MOTION TO DISMISS

734 ILCS 5/2-615AND

735 ILCS 5/2-619

Motion Practice in Cook County Circuit Court’s Law DivisionJanuary 6, 2011

The Chicago Bar Association

Hon. Kathy M. FlanaganCircuit Court of Cook County

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ACKNOWLEDGMENT

The materials contained in this outlne were edited and compiledfrom primary source works authored by Justice Thomas E. Hoffman,Honorable MyronT. Gomberg, and Ilinois Practice: Civil ProcedureBefore TriaL, by Professor Richard A. Michael, published by WestPublishing Co.

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TABLE OF CONTENTS

1. Introduction.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1

II. 2-615 Motions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

A. Various types of 2-615 Motions . . . . . . . . . . . . . . . . . . . . . . . 4

B. Motions to Strike. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

C. Leave to Amend .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

D. Problems of Waiver and Appeal. . . . . . . . . . . . . . . . . . . . . 14

III. 2-619 Motions ................ . . . . . . . . . . . . . . . . . . . . . . . . . . 17

A. In General ................ . . . . . . . . . . . . . .. ........ 17

B. When the Motion May Be Raised. . . . . . . . . . . . . . . . . . . . . 19

C. General Grounds for the Motion . . . . . . . . . . . . . . . . . . . . . 20

D. What May Be Considered. . . . . . . . . . . . . . . . . . . . . . . . . . . 24

E. Standards to Be Applied ........................... . 25

F. Resolving Issues of Fact . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

G. Leave to Amend. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

H. Problems of Waiver and Appeal. . . . . . . . . . . . . . . . . . . ; . 26

IV. 2-619.1 Motions ........................................ 27

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PRE-TRIAL MOTION PRACTICE

by

Hon. Thomas E. Hoffman

I. INTRODUCTION.

Pre- Trial motion practice in Ilinois covers a wide range of topicsand it is not the intention of the author to presume to present allpossible variations that one might encounter. It is the intention of thiswork to present the most common motions that might be encounteredin the average case.

Although Sec. 2-619.1 of the Civil Practice Law (735 ILCS 5/2-619.1) provides a pleading device for the filing of combined motions,it does not authorize hybrid motion practice. Our Supreme Court inlanes v. First Federal Savings, 57 ILL. 2d 398, 312 N.E. 2d 605 (1974),

expressly disapproved of hybrid motion practice and stated that itshould not be sanctioned at the trial leveL Hence, it is imperative thatmembers of the bench and bar alike be precise in the manner in whichpre-trial motions are presented and the manner in which they are ruledupon. The bar must be vigilant in labeling their motions since themotion itself determines the standards applicable to their resolution.The bench must be careful to maintain a clear record as to the type ofmotion being decided so that a reviewig court is able to address themerits of a ruling. Although a reviewing court may disregard the trialcourt's failure to distinguish between the various types of pre-trialmotions (see lanes v. First Federal Savings, supra; Moreno v. loe Perilo,112 Il. App. 3d 670, 445 N.E. 2d. 1184 (1984'-1st Dist.J) where noprejudice to the respondent is evident (Anzingerv. Ilinois, 144 IlL App.3d. 719,494 N.E. 2d 655 (1986-1st Distl), a reversal wil follow wherethere is a prejudice to the non-moving party (Ilinois Graphics Co. v.

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Nickum, 159 Il. 2d. 469, 639 N.E. 2d 1282 (1994); Premier v. LaSalle, 115IlL App. 3d. 638,450 N.E. 2d 1360 (1983-2nd Distl). Prejudice can occurby reason of the movant's failure to label a motion (Eddings v. Dundee,135 IlL App. 3d 190, 478 N.E. 2d 888 (1985-2d Dist)).

If the reviewing court is unable to determine the type of motionthat was before the trial court, the judgment below may be reversedwithout addressing the merits of the motion. As was stated in the caseof Monev v. Kinetic, 133 IlL. App. 3d 1002, 479 N.E.2d 953 (1985-1stDist): "Reviewing courts are not under a duty to search the record todetermine the real issues nor seek material for disposition of suchissues. (Citations omitted.) Aftel- a shirt or blouse is incorrectly

buttoned, the solution is to unbutton it completely and start all over.Reviewing courts should .not have to speculate on what matters werebefore the trial court, what was considered, and why it was considered.It is best for the record to be put in proper order." 133 ILL. App. 3d at1005.

Accordingly, a trial judge should insist from the very beginningthat the litigants properly label their motions and refraíi1 from hybridmotion practice (emphasis supplied).

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II. SECTION 2-615 MOTIONS.

2-615; :Motions with respect to pleadings

2-615. Motions with respect to pleadings. (a) All objections topleadings shall be raised by motion. The motion shall point outspecifically the defects complained of, and shall ask forappropriate relief, such as: that a pleading or portion thereof bestricken because substantially inufficient in law, or that the

action be dismissed, or that a pleading be made more definiteand certain in a specified particular, or that designated

immaterial matter be stricken out, or that necessary parties beadded, or that designated misjoined parties be dismissed, and soforth.

(b) If a pleading or a division thereof is objected to by a

motion to dismiss or for judgment or to strike out the pleading,because it is substantially insufficient in law, the motion mustspecify wherein the pleading or division thereof is insufficient.

(c) Upon motions based upon defects in pleadings,substantial defects in prior pleadings may be considered.

(d) After ruling on motions, the court may enter appropriate

orders either to permit or require pleading over or amending orto terminate the litigation in whole or in part.

(e) Any party many seasonably move for judgment on the

pleadings.

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A. The Various Types of Section 2-615 Motions.

1. Motions to Strike and Motions to Dismiss.

Any party may move to strike all or any part of an opponent'spleading, either as to substance or as to form. The motions mayor maynot be dispositive. A motion to strike a complaint as being

substantially insufficient in law raises the question of whether thecomplaint states a cause of action (lanesv. First Federal Savings, supra).Similarly, one may move to strike an answer or a reply as beingsubstantially insufficient in law. A motion to strike certain designatedmatter in a pleading as being immaterial may go to the merits, but inmost cases is formaL. The JJ and so forth" language at the end of section

2-6 15 (a) appears to preserve other uses of the motion to strikei suchas a motion to strike a jury demand or an affidavit. But the motion tostrike as being substantially insufficient in law is likely to be

dispositive.

Objections to a pleading based upon the pleader's failure toabide by formal pleading requirements (e.g. 735 ILCS 5/2-407, 2-603,2-604,2-606,2-613) should be brought by a 2-615 motion. Defects as toform can generally be remedied by a revision of the pleadings.Motions relating to such defects, if granted, wil usually result in thestriking of all or a part of the pleading, and granting the pleader leaveto amend.

Often we say that a pleading or a portion thereof is ii dismissed"and refer to a Ii motion to strike" as a "motion to dismiss". This isincorrect. Pleadings are" stricken" in whole or in part; only actions are

. Ii dismissed.!! The" dismissal!! of a complaint cannot be equated with

the" strikingl' ofa partys pleading and this distinction is a substantiveone which has long been recognized .in Ilinois (Beida v. SGL, 82 Il. 2d328,412 N.E.2d 464 (1980)).

A cause of action should not be dismissed on the pleadings

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uness it clearly appears that no set of facts could be proven whichwould entitle the pleader to relief (Ilinois Graphics Co. v. Nickum, 159IlL. 2d. 469, 639 N.E. 2d 1282, (1994)); Ogle v. Fuiten, 102 IlL. 2d 179, 466

N.E. 2d 790 (1978)); Fitzgerald v. Chicago, 72 Il. 2d 179, 380 N.E. 2d 790

(1978)). For this reason, as a general rule, leave to amend is freelygranted when a pleading has been stricken.

2. Motions for Judgment on the Pleadings GOP).

a. Nature of the Motion.

J udgn1ent on the Pleadings (JOP) serves a purpose different than

that of summary judgment. There is no cognizable procedure knownas 'J summary judgment on the pleadings", a phrase which has been arecurring source of confusIon (Tompkins v. France, 21 m. App. 2d227,157 N.E. 2d 799 (1959-1st DistD. Summary judgment is a fact motion,whereas, JOP Is a pleading motion. In a simple case where there is onlya complaint, or a complaint and an answer, and the defendant movesfor a JOP, the issue raised is whether the complaint statès a cause ofaction (Pollack v. Marathon, 34 IlL. App. 3d 861,341 N.E. 2d 101 (1976-1st Dist); Erickson v. Jenkins, 41 IlL. App. 2d 180, 190 N.E. 2d 383 (1963-

1st Dist)). Where a plaintiff moves for JOP, the issue posed is whetherthe facts alleged in the answer constitute a legally sufficient defense.Where the plaintiff fies a reply raising matters in avoidance of theaffirmative defenses pled In the answer, the defendant may test thesufficiency of the reply by moving for JOP (Brownv. Gil, 343 IlL. App.460, 99 N.E. 2d 393 (1951-3d Dist: pub. abst. only)).

Do not confuse a JOP with a judgment by default. A JOP is ajudgment on the issues raised by the pleadings. Where a defendant hasnot answered, no legal issue has been posed which can be disposed ofby JOP. Failure to answer should result in a default not in a JOP(Columbus v. Century, 45 IlL. App. 3d 550, 359 N.E. 2d 1151 (1977-2ndDist ).

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b.Standards for Deciding the Motion.

The Court must determine if the pleadings present a materialissue of fact (Bai1on v. Kresge, 4 m. App. 3d 82, 277 N.E. 2d 719 (1972-4th DistJ). If the pleadings present a material issue, the motion must bedenied, since a motion for JOP does not test whether there is anyevidence to support the factual allegations in the pleading (Pfeil v.Weei'de, 152 IlL. App. 3d 759,504 N.E.2d 988 (1987-2nd Distl). Factualallegations in a pleading are tested by a motion for summary judgmentor by triaL.

A motion for JOP concedes the truth of the well-pled facts in therespondent's pleadings (Cunnnaham v. MacNeaL 47 IlL. 2d 443,266N.E.2d 897 (1970)); concedes all fair inferences to be drawn therefrom

(Rhodes v. Rhodes, 82 m. App. 2d 435, 225 N.E.2d 802 (1967-2nd Distl);and concedes for the purpose of the motion that the movant's ownallegations are false insofar as they have been contradicted by therespondent's pleadings. Where the well-pled allegations are susceptibleof more than one reasonable interpretation, the entry of JqP isimproper (Egan v. SteeL 137 IlL. App. 3d 539, 485 N.E.2d 22 (I985-1stDistl). Because of these rules, cross motions for JOP must beconsidered separately, since if any allegations in any pleading aredenied, then one set of facts wil be taken as true for one motion andanother set of facts wil be taken as true for the other. It also follows,that one party cannot be granted a JOP on another party's motion. Ifthe court concludes that the party opposing a motion for JOP is himselfentitled to a JOP, the court should invite the filing of a motion seekingthat relief.

3. Motions to Make D.efinite and Certain.

Section 2-615 provides that a party may move to have a pleading'i made more definite and certain in a specified particular." The

function of this motion may also be fulfilled by demanding a bil ofparticulars under Section 2-607 (735 ILCS 5/2-607) or through

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discovery. Section 2-607 requires the party requesting the bil ofparticulars to !I specifically point out the defects complained of or thedetails desired" and to file a copy of the request The responding partymay furnish the bil or move to have the request denied or modified.If a party fails to respond to a request for a bil of particularsi therequesting party may move to strike his or her pleadings. It should benoted that Section 2-612 (735 ILCS 5/2-612) authorizes the court on itsown motion to order new pleadings prepared when the existingpleadings fail to define the issues sufficiently, such as when acomplaint is clearly fatally deficient, when it commingles legal theoriesin the same counts, etc.

4. Motions Relating to Joinder of Parties.

Motions to add necessary parties or to dismiss improperly joinedparties are inade pursuant to section 2-615. But, joinder problems arenot grounds for dismissing an entire action or striking an entirecomplaint. The proper remedy is to order the dismissal of an improper~ or to order the joinder of a missing party (See 735 ILCS 5/2-407;

Midwest v. Vilage, 113 Il. App. 3d 962, 447 N.E. 2d 1358 (1983-2nd

DistJ).

B. The Motion to Strike Pleadings as Substantially Insufficient inLaw.

Motions challenging the legal sufficiency of a pleading are animportant aspect of Section 2-615. The most common of these is themotion to strike a complaint for failure to state a cause of action.However, one wishing to challenge the legal sufficiency of any otherpleading should also proceed by way of a section 2-615 motion. (e.g.,answers to complaints, replies, affirmative defenses, affidavitssubmitted in support of or in opposition to amotion.) The rules'applicable to these types of motions as set forth hereinafer applyequally to motions for JOP.

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1. What May Be Considered.

Only the legal sufficiency of the challenged pleading and theallegations of fact contained therein may be considered on a motion tostrike (Popp v. Dyslin, 149 Il. App. 3d 956, 500 N.E. 2d 1039 (1986-2ndDistl). A properly filed bill of particulars is a part of the complaintwhich it particularizes, as are exhibits attached to and incorporated intoa pleading. Hence, these items may be considered on a motion to strike

(City v. Hertz, 38 IlL. App. 3d 835,349 N.E.2d 902 (1976-1st Dist), aft'd,71 Il. 2d 333, 375 N.E.2d 1285 (1978)). As indicated, all exhibits attachedto and incorporated into a pleading are part of the pleading and thefacts stated in the exhibits are considered the same as if they had beenalleged in the pleading itself. Factual matters contained within anexhibit which conflict with factual matter contained within thepleading to which the exhibit is attached negate the allegations withinthe pleading. In other words, factual allegations within an exhibitcontrol over conh'ary factual allegations withi the pleading. Althougha motion to strike admits aU facts well-pleaded as well as all reasonableinferences therefrom which are favorable to the pleader, such a motiondoes not admit allegations within the body of a pleading which are inconflict with the facts contained within an exhibit to that pleading(Outboard v. Chisholm, 133 IlL. App. 3d 238, 478 N.E.2d 651 (1985-2ndDist)).

