The Chicago Bar Association Presents:

Motion Practice in Cook County Circuit Court=s Law Division

Thursday, January 12, 2012 2:00-5:00 p.m. The Chicago Bar Association 321 S. Plymouth Court Level of Instruction: Intermediate Presented by: CBA Continuing Legal Education Committee Also Available: DVD Rental, Written Materials FOCUSED CASE MANAGEMENT, MOTIONS TO DISMISS, MOTIONS FOR SUMMARY JUDGMENTS, AND RULES TO SHOW CAUSE Hon. Kathy M. Flanagan, Law Division, Motion Section, Circuit Court of Cook County MOTIONS IN LIMINE, MOTIONS FOR DIRECTED VERDICT AND POST TRIAL MOTIONS Hon. Thomas L. Hogan, Jury Section, Law Division, Circuit Court of Cook County PERSONAL JURISDICTION, REQUESTS TO ADMIT FACTS AND MOTIONS FOR VOLUNTARY DISMISSAL Hon. Diane J. Larsen, Motion Section, Law Division, Circuit Court of Cook County MOTIONS IN ROOM 2005, MOTIONS TO BAR, MOTIONS FOR SANCTIONS AND MOTIONS TO CONTINUE TRIAL Hon. William D. Maddux, Presiding Judge, Law Division, Circuit Court of Cook County MODERATOR: Mark Szaflarski, Mark Szaflarski, P.C.

TABLE OF CONTENTS Motion Practice in the Cook County Circuit Court Law Division 

January 12, 2012  

 Honorable Kathy M. Flanagan FOCUSED CASE MANAGEMENT MOTIONS TO DISMISS                    CBA1 SUMMARY JUDGMENT                   CBA 36 RULES TO SHOW CAUSE                  CBA61  

 Honorable Thomas L. Hogan  MOTIONS IN LIMINE, MOTIONS FOR DIRECTED VERDICT, POST TRIAL MOTIONS      MOTIONS IN LIMINE BY JUDGE CLARE E. MCWILLIAMS            CBA69 MOTIONS IN LIMINE BY JUSTICE SHARON JOHNSON COLEMAN          CBA81 SAMPLE MOTIONS IN LIMINE                  CBA84  

 Honorable Diane J. Larsen                 PERSONAL JURISDICTION                  CBA95 REQUEST TO ADMIT FACTS                  CBA106 MOTIONS FOR VOLUNTARY DISMISSAL; HUDSON            CBA117  

 Honorable William Maddux MOTIONS IN ROOM 2005, MOTIONS TO BAR, MOTIONS FOR SANCTIONS ADMINISTRATIVE ORDERS                  CBA127 LAW DIVISION JUDGES                    CBA136 LAW DIVISION STATISTICS                  CBA137 BLACK LINE TRIAL CALL                    CBA139 HIPAA ORDERS                     CBA161       

  ADDITIONAL MATERIALS MINORS, DISABLED PERSONS & WRONGFUL DEATH PROCEDURES        CBA162 UPDATE ON LIENS                    CBA173 MOTION JUDGES RULES (1995)                  CBA176    

CASES OF NOTE    

Maple v. Gustafson, 151 Ill. 2d 445 (1992) (Post Trial Motions)          CBA199 

REQUEST TO ADMIT CASES Vision Point of Sales v. Haas, 226 Ill. 2d 334 (2007)            CBA207 PRS International v. Shred Pax, 184 Ill. 2d 224 (1998)             CBA224 Szczeblewski v. Gossett, 342 Ill. App. 3d 344 (5th Dist. 2003)          CBA235 Robertson v. Sky Chefs, 344 Ill. App. 3d 196 (1st Dist. 2003)           CBA239  

Robidoux v. Oliphant, 201 Ill. 2d 324 (2002) (Expert's bases and summary judgment)    CBA245 

Hudson v. City of Chicago, 228 Ill. 2d 462 (2008) (Voluntary Dismissal and Claim Splitting)   CBA259 

Dawdy v. Union Pacific, 207 Ill. 2d 167 (2003) (forum non conveniens)        CBA278 

Shimanovsky v. General Motors, 181 Ill.2d 112 (1998) (Rule 219 discovery sanction)    CBA290 

Cedzidlo v. Marriot International, 404 Ill. App. 3d 578 (1st Dist. 2010) (619 Motion)    CBA301 

 

JUROR INTERNET SEARCHES 

Eskew v. Burlington Northern, 2011 Ill. App. 093450 (1st Dist. 2011) (juror blogging)    CBA306 

AZ v. Valdeez, (Ariz. App. 2010) (jurors' google search results in reversal)       CBA321 

Russo v. Takata Corp., 774 N.W.2d 441 (S.D. S. Ct. 2009) (google search results in reversal)  CBA331  

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

CBA000001

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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CBA000015

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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CBA000016

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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CBA000017

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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CBA000018

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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CBA000019

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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CBA000020

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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CBA000021

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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CBA000022

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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CBA000023

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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CBA000024

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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CBA000025

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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CBA000026

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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CBA000027

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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CBA000028

(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

-26-

CBA000029

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

-27-

CBA000030

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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CBA000031

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

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CBA000033

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

CBA000034

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

CBA000035

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

CBA000036

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.

-lV-

CBA000039

(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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CBA000040

(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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CBA000041

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

-1-

CBA000042

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

-2-

CBA000043

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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CBA000044

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

-4-

CBA000045

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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CBA000046

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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CBA000047

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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CBA000048

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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CBA000049

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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CBA000050

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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CBA000051

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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CBA000052

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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CBA000053

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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CBA000054

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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CBA000055

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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CBA000056

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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CBA000057

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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CBA000058

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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CBA000059

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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CBA000060

ORDERS TO SHOW CAUSE

Motion Practice in Cook Countyurt's Law Divisionociation

Hon. Kathy M. FlanaganCircuit Court of Cook County

CBA000061

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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CBA000062

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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CBA000063

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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CBA000064

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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CBA000065

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

';6..

CBA000066

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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CBA000067

,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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CBA000068

Illinois Continuing Legal Education:Motions in Limine

January, 2010Judge Clare E. McWilliamsCook County Law DivisionAlex Banzhaf, Duke UniversityRoss Secler, Colgate University

Externs: 1

Preliminary Notes and Introduction to this Guide:

Motions in Limine are Motions generally made at the beginning of trial (althoughthey can be brought any time prior to trial and during trial) requesting the judge to rule onthe prohibition of certain evidence from being introduced at trial. Motions in Liminehave expanded to address not only admissibility of evidence, but limiting of evidence,barring of testimony and seeks to limit, restrict or expand upon attorney, party andwitness conduct. A Motion in Liminie prohibits jurors from being exposed topotentially damaging evidence. Even if evidence is stricken after it has been presented,particular pieces of evidence have the potential to compromise how the jury interprets thefacts in the case, thus creating unwarranted and irrevocable prejudice towards one partyor the other.2 3

The following is a reference guide for preparing and understanding Motions inLimine, specifically for civil cases. This guide is not a complete and should only serve asa tool to locate relevant information. Emphasis and information has been providedregarding the some most commonly presented issues. However, all information shouldbe verified and checked, both with the sources referenced and other sources to establishrelevancy to a given case. This guide has been compiled through the use actual Motionsin Limine from recent civil cases and is also in direct reference to:

“Lane, Scott D, Stephanie Hoit Lee, and David N. Finley. Illinois Motions in Limine.Litigation ONE (Thomson West); Cleveland, OH: 2006.”

All undefined page number and sectional references should be interpreted ashaving come from this source. Further, this source should be consulted for more detailedinformation and explanations.

1 All sections and categories take are used in reference to:“Lane, Scott D, Stephanie Hoit Lee, and David N. Finley. Illinois Motions in Limine. Litigation ONE (Thomson West);Cleveland, OH: 2006.”*Page numbers and other citations are herein reference to the above source unless otherwise stated.** For more detailed information and explanations, refer directly to the above source as indicated.2 Hill, Garret and Kathleen. Law Dictionary, “Motion in Liminie”. Law.com:http://dictionary.law.com/default2.asp?selected=1291&bold. Accessed: 1/4/20093 1-3

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2

I. Prejudicial Evidence

A. Motion to Exclude Prejudicial Evidence: 4 2:101 Although some evidence may be relevant, it can be barred if there is significant risk that the evidence will cause “unduly prejudice, confusion of the issues, or misleading of the jury” so long as its “probative value is substantially outweighed”.5 This is a general Motion that may be used either by itself or as precedent for more substantive Motions.

Case Law: 1. People v. Walker, 335 Ill.App.3d 102, 112-13 (2nd Dist. 2002) •

2. People v. Peete, 318 Ill.App.3d 961, 967-68 (4th Dist. 2001) •

3. Gossard v. Kalra, 291 Ill.App.3d 180, 182(4th Dist. 1997) •

4. Rusher v. Smith, 70 Ill.App.3d 889, 894 (5th Dist. 1979)•

5. People v. Boand, 362 Ill.App.3d 106, 124-26 (2ndDist. 2005)

6. Nelson v. Upadhyaya, 361 Ill.App.3d 415,422 23 (1st Dist. 2005)

B. Motion to Exclude Evidence As It Will Waste Time:6 2:102Evidence that threatens to consume undue amounts of time may be barred from evidence before the court.7

Case Law: 1. Trower v. Jones, 121 Ill.2d 211, 219 (1988)

2. Dillon v. Evanston Hospital, 199 Ill.2d 483, 494-96 (2002)

4 2-45 As defined in: Federal Rule of Evidence Rule 403 (Herein FRE 403)• Denotes particularly important and influential cases for Motions regarding prejudicial evidence in general6 2-77 See also: FRE 403

CBA000070

3

3. Kurrack v. American District Telegraph Co., 252 Ill.App.3d 885, 895-96 (1st Dist 1993)

4. Palumbo v. Kuiken, 201 Ill.App.3d 785, 791-92 (1st Dist. 1990)

C. Motion to Exclude Confusing or Misleading Evidence:8 2:103Evidence may be excluded if it presents a significant danger of confusing or misleading the jury on the issues.9

Case Law: 1. Hulman v. Evanston Hospital Corp., 259 Ill.App.3d 133, 147-48 (1st Dist. 1994)

2. People v. Bohn, 362 Ill.App.3d 485, 486-91

3. Chapman v. Hubbard Woods Motors, Inc., 351 Ill.App.3d 99, 110-11 (1st Dist 2004)

4. Bachman v. General Motors Corp., 332 Ill.App.3d 760 785-88

5. Hulman v. Evanston Hopstial Corp., 259 Ill.App.3d 760

6. Congregation of the Passion, Holy Cross Providence v. Touche Ross & Co., 224 Ill.App.3d 559, 578-79 (1st Dist. 1991)

D. Motion to Exclude Evidence Used to Create an EMotional Bias: 2:104 Evidence that intentionally creates unfair eMotional bias against a party from the

jury can be excluded10

a. Exclusion of Evidence Intended to Inflame Jurors’ EMotions11

Case Law: 1. People v. Liner, 356 Ill.App.3d 284. 296-98 (5th Dist. 2005)

2. Elder v. Finney, 25 Ill.App.3d 424, 427-28 (1st Dist. 1993)

3. People v. Ford, 113 Ill.App.3d 659, 662-63 (3rd Dist. 1983)

8 2-119 FRE 40310 FRE 40311 2-14

CBA000071

4

4. People v. Witted, 79 Ill.App.3d 156, 165 (1st Dist. 1979)

5. Hulsebus v. Russian, 118 Ill.App.2d 174, 180-81 (2nd Dist. 1969) •

6. People v. Lefler, 38 Ill.2d 216, 221-22 (1967)

b. Exclusion of Reference to Jurors’ Self Interest as Taxpayers andConsumers12

Case Law: 1. Department of Public Works and Buildings v. Sun Oil Co., 66 Ill.App.3d 64, 68 (5th Dist. 1978)

c. Exclusion of “Golden Rule” argument13

(Counsel asking jury to place themselves in position of one of the parties)

Case Law: 1. Brant v. Wabash Railroad Co., 31 Ill.App.2d 337, 339-40 (4th Dist. 1961)

2. Dotson v. Sears, Roebuck and Co.,157 Ill.App.3d 1036, 1042 (1st Dist. 1987)

E. Motion to Exclude or Limit Cumulative Evidence: 2:105 Exclusion of cumulative evidence based on court’s authority and

discretion to exclude prejudicial, irrelevant, and time-consuming evidence14

a. Exclusion of Cumulative Evidence15

Case Law: 1. People v. Hari, 218 Ill.2d 275 (2006)

2. Dillon v. Evanston Hospital, 199 Ill.2d 483, 495 (2002)

3. Kotvan v. Kirk, 321 Ill.App.3d 733, 748-749 (1st Dist. 2001)

4. Hunt v. Harrison, 303 Ill.App.3d 54, 57 (1st Dist. 1999)

b. Exclusion of Cumulative Articles, Letters, and Documents16

12 2-1513 (2-15)—(2-16)14 For further explanation and distinguishing factors see: Prior cited case law and FRE 40315 2-1916 2-19

CBA000072

5

Case Law: 1. Hulman v. Evanston Hospital Corp., 259 Ill.App.3d 133, 147-49 (1st Dist. 1994)

2. Northern Illinois Medical Center v. HomeState Bank of Crystal Lake, 136 Ill.App.3d 129, 152-53 (2nd Dist. 1985)

c. Exclusion of Cumulative Credentials17

Case Law: 1. O’Brien v. Meyer, 196 Ill.App.3d 457, 461-64 (1st Dist. 1989)

d. Number of Witnesses18

Case Law: 1. Dillon v. Evanston Hospital, 199 Ill.2d 483, 495-96 (2002)

2. Kotvan v. Kirk, 321 Ill.App.3 733, 748-49(1st Dist. 2001)

II. Irrelevant Evidence

A. Motion to Exclude Irrelevant Evidence: 3:101 Evidence presented at trial should relate to the relevant issues of the case and any evidence seen as irrelevant should be barred from court.19 This Motion also applies to many other, more substantive Motions and matters.

a. Exclusion of Irrelevant Evidence in General20

Case Law: 1. Spencer v. Wandolowski, 264 Ill.App.3d 611, 617 (1st Dist. 1994) •

2. People v. Monroe, 66 Ill.2d 317, 321-22 (1977) •

3. In re Kenneth D., 364 Ill.App.3d 797 (1st Dist. 1994)

4. Gaston v. Founders Ins. Co., 847, N.E.2d 523, 539-40 (1st Dist. 2006)

5. Noakes v. National R.R. Passenger Corp.,363 Ill.App.3d 851, 859-60 (1st Dist. 2006)

17 2-2018 (2-20)—(2-20.1)19 As defined in: FRE 40120 3-4

CBA000073

6

6. Nelson v. Upadhyaya, 361 Ill.App.3d 415,422-23 (1st Dist. 2005)

7. People v. Robert P., 354 Ill.App.3d 1051, 1058-1061 (3rd Dist. 2005)**

8. Mulloy v. American Eagle Airlines, Inc., 832 N.E.2d 205, 210 (1st Dist. 2005)

b. Outside Pleadings21

Case Law: 1. Gerwig v. Bruere, 181 Ill.App.3d 609, 614-15 (2nd Dist. 1989)

c. Speculative Evidence22

Case Law: 1. Noakes v. National R.R. Passenger Corp.,363 Ill.App.3d 851, 859-60 (1st Dist. 2006)

2. Foley v. Fletcher, 361 Ill.App.3d 39, 51 (1st Dist. 2005)

3. Krklus v. Stanley, 833 N.E.2d 952, 965-66 (1st Dist. 2005)

4. Perfection Corp. v. Lochinvar Corp., 349 Ill.App.3d 738, 745-46 (1st Dist. 2004)

5. Modelski v. Navistar International Transportation Corp., 302 Ill.App.3d 879, 885-86 (1st Dist. 1999)

6. Dept. of Transportation v. Buoy, 69 Ill.App.29, 37-39 (4th Dist. 1979)

B. Motion to Exclude Evidence of Matters Not in Controversy: 3:102 Evidence of “matters not in controversy” are irrelevant and should be excluded from trial.

Case Law: 1. Bullard v. Barnes, 112 Ill.App.3d 384, 392-94 (4th Dist. 1983)

2. People v. Lefler, 38 Ill.2d 216, 221-22 (1967)

III. Writing and Physical Evidence

A. Motion to Exclude Evidence Lacking Foundation: 4:101

* Multiple aspects of irrelevant evidence admission21 3-822 3-9

CBA000074

7

Any evidence that lacks foundation can be excluded. Proper demonstration of“the lack of actual foundational facts and the prejudice that will occur if the evidence ispresented to the jury” will be necessary.232425

Case Law: 1. Anderson v. Human Rights Commission, 314 Ill.App.3d 35, 42-43 (1st Dist. 2000)

B. Motion to Exclude Gruesome or Inflammatory Photographs 4:103

Case Law: 1. TITLE 118 Ill.App.2d 174, 180-81 (2nd

Dist. 1969

2. TITLE 38 Ill.2d 216, 221-22 (1967)

C. Motion to Exclude Prejudicial Film or Videotapes 4:104

Case Law: 1. TITLE 87 Ill.App.2d 88, 94-5 (2nd Dist. 1967)

IV. Character Evidence26

A. Motion to Exclude Evidence of Prior Felony Conviction27, 7:104(a)The exclusion of evidence of felony convictions if the evidence is unduly prejudicial or if other exemptions apply.28

Case Law: 1. People v. Medreno, 99 Ill.3d 449, 450-54 (3rd Dist. 1981)

2. Knowles v. Panopoulos, 66 Ill.2d 585, 587-91 (1977)

3. People v. Montgomery, 47 Ill.2d 510, 516-19 (1971)

23 See: FRE 403 and FRE 103(c) (for explanation on “Hearing of Jury”)24 4-325 See also: Black’s Law Dictionary, 6th Ed. 1990 in Lane, et al. (4-5)26 For further character evidence explanation see: FRE 406; Also defined: Black’s Law Dictionary (7th Editions, 1999)in Lane, et al. (7-3)27 7-2828 For admissibility rules see: Federal Rules of Evidence Rule 609(a) (to be balanced with FRE 403)

CBA000075

8

C. Motion to Exclude Character Evidence Used to Prove Conduct Evidence of a person’s character is often inadmissible as evidence when

used to try and prove that person’s conduct on a specific occasion.a. Crimes Evidence, Generally29 1:103(c)(3)(ii)

Case Law: 1. People v. Petitt, 245 Ill.App.3d 132, 139-41, 146-48 (2nd Dist.1993)

V. Witness Evidence

A. Motion to Exclude Improper Opinions: Opinions of a witness must be disclosed in a sufficient and timely form

pursuant to Supreme Court Rule 213. Failure to do so may result in certain opinions orwitnesses being barred.

a. Exclusion of Improperly Disclosed Opinion30 8:101(c)(1)(i) Case Law: 1. Bill Marek’s The Competitive Edge, Inc

v. Mickelson Group, Inc., 346 Ill.App.3d 996, 1006-09 (2nd Dist. 2004)

2. Chapman v. Hubbard Woods Motors, Inc., 351 Ill.App.3d 99, 108-10 (1st Dist. 2004)

3. Kim v. Mercedez-Benz, USA, 353 Ill.App.3d 444, 453-55 (1st Dist. 2004)

4. Hernandez v. Paschen Contractors Inc., 335 Ill.App.3d 936, 945-46 (1st Dist. 2002)

5. Adami v. Belmonte, JVB, 302 Ill.App.17, 21-24 (1st Dist. 1998)

b. Speculation or Conjecture31 8:101 (c)(8) Case Law: 1. (TITLE) 313 Ill.App.3d 326, 334-36 (4th

Dist. 2000)

2. (TITLE) 273 Ill.App.3d 780, 792 (1st Dist.1995)

B. Motion to Exclude Testimony of Unqualified Experts: This Motion prohibits expert testimony of a witness who lacks the expertise in a

certain field to render an opinion. For example, while an economist can testify as to

29 7-2230 8-831 8-14

CBA000076

9

economic damages, an opinion as to loss of guidance and counseling and loss of familyaccompaniment is outside the economist’s area of expertise.

Case Law: 1. Patch v. Glover, 248 Ill.App.3d 562, 566 (1st Dist. 1993)

2. Hubbard v. Sherman Hospital, 292 Ill.App.3d 148, 153-55 (2nd Dist. 1997)

3. People v. Owens, 155 Ill.App.3d 990, 998-99 (4th Dist. 1987)

C. Motion to Exclude Witness From Courtroom Prior to Testifying:

I. Motion to Exclude Hearsay Statements

Case Law: 1. TITLE 327 Ill.App.3d 1061, 1065 (2nd Dist. 2002)

VI. Trial Presentation

A. Motion to Prevent Improper Voir Dire1. This Motion prevents counsel from improperly questioning potential

and preconditioning potential jurors. For example, counsel is not allowed to ask a juror ifthey are willing to return a verdict of a specific dollar amount. 9:101

Case Law: 1. People v. Tenney, 329 Ill.App.3d 430, 439-41 (2nd Dist. 2002)2. People v. Dow, 240 Ill.App.3d 392, 396-99 (1st Dist. 1992)

B. Motion to Exclude Improper Arguments or Comments in Opening Statements Plaintiff Damages Accrued Through a Steam of Income 9:102

-: This Motion restricts the defendant and his attorneys theability to argue that a verdict of smaller monetary value could be invested to produce asteam of income for the plaintiff in the future. This argument is purely speculative andunfairly influences the jury.

Case Law: 1. Schaffner v. Chicago and N.W. Trans. Co. 129 Ill.2d 1, 541 N.E.2d 643(1989)

C. Motion to Preclude “Golden Rule Argument”

CBA000077

10

This Motion prohibits an attorney from asking the jury to “place themselves inthe shoes” of another person. Such reasoning, known commonly as the “Golden RuleArgument” is unfairly prejudicial. 9:107

Case Law: 1. Spray-Rite Service Crop v. Monsanto 684 F.2d 1226 (7th Cir. 1982)2. Klotz v. Sears Roebuck & Co., 267 F.3d 53 (7th Cir. 1959)

VII. Personal Injury Motions

A. Motion to Exclude Evidence of Collateral Source Payments:Based on the court’s authority to exclude irrelevant or prejudicial evidence,

information pertaining to payments under any medical insurance, health, accident ordisability benefits, made by or on the behalf of health maintenance organization may bebarred from being entered as evidence before the court.

Evidence of Collateral Source Payments in General32 10:191(c)(3)

Case Law: 1. Wilson v. Hoffman Group, Inc., 131 Ill.2d308, 546 N.E.2d 524 (1989)

2. First Midwest Trust Co., v. Rogers, 296 Ill.App.3d 416, 701 N.E.2d 1107 (1998)

3. Biehler v. White Metal Rolling, 30 Ill.App.3d 435, 333 N.E.2d 716 (1975)

4. Arthur v. Catour, 216 Ill.2d 72, 883 N.E.2d 847, 849-53 (2005)

5. Boden v. Crawford, 196 Ill.App.3d 71, 76(4th Dist. 1990)

6. Muranyi v. Turn Verein Frisch-Auf, 308 Ill.App.3d 213, 214-220 (2nd Dist. 1999)

B. Motion to Exclude Evidence of Insurance3310:1021.

Case Law: 1. Seldin v. Babenir 325 Ill.App.3d 1058 (1st Dist. 2001)2. Ruwisch v. Knoebel 233 Ill.App. 526, 1924 WL 3596 3

(4th Dist. 1924)

`3.

32 (10-4) – (10-5)33 10-11

CBA000078

11

C. Motion to Exclude Settlement Evidence: 10:103 Based on the court’s authority to exclude irrelevant or prejudicial

evidence, information regarding settlements, settlement negotiations, and/or voluntarydismissals by any of the parties to the action can be barred from evidence to the court.

a. Evidence regarding voluntary dismissal or settlement/settlementnegotiations between parties and former parties

Case Law: 1. Garcez v. Michel Ill.App.3d 346, 351-52 (1st Dist. 1996)2. Sawicki v. Kim MD 112 Ill.App.3d 641, 644-46 (2nd Dist. 1983)

D. Motion to Exclude Evidence of Other Accidents Evidence suggesting past accidents should not be admitted as evidence to

suggest negligence in the current casea. Prior Accident Used to Prove Negligence34 10:104 (c)(3)(iii)

Case Law: 1. Henderson v. Illinois Central Gulf Railroad Co., 114 Ill.App.3d 754, 757-760 (4th Dist.1983)

2. Herget Nat. Bank of Pekin v. Johnson, 21 Ill.App.3d 1024, 1026-28 (3rd Dist. 1974)

E. Motion to Exclude Evidence of Party’s Financial StatusThe exclusion of a party’s financial records from evidence on the

grounds that the records are irrelevant and/or unfairly prejudicial.35

a. Exclusion of Financial Status in General36 10:113(c)(3); b. Exclusion of poverty, or the pecuniary circumstances, of any of the parties

Case Law: 1. McElroy v. Force, 75 Ill. App.3d 441, 220N.E.2d 761 (1966)

2. Hedge v. Midwest Contrs. Equip. Co., 53 Ill.App.2d, 202 N.E.2d 869 (1964)

3. Lenz v. Julian, 276 Ill.App.3d 66, 74-75 (2nd Dist. 1995)

34 (10-23)—(10-24)35 See also: Federal Rule of Evidence 401 40336 10-104

CBA000079

12

4. Dupay v. New York Central Railroad Co.,110 Ill.App.2d 146, 154-55 (1st Dist. 1969)

Note: This Motion can be used in conjunction with many other Motionsunder Prejudicial Evidence, Irrelevant Evidence, and/or other PersonalInjury Motions

CBA000080

MOTIONS IN LIMINE AND DIRECTED VERDICTSCase Law Update (2007)

Judge Shai'on Johnson Coleman *

Chicago Bar AssociationMotion Practice in Cook County's Law Division

Motions in Limine/Motions to Bar

QUALIFICATIONS OF EXPERTNew trial granted where physician-witness was not board certified in medical oncology and herelied on oncologists for plaintiffs treatment; it was error for court to limit his testimony,because the deficiencies went to the weight of his opinion not his credibility. Ayala v.Murad,367 Il. App. 3d 591, 855 NE2d 261,305 Il.Dec. 370 (15t Dist. 2006).

A "Frye objection" (which tests scientific methodology not its conclusion) to an expert'stestimony was properly brought as a motion in linÚne especially because there is no case law tothe contrary. Agnew v. Shaw, 355 Il. App. 3d 981,823 NE2d 1046, 291 Il.Dec.460 (1't Dist.2005) citing Frye v. United ,)'tates, 54 App. D.C. 46,293 F. 1013 (D.C. Cir. 1923). Therefore,plaintiff was not denied a fair trial where her expert's "backwards extrapolation" testimony wasbarred because it was not a generally excepted methodology. The expert was allowed to testifyregarding other matters. Agnew, 355 Il. App. 3d 981.

ACCIDENT RECONSTRUCTIONDefendant's accident reconstruction expert's testimony was properly barred because theworkings of a steel bar are not beyond "the ken of the average juror", and while the expert wasqualified to analyze the accident based on scientific principles, his explanation of why theaccident could not have happened according to plaintiff's theory of the case and his version ofthe accident, was not "beyond the ken of the average juror". Kimble v. Earle M Jorgenson Co.,358 Il.App.3d 400,830 N.E.2d 814,294 Il.Dec.402 (1st Dist. 2005). In other words, theexpert's expertse was not demonstrated by his testimony because the average juror could havecome to his conclusions on their own.Diagram and narration created by defendant's employee after accident and in response to hissupervisor's request were properly admitted despite motion to bar them as "subsequent remedialmeasures". Despite the fact that the diagram was not made to scale and the employee did notwitness the accident these materials were business records under the exceptions to hearsay rues.Kimble, 358 Ill.AppJd 400

DEFAMATION AND AT-WILL EMPLOYMNTWhere the cause of action was defamation by a former employer, court did not abuse itsdiscretion by baring evidence of plaintiff's at-will employment because the fact that plaintiff

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Motions in Limine and Directed Verdicts (2007)

CBA000081

could have been discharged for any reason was not relevant to his defamation claim. Popko vContinental Casualty Co., 355 Il.App.3d 257,823 NE2d 184,291 Il.Dec. 174 (1 st Dist. 2005).

MATAL ASSETSIn a legal malpractice action arising out of marital dissolution representation, denial of motion inlimine to bar wife' drug use during the marriage, with respect to wife contributions to the maritalassets, was not error. Further, testimony that wife was not cooperative in trial preparation ofunderlying case was properly admitted for the limited purose of demonstrating why defensecounsel moved to extend the underlying case's trial date. Finally, dismissed counsel had a rightto testify about what actions it would have taken in advocating for plaintiff if they had not beendismissed, and such testimony would not have violated Sup. Ct. R. 213 for untimely disclosurebecause it did not consist of opinions and counsel did disclose that the attomey would testifyregarding their representation of plaintiff. Weisman v. Schiler, DuCanto and Fleck, Ltd., 856N.E.2d 1124, 2006 I1l.App.LEXIS 849,306 Il.Dec.29 (1stDist., Sept. 21 2006).

GRUESOME PHOTOSPreoperative photos of plaintiff's injured legs properly admitted despite motion to bar them,because they were probative and relevant to pain, suffering and how plaintiff was injured.Further, "gruesomeness alone is not enough to warrant exclusion." Kimble, 358ll.App.3d 400.

WAIVERIn medical malpractice case, plaintiff's motion was denied, but her failure to objectcontemporaneously when the evidence was introduced at trial, meant that she waived theargument that the trial court wrongfully failed to keep out evidence of Plaintiffs smoking ascontributory negligence. Krklus v. Stanley, 359 Ill.App.3d 471, 833 NE2d 952, 295ll.Dec. 746

(1st Dist. 2005) see also Spurgeon v. Mmz, 358 IlL. App. 3d 358,832 N.E.2d321, 295 Ill.Dec.170(Ist Dist. 2005). However, par does not have to repeatedly object to the same tye of evidencein order to preserve the objection for appeaL. Spyrka v. the County of Cook, 366 Ill.App.3d 156,851 N.E.2d 800, 303 ll.Dec. 613 (1st Dist. 2006) (new tral waranted where uponreconsideration the court denied motion to bar use oflate disclosed videotape, defendantsobjected during trial to the use of videotape, and although admitted as demonstrative evidence itpreconditioned the jury in favor of plaintiff while ignoring contrary evidence).

SANCTIONS FOR VIOLATIONSDismissal with prejudice was disproportonate (too harsh) and surrising for plaintiffs violationof a motion in limine that barred the use of certain documents at trial because they were nottimely disclosed. The subject document was first mentioned by the defense, but when plaintifftried to use the document to refresh the memory of his expert, defendant objected. Othersanctions including barring related witness testimony or a monetary penalty would have been asufficient penalty for the discovery violation. Gonzalez v. Nissan America, Inc., 2006 IlL. App.LEXIS 1101 (1st Dist. Dec. 4, 2006). (Ths decision is not yet final.l

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Motions in Lim ine and Directed Verdicts (2007)

CBA000082

Directed Verdicts

MEDICAL MALPRACTICE

Where medical malpractice defendant appeals the denial of the motion for directed verdict, trialcourt was correct in not granting motion on the basis of plaintiff's expert's lack of qualificationsbecause defendant did not object to the lack of qualifications until after the triaL. Wheredefendant challenged expert's causation testimony, appellate court found that expert citedsufficient basis for his opinion that denial of motion for directed verdict was not in error. Further,defendant's failure to contemporaneously object to plaintiff's closing argument analogy was nota basis to grant a directed verdict either, because the issue had been waived for failure to object.With respect to plaintiff's cross appeal of the denial of motion for directed verdict pursuant to735 lLCS 5/2-1202, plaintiff's failure to renew her motion for directed verdict on the issue ofcomparative fault in a post-trial motion, meant that she waived the issue. Moller v. Lipov, 856N.E.2d 664, 2006 Il.App.LEXIS 890, 305 Il. Dec. 859 (Ist Dist. 2006).

Where plaintiffs expeii failed to establish that defendant's deviation from the standard of care innot adequately informing a patient about his medical condition so that he could be adequatelydiagnosed and treated by a subsequent physician, was not the proximate cause of Plaintiff's notgetting a better result, the court was correct in granting defendant's motion for a directed verdictbased on a lack of evidence of proximate cause. Krivanec v. Abramowitz, 366 IlL. App. 3d 350,851 N.E.2d 849,303 ll.Dec. 662 (Ist Dist. 2006).

Directed verdict properly granted because standard of care for the City of Chicago's paramedicsis based on locality, therefore plaintiff's proposed expert who was only familiar with thestandard of care for Delray Beach, Florida was insufficient to establish defendant's standard ofcare. Ruiz v. City of Chicago, 366 111. App. 3d 947, 852 N.E.2d 424, 304 Il. Dec. 174 (I st Dist.2006).

TORT IMTY ACTDirected verdict properly granted on the issue of willful and wanton conduct in favor of policeoffcers where during pursuit, fugitive drove onto a sidewalk and hit a pedestrian. Emergencylights and sirens were on, officer slowed down at red traffic lights before proceeding, offcerdrove in the left lane so that he was more visible, and he did not exceed 30 to 35 mph duringpursuit. Directed verdict also not in error with respect to proximate cause where pursuing officercould not have anticipated that the fugitive would drive onto the sidewalk in an effort to escapecapture. Wade v. City C?fChicago, 364 Il. App. 3d 773, 847 N.E.2d 631,301 IlL. Dec. 621 (1 stDist. 2006).

*Compiled with the assistance of Diana Kakoma, Law Clerk

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Motions in Limine and Directcd Verdicts (2007)

CBA000083

IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOISCOUNTY DEPARTMENT, LAW DIVISION

BARBARA BROOKS and SANDY BROOKS,

Plaintiffs,

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No. 06 L 004242 (A)v.

ROBIN MALAK,

Defendants.

MOTIONS IN LIMINE

NOW COMES the Plaintiff and requests that this Court enter an Order barring any

defense reference to the following subjects in opening statement, examination of witnesses,

closing argument. or at any other time in front of the jury.

1. Evidence of a witness' religious beliefs or opinions is not admissible for the

purpose of impairing or enhancing his credibility. "(PJarticular traits of character aside from

lack of truth and veracity cannot be made the subject of inquiry for the purpose of impeaching a

witness, when evidence of such traits is not material to the issue." Starks v. Schlensky, 128 IlL.

App. 1,2 (2nd Dist. 1906). Similarly, references to race, color or nationality of any witness

should be barred.

2. The wealth of the Plaintiff or the poverty of the Defendant, or the pecuniary

circumstances of any of the parties, or that the Plaintiff has received public assistance. "rWJhen

only compensatory damages are recoverable, the financial condition of the parties is irrelevant

and often prejudiciaL." Rush v. Hamdy, 255 IlL. App. 3d 352, 362, 627 N.E.2d 1119, 1125 (4th

Dist. 1993); see also, Hedge v. lvlidtJlest Construction, 53 IlL. App. 2d 365 (1964); Ilinois

Central Railroad v. Slater, 129 IlL. 91,21 N.E. 575 (1889); Hickey v. CIA, 52 IlL. App. 2d 132,

CBA000084

139,201 N.E.2d 742, 746 (1st Dist. 1964).

3. That the parties or any witness has engaged in ilicit sexual relations or possesses

a questionable moral reputation. Chicago Ci(y Railroad Co. v. Uhter, 212 IlL. 174, 184, 72 N.E.

195. 199 (1904); "Collateral impeachment which impugns the morals of a party to the cause of

action cannot be countenanced," Schoolfieldv. Witkowski, 54 IlL. App. 2d ILL, 125,203 N.E.2d

460, 466 (1964).

4. That any paiiy or witness has undergone psychiatric treatment. Webb v. Quincy

('ity, 73 IlL. App. 2d 405, 408, 219 N .E.2d 165, I 67 (4th Dist. 1966).

5. The drinking habits, generally, of the Plaintiff or any witness. lliJiler v. CT Æ 3

IlL. App. 2d 223,121 N.E.2d 348 (1st Dist. 1954).

6. That the Plaintiff s were drinking at the time of this or prior to this incident,

because there is no opinion as to the intoxication of the Plaintiff being offered. Kitten v.

Stodden, 76 IlL. App. 2d 177,221 N.E.2d 511 (5th Dist. 1966).

