dismissal which the circuit court signed, and the clerk made the following notation in the official docket:

“Voluntary dismissal order signed. SOS CONNOR/hjk”

There is no indication in the record that when the dismissal order of October 1 was entered the circuit court directed the preparation of a written order or that defendants had notice that on October 21 the written order was presented to the circuit court and signed. Plaintiff refiled his suit on October 21,1983.

The issue in this case is whether judgment was entered on October 1 or October 21, for purposes of calculating the time allowed by statute for refiling. (See Ill. Rev. Stat. 1985, ch. 110, par. 13 — 217.) In considering this question we turn to Supreme Court Rule 272 (87 Ill. 2d R. 272). Rule 272 provides as follows:

“If at the time of announcing final judgment the judge requires the submission of a form of written judgment to be signed by him, the clerk shall make a notation to that effect and the judgment becomes final only when the signed judgment is filed. If no such signed' written judgment is to be filed, the judge or clerk shall forthwith make a notation of judgment and enter the judgment of record promptly, and the judgment is entered at the time it is entered of record.”

Rule 272 was intended to resolve questions regarding the timeliness of an appeal where there is an oral announcement of judgment from the bench. (West v. West (1979), 76 Ill. 2d 226, 233.) The function of Rule 272 is to fix the time that a judgment is entered for the purpose of determining the time allowed for filing an appeal. (Stoermer v. Edgar (1984), 104 Ill. 2d 287, 293.) We find that the same purpose is served where there is a limited time set for refiling a case, as is provided in the statute involved here. (Ill. Rev. Stat. 1985, ch. 110, par. 13 — 217.) In such cases Rule 272 serves to fix the date of judgment for the purpose of determining whether plaintiff’s refiling was timely.

Plaintiff argues that Rule 272 does not apply in this case. He contends that the judgment granting a voluntary dismissal was an order on a motion pursuant to our Rule 271 (87 Ill. 2d R. 271), not a final judgment within the meaning of Rule 272. Rule 271 provides as follows:

“When the court rules upon a motion other than in the course of trial, the attorney for the prevailing party shall prepare and present to the court the order or judgment to be entered, unless the court directs otherwise.”

In Kahle v. John Deere Co. (1984), 104 Ill. 2d 302, this court was presented with the question of whether a voluntary dismissal is a final and appealable order. Relying on Flores v. Dugan (1982), 91 Ill. 2d 108, and Wold v. Bull Valley Management Co. (1983), 96 Ill. 2d 110, plaintiff argued that a voluntary dismissal order was not final and appealable. However, we distinguished Flores and Wold because both cases involved a dismissal for want of prosecution, not a voluntary dismissal. (Kahle v. John Deere Co. (1984), 104 Ill. 2d 302, 305.) The plaintiff was not prejudiced by the dismissal for want of prosecution because he had the right to refile his case within one year. In Kahle we held that a voluntary dismissal is a final and appealable order. (104 Ill. 2d 302, 307.) The order terminated that case because the defendant had no other way to test the validity of the dismissal. The new case is a separate cause of action. We find Kahle to be controlling. The order entered in this case was not pursuant to Rule 271, but was a final and appealable judgment under Rule 272.

Since the record in this case contains no notation to the effect that the judge required the submission of a written judgment order as he may do under Rule 272, judgment was entered for purposes of Rule 272 when it was “entered of record.” (See People v. Dickerson (1984), 129 Ill. App. 3d 59, 61.) When the trial court granted the voluntary dismissal on October 1, and a notation of the court’s pronouncement was made by the clerk, the judgment was entered of record. See Drulard v. Country Co. (1981), 99 Ill. App. 3d 1031, 1034; Scott v. Dreis & Krump Manufacturing Co. (1975), 26 Ill. App. 3d 971, 984.

Plaintiff suggests that applying our holding in Kahle would constitute an impermissible retroactive application of the law, since Kahle was decided after the operative facts in this case took place. We are not persuaded by this argument. Kahle did not announce a new rule of law which constituted a sudden break with past holdings. This court had previously noted by way of dicta that a voluntary dismissal may be final for the purpose of appeal. (Galowich v. Beech Aircraft Corp. (1982), 92 Ill. 2d 157, 161.) There had been no prior holding of this court that a voluntary dismissal under section 2 — 1009 of the Code of Civil Procedure was not a final and appealable order. Kahle was decided prior to the appellate court’s decision in this case, and the appellate court was bound to follow our holding. None of the reasons compelling solely prospective application of a decision of this court are applicable here. See People v. Shum (1987), 117 Ill. 2d 317.

Plaintiff also contends that the filing of a written order of voluntary dismissal is required by section 2 — 1009 of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2 — 1009). The pertinent part of this statute provides as follows:

“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.”

Plaintiff argues that the words “by order filed in the cause” mean that a written order is required. We reject this interpretation of the statute’s language. The statute merely requires that an order be entered. We find nothing in the language of the statute that requires a written order. Thus the statute does not affect the operation of Rule 272.

The final judgment of voluntary dismissal was entered on October 1, and this effectively terminated the case. Since the circuit court did not request a written order, and none was required, the written order signed on October 21 was superfluous and had no legal effect.

Accordingly, we reverse the judgment of the appellate court and affirm the judgment of the circuit court of Will County.

Appellate court reversed; circuit court affirmed.