The grounds alleged in a motion to strike or dismiss must bedirected to facts alleged in the pleading under attack (Ilinois GraphicsCo. v. Nickum, 159 IlL. 2d 469,639 N.E.2d 1282 (1994); Smith v. Board,52 Il. App. 3d 647, 367N.E.2d 296 (1977-5thDistD. Amovantmaynotallege any facts de hors the face of the challenged pleading. Movantsmay not supporttheir motions with affdavits (Mutual v. Halpin, 414IlL. 226, 111 N.E.2d 155 (1953)); discovery material, not even thepleader's deposition testimony (Louis v. Barenfanger, 81 IlL. App. 2d104,226 N.E.2d 85 (1967-5th Dist), aff'd, 39 Il. 2d 445, 236 N.E.2d 724

(1968)); or any other form of evidentiary material or new matter. Also,the pleader canot oppose the motion by reference to any factual

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matter that is not set forth in the challenged pleading (Inland v.

Christoph, 107 IlL. App. 3d. 183, 437 N.E. 2d 658 (1981-1st DistJ). Theonly means by which the pleader may interject facts which are notcontained in the challenged pleadings is by means of an amendmentpursuant to section 2-616 (735 ILCS 5/2-616).

An amended pleading which is complete in itself and does notrefer to or adopt a prior pleading completely supersedes the prior

pleading and the prior pleading is deemed abandoned and withdrawn

(Foxcroft v. Hoffman, 96 IlL 2d 150, 449 N.E. 2d 125 (1983)). The

original pleading cannot be relied upon by either party in support of orin opposition to a motion to strike the amended pleading (Iverson v.Dunham, 18 IlL. App. 2d 404, 152 N.E.2d 615 (1958-1st DistD. Ithowever, the oi-ginal pleading was verified, its allegations of fact arebinding judicial admissions on the part of the pleader and unless it isestablished that they were the product of mistake or inadvertence theymay be relied upon to support a motion to strike or dismiss theamended or subsequent pleading (Baker v. Cohen, 100 IlL. App. 3d 924,427 N.E.2d 317 (1981-1st Distl); Beverly v. Coleman, 134 IlL. App. 3d699,481 N.E.2d 54 (1985-1st Dist); Robins v. Lasky, 123 IlL. App. 3d 194,

462 N.E.2d 774 (1984-1st Distl).

The provision in section 2-615(c) which provides thatii substantial defects in prior pleadings may be considered" is not

inconsistent with the foregoing. "Prior pleadings" refers to pleadingswhich are stil on file and prior in sequence of issue formation: Decaturv. West, 38 Il. ~App. 3d 356, 347 N.E.2d 804 (1976-4th Dist). The

complaint is prior to the answer, and both are prior to the reply. Thus,when a defendant moves to strike a reply, he also puts in issue thesufficiency of his own answer and of the complaint. Reconstruction v.Pines, 295 IlL. App. 262, 14 N.E.2d 886 (1938-lst Dist). This provisioncodifies and simplifies the common law practice of "carry backdemurrers". See: Joint Committee Comments, and Jenner & Tone.Historical and Practice Notes, Ch. 110, Sec. 2-615, Smith-Hurd

Annotated Statutes.

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On occasion, trial judges are aware of evidentiary material whichmakes it clear that the pleading under attack by means of a motion tostrike cannot be factually supported and the movant is entitled tojudgment as a matter of law. In such a case, the proper motion is amotion for summary judgment or a motion for involuritary dismissaL.Trial judges must resist the expediency of merely granting the motionto strike and dismissing the action. The reporters are full of caseswhere a motion to strike was granted and the action dismissed only tohave the judgment reversed on appeal because the court relied uponmaterial that was not contained in the challenged pleading, even

though it seems certain that on remand that same evidentiary materialwould support a successful motion for summary judgment. See Cainv. American, 26 m. App. 3d 574,325 N.E.2d 799 (1975-1st Dist); Iversonv. Dunham, supra. The distinction is not a mere technicality; labelingthe motion as a 1/ motion to strike" may induce the respondent to forgothe submission of affidavits or other evidentiary material which hewould have submitted if the motion had been properly labeled as onefor ii summary judgment" or for ii involuntary dismissaL"

2. Standards to be Applied.

a. To the Motion.

The rules that an motions objecting to pleadings" shall point out

specifically the defect complained of" (sec. 2-615(al) and that motionswhich charge that a pleading is substantially insufficient in law /1 mustspecify wherein the pleading....is insufficient" (sec. 2-615(b)) are,grounded in principles of sound judicial administratÍon which obviatethe need for the court to search for alleged pleading defects. Segall v.Berkson, 139 IlL. App. 3d 325,487 N.E.2d 752 (1985-4th Dist). Anotherpurpose served by these specificity requirements is to inform therespondent of the movant's contentions so that the defect can be curedby amendment Qr so that the respondent can intellgently argue to themotion. Hitchcock v. Reynolds, 278 Il. App. 559 (1935-3d Dist).

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b. To the Pleading Attacked.

A motion to strike Or dismiss concedes that all well-pled facts inthe pleading under attack are true (Miner v. Gilette, 87 Il. 2d 7, 428N.E.2d 478 (1981)), but only for the purposes of the motion. Such aconcession is no longer binding after the motion is denied. O'Fallon vRing, 37 IlL. 2d 84, 224 N.E.2d 782 (1968). Only the well-pleaded factsare taken as true; conclusions of law or conclusions of fact unsupportedby allegations of specific facts upon which such conclusions rest are nottaken as true and are not to be considered in ruling on the motion.

Curtis v. Birch, 114 Il. App. 3d 127,448 N.E.2d 591 (1983-1st Dist). Theancient difficulty in distinguishing ii conclusions" from "facts" and/I fads", from /I evidence" has never been solved, and it is difficult to

make any helpful generalizations. One useful approach is to ask whatfurther detail the pleader could allege without the benefit of discovery.Conversely, the same allegation might in one context be deemed to beone of ultimate fact, while in another, where from a pragmaticviewpoint some of the words do not give sufficient information to anopponent of the character of the evidence to be introduced or of theissues to be tried, they are conclusions. The distinction between" fact"and i' conclusion" can only be determined from a careful considerationof the practical tasks of administering a particular piece of litigation.Van Dekerkhov v. City, 51111. 2d 374, 282 N.E.2d 723 (1972).

Once the court has identified all of the well-pled facts, it mustthen draw all reasonable inferences therefrom which are favorable tothe pleader. (Your v. Mid-town, 150 Il. App. 3d 421, 501 N.E. 2d 805

(1986-1st Dist.). The court must consider all possible conclusions

supported by the well-pled facts regardless of whether the pleader setsforth the conclusion and even if the pleader has set forth the wrongconclusion. A motion to dismiss should not be granted so long as agood cause of action has been stated even if that cause of action is notthe one that the plaintiff intended to assert. Illinois Graphics Co. v.Nickum, 159 nl. 2d 469, 639 N.E. 2d 1282 (1994). Hence, where thewell-pled facts in a complaint support a negligence theory of liabilty,

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a motion must be denied even though the plaintiff did not argue thatthe defendant was negligent, but incorrectly argued that the defendantwas strictly liable for the harm caused. Browning v. Heritage, 33 Il.App. 3d 943, 338 N.E.2d 912 (1975-2nd Dist). The same rule applies toconclusions with factual components. Jarvis v. Herrin Park District, 6IlL. App. 3d 516, 285 N.E.2d 564 (1972-5th Dist).

Pleadings must be liberally construed with a view toward doingsubstantial justice between the parties pursuant to the mandatecontained in Section 2-603(c) of the Code and this rule is applicable tomotions to strike. Bowie v. Evanston, 168 Il. App. 3d 101, 522 N.E.2d669 (1988-1st Dist). This rule, however, has never been interpreted soas to authorize" notice" pleading. Knox v. Celotex, 88 nl. 2d 407, 430N.E.2d 976 (1981).

No pleading is bad in substance if it sets forth sufficientinformation to reasonably inform the opposite party of the nature ofthe claim or defense which he is called upon to meet. 735 ILCS 5/2-612(b). It has been held that if the trial court is adequately informed ofthe issues by the pleadings, the parties are likewise so informed. Kitav. YMCA, 47 Il. App. 2d 409,198 N.E.2d 174 (1964-1st Dist).

A complaint should not be stricken and the action dismissedunless the court is prepared to conclude that there is no possible set offacts in support of the allegations in the complaint that would entitlethe plaintiff to relief. Ilinois Graphics Co. v. Nickum, supra. Thereneed only be the possibility of recovery (Johnon v. North American,100 IlL. App. 2d 212, 241 N. E. 2d 332 (1968-5th Dist). The court may not

weigh the probabilties of a recovery on a motion to strike or dismiss.Neurater v. Reiner, 117 IlL. App. 2d 141,254 N.E. 2d 66 (1969-1st Dist).

3. When It May Be Raised.

Supreme Court Rule 182(c) provides that motions objecting topleadings other than the complaint must be made within 21 days of the

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last day for filing of the pleading. Section 2-612 (c) says that withoutexception, all defects in pleadings must be raised in the trial court. 735ILCS 5/2-612(c).

With regard to the filing of a 2-615 motion attacking a complaint,Supreme Court Rule 181 is not at all specific. The rule does providethat when service of a complaint is by summons, an answer orappropriate motion must be filed within 30 days. The rule does notspecifically state that all motions attacking the complaint must be filedwithin the 30-day period. It is not at all clear as to at what point in aproceeding a defendant wil be deemed to have waived his right tobring a motion attacking the sufficiency ofa complaint. Section 2-615places no specific time limit upon the filing of the motion. However,given the fact that the best measure of a complaint's sufficiency iswhether the defendant is able to answer it (People v. Carriage, 88 III. 2d300,430 N.E.2d 1005 (19811), it seems to follow that by answering acomplaint a defendant impliedly acknowledges its sufficiency andwaives any objections to the complaint other than its total failure tostate a recognized cause of action. Several courts of review have heldthat where a complaint substantially, but imperfectly, states a cause ofaction, the defendant waives any defect by answering it andproceeding to triaL Pathman v. HiWay, 65 IlL. App. 3d 480,382 N.E. 2d453 (1978-1st Dist); Thilman v. Esposito, 87 IlL. App. 3d 289, 408 N.E. 2d1014 (1980-1st Dist).

While is appears that defects in a complaint containing anincomplete or otherwise insufficient statement of a good cause of actionmay be waived, a failure to state a recognized cause of action is such afundamental defect that it cannot be waived and it may be raised at anytime, by any means, even on the court's own motion. Wagner v.Keoler, 411 IlL. 368, 104 N.E.2d 231 (1952); People v. Futia, 56 IlL. App.3d 920, 373 N.E.2d 530 (1978-4th Dist); Rhodes v. Mil, 126 nl. App. 3d1024,467 N.E.2d 915 (1984-2nd Dist).

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C. Leave to Amend.

A ruling on a motion to strike a pleading which does not declarethe rights or title of the parties is not a final and appealable

adjudication. Chautauqua v. Ilinois, 13 IlL 2d 258, 148 N.E.2d 777

(1958). Under the provisions of section 2-616 (a) '1 amendments may beallowed on just and reasonable terms" so as to give the plaintiff areasonable opportunity to state a cause of action. 735 ILCS 5/2-616(a).

An amendment fied without first obtaining leave of court is anullty. Unauthorized amendments are disregarded on review.

McGinns v. Abrams, 141 IlL. App. 3d 417, 490 N.E.2d 115 (1986-4thDist); Allen v. Archer, 129 IlL. App. 3d 783, 473 N.E.2d 137 (1985-4thDist). Before fiing an amended. pleading, the pleader must bring amotion requesting leave to amend. While the granting of leave toamend is discretionaryi any doubts regarding the right to amendshould be resolved in favor of allowing the amendment. Schenker v.Chicago, 128 IlL App. 3d 488, 470 N.E. 2d 1264 (1984-1st Dist). Leaveto amend should br granted unless it is apparent that no cause of actioncan be stated even after other amendments. Fannng v. Lemay, 78 IlL.App. 2d 166, 222 N.E. 2d 815 (1966-5th Dist), rev'd and remanded onother grounds, 38 IlL. 2d 209~ 230 N. E. 2d 182 (1968). Leave to amendmay be sought at any time before final judgment (735 ILCS 5/ 2-616( a D.There is no final judgment when a complaint is stricken until an orderis entered explicitly dismissing the cause of action. In seeking leave toamend, the pleader should either present the court with a copy of theproposed amended pleading, or give thecourt a specific indication ofits proposed contents. Denial of leave to amend is not error by thecourt if the court is not sufficiently apprised of the proposed

amendment, or if the proposed amendment does not cure the defectsin the stricken pleading. Teter v. Clemons, 112 Il. 2d 252, 492 N.E. 2d

1340 (1986); Matchett v. Chicago, 125 IlL App. 3d 1004, 467 N. E. 2d 271

(1984-1st Dist).

If in striking a complaint the court is of a belief that the pleader

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may be able to cure the defects in the pleading by amendment, ahelpful practice is to impose a time limit for the filing of an amendedpleading in the order striking the complaint. Campbell v. Harrison, 16ILL. App. 3d 570, 306 N.E.2d 643 (1973-lst Dist). When the time set forthe fiing of the amended pleading has passed and the plaintiff hasfailed to fie the amended complaint or has taken other action

demonstrating that no amended pleading is forthcoming, the plaintiffwil be deemed to hàve elected to stand on the stricken pleading.People ex feZ Fahner v. Carriage Way West, 88 IlL. 2d 300, 430 N.E.2d1005 (1981).