7. That there have been collateral source payments of the Plaintiffs expenses, by

Meidcare or other insurance. Brumley v. Federal Barge Lines, Inc., 78 Il. App. 3d 799, 806,

396 N.E.2d 1333,1339,33 Il.Dec. 609, 615 (5th Dist. 1979).

8. That insurance disability payments have been made to the Plaintiff, Schmitt v.

CTA, 34111. App. 2d 67, 75, 179 N.E.2d 838, 842 (l st Dist. 1962). The collateral source rule

requires that "that evidence that plaintiff received payments while he was disabled, due to an

accident, in the form of workmen's compensation or disability insurance payments or gratuitous

payments, would not be admissible in a civil suit by plaintiff for damages." Wolfe v. Whipple,

112 IlL. App. 2d 255, 266, 251 N.E.2d 77, 82 (3rd Dist. 1969). That medical insurance, health or

accident benefits were paid, Biehler v. White Metal Rollng, 30 IlL App. 3d 435,443,333 N.E.2d

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716, 723 (3 rd Dist. i 975), or, absent an interest on the part of the employer, that workers'

compensation payments have been made to the Plaintiff Mokrzycki v. Olson Rug Company, IlL.

App.2d 117, 124, 170 N.E.2d 635, 638 (pt Dist. 1960).

9. The fact that the Plaintiff could be hospitalized or institutionalized in the future at

governmental expense or at no expense to the Plaintiff or that free medical or nursing services

were available to the Plaintiff Phelan v. Santell, 30 Il. App. 3d 657, 666, 334 N.E.2d 391,398

(3d Dist. 1975).

10. That the Plaintiff has received or is entitled or will receive Social Security

benefits its. Cargnino v. Smith, 17 Il. App. 3d 831,308 N.E.2d 853, 856 (5th Dist. 1973)

11. That the Plaintiff has had similar accidents as the one in issue, to show a

likelihood of Plaintiff to have accidents. Herget National Bank v. Johns'on. 21 Il. App. 3d 1024,

316 N.E.2d 191 (3rd Dist. 1974), or that the Defendant's attorney be barred from asking questions

of the Plaintiff concerning the existence of prior or subsequent accidents or incidents of any kind

which have not been connected by competent expert testimony to the specific injuries of the

Plaintiff in this case. "If only the event is established, as in the Caley case, it becomes irrelevant

in the absence of the connecting testimony and is prejudicial because of the innuendos to which

such evidence is susceptible." Simpson v. Johnson, 45 IlL. App. 3d 789, 795, 360 N.E.2d 144,

149 (3rd Dist. 1977), citing Caley v. lvfanicke, 29 IlL. App. 2d 323 (1961).

12. That the Defendant attorney be barred from asking questions of the Plaintiff on

cross examination, involving similar or dissimilar injuries from prior or subsequent accidents,

including Sandy Brooks fall at Fairplay that occurred in July 2004, unless there be a showing by

the Defendant outside the presence of the jury, that there will be connection between this line of

questioning and the Plaintiffs injuiy by competent medical testimony if defendant wishes to

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introduce of prior injury, whether to same part of body or not. f/o.vkin v. Estate C?f DeBoer, 192

IlL. 2d 49, 733 N.E.2d 1275,248 Ill.Dec. 277 (2000); Caliban v. Patel, 322 IlL. App. 3d 251 (3ld

Dist. 200 I) (reasoning of Voykin applies to subsequent injuries). Further, any undisclosed cross

examination of the Plaintiffs doctor or other witness on prior injuries of the Plaintiff that have

not been established or connected by the Defendant to the Plaintiffs present injuries should be

barred. IL S. Ct. Rule 213.

13. That the Defendant be baiTed from arguing that any photographs of the vehicles

evidence that the Plaintiffs did not sustain an injury. DiCon5i'ola v. Bowman, 342 IlL. App. 3d

~30' (I sl D' . Joe)") iSt.,.. _) ),

14. The circumstances under which the attorney for the Plaintiff was employed or

retained, or the fees or the contingent .contract under which the attorney has been retained.

B011m1an v. Ilinois Cent. R. Co., 9 Il. App. 2d 182,222-3, 132 N.E.2d 558 (1 sl Dist. 1956). The

jury should not be informed that part of the award will go for the expenses of litigation, such as

costs and attorney fees. Chicago & A. R. Co. v, Vipond, 212 IlL. 199, 205-6, 72 N .E. 22, 25

(1904).

15. That the recovery of the Plaintiff is not subject to federal income taxes. In

personal injury suit, incident of taxation is not proper factor for jury's consideration in awarding

damages, whether imparted by oral argument or written instruction. Hall v. Chicago & N W

Ry. ('0., 5 IlL. 2d l35, 125 N.E.2d 77 (1955). The jury should not be informed that an award is

not subject to income tax. Klaivonn v.lvlitchell, 105 IlL. 2d 450, 475 N.E.2d 857, 86 IlL Dec. 478

(1985).

16. That the Defendant not be allowed to argue in closing argument, "that the

decedent has asked for a greater amount of money than he actually expects be awarded." Kallclij'

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v. Lee, 22 IlL App. 3d 496,504,317 N.E.2d 704, 710 (1 st Dist. 1974). Defendant's violation of

motion in limine, arguing that plaintiff was asking for more than they expected to be awarded,

required reversaL. Cancio v. White., 297 IlL App. 3d 422, 434, 697 N.E.2d 749, 757, 232 IlL

Dec. 7, 15 ( 151 Dist. 1998).

17. That the Defendant's attorney use any phrases to describe the plaintiff which hold the

plaintiff up to ridicule. Raucci v. Connelly, 340 Il. App. 280, 91 N .E.2d 735 (l51 Dist. 1950).

18. That any verdict against the defendants wil be costing the jurors their own

money. Discussion ofthe financial ability of the defendant to pay for a verdict constitutes

. t." i . R. .'h' fl. I, ')~~IIi A ""d""~ì 6ì7N.E')d111C) '4.hD.... 100"")'preJuOlcia error. . us 1. am(y, ,,)) . pp. _) .))~, ~ .."- , (t 1St. '7.),

Panelle v. Chicago Transit Authority, 31 IlL. 2d 560, 202 N.E.2d 484 (1964) . Likewise, it is

improper to inform the jury, either directly or indirectly, that the defendant is insured against

liability on a judgment that might be entered against him. Rush, 255 Il. App. 3d at 361, 627

N.E.2d at 1125; Kavanaugh v. Parret, 379 IlL 273, 277 (1942). Also, an uninsured defendant

may not inform the jury of his lack of insurance and financially vulnerable position. Rush, 255

IlL. App. 3d at 361, 627 N.E.2d at 1125; Imparato v. Rooney, 95 IlL App. 3d 11, 17,419 N.E.2d

620, 624 (1st Dist. 1981). Evidence of insurance, or lack of it, is excluded because it-is

Ì1Televant to the issue of negligence, yet might influence a jury in determining in which party's

favor to render a verdict, as well as the size of that verdict. Rush at 361, 627 N.E.2d at 1125.

Defense counsel cannot argue that the case "it is unfortunately the type of thing that places a

burden upon us alL. It is the type of thing that causes the increase in the high cost ofliving."

Lukich v. Angeli, 31 IlL App. 2d 20,30,175 N.E.2d 796, 801 (pt Dist. 1961). It is improper for

defense counsel to state the amount sought by plaintiff was asking the jury to take away

defendants money and property. Schultz v. Siddens, 191 II App. 3d 622, 628-9, 548 N.E. 2d 87,

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90, 138 IlL. Dec. 857,861.

19. Defendant cannot not argue that prior settlement adequately compensated the

plaintiffs. American National Bank v. Peoples Gas Light and Coke Co., 42 IlL. App. 2d 163, 184,

191 N.E.2d 628, 639 (lt Dist. 1963).

20. Defense cannot argue that interest earned from verdict would accommodate the

plaintiff for life and leave the principal intact. American National Bank v. Peoples Gas Light and

Coke Co., 42 IlL. App. 2d 163, 184, 191 N.E.2d 628, 639 (pt Dist. 1963).

21. Defense counsel may not argue by vouching for witnesses. Koonce ex reI.

Koonce v. Pacilo. 307 IlL. App. 3d 449,460-61,718 N.E.2d 628, 637-38, 241 IlL. Dec. 57, 66-

67 (pt Dist. 1999) (Defense "( c Jounsel's improper argument vouching for the Pacilios honesty,

improper summarization of the evidence, and asking the jurors to put themselves in the

defendants' place also may have served to influence the outcome of the triaL. Thus, reversible

error occurred.").

22. Counsel may not address an individual juror by name, except during voir dire.

Péople v. Davis, 46 IlL. 2d 554, 560, 264 N .E.2d 140, 144 (1970).

23. Defendant only disclosed one witness, the Defendant. No other witness should be

allowed to testify on Defendant's behalf. IL Supreme Court Rule 213(t).

24. That all Motions in Limine filed by defense counsel apply to defense counsel as

welL.

WI-IEREFORE, Plaintifl respectfully request this Court to enter an Order directing the

Defendants, through their attorneys and witnesses, individually, not to mention, refer to or

interrogate concerning, or voluntarily answer or attempt to convey before the jury, at any time

during these proceedings, in any manner, either directly or indirectly, the subject matters as

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stated above, without first informing the Court and obtaining permission of the COUli, outside

the presence and hearing of the jury; and fUliher, to instruct the Defendant, through their

attorneys and witnesses, individually, not to make any reference or inference to the fact that this

Motion has been filed, argued or ruled upon by this Court, and further, that each respective

counsel be instructed to warn and caution each and every witness appearing in their phase of this

litigation to strictly comply with this rule of this Court.

Respectfully Submitted,

By: Mark Szaflarski

BRUSTIN & LUNDBLAD, LTD.100 West Monroe, Suite 500Chicago, IL 60603(312) 263-1250Atty. No. 21626

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CBA000090

Code #90112 JPIIam #33660-5/10STATE OF ILLINOIS )

) SSCOUNTY OF COOK )

IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOISCOUNTY DEPARTMENT. LAW DIVISION

BARBARA BROOKS andSANDY BROOKS,

Plaintiffs,

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NO. 06 L 004242vs.

ROBIN MALAK,Defendant.

MOTION IN LIMINE

NOW COMES the Defendant, ROBIN MALAK, by and through Àttomeys, BEVERLY &

PAUSE, and for his Motion in Limine with regard to the following matters, states as follows:

I. This Cowi should bar any witnesses who will testify in the Plaintiff's case in chief

who allegedly have knowledge of the occurence alleged in the Plaintifi1s Complaint who were not

previously disclosed pursuant to discovery.

'ì Any medical opinions of the treaters of the Plaintiff as said opinions were not

sufficiently disclosed under Rule 213(f) & (g). Department of Transportation v. Crull, 294lll.App.3d 531 (1998).

3. Any mention by the Plaintiff or other witnesses as to any lay opinion about theplaintiffs medical condition, the diagnosis or medical opinions rendered by a treating physician

conceming the alleged injuries as such testimony can only be presented by a licensed and qualified

medical doctor. Lundell v. Citrano, 129 Il. App.3d 390 (1984).

4. ¡-iy testimony regarding any unpaid medical bills should be barred unless it has

been affinnatively established through competent medical testimony that said bills are fair and

reasonable and said bils are related to the injury claimed. DML Inc. v. Country Mutual Insurance

Companv, 82 lll.App.3d 113 (1980) and Chapman v. Powers, 30 lll.App.3d 44 (1975).

CBA000091

5. Any testimony regarding any fonn of permanent injury or future treatment whereplaintiff has not received treatment suffciently close in time to establish a proper foundation.

TelTacina v. Castelli, 80 IlI.App.3d 475 (1980).

6. Any testimony regarding the costs of future expenses peiiaining to future treatmentwhere plaintiff has not received treatment suftìciently close in time to establish a proper foundation.

TelTacina v. Castelli, 80 Ill.App.3d 475 (1980).

7. Any testimony concerning the prognosis of the Plaintiff where plaintiff has notreceived treatment suffciently close in time to establish a proper foundation. Henricks v. Nvberg,

41 Il.App.3d 25 (1976).

8. Any and all opinion witnesses not previously disclosed should be bared pursuant to

Supreme Court Rule 213.

9. Any mention of any medical treatment plaintiff has received that has not beendisclosed in Answers to Interrogatories, response to document requests, or deposition.

10. Any mention of the value of the Plaintiff vehicle immediately before and after the

alleged occurrence and any mention of an estimate of repair ofthe plaintiff vehicle should be baiTed

where the plaintiff has never had this vehicle repaired and plaintiff has never declared a property

damage expert. Adams v. Ford Motor Companv, 103 Ill.App.2d 356 361-62 (1968).

Ii. Any mention as to the cost of the repairs to the plaintiff vehicle as property damage

is not being claimed as an element of damages and thus cost of repair is irrelevant.

12. Any mention as to the cost of repairs of defendant's vehicle since there is no claim

by defendant for property damage.

13. Any mention as to cost ofrepairs to the vehicles as indicating to which the plaintiff

was injured where plaintiff has not declared an expert to explain any said cOlTelation.

14. Any mention as to any insurance should be barred fì'om testimony at triaL.

15. l1iis cour should order all witnesses testifying in this cause, other than parties, to

CBA000092

remain outside of the courroom until called to testify.

16. Any reference to any type of intoxication of Defendant.

17. Any reference to substance of conversations between non party witnesses to theoccurrence, police officers and emergency medical personneL. Capone v. LaIT's 66, 236 Ill.App.3d

660 (1992).

18. Any mention or reference to other accidents involving the Defendant as suchevidence is irrelevant immaterial and more prejudicial than probative.

19. Any mention of traffic tickets received and/or the fact that no tickets were issued as

such evidence is irrelevant and immaterial to the issues in this case.

20. The mention of the wealth or poveiiy of the Plaintiffs or Defendants or thepecuniary circumstances of any of the parties. Hedge v. Midwest Construction, 202 N.E.2d 869;

Ilinois Central Railroad Companv v. Slater, 129 Ill.91, and Hickev v. CTA, 52 Il.App.2d 132

(1964).

21. Any testimony of evidence as to lost wages or loss of income unless Plaintiffsproduce, prior to the commencement of trial, copies of federal income tax returns and W-2 forms as

requested in this Defendant's notice to produce, pursuant to the Ilinois Supreme Court Rule 237.

Hawkins v. Wiggins, 92 Ill.App.3d 278 (1980); Polk v. Cao, 279 IlLApp.3d 101 (1996).

22. Any opinions of any witness as to fault or responsibility for the occurrence inquestion, any such opinions being barred as conclusions and impermissible invasions of the

province of the jury. Allen v. Yancv, 57 Il.App.2d 50 (1965); Champion v. Knasiak, 25 IlLApp.3d

192 (1st Dist. 1974): Ballard v. Jones, 21 Il.AppJd 496 (1974).

23. Any mention by plaintiffs counsel in opening statement, closing argument orrebuttal that the Defendant failed to call a rebuttal doctor, failed to have the Plaintiff examined or

failed in any other way to provide rebuttal testimony or evidence, as such argument is an improper

attempt to shift the burden in this case to the Defendant. The Plaintiffs has the burden of proof

throughout the case and any attempt to infer otherwise is improper. Moran v. Erickson, No 1-96-

4210 (1998); Alton vs. Kitt, 103 lll.App.3d 387 (1982); Sawicki vs. Kim, 112 IlL.App.3d 641

(1983); Wetherrel vs. Matson, 52 Ill.App.3d 314 (1977).

CBA000093

24. Any testimony by the Plaintiff or any other lay witness regarding any conclusions

regarding disability or inability to engage in gainful employment including, but not limited to any

opinions as to any causal relation between the accident and any medical care and/or treatment

incured after that date with respect to the Plaintìff as such opinions, apart from those of qualified

medical practitioners are beyond the competence of a lay person. Abrams v. The City of Mattoon,

148 IlL.App.3d 657 (1986).

25. Any claim or arguent by plaintiffs counsel that the case is being tried because,?defendant has failed to accept responsibility for his actions.

WHEREFORE, the Defendant, ROBIN MALAK, respectfully prays that this Honorable

Court enter an Order granting the relief sought in this Motion and in addition, instruct Plaintiff

tlu'ough counsel not to make any reference or inference that this Motion has been filed, argued, or

ruled upon and to warn and to caution each and every witness appearing on behalf of the Plaintiff in

tlùs cause to comply strictly with the ruling of this Court and for such relief as this Honorable Court

deems just and proper.

Respectfully Submitted,

Ix) Under penalties as provided by lawpursuant to 735 ILCS 5/1-109 (1993)I certify that the statements setforth herein are true and correct.

Beverly & PauseAttorneys at Law, #9011230 North LaSalle St., Suite 1740Chicago, Ilinois 60602

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Survey of Cases Regarding Illinois Supreme Court Rule 216 Requests to Admit

By: Diane Joan Larsen

Judge of the Circuit Court of Cook County

January, 2010

Welcome to this Chicago Bar Association Seminar on Civil Motion Practice,

especially because Illinois Supreme Court Rule 216 is “strictly enforced and a party that

fails to respond in compliance with the rule’s requirements does so at its own peril.”

Tires N’ Tracks, Inc. v. Dominic Fiordirosa Construction Co., 331 Ill. App. 3d 87 (1st

Dist. 2002). So, let’s review those requirements:

I. Text of Rule 216

(a) Request for Admission of Fact. A party may serve on any other party a written request for the admission by the latter of the truth of any specified relevant fact set forth in the request.

(b) Request for Admission of Genuineness of Document. A party may

serve on any other party a written request for admission of the genuineness of any relevant documents described in the request. Copies of the documents shall be served with the request unless copies have already been furnished.

(c) Admission in the Absence of Denial. Each of the matters of fact and the

genuineness of each document of which admission is requested is admitted unless, within 28 days after service thereof, the party to whom the request is directed serves upon the party requesting the admission either (1) a sworn statement denying specifically the matters of which admission is requested or setting forth in detail the reasons why he cannot truthfully admit or deny those matters or (2) written objections on the ground that some or all of the requested admissions are privileged or irrelevant or that the request is otherwise improper in whole or in part. If written objections to a part of the request are made, the remainder of the request shall be answered within the period designated in the request. A denial shall fairly meet the substance of the requested admission. If good faith requires that a party deny only a part, or requires qualification, of a matter of which an admission is requested, he shall specify so much of it as is true and deny only the

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remainder. Any objection to a request or to an answer shall be heard by the court upon prompt notice and motion of the party making the request.

(d) Public Records. If any public records are to be used as evidence, the

party intending to use them may prepare a copy of them insofar as they are to be used, and may seasonably present the copy to the adverse party by notice in writing, and the copy shall thereupon be admissible in evidence as admitted facts in the case if otherwise admissible, except insofar as its inaccuracy is pointed out under oath by the adverse party in an affidavit filed and served within 14 days after service of the notice.

(e) Effect of Admission. Any admission made by a party pursuant to request

under this rule is for the purpose of the pending action and any action commenced pursuant to the authority of section 13-217 of the Code of Civil Procedure (Ill.Rev.Stat.1983, ch. 110, par. 13-217) only. It does not constitute an admission by him for any other purpose and may not be used against him in any other proceeding.

II. Purpose of Rule 216

The recent Illinois Supreme Court decision in Vision Point of Sale, Inc. V. Haas,

226 Ill. 2d 334 (2007), emphasized that requests to admit are part of the discovery

process, noting that Illinois Supreme Court Rule 201(a) was amended after the Court’s

decision in Bright v. Dicke, 166 Ill. 2d 204 (1995) to include requests to admit within the

definition of “discovery methods”. Vision Point, 226 Ill. 2d at 345. Prior to Vision

Point, various appellate courts in Illinois had indicated that the purpose of a request to

admit was not to discover facts, but rather to establish some of the material facts in a case

without the necessity of formal proof at trial. See, e.g., Szczeblewski v. Gossett, 342 Ill.

App. 3d 344 (5th Dist. 2003). As a practitioner’s note here, in the past many requests to

admit were served after the close of discovery, having been viewed as distinct from the

discovery process. With the Vision Point case clarifying that requests to admit are part of

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the discovery process, counsel should be mindful of discovery cut-off dates when serving

requests to admit.

In any event, whether characterized as part of the discovery process or not, the

request to admit procedure can assist a party in determining what facts remain disputed

and, accordingly, what areas require further discovery. Ellis v. American Family Mut. Ins.

Co., 322 Ill. App. 3d 1006 (4th Dist. 2001).

III. Standard of Decision / Appellate Review

Two points need to be made here. First, the issue of whether a request for an

admission is a proper one and, hence, involves a fact and not a conclusion of law is

determined as a matter of law; there is no discretion-- something is either a fact or a

conclusion of law. Therefore, the appellate court exercises de novo review on this issue.

See Troyan v. Reyes, 367 Ill. App. 3d 729 (3rd Dist. 2006); Banco Popular v. Beneficial

Systems, Inc., 335 Ill. App. 3d 196 (1st Dist. 2002).

Secondly, the issue of whether to allow responses to be served beyond the 28 day

deadline is discretionary with the trial court. In Vision Point, the Illinois Supreme Court

instructed that Bright v. Dicke, 162 Ill. 2d 204 (1995), did not hold that there is a blanket

rule that mistake, inadvertance, or attorney neglect on the part of the moving party can

never form the basis of a good-cause argument that a Rule 183 time extension should be

granted. See Vision Point, 226 Ill. 2d at 351. However, in determining whether good

cause exists under Rule 183 for the grant of an extension of time to remedy an

unintentional noncompliance with a procedural requirement, the circuit court may not

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take into consideration facts and circumstances of record that go beyond the reason for

noncompliance. See Vision Point, 226 Ill. 2d at 353. The appellate court exercises an

abuse of discretion standard of review on this issue. Hammond v. SBC Communications,

Inc., 365 Ill. App. 3d 879 (1st Dist. 2006).

IV. What Constitutes a Request for an Admission of a Fact as Opposed to a Conclusion of Law

A party may not include legal conclusions in his or her request to admit. P.R.S.

Intern. Inc. v. Shred Pax Corp., 184 Ill. 2d 224 (1998). **** This is a must-read case on

this topic. ****

Questions in defendant’s request to admit, asking plaintiff to admit in personal

injury action that defendant did not operate a motor vehicle so that plaintiff was injured,

did not fail to keep a proper lookout, operated a motor vehicle at a rate of speed that was

reasonable, proper and prudent, did not fail to stop or turn or reduce speed in order to

avoid a collision with plaintiff’s vehicle, and did not fail to make proper use of brakes in

time to avoid causing a collision, were questions of fact, for purposes of determining

whether plaintiff’s failure to respond to questions resulted in judicial admissions.

Robertson v. Sky Chefs, Inc., 344 Ill. App. 3d 196 (1st Dist. 2003).

A defendant’s conduct as the cause of the occurrence, the necessity and

reasonableness of the medical services a plaintiff received to treat his or her injuries, and

the reasonable cost of the medical services received are all facts that are proper subjects

of a Rule 216 request and in answering a request to admit a party must avail himself or

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herself of the knowledge of his or her attorney and insurance company investigators or

representatives. Szczeblewski v. Gossett, 342 Ill. App. 3d 344 (5th Dist. 2003).

Request that asked purchaser of real property to admit that assignee of judgment

creditor did not have constructive knowledge of purchaser’s interest in property called for

conclusion of law, but the request that asked purchaser of real estate to admit that the

assignee of judgment creditor did not have actual knowledge of purchaser’s interest in

property called for an admission relating to a question of fact. Banco Popular v.

Beneficial Systems, Inc., 335 Ill. App. 3d 196 (1st Dist. 2002).

Whether an insured under an automobile policy performed every condition under

the policy involved a legal conclusion, rather than a factual question. Walker v. Valor Ins.

Co., 314 Ill. App. 3d 55 (1st Dist. 2000).

A request to admit that defendant’s failure to observe a red light and resulting

collision caused plaintiffs to suffer bodily injuries requiring over $9,900 in medical

expenses, in addition to property damage, was a proper request for an admission of a fact;

the finder of fact had to make an additional, albeit small, analytical step to reach the legal

conclusion of negligence. Hubeny v. Chairse, 305 Ill. App. 3d 1038 (2nd Dist. 1999).

V. Practice Points

A. The verification provided in the Illinois Code of Civil Procedure at section 1-

109 (735 ILCS 5/1-109) constitutes the very “sworn statement” that Rule 216 requires.

To the extent that Moy v. Ng, 341 Ill. App. 3d 984, 990 (1st Dist. 2003), holds otherwise,

it is overruled. See Vision Point, 226 Ill. 2d at 356. However, always have the client sign

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the response to the request to admit. Signature by the party’s attorney does not comply.

Moy v. Ng, 341 Ill. App. 3d 984 (1st Dist. 2003). See also Coleman v. Akpakpan, 402 Ill.

App. 3d 822 (1st Dist. 2010) (affirming trial court order deeming facts admitted contained

in plaintiff’s request to admit facts where defendants’ attorney simply filed the response

under his own signature and without defendants’ verification); Brookbank v. Olson, 389

Ill. App. 3d 683 (1st Dist. 2010) (answering certified question in the negative as to

whether trial court has discretion to allow an attorney to verify a response denying a

request to admit where the client cannot be located).

B. Rule 3.1(c) of the Circuit Court of Cook County, which requires filing of

requests to admit and responses thereto, conflicts with both Rule 216 and Bright. A

violation of this filing requirement cannot form the basis for striking a party’s response to

a Rule 216 request to admit. See Vision Point, 226 Ill. 2d at 358.

C. Even with the Vision Point decision, it is still helpful for practitioners to review

Bright v. Dicke, 166 Ill. 2d 204 (1995), for a discussion of what constitutes good cause for

late filing of a response.

1. Late responses may be allowed due to circumstances beyond the control

of the litigant, such as death or severe disability of counsel, or where facts sought to be

admitted concern the central issue of the case and requesting party is unable to show

prejudice as a result of the late filing. Thomas v. Village of Westchester, 132 Ill. App. 3d

190 (1st Dist. 1985).

CBA000123

7

2. Attorney and law firm failed to establish good cause for their failure to

respond or request an extension of time to serve their responses to requests to admit;

personnel changes at law firm did not establish good cause, attorney and law firm

provided no valid explanation for their failure to file a motion for an extension of time

within the 28 day time limit, and the fact that plaintiff would not be prejudiced by

attorney and law firm’s late filing did not constitute an independent basis for granting an

extension. Larson v. O’Donnell, 361 Ill. App. 3d 388 (1st Dist. 2005).

3. Plaintiff’s untimely response to requests to admit was barred in his action

against hospital for violation of AIDS confidentiality act where subject’s attorney asserted

he had been out of town and without a secretary at time of service. Glasco v. Marony,

347 Ill. App. 3d 1069 (5th Dist. 2004).

4. Confusion created by airport’s discovery request constituted good cause

for granting airplane owner’s extension of time to answer requests to admit in owner’s

negligence action; discovery haphazardly mixed requests to admit with interrogatories

without using labels or headings. Atlantic Coast Airlines Holdings v. Bloomington-

Normal Airport Authority, 357 Ill. App. 3d 929 (4th Dist. 2005). Requests to admit

should always be served separately.

D. Admissions are only allowed to be used against the party upon whom the

request to admit has been filed. Banco Popular v. Beneficial Systems, Inc., 335 Ill. App.

3d 196 (1st Dist. 2002).

CBA000124

8

E. Responses to requests to admit cannot be used by a respondent to a motion for

summary judgment to create a genuine issue of material fact because “answers to requests

to admit facts are mere pleadings.” Steiner Electric Company v. Nuline Technologies,

Inc., 364 Ill. App. 3d 876, 882 (1st Dist. 2006).

F. The sufficiency of a response to a request to admit is discussed at length in

Oelze v. Score Sports Venture, 401 Ill. App. 3d 110 (1st Dist. 2010), where the appellate

court instructed that “in answering a request to admit, a party is not just supposed to

make a formulaic assertion” that it made a reasonable inquiry and that information

known or readily obtainable by the party is insufficient to enable the party to admit or

deny. Instead “the responding party must explain why its resources are lacking to such an

the (sic) extent that it cannot answer the requests.” Id. at 126.

G. Finally, Illinois Supreme Court Rule 219 permits a court to impose sanctions

for the denial of a request to admit unless the court finds that there were good reasons

for the denial. See, e.g., New Randolph Halsted Currency Exchange, Inc. v. Regent Title

Insurance Agency, LLC, 2010 Ill. App. LEXIS 1249 (1st Dist. November 24, 2010)

(affirming trial court decision to deny sanctions for one response and grant sanctions for

another response). However, bear in mind that expenses pursuant to Illinois Supreme

Court Rule 219(b) for having to prove-up a fact which was the subject of a request to

admit that was refused will be denied where the matters are not “of substantial

importance” to the case. See First National Bank of LaGrange v. Lowrey, 375 Ill. App.

3d 181, 219 (1st Dist. 2007). Cf. Christopher J. McGrath v. Stephen F. Botsford, 2010 Ill.

CBA000125

9

App. LEXIS 1185 (2nd Dist. November 5, 2010) (reversing trial court decision to deny

sanctions where trial court erred in imposing an additional “intent to obstruct”

requirement and remanding case for trial court to reconsider the motion and apply the

proper legal analysis).

CBA000126

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'-The~B-ia-ck Line Trial Call systemin-the-Circuit Court of- Cook County's Law Division: A change born of necessity

By Hon. Willam D. Maddux Presfdlng Judge, Law DMs/on, Clrcuft CDurtof Cok CDunt

R €no\'med inventor Charles F. 'l thing tht ha broght progress. Ind, I dere of skepticism than the legal proes