If a complaint is stricken and leave is granted for the filing of anamended pleading and none is so filed, the issue arises as to theappropriate order disposing of the case. There is some authority for theproposition that if a plaintiff fails to amend within the time provided,the court may enter an order dismissing the cause (with prejudice). SeeCoatie v. Kidd, 17 IlL App. 2d 289, 149 N.E.2d 646 (1958-4th Dist: pub.

abst. only). But, the weight of authority suggests that, absent someaffirmative indication on the part of the plaintiff of an election to standon the stricken pleadingl the appropriate order in such a circumstanceis a dismissal for want of prosecution. O'Reily v. Gerber, 95 Il. App.3d 947, 42Ò N.E. 2d 425 (1981-lst Dist); Kraus v. Metropolitan, 146 IlL.App. 3d 210, 496 N.E. 2d 1080 (1986-1st Dist).

D. Problems of-Waiver and AppeaL.

If a motion to strike is denied, the movant may plead and stilpreserve his claim of error in the denial of the motion. Gray v. City,141 IlL App. 3d 575, 490 N.E.2d 1020 (1986-2nd Dist); but see: Wornerv. Doyle, 121 IlL. App. 3d 219, 459 N.E.2d 633 (1984-4th Dist). Somepleading defects may be lost to the harmless error rule, but the movantmay contest the facts by answer or reply without losing his right tochallenged the pleader's legal theory. The trial judge has discretion inpermitting more than one motion to strike by the same side in the samecase. Inland v. Lyons, 153 IlL. App. 3d 848, 506 N.E.2d 652 (1987-2nd

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CBA20

Dist).

On the other hand, when a pleading is stricken and the pleaderamends, he waives the right to challenge the order striking the originalpleading. Knghtbridge v. Pace, 101 IlL. App. 3d 49, 427 N.E.2d 815

(1981-1st Dist). If the pleader wishes to challenge the order striking thepleading, he must elect to stand on the stricken pleading and sufferjudgment to be entered against him. The appeal must II stand or fall onthe contents" of the stricken pleading. Krachock v. Dept. of Revenue,403 nl. 148, 85 N.E.2d 682 (1950).

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CBA21

III. SECTION 2-619 MOTIONS FOR INVOLUNTARYDISMISSAL.

Sec. 2-619. Involuntary dismissal based upon certain defects ordefenses.

(a) Defendant may, within the time for pleading, fie a motion fordismissal of the action or for other appropriate relief upon any of thefollowing grounds. If the grounds do not appear on the face of thepleading attacked the motion shall be supported by affidavit:

(1) That the court does not have jurisdiction of the subject

ll1atter of the action, provided the defect cannot be removed by atransfer of the cause to a court having jurisdiction.

(2) That the plaintiff does not have legal capacity to sue or

that the defendant does not have legal capacity to be sued.

(3) That there is another action pending between the same

parties for the same cause.

(4) That the cause of action is barred by a prior judgment.

(5) That the action was not commenced within the time

limited by law.

(6) That the claim set forth in the plaintiffs pleading has been

released, satisfied of record! or discharged in bankuptcy.

(7) That the claim asserted is unenforceable under the

provisions of the Statute of Frauds.

(8) That the claim asserted against the defendant isunenforceable because of his or her minority or other disability.

(9) That the claim asserted against the defendant is barred by

other affirmative matter avoiding the legal effect of or defeating theclaim.

(b) A similar motion may be made by any party against whom a

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CBA22

claim is asserted.

(c) If, upon the hearing of the motion, the opposite party presentsaffidavits or other proof denying the facts alleged or establishing factsobviating the grounds of defect, the court may hear and determine thesame and may grant or deny the motion. If a material and genuinedisputed question of facts is raised the court may decide the motionupon the affidavits and evidence offered by the parties, or may denythe motion without prejudice to the right to raise the subject matter ofthe motion by answer and shall so deny it if the action is one in whicha party is entitled to a trial by jury and a jury demand has been filed bythe opposite party in apt time.

(d) The raising of any of the foregoing matters by motion under thisSection does not prejudice the raising of them subsequently by answerunless the court has disposed of the motion on its merits; and thefailure to raise any of them by motion does not preclude raising themby answer.

(e) Pleading over after denial by the court of a motion under thisSection is not a waiver of any error in the decision denying the motion.

(f) The form and contents of and procedure relating to affidavitsunder this Section shall be as provided by rule.

A. In GeneraL

Section 2-619 of the Code of Civil Procedure (735 ILCS 5/2-619)affords a defendant a means of obtainng a sum.ary disposition of anaction. The basis for the motion must be one of the nine groundsenumerated in the section and must go to an entire claim or demand.Illinois Graphics Co. v. Nickum, 159 IlL. 2d 469,639 N.E.2d 1282 (1994).Section 2-619 contemplates two types of motions. If the grounds for the

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CBA23

motion appear on the face of the complaint under attack, then it is apleading motion. IC on the other hand, the grounds for the motion restupon facts supplied by the movant pursuant to section 2-619(a), thenthe motion is a fact motion. The section does not authorize hybridmotions. That is to say, that each specific 2-619 motion must either bea pleading motion or a fact motion, but not a hybrid of both. (PremierElectrical Construction Co. v. LaSalle National Bank, 115 IlL App. 3d638,450 N.E. 2d 1360 (1984-1st Dist).

1. Overlap with 2-615 Motions.

Pursuant to section 2-619, if a defect appears on the face of thecomplaint a defendant may move to dismiss without supportingaffidavits. Cuerton v. American Hospital Supply Co., 136 Il. App. 3d231,482 N.E. 2d 187 (1985-2nd Dist); In Re Estate of Bajonski, 129 Il.App. 3d 361, 472N.E. 2d809 (1984-1st Dist). A similar motion could beobviously made pursuant to section 2-615 and the standards to beapplied are identicaL. See Ilinois Graphics Co. v. Nickum, supra.

2. Overlap with section 2-1005 motions.

a. Similarities.

If a section 2-619 defect does not appear on the face of thecomplaint, the motion must be supported by affidavit and, as such, ismuch like a summary judgment proceedig. Supreme Court Rule

191(a) (134 IlL. 2d R. 191 (a)) governs affidavits under both procedures.

b. Differences.

Because a 2-619 motion is a motion to involuntarily dismiss the'entire action, it concedes the truth of the factual allegations in thecomplait. Island Lake Water Co. v. LaSalle Development Corp., 143

ilL. App. 3d 310, 493 N.E. 2d 44 (1986-3rd Dist); Laughman Cabinet Co.

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CBA24

v. C. Iber & Sons, Inc., 46 Il. App. 3d 873, 361 N.E. 2d 379 (1977-3rdDist). A movant pursuant to section 2-619 cannot submit evidentiarymaterial in support of the motion which contradicts well-pleaded

allegations in the complaint. Longust v. Peabody CoaL Co., 151 m.App. 3d. 754, 501 N.E. 2d 1096 (1986-5th Dist). Subject to thatexception, a 2-619 motion which relies upon evidentiary material hasbeen treated just like a motion for summary judgment. The respondentmust meet affidavits with counter-affidavits. Chicoine v. fohn MarshallBuilding Corp., 77 IlL App. 2d 437, 222 N.E. 2d 712 (1966-2nd Dist);

Leitch v. Hine, 393 Il. 211, 66 N.E. 2d 90 (1946). Ordinarily, it is of nosigniicance that the complaint is taken as true, since all issues that canbe raised by a 2-619 motion are in the nature of affirmative defenseswhich avoid the effect of the plaintiff's allegations ( Cain v. American,26 ILL. App. 3d 547, 325 N.E. 2d 799 (1975-1st Dist), and can be raised in

the defendant's answer or by a motion for summary judgment.

Confusion arises when the complait alleges facts which negatethe factual basis for the 2-619 motion. In such a case, the factualallegations of the complaint must be taken as true and the motion mustfaiL. A motion for summary judgment should be employed in suchcircumstances. MLB v. Diekman, 137 IlL. App. 3d 238, 484 N.E. 2d 371

(1985-1st Dist); Pumala v. Sipos, 131 ILL. App. 3d 238, 476 N.E. 2d 462(1985-2d Dist); but see Barber-Coleman Co. v. A & K MidwestInsulation Co., 236 IlL. App. 3d 1065- 603 N.E. 2d 1215 (1992-5thDist).

Another distinction exists between 2-619 and 2-1005 in thosecases where no jury demand has been fied. In non-jury cases, thejudge may resolve a 2-619 motion even though there is a disputedquestion of fact (see 735 ILCS 5/2-619(cJ). The judge is able to decidethe motion upon the affidavits and the evidence. Section 2-1005

contains no similar provision for resolving disputed issues of fact innon-jury cases. In a summary judgment proceeding, if the court findsthe existence of a disputed issue of fact, the issue must be resolved bya trial, even where no jury has been demanded.

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CBA25

B. When the Motion May Be Raised

A section 2-619 motion must be made within the time forpleading (e.g., filing of an answer) under 2-619 (a). The court may, inits discretion, grant leave at a alter time for the fiing of such a motion,provided that no prejudice is worked upon the responding plaintiff

(Ingersoll v. Klein, 46 il. 2d. 42, 262 N.E. 2d 593 (1971), and providedthat leave is also granted to withdraw any answer which has alreadybeen filed.

C. Grounds For The Motion.

Section 2-619(a) lists eight specific and one general affirmativedefenses which may be raised by motion. 'I'hey are as follows:

1. Lack of subject matter jurisdiction.

2-619(a) (1): "That the court does not have jurisdiction of thesubject-matter of the action, provided the defect cannot be removed bya transfer of the case to a court having jurisdiction."

A motion pursuant to this section challenges the subject matterjurisdiction of the court and should not be confused with motionswhich challenge the court's jurisdiction over the person of a defendante.g., in personam jurisdiction). The latter motion is governed by section2-301 of the Code of Civil Procedure (735 ILCS 5/2-301).

A motion to dismiss by reason of the court's lack of subjectmatter jurisdiction may be made at any stage of a proceeding. Ilinoisv. ice, 99 Il. App. 3d 462, 425 N.E.2d 535 (1981-4th Dist).

2. Lack of capacity to sue.

2-619(a) (2): "Thatthe plainti does not have legal capacity to sue

or be sued."

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CBA26

Examples of circumstances which could be arise under thissection are: Actions brought against non-entities, such as departmentsof divisions of a municipal corporation; actions brought on behalf ofanother by one who is not licensed to practice law (Fruin v.Northwestern, 194 IlL App. 3d 1061, 551 N.E. 2d 1010 (1990-1st Dist);Leonard v. ,Walsh, 73 Il. App. 2d 45, 220 N.E. 2d 57 (1966-4th Dist);actions against a dead person (McCue v. Colatoni, 80 IlL App 3d 731,400 N.E. 2d 683 (1980-1st DistJ); actions brought by an inant; andactions brought by or against an incompetent (see Patterson v. Durable,3 IlL App. 3d 444,278 N.E. 2d 410 (1972-2nd DistJ).

3. Prior pending actions.

2-619(a) (3): "That there is another action between the sameparties for the same cause."

"This section refers to 'the same causel' not the same 'cause ofaction,' and it has been held that actions are for the' same cause' whenrelief is requested on substantially the same state of facts." Slotnick v.Martin, 32 Il. 2d 55,203 N.E.2d 428 (1964).

While section 2-619(a)(3) is designed to avoid duplicativelitigation, even when the, same cause of action and same partyrequirements are met, the section does not mandate automatic

dismissaL. Zurich Insurance Co. v. Baxter InternationaL, Inc., 173 IlL. 2d.235,670 N.E. 2d 664 (1996). The decision to grant or deny a motion todismiss, or to stay the action, is committed to the sound discretion ofthe trial court. The factors to be considered by a court in decidingwhether to grant relief under this section include: comity; theprevention of multiplicity, vexation and harassment; the likelihood ofobtainng complete relief in the other forum; and the res judicata effectof a judgment from the other forum. Kellerman v. MCL 112 Il. 2d 428,493 N.E. 2d 1045 (1986).

4. Res ludicata and Collateral Estoppel.

2-619(a)(4): "That the cause of action is barred by a pnorjudgment."

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CBA27

This subsection allows a defendant to raise the doctrines of resjudicata and collateral estoppel, but these doctrines apply only wherethere is a final judgment in a prior action. River Park, Inc. v. City ofHighland Park, 184 Il. 2d 290,703 N.E. 2d 883 (1998).

5. Statute of limitations or repose.

2-619(a)(5): "That the action was not commenced within the timelimited by law."

The passage of a general statute of limitations or repose is anaffirmative defense which cannot be raised by a section 2-619 motionunless it appears from the face of the complaint that the action is timebarreCl. Marvel v. Matson, 150 Il. App. 3d 787,501 N.E. 2d 948 (1986-2nd Dist). Movants pursuant to section 2-619(a)(5) cannot submitevidentiary material to contradict well-pled factual allegations in acomplaint as to the date of the occurrence (Pumala v. Sipos, 131 Il.App. 3d 845, 476 N.E.2d 462 (1985-2nd DistD or the date of discovery

(MBL v. Diekman, 137m. App. 3d 238, 484N.E.2d 371 (1985-1stDistJ).If a movant wishes to contest the date of occurrence alleged in thecomplaint, the proper motion is one for summary judgment. SeePumala, supra; but see Barber-Coleman Co. v. A & K MidwestInsulation Co., 236 Il. App. 3d 1065, 603 N.E.2d 1215 (1992-5th Dist).

$

When a movant properly raises the passage of a statute oflimitations with a 2-619(aJ(5) motion, it becomes incumbent uponHieplaintiff to come forward with facts sufficient to avoid the statutorylimitation. Cundiff v. Unsicker, 118 IlL. App. 3d 268, 454 N.E. 2d 1089

(1983-3rd Dist). Additionally, arguing such evidence or facts solelywithin a response to the motion to dismiss wil not be sufficient todefeat the motion. If such facts exist, they should be plead asallegations in the complaint itself, and the plaintiff should immediatelyrequest leave to amend to include such facts in an amended complaint,preferably prior to engaging in a full briefing schedule.

6. Release, Satisfaction or Discharge.

2-619(a)(6): IIThat the daIin set forth in the plaintiff's pleading

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CBA28

has been released, satisfied of record, or discharged in banlzruptcy."

When the defendant's motion is based upon a release orcovenant, valid on its face, the burden shifts to the plaintiff to comeforward with evidentiary material to create an issue of fact as to itsvalidity. Meyerv. Murray, 70 Il. App. 3d 106, 387N.E.2d 878 (1979-1stDist).

The filing of a bankruptcy proceeding by operation of law staysall actions pending against the bankrupt defendant. But, a motion todismiss an action by reason of the defendant's bankruptcy should notbe entertained unless and until the plaintiff's claim has been dischargedby order of the bankruptcy court, and authenticated proof of such

discharge must be presented with the motion.

7. Statute of Frauds.

2-619(a)(7): I'That the claim asserted is unenforceable under theprovisionsòf the Statute of Frauds." Prodromos v. Howard SavingsBank, 295 ILL. App. 3d 470,692 N.E. 2d707 (1998-1st Dist).

8. Defendant's Minority or Disabilty.

2-619(a)(8): IIThat the claim asserted against the defendant isunenforceable because of his or her minority or other disabilty."

9. Other Affirmative Matter.

2-619(a)(9): IIThat the claim asserted against the defendant isbarred by other affirmative matter avoiding the legal effect of ordefeating the claim."

a. Meaning.

The "other affirmative matter avoiding the legal effect ordefeating the claim" must be something other than evidence which isoffered to refute a material fact alleged in the complaint (Haya v.Arby's, 99 Il. App. 3d 700, 425 N.E. 2d 1174 (1981-1st Distl). All the

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CBA29

well-pled facts contained in the plaintiff's complaint must be taken astrue for purposes of this motion. (But see Barber-Coleman Co. v. A &K Midwest Insulation Co., 236 IlL. App. 3d 1065, 603 N.E.2d 1215 (1992-5th Dist), as to non-elemental facts). To defeat the plaintiff's claim, thedefendant's assertion of affirmative matter must negate the cause of action

completely or refute conclusions of law or conclusions offact contained in thecomplaint which are unsupported by allegations of specifc fact upon which theconclusions rest. Giannni v. First, 136 IlL App. 3d 971, 483 N.E.2d 924

(1985-1st Dist).

b. Examples.

Some examples of "other affirmative matter" which may beraised by a 2--619 motion are:

1) Failure to comply with the notice provisions of Local

Governmental and Governmental Employees Tort Immunity Act

(745 ILCS 10/1-101 et seq.) or the Metropolitan TransitAuthority Act (70 ILCS 3605/1 et seq.);

2) Immunities from liabilty, such as parent-child;

3) The provisions of sections 5( a) of the Worker's CompensationAct (820 ILCS 305/5(aJ) or the Worker's Occupational DiseasesAct(820 ILCS 310j5(al);

4) With regard to defamation suits, issues of privilege, innocentconstruction, and fair comment and criticism (Kilbane v.Sabonjian, 38 IlL. App. 3d 172, 347 N.E.2d 757 (1976-2nd Dist));

5) Lack of standing to sue (lure McCarthy, 157 III. App. 3d 377,510 N.E.2d 555 (1987-2nd l?istJ);

6) The existence of a written disclaimer in compliance with theprovisions of the UCC (Bell v. Lockheed, 130 IlL. App. 3d 940,474N.E.2d 1312 (1985-1st DistJ);

7) Discharge of one's contractual obligations because of death

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CBA30

(In re BaionskL 129 Il. App. 3d 361, 472 N.E.2d 809 (1984-1stDist));

8) Failure to exhaust adminitrative remedies (Schlenz v.

Castle, 132 IlL. App. 3d 993, 477 N.E.2d 697 (1985-2ndDist)); and

9) Indemnity provisions of written instruments, such as leasesor contracts;

10) Failure to comply with certificate requirements under 735ILCS 5/2-622 in a medical negligence action (McCastle v.Sheinkop, 121 IlL. 2d 188, 520 N.E.2d 293 (1988)).

This list is neither complete nor exhaustive, but it is indicative ofthe type.of ¡I affirmative matter" that maybe raised by a 2-619(a)(9)

motion.

D. What May Be Considered

Section2-619(a) calls for the presentation of the grounds for themotion by affidavit, when the defect does not appear on the face of thecomplaint under attack. The plaintiff may oppose the motion withcounter-affidavits and should, if necessary to defeat the motion.Discovery depositions are' also a proper mean to bring forthevidentiary material in support of and in opposition to a 2-619 motion.

(See Supreme Court Rule 212(aJ(4)). Affidavits and other evidentiarymaterial submitted by either party must comply with Supreme CourtRule 191(a). Thus, the court wil consider the complaint under attack,taking as true all well-pled allegations contained therein, and theevidentiary material submitted both in support of and in opposition tothe motion. (Robidoux v. Oliphant, 201 nl. 2d 324 (2002)).

E. Standards To Be Applied.

A motion for involuntary dismissal concedes the truth of allwell-pled facts contained in.the complaint under attack. Austin v. City,85 Il. App. 3d 89, 405 N.E.2d 1256 (1980'-lst Dist). Only the well-pledfacts in the complaint are taken as true; conclusions of law and

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CBA31

conclusions of fact unsupported by allegations of specific fact uponwhich those conclusions rest are not taken as true and are notconsidered in ruling on the motion. Bell v. Lockheed, 130 Il. App. 3d940,474 N.E.2d 1312 (1985-1st Dist). Just as with a 2-615 motion, oncethe court has identified all of the well-pled facts in the complaint itmust draw all reasonable inferences therefrom which are favorable tothe pleader. Holubek v. City, 146 nl. App. 3d 815, 497 N.E.2d 348

(1986-1st Dist). Factual allegations contained in an exhibit to acomplaint wil control over contrary allegations of fact containedwithin the body of the complaint. Perkaus v. Chicago, 140 Il. App. 3d127,488 N.E.2d 623 (1986-1st Dist).

vVhen a defendant supports a 2-619 motion with affidavits orother evidentiary materiaL, the facts contained therein wil be taken astrue, unless contradicted by counter-affidavits or other evidentiarymaterial submitted by the plaintiff. Davis v. Weiskopf. 108 Il. App_ 3d505,439 N.E. 2d 60 (1982-2d Dist); Milsaps v. Bankers, 35 m. App. 3d735,342 N.E. 2d 329 (1976-3rd Dist).

As indicated earlier, affidavits and other evidentiary materialsubmitted in support of, and in opposition to, a 2-619 motion are

governed by the provisions of Supreme Court Rule 191(a). Materialsnot in compliance with Rule 191 (a) wil not be considered by the courtin ruling on a 2-619 motion, and wil be subject to a motion to strikefrom the opposing counseL. Examples of this are affidavits whichcontain hearsay, or documents which are unauthenticated and whichhave no evidentiary foundation. Robidoux v. Oliphant, supra.

F. Resolving Issues Of Fact

In non-jury cases, the judge may resolve a section 2-619 motion,even where there is a disputed issue of fact. 735 ILCS 5/2-619(c). Thecourt is to decide the motion on the J/ affidavits and evidence." Thisphrase coupled with the rule against resolving credibility issueswithout demeanor evidence mandates that the court conduct anevidentiary hearing. Emerson v. LaSalle, 40 Il. App. 3d 794, 352 N.E.2d45 (1976-2nd Dist). The court in its discretion may deny the motionwithout a hearing, but in such a case, the denial must be without

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CBA32

prejudice to the defendant's right to raise the subject matter of hismotion by answer. Mastroian v. Curtis, 78 Il. App. 3d 97, 397N.E.2d 56 (1979-1st Dist).

In a case where a jury has been demanded, the court may notweigh evidence and resolve issues of fact presented by the motion. Ifa material issue of fact exists, the motion must be denied, withoutprejudice to the defendant's right to raise the subject matter of hismotion by answer and/ or affirmative defense. To do otherwise wouldbe a deprivation of the right to trial by jury. Denton v. Ilinois, 77 Il.App. 3d 495,396 N.E.2d 34 (1979-1st Dist).

The reference to a jury trial in section 2-619( c) does not create anyright to a trial by jury which does not otherwise exist. Berk v. County,34 IlL. 2d 588, 218 N.E. 2d 98 (1966).

G. Leave to Amend.

If the basis for the granting of a 2-619 motion is some technicaldeficiency in the complaint, then the section does not require that theorder of dismissal be ii with prejudice.'� Under such circumstances, theplaintiff should be afforded an opportunity to amend the complaint tocure the deficiency. See McCastle v. Sheinkop, 121 IlL. 2d 188, 520

N.E.2d 293 (1988).

H. Problems Of Waiver And Appeal

Failure on the part of a plaintiff to challenge the sufficiency of anaffidavit (or other evidentiary material) submitted in support of a 2-619motion at the trial level wil be deemed a waiver of the issue forpurposes of appeaL. Mutschler v. Wineman, 95 IlL. App. 3d 728, 420N~E.2d 672 (1981-1st Dist); but see Pumala, supra.

The failure of a defendant to raise a defense by way of a section2-619 motion does not in any way preclude the defendant from raisingthe same issue by answer and/ or affirmative defense, or even bysubsequent motion for summary judgment. 735 ILCS 5/2-619(d);Antiporek v. Vilage, 135 IlL. App. 3d 871, 482 N.E.2d 415 (1985-1st

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CBA33

Dist).

Section 2 -619( c) provides that the motion may be denied withoutprejudice to the reassertion of the defense by way of answer. 1£ thedefense is genuine and an issue of fact is presented, the motion shouldbe denied without prejudice to the defendant's right to reassert it byway of answer unless the denial is based upon an evidentiary hearingconducted pursuant to section 2-619(c). Section 2-619(c) provides thatthe erroneous denial of a 2-619 motion may be raised on appeal even

though the movant pleads over.

iv. MOTIONS UNDER 2-619.1

Combined Motions. Motions with respect to pleadings underSection 2-615, motions for involuntary dismissal or other relief underSection 2-619, and motions for summary judgment under Section 2-1005 may be filed together as a single motion. A combined motion,however, shall be in parts. Each part shall be limited to and shallspecify that it is made under one of Sections 2-615, 2-619 or 2-1005.

Each part shall also clearly show the points or grounds relied uponunder the section upon which it is based.

This section ostensibly authorizes hybrid motion practice.However, this section has been often misconstrued and misused within,motion practice. There are only limited and rare circumstances when this

type of combined motion can be employed, because combining these motionsand addressing them to the same complaint or the same counts in a complainthas an ilogical and inconsistent application of law. For example, a 2-615

motion is based on the legal argument that the complaint fails to statea cause of action, while a 2-619 motion and a summary judgmentmotion both admit that a sufficient cause of action has been set forth bythe plaintiff. The use of a combined motion to dismiss under thesefacts is both contradictory and conflcting.

The better practice is to attack the legal sufficiency first; thea ifthat motion is denied, the 2-619 and summary judgment motions maybe employed. (See attached article by Jack Leyhane: ¡'Hybrid MotionsDo Little More Than Confuse," originally printed in the Chicago Daily

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CBA34

Law Bulletin, on September 16, 1998, and reprinted here with theauthor's permission).

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CBA35

Hybrid motions do little more thaii coIUseThe cen ITd holding of the 1st Disuict

Appellate Cour in Stonn & AssociatesDd. v. Cuculich. No. 1-98-0841 (Aug.28). is that an attorney who is dischargedby a representative par in a dass actonca maintain a fee acton agaist therepresenüiti-;e par Oil a thec;y ofquantum merut. See Much. Shelist.Freed. Denenberg & Ament P. C. v. Lison696 N.E.2d 1196 (ist Dist. 1998).

It is. however. the means by which theStor case arves in the Appelate

Cour that provides the text for tody'ssennon.

The defendants in the Sto case (theclass representatives and thei

remaig attorneys) moved to dismissthe plaitis complait pursuant to

section 2-619.1 of the Ilois Code of

Civi Procedure.

There aren't too many reponed caseinterpretig secton 2-619.1. and Justice

Thomas E. Hoffan's unaniniousopinion in the Stor case points out whyths isso:

"Section 2-619.1 of the code is aprocedur statute which alows a litigatto combine a section 2-615 motion todismiss and a section 2~19 motion forinvolunta dismissa in one pleadig.ï35 ILCS 5/2-619.1. However. thisstatute is not a lelative authoTtifor hybr monon practlce. Sectòn2-619.1 specicay provides that acombinedmotion shal be divided intopars and each pan shal be limited toanå speci a singie section of the codeunder which relef is sought. 735 ILCS5/2-619.1. Meticulous practice di€tatesthat the movants clealy state thesection of the code under which a motionto dismiss is brought. flinolS GraphicsCo. v. Nickum. 159 IìL2d 469.43.639N.E.2d 1282 (1994)." (Emphasissupplied.)