Kettering always said that th world Ketng would be har prese to find a, . sian. With that in mind, long beore the. hates change, ye change is th only gr that view change with any grter new Black li~ Trial Call syem wa initi-

~~~"=:'~-'-'~~""~.~~,.:.~'~:='.,~~~~~=. ~~ "'~..""~~""'' ~~-~'''~~~~'r~:, .___ ~""-"~..... """~"à-" ~~,.=_, ated, a great del of time wa spent con- to tral on their initially assign tral dates. proression of their caSe(s).tempfating wheter an oprational change Espeally disappinting wa that there One in thepol, very little motion

wa necessary, and if w, how it shold be was essentially no bacIdog on th Corts prace shold be exed since discov-implemted. .' par T nal judges waited at th redy er shold be coplete. The only exce¡r

To bein, the Black Line Trial Call is wh were th ready case? iion WCld be for motions tht direcynot a new concept by any means-t wa It is in this mileu tht the conce of a impact a ca's ability to continue prothe dominant paradigm in Cook County new, more flexible and efficent Black gresing toward the Black Line, whichsome 40 years ago. Thoe who can recll line Trial Call was bom. Ouine with must be hed by th Presiding Judge orthat sysem wil undubtedly have fond speificit in General Administative his deigne In thes circumstances, if itmemories of a strcture frught with short- Order 03-1, the new sysem oprates in isdetenine that a cae's proges

comings. For example, on any given day. the foUowing manne At the initial ca towards th Black line should be delaye,

as many as 400 cas could appear wait- management confernæ (90 days aft fi- the Priding Judge or his designe maying for tral assignment. One wold arrive ing), th motion calendar judge wil cafe- exercise one of tv options: (l) refor IDe call, waif for hours on end, and gorize tli ca as either qCategory 1" or seencing IDe ca to a more distntwhen all was said and done only a fort- PCafegor 2," ba on the esmated time poition within IDe pool, or (2) retumingnate few would be assigned out for triaL. nee to complete discover. Categ 1 the ca back to the motion judge for a

This was furter compunde by the fact ca ar thse that can completely finish period of up to six monUls. Parties shouldthat only a handful of judges were avail-. with all discover within 18 month from knw that neitlr of these options will be

able at the time. It was, by any measure, a the date of fiing. Ca demanding more grnted as a matter of cours. Go causemodel of ineffcienc. . extensive discover wil be deignated wil have to be sho in every ca; pro

Fas-forarding some years, by the Category 2 and wil have 28 month flOm crasnatin wil not be condoned.time I beme Presiding Judge of the law th date of fiing to complete all discv- In certain limited circumstnces, par-

Division, I was faced with an entirely dif- ery. If, for some rea, it apprs that a ties may still appear before the Presidingferent legallàndscape. The Black line of case onginally designated Categry 1 is Judge and sek a set trial date. The par-old was long gone, jettisoned ye.ars earlier more complex than initially conteplat- tie should esblish a mutually agreein favor of a new, more qeffdent' trial ed, the motion judge may re-tegrize able "on or abut date" for trial and set acall system. For cas not randomly IDe ca to Category 2, but this can only status conference before the Preiding,assigned to an individual calendar judge be done within the firs 18 months from Judge 30 days prior. The sole purpse of(who would preside over th matter for all the date offiing. the status conference wil be to set a firmpurp, including trial) case manage- Ca will then enter the Black line trial date no later than 30 days out. Byment was set before one of the Master Poo in one of two ways. The preer this time, a!l discovery should be com-Calendar motion judges. A ca would manner is when th partes have coplet- plete and the parties should be fully pre-remain before the motion judge until dis- ed all discery beore the ca reches it pared for triaL. Barring dire circum- .

covery was complete or the passing of maturity date. In this situation, th motion stances, the Court wil not entertin

approximately two yers, at which point it judge wil simply relea th ca into th motions that potpne trial or seek to set

would automatically be trnsfered to th po. Alternatively, for ca tht have no a date beyond 30 days fròm the final sta-

Presiding Judge's Trial Assignment Call. be relea by thir moti judge, ~ tus conference. Accordingly, partiesThically, by th time a case computer wil ins th ca into th po should not view the option of setting

reache th assignmet call mo discov- automtically wh th allotted discve firrn trial dates lightly.er shuld have already be complet, time for th ca trnsire, redless of In th Íínal analysis, it is hop arleaving only th tak of assigning a trial discery status. exed that the ne Black line Trial Calldate. However, given the currnt pace of As caes enter the pol, they will be will stline litigati in the Circuit

the discover proeshich is be envi- given the next available seuence num- Cort of Cok Contys law Division andsioned as a herd of turtles stmpeing ber and begin to travel upwards towrd eslish th so of "firm flexibilit that isthrough penut buter--is was rarely th the Black Line. Once a case appears depetely ne in thes time of eter-

ca. Thus, with the pasage of time, what above th Black !-ne, the parties are to nal discve. Since we all share th co

was originally a trl assignment call slow- apper for immediate trial aSsignment. moo gol of relving dispes exitius-ly mohe into a tral continuance call, Neeless to sayi ii is imperative that Iy, I am cofidet that th change will be

with only a fraction of ca actlly going counsel pay very dose attention to the welcoe and suesL.

* Bencl & Bar, June 2004, Copied with the permission of the lIinois Siate BaT

CBA000139

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CBA000140

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CBA000141

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CBA000142

NOTICE

J-ION, \VILUAM D, MADDUX PRESIDING JUDGE OF THE LA W DIVJSrON,

ANNOUNCES:

BEGfNJNG MONDA Y FEBRUARY 23, 2004, THE ClnCAGO QAIL Y LA \ÝBULLETfN, 'rHE CLERK Of THE CIRCUIT COURT OF COOK COUNTYWEBSITE AND THE CLERK'S OFFICE COMPUTER DOCKET WILLPROVIDE A LISTING OF THOSE CASES CURRNTLY IN THE BLACKLINE POOL FOR TR1AL ASSIGNMENT THESE LISTS \VILL BE POSTEDAND UPDATED ON A DAIL Y BASIS,

THE LISTING OF CASES POSTED IN THE LA W BULLETIN WILL REFLECTTHE FIRST 300 CASES BELOW THE BLACK LINE BEGINNING i'v1ARCH 22,2004, THE LA \V BULLETIN, AS WELL AS THE CLERK'S OFFICE WEBSITEAND COJ\IPUTER DOCKET, \VILL ADDITIONALLY LIST THOSE CASESPLACED ABOVE THEBLACK LINE FOR IM/vIEDIATE TRJAL ASSIGNMENT

THE LISTINC OF CASES POSTED ON THE CLERK'S OFFICE \VEBSITE CANBE ACCESSED AT WJ.Q:í/W\V'\\'CooKcoiintvclerkofcollr10rg// AND WILL INCLUDEALL THECASES TN THE POOL, .ABOVE AND BELOW THE BLACK LINE.

A COMPLETE LlSTfNG OF CASES IN THE BLACK LINE POOL CAN ALSO BEACCESSED ON THE CLERK'S OFFICE COl'v1PUTER DOCKET BY UTILIZINGLA '\\' DIVISION TRANSACTION LDBI . THIS TRANSACTION WILL ALSOALLOW 'rHE USER TO DETERMINE V/HETHER A SPECIFIC CASE IS IN THEBLACK LINE POOL, AND IF SO, \VHERE iN THE POOL THE CASE isSEQUENCED SIMPLY BY PLUGGING IN THE CASE NUMBER.

COMPUTER TERMINALS ARE AVAILABLE FOR GENERAL USE IN ROOM SOLOF THE RICHARD J. DALEY CENTER.

PLEASE REMEMBER, THE BLACK UNE TRIAL CALL WILL BEGINMONDA Y, J\11ARCH 22, 2004. AT THAT POfNT, ALL CASES LISTED ABOVETHE BLACK LINE ARE EXPECTED TO BE READY FOR IMMEDIATE TRiAL

FOR FURTHER INFORMATION REGARDING THE BLACK LINE,PLEASE REFER TO LA W DIVISION GENERAL ADI'v11NJSTRA TIVE

ORDER 03~ j.

CBA000143

otice

Judge William D. Maddux, Presiding Judge of the Law Divisionannounces that;

Beginning Monday, June 21,2004 a new Law Division computertransaction will be implemented that wil enable interested parties todetermine a specific cases category designation, the number of times'

, , a case has been removed from the Black Line and the DATE OFAUTOMATIC RELEASE INTO THE BLACK LINE POOL

This information may be obtained by accessing the Clerk'sOffice computer docket utilzing Law Division transaction LDBR onany of the Clerk's Offce public access terminals located in Room 801of the Richard J. Daley Center.

In the near future there will be an additional notice publisheddetailng the availability of the above information ofJ-line at the Clerk'sOffice Website.

CBA000144

STATE OF ILLINOIS )

) SSCOUNTY OF COOK )

IN THE CIRCUIT COURT OF COOK COUNTYLAW DIVISION

GENERA ADMINISTRATIV ORDER 03-1BIJACKLINE TRI CALL

Effective March 20, 2004, all cases on the Jury and Non-Jury Trial Assignment

Calls will be governed by the Black Line Trial calL. *(please note that the

categorization of cases win begin on January 27, 2003, on an Master Calendar

Motion cases up for the first time.)

i. i Categorization of Cases (As amended April Ji, 2004, pursuant to General

Administrative Order 04-2.)

a. Each Master Calendar Motion Judge shall categorize each case appearing

on the initial case management call (90 days from filing) with a numeric

, category destination:

Category i: Cases that can: be completely finished with ALL discovery

within 18 months from date of filing. *

Category 2: Cases that can be completely finished with ALL discovery

within 28 months from date of filing.

*Please note that the change in category designation applies only tothe following: (1) newly categorized cases; (2) those cases aireadycategorized under Law Division General Administrative Order 03-1th,at have atno time entered the Black Line Pool of cases prior toApril 12, 2004.

b. Once a case has been categorized, the Master Calendar Motion Judge wil

monitor discovery with the intent of completing discovery in the amount

of time allotted byits category.

c. Cases originally given a Category i designation may be re-categorized to

a Category 2 IF the assigned motion Judge determines that information

provided after the original categoriation justifies the case receiving

additional time to complete discovery. Re-categorization must be done

prior to the case reaching its discovery matuty date.

CBA000145

d. (As amended January 17, 2006, pursuant to General Administrative Order 06-1.)

Upon completion of ALL discovery, the assigned motion Judge wil enter

a code that wil "RELEASE" the case into the pool of cases that are

traveling up towards the Black Line for setting of date certain trial

dates.

e. Cases that DO NOT complete ALL discovery within the time allotted by

its category and are NOT released by the motion Judge wiI be selected

a'utomatically by the computer, after the designated discovery completion

deadline, to enter the pool of cases traveling up towards the Black Line.

1.2 Progression of Cases

a. (As amended January 17, 2006, pursuant to General A dniInIstratIve Order 06-1.) As

cases enter the Black Line Trial Call Pool, they win be given the next

available sequence number and wil begin to travel up towards the Black

Line for setting of date certain trial dates. The progression towards the

Black Line will be impacted by the disposition of cases that precede the

case in question. These dispositions can include the dismissal of the case,

. transfer of a case out of the division, placement of a case on a stay

calendar, or a determination that the case needs to be placed back in

sequence thereby allowing additional time before reaching the Black Line

Trial Call.

1.3 Transferred Cases

a. Cases that are transferred into the Law Division shall be identified and

placed on the calf;ndar "M" call which wil be heard daily at 10:30 a.m. in

Room 2005. These cases shall be screened by the Presiding Judge, or his

designee, to determine the appropriate placement of the case based on the

posture ofthe case as it is when transferred into the Law Division.

i.4 Tracking the Progression of a Case

a. (As amended Jmiuary 17, 2006, pursuant to GeneralAdminisative Order 06-1.) A

sequential list of Black Line cases wil be posted on the Circuit Cour

Clerk's web site. This wil allow attorneys and litigantr ~- ..Mlr ..1,",

CBA000146

progression of a selected case as it proceeds toward the Black Line for

settng of date certain trial dates.

b. A sequential list of about 300 Black Line cases wil be updated and

published daily in the Chicago Law Bulletin.

c. (As amended January 17, 2006, pursuant to GeneralAdministrative Order 06-1.) A

sequential list of cases that wil appear above the Black Line for setting

of date certain trial dates wil be published in the Chicago Daily Law

Blllletin and on the Circuit Court Clerk's web site the cour day prior to

the case appearing above the Black Line.

d. (As amended January 17, 2006,pursua¡lt to General Administrative Order 06-1.)

The Presiding Judge, or his designee, wil select the next group of cases in

numeric sequence that wil be placed above the Black Line for settng of

date certain trial dates.

1.5 Motion Practice (as animded February 7, 2005 pursuant to Law Division General

Administrative Order 05-1)

a. Motion practice for cases that have entered the Black Line Trial

Assignment Pool shall remain before the originally assigned Master

Calendar Motion Judge who shall hear and complete noticed motions

prior to the case being placed above the Black Line. The only exception

wil be for a motion that wil directly impact a case's ability to cOntinue

progressing towards the Black Line, which must be heard by the

Presiding Judge, or his designee, only on the day the case appears

above the Black Line.

b. Motions to advance cases for Trial Assignment shall be brought before

the assigned Master Calendar Motion Judge who may, if appropriate,

expedite discovery and release the case in question into the Black Line

pool when discovery is completed.

c. Motions to delay the progress of cases traveling up towards the Black

Line (motions to continue) shall no lon2:er be noticed and spindled for

CBA000147

Calendar MI. These motions shall be noticed and presented only on the

day the case appears above the Black Line.

(i) If the Presiding Judge or his designee agree that a case's

progress toward the Black Line should be delayed, the Judge

may place a case back sequentially by a specific number of

cases. (Example: If a case cunently has a sequence number

of 50 cases below the Black Line and the Presiding Judge, or

his designee, determines that a case should be given additional

time before reaching the Black Line, the case may be set back

x#(300) cases, thus becoming the 350th case below the Black

Line. )

(ii) lfthe Presiding Judge, or his designee, agree that a case should

be removed from the Black Line Pool and retued to the

assigned Motion Calendar for completion of discovery, the

selected case wil automatically return to the Black Line Pool

six (6) months from the date ofretum to the assigned Motion

Calendar. The assigned,motion Judge may "release" the case.

into the Black Line Pool prior to the six (6) month automatic

release date if discovery is complete.

d. Motions for Date Certain Trial Dates

(i) Motions for Date Certain Trial Dates shall be noticed and

presented on the day a case appears above the Black Line.

Date Certain Trial Dates shall be routinely given, provided the

parties have shown due dilgence in preparing the case in

question for tral.

(ii) Date Certain Trial Dates will generally be set fora date within

30 days from the date the case appears above the Black Line.

(iii) For cases that would be unable to be ready for tral within 30

days of appearing above the Black Line, a tral status MAY be

set approximately 30 days before the requested trial date to

confirm the availabilty of ALL paries on the date requested.

(iv) Motions to Continue Date Certin Trial Dates shall be noticed

and spindled in Room 801 on Motion Calendar MI, which wi;

be heard daily at 10:30 a.m. in Courtoom 2005.

CBA000148

** Please note that Date Certain Trial Dates wil NOT

routinely be continued.

(v) Motions to Continue Date Certain Trial Dates that cannot be

noticed and spindled for hearing on Motion Calendar MI prior

to the trial date may present an emergency motion to continue

the trial date by noticing the motion for 10:30 a;m. in

Couroom 2005. The part presenting the motion should

approach the bench at the conclusion of the regular Ml motion

call and ask the judge presiding over the call to entertain the

Emergency Motion to Continue Trial Date. These motions wil

be heard at the discretion of the Judge handling the calL.

** Once again please note that Date Certain Trial Dates wil

NOT routinely be continued.

IT is HEREBY ORDERED that this Order is effective January 17,2003,

and wil be spread upon the records of this court.

Dated at Chicago, Ilinois this 16th day of Januar, 2003

ENTER:WILIAM D. MADDUXPresiding Judge___,_.,__,_ "'"," "

La\v Division' J d W'W M ddU g8 ,I ¡am a ux~;

, mN; I 6' 200

Circuit' Court - 1559

CBA000149

STATE OF ILLINOIS )

) SSCOUNTY OF COOK )

IN THE CIRCUIT COURT OF COOK COUNTYLAW DIVISION

GENERAL ADMINISTRATIVE ORDER 05-1BLACK LINE TRIAL CALL MOTION PRACTICE AMNDMENT

Effective Februar 7,2005, General Administrative Order 03-1, Section 1.5 (a)

and l.5( c) shaH be amended as foHows and a new section, labeled i .5( d) shaH be added

to govern all Master Calendar Motion cases pending in the Law Division:

1.5 Motion Practice

a. Motion practice for cases that have entered the Black Line Trial

Assignent Pool shall remain before the originally assigned Master

Calendar Motion Judge who shan hear and complete noticed motions

prior to the case being placed above the Black Line. The only exception

wil be for a motion that wil directly impact a case's ability to continue

progressing towards the Black Line, which must be heard by the

Presiding Judge, or his designee, onlv on the day the case appears

above the Black Line.

b. Motions to advance cases for Trial Assignent shall be brought before

the assigned Master Calendar Motion Judge who may, if appropriate,

expedite discovery and release the case in question into the Black Line

pool when discovery is completed.

c. Motions to delay the progress of cases traveling up towards the Black

Line (motions to continue) shall no longer be noticed and spindled for

Calendar MI. These motions shall be noticed and presented only on the

day the case appears above tbe Black Line.

(i) lfthe Presiding Judge or his designee agree that a case's

progrèss toward the Black Line should be delayed, the Judge

may place a case back sequentially by a specific number of

CBA000150

cases. (Example: If a case currently has a sequence number

of 50 cases below the Black Line and the Presiding Judge, or

his designee, detem1ines that a case should be given additional

time before reaching the Black Line, the case may be set back

x#(300) cases, thus becoming the 350th case below the Black

Line. )

(ii) lithe Presiding Judge, or his designee, agree that a case should

be removed from the Black Line Pool and retured to the

assigned Motion Calendar for completion of discovery, the

selected case will automatically return to the Black Line Pool

six (6) months from the date of return to the assigned Motion

Calendar. The assigned motion Judge may "release" the case

into the Black Line Pool prior to the six (6) month automatic

release date if discovery is complete.

d. Motions for Date Certain Trial Dates

(i) Motions for Date Certain Trial Dates shall be noticed and

presented on the day a case appears above the Black Line.

Date Certain Trial Dates shall be routinely given, provided the

pares have shown due diligence in preparng the case in

question for triaL.

(ii) Date Certain Trial Dates wil generally be set for a date within

30 days from the date the case appears above the Black Line.

(iii) For cases that would be unable to be ready for trial within 30

days of appearng above the Black Line, a trial status MAY be

set approximately 30 days before the requested trial date to

confirm the availability of ALL pares on the date requested.

'(iv) Motions to Continue Date Certain Trial Dates shall be noticed

and spindled in Room 801 on Motion Calendar MI, which wil

be heard daily at 10:00 a.m. in Courtroom 2005.

** Please note that Date Certain Trial Dates wil NOT

routinely be continued.

(v) Motions to Continue Date Certain Trial Dates that canot be

noticed and spindled for hearng on Motion Calendar MI prior

2

CBA000151

to the trial date may present an emergency motion to continue

the trial date by noticing the motion for 10:00 a.m. in

Courtroom 2005. The party presenting the motion should

approach the bench at the conclusion of the regular MJ motion

call and ask the judge presiding over the call to entertain the

Emergency Motiòn to Continue Trial Date. These motions wil

be heard at the discretion of the Judge handling the calL.

** Once again please note that Date Certain Trial Dates wil

NOT routinely be continued. '

IT is HEREBY ORDERED that this amends Section 1.5(a) and (c) only, and

adds Section 1.5( d), and that all other provisions of General Administrative Order 03-1

sha11 remain in fun force and effect. rniis Order is effective February 7,2005, and wil be

spread upon the records of this court.

Dated at Chicago, l1inois, this 24th day of Januar, 2005

,jAN 24 20Qij

~lRCUrr COURT ø jSfS)

føiL ?lWILLIA D. MADUXPresiding JudgeLaw Division

JUDGEW1llU\ MADDUXENTER:

3

CBA000152

STATE OF JLIJNOIS )

) SSCOUNTY OF COOK )

IN THE CIRCUIT COURT OF COOK COUNYLAW DIVISION

GENE ADMJSTRTIV ORDER 06-1BLACK LIN TR CALL

IMDIATE TRI ASSIGNMNT AMNDlVNT

. Effective Janua 17,2006, General Admistrative Order 03-1, Section U (d),

1.2 (a), 1.4 (a), (c) and Cd) shall be amended as follows: .

Al references to cases appearing abQve the black line for trial assignent or

imediate trial assignent, shall be ~mendèd as fòllows: cases a,bove the black lme.

shall,be appearing for setting of date certàIn trial dates.

Paries wil NOT be expected to be ready for immediate trial assignment,

unless an parties agree to and are ready for triaL.

Section 1.4 (d) shal be additionally amended by removing Section '1.4 (d),

subsections (i), (H), aIAd (ii). '

IT is HEREBY ORDERED that ths amends Section 1.1 (d), 1.2 Ca), 1.4 Ca.), (6). .and (d), and tht all other provisions of General Admnistrative Ordèr 03-1 shall remain

in fu force and effect. Ths Order I.s effectIve Janua 17,2006, and wil be spread upon

the recor~ of this cour.

. Dated at Chicago, Ilinoís, this 6th day of Janua; 2006

JUDGE WIUIAMÔ; MADÐUX.1559

JAN G 6 2006 ;

vL;;¡r :

DOROTHY BROWN .CLERK OF THE CIRCUIT COURT

OF COOK COUNTY. ItDEPUTY ClERK

CBA000153

STATE OF ILLINOIS )

) SSCOUNTY OF COOK )

IN THE CIRCUIT COURT OF COOK COUNLAW DIVISION

General Administrative Order 91-4Random Assignent of Cases

Cases on the Jury and Non-Jury Trial Assignment Calls when

deemed ready shall be assigned to a trial jUdge by random

. electronic process except as provided in paragraph 1.4 phereafter 9 Such assignment shall be made as hereinafterprovided.

1.1 Determinatiòn of Available Trial JUdgès

a. The Presiding Judge of the Law Division or any

judge he or she designates to sit as the'

Assignment Judge shall determine which judges of

the .trial section of the. Law Division are

available for trial assignment 9 Cases ready' fortriál shall be randomly assigned to such jUdges in

. accordance with section 1. 20f this order 9

1. 2 Assignment of Cases Ready for Trial

a. The names of all jUdges available for trial shall

be entered into the computer immediately upon the

determination . that they are available. At thedirection of the Assignment Judge, case assignment

shall be conducted in o~en court' by random

electronic process.' When a, case is '. ready fortrial, as determined by the Assignent Judge, the

computer operator shall enter the names of the'

CBA000154

parties and the case numer into the electrohic

data processing terminal located in Courtroom

2005. The computer then will randomly assign thecase to an available judge.

b. The case numer, names of parties and the name of

the trial judge assigned shall be announced and

shall be printed in triplicate immediately after

the assignment is accomplished. The originalshall be placed in the court file. A copy shall

be retained in the assignment room. The other

copy shall be provided to the Assignment Judge"

Case assignment information shall be retained in

the data, memory banks of the electronic data

processing equipment"

c. Corrections in data entries

(i) Technical corrections in data entries may be

made by the person assigned to operate the

Law Division assignment terminal in CourtroQm

2005 only after compliance with the following

procedures:

a" The operator shall fill out the printed

ucorrections form" 'providing theincorrect and proposed correct entry,

b. The operator shall sign the form,

c" The' Assignment Judge shall certify

by his or her signature the accuracy of

the information contained in the

corrections form.

( ii ) The corrected entry may then be made.

CBA000155

(iii) All information regarding a correction

including the incorrect and correct entries

shall be retained in the data memory banks of

the electronic data processing equipment.

1.3 Change of Venue

a. Whenever a judge assigned to the Law Division

grants a change of venue or recuses himself orherself p the case shall be transferred to thePresiding Judge or Assignment Judge wh9 shall

order reassignment of the case by random

electronic process.

(i) The electronic data processing equipment shall

automatically exclude the name of any trial

judge who has disqualified himself or herself

pursuant to a motion for change of venue or

recusal.

( ii) Procedures for assignment pursuant to á changeof venue shall be the same as' set forth in

section 1. 2 of this Order.

1.4 Manual Assignment of Cases by the Presiding Judge

a. Notwithstanding the aforementioned provisions of

this Orcìer p the presiding' Judge may enterassignent orders without reference to the

electronic random assignent system in cases which

require intensive judicial supervision and

management such as mass tort" commercial airplane

crash, eXplosion, multiparty or other unusual

situations which necessitate extensive pretrial

CBA000156

acti vi ty or extended trial time. Such Ii tigation

may be assigned to one judge for all purposes

including trial. Such assignment may be made at

an early stage in the litigation upon motion of a

party with proper notice or upon the court's own

motion. This exception shall be exercised on avery limited basis as the interests of justice may

require.

b. Whenever the computer is not functioning for

reasons beyond the control of the court y theAssignment Judge may manually assign cases for

immediate trial while computer assignment is

unavailable.

c. Assignments pursuant to this section shall be

by draft order which shall state the reason that

the assignent was made wi thout use of the

electronic random assignment system. All such'

assignment orders shall be maintained by the Clerk

of the Circuit Court in one location available for

public review as well as in the court file.

IT is HEREBY ORDERD that this Order is effective May 15,

1991 and will be spread upon the records of thi

Dated at Chicago, Illinois this 14th day

Dud P.1r w\Ø

CBA000157

IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOISCOUNTY DEPARTMENT, LAW DIVISION

)))

)V ) No.

))))

)

ORDER

This cause COOODg before the court and this court having determined that this case wil

require IDWìlsive judicial supervision and case management, extensive pretrial activity and is likely

to require extended trial time;

IT is HEREBY ORDERED that pursuant to Section 1.4 (a) of General Admiistrative

Order 91~4, this case is assigned to Judge

il courtroom for all purposes, including supervision of discovery,

heármg of any and all motions, settmg of trial and triaL. (4882 - )

This mamiàl assignment was made fO'r the following reasons:

Name:Att. No:

Att. For:

Address:City:Telephone:

ENTER:

JUDGE

I

CLERK OF THE 4mCUIT COURT OF COOK COUNTY

CBA000158

NOTICE

ROUTINE MOTION CALL

COURTROOM 2005

JUDGE WILLIAM D. MADDUX PRESIDING JUDGE OF

THE LA \V DIVISION ANNOUNCES:

EFFEC'TIVE SEPTEMBER 13,2004, TIlE ROUTINE

MOTION CALL, NORMALLY HEARD FROM 1 :30 - i :45

P.M. IN COURTROOM 2005, WILL BE HEARD FROM

11:30 - 11:45 A.M~ THE CALL WILL CONTINUE TO BE

I-IEARD IN COURTROOM 2005.

CBA000159

STATE OF IU.JNOIS )) SS

COUNTY OF COOK )

IN THE CIRCUlT COURT OF COOK COUNTY, JLLINOISLA W DJVJSJON

-GENERA ADMJNISTRA TIVE ORDER (lJ-3.PROTECTIVE ORDE'RS UNDER HI.PAA

Effective immedialely, pursuant 10 Ihe passage of Ihe Heallh Insurance PoJiabiliiy and

Accountabilily AcI.of i 996 (HIT AA) (see Pub. L lO4- J 9J J io Slat 1 936), the following

procedure is mslÍtuled:

A New Cases

J.) Authorization 10 obLlin medic;l records shall be supplied on or before

Ihe iniiial cJSe'J1aD3gemenl conference, or

2.) 1n 3JJ mailers where ihe pasl, presenl or fiitme medical condition of aparty is at issue, an order J eqiiiring pJOducIion of the medical recordsofih;il p;ir1y should be entered at the iJúlial case managementconference, Ths order miist aileast contain protective languJgcJequmng:

L MediC31 records shall be used solely for litiga1Ìon.

jJ, MediC31 records shall be either destroyed or returned 10 theprovider althe end of the litigaiion.

B. Pending Litigation

i.) Authorization for medical records shaH be supplied upon request and

orders requiring production of medical records shaH contain theproleciive language specified ;ibove in section 2(i and ii).

JT is BEREBY ORDERED iliat this Order is effective May 14, 2003, and will be spread

JUDGE WllUAM MADDUXupon the records ofthjs court,

. .,. it. t1tY 1 t ZGü3Dated;)1 Chicago, JIinois this J4 òay ofM3Y, 2003. ..'

ENTE. \t~~~9Presiding JudgeLiw Division

CBA000160

STATE OF ILLINOIS )

) 55COUNTY OF COOK )

IN THE CIRCUIT COURT OF COOK COUNTY, ILLJNOISLA W DlVlSJON

GENERAL ADM1NlSTRATiVE ORDER 03-4PROTECTlYE ORDERS UNDER HlPAA

Effective immedi3teJy, all motions for entry of Qualified PJOteciive Orders,pnrsuant to the provisions of the Health Jnsurance Portability and Accountability Act of

J 996 (HIP;'\j\) (see Pub L J 04- 191 J J 0 SI3t 1936), shaH be filed and presented as

"Hoiitine 1\.1oti(ll1s," with plOpcr notice, in Room 2005, as well 3S on all motion and

indiviÔu3l (3lend:ir oils

All motions and orders for HIPPA Qualified Proleciive Orders must be

specific:iljy J:befed ::nd cont3lr a specific reference to the HJPPA statute. Additionally,

each QmiJified Pwfectjve' Order must contain the following language:

J'vlediol records shaJJ be iised solely for liiigation, andMeJicaJ records sh3JJ be eiiher destroyed or returned to theproyider at theend of ihe li¡ig3tion

Any objections to the miry of HlPP A Qualified Prolective Orders shall be

submitted in 3ccord3nce \.vith the routine motion rules and/Of standing orders of motion

judges and calendar judges,

IT is HEREBY ORDERED ihal this Order is effective November 10, 2003, and

wiJJ be spread upon the records of ¡his court,

Dated 31 Chicago, JJhnois ihis 1 O!h day of November, 2003.

ENTER:

~MDsaWJllW;¡ MADDUX

NO'! J 0 ZÜU3

ClRCUll COURr "1553

WILLlAJ\,j D. MADDUXPresiding JudgeLaw Division

CBA000161

FINAL PROCEDURES CONCERNING SETTLEMENT OFMINORS' AND DISABLED PERSONS'

PERSONAL INJURY AND WRONGFUL DEATH CASES&

SAMPLE ORDERS

March, 2007TO: ALL JUDGES OF THE LAW AND PROBATE DIVISIONS,

AND MUNICIP AL DEPARTMENT

FROM: HENRY A. BUDZINSKI, PRESIDING JUDGE, PROBATE DIVISION

WILLIAM D. MADDUX, PRESIDING JUDGE, LAW DIVISION

Eo KENNETH WRIGHT, PRESIDING JUDGE, FIRST MUNICIPAL DISTRICT

This memorandum, outlining procedures to be followed in handling minors' and disabled

persons' personal injury cases and actions brought under the Wrongful Death Act, supersedes all

prior memoranda relating to these procedures.

I. INTRODUCTION.

Pursuant to Cook County Circuit Court Rules 6.4 and 6.5, the judges of the Law Division

and Municipal Departent hearing a minor's or disabled person's personal injury action, an

action brought under the Wrongful Death Act, or an action which survives a plaintiffs death,

shall rule on the fairness and reasonableness ofa proposed settlement, fix the attorneys' fees and

expenses attibutable to the litigation, adjudicate liens, find the degree of dependency where

appropriate and in wrongful death cases, and determine the net amount distributable to those

persons entitled. Such matters should not be referred to the Probate Division.

Once the Law or Municipal judge makes these determinations, the Probate Division is

responsible for the appointment of guardians or other representatives, setting and approval of

bonds, and the administration of the estate in cases where the amount involved requires

administration.

H. REQUIREMENTS.

Á. Submission of Settlement Petition and Proposed Order of Distribution.

Any attorney seeking approval of a settlement in an action involving: (1) a minor's or

disabled person's personal injury case; (2) an action brought under the Wrongful Death Act; or

1 CBA000162

(3) an action which survives a plaintiffs death shall, in a written form, submit a petition and

proposed order of distribution to the judge presiding over the matter at the time of settlement.

B. Fair and Reasonable.

The judge reviewing the aforementioned petition and order of distribution must make a

finding that the settlement is "fair and reasonable." Such a determination shall be based upon the

totality of the known facts. Factors that are considered include, but are not limited to: (1) the

severity of the injury; (2) the diffculty in proving liability on the part of the defendant(s); (3)

whether the case was settled pursuant to arbitration, mediation or pre-trial proceedings; and (4)

in wrongful death cases, the alleged level ofthe defendant's culpability may also be considered.

Recitation of Known Facts in Petition: In order to make a finding that the settlement is

"fair and reasonable," the Petition must include a brief recitation of the case's known facts.

Fair and Reasonable Language in Order: The order of distribution must contain the

following language: "The settlement amount is fair and reasonable."

C. Proceedings Transferred to Probate for Estate Administration.

Amount distributable $10,000.00 or more: In any action in which the net amount

distributable (or the amount remaining after fees, expenses, and liens have been deducted from

the total settlement amount) to a minor or disabled person is $10,000.00 or more, a proceeding

must be instituted in the Probate Division in the county where the minor or disabled person

resides. In such instances, the order of distribution must contain the following language:

"The settlement amount approved herein shall be paid only to a guardianappointed by the probate division where the minor or disabled person residesand this order shall be effective only after the entry in the probate division orcircuit court of an order approving the bond or other security required toadminister the settlement and distribution provided for in this order."

The order shaH not contain language which appoints a guardian, designates a depository

or purports to waive a bond. Further, the order shall not direct the execution of releases by the

parent, next friend or guardian. Said language would allow settlement without bond and without

reference to the Probate Division.

Amount distributable less than $1 0,000.00: If the minor or disabled person is to

receive an amount less than $10,000.00, the settling judge has the discretion to order that

all or part of the funds be: 1) distributed to and controlled by the parent, next friend, or

guardian for the sole benefit of the minor or disabled person at some point prior to

2 CBA000163

him/her reaching the age of majority or the disability being removed, and/or 2)

distributed to the parent, next friend, or guardian to be placed in an interest-bearing bank

account and held therein until the minor reaches majority or the disability is removed. In

any case, the order of distribution must indicate who the funds wil be distributed to, how

they wil be used and protected (bank account, money market account, etc), whether said

account wil be taxed, and who wil be administering the account.

1. Actions brought by a Personal Representative.

In wrongful death actions brought by a personal representative appointed by the Probate

Division, the distributable amount is administered in the Probate Division.

Upon the settlement or disposition of a wrongful death case, prior to distribution of the

proceeds, the Law Division or other judge disposing of the wrongful death case shall consider

appointing a guardian ad litem to represent the interests of any minor or disabled person solely

for the purpose of distribution. The necessity for appointment of a guardian ad litem usually

arises in circumstances in which the proposed distribution allocates a disproportionately low

amount to the minor. The fees of the guardian ad lÎtem shall be paid out of the gross estate rather

than the distributive share of the minor. The order approving the settlement or entering the

judgment in such actions shall provide that the amount distributable, based on dependency, shall

be accounted for and administered in the Probate Division. Upon the entry of the order, the

representative shall file a petition in the Probate Division requesting the entry of an order

authorizing the representative to accept the distributable amount and fixing and approving the

bond or other security required pursuant to the settlement or judgment. A copy of the order

entered in Probate must be attached to the petition.

2. Actions brought by a Special Administrator.

In wrongful death actions and in actions fied pursuant to 735 ILCS 5/13-209 by a special

administrator appointed in the division where the action is pending, the order entering judgment

or approving the settlement shall provide that the cour in which the cause is heard shall

distribute the amount recovered in any such action. However, if proceeds in excess of $10,000.00

are distributable to a minor or disabièd person, the order of distribution shall be administered and

distributed under the supervision of the Probate Division.

3 CBA000164

3. Structured Settlements.

Structured settlements require formulating procedures and/or payment schedules to

safeguard settling minors and disabled persons in personal injury cases. Any structued

settlement proposal is subject to the approval of the court in accordance with the guidelines set

forth in this memorandum.

D. Attorney's Fees For Settlement of Minors' and Disabled Persons' Personal

Injury and Wrongful Death cases.

Pursuant to Cook County Circuit Court Rule 6.4(b):

Except as otherwise limited by rule or statute, attorneys' compensationshall not exceed one-third of the recovery if the case is disposed of in thetrial court by settement or triaL. If an appeal is perfected, the

compensation to be paid to the attorney shall not in any event exceed onehalf of the recovery.