There might be a sltuaoon where asecuon 2-619.1 mouon provides a neatprocedural shoncm: ,.issume anegligence case that - on ltS face -

suggests it was wed on ume on the lastdav ot the stamte. but in realitv was ruedon the thå anruversar.a the accident.(I actualv saw such a case once.)Assume r'unher that the compiaint taisto ínciude a duty allegauon. The section2-619 and semon 2.615 argumentswould both be bite.sizeò morsels. easilvdigested bv the coun, '

Couns otten choke on J secuon~-619.l motion. howeve:-. bec;iuse the

motion attempts to do (00 much.lJn ol the problem IS thJt some

pr;icuuoners JOr~et sc:cuon ~.11 15 and

Civil

Po Ii cy

By Jack Leyhane

leyhane is a partner in the law firm ofBoyle & leyhane and concemrates in'insurance coverage maners. civil litigationand appeals,

section 2-619 motions serve differentpuroses.

The Stor cour cites Burdiiiie 71.Villae of Glenle Heights. 139 il.2d501. 505. 565 N.E.2d 654 (199), and

fane v. First Fedal Saving & LoanAsociation. 57 il.2d 398.406.312N.E.2d 605 (1974). for the propositiontht. "A section 2-615 motion attck the

sufciency of a complait and rases thequestion oI whether it states a caUse ofaction upon which relef ca be grted..

The Stor cour goes on to point outthat. in deciding a secnon 2-615 monon."the cour may only consider the factsapparent Irom the Iae of the complait,matters of which the cour may taejudicial notice. and judicial admssions inthe record. Ml. Zion State Bank & Trustv. Consolidated Communication Inc..169 il.2d 1l0. LLS. 660 N.E.2d 863(1995)."

.~.. llOtlOn brought ~der secticn 2-619is signcarii:y differ em. For one thng, a

cour can consiåer afdavits or othermaterial competent under SupremeCour Rule 191 in deciding such amotion. Also. as the Storm cour pointsout. "A section 2-619 motion raisescenain deIects or defenses and posesthe quesuon of whether t.iie derendant isentitled to judgment as a matter oflaw."

Most imponantly. however. a section2-619 monon. like a summar judgmentmotion, .. adnuts the legal suiciency of acomplaint," Joseph v. Collis. 272m.App.3d 200.649 N.E.2d 964.969 (Ist

Dist. 1995). In this sense. the section2-615 and sectlon 2-619mouons arecontradictOr\': The 2-615 monon admitswell-pieaded allegauons. but denies thatthese allegauons together state anycause or action: the ~.ti 19motlon admitsthat the :iliegations oi the complaint statea cause or actlon which. ií proved. wouldbe successiul but lOr some aínnnativematter which deieats the ciaim.

noe (an nOSH :1 c;iSe where a section:! ,I) Li mo(lon sn(Jui¡j ilL: iaunched aRainst

count 1 and a section 2.619 motion isappropriate for count 2 oí a hYPtheticapleadig; however. a combined attck

under secton 2-619.1 on a single countor pleadig is essentialy sel-defeatig:The section 2-619 monon concedes thtthe chalenged compiait states a goocause oÍ acuon. neganng -c by cie.tion

- any section 2-615 arguent that

might have been made.Combing secton 2~15 and 2-619

motions in a single àocument withoutinvoking section 2-619.1 merelycompounds Ùle felony: It faily sceasto Ùle experienced reader that thadrer of the motion åoes not

tL'1àersraà that the "lega theories for

proceedg on a motion to dismiss underseons 2-615 and 2-619 dier." Crag

v. Ca7Ura. 696 N.E.2d 1282. 1285 (2d

DiSL 1998). Defense counsel must beaware that the irirtial negativeimpression created by such a confusemotion may be impossible to overcome.

unIonunately, not al uial coun areaualy skiled in unravelig animpropedy fred motion to dismiss orin identing when a combined motion is

improperiy brought.v'nen section 2-615 and 2-619

mooonsare improp.iy commgledanå then brought up on review. the

Apoeilate Cour oråinary wi not ñnde.'Tor in the uial court's disposition ofthe combined monons arsig from the

misiabeÜTg alone - not uiess the

revie\L'1ng cour car idencify same"pre)uåice" surered by the appeant.Trie Stor coii cites Lhs rue in passg- anå also ñnàs that the plaiti iii factsurereà no prejudice despite theprocedural coniusion.

Howeve,. ths statement seems at

odds wiÙl the conciuslOns reached byÚle Storm coun when reviewmg thedisposition oi the mouon to åismiss.

Storm &: Associates' amendedcomDiaim contained four counts. Count1 was a Quantum meruH iee ciaim agaist

Ùle class represemaoves, Count 2charged the remairung iawvers 'Withbreach or an agreement in wruch theattorneys remainin¡; in the case -

\larshali Patner &: .~.ssoCiateS P.c. -

haG allegedlv guaranteed payment oiStorm's iees, Coun, 3 was labeied as anaction ior ionious intenerence withCOntraCL :iílei:ng (hat the Patner rinn

":ntention:iih' ,inù \'.l(h malice c:iuseò or¡;ioueeù" :he CIJSS represent3Uves "to¡errinJ((: :-lorr\\'I(hout cause or,iUSulic.iioli, - .. Ci¡unt .1 was an Jttempt

CBA36

to state a quant:um merut claim for feesagainst the Patner fi.

As aleady noted, the defendants'motion was labeled as one brought undersecon 2-619.1 of the Code of CiviProcedure. It was supported by anafdavit, attesting to developments inthe class-action suit. However, theAppellate Cour noted that the tral courcould have properiy taen j uåìcial noticeof the procedural history of the classaction disclosed by the afdavit and that

the afdavit was therefore "surlusage."Contrar to the express diection of

the statute. the defendants' section,2-619.1 motion in the Stor case did notspeci which arguents were made

pursuant to section 2-615 or section2-619; only tht porton of the motiondicted to count 3 was identified as

being brought under section 2-615., The tral cour dismissed the entie

amended complaint; the Appellate Courreversed the tral cour outrght oncount 1, though it: afnned as to count 2.(A statement in a letter from Patner toStorm that said. "I wil protect yourhours," was not a writig sufcient to

overcome the Statute ot FraudsJMOre signficant, tor the puroses of

ths discussion. the Appellate Courreversed the dismissal ot counts 3 and 4.Agreeing that these counts weresubstantially insufcient in law and

should have been strcken. the Appellate

COlLrt reversed the dismissal ot these

countS, allowing Stonn an opportunty toamend on remand.

Here is where the proceduralcontusion created by internnglingsection ?-61S and section 2-619motionsprejudiced the plaintiff - despite thecontrar finding by the Appellate Cour.I,Vhen a coun considers a proper section2-619 motion and grants the motion, thecase is over. The plaintiffs only recourseis to appeal. On the other hand. when acourt grants a proper seclÌon 2.615motion. the court must make the funher

*Originally printed in Theon September 16, 1998 andmission of the author.

determnation about whether to grt

leave to amend.A cour is not supposed to dismiss a

complait uness it is clea tht the .plaiti caot prove any set o-t facts

under which a recover may be had.Dismissal without givig an Opportuitito amend - or maybe two or thee

opportunties - may be seen as anabuse of disc=etion.

In general, grantig a section 2-619motion sends a disappointed pleader tothe Appellate Cour, whie granting asection 2-615 motion frequently just

sends the disappointed pleader back tothe drawing board. Apparently becauseof the mislabelig in the Stor case. thetral cour dismissed the entie amendedcomplait. instead of grantig leave toamend counts 3 and 4.

Why wotùdn't that constituteprejudice?

As the Stor. court pointed out,

"hybrid motions" have long beencondemned by ile Illinois SupremeCour.janes v. First Federal Saving &Loan Association. 57 Il.2d 398. 3l2

N.E.2d 605 (1974), but one tyicaly sees

- as in Janes - ile harshest criticism

reserved for attempts to combineaspects of a sumar judgment motionwith ilat of a section 2-615 motion. Yet,defense summar judgment motions andsection 2-619 motions are alke in thatboth alost necessary assume that theplaintiff has stated a good cause of action.

Perhaps our couns should consider astronger stand against commngledsection 2-619 and 2.615 motions as well.Tougher language from the reviewingcouns about the hazards ofmotion-mixing would provide the bestprotecuon for movams against theprejudice threatened bv mislabeledmouons.

In the meantime. to come up with onefurher analogy, sewon 2.615 andsectlon :2.1) 19 motions oràinarly shouldbe connecied in series. not in paralleL

Chicago Daily Law Buìletinre-pub 1 i shed here by per

CBA37

SUMMARY JUDGMENTS AND AFFIDAVITS

734 ILCS 5/2-100AND

SUPREME COURT RULE 191

Motion Practice in Cook County Circuit Court’s Law DivisionJanuary 6, 2011

The Chicago Bar Association

Hon. Kathy M. FlanaganCircuit Court of Cook County

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ACKNOWLEDGMENT

The materials contained in this outline were edited and compiled fromprimary source works authored by Justice Thomas E. Hoffman, Honorable MyronT. Gomberg, and Ilinois Practice: Civil Procedure Before TriaL, by Professor RichardA. Michael, published by West Publishing Co.

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TABLE OF CONTENTS

Summary Judgment Statute(2-1005) ..................................... iv

Supreme Court Rule 191 ................................................ v

1. Purpose of the Motion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 1

II. Nature of the Motion ................................................ 1

III. Summary Judgment Procedure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

A. Time for Summary Judgment Motion .........,.........,........ 3

B. What May Be Considered . . . . . . . . . . . . . . . . . . . . . . . . . . . . _ . . . _ . . . . . . 5

C. Missing or Unavailable Evidence ............................... 12

D. Burdens Involved in Motions .................................. 13

E. Standards Applied to Motions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

1' Amendment of Pleadings ...................................... 18

G. Motions to Reconsider. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

H. Appeal and Enforcement ...................... _ . . . . . . . . . . . . . . . 20

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SUMMARY JUDGMENTS735 ILCS 5/2-1005

§ 2-1005. Summar Judgments.

(a) For plaintiff. Any time after the opposing party has appeared or after thetime within which he or she is required to appear has expired, a plaintiff maymove with or without supporting affidavits for a summary judgment in hisor her favor for all or any part of the relief sought.

(h) For defendant. A defendant may, at any time, move with orwithout supporting affidavits for a summary judgment in his or her favor asto all of any part of the relief sought against hiin or her.

(c) Procedure. The opposite party may prior to or at the time of the hearingon the motion file counter affidavits. The judgment sought shall be renderedwithout delay if the pleadings, depositions, and admissions on file, togetherwith the affidavits, if any, show that there is no genuine issue as to anymaterial fact and that the moving party is entitled to a judgment as a matterof law. A summary judgment interlocutory in character, may be rendered onthe issue of liability alone, although there is a genuine issue as to the amountof damages.

(d) Summary determination of major issues. If the court determines thatthere is no genuine issue of material fact as to one or more of the major issuesin the case, but that substantial controversy exists with respect to other majorissuesi or if a party moves for a summary determination òf one or more, butless than all, of the major issues, and the court finds that there is no genuineissue of material fact as to that issue or those issues, the court shall thereupondraw an order specifying the major issue or issues that appear withoutsubstantial controversy, and directing such further proceedings upon theremaining undetermined issues as are just. Upon the trial of the case, thefacts so specified shall be deemed established, and thè trial shall be cond uctedaccordingly.

(e) Form of affidavits. The form and content of and procedure relating toaffdavits under this Section shall be as provided by rule.

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(f) Affidavits made in bad faith. If it appears to the satisfaction of the courtat any time that any affidavit presented pursuant to this Section is presentedin bad faith or solely for the purpose of delay, the court shall without delayorder the party employing it to pay to the other party the amount ofreasonable expenses which the filing of the affdavit caused him or her toincur, including reasonable attorney's fees, and any offending party orattorney may be adjudged guilty of contempt.

(g) Amendment to pleading. Before or after the entry of a summaryjudgment, the court shall permit pleadings to be amended upon just andreasonable terms.

AFFIDAVITSSUPREME COURT RULE 191

Rule 191. Proceedings Under Sections 2-1005, 2-619 and 2-301(b) of theCode of Civil Procedure

(a) Requirements. Motions for summary judgment under section 2-1005 ofthe Code of Civil Procedure and motions for involuntary dismissal undersection 2-619 of the Code of Civil Procedure must be fied before the last date,if any, set by the trial court for the filng of dispositive moTÍons. Affidavits insupport of or in opposition to a motion for summary judgment under section2-1005 of the Code of Civil Procedure, affidavits submitted in connection witha motion for voluntary dismissal under section 2-619 of the Code of CivilProcedure, and affidavits submitted in connection with a special appearanceto contest jurisdiction over the person, as provided by section 2-301 (b) of the

Code of Civil procedure, shan be made on the personal knowledge of theaffiants; shall set forth with particularity the facts upon which the claim,counterclaim, or defense is based; shall have attached thereto sworn orcertified copies of all papers on which the affiant relies; shall not consist ofconclusions but of facts admissible in evidence; and shall affirmatively showthat the affiant, if sworn as a witness, can testify competently thereto. If all ofthe facts to be shown are not within the personal knowledge of one person,two or more affidavits shall be used.

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(b) When Material Fads Are Not Obtainable By Mfidavit. If the affidavitif either party contains a statement that any of the material facts which oughtto appear in the affidavit are known only to persons whose affidavits affiantis unable to procure by reason of hostility or otherwise, naming the personsand showing why their affidavits cannot be procured and what affiantbelieves they would testify to if sworn, with his reasons for his belief, thecourt may make any order that may be just, either granting or refusing themotion or granting a continuance to permit affidavits to be obtained, or forsubmitting interrogatories to or taking the depositions of any of the personsso named, or for producing papers or documents in the possession of thosepersons or furnishing sworn copies thereof. The interrogatories and swornanswers thereto, depositions so taken, and sworn copies of papers anddocuments so furnished! shall be considered with the affidavits in passing onthe motion.