Medical Malpractice Actions: Pursuant to 735 ILCS 512-1114, in any action alleging

medical malpractice, attorney's fees shall not exceed 33 1/3% of the first $150,000.00 recovered;

25% of the next $850,000.00 recovered; 20% of any amount recovered over $1,000,000.00.

Enhanced Fees: In special circumstances, where an attorney pedorms extraordinary

services involving more than usual participation in time and effort, the attorney may move for

the approval of additional compensation. The court, in its discretion, may determine whether

such additional fees are justified based on the criteria enumerated in Ilinois Supreme Court Rule

1.5 and other pertinent factors. Clay v. County of Cook, 325 Il. App. 893, 906 (2001). If

allowed, a copy of said petition requesting same must be attached with the court's order.

Structured Settlements: When structured payment settlements are utilized, the attorney's

compensation shall not exceed 1/3 (or that allowable by statute) of the "Present Cash Value" of

the total settlement.

E. Attorney's Expenses.

Every petition and order of distribution must include a detailed itemization of aU

expenses claimed and the part seeking to recover attorney's fees bears the burden of presenting

sufficient evidence to support the claim. GMAC Mortgage Corp. v. Larson, 232 Il. App. 3d 697,

703 (3rd Dist. 1992). Strict judicial scrutiny of these items is to be expected pursuant to the

applicable case law. It is within the discretion of the reviewing court to determine whether said

expenses are recoverable. In any case where more than one petition is submitted (i.e., where

4 CBA000165

parties sette at different times during the litigation), only those expenses attributable to the

parties involved in the particular settlement shall be included in each respective petition.

Overhead Expenses: An attorney cannot separately itemize and charge to the client

expenses properly designated as overhead. Overhead expenses include general office expenses,

such as photocopying, legal newspaper subscriptions, telephone and delivery services, telecopier

and computer research (i.e. Westlaw), and other similar expenses. Harris Trust and Sav. Bank v.

Am. Natl Bank and Trust Co. of Chicago. 230 Il. App. 3d 591,599-600 (1 st Dist. 1992).

Ambiguous Charges: Expenses that that are indistinct in terms of the task pedormed, its

purposes, or the time spent on the task are considered "ambiguous" and unrecoverable. Mercado

v. Calumet Fed. Sav. & Loan Ass'n, 196 IlL. App. 3d 483,494 (1st Dist. 1990).

Excessive or Duplicative Biling: The court shall exclude from any distribution order

deductions for expenses that are "excessive, redundant, duplicative, or otherwise unnecessar."

Berlak v. Vila Scalabrini Home for the Aged, 284 IlL. App. 3d 231,244 (1 st Dist. 1996).

Medical Expenses: The settlement and distribution order should not allow deductions for

medical services where no lien is involved or where the parents have NOT paid for the medical

services with their personal fuds. In many of these cases, inquiry wil reveal that the medical

expenses have in fact been paid by insurance. Similarly, deductions diverting money from the

minor or disabled person to the parent or guardian for "reimbursement of the parent's or

guardian's expenses" or for "the benefit of the minor or disabled person" should not be included

in the settlement and distrbution order. Whether such deductions are in the best interest of the

minor or disabled person can only be determined by the appropriate Probate Division

proceeding.

Prospective Expenses: Expenses which are prospective, such as expenses to be paid by

the attorney subsequent to the entry of the settlement and distribution order, Probate filing fees,

bond fees, etc., are not recoverable in the Law Division. However, to ensure recovery of said

expenses the attorney may include the following language in the order:

"The Probate expense(s) claimed herein appear reasonable, however,reimbursement of the same must be obtained from the Probate estate."

5 CBA000166

F. Vouchers

In all settements where the distribution of the proceeds is not supervised by the Probate

Division, the plaintiffs attorney must, within 60 days of entr, fie and submit to the settling

judge vouchers evidencing that: 1) the funds have been distrbuted and received in accordance

with the settlement order and 2) the attorney expenses claimed in the settlement order are

consistent with costs actually paid. Failure to fie vouchers within this designated period could

result in the issuance of a rule to show cause.

G. Liens.

Family Expense Act: The purpose of the Family Expenses Act, 750 ILCS 65/15, is to

hold a parent responsible for family expenses. To this end, the Act provides that parents are

responsible for the payment of their minor's medical expenses.. In Re Estate of Hammond, 141

IlL. App. 3d 963, 965 (1st Dist. 1986); Beck v. Yatvin, 235 Il. App; 3d 1085 (1st Dist. 1992).

Because of the parents' primary liability, medical expenses paid on behalf of a minor child are

deemed to be for the benefit of the parent, not the child. Id. Further, because the benefits are

deemed received by the parent, a minor's estate has received no benefit, and an insurer who paid

the benefits has no subrogation rights against a payment by a tortfeasor in settlement of a claim

by the minor's estate. Id. See also Klem v. Mann, 279 Ill.App.3d 735, 738-739 (1st Dist. 1996);

Estate of Woodring v. Libert Mutual Fire Ins. Co., 71 Il.App.3d 158 (2nd Dist. 1979); Estate of

Aimone, 248 Il.App.3d 882 (3rd Dist. 1993).

Exceptions: There are several exceptions. First, an exception arises under ERISA, that is,

if the subrogation lien arises out of a self-funded ERISA-based insurance policy, a subrogation

lien may be recovered from a minor's settlement. See Board of Trustees v. Adams, 1998 WL

259543 (N.D. Il.). Second, an exception is also made where the minor was a direct and intended

beneficiary of the insurance contract. See Sosin v. Hayes, 258 II App. 3d 949 (1st Dist. 1994).

Third, an exception is made where the Ilinois Department of Public Aid provided medical

assistance to the minor recipient. See 305 ILCS 5/11-22 (2001). Lastly, every hospital organized

for nonprofit or maintained and operated entirely by a county rendering service in the treatment,

care, and maintenance of an injured person shall have a lien upon all such claims and causes of

action for the amount of its reasonable charges. See In re Estate of Larr Cooper. a Minor, 125

IlL. 2d 363 (1988).

6 CBA000167

I¿ '.

. ,

m. CONCLUSION.

The provisions of this memorandum apply equally to wrongful death and surival

actions. The objective of the procedures described above is to pennt the total disposition by the

Law Division or Municipal Departent of any case in which appropriate Probate Division action

is not necessar while, at the same time, ensuring that appropriate Probate Division involvement

is not eliminated by reason of an overly broad Law Division or Municipal Deparent order.

It is to be noted that while the enclosed forms would handle the great majority of cases,

they do not deal with those which go to verdict and judgment as opposed to settlement. In thosecases, orders must be tailored to suit the particular circumstances bearing in mind the above

procedures.

4 "'i Iam . Maddux

P idin JudgeL Div sian

E. enneth Wright

P siding JudgeF st Municipal Distrct

7CBA000168

Settement of minor's personal injur action where proceeds in excess of$10,000.00 are

distrbutable to minor or disabled person.

ORDER

Upon the motion of the paries hereto through their respective attorneys for theenti of an order approving a settlement in the amount of$ , the cour

finds'as follows:

1. The settlement amount is fair and reasonable.

2. The attorney for the plaintiff is entitled to fees in the amount of$

3. The attorney for the plaintiff is entitled to reimbursement for expensesattbutable to this lawsuit in the amount of $ as itemized

below:

--- - - ------- - ------ ------ ------ --- - -- ---- - --- -- ----------------

Total $4. The lien of has been

adjudicated by the cour and aUowed in the SU1 of $

5. . The net amount distrbutable to the minor pJaintifidisable person is$ (over $10,000.00).

6. . Ths matter is dismissed with prejudice and without costs.

IT is llEREFORE ORDERED that the settlement is approved providedthat the settlement amount approved herein shaH be paid only to a guardian appointed bythe probate division or circuit cour where the minor or disabled person resides and thsorder shall be effective only afer

the entIin the appropriated probate division of anorner approving the bond or other security required to administer the seftlement anddistbution provided for in this order.

JUDGE

CBA000169

Settlement of a Wrongful Death action in which the proceeds distrbutable to a minor or disabled personare less than $10,000.

ORDER

Upon the motion of the parties hereto, through their respective attorneys and pursuant to theIlinois Wrongfu Death Act, for the enti of an order approving the settlement in the amount of$ , the court finds as follows:

1. The settlement amount is fair and reasonable.2. The attorney for the plaintiff is entitled to fees in the amount of$3. The attorney forthe plaintiff is entitled to reimbursement for expenses attbutable to this

lawsuit in the amount of $ , as itemized below:

------------------------------- ----------

Total $

4. The lien of has been adjudicated by the court and allowed in the sum of$

5. The next of kin ofthe decedent and their percentages of dependency are as follows:. , Spouse %, Son or Daughter (mior) %, Parent (disabled) %

6. The net amount distrbutable to the adult next ,of kin is $ and should bedistrbuted in accordance with the above percentages of dependency.

7. The net amount distributable to the minor / disabled next of kin is $ and name ofparent / guardian / next orkin, parent / guardian/ next of

kin of the minor / disabled personplaintiff, is qualified to receive said sum on behalf of the minor.a.$ of these fuds shall be distrbuted to name or parent / guardian / next or

kin on date for the sole benefit of name or minor / disabled person and used to

; and / orb. $ ofthesefuds shall be placed in an interest bearng bank account at

Name or Bank , Account # , and held therein until the minor reachesmajority / the disabilty is removed.

8. Vouchers evidencing attorney's expenses and disbursement of funds shall be filed with thiscourt within 60 (sixty) days.

9. This matter is dismissed with prejudice ànd without costs.

IT is THEREFORE ORDERED that the Settlement is approved and the (special) administrator /executor is authorized and directed to execute releases upon receipt of the sum offered and to distrbutethe proceeds in accordance with the provisions ofthis order.

The Court shall retain jurisdiction to enforce the terms of the settlement and to adjudicate liens.

JUGE

CBA000170

r r .",: ¡,r

Settlement of a minor's or disabled person's personal injur action where the proceeds under $10,000are distrbuted to parent / guardian / next offrend.

ORDER

Upon the motion of the parties hereto, though their respective attorneys, for the enti of anorder approving a settlement in the amount of $ , the cour finds as follows:

1. The settlement amount is fair and reasonable.2. The attorney for the plaintiff is entitlèd to fees in the amount of $3. The attorney for the plaintiff is entitled to reimbursement for expenses attibutable to this

lawsuit in the amount of $ as itemized below:

$$

$-----------------------------------------Total

4. The lien of

of$5. The net amount distributable to name of minor or disabled plaintiff , minòr / disabled

plaintiff is $ and name of parenti guardian / next of kin , parent ¡guardian

I next of kin of the mior / disabled person plaintiff, is qualified to receive said sum onbehalf of the minor.

a, $

next of kin

and used to

has been adjudicated by the court and allowed in the sum

of these fuds shall be distrbuted to' name of parent / guardian /on. date for the sole benefit of name of minor / disabled person

and/or

b.$ of these fuds shall be placed in an interest bearng ban account at

Name of Bank. , Account # , and held therein unti the minor reachesmajority / the disability is removed.

6. Vouchers evidencing attorney's expenses and disbursement offuds shall be filed with thiscour Within 60 (sixty) days.

7. This matter is dismissed with prejudice and without costs.

IT is THEREFORE ORDERED that this Court shall retain jurisdiction to enforce the tenns ofthe settlement and to adjudicate liens.

JUGE

CBA000171

:-, ") ."

Settlement of Wrongfl Death action involvig distbution of amount in excess of$ i O,OnO_OO to a minor or disabled person.

ORDER

Upon the motion of the paries hereto though their resective attorneys for thetJtÌy of an order approving a settlement in the amount of $ , the courfinds as foHows:

i. The settlement amount is fair and reasonable.

2. The attorney for the plaintiff is entitled to fees in the amount of$3. The attorney for the plaintiff is entitled to reimbursement for expenses

attrbutable to this lawsuit in the amount of$ as itemizedbelow:

$$$$

------- ------ ----------- -~- - - - -- - ---- ---- - - - --- - --------------

1rotal $

4. The lien of has been adjudicated .by the court and anowed in the sUm of $

5. The next of kin of the decedent and their percentages of dependency are asfoHows:

, Spouse, Son òr Daughter. Son or Daughter, a minor

%%%

6. The net amount distrbutable to the next of kin is $ andshould be distrbuted in accordance with the above percentages ofdependency.

7. lls matter is dismissed with prejudice and without costs"

IT is lHEREFORE ORDERD that thesettlerent is approved and the

(special) administator (executor) is authorized and directed t~ execute releases

upon receipt ofthe sum Qfferedand to distrbute the proceeds in accordance withtheprovísions of this order, provided that the amount distrbutable to

, a minor/disabled person, shan be paid only to a guardianappointed by the probate division or circuit court where the minor or disabledperson resides and this order shan be effective only after the entr in the probatedivision of an order approving the bond or other securty required to administer

. the settlement and distribution provided for in this order.'

') JUGE

CBA000172

..'';;,AN UPDATE ON LIENS

(1) NOTICE:In order to enforce a valid judgment, a circuit court must have personal jurisdiction over theparies. Unless a lien holder voluntarily appears before a court. or is permtted to intervene, a liencannot be adjudicated unless the court acquires personal junsdiction over the lien holder throughservice of summons. Serving of

notice of the adjudication hearng is not suffcient. Even where the

lien canot be allowed as a matter oflaw, as in a subrogation lien against a minor's estate, serviceof sumons is required. Absent personal jursdiction obtained from the appearance or waiver ofprocess, a circuit cour' 5 judgment is void and may be attacked at any time and in any court.Ausburg v. Frank's Car Wash, Inc.. 103 m.AppJd 329 (2nd Dist. 1982);

(2) ADJUDICATION: Below is a brief summar of commonly brought liens.(A) MEDiCAL LIENS:Medical Liens created before July 1. 2003:

~ Eight medical liens: dentist, emergency medical services personnel, home health agency,hospital, physical therapist, physician, psychologist~ optometrst

;¡ Adjudication pursuant to Burrell v. Southern Truss, 176 nL2d 171 (ì997): Each health careprovider lien statute lìmits recovery such that the total amount of an liens under eachrespective act shall not exceed one-third of

the sum paid or due to the injured person.

o Thus, under Burrell, liens under different health care provider acts can collectivelyreach a figure beyond one-third of a plaintiff s total recovery, quite possibly leavinga plaintiff with very little or no proceeds

~ Common Fund Doctrine: A reduction of the lien for attorneys feeso Policy: the prevention of

unjust enrichment

o Justification for reimbursing attorneys from the common fund: unless the costs are

spread to the beneficiaries of the fund, they wil be unjustly enriched by theattorney's efforts. Chapman & Associates, LTD. v. Kitzman, et al., 193 Hl.2d 560(2000).

o To sustain a claim. the attorney must show that:I! The fund was created as the result of legal services performed by the

attorney;\! The subrogee or claimant did not partcipate in the creation of the fund, andli The subrogee or claimant benefited or wil benefit from the fund that was

created Bishop v. Burgard, 198 I1.2d 495 (2002), ' .

Medícal Liens created on or after July 1, 2003- Health Care Services Liens Act, 770 ILCS 23/1:~ This Act repealed the eight medical

liens, but is NOT retroactive

'j Adjudication of Hens under the Act: The Act prohibits the total amount of the medical liens

against a settlement or award from exceeding 40% of the amount secured by or on behalf of

the injured person, Alllíen holders share proportonate amounts within this 40%, but in noevent may a lien holder receive more than one-third of the settlement or award.

); If the total amount of the liens does exceed 40%, the individual and institutional

liens may

not exceed 20% of the settlement or award. In no event may a lien holder receive more thanone-third of the settlement or award. :

o Additionally, if the liens exceed 40%, then the attorney's Hen may not exceed 30%of the settlement or award at tral. If the case is appealed, this lìrntation does notapply.

1

CBA000173

.l'AN UPDATE ON LIENS

(A) M£DICAL LIENS: continued...Minors Settlements: .

,. Keep in mid tht pursuant to the Family Expenses Act, 750 ILCS 65/15, a parent is

responsible for the payment of the mior's medical expenses. In re Estate of Hammond,141 Hl.App.3d 963,965 (1st Dist. 1986); Beckv. Yatvin. 235 I1LApp.3d 1085 (1st Dist.1992). As a result, when thero is a medical lien attched to the settlement going to a minor,

the lien should be disallowed.~ Furher, because of the parents' primar liabilty, medical expenses paid on behalf of a

minor are deemed received by the parent, a mior's estate has received no benefit, and aninsurer who paid the benefits has no subrogation rights against a payment by a tortfeasor insettlement ofa claim by the minor's estate. Hammond, 141 IlLApp.3d at 965.

)- Exceptions: Liens arsing out of...

o A self-funded ERISA-based insurce policy (Bd. of Trutees v. Adams, 1998 WL

259543 (N.D. IlL.));o An insurance contract where the minor is a direct and intended beneficiar (Bosin v.

Hayes, 258 m.App.3d 949 (1st Dist. 1994));o A situation where the Ilinois Departent of Public Aid provided medical assistance

to the mior (305 ILCS §5/11-22 (2001)) (see below for more details); ando A nonprofi or COù1ty hospital (11' re Estate of Cooper, 125 m.2d 363 (1988)

(B) WORKRS' COMPENSATION LIENS:Created by the Workers' Compensation Act, 820 ILeS 305/5(b)

); The employer pays employee compesatIon for injures arsing out of and in the course ofemployment. Brooks v. Carter, 275 Il.App.3d 1089 (1st Dist. 1981). The risk ofthe injurmust be related to employment. O'Donnell v. City of Chicago, 126 Il.App.3d 548 (1st Dist1984).

); Adjudication: In the event Someone other than the employer causes an employee's injuries

and he recovers daages from the thrd par, purant to §3û515(b), the employer has a

right to recover damages from the third pa. Erickson v. Bituminous Cas. Corp., 10Il.App.3d 19 (1stDist. 1973).

)- The lien does not atch to.. .o Compensatíon paid to a spouse or child (Porro v. M. W. Powell Co., 224 m.App.3d

175 (1st Dist. 1991));o Awards to a widow under the Strctual Work Act (DiVarco v. Lazynski, 199

m.App.3d 808 (lst Dist. 1990));o Awards under the Public Utilities Act for injuries suffered by a suriving spouse,

such as funeral and bural expenses or punitive damages (McDaniel v. Hoge, 120Ul.App.3d 913 (lst Dist. 1983)).

2

CBA000174

,~.

AN UPDATE ON LIENS

(c) ArrORNEYS' LIENS:)P Statutory Adjudication--Arsing out of the Attomeys' Lien. Act, 770 ILCS 5/1: Attches to

any verdict, judgment, or order entered and any money or propert which may be recovered). Common Law Adjudication- Arsing out of

the attorney's right to reta possession of

property belonging to his or her client which comes into his or her hands within the scopeof his or her employmt until his or her charges are paid. Needhamm v. Voliva, 191nl.App. 256 (1915); Upgrade Corp. v. Michigan Carton Co., 87 m.App.3d'662 (lst Di8t.1980)

., Equity Adjudication~~ Arsing from express contrct provisions providing for an assignentor security interest, held by the client, which is pledged to the attmey as payment for legalwork

~ Burrell v. Southern Trus. 176111.2d 17 J (1997): Attorneys' liens have priority over

medical liens. The rationale is the plaintiff would not have received the proceeds of.ajudgment ifhe didn't hire an attorney.

(lJ) IU.JNOlS PUBLIC Am LIENS:Created by Ilinois Department of Public Aid Statute, 305 ILCS 5/11-22:

~ Adjudication: Provides the Ilinois Deparent of Public Aid'shaH have a charge upon an

claims, demands and causes of action for injuries to an applicant or a recîpient of financialaid for the total amount of medical assistce provided the recipient from the time: òf injuryto the date of recovery upon such claim, demand, or cause of action.

)- 305 ILCS 5/11-22(a)-- provides the Deparent ofPublìc Aid with the right of subrogationin workers' compensation cases, but this does not have priority over an attorney's lien.

(E) MEDICARE "SUPER LIENSl':Created by Federal Statute, 42 U.S.C. §1395

,. Adjudicaton: The Medicare ~'Super Lien" 'creates subrogation and Hen rights which are

superior to any other Hen. Unlike any other lien, the Hen applies eyen though no notice hasbeen provided to the defendat or hìslhc¡: insurer. The federal governent' $ right ofsubrogation for medica! care payments is set out in §139Sy(b)(2)(iî).

~ A state court lacks the authority to adjudicate any Medicar Hen. and any order issued instate court ha no binding effect on Medicare.

3

CBA000175

MOIOR JDES RULSAPRI 1995

1.0 GD1.1 All cases filed in the Law Division, and not placed on one ofthe individual calendars, are randomly assigned by computer to oneof the six motion calls: A, B, C1 D, E or F. Until the casereceives a ttial_ date., all. motions, should be brought on thisassigned motion call, unless otherwise notede

i . 2 Once a' case receives a trial date, all future motions shouldbè brought before the assignent judge in Room .200511 unlessotherwise noted. Motions that have already been set before themotion judge whent.e case receives' a trial date will still beheard by the motion judge e

1.3 Regardless of the exstenc~of a trial de:te, motions affeCtin_9the court calendar, such as moti.ons toconsoli.date" to sever, or toadvance for trial, should be brought before the assignent judge inRoom 2005. However, foru non conveniens motioni; 'or motion,Sobjecting to venue under 735 ILes 5/2-101 et. seqe i;hould bebrought on the case' s assigned motion call., See 5. 0 U~MOTIONS below.

1.4 Pre-trials. ,If the paries would like a motion judge to heara pre-trial in a case which is not on

the judge. s call, they mustbring a motion to set the case for pre-trial in Rom 2005.. If acase has been assigned toa pariCUlar motion judge, and theparties would like that jUdge to hear a pre-trial, they need onlymake arrangements with that particular judge. .

i .5 Wrongful neath and Kion. Settlemnts. Motions to approvewrongful de~th. settlementi;~ inCludig those involving minorbeneficiaries or minor plaintiffs, should be brought on the case. sassigned motion call. See 5.0 U~ ~IOliS below.. In addition

.to following Circuit Cour Rules 6.. and 6..5, attorneys shouldreview and follow the Memorandum fro tbe Presiding Judg~s of

theLaw Division, Probate Division and tbe First Municipal Districtwhich outlines the procedures to be followèd in handling mio~s.p~rsonal injury cases and actions brought under the Wrongful DeathAct. Copies are available in the, motion judges. s chamers or fromthe clerks of the presiding judges.

1.6 Motions to vacate or modify a discovery order are heard

in thecourtroom in which the order was entered.

1.7 Motions to vacate, reconsider,. or modify a default order or adismissal for want of pros~cution are heard by the judge whoentered the order.

1.8 An attorney who has an 0Fde! entereu.~a!.l send copies to allother attorneys of _ record wi.thi-n. 72 hc:,:-s--'of" entry, unless thecourt orders otherwi.se. Please do not burden the cle!"k while cou!"t

CBA000176

is in session with requests to Bee orders previously entered.

I.' No respnse to a petition for rehearing will be receivedunless requested by the cour or unless the petition is granted.Suprem Cour Rule 367 ( d) .

2,,0 ~a.1 . tJnless otherwise stated, 'te moving ~y ~lSt give notice of

the hear:i; of all motion; to all 'other pari.es i. accordance wi'tCircuit Cour Rule 2.1, whch istates i. pa:

Not.iee shall be given in the m:er and to the perionsdescri.d in Supreme Co~ Rule' 11. ,If notice of hear~9 iigiven by personal serv.:ce, the noti.eeshall be deli.veredbefore 4: 00 p.m. of the seçond (2nd) court day precedig thehearing of the motion. If notice is 9'i ven by mail, the noticeshall be deposited in a United States Post Office or PostOffice Box on or before the fifth (5th) Cour àay proceedigthe hearing- of the ~tion.

Supreme Cour Rule 11(4)(i) al_o allow; ,notice by facsimle"Service, by facsimle, is complete on the .first day followingtransmission. . ,Supreme Court Rule l2Cd). Facsimle notice i¡;considered personal service by the Motion Judges.

'Ail Botie.. DUSt.' iDelud. the ~.. and ~ D~rbefore whOi Utk lItioD wiL.l ~ pre..Dted... the jiulgtk

3.0 h ROtr.IJm HO.IOJ ~

3-. i The fQlloving motions .ae ,considered routine:

Ca)

(b)

(C)

(d)

(e)

Motions to veu:ate uyand all techcal defaults and .forleave to file G apparance, DOtionu ai:u~wer or jurdemand e

Motions for leave to file instanter an answer to thecomplaint, CO\mterelaim, and interrgat.ories.

Motions for leaVe to file any other pleadig after thetime normally provided, except where already required tódo so by court order"

Requests for leave to file within 28 clays an overclue.plead1ng or responsè to diScovery, unless alreadyrequred to do so by cour order.Motions for leave to file an mnended complaint or:counterclaim (against one already a party), ,granting 28

., CBA000177

(b)

(1)

(j)

days to plead or answer ¡æl JItion to amend æl complaintadding new defendants, with sumons to issue; or forleave to file a third party complaint (against one notyet a party) i with sumons to issue.

Jf: Amended complaints are filed in Room 801. Rileyv" JoneJ Brothers ConstruetionComanv and O' Hare Assoc.6nd .Aerican Airlines, 198 iii.Afp:3d 822; 5.56 N.E..2d 602(1990). Riley bolds. tba'tJ1)f.illNJ ll mot.ion for leaveto file an amended complaint with the proposed ~ndedcomplaint attache:d. and entry of an order ~ll~wing themotion is not a f.il,lng of. th. a~enàed. çompla.it, and (~)sub tting an amended c~mpl~.it to a CDurroom clerk isnot a '" filing" since c.irc?it C~ur Genera.l Ordei 1.",requires '"actions" to be f.iled in Room 801. In Riley,the attemt to amend, was on the last d~y. of the statuteof lim tat ions . A subsequent f.il.ug was heldineffecti ve. Point (2) may apply to counterclaim and .third-party clams, but cour:room cletks do not acceptsuch documents since a fee is required~

(f) Motions for 'leave to appear as attorney or as additionalcounsel, or to, substitute one attorney for another byagreement. A motion to withdiaw without a substitutingattorney is not a routine motion, : but a special routinemotion. See Iiul. l. 0 SPECIA aoin HOZOHS below"

(g) .Motions for leave to file an int~rvenig petition' onbenalf of a workers. COmpensation carrier, a public bodyclaimg a lien (Pulic Aid, etc.) or an insurcecompany. :Motions for an order sugg~sting death of record o~ anyparty, accompanied by. a certified copy of the deathcertificate or for an order appointing a specialadmnistrator-to continue the suit as plaint.iff ordefendant. .Motions for an order authorizing a named individual (over18 years and not a party) to serve sumns pr otherprocess. Motion shall specify the reason fa specialprocess server is being requested.

Motions with an affidavit (on behalf

of a land trustee)to dismiss. the land trstëe where the trustee in theorder has disclosed the name and residence address of allbenefici~ri~s of, the ~rust. (The order may grant leavefor. ¡:laii;tiffs . to tile an amend~d complaint addingadditional panies with sumons to issue).. .

~- '._,.3

CBA000178

Stipulations to dismss all or any part of a case, exceptwrngful death settlements and miors · settlements. SeeRuJ. i. l abve.Voiuntar nonsuit by plaitiff.

ModoM to aåmt. ~, out-of-iirtat.e a~torney, ~ere Suchmotion iø iu:eomped by aD rlfi.davi.t attest.ug to theattorney.es- go..t,iftdi ~9..in the. stat.e in which (s )he hasbe admtted 1: practce..Petitions for the i,~ua~f subponaø in out of stateea.e~. These petitions reque specific docuentation.See ~BI~ A attac~ed.. 'Motions for èertification of Report of Proceedigspursuant to Supreme Cour Rule 323(b).

3.2 Routine motions are tak.en either in chamrs or in thecourtroom Monday through Frid.ay 8:45 a.m. to, 9:30 a.m. withouthearing. - Tbe moving attorney cbooses the date to, present themotion, and need not aiindle it on the eighth floor. lIoi: Aroutine motion lIy not be presented if i:. caiui~ iiaii £il.4 i or more- years prior to the date of thl! l1Uòn. -

(k)

(1)

(D)

(a)

(0)

3.3 Rotiee. Mov'i~~t~~st:~.!~-e~ot.~s-outlined in Ru~2.1 abve. The notice of motion should be maked "'RoutiJlul'" andindicate the time at 8:45 a.:m. Ji.l When presenting the motion, the moving attõrney should includethe notice of :mt.ion,:mtion.' and draft order with copies. Theorder will be entered unless an objection is receivec::L -See :Rule 3.5Objections below.' -, i .. 5 Obj ectionii.. A pay 'may object. to a routire motion in,writing, orally, in person or by telephone.. Objections must bemade ei tber the day prior to the scheduled day of presentation, orbefore 8: 45 a.In.. on the day of presentation. The party makig anobjection must state the reason. If an objection is received, noorder will be entered on the routine call. If the moving attorneychooses to pursue the motion, she or he must iichedu-le it on theRegular Motion Call.. See ble 5..0 ~ MitO. ei below..

Jion: Some motiön judges will accept cigreed briefingschedules for motions to strike, ctsmss or si.judgment on .the rout~ne. c~ll.. ~aries should verify thisprocedure wi.th the .udivi.d.ual Judge. .

.4 CBA000179

l.O SPECIA ROUfllE MOIORS

l . i Special routine motions are motions for an order of default(with or without a dollar jUdgment), motions to withdraw without

. substitution of new coun'sel and motions for judgment by confession.Jror: A IBpecial routine IitioD lI1 not. ~ pnllBented if the casevalB filed 3 or lInl yIiUU'S prior to the datll of the aò'tion.

"

(b) "ot.ic.. Moving attorney. must give not.ice asoutlined in ~le i.1 abve. The notice of motion shouldbe marked .. Special Routine" and indicate the time as B: 45a . :m. III parties who have beeD served shall be 9'i veD .notice, whether or not an appearance was filed.

(c) At least five cour days prior to the dat.e selectedto present the motion, the following docuent.s must bedeli vered t.o t.he judge' s chamrs:

(i) original not.ice of mot.ion and copies

(2) original mot.ion and copies

(3) copy of the face of the sumns(l) copy of the retur.. If service wasaccomplished on a non-resident though theIllinois Secretar of Stateu see au. l..2(4)below. -

(5) attorney's certificate, signed by theattorney, certifying that both the cour fileand the computer register have be checkedfor defendant.- s appearànce or answer" Thecertificate must be dated no more than 10days before the date selected to present themotion. See £XI8I~ B attached. .

( 6) if defaulting an individual, feder~l la.wrequires a military affidavit. See ED:æi~ Cattached.

(7) draft order a.nd copies. See Rule 4. 2 (e). below.

Cd) Service on the Se~retar of State in motor vehiclecases - Se::~ce must, f?omply with 62LlLCS 5/10-301. Aparty clai.ng substl.tut.ed service under this statute

5 .CBA000180

must demnstrate strict compliance with every requirementof the statute. DiNardo v. Lamela, 183 Ill. App. 3d1098,1103 (¿d. Dist. 1989). To show proof of service,the following docuents must be subtted:

(3)

( f.)

(1)

(2)

In.mm.OM IIbowinc¡ iiervice on Secretar of State

copy of affidavit of compliance as required by 625ILCS 5/iO~301(bl..-S& r-it~ntI~"D attacbed..

acknowledgemnt from Secretar of State... - ~ ~

notice to defendant of filing of suit.. The noticeto. the defendant should ino.rm the defendat that adefault judgment may be taken against th~ifappropriate action Dot taken.. See EtrBi~ Eattached.

affidavi t 'stating that notice has been sent byregistered mail. See £Xi':U~ ,. attaehed.. Tosatisfy the boldig in DiNardove Lamela, 183 Ill..App. 3d 1098 (2d Dist.. 1989), this affidavit shouldalso state the faetsupon which the affiantreasonably concluded that the defendant was a non-resident of Illinois. The affidavit of compliancesent to the Secretary of State iii insufficient.DiNardQ at 1103-1104.

,B~:, Although the statute speab of affidavits of theplaintiff, the Secretar of State form perm ts theat:t.orney ,for the plaiti"ff to execute the affi-davit..Romoza v. Lucas, 331 Ill.. 106, 85 N.E.2d 461

(2nd Dist.,1949) appears to autho.rize this interpretation.

(5)

(e) Draft order.. The default draft Qrder may be ei thèrfor unliquidàted or liquidated d~ges..

(i) Unliquidat~él élilgeli.. .' The order sballtransfer the case to Room 2005 for prove-up ofdamages.. See ~IBI~ C for S~lë order..

(2). Liquidat~él 4æn5Je~. Tbe ord.er shallenter the defaul t and award a judgment.. Asample order is attached as EXIBIT H.. Thefollowing docuentatiøn is required:

(i) copy of the verified complaintand eX:ibits, or,: an affidavit by .the moving pay which establishesthe judgment. amount reçnested..

r CBA000181

(ii) an affidavit detailing thecosts of suit

(il) affidavit for attorneys'fees, if applicable. See Rule l. 2(.) (J) Attorneys' fees below.

(3) At.t.orney_ l feHIII. Attorneys l fees~. areonly recoverable: . by , s~tute - t:r ~hen thecontract between the part.les 50 prov.lde~. ~:f~ttorney l II fees are. recoverable 1/ an ~ff.lda!i:tiroDl 'te attorne~ i.~ - ne7essar toest.abl.lshthe amount. The affidavit shall state: '

(1) 'teD~tureor the servicesperformed, in detail .

(11) the n~r of h~urs spent. performng t.hese st;rvices

(ill) the at.t.orney' s hourly rate

(lv) the year the attorneygraduated from law school;

(V) a statement that the numrof hours spent and the rate chargedper hour is fair and reasonable,and wi thin the no:rl standard5 ofthe community for the typ ofservices perfo:ied. '.

Office e~nses 1/ such as photocopying,computer research and delivery services, 7 areconsidered general overhead and are notrecoverable. Harris Trst " savinQs Bank v.American Nat l 1 Bank " Trst, 230 ILL. App. 3d591, 599 (1st Dist. 1992). ~,

(fl' The judge will review ths docuentation on the datespecified in the notice. If all materials are in order,

, and there has been no objection, the judge will sign theorder. See Rule l.2(h) Objections below. Signed ordersare not. ent~red untU picked up. Mo~antmay . pick upcopies of the order after 2:00 p.m. on the date specifiedin the notice of' motion,. Orders Dot picked, up withiifive business days of the date specified in the noticewill be disca.rded. Orders of default must be mailedpromptly ~o the parties who have appeared as well as anyparty against whom the default has been entered

7CBA000182

(g) If the cour determes that the proposed ordershould not be entered, the clerk shall notify the movingpary at the time the movant '_s repre:sentative appears topick up the order" Once speci.al inti.ons are remved fromchamrs they may not. bE resubtted, unless the motionis renoticed"

(h) Objectnii.. A pay may.objeét to a IIpecial routinemotion in writ.ing,, ora,11y,.. :U peon. or by. telephone..Objections must be made .ei.ther the day pri.or to thescheduled day of presentat..ion, or before 8:45. a.._.. on theday of presentation.. The p~y. :m,~9 an ~b)ect.ion muststate the reason. If an ob)ecti.on .is recei.vedN no orderwill be entered. If the moving attorney choosès topursue the motion, she or he must schedule it on theRegular Motion Call. Sèe Rule 5,,0 ~ MOiO. CAbelow.

4.3 Motions to withdraw ,as counsel without substitution of newcounsel

Ca) ~he aOTing attorney ~t comly with Supre CourRule 13 (c) "

(ll) The moving attorney chooses the dat.e to, present. themotion, and need not spindle it on the eighth floor.

(C) liotice.. Moving attorney. must. 9i ve notic;e asoutlined in 'Suprem Còurt Rule '13(c)(2) and Rue 2..1above ~ The notice of motion ;.bould be maked a SpecialRoutine" and ind.cate the tim at 6:45 a..m.., ,NOTE: S "Ct...Rule 13(c) (2) states that the notice itself"shall advise (the) pary that to iiunire, notice of any

--aè.tion-.-,in---£-te.cas.e_)_,_..be,. "sbQuld-ietAin___o...e.r_._~unsei_____..,____therein or f~le with the clerk of the cour, with 21days after ent.ry of t.he order of withdrawål, hilSsupplementary ~ppearance st.at.ing .therein an address atwhich service of not.ices,or other papers may be bad uponhim 0 .. ,

(d) At least £1 Te cour days prior to the date selectedt.o presenttbe motionN thë following docuents must bedeli vered to tbe judge. s chamrs:

(1) original notice of motion and copi~s

(2) original motion to withdraw as counsel,and copies, which includes' the inormtionrequired by Supreme Court Rule 13 ( C) (2) ..

CBA000183

(3) an affidavit signe~ by the ~ttorneystating whether any motions or discoveryorders are pending against the representedparty. In the case of a pencln9 Dltion i theaffidavit shall include a descripti.on of themotion, the hearing date, and the courr,?omnumr. In the case of an outstandingdiscovery order, a cop~ of the order must beatt:&chlld. to ~. úfdav i. t .

(l) proof that the notice and motion weresent by certified mail to pary represent~d bythe movant (the gree cad-retw: rec~i.pt).Alternatively, .proof of personal service ofthe motion may be provided..

(5) Draft order in compliance with Supremec.ourt Rule 13 (c) (4) and (5). See EmIin:~ Ifor sample order.

(el The judge will review this docuentation on the datespecified in the notice. If all materi~ls are in order iand there has been no objection, t.he judge will sign theorder. See ~. J (g) Obj eetioiiui below. Siped orders arnot entered Wltil picked up. Movant. may pick up copiesof the order after 2: 00 p.m. on t.he date specified in thenotice of motion. Orders iiot picked up withli fivebuid.DelSs days of. the ùte specifiedh t.he not.ice will bedillcarded.. Orders of withdrawal without subst.itutionmustbe mailed to the former client with 3 dàys of entry..

.-

(£)71f the cour determes that the proposed ordershould not be entered, the clerk ishall notify the movingparty .at the time the mov~t. s representative appears topick up the order ~ Once special motions are remved fromchamers they may not be resubtt.ed, unless the motionis renQticed.