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SUMMARY JUDGMENTS

i. Purpose of the Motion

A. The purpose of a summary judgment motion is to determine the existenceor absence of a genuine issue of material fact (Carruthers v. B.C. Christopher& Company, 57 IlL 2d 376, 313 N.E. 2d 457 (1974));

B. The motion cannot be used to resolve an issue of material fact when oneis found to exist (Addison v. Whittenberg, 124 IlL. 2d 287, 529 N.E. 2d

552(1988));

C. Summary judgment is a drastic method of disposing of a case, and itshould not be employed unless the pleadings, depositions and admissions onfile, together with the affidavits, if any, show that there is no genuine issue ofmaterial fact and that the fight of the moving party to judgment as a matterof law is free from doubt (Pur til v. Hess, 111 Il. 2d. 229, 489 N.E. 2d 867(1986); Murphy v. Urso, 88 IlL 2d. 444,430 N.R 2d 1079 (1982));

II. Nature of the Motion

A. A motion for summary judgment is not a motion which tests thesufficiency of a pleading, as in the case of a 2-615 motion;

B. A summary judgment motion assumes that the pleadings are legally andfactually sufficient, but that evidence which goes beyond the pleadingsestablishes there is no basis for a trial (lanes v. 1st Federal Savings, 57 IlL 2d.398,312 N.E. 2d 605 (1974));

C. The most important distinction between summary judgment motions andmotions which attack the pleadings is that pleadings motions can only examine

the pleadings themselves, while summary judgment motions must involve theexamination of extraneous evidence, submitted by way of affidavits,depositions, etc.;

D. Therefore, when responding to a summary judgment motion, it is improperto merely rely on the allegations of a pleading to attempt to create a genuine issue

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of fact. The allegations in a pleading do not constitute evidence (Carruthersv. B.C. Christopher & Company, 57 Il. 2d 376, 313 N.E. 2d 457 (1974));

E. A summary judgment motion is similar to but distinguishable frommotions for voluntary dismissal under 2-619, in that:

1. 2-619 motions may only be fied by a party who is opposing a causeof action, whHe summary judgment motions can be fied by plaintiffsor defendants;

2. 2-619 motions must be filed prior to a defendant's answer to thecomplaint, while summary judgment motions can theoretically be filedat any time by a defendant and by a plaintiff any time after theopposing party has appeared or after the expiration of that party's timeto answer (2-1005(a) and (bD;

3. 2-619 motions need not be accompanied by any affidavits orsupporting materials if the basis for the dismissal appears on the faceof the complaint (e.g., statute of limitations), while a summaryjudgment motion must be accompanied by extraneous supportingmaterials;

4. 2-619 motions can, rare instancesi be used to resolve a genuine issueof material fact unless a plaintif has filed a jury demand (2-619(eD,while a summary judgment motion cannot be granted is a genuine issueof material fact exists;

F. 2-619.1 allows for the filng and determination of hybrid or combinationmotions, such as those brought pursuant to 2-615, 2-619 and 2-1005. Whilethese procedures are theoretically allowable; hybrid motion practice is notencouraged, and there must be particular attention paid to the purposes ofeach motion, since improper combined use is often logically and/ or legallyinconsistent:

1. For example, a moving party cannot and should not attack acomplaint (or the same counts of a complaint) under 2-615, 2-619 and

summary judgment simultaneously, since the 2-615 motion argues thatthe complaint is not insufficient while the 2-619 and summary

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judgment motions admit that the complaint issufficient;

2. Further, a 2-615 motion allows an examination of the pleadings only,while the other motions usually involve the examination of other

extraneous evidence or materials;

3. The better practice is to follow a logical priority of testing the legaland factual sufficiency of a pleading first, then moving on toinvoluntary dismissals under 2-619 or to summary judgment motionslater in the case;

4. In the case of lanes v. 1st Federal Savings, 57 Il. 2d 398, 312 N.E. 2d605 (1974), the Supreme Court severely criticized the attorneys and thetrial court for neglecting to observe and honor the distinctions betweenthe various motions;

5. See also the attached article on hybrid motion practiceby Jack Leyhane (Hybrid Motion Do Little More Than Confuse,"originally printed in The Chicago Daily Law Bulletin, on September 16,1998, and reprinted here with the author's permission).

III. Summary Judgment Procedure

A. Time for Summary Judgment Motions

1. While 2-1005 (a) and (b) provide for the time when summaryjudgment motions may be brought by a particular party (i.e., at anytime for a defendant, and at any time after the opposing party hasappeared or been required to answer for a plaintiff), Supreme CourtRule 191(a) also provides that the trial court may establish a fixed datefor the filing of dispositive motions;

2. To the extent that the statutory provisions of 2-1005 conflict withRule 191(a), the provisions of Rule 191(a) control (O'Connell v. St.Francis HospitaL 112 Il. 2d 273, 97 IlL. Dec. 449 (19861);

3. Several circuit courts have provided by local rule for the last

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possible date for the filing of summary judgment motions:

a. Cook County: Circuit Court Rule 2.1 (f) states that all motionsfor summary judgment shall be filed and noticed forhearing not later than 45 days before the trial date, exceptby prior leave of court and for good cause shown;

b. 16th Circuit: Circuit Court Rule 6.04(a) states that all motionsfor summary judgment shall be fied and brought toargument no later than 90 days before the scheduled trialdate, except by prior leave of court and upon good causeshown;

C. 18th Circuit: Circuit Court Rule 6.04( a) states that all motionsfor summary judgment shall be fied no later than 30 daysbefore the scheduled trial date, except by prior leave ofcourt and for good cause shown;

d. 19th Circuit: Circuit Court Rule 2.03(a) states that the courtmay designate a date by which all motions shall be filedand a motion may not be filed subsequent to that dateexcept by leave of court.

B. What May Be Considered: Pleadings, Depositions, Admissions, Affidavits,Etc.

1. Pleadings:

a. The pleadings generally are considered only for the purposeof determining what issues are involved in the case. A partycannot rely on unverified pleadings to support or oppose amotion for summary judgment (Cato v. Thompson, 83 IlL. App.3d 321,403 N.E. 2d 1239 (2nd Dist., 1980));

b. Furthermore, even verified pleadings may not be sufficient tosupport or oppose a motion for summary judgment, particularlywhen an opposing party has an affdavit or other evidentiarymaterials which contain facts that are not contradicted by the

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verified pleadings( Doherty v. Kil, 140 IlL. App. 3d 158, 488 N.E.

2d 629 (JSt Dist., 1986); Wooding v. L & 1, 99 IlL. App.3d 382 (lstDist., 1981l);

2. Depositions:

a. Depositions may be used in a summary judgment proceedingfor any purpose for which an affidavit may be used (SupremeCourt Rule 212( aJ(4)) and either discovery or evidence depositionscan be used;

b. The depositions must be made part of the record, must be fiedin the court fie, must be signed and all elements of SupremeCourt Rule 207 must b,e complied with. Failure to comply withthese procedures renders the depositions incompetent to support

or oppose a motion for summary judgment (Urban v. Inverness,176 nl. App. 3d 1, 530 N.E. 2d 976 (ist Dist., 1988);Koukoulomatis v. Disco Wheels, Inc., 127 IlL. App. 3d 95, 468N.E. 2d 477 (JSt Dist., 1984));

ç. All depositions used in regard to summary judgment motionsmust also comply with the provisions of Supreme Court Rule191(a), includig the requirements that the testimony be givenbased on the personal knowledge of the deponent, and that thedeponent, if sworn as a witness, could competently testify to thosefacts set forth in the deposition (Stando v. Grossinger MotorSales, Inc., 89 nl. App. 3d 898, 412 N.E. 2d 600 (1st Dist., 1980));

d. Once a party or wihl.ess testifies to certain facts at adeposition, 'any filing of an affidavit to retract, modify orcontradict the prior testimony wil be generally be unsuccessful(Tom Olesker's Fashion v. Dun & Bradstreet, 71 m. App. 3d 562~

390 N.E. 2d 60 (lstDist., 1979));

3. Admissions:

a. Admissions are either ii judicial" or "evidentiary" and wiloccur at depositions, in answers to interrogatories, Rule 216

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requests, and within certain verified pleading situations wherethe averments consist of fads based on the personal knowledgeof the verifying party which would be admissible at trial;

b. To constitute a "judiciar' admIssioa the statement must bemade under oath; it must be a statement of concrete fact, notspeculation or opinion or inference; the statement of fact must bedeliberate; it must be as to a matter within the peculiarknowledge of the party making it; and the statement must beunequivocal (Derby v. Inter-continentaL 202 IlL. App. 3d 345, 559N.E. 2d 986 (IS! Dist., 1990)):

1. The determination of whether a statement constitutesa "judicial" admission is made on a case-by-case basis andis a question of law for the court;

2. Before a statement is held tò be a "judicial" admission,it must be given a meanIng consistent with the entirecontext in which the statement is made, and by referenceto the entire statement, not merely portions of it (Riley v.Physicans, 192 IlL. App. 3d 23,548 N.E. 2d 811 (3ld Dist.,1989));

3. A party cannot create a genuine issue of fact and

thereby defeat a motion for summary judgment byintroducing counter-evidentiary material which attemptsto contradict a party's own i' judicial" admissions (Riley v.Physicians, 192 Il. App. 3d 23, 548 N.E. 2d 811 (3rd Dist.,1989));.

4. A ii judiciari admission conclusively binds a party andprecludes any subsequent assertions of a contrary position(McCormack v. Haan, 20 nl. 2d 75,169 N.E. 2d 239 (1960);

c. Admissions and statements of fact made in answers tointerrogatories, pleadings filed in other cases, and in someunverified pleadings constitute ii evidentiary" admissions;

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d. FI Evidentiary" admissions can be contradicted or explained byother evidentiary material (Estate of Rennick v. Rennck, 181 II2d. 395, 692 N.E. 2d 1150 (1998); Van's Material Co. v.Department of Revenue, 131 IlL. 2d 196, 545 N.E. 2d 695 (1989));

4. Affidavits:

a. Any affidavit filed in connection with a summary judgmentmotion must comply with Supreme Court Rule 191(a) (SeeRobidoux v. Oliphant, 201 Il. 2d 324 (2002);

b. It must be based on the actual, personal knowledge of theaffiant:

1. Statements that the affiant" understood" somethingwas found to be insufficient, because the affiant merelywas stating assumptions and not facts (Ex tel v. CermetekMicroelectronics, 183 Il. App. 3d 688, 539 N.E. 2d 320 (1 stDist., 1989); Castro v. Chicago, Rock Island & PacificRailroad Co., 83 IlL. 2d. 358,415 N.E. 2d 365 (1980));

2. Allegations cannot be made" upon information andbelief" because a trial court cannot determine which partof the affidavit is based on the affiant's knowledge andwhich part on "information and belief" (Fooden v. Boardof Governors of State Colleges and Universities of Ilinois,48 Il. 2d. 580,272 N.E. 2d 497 (1971); Hedrick v. GoodwinBrothers, Inè., 26 II App. 3d 327, 325 N.E. 2d 73 (4th Dist.,1975);

3. An affidavit which does not have any basis to showhow the affiant acquired the knowledge of the facts doesnot comply with Rule 191(a) (Steuri v. PrudentialInsurance Co. of America, 282 Il. App. 3d. 753, 668 N.E.

2d 1066 (rt Dist., 1996));

c. Particularity of facts and no conclusions:

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1. Statements of approximation, ranges of amounts('between" or" no less than"), or general characterizationssuch as "usual and customary," violate the provisions ofRule 191 (Taffe v. Fogelson, 137 IlL. App. 3d. 961,485 N.E.2d 531 (1st Dist., 1985); Standard Oil v. Lachenmyer, 6 ILL.App. 3d. 356, 285 N.E. 2d 497 (pt Dist., 1972); Motz v.Central National Bank, 119 IlL. App. 3d 601, 456 N.E. 2d958 (lst Dist., 1983));

2. Statements which constitute conclusions will invalidate

an affidavit, such as /I independent contractor," /I does notexercise control," //has no authority over the work/,'/retained control" (Wallace v. Smíth, 75 IlL App. 3d. 739,

394 N.E. 2d. 665 (1st Dist., 1979); Steuri v. PrudentialInsurance Co. of America, 282 Il. App. 3d. 753, 668 N.E.

2d. 1066 pst Dist., 1996));

3. Affidavits cannot simply state that the allegationscontained in a pleading are true or false (Roe v. Tewish

Children's Bureau of Chicago, 339 IlL. App. 3d 119 (1stDist., 2003));

4. Conclusions in affidavits are proper in the case ofexpert testimony, as well as in those limited circumstanceswhere lay opinion testimony would be admissible at trial(Purtil v. Hess, 111 IlL. 2d 229, 489 N.E. 2d 867 (1986)).