(g) Objection!!. A party may object to a routine motionin-writing, orally, in person or by telephone.'Objections must be made either the day prior to thescheduled day of presentation, or before 8:45 a.m. on theday of presentation. The party. makig a, objection muststate the reason. If an objection is received, no' orderwill be entered. If the moving attorney chooses topursue the motion, she or he must put it on the RegularMotion Call. See S. 0 REGU mnION CA below".

9

CBA000184

l.' Confession of jUdgmDt. Judgment by confession is a methodof secuing entry of judgment on a ,debtor' s or obligator · sconfession and acknowledgement of his liability without theformlities of an ordiar proceedig. See 735 ILCS 5/2-1301(C)and 735 ILCS 5/12-813. Confession of judgment will be strictlyconstred agaist the pay in who.e favor it is given. Hid-StateiFlnanc~ Co. v. Pedm, 111 Ill~ Ap. 2d 107,248 N.E.2d 789 (5th:oilt., 1969); Devon Bank v. seh~iDder, 72 Ill. .Ap. 3d 147, 390N.!.2d 447 (1st Diit. 197~)~ _ . Strict, eomrlianee with the statute isreqired. Investors commercill CorP. v. Melca1f, 13 ILL. Ap. 2d99, 140 N.Z.2d 924 (1st :Oist., 1957).

(a) Application to confess jud~n~ must be made in thecounty in which the note or obli.gation was executed; . thecounty in which one or more of the defendants reside orany county in which any real or personal property ownedby anyone or more of the defendants is located. 735 ILCS5/2-1301(c) .

(b) Jiu:isdictioD. Jurisdiction over the defendant isacquired ~y entry of his appearance under authority ofwarrant. of attorney. Goldbra v. Schroeder, 10 Ill. App:3d 186, 134 N.E.2d 615 (1St. Dilt. ,1956); Green v ..WalSh, 5 Ill. ,App. 2d 5358 126 N.E.'2d 398 (1st Dist..11955) .. . '(e) Power of atto:fer. Warant of power of attorney toconfess judgment must be, incorprated into the note orattacbed- to the note and must be given in clear,explicit8 and unequivocal language. State National '~ankv. ED$teenl 59 Ill. App. 3d 233, 376 N.E.2d 40 (1st Dist..1978); Grundy ,County National, Bank v. Westfall', 49 Ill.2d 498, 275 ~.E.2d 374 91971), appal after remd, 13Ill. App. 3d 839, 301 N..E.2d 2S(3:r Diit.. 1973)..

Cd) Motionii for jud§1ent br ccf..lIiol' lIst M filed bRoom SOL, where they will be randomly assigned, thendelivered, to one of the motion judges. .

(e) Notice. No notice is required prior to entry of ~judgment by confession..

(1). The following docuents should be filed:

(1) complaint and at least one copr

(2) original note. The amount for whichjudgment is to be confessed must be fixed inthe warrant.. State National Bank v.Westfall8 49 Ill'. App. 3d 233,376 N.E.2d 40(1st Dist. 1978) ~-

CBA000185

l

(3r business purpse statement. Confessionsof judgment are not permtted in consumertransactions. 735 ILeS 5/2-1301(c).

(') if confessing judgment ~gainst ~.individual, federal law requires a mil2taraffidavit. See EXBIT C attached.

(5) ~am..o._judryeint..

(') Attorney's fees affidavit, ifapplicable. Se~ Rul., l.2(e) (3) Attorne~s'ffliiß abve.

(g) The court will revi~w the ~ocuents and, ifeveryhing is in order t si.gn and ent.er ~e _order..Attorneys should pick up t.he completed confessi.on .u Room801.

S .. 0 REc: MO! OR CA5.1 Mot.ions.that require a hearing belong on the cour. s regularmotion call.

(a) Motions must be spindled in Rom 801 where the courclerk gives it a date and tim for hearing. ROT: This'is the ònly way to get onto the regular motion

call.. Thecourt will not accept add-ons to the call. ,If anemergency arises, attorneys should, follòwthe procedure,outlined in Rubt 7.0 ~cr MC.IOUbelow.(b) Motions are heard each weekday in the courroom at.9:30, 10:00 and 10:30 a.m. except on the day designated-for that motion calendar .s progress call. See 8.0PROGRESS CJ below. If,,' after bearing, a motion iscontinued from the regular motion call, it need not berespindled. '

, 5.:2 Courtes~ copies. 'Docuents necessar for the cour. s reviewprior to, the hearing ( IIcouresy Copies"), shall be delivered tochamers at least the cour days before hearing..

5.3 Citations. Attorieys shall use official IlliDois citations intheir briefs a Supreme Cour Rule 6. Mot.ions, judges -; do not. haveN . E a 2d or Illinois Decisions in their chamrs.. Counsel arerequested to provide t.he court with copies of t.he principal federaland out of state cases and stat.utes involved in the motion. .

bo _

11

CBA000186

\

s.~ Withdrawals. Tbe moving attorney may witbciaw a motion fromthe regular motion call by notifying the cour and opposing counselby telephone or in person no more than three days before ttiehearing date.

s.s Motions r9garg discovery.

(a) Not.ice of a motiøn requesting a rule to show. causeshall be sent to all non-paries sought to be held incontemt. All docuents shall refer to ~ .orde~e toshow cause not to a -rule. e A lay person is not likelyto understand the meang of ~e, term -;ile to showcause.. .. A clearly legible copy of the order shall beserved within three days on the person .affected by theorder and the order itself shall pX:0vJ..de that a copyshall be served on such person . wi.thi three clays..Service shall be in accorclance wi.th Rule 6.1 of theCircuit Court of Cook - county.

(b) A motion pertaining to discov~ry sha1l contain astatement as to .Personal Consultati.ona, pursuant to aSupreme Court Rule 201 (It). A cli.scovery motion will notbe heard without compliance with ths rule.. The motionshall specify the date (s ) on which such personalconsulta:tion was had (or attemted) ,whethe:t such

. personal consul tationwas by. telephone or meeting, andthe names of the attorney paricipats" The fact that aletter was sent, without any personal discussionconducted or attemted, does not satisfy the rule..

6. 0 CON'S~ MO:IONS

6. i A motion set for hearing other tbanon the règilar motion callis a contested motion. Each motion judge hancUes.tbeli contestedmotions differently.. Attorneys should contact. the judge & s chamrsfor s~ecific details.

\6.2 ,.Couresy copies.. Unless instructed othe~ise, the movingattorney shall deliver copies of the motion, all briefs and allotherpleadi.ngs and exlbits relevant to the motion at ieast thecourt days before the hearing.. .C',: For motions to dismiss acomplaint, attorneys Bust include a copy.of the complaint at issue.

'.3 Page limtation.. Ho brief li excess of lS Ðaqes'ø exclusive ofexhibitsø shall be filed without ~rior leave of court. All papersfiled shall be 81/2" x 11".. The cour encourages the use ofrecycled paper. Supreme Cour Rule 10.

1).4 Citations.. At.torneys shall use official Illinois citations intheir briefs . Supreme Court Rule 6. Motions judges do n.ot haveN. E. 2d or Illinois Decisions in their chamers. Counsel are

12 CBA000187

requested to provide the cour with copies of the principal federaland out of state cases and statutes involved in the motion.

6.5 Continuances. Except in an emergency 1 no contested motionwill be rescheduled unless the request is made in advance. ' Lastmiute continuances leave open hearing times that could have beenfilled by earlier_notice.. If ~ emergency arises, attorneys shouldfollow the procedúre outli.ed .i Jtule '1.0 DlDCY M0IOBS below.

1. I) ~i: MOion,. i Emergency mòtions will ,be heard at the ti;es lSet by theindividual judge. Such .motions are. heard on a ~F.:rst Come, FirstHeard = basis. The hear.:ng may bave to be cont.:ued so as not todelay the prompt commencement of the regular motion call. .Aapproaching time deadline imosed by another judge does not aloneconstitute an emergency. -'1.2 Eotice. Movant shall give notice of emergency motions to allattorneys of record and parties not in default by mail, personalde.livery, telephoneg or facsimle, as the circustances allow.

8 .ij . PRORESS CJ

8. i Progress calls are beard in each motion court on the followingdays ::

Motion Call A: WednesdayMotion Call B:: 'ThursdayMotion Call c: TuesdayMotion Call :0:: TuesdayMotion Call E: 'ThursdayMotion Call F: Wednesday

8.2 'The purpose of the progress call is for the cour to review. the status of the case shortly after filing. . Six months after acase is filed, the attorneys will reCeive notice from the clerk' soffice to appear on the progress call in the motion court assignedto the case. .8.3 Each ~ase will be screened for mandatory àrbitration and tbecourt may set a discovery schedule. Therefore, the court requiresthat each party appearing have a thorough knowledge of the facts qnature aDd status of the case, as well as the amount of the claim.

8..4 If service of process hàs not been had on the parties, thecourt will set the~ case for status at a later date.

13CBA000188

::

Dated: April 11, 1995

E N T E R:

'I _

, II CBA000189

SUBPOEN FOR ÐEPOSiTIORS IN OUT or STATE CAE~

Supreme Court Rule 204 Cb) authorizes parties in out of state casesto petition Illinois cours to compl depositions. Paries mustobtain a law division case numr in Room 801 by paying the fee andfiling the petition and subena: The ,tollowing docuents mustthen be presented during the routine motion call:

(1) certified copy of foreign commsi~;ion, if required byout of state cour._or: The attorney seeking to take the deposition mustascertain whether the out of state court requires aforeign commssion. If a comms~ion is not reqiiredu

please provide a copy of the applicable state statute.

(2) subpoena containing the name of the Person beingdeposed; dateu time and place of deposition; and anydocuents requested.

(3) ,draft order and copies which includes the name ofthe "'pefson being deposed; date, time and place ofdeposition; and any documents requested.

øOt: There is no notice, requirement.

."

~

EXHIBIT A: PROCEl. TOR Otn OF STAn: D£POSITIOiiS

CBA000190

(4Ii) eeL 0517IN TH caCU COURT OF COOK COUN. ILOIS

Peonn. No. . . . . . . . . . . . . . . . . . . . . . . . ., . .. .. ........

I~CD,U,liCATE-"

this a~ lio h~b,y eufy thtoo . . . . . . " . . "" .". " "" """"". " . . .... """." ".. . .... ..,..." 9 I ft'~..ed th COUrt

1i - " " _ " . _ . _ " . $ ø .. 0 ø eo $- eo & é- Ø' "" ~v rM' $ e It (I e ø El $- G 0 ø li 0- ø ø. G:. e Co . . ø "" G c¡ G l/ e ê " _ " . .~ G C . ~ ø b G . 0 ø 0 c¡ G ø ø . GO.. - - - _ J _

e for tb ~.1i:uf 00 ........ ........ ....... .". ...".........." .... ........19....... I iimwed tb:~fOftb as1 furter cU,y tWt th pr of ~ mt. summons show t.t th foDog JWes U'i be ~d on

dates indioued is fol~:

P AR'I DATE OF SDVJCE~. 9 0 OOOO.OG ~o..oø....o.o.o ...000.00 O.~øè

006... ~GOO .00.....0 o. 00.00 ø.o OOG øe 0&0 oe. 0.0 G

.00. . ø e 0 000....... G. G.. e.. 0 s 0 ø li. e * o. li ø 0 0eo OO.Oe Oè... ~..ø 0$. GO 00000 0 G .0..$ .... 0 ooø...

~. 0....00. eo OOo.øe.o....O..oøøøo 000.0000G . . .. li . 0 0 ~ G $ ø . e 0 e _ $ eo.. e . . . 0 G .. . . . . 0 0-. . eo. ø $

~jn:I fuMhuttfy thtlbeonly .1p~~rmd of~ ~ forllrcUow¡ft:~m~mioo th bte¡bcnm

PARTY DATE OF A.EACE" . . e ci e. .. 0- 0. . .00- G 0 co .. 00 ø 0 Øo ø ø 'i 0 ø,ø 0 G, è GO. G 0. .. G e

ø G e è & $. Ð & 0 C e $ è $ &.0.. G GOo ~ ~ 0 eo. ø~.... oe $ $ ø _ $ ø_

~ 0 p 0 00 0 ..o..~oøøe.&OOèQ.O èø..~ooe.Ð.GÐOeóeç&e .e~øe 0& 00 OQ CD 0 &00&.00 Ð_øO 000. 0 &Ø GO $ & C $ ~

.00.0" 00 OOQ.GOø.ooøO~.OOOøG 00 ooøou .&0$&00 GeÐ.~O&O.Geøe G 0 G eO.O&G $Oe&&øè&é G & 00.00" e 0 0

Uiat an other p:rtes to ihi C¡uise hive bne4 to me thGpe~

Hhrr poW&~ as,~ by Jaw ,~t b) ~ 1-119tM Coe of Ciri ~~ t. IIDdef~ ani* ~~ stencs æt ron in th imme &l tn li ~::pt lI to ~ tb silB to be -i mr~ udIHer and &$ to 1Ic: ma ib, uuii~ c:ae astl" t. - ~J ~ i- !. ID N D"

00000..00000000.........00....0..0# 0.0.0. ø

Name

............0.......0.................... .Addre

o . . . . . . . . . _ . . . . . . . . . . . . . . . . . . . . . . . 0.. .. . . ."'atiiiitionalsheets if~" ~~'--;' Pbcm

.EIBIT :eCBA000191

:&0 (4-1) CCIN TH CICU COURT OF COK COUN. ILOIS

pbitiNo. ... ..... 0..... ... ... 0.0.... .........

de~t

AFA vr AS TO, MIU ARY SEViCE

.. .. .. .. .. .' .. .. .. .. .. ,. .. .. "" .. co .. .'.. .. .. .. .. GO .. .. . '" .. .. .. .. .. 'O co . Go 6 6,0- I" Go 0 '= .. il Q Il .. 0: 0'0 "" ., .0 .. 0 ,. .,012 oath s:te:

With re to òerenå21 _ 0 . . . . . . '. 0 . . _ . . . _ .. . . . . . . 0 . . . . . . . . . QQ. ¡, _ _ _ . . . . . .. 0 . . . . '0 0 . . . .

~ ~ .. .'l .. .. .. .. .. .. ., .. .. .. ..... .. .. .. co .. .. .. .. .. .. .. . .. . .. . .. 11 ., so . . Q" . .. . .; . . . . . . .. . . .. 0. . 0 . . ,. . 0 .. . .. 0 0- .. .. . .. Q .. 0- 41 . .. . 0. .. .. .. .. p . .. II 0- ..

(he is) (he is not) (I iluuMl 10 de~ wh~ he is)the miltary sece of th Unite Stlta

Th afJdvit is ~ on th fiC1 :

0-

le md sworn to before mii ØØØ000eeø.aø.o. ee.... G.GOW øø. eo... .OéO.O... ~...

. . . . . . . . ~ . . . . - . . .. 19. . _ _

.. ...... ........ ....."". 0 ....0.Notary public

:iemiey for.i res

'phoneSo.

EXIBIT C

CLERK OF'mE CiRCU COTWT OF rnnr N'1n.-iCBA000192

AFVl OF COMflci

~ U) Se '0-301 of tl Ilin Vehi" Code (Chptr 9Sl hna;rph 10.301. III Rw.su tll'a of ~1l on NcnRnidGnt. tñ unel'd mak. th follog stat.l'ft

1.. 1' D am fi Cplifa~ fo pbJim In th folong name ca

YL . ""~J!; 111.No.f/~~

"f th C1UH ;" ¡¡u:ûon II~~ fr th un ~ operati by ~ ~ to be ~d or h.dut iiui~d 1I(1llm or ~mp.oy~ of II "hid ~r Of up ti highways of tb ,St of,Umo-i wh ,.uld in dsmape or lo to h Pl~ Of Pf~ny of C1h 'umm~edd"..m ofth urn:lnaiond)

3. ""1: !M dmndiim to bi IIIl~d thmugh '1: s.~ry of S~ fallll.der OM of th followng:(~ thll ii~ra~ b~

Wn IIt th ti of ' th iiceidim iind ~iM a nonmsidem of ~ ~ Of

Wu ii maid_nt at tM ti ~ e8wu øf ~ amn bu hn ~liU'ti b4~ I~dllnt of1h ~ Of

At th ~ tM e8~ of llc: lll'8, th 'imd W' CMd by a nonrnithitm andWlS b.ing op.rnd ow, ind upon ~ tliih~ of this ~ wi th. ow.m,~.d or imli" ptmiaon .

.. Tht th uru:tltmigMd msm 1hil am~ fo,'t ~. of Inn; ths.~tll' of S~ tèace.pi S~Mc. of- ~u Of belief of ,tM MBM d.lndm ~ a~in to ~ ~¡OMof S~e1on 10-30l of th nlmoi V.~. Co aMf 1h _ pro.Wft of ~c: "()301 Of ~Uiinoil V~hiel. Coek am appliebk . _ Nift pmtKm; Ilnd th th unllig høcompliCid wi and wil cont to e;mpiy wi an of th ~¡mmema of ..åd Sen.

5. . Thi tn. wd~migned is ltwam th If pe~ ~nø any aem\ wit Of ~lIdm; whuS., S~eton 1 ()301 of th lUiniB V.hid ~ to d4et a~of ~us 11MB. ~ r.bl4 toIlm~ f..1 and eMU of ti dlndaM If ~ eo fi th 1h ~Cf ~ 1h actonIl~w or should h~ mow th lb. _et . Mt applicble fm tB~ ~__ In lIueacton.

-J 0b) 0e) 0

Thil undClntipnlid .mrm wd., PfMltU of ~fj.. th th fact mUD M,.m 8,. tn

&\j -~. . . t-

_ØI~~IT D: ~ OF SD Skv.lCl~vn OF CCtu.

CBA000193

:o 1' CDT co OF COl: CODiài, n.nr1Sco.~r DEPAJ, LAW DIVS10J

))) NO .))

.orici OF FIL!WÇ svr

'1: £1ull name añd .full address ~f pary)

You are notified that a suit has been filed against you arising outof your use and operation of a motor vehicle on the highways of theState of Illinois. Sumons was served on the Illinois Secretary ofState on ,19_ and the statutory fee paid,,_ A copyof the sumons and this notice is sent to you by registered mal"

Please note that you must file an appearance and pleadig with the,.clerk of the cour within thirty (30) dayii of iiervice on theSecretary of State. If you fail to do 110 a judgmnt by default may

entered against you..

Attorney for plaintiff( addres IS of attorney J

£:iIB1T £: :fOtI~ OF FILnlC 50'17' FOB. SEC'Y OF StATE SERVICE

CBA000194

Dr 'f CIRæ COtJ OF COl: cooi:u:, TUiwiSCOlri-x J)£p~, LA DIVSI01

)) NO.)

UT:n)J\VI~ 0' JilCE i: D£'b'DAn

1.. Defendant waii iierved th~gh, the SeCretary of Statepursuant to 625 ILCS 5/10-301 on . , 19.:.. A copy ofthe SW'nli and the notice regui.red. by ,S10-3~i Cb) waii sent tddefendant · Æ last known address by regi.ster~d mai.l on f1$)_. fAttach a .copy of the retur rece.1pt 0:- of the: envelo~showiDg the registered letter wall retured 'Wcla:ied, whichever .111appliCable. J

2. SlO-301 is applicale to the presënt case based on thefollowing specific facts:

'-)

) (a) At the tim of the motor vehicleaccident, defendant was a resident of thestate of and has remined a non-res~dent of Illinois; or

Cb) At t.he t.ime of t.e mot..or vehicleaccident, defendant was resident. of IllinoisresidiDg at. , butsubsequently becam a non-resident .ofIlliDois and ê resident ofcurrently residè. at .'giv~ other specific, affirmtive factsshowing defendant. has become a non-residentof Illinois 1; or

If and(or

( e) At the t.im the cause of action e.oiie r¡t.he vehicle wa.owned 'by defendant who waiinot. a resident of ths state but of- and the vehicle was being operated on tllehighways of Illinois with the owners expres~ror implied permssion..

Under penalties as provided by law pursuant to Sl-lOg~ of theIllinois Code of Civil Procedure, the undersigned certifies thatthe stat.ements set forth in this instruent are true and correct,except as to matters therein stated to

be on information and beliefand as to such matters the undersigned certifies as aforesaid thathe verily believestbe same to be true.

SICRA1'

.EIB:r~ F! JllM,'fn!1"t"Y I"li .._'l.. _.._ __ _ _ _ __b-. '_. ,

CBA000195

IN mE CIRCi- CO or COl: COtl, ILROIScomr DEPAR, LAW DivSÎOR

))

)))

NO.

OJInThii ciu.1se comig to be' bearÇi on plaintiff. s motion for

defaùlt jUdgment, all paies baving been given du~ notice, thecourt being fully advised of 'te premses and baving jurisdii:ionover the patties and subject :mtter,

IT is HEREBY ORDERE that the defendant isin default for failing to appar, apswer, or otherwise plead,

IT is FUTHR ORDERED tbat this 'cause is tnmsferred instanterto Room 2005 for prove-up of dages.

IT is FUTHR ORDER, that plaintiff will give notice.instanter of tbe entry of thi defaùlt judgment to defendants wbohave appeared, as well as to the pa~ies against whom default basbeen entered.

E. ~Judge of the Circuit Cour

Name:.AddresAttorney

£DlIBIX c:: ORDER FOR DEFAULX iu PROVE-UP OF DAMGES--- '-.

CBA000196

D mEC:IRC CO OF CO COtn, n.nIOISCOUIc:iX ÐEP~, LA ÐIVSIOJ

)))))

NO..

OIWU

This catu;e ~i 'nfi to be belUd on plaitiff. ~ motion fordefault jUdgment, all parie~ baving been given due notice, thecour being fully advised of the pr~ses. and having con~ideredplaint.iff. ~ verified complaint. and affJ,davi.ts. a~ to dages, andthe cour having jurisdiction over the pa~ies and subject matter,

IT is HEREY ORDERE that the defendat isin default for failing to appear 8 answer, or otherwise plead;

IT is FUTHR ORDERD' that judgmnt ia entered againstdefendant in the a:unt of , plusattorneys. fees of , w: interest. off or a t.ot.al amunt. of , plus cour cost.s é Ii

IT is FUTHR ORDERED that plaint.iff will givenot.ice,inst.anter of the entry of thiS' default. judgment. to defendant.swhohave appeared, a5 well as t.o the paries ~a9ai.t whom default. hasbeen ent.ered..

:

EN:JUdge óf t.he Circu 1; Cour

Name:Address:Att.orney for:

~- ..:,t:Y~Y"l R.. 1''Dn.1: 'lnb ..-æ....'M.. .... __,___ CBA000197

Dr :æ CIRct~ COun OF COK COtn, ILLINOISCOt1 DEPA., .LW DIVSION

))) NO..))

OJm~On the motion of

eowU;el for,

for leave to withdraw a~notice having been given,

Ü. grall'ted

IT is HEREBY ORDERED thatleave to withdraw a£ couo5el

IT is FOTmR ORDE' that the party fonnerly repre£entedshall file witht he clerk of the court within 21 days after entryof this order a supplement.al appearance stating an address at whichservice of notices or other paper~ may be had on him or

her , or.. shall retain counsel who shall file an apperance within such time,and

Movant, wi thin three (3) days of the entry of thi~ order,shall serve a copy of this order Upon the party previously'represented in the manner provided by Supreme Cour Rule 13 (e) ( 4 ) 11and proof of service thereof shall be filed.

.'

£N ::JUdge of the Circuit Court

Name:'Address ::Attorney

EXIBr: I, . li:iRAli OF COUJS£I ilbir SllSnnlIO!l

CBA000198

CBA000199

CBA000200

CBA000201

CBA000202

CBA000203

CBA000204

CBA000205

CBA000206

Westlavv.

875 N.E.2d 1065

226 1I1.2d 334, 875 N.E.2d 1065,314 III.Dec. 778(Cite as: 226 m.2d 334, 875 N.E.2d 1065)

HVision Point of Sale. Inc. v. Haas111..2007.

Supreme Court of Ilinois.VISION POINT OF SALE, INC., an Ilinois

Corporation, Appellee,

v.Ginger HAAS et ai', Appellants.

No. 103140.

Sept. 20, 2007.

Background: Corporate employer sued formeremployee and her new employer for tortiousinterference with business relationships, breach offiduciary duty, unjust enrichment, and violation ofII inois Trade Secrets Act. Defendants fied motionto strike plaintiffs responses to requests to admit.The Circuit Court, Cook County, Peter Flynn, Lgranted defendants' motion and denied plaintiffsmotion for an extension of time to fie amended

responses, but later sua sponte vacated the order,

issued an order allowing plaintiff to file lateresponses, and certified a question for immediate

review. The Appellate Couit, McNulty, P.J., 366III.App.3d 692, 304 III.Dec. 81, 852 N.E.2d 331,answered certified question, vacated order, andremanded. Defendants petitioned for leave to appeaL.

Holdings: The Supreme Court, Freeman, 1., heldthat:

(1) in detel1nining whether good cause exists forextension of time to fie a pleading or do any act

required by rules, the circuit court may not take intoconsideration facts and circumstances of record thatgo beyond the reason for noncompliance;

(2) in determining whether good cause exists forextension of time to fie a pleading or do any act

required by rules, the circuit court may receive

evidence with respect to whether the party's original

Page 1 of 17

Page 1

delinquency was caused by mistake, inadveitence,or attorney neglect, overruling Hammond v. SECCommunications, Inc. (SEC) , 365 III.App.3d 879,

302 III.Dec. 828, 850 N.E.2d 265,Robbins v.

Allstate Insurance Co., 362 III.App.3d 540, 298IIL.Dec. 879, 841 N.E.2d 22,Larson v. O'Donnell,361 lll.App.3d 388, 297 IlL. Dec. 132, 836 N.E.2d

863,Cothren v. Thompson, 356 iil.App.3d 279, 292iiL.Dec. 393, 826 N.E.2d 534, and Glasco v.lv/arony, 347 lll.App.3d 1069, 283 lll.Dec. 819, 808N.E.2d 1107;

(3) plaintiffs responses to defendants' requests for

admissions were not deficient, even though the finalpage of the responses did not contain a signature ofplaintiff, overruling Moy v. Ng, 341 lll.App.3d 984,276111.Dec. 160,793 N.E.2d 919;

(4) violation of local rule's fiing requirement couldnot forni the basis for striking plaintiffs responses

to requests for admissions; and

(5) given holding that plaintiffs responses torequests for admissions were not deficient, anyanalysis of whether there was good cause for anextension of time to remedy alleged deficiencieswould be moot.

Judgment of Appellate Court reversed andremanded.West Headnotes

!1 l Courts 106 €=85(2)

106 Couits

10611 Establishment, Organization, andProcedure

10611(F) Rules of Court and Conduct ofBusiness

i 06k85 Operation and Effect of Rules106k85(2) k. Construction and

Application of Rules in General. Most Cited CasesSupreme Court Rules are to be construed in the

~ 2008 Thomson/West. No Claim to Orig. U.S. Govt. Works.

http://web2.westlaw.com/print/printstream .aspx ?prft= HTMLE&destinat CBA000207

875 N.E.2d 1065

226 1I1.2d 334,875 N.E.2d 1065,314 IlI.Dec. 778(Cite as: 226 IIl.d 334, 875 N.E.2d 1065)

same manner as statutes.

121 Appeal and Error 30 ~893(1)

30 Appeal and Error30XVI Review

30XVI(F) Trial De Novo30k892 Trial De Novo

30k893 Cases Triable in AppellateCourt

30k893( I ) k. In General. Most

Cited CasesAppellate review of the construction of a rule is denovo.

131 Pretrial Procedure 307 A ~476

307 A Pretrial Procedure307 All Depositions and Discovery

307 AlI(G) Requests for Admissions307Ak476 k. Time for Response. Most

Cited CasesA trial court in its sound discretion may extend thetime to allow a party to comply with therequirements of rule regarding requests for

admission, after the time deadline for compliance

has expired, if the delinquent party establishes goodcause for its noncompliance. Sup.Ct.Rules, Rules

183,216.

141 Pretrial Procedure 307 A ~19

307 A Pretrial Procedure307 All Depositions and Discovery

307 AlI(A) Discovery in General

307 Ak 19 k. Discretion of Court. Most

Cited CasesCircuit courts must be allowed to exercise theirsound discretion over the course and conduct of thepretrial discovery process.

ISI Pretrial Procedure 307A ~15

307 A Pretrial Procedure307 All Depositions and Discovery

307AII(A) Discovery in General307Ak14 Nature and Purpose

307 Ak 15 k. Discovering Truth,Narrowing Issues, and Eliminating Surprise. Most

Page 2 of 17

Page 2

Cited CasesDiscovery is to be utilized to illuminate the actualissues in the case, as well as to narrow the issues inorder to expeditiously reach a disposition which

fairly vindicates the rights of the parties.

161 Pretrial Procedure 307 A ~472

307 A Pretrial Procedure307 All Depositions and Discovery

307AIl(G) Requests for Admissions307 Ak472 k. Nature and Purpose. Most

Cited CasesRequests for admission constitute discovery.Sup. Ct. Rules, Rule 216.

171 Pleading 302 ~333

302 Pleading302XII Filing and Service

302k333 k. Time for Filing or Service. MostCited Cases

Time 378 ~3

378 Time378k3 k. Computation in General; Tolling.

Most Cited CasesIssues dealing with the nonmoving party-such as

whether the nonmovant was inconvenienced orsuffered prejudice-are not the proper inquiry in

ruling on motion for extension of time for fiing anypleading or doing any act required by rules.Sup.Ct.Rules, Rule 183.

ISI Action 13 ~66

13 Action13 iv Commencement, Prosecution, and

Term ination13k66 k. Course of Procedure in General.

Most Cited CasesThere is a broad overall policy goal of resolving

cases on the merits rather than on technicalities.

191 Contem pt 93 ~30

93 Contempt93Il Powerto Punish, and Proceedings Therefor

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875 N.E.2d 1065

226 1I1.2d 334, 875 N.E.2d 1065,314 III.Dec. 778(Cite as: 226 IIl.d 334, 875 N.E.2d 1065)

93k30 k. Nature and Grounds of Power. MostCited CasesA couit is vested with inherent power to enforce itsorders and preserve its dignity by the use ofcontempt proceedings.

1101 Pretrial Procedure 307 A '844.1

307 A Pretrial Procedure307 All Depositions and Discovery

307 AII(A) Discovery in General

307 Ak44 Failure to Disclose; Sanctions307 Ak44. I k. In General. Most Cited

Cases

Pretrial Procedure 307 A '846

307 A Pretrial Procedure307 A II Depositions and Discovery

307 AIl(A) Discovery in General

307 Ak44 Fai lure to Disclose: Sanctions307 Ak46 k. Dismissal or Default

Judgment. Most Cited CasesSupreme court rule authorizes a trial court toimpose a sanction, including dismissal of the causeof action, upon any part who unreasonably refuses

to comply with any provisions of supreme court'sdiscovery rules or any order entered pursuant to

these rules. Sup.Ct.Rules, Rule 2 19(c).

111 I Time 378 '83

378 Time378k3 k. Computation in General; Tolling.

Most Cited CasesA party's recalcitrance in complying with an orderof the circuit court is an issue separate and apait

from the issue of whether a party has established

good cause to request an extension of time tocomply with a deadline found within supremecouits rules. Sup.Ct.Rules, Rule 183.

1121 Time 378 '83

378 Time378k3 k. Computation in General; Tolling.

Most Cited CasesIn determining whether good cause exists undersupreme court rule allowing for the grant of an

Page 3 of 17

Page 3

extension of time to remedy an unintentionalnoncompliance with a procedural requirement, thecircuit court may not take into consideration facts

and circumstances of record that go beyond the

reason for noncompliance. Sup.Ct.Rules, Rule 183.

1131 Pleading 302 '8333

302 Pleading302XII Filing and Service

302k333 k. Time for Filing or Service. MostCited Cases

Time 378 '83

378 Time378k3 k. Computation in General; Tolling.

Most Cited CasesPlain language of supreme court rule allowing forthe grant of an extension of time for fiing any

pleading or doing any act required by rulesspecifically makes good cause a prerequisite torelief. Sup.Ct.Rules, Rule 183.

1141 Pleading 302 '8333

302 Pleading302XII Filing and Service

302k333 k. Time for Filing or Service. MostCited Cases

Time 378 '83

378 Time378k3 k. Computation in General; Tolling.

Most Cited CasesThe burden of establishing good cause rests on theparty seeking relief under supreme court ruleallowing for the grant of an extension of time for

filing any pleading or doing any act required byrules. Sup.Ct.Rules, Rule 183.

1151 Time 378 '83

378 Time378k3 k. Computation in General; Tolling.

Most Cited CasesThe circuit court has the sound discretion toconsider all objective, relevant evidence presented

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875 N.E.2d 1065

226 IIL.2d 334, 875 N.E.2d 1065, 314 IIL.Dec. 778(Cite as: 226 IIl.d 334, 875 N.E.2d 1065)

by the delinquent party with respect to why there isgood cause for its failure to comply with theoriginal procedural deadline and why an extensionof time should now be granted under supreme courtrule. Sup.Ct.Rules, Rule 183.

1161 Pleading 302 ~333

302 Pleading302XIL Filing and Service

302k333 k. Time for Filing or Service. MostCited Cases

Time 378 ~3

378 Time378k3 k. Computation in General; Tolling.

Most Cited CasesIn detennining whether good cause exists undersupreme COUlt rule allowing for the grant of an

extension of time to fie a pleading or do any act

required by rules, the circuit court may receive

evidence with respect to whether the party's originaldelinquency was caused by mistake, inadvertence,or attorney neglect; overruling Hammond v. SECCommunications. Inc. (5;EC), 365 III.App.3d 879,302 IIL.Dec. 828, 850 N.E.2d 265,Robbins v.Allstate Insurance Co., 362 III.App.3d 540, 298III.Dec. 879, 841 N.E.2d 22,Larson v. O'Donnell,361 III.App.3d 388, 297 IlL. Dec. 132, 836 N.E.2d

863,Cothren v. Thompson, 356 IlI.App.3d 279, 292lll.Dec. 393, 826 N.E.2d 534. and Glasco v.lvlarony, 347 III.App.3d 1069,283 IlL. Dec. 819, 808

N.E.2d 1107. Sup.Ct.Rules, Rule 183.

1171 Pleading 302 ~333

302 Pleading302Xiii Filing and Service

302k333 k. Time for Filing or Service. MostCited Cases

Time 378 ~3

378 Time378k3 k. Computation in General; Tolling.

Most Cited CasesWhat constitutes good cause within context ofsupreme court rule allowing for the grant of an

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extension of time to fie a pleading or do any act

required by rules is fact-dependent and rests withinthe sound discretion of the circuit court.Sup.Ct.Rules, Rule 183.

1181 Appeal and Error 30 ~959(1)

30 Appeal and Error30XVI Review

30XVI(H) Discretion of Lower Court30k959 Amended and Supplemental

Pleadings30k959(l) k. In General. Most Cited

CasesAbsent an abuse of discretion, the decision of thecircuit couit on issue of whether good cause existsunder supreme court rule allowing for the grant ofan extension of time to file a pleading or do any actrequired by rules will not be disturbed.Sup.Ct.Rules, Rule 183.

1191 Appeal and Error 30 ~861

30 Appeal and ElTor

30XVI Review

30XVI(A) Scope, Standards, and Extent, inGeneral

30k857 Extent of Review Dependent on

Mode of Review30k861 k. Cases or Questions

Reported, Reserved, or Certified. Most Cited CasesHaving answered the question of law ceitified forappeal, Supreme Court would, in the interests ofjudicial economy and the need to reach an equitableresult, next consider the propriety of the circuitcourt order that gave rise to the appeaL.

1201 Pretrial Procedure 307A ~477.1

307 A Pretrial Procedure307 All Depositions and Discovery

307 AII(G) Requests for Admissions307 Ak4 77 Response

307Ak477.1 k. In General. Most CitedCasesVerification of plaintiffs responses to defendants'

requests for admission, by certification underpenalty of perjury by plaintiffs Chief Executive

Offcer, constituted the "sworn statement" required

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875 N.E.2d 1065

226 Ill.2d 334, 875 N.E.2d 1065, 314111.Dec. 778(Cite as: 226 m.2d 334, 875 N.E.2d 1065)

by rule governing requests for admission, and thusplaintiffs responses to defendants' requests were notdeficient, even though the final page of theresponses did not contain a signature of plaintiff,but only that of plaintiffs attorney; oveiiuling Moyv. Ng, 341 1Il.App.3d 984, 276 1Il.Dec. 160, 793

N.E.2d 919. S.H.A. 735 ILCS 5/1-109;Sup.Ct.Rules, Rule 216(c).

1211 Pretrial Procedure307A ~477.1

307 A Pretrial Procedure307 All Depositions and Discovery

307 AII(G) Requests for Admissions307 Ak4 77 Response

307Ak477.1 k. In General. Most CitedCasesThere is nothing in rule governing requests for

admission which requires a party to both verity and"sign" the final page of its denials to the requests toadmit of an opposing part; rather, the plainlanguage of the rule states that the party to whomthe requests to admit are directed must serve uponthe requesting paity either "a sworn statement"

denying the matters of which admission is requestedor written objections which need not be sworn.Sup.Ct.Rules, Rule 216( c).

1221 Pretrial Procedure 307 A ~477.1

307 A Pretrial Procedure307 All Depositions and Discovery

307 AII(G) Requests for Admissions307 Ak4 77 Response

307 Ak4 77.1 k. In General. Most Cited

CasesLocal rule requiring that responses to requests foradmissions be both served upon the requesting partyand filed with the clerk of the circuit courtconflicted with supreme court rule only requiring

that responses to requests for admissions be servedon the requesting part, and thus violation of localrule's fiing requirement could not fonn the basis forstriking a party's responses to requests for

admissions. Sup.Ct.Rules, Rule 216( c).

1231 Appeal and Error 30 ~86i

30 Appeal and Error

Page 5 of 17

Page 5

30XVI Review

30XVI(A) Scope, Standards, and Extent, inGeneral

30k857 Extent of Review Dependent on

Mode of Review30k861 k. Cases or Questions

Reported, Reserved, or Ceitified. Most Cited CasesOther issues that defendants attempted to raise intheir brief to Supreme Court fell outside properscope of Court's review of the question of law

certified for appeaL. Sup.Ct.Rules, Rule 308.

1241 Appeal and Error 30 ~843(2)

30 Appeal and Error30XVI Review

30XVl(A) Scope, Standards, and Extent. inGeneral

30k838 Questions Considered30k843 Matters Not Necessary to

Decision on Review30k843(2) k. Review of Specific

Questions in General. Most Cited CasesGiven Supreme Court's holding on appeal thatplaintiffs responses to defendants' requests for

adm issions were not deficient, any analysis of

whether there was good cause for an extension oftime to remedy alleged deficiencies would be moot.Sup.Ct.Rules, Rules 183,216.

**1068 1. Timothy Eaton, Patricia S. Spratt, ofShefsky & Froelich Ltd., James M. Carlson, ofUngaretti & Harris LLP, all of Chicago, for

appellants.Norman M. Leon, of DLA Piper US LLP, Chicago,for appellee.

***781 *335 OPINIONJustice FREEMAN delivered the judgment of thecouit, with opinion:The circuit court of Cook County certitied thefollowing question of law:

"In determining whether 'good cause' exists underSupreme Court Rule 183 for the grant of anextension of time to remedy an unintentionalnoncompliance with a *336 procedural requirement,may the court take into consideration facts andcircumstances of record that go beyond the reason

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875 N.E.2d 1065

226 Ill.2d 334,875 N.E.2d 1065,314 IlL. Dec. 778(Cite as: 226 IIl.d 334, 875 N.E.2d 1065)

for noncompliance?"

The appellate court answered this question in theaftrmative. 366 Ill.App.3d 692, 304 Il Dec. 81,852 N.E.2d 331. We ***782 **1069 grantedleave to appeal (210 Ill.2d R. 315). For the reasons

that follow, we disagree with the appellate couit.We hold that in determining whether good cause

exists under Rule 183 to support an extension oftime allowing a party to comply with a deadline setforth in our rules, the circuit couit may not take intoconsideration facts and circumstances in the casethat go beyond the reason for noncompliance.

Accordingly, we reverse the judgment of theappellate court and remand this cause to the circuitcouit for further proceedings consistent with this

opinion.

BACKGROUND

This interlocutory appeal has its genesis in aFebruary 2004 complaint filed in the circuit court ofCook County by plaintiff, Vision Point of Sale, Inc.,against defendants Legacy Incorporated (Legacy)and Ginger Haas. Both plaintiff and Legacy areengaged in the sale and refurbishing of usedpoint-of-sale equipment,FN i and therefore are in

direct competition for customers. In its complaint,

plaintiff alleged that it had hired Haas in January2002 to serve as the executive secretary to plaintiffsChief Executive Oftcer Frank Muscarello.According to plaintiffs complaint, Haas had accessto plaintiffs confidential and proprietaryinformation. including its customer lists and

databases, customer-contact information containing

private and cellular telephone numbers and emailaddresses, and customer *337 order, pricing andequipment information. The complaint alleged thatHaas resigned from plaintiff and began employmentimmediately thereafter with Legacy, takingplaintiffs confidential and proprietary information

with her. Plaintiff fuither alleged that "Haas stolesuch information at the direction or with the

encouragement of Legacy," with the ultimate intentof soliciting plaintiffs customers.

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FN I. "Point of Sale" equipment is used bybusinesses to relay information from onepoint to another, i.e., from a retailcustomer checkout station to a centralizedinventory management system or to aprinter.

Plaintiffs complaint sought damages from bothHaas and Legacy for breach of fiduciary duty,tortious interference with plaintiffs business

relationships, unjust enrichment, and violation ofthe Illinois Trade Secrets Act (765 ILCS 1065/1 etseq. (West 2002)). Plaintiff requested that thecourt, inter alia, peimanently enjoin defendants

from using its confidential and proprietary

information for the benefit of Legacy.

Plaintiff also sought a preliminary IlJunction

against defendants, requesting that the circuit courtprevent any misappropriation of plaintiffsconfidential and proprietary customer infol1nation.After conducting an evidentiary hearing onplaintiffs motion, the circuit court entered apreliminaiy injunction against defendants to

maintain the status quo pending the outcome ofplaintiffs suit. In addition, the circuit court entered

several orders that set forth procedures intended toprotect plaintiffs confidential information and

provided a timetable by which the court expected

defendants' compliance. FN2

FN2. For example, the court orderedLegacy, inter alia, to purge all of plaintiffscustomer information from its computer

system and required Legacy to allowon-site inspections by plaintiffs computer

experts to verifY the removaL.

For the next several months, the litigation between

the parties focused upon defendants' failure tocomply with the couits preliminary injunctionorders. As a result, the circuit court held additionalhearings and entered another order detailing withgreater specificity *338 the method by which itspreliminary injunction order was to be implemented,***783 **1070 including an updated timetable forcompliance.

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875 N.E.2d 1065

226111.2d 334,875 N.E.2d 1065, 314111.Dec. 778

(Cite as: 226 m.2d 334, 875 N.E.2d 1065)

During this period, proceedings with respect toplaintiffs complaint for a permanent injunction

were also moving forward. On December 14,2004, defendants sent to plaintiff their "Rule 216Request for Admission of Facts," which consistedof 65 separate requests for admission. Defendants

did not fie their requests to adm it with the clerk of

the circuit court of Cook County at the time ofservice, contrary to Rule 3 .1 (c) of the circuit courtof Cook County (Cook Co. Cir. Ct. R. 3.1(c) (eff.May 1, 1996)). Plaintiff timely responded to eachof defendants' requests to adm it on January 12,

2005. The final page of plaintiffs responses wassigned by plaintiffs counsel on behalf of plaintiff.On the page immediately following the last page ofresponses, Muscarello signed a verification of theresponses, which tracked the language set foith insection 1- i 09 of the Code of Civil Procedure (735ILCS 51\-109 (West 2002)).

On April i, 2005, defendants fied their "Motion toStrike Plaintiffs Responses to First Set of Requeststo Admit and to Deem Facts Admitted."Defendants asserted that because plaintiffsresponses to the requests to admit were deficient,the responses should be stricken and the facts setforth by defendants in the requests be deemed

adm itted under Supreme Court Rule 216 (134 Ill.2dR. 216). Defendants maintained that plaintiffsresponses were defective because, although theywere verified by Muscarello in accordance with

section 1-109 of the Code of Civil Procedure (735

ILCS 51\-109 (West 2002)), the final page of theresponses themselves did not contain a signature ofplaintiff, but only that of plaintiffs attorney.

Defendants asserted that Rule 2 I 6 and the appellatecourt's decision in Moy v. Ng, 341 IlI.App.3d 984,276 IlI.Dec. 160, 793 N .E.2d 919 (2003), requirethat a part must sign the final page of *339 the

responses, and that a separate section 1-109

verification-absent a party's signature on theresponses' final page-is insufficient. In addition,

defendants contended that the responses were

deficient in that they violated Rule 3.I(c) of therules of the circuit court of Cook County (Cook Co.Cir. Ct. R. 3.1(c) (eff. May 1, 1996)), which

requires that responses to requests to admit must befied with the clerk of the circuit couit. Finally,defendants maintained that plaintiff could not

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establish "good cause" for any extension of time toremedy these deficiencies pursuant to Supreme

Court Rule 183 (134 Il1.d R. 183).

The circuit court granted defendants' motion to

strike plaintiffs responses to defendantsl request toadmit and to deem those facts admitted. The courtfound that plaintiffs responses were deficient in thatthey failed to comply with Moy and Rule 3.1(c) ofthe circuit court of Cook County. At theconclusion of the court's ruling, counsel for plaintifforally moved, pursuant to Rule 183, for leave toallow plaintiff further time to serve and fie a set ofamended responses, which, in addition to containingthe section I-i 09 verification, would also containthe signature of Muscarello on the last page of theresponses. Counsel argued that the "good cause"required to be shown under Rule 183 to support thismotion was a good-faith reading of section 1- I 09 ofthe Code of Civil Procedure, which appeared to

allow the use of a verification in submittingresponses to requests to admit. The circuit courtdenied counsel's motion.

After the circuit court ruled on the request-to-admit

issue, the litigation between the parties proceeded.The defendantsl alleged continued failure to complywith the circuit court1s preliminary injunction

rulings served as the basis for several ***784

**1071 contested motions and additional courthearings. During the course of one of thesehearings, the circuit court expressed frustration withrespect *340 to what it characterized as defendants'"settled policy of recalcitrance" with regard to theirlack of compliance with these earlier rulings. Thisfrustration, coupled with the court's view thatplaintiffs responses to defendants' requests to admitwere deficient only as a result of a "technical and

inadveitent failure," caused the circuit court to suasponte reconsider and vacate its prior rulinggranting defendants' request to deem facts admittedand refusing to allow plaintiff an extension of timepursuant to Rule 183 to serve and file an amendedresponse to the requests to admit. The circuit courtnow determined that under the totality ofcircumstances in the case, good cause existed underRule i 83 for the time extension requested by

plaintiff.

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875 N.E.2d 1065

226 1I1.2d 334,875 N.E.2d 1065,314 lll.Dec. 778(Cite as: 226 1I1.2d 334, 875 N.E.2d 1065)

Defendants objected to the circuit COUltS ruling

allowing plaintiff additional time under Rule 183 toamend its responses. Defendants argued that thecircuit court's inquiry in determining whether togrant a time extension pursuant to Rule 183 islimited to examining only whether plaintiffestablished good cause for its noncompliance withthe deadline, and that the court had erred infocusing upon defendants' own, unrelated conduct.Accordingly, defendants moved that the circuitcourt certify this issue for interlocutory appeal

under Rule 308(a) (155 lll.2d R. 308). The circuitcourt thereafter certified the question of lawpreviously identified at the outset of this opinion.

The appellate court granted defendants' petition forleave to appeaL. 366 111.App.3d 692, 304 lll.Dec.81, 852 N .E.2d 331. The appellate court held thatwhen deciding whether to grant an extension of timefor filing a response to a request to admit facts, thecircuit COUlt "may consider any facts that help it 'strike a balance between diligence in litigation andthe interests of justice.' (Citation.)" 366 1Il.App.3dat 694, 304 lll.Dec. 81, 852 N.E.2d 331.Accordingly, the appellate court further held that acircuit court "need not restrict its attention to thecauses for *341 the delay in the response to the

request to admit" in determining whether to grant anextension of time under Rule 183. 366 III.App.3dat 694, 304 1Il.Dec. 81, 852 N .E.2d 331.

This COUlt allowed defendant's petition for leave toappeal (210 1I1.2d R. 315).

ANAL YSIS

(1J(2) In order to answer the certified question, wemust construe Rule 183 and, to some extent, Rule216 as welL. Our Rule 183 provides:"The court, for good cause shown on motion afternotice to the opposite party, may extend the time forfiling any pleading or the doing of any act which isrequired by the rules to be done within a limitedperiod, either before or after the expiration of the

time." 134 lll.2d R. 183.

Our Rule 216 provides, in pertinent part: "(a)Request for Admission of Fact. A part may serve

Page 8 of 1 7

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on any other part a written request for theadmission by the latter of the truth of any specifiedrelevant fact set forth in the request.* * *

(c) Admission in the Absence of DeniaL. Each ofthe matters of fact * * * of which admission is

requested is admitted unless, within 28 days ofservice thereof, the part to whom the request isdirected serves upon the part requesting the

admission either (1) a sworn statement denying

specifically the matters of which admission isrequested or setting forth in detail the reasons whyhe cannot truthfully admit or deny those matters

***785 **1072 or (2) written objections on theground that some or all of the requested admissionsare privileged or irrelevant or that the request isotherwise improper in whole or in part. If writtenobjections to a pait of the request are made, the

remainder of the request shall be answered within

the period designated in the request. A denial shallfairly meet the substance of the requested

admission. If good faith requires that a party denyonly a part, or requires qualification, of a matter ofwhich an admission is requested, he shall specify somuch of it as is true and deny only the remainder.Any objection to a request or to an answer shall beheard by the court upon *342 prompt notice and

motion of the party making the request." 134 1I1.2d

R.216.

It is well settled that our rules are to be construed inthe same manner as statutes (134 1I1.2d R. 2;People v. Norris, 214 lll.2d 92, 97, 291 lll.Dec.629, 824 N .E.2d 205 (2005); In re Estate ()rRennick, 181 1I1.2d 395, 404, 229 1lDec. 939, 692N.E.2d 1150 (1998); see also Adams v. NorthernIlinois Gas Co., 211 lll.2d 32, 48, 284 lll.Dec. 302,809 N.E.2d 1248 (2004) (setting out rules ofconstruction)), and our review is de novo (In reStorment, 203 1I1.2d 378, 390, 272 IlI.Dec. 129, 786N.E.2d 963 (2002)).

Both parties acknowledge that this court lastinterpreted the good-cause requirement containedwithin Rule 183 in Eržght v. Dicke, 166 ll1.d 204,209 lll.Dec. 735, 652 N.E.2d 275 (1995). The

parties disagree, however, on its application to thequestion presented here. Defendants initiallycontend that since Eright, this court has moved

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875 N .E.2d 1065

226 Ill.2d 334, 875 N .E.2d 1065,314 1I.Dec. 778(Cite as: 226 lII.d 334, 875 N.E.2d 1065)

away from considering Rule 216 requests to admitas part of the discovery process and, for that reason,the circuit court's usual discretion is more limited inthis context than it is with respect to other discoverytools. In addition, defendants maintain that to theextent that Eright is still good law, the appellate

court's analysis is at odds with it.

Plaintiff, on the other hand, argues that the appellateCOUltS analysis must be upheld because in the time

period since Eright, certain other decisions of the

appellate court have served to nal1'owly define thegood-cause requirement contained in Rule 183

when the rule is used to seek an extension of timefor compliance with Rule 216. Plaintiff suggeststhat the analysis utilized by the appellate court hereproperly restores to the circuit court, for purposes ofRule 183 and Rule 216, the discretion this courtchose to vest in it in Bright.

Given the parties' arguments, it is helpful to beginour analysis with a detailed discussion of this court'sopinion in Eright. There, we answered a question

of law certified for interlocutory review pursuant toRule 308(a) concerning whether a circuit court hasdiscretion under Rule 183 to allow a part to file a

late response to a *343Rule 216 request to admit.We held that Rule 183 vests the circuit couit withdiscretion to allow a party to serve a response to

requests to admit after the expiration of the 28-dayperiod specified in Rule 216. Eright, 166 1l1.2d at208, 209 I1I.Dec. 735, 652 N.E.2d 275.FN3 We

explained that because Rule 216 requests foradmission are "essentially a discovery tool" (Eright,166 IIl.2d at 208,209 IlI.Dec. 735, 652 N.E.2d 275),a contrary holding that a circuit court could not

grant paities additional time to respond under Rule216 would "not only conflct with the plainlanguage of Rule 183, it would also be inconsistentwith our ***786 **1073 view that circuit courtsmust be allowed to exercise discretion over theconduct of pretrial discovery." Eright, 166 1l1.2d at208, 209 llDec. 735, 652 N.E.2d 275, citingSohaey v. Van Cura, 158 I11.2d 375, 381, 199III.Dec. 654, 634 N.E.2d 707 (1994).

FN3. We note that the ciirrent language inboth rules remains unchanged from the

Page 9 of 17

Page 9

time we reviewed it in Eright.

Having construed Rule i 83 to allow a circuit courtdiscretion to permit a party to fie a late response to

a Rule 216 request to admit, this court thenconsidered, in the interests of judicial economy andthe need to reach an equitable result, the proprietyof the order that gave rise to the appeaL. Eright,

166 1I1.2d at 208,209 I1I.Dec. 735, 652 N.E.2d 275.The defendant had originally submitted aprocedurally deficient response to the plaintiffsrequests for admission under Rule 2 i 6.Subsequently, the defendant moved for leave to filean amended response after the time deadlinecontained with in Ru Ie 216 had passed. We notedthat, in support of her motion, the defendant"presented a chronology of events pertaining to herresponse( ) (but) offered no explanation, however,

as to why the 28-day deadline was not met * * *.(The defendant's) position was simply that the COUlt

should grant her motion because the requested

admissions relate to central issues in the case andallowing her to make an untimely response would

not prejudice (the plaintiff¡" Eright, 166 IIl.2d at206,209 III.Dec. 735, 652 N.E.2d 275.

The circuit court denied the defendant's motion on

the *344 basis that good cause had not been shownto justity the grant of an extension of time pursuantto Rule 183.

In upholding the ruling of the circuit court, weemphasized that a circuit court's discretion to pennita late response "does not come into play under therule unless the responding party can first show goodcause for the extension." Eright, 166 Ill.d at 209,

209 IlI.Dec. 735, 652 N.E.2d 275. Because the

Eright defendant had offered no explanation as towhy she was unable to comply with the timedeadline set forth in Rule 216, we concluded thatshe failed to satisfy the good-cause prerequisite forrelief found in Rule 183. Eright, 166 Ill.d at 209,209 IlI.Dec. 735, 652 N.E.2d 275.

We rejected the argument advanced by thedefendant that the issue of good cause should beconsidered only if the nonmovant could show thatallowing the late response would result in hann.Eright, 166 lll.2d at 209, 209 lll.Dec. 735, 652

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875 N.E.2d 1065

226 1I1.2d 334, 875 N.E.2d 1065,314 IlI.Dec. 778(Cite as: 226 m.2d 334, 875 N.E.2d 1065)

N.E.2d 275. We held that the procedure advocatedby the defendant would improperly reverse theburden of proof, and that "the part opposing such amotion should be under no obligation to showanything." Eright, 166 I11.2d at 210, 209 I1I.Dec.735, 652 N.E.2d 275. Accordingly, we instructedthat the "mere absence of inconvenience orprejudice to the opposing party is not suffcient toestablish good cause under Rule 183." Eright, 166Il1.2d at 209, 209 III.Dec. 735, 652 N.E.2d 275.We further held that when a circuit court is rulingupon a request for extension pursuant to Rule 183, "the general rule pertains: the burden of establishing

grounds for relief is on the party requesting the

additional time" and that "(n)onmoving parties suchas (the plaintiffj should not be required to justityapplication of a rule before it will be given effect."Eright, 166 lll.2d at 210, 209 lll.Dec. 735, 652

N.E.2d 275. Accordingly, we held that the circuitcourt correctly denied the defendant's motion for

extension pursuant to Rule 183.

(3)(4) Eright thus stands for the proposition that,

under the plain language of Rule 183, a trial courtin its sound discretion may extend the time to allowa party to comply *345 with the requirements of

Rule 216 after the time deadline for compliance hasexpired if the delinquent part establishes***787

**1074 good cause for its noncompliance. As wasnoted in Eright, the fundamental principles which

animate our Rule 183 have long been part of ourcase law: circuit COUlts must be allowed to exercisetheir sound discretion over the course and conductof the pretrial discovery process. Eright, 166 ll1.dat 208, 209 III.Dec. 735, 652 N.E.2d 275; see alsoSohaey, 158 Ill.2d at 380-83, 199 lll.Dec. 654, 634N.E.2d 707.

In light of our holding in Eright, we mustnecessarily reject defendants' assertion that we, in

our subsequent decision in P.R.S. International,Inc. v. Shred Pax Corp., 184 lll.2d 224, 234 IlI.Dec.459, 703 N.E.2d 71 (1998), distanced ourselvesfrom Eright by holding that requests to admit arenot part of the discovery process. Initially,defendants ignore that immediately after we

announced our decision in Eright, we amended ourRule 20 I-entitled "General Discovery Provisions"

-which vests trial courts with broad powers to

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supervise the discovery process in order to prevent

abuse (166 Ill.2d R. 201). Specifically, we

amended subsection (a) of Rule 20 I to include

requests to admit within the definition of "discoverymethods." 166 ll1.d R. 20 1 (a). This amendmentclearly reinforced our statement in Eright thatrequests for admission are part of the discovery

process. Eright, 166 lll.2d at 208, 209 lll.Dec. 735,652 N.E.2d 275.

In addition to overlooking our amendment to Rule201, defendants read P.R.S. far too narrowly. P.R.S.

involved a question different from that presented

both in Eright and in the matter before us: "

whether a party's fàilure to respond to a request foradmission pursuant to Supreme Court Rule 216(134 ll1.d R. 216) results in a judicial admissioneven where the requested admission relates to 'ultimate facts' or to 'legal conclusions.' " P.R.S.,

184 m.2d at 226, 234 IlI.Dec. 459, 703 N.E.2d 71.In the course of answering that question, we stated:"Although requests to admit are often classified as adiscovery device and treated as such in practice*346(Eright, 166 lll.2d at 208 (209 lll.Dec. 735,652 N.E.2d 275) ),'the purpose of admissions is notto discover facts but rather to establish some of thematerial facts in a case without the necessity of

formal proof at triaL.' Requests to adm it are 'adevice by which "to separate the wheat from thechaff' , and are 'intended to circumscribecontested factual issues in the case so that issues

which are disputed might be clearly and succinctlypresented to the trier of facts.' 23 Am.Jur.2d § 314(1983)." P.R.S., 184 lll.2d at 237, 234 lll.Dec. 459.703 N.E.2d 71.

(5)(6) Our rulings in ErIght and P.R.S. wereintended to underscore that the concept of "

discovery" is not one-dimensional, a viewsupported by the fact that several definitions existfor this tel1n. For example, Black's Law Dictionarydefines "discovery" as "(t)he act or process of

finding or learning something that was previously

unknown." Black's Law Dictionary 498 (8thed.2004). Defendants appear to rely upon thisdefinition in asserting that requests to admit do notconstitute "discovery," as they do not serve thepurpose of uncovering new and unknown

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information. However, Black's also defines "discovery" as "(c)ompulsory disclosure, at a party'srequest, of infol1ation that relates to the litigation,"and states that "(t)he primary discovery devices areinterrogatories, depositions, requests foradmissions, and requests for production." Black'sLaw Dictionary 498 (8th ed.2004). This definitionof "discovery" corresponds with our discussion inP.R.S. wherein we stated that requests to admit areusefùl "to separate the wheat from the chaff' withthe purpose of narrowing the actual contested issuesin ***788 **1075 the case so that they might beclearly and succinctly presented to the trier of fact.P.R.S., 184 Il1.2d at 237, 234 IlL. Dec. 459, 703N.E.2d 71. This concept is also consistent with ourlong-held belief that discovery is to be "utilized to 'illuminate the actual issues in the case' "(Owen v.Mann, 105 1l1.2d 525, 530, 86 Il1.Dec. 507, 475N.E.2d 886 (1985), quoting Sarver v. Earrett AceHardware. Inc., 63 m.2d 454, 460, 349 N.E.2d 28(1976)), as well as to "narrow the issues in order toexpeditiously reach a disposition which fairlyvindicates the rights of the parties*347 "(Sander v.Dow Chemical Co., 166 Ill.2d 48, 65, 209 1Il.Dec.623, 651 N.E.2d 1071 (1995)). In light of theabove, we therefore disagree with defendants'

asseition that Rule 216 requests to admit are not"discovery." We hold, as we did in Eright, thatrequests for admission constitute discovery.

We next address whether the analysis of theappellate court is, as defendants suggest, at odds

with Eright. The parties disagree over the scope ofthe inquiry a circuit court may engage in whendetermining whether good cause has beenestablished to support a time extension pursuant toRule 183. In addition, the parties also disputewhether our case law has developed a blanketprohibition against raising certain factors in SUppoit

of a good-cause argument.

Plaintiff relies upon the opinion of the appellatecourt below to support its position that when rulingupon a Rule 183 motion to allow an extension oftime with respect to deadlines set forth in Rule 216,a circuit court is entitled to consider all of the

circumstances of a case-including any unrelated

conduct of the opposing part occurring during thelitigation-in detel1ining whether "good cause"

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exists to grant an extension of time to the

noncompliant part. According to plaintiff, ourdecision in Eright supports this reasoning, as thereis no language in that opinion which limits thecourt's examination solely to whether thenoncompliant party had good cause for failing tomeet the deadline. Because plaintiff maintains thata circuit court may consider the totality of thecircumstances of the entire case in determining

whether good cause has been established, plaintiffconcludes that the appellate court correctlyanswered the ceitified question in the affrmative.

Both plaintiff and the appellate court below,

however, overlook the fact that in Eright we

concluded that it is the party moving for an

extension of time pursuant to Rule 183 who mustbear the burden of establishing good *348 cause forthe court to grant the time extension and who mustsubmit to the court clear, objective reasons why itwas unable to meet the original deadline and why anextension of time should be granted. For thisreason, the appellate court's analysis here, whichfocused on reasons wholly unrelated to whyplaintiff failed to meet the deadline in the firstplace, is at odds with Eright. In our view, the

assessment of whether a delinquent party hasestablished good cause to allow the circuit court toexcuse that paity's noncompliance with thedeadlines set forth in Rule 216 may not be so broadas to include the entire "totality of the circumstances" of the case up to that point, including theunrelated conduct of the nonmoving part. To holdotherwise would transform the Rule 183 good-cause

determination into an open-ended inquiry allowingmatters il1'elevant to the discovery process toimproperly pel1eate the analysis. Rather, webelieve the better approach is one where thedelinquent part presents objective reasons to thecourt as to why the deadline was not met.

That said, we believe plaintiffs contentionsregarding the appellate court's treatment, post-Eright, of the Rule 183 inquiiy ***789 **1076

deserve some consideration. Plaintiff suggests thatthe analysis offered by the appellate court below isthe only way to ameliorate the often harsh resultsstemming from a series of post-Eright decisionswhich have created a "trap for the unwary" by

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875 N.E.2d 1065

226 lll.2d 334,875 N.E.2d 1065,314 IlI.Dec. 778(Cite as: 226 Bl.d 334, 875 N.E.2d 1065)

unduly limiting the good-cause inquirycontemplated by this court in Bright by holding

that "mistake, inadvertence, or attorney neglect"

cannot constitute the sole basis for a good-cause

determination. See, e.g., Hammond v. SECCommunications, Inc. (SEC' , 365 IlI.App.3d 879,

893, 302 IlI.Dec. 828, 850 N.E.2d 265 (2006);

Robbins v. Allstate Insurance Co., 362 IlI.App.3d540, 544, 298 lll.Dec. 879, 841 N.E.2d 22 (2005);Larson v. O'Donnell, 361 IlI.App.3d 388, 396, 2971Il.Dec. 132, 836 N.E.2d 863 (2005); Cothren v.Thompson, 356 IlI.App.3d 279, 283-84, 292lll.Dec. 393. 826 N.E.2d 534 (2005); Glasco v.MarOf~V, 347 lll.App.3d 1069, 1073, 283 IlI.Dec.819,808 N.E.2d 1107 (2004).

*349 The appellate couit's opinion in Hanimondprovides a good example of the reasoning espoused

in this line of cases. There, the court identified

factors to consider in deciding the propriety of acircuit court's ruling on a Rule 183 good-causeextension. The court first noted that, based uponEright, Rule 183 allows a trial court to grantextensions with respect to the deadlines in Rule 2 i 6as long as good cause is shown. The court then setfoith the test it believed should be used to

determine good cause:"That is, the responding part cannot rely upon the 'mere absence of inconvenience or prejudice to theopposing party'(Eright, 166 1l1.2d at 209 (209

IlI.Dec. 735, 652 N.E.2d 275) ) or mistake,

inadvertence, or attorney neglect as the sole basis

for a good-cause determination (Larson, 361

III.App.3d at 396 (297 IlI.Dec. 132, 836 N.E.2d

863) ), but must, instead, assert some independentbasis for allowing the untimely response (Eright,166 1I1.2d at 209 (209 IlI.Dec. 735, 652 N.E.2d275); Larson, 36 i IlI.App.3d at 395 (297 llDec.132, 836 N.E.2d 863) )." Hanimond, 365IlI.App.3d at 893,302 IlI.Dec. 828, 850 N.E.2d 265.

As is evident from this excerpt from Hammond, ourappel1ate court over time has melded our narrowholding in Eright-that the mere absence ofinconvenience or prejudice to the nonmoving partalone is insuffcient to satisfy the good-cause

requirement-with a second, broader, harsher, and

apparently inflexible standard that "mistake.

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inadvertence, or attorney neglect" on the part of themoving part can never serve as the sole basis forestablishing good cause to support an extension

pursuant to Rule 183. This, in turn, means that

under this line of case law, unless the party can

present evidence separate and apart from mistake,

inadvertence, or attorney neglect to support an

argument that there was good cause for the initialdelay in compliance, the extension will not be

granted. Because Rule 216 provides that failing torespond to a request to admit deems the requested

facts admitted (134 lll.2d R. 216; P.R.S., 184 Ill.2dat 236, 234 IlI.Dec. 459, 703 N.E.2d 71), in *350most instances this result may prove fatal to the caseof the delinquent party.FN4

FN4. Indeed, the harsh consequenceswhich may result upon application of theappellate court's blanket rule that "mistake,inadvertence, or attorney neglect" may notbe considered has engendered substantialnegative discussion from commentators.

See, e.g., S. Wood, An InconvenientTruthiness About Rule 216, ChicagoLawyer, December 2006, at 26, 62

(questioning "whether the point of Rule216 is to obtain information or to set a trapin hope of winning by default"); J. Hynes,Admission of Facts in DiscoveiyAvoiding the Rule 2 J 6 Trap, 93 111. B.J.402, 406 (2005) (noting that "(s)inceEright, no reported appel1ate case has

found 'good cause' for an untimelyresponse to a request to admit").

;'*1077 790 Although we agree with plaintiff thatthe rule which has developed from this line of casesis unduly harsh, we disagree that the answer is toendorse the analysis proffered by the appellate couiibelow. We initially note that we never held inEright that factors such as mere inadvertence or

mistake are insuffcient as a matter of law toconstitute good cause under Rule 183. As weexplained above, Eright stands for the proposition

that, like in any other motion, the movant in a Rule183 motion bears the burden of sustaining itsgrounds, and rejected the defendant's assertion thatas long as the nonmovant was not hanned, a Rule

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183 motion to extend time should be granted.Accordingly, it follows that in Eright, we held thatissues dealing with the nonmoving party-such as

whether the nonmovant was inconvenienced orsuffered prejudice-were not the proper inquiry in

ruling on a Rule 183 motion, and thereforedetermined that good cause is not synonymous withthe nonmovant's lack of hal1n. This holding was

meant to underscore our strong rejection of thedefendant's argument in that case, and the opinion

was tailored to address whether the circuit COUlt

properly determined that the "good-cause"requirement had been met on those specific facts.We did not hold-as the appellate court *351subsequently has-that there is a blanket rule that

mistake, inadvertence, or attorney neglect on the

part of the moving part can never form the basis ofa good-cause argument that a Rule 183 time

extension should be granted. Indeed, these types ofreasons properly focus the circuit court's inquiry onthe conduct of the proper part-the movant.

(8) By grafting this blanket prohibition onto ourholding in Eright, the appellate court has created

what has proved to be an unworkable analyticalfì-mework that is unduly severe. As defendants

note in their brief, several groups within the legal

community have submitted proposals to amendRu Ie 2 i 6 in an effort to soften the adverse effectson litigation which have followed in the wake ofthese appellate cOUli decisions. For example, ourexamination of the transcript of the public hearingsheld by our Rules Committee on this issue revealsthat much of the concem stems fi'om the applicationof the blanket prohibition developed by the

appellate court-a prohibition repeatedlycharacterized as "draconian"-rather than from theactual language in Rule 216. Those testifying atthe hearing generally agreed that even the best of

lawyers may make a technical or inadvertentmistake, and that such conduct should not serve asan automatic basis for denying a good-cause motionfor extension of time, especially since a failure torespond to a request to admit deems the requested

facts admitted. Indeed, the case before us isillustrative of the problems both practitioners andjurists have faced with respect to the harsh resultsoften obtained under the appellate court's en graftedrule. Rather than assisting the circuit court in

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exercising its sound discretion in detem1Ìning

whether a delinquent part has established good

cause to justify an extension pursuant to Rule 183,this after-decided rule has improperly limited thediscretion of our circuit courts in considering

objective evidence which may be relevant *352 tothe court's good-cause decision. We note that thereis a broad overall policy goal of resolving cases on

the merits rather than on technicalities (see, e.g.,Shimanovsky v. General Motors Corp., 181 1I1.2d112, 123,229 1Il.Dec. 513,692 N.E.2d 286 (1998)(in resolving discovery disputes, the goal is to "insurer ) both ***791 **1078 discovery and a trialon the merits")), and that the post- Eright line ofappellate couii cases run directly counter to thisprinciple.

Rather than endorse, as plaintiff suggests, theanalysis of the appellate court below, we believe theproblems identified by plaintiff are best resolved bythis COUlt today clarifying that we have never heldin this context that "mistake, inadvertence, or

attorney neglect" is automatically excluded from thetrial cOUli's consideration in detennining whethergood cause exists to grant an extension of timepursuant to Rule 183. Accordingly, those appellate

court decisions which have grafted this standardonto the analysis we set forth in Eright (see, e.g.,Hammond v. SEC Communications, Inc. (SEC),365 Il.App.3d 879, 893, 302 IlDec. 828, 850

N.E.2d 265 (2006); Robbins v. Allstate InsuranceCo., 362 I1I.App.3d 540, 544, 298 lll.Dec. 879, 841N.E.2d 22 (2005); Larson v. O'Donnell, 361lll.App.3d 388, 396, 297 1Il.Dec. 132, 836 N.E.2d

863 (2005); Cothren v. Thompson, 356 1Il.App.3d279, 283-84, 292 I1I.Dec. 393, 826 N.E.2d 534(2005); Glasco v. Marony, 347 1Il.App.3d 1069,1073, 283 IlDec. 819, 808 N.E.2d 1107 (2004))

are overruled.

(9)( 1 0)( i 1) As a final argument, plaintiff contendsthat the analysis used by the appellate court belowshould be upheld on the basis that it ensures that arecalcitrant part will not reap the benefit of itsnoncompliance with couit orders. We are not

unsympathetic to the frustration experienced bothby the circuit cOUli and by the opposing party if onepart in the case engages in recalcitrant behavior.But, we have long held that "(a) court is vested with

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inherent power to enforce its orders and preserve itsdignity by the use of contempt proceedings."

People v. Warren, 173 Ill.2d 348, 368, 219 lll.Dec.533,671 N.E.2d 700 (1996); see also In re Eaker,71 Ill.2d 480, 484, 17 Il Dec. 676, 376 N.E.2d

1005 (1978) (citing cases). In addition*353 , ourRule 219(c) (I 66Il1.2dR. 219(c))"authorizes a trialcourt to impose a sanction, including dismissal ofthe cause of action, upon any party whounreasonably refuses to comply with any provisionsof this court's discovery rules or any order enteredpursuant to these rules." Shimanovsky, 18 I Ill.2d at120, 229 IlI.Dec. 513, 692 N.E.2d 286. We stress,however, that a party's recalcitrance in complyingwith an order of the circuit court is an issue separateand apart from the issue of whether a part has

established good cause under Rule 183 to requestan extension of time to comply with a deadline

found within this court's rules.

(12)(13)(14)(15)(16)(17)(18) In sum, we answer thecertified question by holding that in detel1iningwhether good cause exists under Rule 183 for thegrant of an extension of time to remedy anunintentional noncompliance with a procedural

requirement, the circuit court may not take intoconsideration facts and circumstances of record thatgo beyond the reason for noncompliance. Rather,

we reaffrm Erights holding that the plain languageof Rule i 83 specifically makes good cause aprerequisite to relief, and that the burden ofestablishing good cause rests on the party seekingrelief under Rule 183. The circuit court has thesound discretion to consider all objective, relevantevidence presented by the delinquent part with

respect to why there is good cause for its failure tocomply with the original deadline and why anextension of time should now be granted. The

circuit court may receive evidence with respect towhether the part's original delinquency was causedby mistake, inadvertence, or attorney neglect, butmay not engage in an open-ended inquiry whichconsiders conduct that is unrelated to the causes ofthe party's original noncompliance. We decline,however, to specifically ***792 **1079 definewhat constitutes good cause within this context. asthat determination is fact-dependent and rests withinthe sound discretion of the circuit court. *354Absent an abuse of discretion, the decision of the

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circuit court on this issue wil not be disturbed.

See Reda v. Advocate Health Care, 199 1I1.2d 47,54,262 IlL. Dec. 394, 765 N.E.2d 1002 (2002).

(19) Having answered the question of law certifiedfor appeal, we next consider the propriety of thecircuit court order that gave rise to these

proceedings. As in Eright, we here engage in thisreview in the interests of judicial economy and theneed to reach an equitable result. See Eright, 166Ill.2d at 208, 209 111.Dec. 735, 652 N.E.2d 275.

Counsel for plaintiff requested that the circuit courtallow plaintiff a good-cause extension under Rule183 to prepare an amended set of responses todefendants' requests to admit after the circuit courtfound that the responses submitted by plaintiff weredeficient for two separate reasons. As a result offinding plaintiffs responses deficient on these twogrounds, the circuit court struck plaintiffs responsesand deemed the facts within defendants' requestsadmitted. We address each of the findings of thecircuit court seriatim.

(20) First, the circuit court determined thatplaintiffs responses were deficient in that the finalpage of the responses was not signed by plaintiff,even though Muscarello, on the very next page,

verified the responses by certification under penaltyof perjury in accord with section I-i 09 of the Codeof Civil Procedure (735 ILCS 5/1-109 (West2002)). Defendants contend that the circuit courtcorrectly ruled that plaintifts responses were

deficient because they lacked plaintiffs signature ontheir final page. As they did in the circuit court,defendants premise this argument upon theappellate court's decision in Moy, wherein the courtheld that because Rule 216 "requires response by

the parties" (Moy, 341 III.App.3d at 989, 276

lll.Dec. 160, 793 N .E.2d 919), this means that "theparty responding to the Rule 216 request must sign

the answer and provide the sworn-to statement and

that the signed and sworn-to copy of the answer

served on the requesting*355 part must be signed

and sworn to by the paity." Moy, 34 i IlI.App.3d at990, 276 Il.Dec. 160. 793 N.E.2d 919. Inresponse, plaintiff-also reprising the argument itmade before the circuit court-contends that theholding in Moy finds no support in the language of

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Rule 216. According to plaintiff, the provisionsallowing verification by certification found insection 1-109 of the Code of Civil Procedure are

applicable to responses to requests to admit, and

that the responses it fied in this case-which were

ceitified for their accuracy under penalty of perjuryby its CEO-satisfied the requirements of Rule 216.We agree with plaintiff.

(21) We find that the requirement stated by the Moycourt that "the part responding to the Rule 216

request must sign the answer and provide theswom-to statement" (emphasis added) (Moy, 341Ill.App.3d at 990,276 III.Dec. 160,793 N.E.2d 919)has no support in the language of Rule 216. There

is nothing in Rule 216(c) which requires a part to

both verify and "sign" the final page of its denialsto the requests to admit of an opposing paity.

Rather, the plain language of the rule states that thepaity to whom the requests to admit are directedmust serve upon the requesting party either "asworn statement" denying the matters of which

admission is requested or written objections whichneed not be sworn. Here, plaintiffs responses wereverified by Muscarello in language which trackedsection i - i 09 of the Code of Civil Procedure.Section 1- i 09 provides that ***793 ** 1 080

whenever a "document or pleading fied in anycouii of this State is required or permitted to be

verified, or made, sworn to or verified under oath,such requirement or permission is hereby defined toinclude a certification of such pleading, affdavit orother document under penalty of perjury asprovided in this Section." 735 ILCS 5/1- 109 (West2002). Adding an unsworn signature to adocument that is already sworn to under oath byvirtue of the section 1-109 verification by

certification does nothing to make that documentmore binding or effective. We *356 therefore holdthat the section 1-109 verification constituted thevery "sworn statement" that Rule 216 requires. Tothe extent that the Moy case holds otherwise, thatdecision is ovelTuled.

(22) In addition to finding plaintiffs responsesdeficient on the ground that the last page of thatdocument did not contain plaintiffs signature, thecircuit COUlt also ruled that plaintifts responses

were deficient in that they failed to comply with

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Rule 3.I(c) of the circuit court of Cook County.

Rule 3.1(c) provides:"(c) Requests for admission of fact shall be filedwith the Clerk of the Circuit Court. Within

twenty-eight (28) days after service of the requests,the answering part shall serve upon the paityrequesting the admission and fie with the Clerk of

the Circuit Court either a sworn statement denyingspecifically the matters of which admission isrequested or setting forth in detail the reasons whythe paity cannot truthfully admit or deny thosematters or a written objection to each request."

Cook Co. Cir. Ct. R. 3. i (c) (eff. May I, 1996).