However, an expert or lay opinion is only as valid as thebasis and the reasons for the opinion. When there is nofactual support or foundation for the opinions andconclusions of an expert or a lay opinon witness, the

conclusions or opinions alone are insufficient (Wilson v.Bell, 214 IlL. App. 3d 868, 574 N.E. 2d 200 (1st Dist., 1991);Larson v. Decatur Memorial HospitaL, 236 nl. App. 3d 796,602 N.E. 2d 864 (4th Dist., 1992));

d. The facts contained in the affidavit must be admissible

according to the rules of evidence, and cannot be based onprivileged communications, or inadmissible evidence, such as

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hearsay (Taylor v. People's Gas, Light & Coke Co., 275 IlL. App.3d 655, 656 N.E. 2d 134 (rt Dist., 1995); Fabiano v. City of PalosHils, 336, IlL. App. 3d 635 (1 st Dist., 2002)). However, even if anaffidavit does consist of hearsay, it wil not be considered to beviolative of Rule 191(a) if any of the hearsay statements fallwithin an recognized exception to the hearsay rule (Gas Power,Inc. v. Forsythe Gas Co., 249 IlL. App. 3d 255,618 N.E. 2d 959 (1 stDist., 1993));

e. Sworn or certified copies of all papers upon which the affiantrelies must be attached. This means that documents such asletters, photographs, police reports, leases, manuals, records, etc.must be authenticated and the proper foundation established in thesame manner as if these materials were to be inl'roduced, at trial

(Robidoux v. Oliphant, supra; Rahill Corp. v. Urbanski, 123 Il.App. 3d 769,463 N.E. 2d. 765 (lSl Dist., 1984); Rush v. Simon &Mazian, Inc., 159 IlL. App. 3d 1081, 513 N.E. 2d 100 (lSl Dist.,1987); Lamonte v. City of Bellevile, 41 IlL App. 3d 532, 400 N.E.2d 1033 (5th Dist., 1976); Morales v. Mongolis, 293 Il. App. 3d660,668 N.E. 2d 1196 (1st Dist., 19971);

f. Prior case law has held that the failure to attach copies of thedocuments referred to should not be considered fataL so long asit appears that the affiant would be a competent witness to testifyat triaL. The philosophy was ii techncal insufficiencies are notfavored and should be disregarded (Beals v. Huffman, 146 Il.App. 3d 30 (3rd Dist., 1986)Q2eattie v. Lindelof, et. aI., 262 IlL.App. 3d 372,633 N.E. 2d 1227 (1 st Dist., 1994); Lindahl v. City of

Des Plaines, 210 Il. App. 3d 281, 568 N.E. 2d 1306 (1 stDist., 1991));

g. However, in Robidoux v. Oliphant, supra, the Ilinois SupremeCourt specifically declined to construe the provisions of Rule191(a) pertaining to attachment of documents in this manner.The court held that i' the provisions of the Supreme Court Rulesare neither aspirational nor are they mere suggestions; they havethe force of law, and the presumption must be that they wil beobeyed and enforced as written" (Robidoux v. Oliphant 201 Il.2d at 340, relying on Bright v. Dicke, 166 Il12d 204 (19951);

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f. The affidavit must affrmatively show that the affiant, if swornas a witness, could competently testify to the facts recitedtherein. Rule 191(a) does not require that the affidavit contain aspecific statement to that effect so long as it appèars that thematters attested to are from the affiant's personal knowledge.The simple failure to expressly this requirement does not renderthe affidavit ineffective (Mt. Prospect Bank v. Forestry RecyclingSawmilL 93 IlL. App. 3d 448, 417 N.E. 2d 621 (rt Dist., 1980);Beattie v. Lindelof, et. aI., 262 m. App. 3d 372,633 N.E. 2d. 1227

(pi Dist., 1994));

g. However, there are cases subsequent to Robidoux whichcreate some degree of confusion about the requirements of anaffidavit:

1. In Roth v. Ilinois Farmers Insurance, 202 nl. 2d 490

(2002), the Ilinois Supreme Court held that the Robidouxanalysis on the absence of a notarization applies only to

affidavits created and uses pursuant to Supreme CourtRule 191, which in itself only applies to certain types ofmotions under the Ilinois Code of Civil Procedure (i.e.,summary judgment, motions for involuntary dismissalunder 2-619, and motions contesting jurisdiction);

2. Therefore, under Roth, affidavits submitted in

conjunction with any other procedural device, motion,

rule, notice, etc. must stil contain a notarization

h. If an affidavit in support of or in opposition to a motion forsummary judgment contains statements or material whichviolates Rule 191(a), an objection should be made by way of amotion to strike or by arguing the impropriety of the statementor document in the responsive brief. Failure to object in anymanner results in a waiver of the objection (Fooden v. Board ofGovernors of State Colleges and Universities, 48 Il. 2d 580, 272N.E. 2d 497 (19711). Ony the tainted portion of the affidavitshould be excised, as opposed to the entire affidavit (Wiszowatyv. Baumgard, 257 IlL. App. 3d 812, 629 N.E. 2d 624 (1st Dist.,1994); People ex. reI. Vauginaux v. City of Edwardsvile, 284 IlL.

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CBA53

App. 3d 407,672 N.E. 2d 40 (5th Dist., 1996));

i. §2-1 005 (f) also specifies that any affidavit (presented inconjunction with a summary judgment motion) is presented inbad faith, or solely for the purpose of delay, the court shall orderthe party employing that affidavit, to pay the other party'sexpenses which the filng caused, and the offending party mayalso be adjudged guilty of contempt. This often arises when theattorney who obtains an affidavit does not do thoroughinvestigation as to the knowledge of the putative affiant, forcinga deposition of a person who ultimately has no knowledge of thefacts or of the averments contained in the original affidavit.

C. Missing or Unavailable Evidence Under Rule 191(b)

1. This is a procedural mechanism provided to a respondent to a

motion for summary judgment who is in need of further discoveryprior to being required to respond to the motion itself (Gil v. ChicagoPark District, 85 Il. App. 3d 903, 407 N.E. 2d 671 (rt Dist., 1980));

2. An affidavit submitted pursuant to Rule 191(b) must contain all ofthe information provided for in the Rule and affidavits signed byattorneys do not satisfy the requirements of the Rule; the affiant mustbe a party to the action (Rush v. Simon & Mazian, Inc., 159 nl. App. 3d108L 513 N.E. 2d 100 (pt Dist., 1987));

3. Some judges conduct a Rule 191(b) II screening" when a motion forsummary judgment is initially before the court, in order to expeditewhatever discovery may be needed. This II screening" eliminates thewaste of time which occurs when a briefing schedule is entered andwhen the responding party files a Rule 191(b) affidavit, therebynegating the schedule itself. At the time of the intial II screening" theresponding attorney should be prepared to advise the court exactlywhat discovery wil be necessary, when it wil be filed and served, andan approximate time that it can be completed;

4. Failure to request any pre-briefing schedule discovery may result in a

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CBA54

determination of waiver of the right to obtain same (Emerson Electric Co. v.Aetna Casualty and Surety Co., 281 nl. App. 3d 1080, 667 N.E. 2d 581

(1st Dist., 1996); Ignarski v. Norbut, 271 nl. App. 3d 522,648 N.E. 2d 285rrt Dist., 1995); Delgatto v. Brandon Associates, Ltd., 131 Il. 2d. 183,545 N.E. 2d 689 (1989));

5. The person who submits an affidavit in support of the motion forsummary judgment is required to make that affiant available fordeposition upon request by the non-movant, either formally with aRule 191(b) affidavit, or informally at a Rule 191 (b) 1/ screening." If themovant refuses to make the affiant available for deposition, or arguesthat the movant does not 1/ control" the affiant, the court may strike theaffidavit or deny the motion, on the grounds that the non-movant isunable to procure discovery of the material facts in the affidavit, as setforth in Rule 191 (b);

6. §2-1005(c) provides that the non-movant may prior to or at the timeof the hearing on the motion file counter-affidavits. However, thispractice is not generally countenanced, particularly when there hasbeen ample opportunity given to the non-movant to obtain suchevidentiary materials. In Amaral v. Woodfield Ford Sales, Inc., 220 IlLApp. 3d 357, 581 N.E. 2d 19 (1st Dist., 1991), the trial court's orderdenying leave to file a counter-affidavit was affrmed, when the non-movant sought leave to file after oral argument and one business dayprior to the actual ruling date. The "hearing" was terminated at thepoint when the attorneys were given their full opportunity to presentall their facts and arguments of làw.

D. Burdens Involved in Motions for Summary Judgment

1. The movant in a summary judgment is the burdened party, andmust provide facts and evidentiary material which, if uncontradictedor uncontested, would entitle the movant to judgment as a matter oflaw. Only when that initial burden is satisfied does the non-movantthen become required to come forward with evidentiary material tocreate a genuine issue of fact, thereby defeating the motion forsummary judgment (Pecora v. County of Cook, 323 m. A pp. 3d 917 (1 stDist., 2001; Kielbasa v. St. Mary of Nazareth HospitaL, 209 IlL. App. 3d.

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CBA55

401,568 N.E. 2d 208 (rt Dist., 1991));

2. If the plaintiff is the movant on the summary judgment motion, theplaintiff is required to present factual evidence as to each and everyelement of the cause of action (i.e., at least those which are not alreadyadmitted in the pleadings) as well as factual evidence which wouldnegate any affirmative defenses which have been raised by thedefendant (Geraghty v. Continental Western Life Ins. Co., 281 Il. App.3d 669, 667 N.E. 2d 510 (1st Dist., 1996); General Motors Corp. v.Douglass, 206 Il. App. 3d 881, 565 N.E. 2d 93 (1st Dist., 1990));

3. If the defendant is the movant on the summary judgment motion,then the defendant is required to present factual evidence which establishesthat some essential element of the plaintif s cause of action did not occur orthat some affrmative defense is available;

4. A defendant may also carry the initial burden on a summaryjudgment motion by establishing that the plaintiff wil be unable toprove an essential element of the cause of action:

a. However, this may not be accomplished merely by a

defendant filing an affidavit reciting this conclusion, but must beaffirmatively established by depositions of witnesses and theplaintiff and answers to (Webber v. Armstrong Wodd Industries,235 Il. App. 3d 790, 601 N.E. 2d 286 (4th Dist., 1992); Tames v.Yasunaga,157 Il. App. 3d 450, 510 N.E. 2d 531 (4th Dist., 1987);Kimbrough v. Jewel Companies, Inc., 92 Il. App. 3d 813, 416N.E. 2d 328 (ist Dist., 1981));

b. Also, in order to establish that some element of the plaintiff'scause of action is not true, and that evidence is solely in thepossession of the defendant, the defendant has the affirmativeburden to establish that fact with evidence from the defendant,rather than the plaintiff;

c. For example, if notice to the defendant is an essential elementof the plaintiff's case, the defendant canot rely on plaintiff'sdeposition testimony that the plaintiff did not give notice to the

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CBA56

defendant. There must be an affidavit or deposition of adefendant affirmatively establishing that the defendant had nonotice of the fact or condition which is at issue in the case. Thisis so because it is generally impossible to establish a defendant'sknowledge of some fact or condition through a plaintiff, since aplaintiff usually is not privy to what a defendant knows ordoesn't know;

5. If the movant fails to carry the initial burden on the summaryjudgment motion, then the motion must be denied (Colwell Systems,Inc. v. Henson, 117 Il. App.3d 113, 452 N.E. 2d 889 (4th Dist., 1983J;Becovic v. Harris Trust & Savings Bank, 128 IlL. App. 3d 107, 469 N.E.2d 1379 (ist Dist., 19841);

6. If the initial burden of the movant is carried, then and only then wilthe burden shift to the non-movant to bring forth evidentiary materialwhich is sufficient to defeat the motion (Pecora v. County of Cook,supra; Carruthers v. B.C. Christopher & Co., 57 IlL. 2d 376, 313 N.E. 2d457 (1974J; ReubenH. Donnelly Corp. v. Krasny Supply Co., Inc., 227nl. App. 3d 414, 592 N.E. 2d 8 (1st Dist., 19911).

E. Standards Applied to Motions for Summary Judgment

1. The court is required to strictly construe all evidence submitted bythe movant and liberally construe all evidence submitted by therespondent (Kolakowski v. Voris, 83 IlL. 2d. 388, 415 N.E. 2d 397 (1980);In Re Estate of Hoover, 155 IlL. 2d. 402, 615 N.E. 2d 736 (19931);

2. All evidentiary material submitted in support of a motion for

summary judgment wil be taken as true uness the opponent to themotion submits contradictory evidentiary material (Foodenv. Board ofGovernors of State Colleges and Universities of Ilinois, 48 IlL. 2d. 580,272 N.E. 2d 497 (19711);

3. If evidentiary material leads to more than one conclusion or

inerence, the court must adopt the conclusion or inference that is mostfavorable to the non-movant ( Brown v. Cook County Forest Preserve,284 IlL. App. 3d 1098,661 N.E. 2d 383 (1st Dist., 19961);

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4. Inferences which are to be drawn must be reasonable, not remote andthere cannot be any reliance on surmise, speculation or conjecture inorder to successfully oppose a motion for summary judgment(Kimbrough v. Tewel Companies, Inc., 92 Il. App. 3d 813, 416 N.E. 2d328 (rt Dist., 1981));

5. Issues of credibilty, motive, intent, subjective feelings or

understanding, etc., are generally inappropriate for a summaryjudgment motion (Hugo v. Tomaszewski, 155 IlL App. 3d 906, 508 N.E.2d 1139 (5th Dist., 1987); Beauvoir v. Rush-Presbyterian-St. Luke'sMedical Center, 137 111. App. 3d 294, 484 N.E. 2d 481 (1st Dist., 1985));

6. Summary judgment should not be entered in any situation wherethereis an actual confict as to what occurred, because this forces thecourt into the function of being a trier of fact, as opposed to merelydetermining if a trier of fact should hear the case (Murphy v. Urso, 88Il. 2d. 444, 430 N.E. 2d 1079 (1981); Golla v. General Motors Corp., 167Il. 2d 353,657 N.E. 2d 894 (1995));