As they did in the circuit court, both partiescontinue to dispute the applicability of this rule.Defendants maintain that pursuant to Rule 3.1 (c),responses to a paity's request to admit must be bothserved upon the requesting party and fied with the

clerk of the circuit court. In addition, defendants

contend that, under the appellate court's decision inMoy, the filng requirement under Rule 3.I(c) doesnot conflct with the provisions set forth in our Rule216. We disagree.FN5

FN5. We note, parenthetically, thatalthough defendants demand that plaintiffniust strictly adhere to the filing provisionin Rule 3 .1 (c), that provision appliesequally to the party requesting the admitted

facts. Therefore, we find it disingenuous

that although defendants vigorously argue

that plaintiffs responses should be strickenbecause they were not filed in accordance

with this local rule, defendants themselves

failed to comply with this very rule by notfiling their requests for adniission with theclerk of the court.

The Ilinois Constitution provides that "(g)eneral

*357 administrative and supervisory authority overall courts is vested in the Supreme COUli." IlL.

Const.1970, art. VI, § 16. This court has long heldthat although circuit courts share some authority

with this court to make rules, the rules promulgatedby the circuit court are subject to review by thiscourt and may not conflict with this court's rules.

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People ex reI. Eernat v. Eícek, 405 ILL. 510,521-22,91 N.E.2d 588 (1950) ("(i)nferior COUlts may adoptrules to facilitate procedure and practice before

them, but such rules must be reasonable and subject

to review by the Supreme Court"). Our Rule 21 (a)codifies these long-held principles by vesting the

circuit courts with the power to adopt local rulesgoverning civil and criminal cases so long as: (1)they do not conflict with supreme court rules orstatutes, and (2) so far as practical, they are uniformthroughout the state. 134 lll.d R. 21 (a). Circuitcourts, however, "are without power to change

substantive law or impose additional substantiveburdens upon litigants." ***794**108IPeople exreI. Erazen v. Finley, i 19 Il2d 485, 491, 1 16

IlI.Dec. 683, 519 N.E.2d 898 (1988); see alsoKinsley v. Kinsley, 388 IlL. 194, 197,57 N.E.2d 449(1944).

In Eright, we emphasized that, under the plainlanguage of Rule 216(c), "service, rather than tiling,is what matters." Eright, 166 1l1.2d at 207, 209

IlI.Dec. 735, 652 N.E.2d 275. We explained:"Rule 216(c) only requires that responses torequests for admissions be served on the opposingparty within the specified time period. When aresponse is fied with the court is irrelevant.Indeed, filing is not even necessary under the rule.The only purpose it serves is to help document

when a responding party has acted within the rule'stime limits." (Emphasis in originaL.) Eright, 166

IIl.2d at 207,209 IlI.Dec. 735,652 N.E.2d 275.

Therefore, Eright made service the operative eventand discounted the fiing of responses to requests

for admission as having minimal legal significance.

In the instant appeal, the parties do not dispute thatplaintiffs responses to defendants' requests to admitwere timely served. This is the only action

required *358 pursuant to Rule 216 and Eright. Tothe extent that Rule 3 .1 (c) of the circuit court ofCook County requires that the responses be filedwithin a certain period, and is read to require the

striking of a response to requests to admit that istimely served but not fied, that rule impermissibly

imposes additional substantive burdens upon thelitigants. See Finley, 119 ril.2d at 491, 116 iiDec.683, 519 N.E.2d 898. As stated, our Rule 216

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provides that requests to admit will be deemed

admitted if the part to whom they are directed doesnot "timely serve upon the part requesting the

admission" either a sWOI1 statement denying the

matters at issue or written objections. The inverse

is implicit in the rule-requests will not be deemedadmitted if the responding part serves a proper

response within 28 days after service. If Rule 3.1(c)is read to compel a contrary conclusion, then itimpermissibly imposes a greater burden on a paiiyresponding to requests for admission than thatrequired by Supreme Court Rule 216, and the localrule must yield. See Finley, 119 Ill.2d at 494-95,116 IlI.Dec. 683, 519 N.E.2d 898. We thereforehold that the filing requirement contained within

local Rule 3.I(c) conflicts with both Rule 216 andEright. A violation of this fiing requirement

cannot form the basis for striking a party's responseto a Rule 216 request to admit.

(23) We also note that defendants attempt to raiseother issues in their brief to this cOUli. While wehave reviewed the circuit court's orders to the extentthat those orders gave rise to the certified question (Eright, 166 Ill.2d at 208, 209 IlI.Dec. 735, 652

N.E.2d 275), we find that the other proposed issuesfall outside the proper scope of our review of thecertified question under Rule 308. See Jones v.City or Carbondale, 217 iiApp.3d 85, 88, 159

IlI.Dec. 986, 576 N.E.2d 909 (1991) (and casescited therein).

(24) As a final matter, we observe that the rulingswhich led to the circuit court's consideration ofdefendants' motion to strike plaintiffs responses toits request to admit were made without the benefitof our opinion today. In *359 light of ourholdings, plaintiffs responses to defendants' request

for admission were not deficient under Rule 216.Accordingly, any Rule 183 good-cause analysis isnow moot. We remand this cause to the circuitcourt with directions to allow plaintiffs originalresponses to defendants' request for admission to

stand, as they are compliant with the requirements

of our Rule 216. We also direct the circuit COUltto allow plaintiffs cause of action to proceed.

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***795 **1082 CONCLUSION

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875 N.E.2d 1065

226 Ill.2d 334, 875 N.E.2d 1065,314 lll.Dec. 778(Cite as: 226 IIl.d 334, 875 N.E.2d 1065)

Page 17

For the foregoing reasons, we answer the certifiedquestion in the negative. Accordingly, we reverse

the judgment of the appellate court. We remandthis cause to the circuit court with directions and forfurther proceedings consistent with this opinion.

Reversed and remanded with directions.

Justices FITZGERALD, KILBRIDE, GARMAN,KARMEIER, and BURKE concurred in thejudgment and opinion.Chief Justice THOMAS took no part in the decision.iil.,2007.Vision Point of Sale, Inc. v. Haas226 Ill.2d 334,875 N.E.2d 1065,314 iii.Dec. 778

END OF DOCUMENT

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~~

Westlaw:\- ,,?

703 N .B.2d 71

184ll2d 224, 703 N.E.2d 71, 234 IlDec. 459

(Cite as: 184 m.2d 224, 703 N.E.2d 71, 234 Il.Dec. 459)

HBriefs and Other Related Documents

Supreme Court of Ilinois.

P.R.S. INTERNATIONAL, INC., Appellee,v.

SHRED PAX CORPORATION, Appellant.

No. 84438.

Oct. 22, 1998.

Rehearing Denied Nov. 30, 1998.

Buyer of pyrolysis machinery sued the seller forbreach of contrct. After the buyer failed to answer

the seller's requests to admit, the Circuit Court, DuPage County, Edward Duncan, J., deemed therequests admitted and granted sumary judgment tothe seller. Buyer appealed. The Appellate Court,

Breslin, 1., reversed and remanded, 292 lll.App.3d956, 227 Il.Dec. 58, 686 N.E.2d 1214, and the

seller's petition for leave to appeal was allowed.The Supreme Court, McMorrow, J., held that: (1)requests to admit may include questions of ultimatefact; (2) the failure to respond to a request to admitan ultimate fact constitutes an admission which maygive rise to summary judgment; and (3) the buyer'sadmissions showed that it had repudiated thecontract.

Appellate court judgment reversed; circuit courtjudgment affirmed.

Harrison, J., fied specially concurring opinion.

West Headnotes(11 Pretrial Procedure €=473307 Ak473 Most Cited CasesWhile requests to admit may not include legalconclusions, they may include questions of ultimatefact. Sup.Ct.Rules, Rule 216.(21 Pretrial Procedure €=472307 Ak472 Most Cited Cases

Page 1 of 11

Page 1

Purpose of the rule governing requests to admit isnot to discover facts, nor is it limited to obviating

the diffculty involved regarding proof of evidence

that is incontrovertible; rather, it is to establish

some of the material facts in a case without thenecessity of formal proof at trial, or, in other words,to separate the wheat from the chaff bycircumscribing contested factual issues for clear andsuccinct presentation to the trier of fact.

Sup.Ct.Rules, Rule 216.

(31 Judgment €=185(4)228k 185(4) Most Cited CasesPI Pretrial Procedure €=483307 Ak483 Most Cited CasesFailure to respond to a request to admit an ultimatefact constitutes an admission which may give rise toa grant of summary judgment. Sup.Ct.Rules, Rule

216.(41 Pretrial Procedure €=483307 Ak483 Most Cited CasesFollowing requests to admit propounded by a sellerof pyrolysis machinery to the buyer in the buyer's

breach of contract action concerned questions of

fact, and thus were proper ones as to which thebuyer's failure to respond constituted admissions:

that the buyer failed to pay the seller $898,000; thatthe buyer had ceased operations at the locationspecified in the contract; that the buyer lacked

necessar permits; that possession of the machineryhad ceased to be of benefit to the buyer; that thebuyer never requested delivery; that the buyer

refused delivery; that the buyer asked the seller tosell the machinery to someone else; and that themachinery was ready for delivery. Sup.Ct.Rules,Rule 216.

(51 Pretrial Procedure ~473307Ak473 Most Cited Cases(51 Pretrial Procedure €=483307 Ak483 Most Cited CasesWhether the buyer of pyrolysis machinery had

repudiated or breached its contract with the sellerwere matters that called for legal conclusions; thus,they were not the proper subjects of requests toadmit, and the buyer's failure to respond to suchrequests propounded by the seller in the buyer's

breach of contrct action did not constitute

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703 N.E.2d 71

184 m.2d 224,703 N.E.2d 71, 234l1Dec. 459(Cite as: 184 m.2d 224, 703 N.E.2d 71,234 IIDec. 459)

admissions. Sup. Ct. Rules, Rule 216.(6) Sales €=194343kl94 Most Cited CasesBuyer of pyrolysis machinery repudiated itscontract with the seller by telling the seller that itwould refuse to accept delivery of the machinery,

that it would prefer the seller to seek another buyer,and that it wanted to become "completelydisassociated" with tire shredding and burning; thus,the seller gained the right to withhold delivery.

S.H.A. 810 lLCS 5/2-610,2-703.(7) Sales €=194343kl94 Most Cited CasesBuyer's statement of intent not to accept delivery ofgoods constitutes an anticipatory repudiation.S.H.A. 810 ILCS 5/2-610.**72*226***460 David M. Simon, Wildman,Harrold, Allen & Dixon, Chicago, for Shred PaxCorp.

Joseph B. Platt, Mount Prospect, for P.R.S. Intern.,Inc.

Justice McMORROW delivered the opinion ofthe cour:

This case involves the question of whether a part's

failure to respond to a request for admission

pursuant to Supreme Cour Rule 216 (134 iil.2d R.216) results in a judicial admission even where therequested admission relates to "ultimate facts" or to"legal conclusions." Defendant served requests foradmissions on plaitiff, and plaintiff did not deny orobject to the request. Based on this failure torespond, defendant moved to have the requests bedeemed admitted. The tral court granted thatmotion. Defendant then moved for summaryjudgment, and the trial cour granted that motion.Plaintiff appealed, and the appellate court reversed.The appellate court found that certain of therequests were improper because they related to"ultimate facts"; that others were improper becausethey related to "legal conclusions"; and that the

remaiing requests, even if deemed admissions, didnot support an award of summary judgment. 292

IlLApp.3d 956, 227 IlL Dec. 58, 686 N.E.2d 1214.

We reverse.

BACKGROUND

The following facts are of record in the case at bar.

Page 2 of 11

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On April 18, i 990, the paries to this appeal

entered into a contract which provided that plaintiff,P.R.S. International, Inc. (PRS), would purchasefrom defendant, Shred *227 Pax Corporation

(Shred Pax), "(o)ne pyrolysis system, includingshredders and conveyers as a turnkey operation."The shredders would shred rubber tires, and thepyrolysis machine would burn the shredded tires,converting them to carbon black, which is a

substance used in a variety of products. The

contract provided that PRS was to make a downpayment of $269,460, followed by seven monthly

payments of $78,592.50 each, a payment of

$39,296.25 in the eighth month, and a final paymentof "$39,296.25 net 30 after approval of theshredding system."

Under the tenns of the contract, Shred Pax was tobegin its pedormance by delivering a tire shredderwithin seven working days of its receipt of the downpayment. Shred Pax was obligated to deliver thepyrolysis system "eight to ten months after receiptof down payment." The contract also provided that"(a)pproval of installation (was) to be on site atP.R.S. International" at an address in Plymouth,

Florida. PRS made the down payment on April 17,1990. It eventually made all of the payments

required under the contract, except the finalpayment of $39,296.25, by January 199 i. ShredPax had delivéred all of the equipment, except the

pyrolysis machine, to the Florida site prior toJanuary 1991.

For reasons that are unclear, PRS moved its Floridaoperation to Ilinois. It obtained **73 ***461 alease for a site in South Beloit, Ilinois, in May1991, and ceased its operations in Florida duringthe middle of 1991. Sometime thereafter, PRSbegan shredding tires, so Ii citing to buy tires, andpreparng for delivery of the pyrolysis machine at

the South Beloit site. According to Winfried

Kaczmarek, the president of PRS in 1990 and 1991,Shred Pax's president, Al Kaczmarek, Winfried'sbrother, repeatedly assured PRS that the machinewould be delivered by December 1991. InNovember 1991, three PRS representatives,including Winfried Kaczmarek, Pat Sreenan, and*228 Richard Goetz, went to Shred Pax's propert

in Wood Dale, Ilinois, to check on the progress ofthe pyrolysis machine. They found only parts, butnot an entire machine. Shred Pax claims that it had

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703 N.E.2d 71

184 Ill.2d 224,703 N.E.2d 71, 234 iil.Dec. 459(Cite as: 184 m.2d 224, 703 N.E.2d 71,234 iil.Dec. 459)

subcontracted for the construction of the machine,

though PRS claims that Al Kaczmarek refused tosay where the machine was being built. At thatNovember 1991 meeting, the PRS representativesindicated to Shred Pax that they would like ShredPax to find another buyer for the machine, and

suggested that Shred Pax advertise to find a buyer.

In January 1992, Patrick Sreenan wrote to Shred

Pax and inquired as to whether Shred Pax hadadvertised the PRS pyrolysis machine for sale, asthe parties had discussed in their November 1991meeting. Discussing the sale of the machine,

Sreenan explained that "(y )ou can appreciate that Iam very anxious to reduce my already considerablelosses as it relates (sic) to this company *' *' *."Within a week, AI Kaczmarek replied by letter onbehalf of Shred Pax. He stated that Shred Pax waswiling to ship the machine anywhere PRS desired.He also indicated that Shred Pax desired promptpayment of the remaining $39,296.25, which itclaimed was due in February 1991. In a February

1992 letter, Sreenan stated that, under the terms ofthe contract, he believed that the final payment wasnot due until the pyrolysis machine was delivered.He stated that PRS could not afford to have arepresentative fly with Kaczmarek to see all of theparts of the machine because PRS was "broke and(had) considerable indebtedness." In conclusion,Sreenan said that PRS had been misinformed aboutthe number of pyrolysis systems in operation whenit ordered the system, and that it would like to bereimbursed "for all monies paid in connection withthe pyrolysis system, less ten percent for any

inconvenience we may have caused you by way ofstorage." In an April 24 letter, Sreenan stated thatAI Kaczmarek had been told of the *229 move toIlinois in June 1990, and had never told PRS that achange in the eventual location of the machine

would require alterations to the machine. Theparties apparently continued to exchangecorrespondence through the remainder of 1992.

In a letter from AI Kaczmarek to Sreenan, datedJanuary 5, 1993, Kaczmarek wrote that Shred Paxhad delivered "all shredder items," that only thepyrolysis machine remained to be delivered, andthat PRS had failed to make the final payment dueunder the contract. Kaczmarek also claimed thatPRS owed Shred Pax for various storage costs andother unspecified "unpaid invoices." Sreenan

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responded by letter dated January 18 that the lastpayment was not due until delivery of the pyrolysismachine, that he was unaware of any unpaidinvoices, and that there had been no agreement as tostorage costs. Sreenan again stated his desire tofind another buyer for the machine, because, he

said, "it is my desire to be completely disassociatedwith anything to do with tire shredding and/or

burning." Sreenan asked Kaczmarek to state theminimum amount he would pay for a mutual releasefrom the contract. Sreenan suggested that Shred

Pax pay $250,000. In a March 3 letter, AlKaczmarek wrote to Sreenan, stating that: (1) thecontract required delivery in Florida, and PRS had"broken that contract" by relocating to Ilinois; (2)Shred Pax had incurred additional expenses relatedto the machine, had sought reimbursement from

PRS, and PRS had not responded to those requests;(3) the pyrolysis machines were "sitting around and(could) not be finished in total because (Shred Paxdid not) know in which state they will go, whatwater hook up it is and if there are cooling towersrequired as the information from Florida to Ilinoiswas never answered." Kaczmarek "demanded" thatPRS "put a payment in our hand and you take thispyrolysization system complete **74 ***462 orincomplete." *230 He expressed frstration withhaving to store the machine for a period of time, aswell as with PRS's failure to specifY a delivery site,its failure to make the final payment under thecontract, and its failure to pay additional expenses

inculTed by Shred Pax. He stated that PRS had 30days to pay what it owed to Shred Pax and take

delivery.

The record also contains various submissions from

the paies regarding the environmentalrequirements for a pyrolysis system. According tothe affidavit of Richard Goetz, he and Sreenan

obtained a permit from the City of South Beloit forthe operation of a tire shredding and pyrolysis

operation. According to the affdavit of Winfried

Kaczmarek, PRS made "initial contact" with theIlinois Environmental Protection Agency and wastold that the pyrolysis system would be tested foremissions after it was put into operation. The

affdavit states that neither Shred Pax nor AlKaczmarek ever requested a permit for theconstction or installation of a pyrolysis system inSouth Beloit. It also states that Shred Pax neverindicated that delivery and installation of the system

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CBA000226

703 N .E.2d 71184 I11.2d 224, 703 N.E.2d 71, 234 II.Dec. 459(Cite as: 184 I1L2d 224, 703 N.E.2d 71, 234 II.Dec. 459)

could not or would not occur before government

penn its were obtained. Finally, it states that nopermit is required for tire pyrolysis because it doesnot emit any toxic gases or pollutants. Shred Pax

submitted the affdavit of John Yates, who identifieshimself as a registered professional engineer

experienced in the environmental field. In the

affidavit, Yates states that the IlinoisAdministrative Code required PRS to obtain aconstruction permitlTom the Ilinois Environmental

Protection Agency before the pyrolysis system wasinstalled. The interrogatories exchanged by theparties also refer to the environmental permits

required for the construction and installation of apyrolysis system. Plaintifls response todefendant's first set of interrogatories states that, asof February 1991, PRS could legally take deliveryof a pyrolysis *231 operation without any permits.

In August 1995, PRS fied the case at bar againstShred Pax, alleging a breach of contract based on

Shred Pax's failure to deliver the pyrolysis machine.In the course of discovery in the case, on April 20,1995, Shred Pax served on PRS a set of requests foradmissions, pursuant to Supreme Court Rule 216.The requested admissions included the following:"6. Shred Pax delivered to PRS the shredding

system and other equipment required by thecontract other than the pyrolysis system.7. PRS accepted, approved, and used theshredding system and other equipment deliveredby Shred Pax.

8. PRS failed to pay Shred Pax $898,200.9. Prior to Februar, 1991, PRS ceased doing

business at the Florida location referred to inExhibit A-2 (the contract) atached hereto.10. As of February, 1991, PRS did not possess allof the penn its required by applicable federal,

state, and municipal laws for delivery,installation, or operation of the pyrolysis systemat any 10cation in the United States.11 As of February, 1991, PRS did not have a

location in the United States with the pennits

required to tae delivery of the pyrolysis system.12. As of February, 1991, possession of the

pyrolysis system was of no benefit to PRS.13. PRS never obtained all of the pennitsrequired by applicable federal, state, andmunicipal law for delivery, installation, oroperation of the pyrolysis system at any 10cation

in the United States.

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14. PRS never had a location in the United Stateswith the permits required to take delivery of thepyrolysis system.15. After February, 1991, possession of the

pyrolysis system was of no benefit to PRS.16. PRS never requested in writing that ShredPax deliver the pyrolysis system to PRS at aparticular location on a particular date.17. PRS never requested that Shred Pax deliverthe pyrolysis system to PRS at a particular10cation on a particular date.*232 18. PRS refused to take delivery of thepyrolysis system.**75 ***463 19. PRS requested that Shred Paxsell the pyrolysis system to someone else.20, Shred Pax had the pyrolysis system ready fordelivery in February, 1991, and thereafter.21. PRS repudiated the parties' contract byrefusing to take delivery of the pyrolysis system

or by requesting that Shred Pax sell the pyrolysissystem to someone else.22. PRS breached the parties' contract by (1)repudiating the parties' contract, by refusing totake delivery of the pyrolysis system or by

requesting that Shred Pax sell the pyrolysissystem to someone else, (2) by failing to payShrd Pax $39,296.25 when due, or (3) failing toobtain all of the penn its required by the

applicable federal, state, and municipal law fordelivery, installation, or operation of the pyrolysissystem at any 10cation in the United States."

PRS never responded to these requests foradmissions. On February 20, 1996, Shred Paxfiled a motion to deem certain facts admitted. Inthat motion, Shred Pax pointed out that PRS hadbeen served with requests for admissions 10 monthsearlier and had neither replied nor objected, andthat, under Supreme Court Rule 216(c), facts aredeemed admitted if a part is served with a requestto admit and fails to object or reply within 28 days.In a July 24, 1996, hearing, PRS offered no reasonfor its failure to respond to the requests to admit,though it attempted to tender responses to Shred

Pax at the hearing. The trial court found no goodcause for PRS's delay in responding to the requestsfor admission, and grated the motion to deemcertain facts admitted.

On the basis of those admissions, as well as certinother evidence, Shred Pax moved for summar

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703 N.E.2d 71

184 lll.2d 224,703 N.E.2d 71, 234 II.Dee. 459(Cite as: 184 II.2d 224, 703 N.E.2d 71,234 I1Dec. 459)

judgment on August 12, 1996. The othersubmissions consisted mainly of the correspondencebetween Sreenan and AI Kaczmarek, as well as theYates affdavit. The trial court granted the motionfor summary judgment. The appellate courtreversed the award of summary judgment. 292

JlApp.3d 956, 227 IlDec. 58, 686 N.E.2d 1214.

The appellate court held that a part's *233 failureto respond to a request for admission should not bedeemed an admission if the request relates to"disputed ultimate facts," which are defined as "anycontested facts needed to establish one's case ordefense," or to "legal conclusions." 292 II.App.3dat 963-64, 227 IlL.Dec. 58, 686 N.E.2d 1214. In soholding, the appellate court recognized, but

declined to follow, the contrary decision in Peoplev. Mindham, 253 II.App.3d 792, 192 IIDec. 680,625 N.E.2d 835 (1993), in which the court held thata failure to respond to a Rule 216 requestconstitutes an admission, even if the request relatesto an ultimate fact. Instead, the appellate court inthe case at bar held that such requests to admit

ultimate facts or legal conclusions are beyond theintended scope of Rule 216, which the court held isintended to "obviate the diffculty involvedregarding proof of evidence that isincontrovertible." 292 IlL.App.3d at 964, 227JlDec. 58, 686 N.E.2d 1214. The court found thatShred Pax's requests that PRS admit that it refusedto take delivery (paragraph 18 of the request), and

that it failed to obtain the necessar permits for thesystem (paragraphs 10, 11, 13, and 14), related toultimate facts and thus were improper. In addition,the court found that the requests that PRS adit thatit repudiated the contract (paragraph 21) and

breached the contract (paragraph 22) related to"lega conclusions," and thus were also improper.

The court did not fmd grounds for a summaiy

judgment award in the other requeste admissions,and accordingly reversed the trial courts judgmentand remanded the cause for further proceedings.We granted defendant's petition for leave to appealto this court. 166 Il1.d R. 315.

ANALYSIS

In deciding this appeal, we are faced with twodistinct issues. The first question concerns which,if any, of defendant's requests for admissions shouldbe deemed admissions as a result of plaintiffsfailure to respond or object to those requests. The

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Page 5

resolution of this issue *234 depends on whethereach request was proper under Rule 216. The

second issue is whether, after setting aside anyimproper requests for admissions, the remaining

admissions provide adequate support for the trialcourt's award of summary judgment **76 ***464for defendant. We review both questions de novo,

because they are, respectively, a question of law (Inre Estate of Rennick, 181 Ill.2d 395, 404-05, 229

II.Dec. 939, 692 N.E.2d 1150 (1998)) and anappeal of an order granting summary judgment (Outboard Marine Corp. v. Liberty MutualInsurance Co., 154 II2d 90, 102, 180 IlL.Dee. 691,

607 N.E.2d 1204 (1992)). We begin by reviewingthe propriety of the admissions requested by

defendant.

Supreme Court Rule 216 states in relevant part:"Rule 216. Admission of Fact or of Genuineness

of Documents(a) Request for Admission of Fact. A part mayserve on any other par a written request for theadmission by the latter of the trth of any

specifed relevant fact set forth in the request.* * *

(c) Admission in the Absence of DeniaL. Each ofthe matters of fact and the genuineness of each

document of which admission is requested isadmitted unless, within 28 days after servicethereof, the part to whom the request is directedserves upon the part requesting the admission

either (1) a sworn statement denying specificallythe matters of which admission is requested orsetting forth in detail the reasons why he cannottruthfully admit or deny those matters or (2)written objections on the ground that some or allof the requested admissions are privileged or

irrelevant or that the request is otherwise

improper in whole or in part. If writtenobjections to a par of the request are made, the

remainder of the request shall be answered withinthe period designated in the request. A denial

shall fairly meet the substance of the requestedadmission. If good faith requires that a pardeny only a par, or requires qualification, of amatter of which an admission is requested, heshall specity so much of it as is tre and denyonly the remainder. Any objection to a requestor to *235 an answer shall be heard by the courtupon prompt notice and motion of the part

making the request.

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703 N.E.2d 7 I184 I11.2d 224, 703 N.E.2d 71, 234 lll.Dec. 459

(Cite as: 184 m.2d 224, 703 N.E.2d 71,234 IlDec. 459)

* * *

(e) Effect of Admission. Any admission madeby a par pursuant to request under this rule isfor the purpose of the pending action and anyaction commenced pursuant to the authority ofsection 13-217 of the Code of Civil Procedure

(citationJ only. It does not constitute anadmission by him for any other purpose and maynot be used against him in any other proceeding."

134 Ill.d R. 216.

(i J The first issue before us relates to the effect of apart's failure to respond to a request to admit.

Rule 216(c) states that any matter of fact of whichadmission is requested shall be deemed admittedunless denied within 28 days of service of the

request. The appellate court in the case at bar held

that this rule did not apply to "ultimate facts and

conclusions of law." Specifically, the court held thatthe trial court should not have considered as

admissions ultimate facts or conclusions of lawcontained in defendant's request to admit, to whichplaintiff did not respond. The appellate courtreasoned that the purpose of Rule 216 is to allow

admissions to undisputed facts, and not to provideparties with a means of proving their entie case.Defendant claims that the appellate court's ruling iscontrar to the language of Rule 216 and our prior

decisions.

The principles by which we construe supreme courtrules are well setted. As we recently stated:"In interpretig a supreme court rule, we apply

the same principles of constrction that apply to a

statute. (Citation.) Our goal is to ascertin andgive effect to the intention of the draers of therule. (Citation.) The most reliable indicator ofintent is the language used, which should be givenits plain and ordinar meaning. (Citation.J

Where the language is clear and unambiguous, wemust apply the language used without furter aids

of constrction. (Citation.)" In re Estate ofRennick, 181 m.2d at 404-05, 229 Il.Dec. 939,692 N.E.2d 1150.

In Eright v. Dicke, 166 Il.2d 204, 210, 209

Il.Dec. 735, 652 N.E.2d 275 (1995), we stated,with regard to Rule 216, "(tJhe iules of court wehave *236 promulgated are not aspirational. Theyare not suggestions. They **77 ***465 have theforce of law, and the presumption must be that theywil be obeyed and enforced as written." Eright,

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166 Ill.2d at 210, 209 Il.Dec. 735, 652 N.E.2d 275.Rule 216 allows requests for the admission " of thetrth of any specified relevant fact set forth in the

request." (Emphasis added.) 134 Il2d R. 216(a).The rule plainly allows requests for admission ofany fact which is relevant, and ultimate facts fallwithin this broad category.

The language of Rule 216 is also clear with respectto the effects of failing to respond to a request foradmission. The rule provides that "(eJach of thematters of fact '" * '" of which admission is

requested is admitted unless, within 28 days afterservice thereof, the part to whom the request isdirected" denies the matters of which admission isrequested or objects on the ground "that some or allof the requested admissions are privileged or

irrelevant or that the request is otherwise improperin whole or in paii." l 34 Ill.2d R. 216(c).Therefore, when a fact is properly included in arequest to admit, and the served part does notrespond or object to the request, that fact is deemedadmitted. Again, whether a fact is an "ultimate"fact is irrelevant for purposes of this rule. The keyquestion is whether a requested admission deals

with a question of fact. Accordingly, requests for

legal conclusions are improper; however, requests

for admissions of factual questions which might

give rise to legal conclusions are not improper. Forexample, a part's conduct pursuant to a contract,ineluding what actions that part did or did not take,would be a factual question properly included in arequest to admit. However, whether that conduct

amounts to a material breach is a legal rather than afactual question, and thus is not appropriate for arequest to admit. In subsequent filings, the otherpart may refer to that part's conduct under the

contract and argue *237 that it amounts to a breach,but the language of Rule 216 refers only to factualissues. Therefore, requests under Rule 216 must belimited to questions offact

(2J PRS argues that this result is contraiy to thepurpse of Rule 216. PRS contends that thepurse of Rule 216 is limited to "obviat(ing) thediffculty involved regarding proof of evidence thatis incontrovertible." 292 IlApp.3d at 964, 2271l.Dec. 58, 686 N.E.2d 1214. We disagree.Although requests to admit are often classified as adiscoveiy device and treated as such in practice (Eright, 166 I11.2d at 208, 209 Il.Dec. 735, 652

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703 N.E.2d 71

184 BI.d 224, 703 N.E.2d 71, 234 IlDec. 459(Cite as: 184 II.2d 224, 703 N.E.2d 71, 234 iiDec. 459)

N.E.2d 275), "the purpse of admissions is not todiscover facts but rather to establish some of thematerial facts in a case without the necessity of

formal proof at triaL." Requests to admit are "adevice by which 'to separte the wheat from the

chaff" and are "intended to circumscribe contested

factual issues in the case so that issues which are

disputed might be clearly and succinctly presented

to the trier of facts." 23 Am.Jur.2d § 314 (1983).

A!lowing a request to admit ultimate facts is notcontrry to these policies. A trial may include

several "ultimate" factual issues. If certain of theseultimate facts are uncontested, then a request to

admit may be used to remove them from the arenaof disputed facts, thus "separating the wheat fromthe chaff" by narrowing the issues to be decided attriaL. Moreover, at the time at which a part servesa request to admit on another part, it is not alwaysclear whether a factual issue is an "ultimate" fact.Mindham, 253 1l.App.3d at 798-99, 192 I1l.ec.680, 625 N.E.2d 835. Therefore, a rule limitingrequests to admit to nonultimate facts may beimpracticaL.

Finally, we note that, in interpreting Rule 36 of theFederal Rules of Civil Procedure, the federal courthave reached the same conclusion: requests toadmit ultimate facts are permissible, but requests toadmit legal conclusions are impermissible. Rule 36

allows requests to admit "the truth of any matters

within the scope of Rule 26(b) *238 * * * that relateto statements or opinions of fact or of the

application of law to fact * * *." (Emphasis added.)Fed.R.Civ.P. 36. Based on the plain language of

Rule 36, federal courts have unanimously held thata party may request another part to admit any fact,regardless of whether or not that fact can be

characterized as " ultimate." See, e.g., Campbell v.

Spectrum Automation Co., 601 F.2d 246, 253 (6thCir.1979); **78***466Cereghino v. Boeing Co.,873 F.Supp. 398, 403 (D.Or.1994); City of Rome v.

United States, 450 F.Supp. 378, 383 (D.D.C.1978);Branch Banking & Trust Co. v. Deutz-Alls Corp.,120 F.R.D. 655, 658 (E.D.N.C.1988); In reNiswonger, 116 B.R. 562, 566 (Bankr.S.D.Ohio

1990); In re Adelman, 90 B.R. 1012, 1015

(Bankr.D.S.D.1988); In re Sweeten, 56 B.R. 675,678 (Bank.E.D.Pa. 1 986); 7 Moore's Federal

Practce par. 36.10(7 (3d ed. 1998). Indeed, these

courts have held that a request to admit, to which

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the served part did not respond, may provide the

sole grounds for an award of summary judgment forthe requesting paity. See Donovan v. Carls DrugCo., 703 F.2d 650, 651 (2d Cir.l983); Cereghino,

873 F.Supp. at 403; 7 Moore's Federal Practice par.36.10(7) (3d ed.1998). On the other hand, Rule 36requests may not include requests for "opinions oflaw" or for legal conclusions. 7 Moore's Federal

Practice par. 36.10(8) (3d ed.1998); Golden ValleyMicrowave Foods, Inc. v. Weaver Popcorn Co.,130 F.R.D. 92, 96 (N.D.lnd.1990); Wiliams v.Krieger, 61 F.R.D. 142, 144 (S.D.N.Y.l973);English v. Cowell, 117 F.R.D. 132, 135

(C.D.nl.986); Adelman, 90 B.R. at 1015. Thefederal rule and Supreme Court Rule 216 wereintended to serve the same purpose: to "establish ( )certain facts as tnie, thus, narrowing the range ofissues for triaL." Eranch Banking & Trust Co., 120F.R.D. at 657. See also 7 Moore's Federal Practice

par. 36.10(71 (3d ed. 1998).

(3) We also find support in the judgments of otherstate court which have reached the sameconclusion in *239 constniing similar rules. Seealso, e.g., Diversifed Communications, Inc. v.

Godard, 549 A.2d 362, 363 (Me.1988) (construinga rule identical to Federal Rule 36); Schmid v.

Olsen, 111 Wis.2d 228, 236, 330 N.W.2d 547, 551(Wis.l983) (same); Alled Gas & Chemical Co. v.Federated Mutual Insurance Co., 332 N.W.2d 877,880 (Iowa 1983) (constring a rule nearly identicalto Rule 36); Morast v. Auble, 164 Mont. 100, 104,

519 P.2d 157, 159 (1974) (constring a rule"practically identical to" a prior version of Rule 36); Salazar v. Valle, 360 SO.2d 132, 133(Fla.App.1978) (consting a rule nearly identIcal toRule 36). Thus, we hold that, while requests toadmit may not include legal conclusions, they mayinclude questions of ultimate fact. Moreover, thefailure to respond to a request to admit an ultimatefact constitutes an admission which may give rise toa grant of summar judgment. Accordingly, theappellate court was correct in holding that"conclusions of law" should not be contained in

requests for admission, because the rule limits suchrequests to questions of fact. However, theappellate court was incorrect in holding that suchrequests should not include "ultiate facts."

(4) The next question to be decided is whether, inlight of our holding above, the requests to admit, to

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703 N.E.2d 71

184 I11.2d 224,703 N.E.2d 71,234 IIDec. 459(Cite as; 1841I.2d 224, 703 N.E.2d 71, 234I1.Dec. 459)

which PRS did not respond, included facts whichproperly support the trial court's award of summaryjudgment to Shred Pax. Specifically, we mustdetermine (1) whether the requests at issue wereproperly constred by the circuit court as beingdeemed admitted when PRS did not deny them orobject to the request, and (2) whether those properlydeemed admissions can support the trial court'saward of summary judgment. Shred Pax arguesthat the trial court's award of summary judgmentwas proper in light of PRS's failure to respond to itsrequest that PRS admit that: (1) PRS ceased doingbusiness at the Florida 10cation prior to February