7. In many situations, there is no contest as to any material issue offact, and each of the parties fie cross-motions for summary judgment.In this situation, both parties are then conceding, for purposes of themotioii., that only questions of law are involved, such as:

a. Statutes of limitations, although if there is any question of factunder a discovery rule, then summary judgment is not proper;

b. Construction of contracts, although if there is any question asto the ambiguity of the contract, then summary judgment is notproper;

c. Construction of inurance contracts, because clauses ininurance policies are usually carefully drafted to avoidambiguities, standard clauses are often employed, and theinterpretation is a question of law with any ambiguities resolvedagainst the insurance company (Bohern Intern, Inc. v. LibertyMutual Insurance Co., Inc., 120 Il. App. 3d 657, 458 N.E. 2d 644(2nd Dist., 1983)). However, if the respondent to the motion

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raises a fact issue, such as estoppel, then summary judgment onthe construction of an insurance policy can still be improper(Western Casualty & Surety Co. v. Brochu, 105 IlL 2d. 486,475N.E. 2d 872 (19851);

8. In areas of tort law, summary judgments are common in the dutyin negligence cases, while issues pertaing to negligence, breach,

contributory negligence and proximate cause are usually for the juryand summary judgments are usually denied (Ward v. K-Mart, 136 m.2d 132, 554 N.E. 2d 223 (1990)). Also, beware of relying on cases to

support or oppose a motion for summary judgment which areprocedurally distinguishable based upon the posture of the case (e.g.,relying on a case based upon a trial verdict in a summary judgmentmotion);

9. In certain cases, however, proximate cause can be decided as a

question of law, where the facts can only give rise to one inference(Quirke v. City of

Harvey, 266 IlL App. 3d 664, 639 N.E. 2d 1355 (1994));

10. In agency and respondeat superior cases, the question of whethersomeone is acting withi the scope of his or her employment is a juryquestion and summary judgment is usually inappropriate, unless theaction of the agent is so far removed from the employment that theissue can be determined as a matter of law (Wolf v. Liberis, 153 Il.App. 3d 488,505 N.E. 2d 1202 (1st Dist., 19871);

11. In apparent agency cases (most often encountered in medical

malpractice cases), summary judgment is nearly always deniedi sincethe issue of authority of an agent (either actual or apparent) to act,whether a person has notice of lack of anagent s authority, or is put onnotice of circumstances, are all questions of fact (Gilbert v. SycamoreHospitaL, 156 IlL. 2d. 511, 622 N.E. 2d 788 (19931; Petrovich v. ShareHealth Plan of Ilinois, 188 IlL. 2d 17,719 N.E. 2d 756 (1999)).

F. Amendment of Pleadings

1. §2-1005(g) provides for the amendment of pleadings, either beforeor after the entry of summary judgment, the trial court is vested with

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broad discretion to allow amendment, and there is a four-part test to besatisfied before the amendment wil be allowed:

a. Whether the proposed amendment would cure a defectivepleading;

b. Whether other parties would sustain prejudice or surprise byvirtue of the proposed amendment;

c. Whether the proposed amendment is timely; and

d. Whether previous opportunities to amend the pleading couldbe identified (Loyola Academy v. S & S Roof, 146 IlL. 2d. 263, 586N.E. 2d 1211 (1992));

2. Any proposed amended complaint must be included in the recordon appeal, or the propriety of the trial court denying leave to amendwil be deemed waived on appeal (Ignarski v. Norbut, 271 Il. App. 3d522,648 N.E. 2d 285 (rt Dist., 1995)).

G. Motions to Reconsider

1. The purpose of a motion to reconsider is to bring to the court'sattention newly discovered evidence which was unavailable at the time of theoriginal ruling which would have impacted on the court's ruling, or changesin existing law, or misapplication of existing law (Kaiser v. MEPCAmerican Properties, Inc., 164 Il. App. 3d 978, 518 N.E. 2d 424 (1stDist., 1987)). The mohon to reconsider is not intended to afford a partyanother opportunity to relitigate or reargue that which has already beenliigated or argued;

2. If a party has failed to object to the insufficiency of the opponent'saffidavits or evidentiary materials prior to the court's ruling on thesummary judgment, that party is deemed to have waived those issuesand cannot present them for the first time on a motion to reconsider

(Stone v. McCarthy, 206 ILL. App. 3d 893, 565 N.E. 2d 107 (1st Dist.,

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1990); Kugelman v. Vilage of Hoffman Estates, 236 IlL. App. 3d 407,603N.E. 2d 45 (rt Dist., 1992));

3. A trial court is not required to accept or consider evidentiary

material which is submitted for the first time with a motion toreconsider after entry of an order granting summary judgment:

a. Whether to accept or consider the new material is a mattercommitted to the sound discretion of the court;

b. The new material generally wil not be accepted or consideredunless there is some reasonable explanation as to why it was notavailable prior to the ruling on the summary judgment. If thematerial was or could have been available, then the originalruling wil generally stand (Delgatto v. Brandon, 131 Il. 2d 183,

545 N.E. 2d 689 (1989); Gardner v. Navistar, 213 Il. App. 3d 242,

571 N.E. 2d 1107 (4th Dist., 1991));

c. As stated in Tohn Alden Life Insurance Co. v. Propp, 255 IlL.App.3d 1005 (2d Dist., 1994), "the trial court should not permitlitigants to stand mute, lose emotion and then frantically gatherevidentiary material to show that the court erred in its ruling.Civil proceedings already suffer from far too many delays, andThe interests of finality and efficiency require that the trial courtsnot consider such late tendered evidentiary materiaL, no matterwhat the contents thereof may be" (citing Gardner v. NavistarInternational Transportation Corp., 213 Il. App.3d 242 (4th Dist.,1991 J).

H. App.eal and Enforcement of Summary Judgments

1. If the granting of summary judgment disposes of the entire cause ofaction, the ruling is.final and appealable under Supreme Court Rule301;

2. If the granting of summary judgment disposes of one or more, butfewer than all parties or upon one or more but fewer than all claims,

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then the ruling is not appealable or enforceable, unless the court makesa finding of appealability and finality pursuant to Supreme Court Rule304( a) (Dubina v. Mesirow Realty Development, Inc., 178 nl. 2d 496,687N.E. 2d 871 (1997));

3. The denial ofa summary judgment motion is not appealable and itis not proper to request a Supreme Court Rule 304(a) finding withregard to the deniaL. An order denying summary judgment merges intothe final judgment entered in the case and is, therefore, not reviewableon appeal (Elane v. St. Bernard's HospitaL, 284 IlL. App 3d 865, 672 N .E.2d 820 (1st Dist., 1996));

4. If a summary judgment is entered, but wil not dispose of all issuesin a case, the trial court may enter an order under Supreme Court Rule192, either to stay the entry of the judgment, or postpone the entry ofthe judgment, depending on the facts and circumstances of the case,and the possibilty of prejudice, remaining claims, unfair advantage,etc. (Samuels v. CHA, 207 IlL. App. 3d 10, 565 N.E. 2d 234 (rt Dist.,1990)).

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CBA62

ORDERS TO SHOW CAUSE

Motion Practice in Cook Countyurt's Law Divisionociation

Hon. Kathy M. FlanaganCircuit Court of Cook County

CBA63

Orders to Show Cause

1. An order (or rule) to show cause is the first step inobtaining a finding of contempt! usually for failure tocomply with a court order or subpoena. This procedure canalso be used as a sanction against a party for failure tocomply with discovery! as set forth in Supreme Court Rule219.

2. The order to show cause is entered by a judge pursuantto a II motion for order to show causerr and notice and a copyof the motion is required to be sent to the person or entityagainst who the order to show cause is sought.

3. The ll10tion must contain allegations setting forth thatthere was a court order entered which the person or entitydid not comply with! or that there was a subpoena issuedand served upon the person or entity which has not beencomplied with. Copies of the court order and/ or subpoenashould alwaus be attached to a motion' for order to showv 'cause. In the case of a subpoena for deposition or records!the cancelled check sent with the subpoena should be copiedand attached to the motion as an exhibit as proof of receiptof the subpoena.

4. When the order to show cause is issued by a court! theorder must state that the person or entity failed to comply,

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and service of this order must be made in con1plIance with.SCR l05(b), if the person or entity is a party (personal

service, certified mail, return receipt requested andrestricted delivery when service is directed to a naturalperson, or by publication, but only is cases where

publication is allowed)(Circuit Court Rule 6.1(aJ).

5. If the person or entity is not a party/then service of therule or order must be made by summons, by any person overage 18 , and not a party to the action (Circuit Court Rule6.1(dD.

6. The order to show cause should always state the following:a. that an order is issued requiring the person or entityto show cause why he or she or it should not be held incontempt of court for failure to comply with the courtorder of whatever date or failed to comply with thesubpoena issued on whatever date;b. that the order to show cause shall be returnable in

courtroom whatever at whatever time, for the hearingon the order to show cause;c. that if the person or entity fails to appear at said timeand place, the court will issue a writ of attachment withno bond.

7. The next step at the hearing on the return of the order toshow cause is the finding of conteinpt and issuance of the

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writ of attachment. No writ of attachment against a personnot a party to the action may issue without actual priorservice of the order to show cause (Circuit Court Rule6.1( dD.

8. However, in the case of a party to the action, a motion canbe filed, supported by affidavit, which shows that the partywill not respond to the order to show cause, or that theperson is threatening to leave the jurisdiction or concealhimself/herself to elude the process of the order and tomake enforcement of the order impossible. Under thosecircumstances, the court may order the attachment of theparty without service of the rule or order, and the attached partyshall be heard when brought before the court (Circuit Court Rule6.1(bHi) and (iiD.

9. The usual situations where orders to show 'cause areissued is for witnesses who do not respond to subpoenas fordeposition, and for entities who do not respond tosubpoenas for deposition.

10. In most instances, when the motion for order to showcause is issued, the offending person or entity will contactthe moving attorney and will set up the deposition date, orwill promise to send the records requested.

11. Under these circumstances, the best procedure is to enter

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CBA66

and continue the motion to order to show cause to a dayshortly after the promised perforinance date, to ensurecompliance. Then, on the status date, the motion for orderto show cause can be withdrawn, assuming there has beencompliance or performance.

12. The situation gets more serious when a writ ofattachment is issued. SOll1etimes, judges will issue the writof attachment, but will order that the placement of the writwith the Sheriff of Cook County be stayed for 7 or 14 days!to give one last chance to the person or entity to comply! andthe judge will require that the order be delivered or faxed tothe person.

13. Once the writ of attachment is placed for service withthe Sheriff of Cook County, the writ is processed in the exactmanner of an arrest warrant. It is placed into a multi-state!multi-law enforcement agency data base called LEEDS (LawEnforcement Enhancement Decision Support). The effect ofentry into LEEDS is that if someone is stopped for a minortraffic violation, if someone is arrested! etc.! the writ ofattachment will be executed and the person will be takeninto immediate custodyi brought to the police station of thearresting agency! transferred to the Cook County House ofCorrections at 26th & Californiai and will housed there until

the next available business court date! and will then broughtbefore the judge who issued the writ of attachment.

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CBA67

14. The Sheriff's Office notifies the law firm which draftedthe writ of attachment that the person is in custody, and willnotify the judge's clerk that the prisoner is present in the

facility's lockup. The lawyer for the law firm shouldimmediately notify all other counsel and should contact thejudge's clerk to see what time the prisoner will be brought'before the judge.

15. At the hearing, the judge will inquire of the prisonerwhy he or she did not appear for deposition or produce therecords requested, and arrangements are usually made rightthere to produce the records or set a date certain for thedeposition. Most situations do not get this far.

16. An order will then be entered which must state thefollowing:

a. that the writ of attachment issued on whatever date!be and is hereby quashed, recall, and held for naught,having been executed by the Sheriff of Cook County;b. that the person in custody be and is hereby releasedfrom the custody of the Cook County Sheriff instanterfrom the Daley Center (or whatever facility you are at);c. that the person shall produce the requested records

or appear for his/her deposition on whatever date.

17. The attorney obtaining the writ of attachment mustprovide the prisoner with a copy of the order to carry with

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CBA68

them at all times for the next 14 to 21 days. There have beensituations where the information of the quashing of the writhas not been entered and processed into LEEDS for anextended period of time and the person will be picked upand taken into custody on the same writ of attachment.

18. Crucial Note: Also, be aware that if a writ is issued and-'

placed with the Sherif and if the person contacts the attorneyto arrange for a dep, the atty should imiuediately come intocourt to quash the writ of attachment and get a certifiedcopy to the person, or an arrest can take place.

There was a recent case of a physician who failed torespond to a subpoena for deposition, an order to showcause was presented, and a writ was issued with no bond.The doctor returned to Chicago after an extended period oftime in Europe, discovered all the court orders and

contacted the attorney, and arranged for his deposition alla specific date. The attorney never quashed the writ ofattachment,'and the Sheriff's police arrested him at his homeon a Sunday evening, took him to 26th & California, and herwas brought before me on Monday. The doctor then suedthe law firm and the case just settled for a large confidentialamount of money.

Another such case involved a woman who was out oftown, but called the attorney to say she would be back on acertain date and selected a day for her deposition. Theattorney came into court and had a writ of attachment

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CBA69

,issued,never quashed it when he heard from the woman,and the Sheriff's police caine to her home and took her intocustody in front of her toddler daughters. This is aprocedure which is fraught with danger if the attorney doesnot know the consequences of it.

19. For informational purposes only, the type of conten1ptwhich is nearly always involved in these situations is indirectcivil contempt, which involves conduct outside the presenceof court which is in violation of a subpoena or court order,where the person held in contempt (e.g., the contemnor) isable to purge himself or herself of the contempt merely byperforining the act requiredi such as appearing for

depositioni or producing records, etc. This is commonlyknown as the" contemnor holding the keys to the Jail cell inhis or her own hands." Civil contempt is coercive in nature iand is meant to force the performance of future conduct. Incontrast, criminal contempt is punitive in nature and isimposed to punish a person for past conduct which cannotbe changed. Direct contempt is that conduct which takesplace in the presence of the court.

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