1991; (2) PRS *240 never obtained the necessarpermits for delivery, installation, or operation of thepyrolysis system; (3) PRS never requested thatShred Pax deliver the pyrolysis system to PRS at aspecified place and date; (4) PRS refused deliveryof the pyrolysis system; (5) PRS requested thatShred Pax sell the pyrolysis system to someone

else; (6) Shred Pax had the system ready fordelivery in February 1991; (7) PRS repudiated thecontrct by refusing to take delivery of the pyrolysissystem or by requesting Siu'ed Pax to sell it tosomeone else; and (8) that PRS breached theparties' contract by repudiating the contract,

refusing delivery of the system, requesting Shred

Pax to sell it elsewhere, failng to pay Shred Pax$39,296 when due, or by failng to obtain all of therequired permits for the delivery, installation, andoperation of the system. It is undisputed that PRSdid not deny or object to these requests within 28

days of their service. Therefore, **79 ***467

under Rule 216, any matters which were proper

subjects of requests for admissions are deemed

admitted for purposes of this case. Thus, the

questions we must answer are which, if any, of theserequests are proper subjects of a request under Rule216, and thus deemed admitted, and whether theseadmissions are suffcient to support the circuitcourts award of summary judgment for Shred Pax.We wil consider the propriety of each requestedadmission separately.

(1) "PRS failed to pay Shred Pax $898,200."

This is an admission which relates to a question offact; specifically, it relates to the total amountwhich PRS paid Shred Pax, which is a factual,rather than a legal conclusion. Thus, PRS's failureto respond constitutes an admission.

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(2) "Prior to February, 1991, PRS cesed doingbusiness at the Florida location referred to inExhibit A-2 attched hereto (the contract betweenPRS and Shred Pax)."

This is clearly a question of fact, dealing with the

issue *241 of if and when PRS ceased operations atthe Flonda location specified in the contract. Thus,PRS's failure to respond to this request for anadmission does constitute an admission.

(3) "As of February, 1991, PRS did not possess allof the permits required by applicable federal, state,and municipal laws for delivery, installation, oroperation of the pyrolysis system at any location inthe United States. * * * As of February, 1991, PRSdid not have a 10cation in the United States with the

perrits required to take delivery of the pyrolysissystem. * * * PRS never obtained all of the permitsrequired by applicable federal, state, and municipallaw for delivery, installation, or operation of thepyrolysis system at any 10cation in the United

States. * * * PRS never had a location in the UnitedStates with the permits required to take delivery of

the pyrolysis system."

These are admissions relating to questions of fact.Thus, the failure to respond to each constitutes an

admission of each.

(4) "As of February, 1991, possession of thepyrolysis system was of no benefit to PRS. * * *After February, 1991, possession of the pyrolysis

system was of no benefit to PRS."

This is also a question of fact, rather than a legalconclusion. PRS's failure to respond constitutes anadmission.

(5) "PRS never requested in writing that Shred Paxdeliver the pyrolysis system to PRS at a particularlocation on a particular date. * * * PRS neverrequested that Shred Pax deliver the pyrolysissystem to PRS at a particular 10cation on aparticular date. * * * PRS refused to take deliveryof the pyrolysis system. * * * PRS requested thatShred Pax sell the pyrolysis system to someone else.* * * Shred Pax had the pyrolysis system ready fordelivery in February, 1991, and thereafter."

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These are also questions of fact. Tlie failure to

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703 N .E.2d 71184 I11.2d 224,703 N.E.2d 71, 234 I1.Dec. 459(Cite as: 18411.2d 224, 703 N.E.2d 71, 234 II. Dec. 459)

respond to each constitutes an admission of each.

(5) (6) *242 "PRS repudiated the parties' contractby refusing to take delivery of the pyrolysis systemor by requesting that Shred Pax sell the pyrolysissystem to someone else."

This admission relates to a legal conclusion, ratherthan a factual question. Specifically, it relates towhether PRS's conduct amounts to repudiation ofthe contract. While the question of how PRS actedis one of fact, whether that conduct constitutes a

repudiation of the contract is a legal conclusion.

Thus, the request for an admission is inappropriatebecause it did not relate to a question of fact, andPRS's tàilure to respond or object does notconstitute an admission.

(7) "PRS breached the parties' contract by (l)repudiating the parties' contract, by refusing to takedelivery of the pyrolysis system or by requesting

that Shred Pax sell the pyrolysis system to someoneelse, (2) by failing to pay Shred Pax $39,296.25when due, or (3) failing to obtain all of the permitsrequired by the applicable federal, state, andmunicipallaw for delivery, installation, or operationof the pyrolysis system at any 10cation in the UnitedStates. "

This request also relates to a legal conclusion,

rather than a factual question. The request relates

to PRS's conduct under the **80 ***468 contractand whether that conduct amounted to a breach of

the contract. While the question of PRS's conductis factual in nature, the question of whether that

conduct constitutes a breach is a legal, rather than afactual question, and thus is inappropriate for a

request for admission. PRS's failure to respond orobject to this request does not constitute an

admission.

(6) The remaining question for us is whether PRS'sconstrctive admissions provide suffcient grounds

for an award of summary judgment in favor of

Shred Pax. PRS has claimed that Shred Paxbreached the parties' contract by failing to deliverthe pyrolysis system as specified in *243 the

contract. Shred Pax argues that it is entitled tosummary judgment on a number of bases. We needonly discuss one such argument.

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Shred Pax argues that PRS, through its conduct,repudiated the contrct, and that, as a result, ShredPax had the right to suspend its own performance

under the contract. PRS repudiated the contract, itis argued, by refusing to take delivery of the

pyrolysis system; by ceasing to do business at the

delivery 10cation (in Florida) specified in the

contTact; by failng to request that Shred Pax

deliver the pyrolysis system "at a particular locationon a particular date"; and by requesting "that ShredPax sell the pyrolysis system to someone else."

(7) The contract between these parties was for thesale of goods, and thus is governed by the UniformCommercial Code. See 810 lLCS 5/2-105 (West1992). Under the Unifonn Commercial Code,certain actions, if taken by a par to a contract, mayconstitute an anticipatory repudiation of the contractif those actions are sufficiently clear manifestations

of an intent not to perform under that contract. See810 ILCS 5/2-610 (West 1992); In re Marriage ojOlsen, 124 m.2d 19, 24, 123 II.Dec. 980, 528N.E.2d 684 (1988). Where a party repudiates thecontrct, the remedies available to the other part

include those enumerated in section 2-703,including withholding delivery of the goods forwhich the repudiating part has indicated it wil not

accept delivery. 810 lLCS 5/2-610, 2-703 (West1992). Finally, a buyer's statement of intent not toaccept delivery of goods constitutes an anticipatoryrepudiation. TenavisÍon, Inc. v. Neuman, 45N.Y.2d 145, 150, 379 N.E.2d 1166, 1168, 408

N.Y.S.2d 36, 38 (1978); Great Western Sugar Co.

v. World's Finest Chocolate, Inc., 169 llAppJd949, 957, 120 II.Dec. 238, 523 N.E.2d 1149 (1988); 4 R. Anderson, Anderson on the UniformCommercial Code § 2-610:63, at 547 (3d ed. 1997).

In the case at bar, PRS has constructively admitted,*244 through its failure to respond to the requestsfor admissions, that it indicated to Shred Pax that itwould refuse to accept delivery of the pyrolysis

system. In addition, PRS offcers stated to ShredPax that PRS would prefer that Shred Pax attemptto find another buyer for the pyrolysis machine, andthat PRS's owners were attempting to become

"completely disassociated with anything to do withtire shredding and/or burning." Thus, PRSrepudiated the contrct with Shred Pax. Under

section 2-703, Shred Pax then had the right towithhold delivery of the goods for which PRS

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703 N.E.2d 71

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indicated that it would not accept delivery.

Accordingly, PRS's claim that Shred Pax breachedthe contract by failing to deliver the pyrolysis

machine must fail; the duty to deliver was excusedby PRS's own repudiation of the contract, and PRShas no claim for breach of that contract. For thisreason, Shred Pax is entitled to summar judgment

Finally, we note that Shred Pax raises an additionalargument. It argues that the appellate court'sopinion in this case must be vacated as a result ofthis court's decision in Cincinnati Insurance Co. v.Chapman, 181 ii2d 65, 229 iiDec. 264, 691N.E.2d 374 (1998), in which we struck down theJudicial Redistricting Act of 1997. The case at baroriginated in the circuit court of Du Page County.Prior to the Judicial Redistricting Act, the appeal

from the decision would have properly arisen in theSecond District of the appellate court. However,

because of the Act, the appeal proceeded to the

Third District, which reversed the circuit court'sjudgment. Because we later invalidated theJudicial Redistricting Act, Shred Pax argues that theappellate cour's decision should be vacated. Weneed not consider this constitutional argument,

since it is not essential to **81 ***469 thedisposition of the case. See in re Application oj

the County Collector, 132 m.2d 64, 73, 138 Il.Dec.

138,547 N.E.2d 107 (1989).

CONCLUSION

For the reasons discussed above, the judgment ofthe *245 appellate court is reversed, and thejudgment of the circuit court is affrmed.

Appellate court judgment reversed; circuit court;udgment qffirmed.

Justice HARRSON, specially concuring:

Although I agree with the result reached by themajority, I disagree with that portion of its analysispertaining to requests for admissions which involvelegal conclusions. There is no question that legalconclusions are not an appropriate subject for a

request to admit under Rule 216(a). In my view,however, the claim that a requested admission

impropely asks for a conclusion of law is nodifferent from any other objection claiming that arequested admission is "improper in whole or in

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part." 134 Il2d R. 216(c)(2). Under the express

provisions of Rule 216(c), any such claim must beraised by written objection. Absent such an

objection, the impropriety is deemed waived, andthe failure to specifically deny the requested matterwil constitute an admission of its truth.

184 Il2d 224,703 N.E.2d 71, 234 Il.Dec. 459

Briefs and Other Related Documents (Back totop)

. 1998 WL 34194862 (Appellate Brief) PetitionFor Rehearing (Nov. 12, 1998)Original Image ofthis Document (PDF)

. 1998 WL 34114765 (Appellate Brief) ReplyBrief of Defendant-Appellant One Three Six, Inc.(Apr. 06, 1998)Origina1 Image of this Document

(PDF)

. 1998 WL 34182003 (Appellate Brief) ReplyBrief of Defendant-Appellant One Three Six, Inc.(Apr. 06, 1998)Oiiginal Image of this Document

(PDF)

1998 WL 34114764 (Appellate Brief)Plaintiff-Respondents Reply toDefendant-Petitioner's Brief on Appeal to ThisHonorable Court (Mar. 25, 1998)Original Image of

this Document (PDF)

1998 WL 34182004 (Appellate Brief)Plaintiff-Respondents Reply toDefendant-PetitIoner's Brief on Appeal to ThisHonorable Cour (Mar. 25, 1998)Original Image of

. this Document (PDF)

1998 WL 34194851 (Appellate Brief)Supplement to Petition for Leave to Appeal (Jan.26, 1998)Original Image of this Document (PDF)

1998 WL 34194852 (Appellate Brief)Supplement to Petition for Leave to Appeal (Jan.26, 1998)Original Image of this Document (PDF)

. 1997 WL 33636 I 17 (Appellate Brief) Petition forLeave to Appeal of Defendant-Petitioner One ThreeSix, Inc. (NOY. 21, 1997)Original Image of thisDocument (PDF)

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. 1997 WL 33636119 (Appellate Brief) Petition for

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703 N.E.2d 71184 I1J.2d 224, 703 N.E.2d 71,234 IIDec. 459(Cite as: 184 Hl.d 224, 703 N.E.2d 71,234 II.Dec. 459)

Page 11

Leave to Appeal of Defendant-Petitioner One ThreeSix, Inc. (Nov. 21, 1997)Original Image of this

Document (PDF)

END OF DOCUMENT

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~estaw

795 N.E.2d 368342 II.App.3d 344, 795 N.E.2d 368,277 iil.Dec. 1(Cite as: 342 II.App.3d 344, 795 N.E.2d 368, 277 II.Dec. l)

cAppellate Cour of Ilinois,

Fifth District.

Margaret SZCZEBLEWSKI and Joseph Myers, aMinor, by Margaret

Szczeblewski, His Mother and Next Friend,Plaintiffs- Appellants,

v.Jeffrey GOSSETT, Defendant-Appellee.

No. 5-02-0422.

July 31,2003.

Plaintiffs in automobile negligence action moved tocompel defendant's admission of certin facts. TheCircuit Court, Perr County, James W. Campanella,J., denied motion and certified questions. Grantingplaintiffs' application for leave to appeal, theAppellate Court, Donovan, 1., held that: (1) adefendant's conduct as the cause of the occurrence,

the necessity and reasonableness of medical

services a plaintiff received to treat his or her

injuries, and reasonable cost of the medical servicesreceived are all facts that are proper subjects for arequest to admit, and (2) a defendant responding to

requests for admission of such facts is required toseek to avail himself of knowledge of defendant's

attorneys and/or insurers before making a claim ofinsuffcient knowledge to admit or deny.

Certified questions answered; cause remanded withdirections.

West Headnotes

III Appeal and Error ~70(4)30k70(4) Most Cited CasesDiscovery orders are not appealable under rule

governing interlocutory appeals by permission.

Sup.Ct.Rules, Rule 308.121 Appeal and Error ~70(4)30k70(4) Most Cited CasesQuestions of law regarding scope of discovery arereviewable under rule governing interlocutory

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appeals by permission. Sup.Ct.Rules, Rule 308.131 Pretrial Procedure ~473307Ak473 Most Cited CasesA defendant's conduct as the cause of theoccurrence, the necessity and reasonableness of themedical services a plaintiff received to treat his orher injuries, and the reasonable cost of the medicalservices received are all facts that are proper

subjects in a negligence action for a request to

admit. Sup.Ct.Rules, Rule 216.14J Courts ~8S(2)1 06k85(2) Most Cited CasesIn interpreting a court rule, a cour is to apply thesame principles of construction that apply to a

statute.151 Courts ~85(3)106k85(3) Most Cited CasesGoal in interpreting a supreme court rule is toascertain and give effect to the intention of the

drafters of the rule.

16J Courts ~85(2)106k85(2) Most Cited CasesMost reliable indicator of drafters' intent withrespect to a court rule is the language used, whichshould be given its plain and ordinary meaing.l7 Courts ~8S(2)106k85(2) Most Cited CasesWhere the language of a cour rule is clear andunambiguous, cour must apply the language usedwithout furher aids of constrction.181 Pretrial Procedure ~472307Ak472 Most Cited CasesPurose of a request to admit is not to discoverfacts but, rather, to establish some of the materialfacts in a case without the necessity of formal proofat triaL. Sup.Ct.Rules, Rule 216.

191 Pretrial Procedure €=472307Ak472 Most Cited CasesProper use of requests to admit results in asubstatial savings of time and expense, both for the

parties and the court. Sup.Ct.Rules, Rule 216.1101 Pretrial Procedure ~477.1307 Ak4 77.1 Most Cited CasesA part has a good-faith obligation to make a

reasonable effort to secure answers to requests toadmit from persons and documents within the

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795 N.E.2d 368342 I1l.App.3d 344, 795 N.E.2d 368, 277 iil.Dec. 1(Cite as: 342 II.App.3d 344, 795 N.E.2d 368, 277 IlDec. 1)

responding par's reasonable control.Sup.Ct.Rules, Rule 216.

Ill) Pretrial Procedure ~478307 Ak4 78 Most Cited Cases

A defendant responding in negligence action torequests for the admission of facts regarding thecause of the occurrence, the necessity andreasonableness of the medical services a plaintiffreceived to treat his or her injuries, and the

reasonable cost of the medical services received isrequired to seek to avail himself of the knowledgcof defendant's attorneys and/or insurers before

making a claim of insufficient knowledge to admitor deny. Sup.Ct.Rules, Rule 216.**369***2*345 Bruce D. Irish, Sam C. Mitchelland Associates, West Frankfort, for Appellants.

Brad K. Bleyer, Marion, for Appellee.

Justice DONOVAN delivered the opinion of thecourt:

This interlocutory appeal, pursuant to IlinoisSupreme Court Rule 308 (155 Il1.2d R. 308),involves three certified questions regarding theproper interpretation and application of SupremeCourt Rule 216 (134 Il1.2d R. 216). In particular,we are asked to determine:

1. Whether the causal connection to theoccurrence, the reasonableness and necessity of

the medical services, and the reasonableness of

the cost of medical services are facts susceptibleto admission or denial within the meaning of

Supreme Court Rule 216.*346 2. Whether the knowledge of defendants'attorneys and insurers regarding the causal

connection to the occurrence, the reasonableness

and necessity of the medical services, and thereasonableness of the cost of medical services arefacts imputable to defendants for purposes of

Supreme Court Rule 216.3. Whether a defendant responding to requests forthe admission of facts as set forth above isrequired to seek to avail himself of the knowledgeof his attorneys and/or insurers before making aclaim of insuffcient knowledge to admit or deny.

We answer question 1 in the affrmative andcombine questions 2 and 3 into one inquiry and

answer it in the affrmative.

(1)(2) Initially, we note that discovery orders are

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not appealable under Rule 308. People ex ref. Scottv. Silverstein, 87 Il1.d 167, 171, 57 Il.Dec. 585,429 N.E.2d 483, 485 (1981); Voss v. Lincoln Mall.Management Co., 166 I1I.App.3d 442, 452, 116Il.Dee. 841, 519 N.E.2d 1056, 1063 (1988).Nevertheless, a distinction exists between questionsof law regarding the scope of discovery and

questions regarding particular discovery. Questions

of law are reviewable under Rule 308, whereas

discovery orders are not. Bass v. CincinnaJi, Inc.,180 I1LApp.3d 1076, 1078, 129 riDec. 781, 536

N.E.2d 831, 832 (1989). The questions that whichhave been certified for our review are questions oflaw regarding the scope of discovery. We turn thento the questions certified for review.

Background

This case arises out of the claims of Margaret

Szczeblewski and Joseph Myers against JeffreyGossett as a result of a rear-end collsion on

October 26, 2000. Plaintiffs' complaint was filedMarch 26, **370 ***3 2001. Defendant's answer,denying the existence of a collsion, negligence on

the part of the defendant, or injury to either

plaintiff, was fied April 5, 2001. After discoverydepositions of the partes, defendant's admission of

liabilty was fied June 12, 2001. Medical records

and bils pertaining to both plaintiffs were providedto the defense June 1, 2001, and thereafter,plaintiffs voluntarly provided to the defense

authorizations for medical records. Plaintiffs' firstand second requests for the admission of factspertaining to medical services and bils were fiedAugust 29,2001.

Each plaintiffs request for the admission of facts

had attached the medical providers' bils involved,and with the exception of differences in the date,amount, and identity of the service provider, eachparagrah of the requests for the admission of factswas in the following form:

!la. That the attached bil dated October 26, 2000,

in the amount of $501, from Marshall BrowningHospital, 900 North Washington, DuQuoin,Ilinois, represents charges for services which

were *347 reasonable and necessary treatment forconditions occuring as a result of the occurencewhich is the subject of the instant suit.b. That the charges on the attached bil dated

October 26, 2000, in the amount of $501, from

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795 N.E.2d 36834211App.3d 344, 795 N.E.2d 368, 277ll.Dec. 1(Cite as: 342 II.App.3d 344,795 N.E.2d 368, 277 IIDec. 1)

Marshall Browning Hospital, are fair andreasonable charges for the services performed."

Each subparagraph (a) and (b) of defendant's

responses uniformly stated as follows:" * * * This defendant can neither admit or (sic)deny Request for Admission of Fact * * * in thatit requires him to give a medical opinion whichhe is not qualified to do. Defendant hasinsufficient knowledge to admit or deny."

Defendant verified his responses to each ofplaintiffs' requests for the admission of facts as"tre and correct to the best of his knowledge and

belief."

Plaint.iffs' mot.ion to compel was fied November21, 200 i. A listing of the medical records, reports,

statements, and receipts provided to the defense upto the date of the hearing was attached as an exhibitto plaintiffs' motion to compel.

On May 31, 2002, the trial court heard argumentson the motion to compeL. On June 13, it entered itsorder, with findings pursuant to Supreme CourtRule 308, denying plaintiffs' motion to compeL. Wegranted plaintiffs' application for leave to appeal onJuly 25, 2002.

Question 1

Question 1 addresses whether a Rule 216 request toadmit can be used to establish the causal connectionbetween a defendant's conduct and a plaintiffsinjuries, the necessity and reasonableness of themedical services received by that plaintiff, and thereasonableness of the cost of the medical services

received by that plaintiff.

(3) The llinois Supreme Court's decision in P.R.S.International, Inc. v. Shred Pax Corp., 184 Ill.d224, 234 m.Dec. 459, 703 N.E.2d 71 (1998), holdsthe key. According to the holding in P.R.S.International, Inc., a part's failure to respond to arequest for admissions may be deemed an admissionif the request relates to " 'disputed ultimate facts' "or " 'any contested facts needed to establish one's

case or defense.' " P.R.S. International, Inc., 184

Ill.2d at 233, 234 Il.Dec. 459, 703 N.E.2d at 75(quoting P.R.S. International, Inc. v. Shred PaxCorp., 292 IlApp.3d 956, 963, 227 Il.Dec. 58,

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686 N.E.2d 1214, 1219 (1997)). The courtexplained the language of Rule 216 allowingrequests for the admission " 'of the trh of any

specified relevant fact.' " (Emphasis omitted.)

**371 ***4 P.R.S. International, Inc., 184 Jll.d at236, 234 IIDec. 459, 703 N.E.2d at 77 (quoting

134 Hl.d R. 216(a)). The court then stated:"(W)hether a fact is an 'ultimate' fact is irrelevantfor purposes of this rule. The key question is

whether a requested admission deals with a questionof fact. Accordingly, requests *348 for lcgal

conclusions are improper; however, requests foradmissions of factual questions which might giverise to legal conclusions are not improper."

(Emphasis in originaL.) P.RS International, Inc.,184 Ill.2d at 236, 234 Ill.Dec. 459, 703 N.E.2d at 77. A defendant's conduct as the cause of the

occurrence, the necessity and reasonableness of themedical services a plaintiff received to treat his orher injuries, and the reasonable cost of the medicalservices received are all facts that are proper

subjects for a Rule 216 request to admit. SeeHubeny v. Chairse, 305 II.App.3d 1038, 1043-45,

238 IlLDec. 976, 713 N.E.2d 222, 225-26 (1999).

Questions 2 and 3

The remaining two questions deal with whether apart is required to avail himself of the knowledge

of his attorneys or agents before admitting, denying,or making a claim of insuffcient knowledge to

admit or deny a request to admit.

Supreme Court Rule 216 states in relevant part:"(a) Request for Admission of Fact. A par mayserve on any other part a writen request for the

admission by the latter of the trth of any

specified relevant fact set forth in the request* * *

(c) Admission in the Absence of DeniaL. Each ofthe matters of fact and the genuineness of eachdocument of which admission is requested isadmitted unless, within 28 days after servicethereof, the par to whom the request is directedserves upon the part requesting the admission

either (l) a sworn statement denying specificallythe matters of which admission is requested orsetting fort in detail the reasons why he cannottrthfully admit or deny those matters or (2)written objections on the ground that some or allof the requested admissions are privileged or

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795 N.E.2d 368

342 iiLApp.3d 344, 795 N.E.2d 368, 277llDec. 1

(Cite as: 342 II.App.3d 344, 795 N.E.2d 368, 277 IIDec. 1)

irrelevant or that the request is otherwise

improper in whole or in part. If writtenobjections to a pait of the request are made, the

remainder of the request shall be answered withinthe period designated in the request. A denial

shall fairly meet the substance of the requestedadmission. If good faith requires that a part

deny only a part, or requires qualification, of amatter of which an admission is requested, heshall specify so much of it as is true and denyonly the remainder. Any objection to a request orto an answer shall be heard by the court upon

prompt notice and motion of the part making therequest." (Emphasis added.) 134 m.2d R.216(a), (c).

(4)(5J(6)(7 In interpreting a supreme court rule,we are to apply the same principles of constructionthat apply to a statute. In re &tate of Rennick, 181iiL2d 395, 404-05, 229 IlDec. 939, 692 N.E.2d

1150, 1155 (1998). As the Ilinois Supreme Court

has stated:"Our goal is to ascertain and give effect to theintention of the *349 drafters of the rule.(Citation.) The most reliable indicator of intent isthe language used, which should be given itsplain and ordinary meaning. (Citation.) Where

the language is clear and unambiguous, we mustapply the language used without fuher aids of

construction. (Citation.I" In re Estate of Rennick,

181 m.2d at 404-05, 229 IlLDec. 939, 692N.E.2d at 1155.

**372 ***5 (8J(9) The purpose of a request toadmit is not to discover facts but, rather, to establishsome of the material facts in a case without thenecessity of formal proof at tral. P.R.S.International, Inc., 184 Il1.2d at 237, 234 IlL. Dec.459, 703 N.E.2d at 77. The proper use of requeststo admit results in a substantial savings of time andexpense, both for the parties and the court. BranchEanking & Trust Co. v. Deutz-Alls Corp., 120F.R.D. 655, 657 (E.D.N.C.1988).

In deciding a part's duty under Rule 216, we areguided by how Supreme Court Rule 213 (166 IJL.2dR. 213) ("Written Interrogatories to Parties") hasbeen constred. Rule 213 has been interpreted "torequire a par to answer fully and in good faith tothe extent of his actual knowledge and theinformation available to him or to his attorney."

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Singer v. Treat, 145 lll.App.3d 585, 592, 99

inDec. 529, 495 N.E.2d 1264, 1268 (1986) (citingBrandon v. DeEusk, 85 riLApp.3d 645, 647, 41Il.Dec. 1, 407 N.E.2d 193, 195 (1980)).Comparably, Rule 36 of the Federal Rules of CivilProcedure (Fed.R.Civ.P. 36(a)) ("Request forAdmission") explicitly requires as follows: "Ananswering part may not give lack of information orknowledge as a reason for failure to admit or denyunless the party states that the party has madereasonable inquiry and that the infol1ation knownor readily obtainable by the part is insufficient toenable the part to admit or deny."

(10)(11 I To ensure that the laudable purpose ofRule 216 is accomplished, a part has a good-faith

obligation to make a reasonable effort to secureanswers to requests to admit fi'om persons and

documents within the responding part's reasonablecontrol. In this case that would include the

defendant's attorney and insurance companyinvestigators or representatives. We believe that thisfinding refleets the 10ng-accepted practice of trialattorneys in the courts of llinois.

On remand, the trial court shall allow the defendantan additional 28 days to amend his answers toplaintiffs' requests to admit if, after considering thisopinion, defendant believes that he is required to

modifY his previous answers.

This cause is remanded with directions for furterproceedings consistent with this opinion.

Certified questions answered; cause remanded

with directions.

CHAPMAN and KUEHN, n., concur.

342 m.App.3d 344, 795 N.E.2d 368, 277 m.Dec. 1

END OF DOCUMENT

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799 N.E.2d 852344 I11.App.3d 196, 799 N .E.2d 852,279 nL.Dec. 49(Cite as: 344 Il.App.3d 196,799 N.E.2d 852,279 II.Dec. 49)

cAppellate Court of Ilinois,

First District, Sixth Division.

Craig ROBERTSON, Plaintiff-Appellant,v.

SKY CHEFS, INC., a Corporation,Defendant-Appellee.

No. 1-02-3818.

Oct. 17,2003.

Motorist brought negligence action against cateringcompany for personal injuries received in collsionat airport with truck operated by company's agent.

The Circuit Court of Cook County, John G. Laurie,J., granted summary judgment for company basedon request to admit to which motorist failed torespond, and motorist appealed. The Appellate

Court, Smith, J., held that: (1) with two exceptions,questions contained in company's request to admitwere questions of fact, and (2) motorist's admissionof factual assertions as a result of his failure to

respond eliminated any basis or foundation forcompany's liabilty.

Affmned.

West Headnotes111 Appeal and Error ~893(1)30k893(1) Most Cited CasesStadard of review in appeal by plaintiff ofsumar judgment for defendant based on requestfor admission to which plaintif fàiled to respondwas de novo; issues on appeal were (1) whether thequestions in defendant's request to admit wereproper in form and thus should be deemedadmissions as a result of plaintiffs failure torespond to them and (2) whether, afer setting asideany improper questions in the request to admit, theremaining admissions provided adequate support

for the trial court's award of summary judgment todefendant, first issue was a question of law, andsecond was an appeal from an order granting

Page 1 of6

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summary judgment.121 Pretrial Procedure ~473307Ak473 Most Cited CasesA part may not include legal conclusions II hisrequest to admit. Sup.Ct.Rules, Rule 216.131 Pretrial Procedure ~473307Ak473 Most Cited Cases131 Pretrial Procedure ~483307 Ak483 Most Cited CasesAny question propounded in a request to admitwhich seeks the admission of a conclusion of law isimproper in form, and the failure to respond to thatquestion does not result in a judicial admission

Sup.Ct.Rules, Rule 216.14J Pretrial Procedure ~473307Ak473 Most Cited CasesQuestion in defendant's request to admit, askingplaintiff to admit in personal injur action that hedid not operate, maintain, or control motor vehicle

involved in collsion that resulted in plaintiffsalleged injuries, was clearly a question of fact, forpurses of determining whether plaintifTs failureto respond to the question resulted in a judicialadmission. Sup.Ct.Rules, Rule 216.15) Pretrial Procedure €=473307 Ak4 73 Most Cited Cases

Question in defendant's request to admit, askingplaintiff to admit in personal injury action thatdefendant did not operate trck allegedly involved

in collsion tht resulted in plaintiffs alleged

injuries, was a question of fact, for purposes ofdetermining whether plaintiffs failure to respond tothe question resulted in a judicial admission, as itsought an admission that defendant was not presentat scene of alleged incident. Sup.Ct.Rules, Rule 216

(6) Pretrial Procedure ~473307Ak473 Most Cited CasesQuestion in defendant's request to admit, askingplaintiff to admit in personal injur action thatvehicle driven by defendant's agent collded onservice ramp at airport with vehicle operated by

plaintiff was a question of fact, for purpses ofdetennining whether plaintiffs failure to respond tothe question resulted in a judicial admission.

Sup.Ct.Rules, Rule 216.

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799 N.E.2d 852344 ni.App.3d 196,799 N.E.2d 852, 279 IlDec. 49

(Cite as: 344 II.App.3d 196,799 N.E.2d 852, 279l1.Dec. 49)

I7 Pretrial Pmcedure ~473307 Ak473 Most Cited CasesQuestions in defendant's request to admit, askingplaintiff to admit in personal injury action thatdefendant did not operate a motor vehicle so thatplaintiff was injured, did not fail to keep a properlookout, operated motor vehicle at a rate of speedthat was reasonable, proper and prudent, did not failto stop or turn or reduce speed in order to avoid

collsion with plaintiffs vehicle, and did not fail tomake proper use of brakes in time to avoid causinga collsion, were questions of fact, for purposes ofdetermining whether plaintifts failure to respond toquestions resulted in judicial admissions.Sup.Ct.Rules, Rule 216.(81 Pretrial Procedure ~473307Ak473 Most Cited CasesQuestions in defendant's request to admit, askingplaintiff to admit in personal injuiy action thatdefendant was not operating motor vehicle in arekless manner with disregard for safety of personsand other motor vehicles, and did not act inviolation of statute by operating motor vehicle at aspeed that was greater than was reasonable, proper

. and prudent, were questions of law, for purposes ofdetermining whether plaintifts failure to respond tothe question resulted in a judicial admission.

Sup.Ct.Rules, Rule 216.(91 Pretrial Procedure ~483307 Ak483 Most Cited Cases(91 Pretrial Procedure ~484307 Ak484 Most Cited CasesPlaintiffs admission in negligence action of factualassertions contaned in defendant's request to admit,through plaintiffs failure to respond to them, thatdefendant was not operating a vehicle that injuredplaintiff, defendant kept a proper 100kout, defendantwas operating the vehicle at a reasonable and properspeed, defendant stopped and/or turned the course

and/or reduced speed to avoid a collsion, anddefendant properly used his brakes in an attempt toavoid collsion, which trcked language used byplaintiff in his complaint as a predicate for

defendant's liabilty, eliminated any basis orfoundation for defendant's negligence as postured inthe complaint, and thereby rendered grat of

summar appropriate. Sup.Ct.Rules, Rule 216.**854 *197 ***51 Goldstein, Fishman, Bender &Romanoff, Richard S. Kolodziej, Chicago, forAppellant.

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John S. Hoff, P.C, John Scott Hoff, Chicago, forAppellee.

Justice SMITH delivered the opinion of the court:

Plaintiff-appellant Craig Robertson (plaintiff)appeals from the trial court's order grantingsummary judgment in favor of defendant-appelleeSky Chefs, Inc. (defendant), based on plaintiffsfailure to respond to defendant's written request foradmission of fact pursuant to Ilinois Supreme

Court Rule 216 (134 II2d R. 216). Plaintiff asksthat we vacate the order and remand the cause,

allowing him to withdraw any admissions or fie a

late response to defendant's written request. For thefollowing reaons, we affirm.

BACKGROUND

The record in the instant case reveals that on June2, 1999, *198 plaintiff was operating a motorvehicle on a service ramp in the American Airlinesterminal at O'Hare International Airport between

gates Kl1 and K13. While plaintiff was driving thevehicle, he slowed to yield to a catering trck that

was being operated by an agent of defendant.

Despite this, plaintitls vehicle and defendant's

vehicle collded.

On May 29, 2001, plaintiff filed a complaint at lawalleging that defendant's agent had been negligent inoperating its vehicle and that this negligence

resulted in his injury and damages. Defendant

answered the complaint and asserted variousaffrmative defenses. Defendant then fied and

served upon plaintiff a written request for admissionof fact (request to admit), pursuant to Supreme

Cour Rule 216 (Rule 216). See 134 I1.2d R. 216.This request to admit propounded 12 questions withrespect to the alleged accident and sought plaintitlsresponse to each. Plaintiff did not respond todefendant's request to admit.

Defendant fied a motion for summar judgmentasserting that due to plaintitls failure to respond tothe Rule 216 request to admit, all the factscontained in that request must be deemed admitted,thereby leaving no issue of material fact with

respect to defendant's alleged negligence. Plaintiffresponded, claiming that the questions defendant

propounded in the request **855 ***52 to admit

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799 N.E.2d 852344 IIApp.3d 196, 799 N .E.2d 852, 279 IIDec. 49(Cite as: 344 1I.App.3d 196,799 N.E.2d 852, 279 iiDec. 49)

were improper in form and did not comply with

Rule 216. On September 10, 2002, the trial courtentered an order granting defendant's motion forsummar judgment.

ANAL YSLS

On appeal, plaintiff contends that the trial courtabused its discretion in granting defendant's motionfor summary judgment due to his failure to answerthe questions contained in defendant's request to

admit. Plaintiff claims that the questions

improperly sought admissions concerningconclusions of law, and therefore, his failure torespond to them did not result in any binding

admissions. Alternatively, plaintiff contends thateven were we to find that his failure to respond didresult in his admission of the contents of defendant'sRule 216 request to admit, summary judgment wasnot proper because genuine issues of material factstil exist. For its part, defendant contends that eachquestion in the request to admit was proper in form.Defendant fuer argues that even if someconclusions of law were present, the remaining

factual questions in the request "are enough bythemselves" for plaintiff to have judicially admitted,through his failure to answer them, that no cause ofaction for negligence against defendant exists. Weagree with defendant's latter argument.

*199 (lJ As a threshold matter, we note for therecord that the parties disagree upon the appropriatestandard of review for the instant cause. Plaintiffargues that the trial court committed an abuse ofdiscretion in its ruling, while defendant points outthat an appeal from a grant of summar judgmentrequires de novo review. Neither approach,however, is entirely correct. This cause invokes

two issues for our consideration: (1) whether the

questions in defendant's request to admit wereproper in form and thus should be deemedadmissions as a result of plaintiffs failure torespond to them; and (2) whether, after settingaside any improper questions in the request toadmit, the remaining admissions provide adequate

support for the trial court's award of summaryjudgment to defendant. Our review for both of thesequestions is on a de novo basis, since the first is aqueston of law (see P.R.S. International, Ine. v.SJired Pax Corp., 184 JI.2d 224, 234, 234 II.De.459, 703 N.E.2d 71 (1998) (whether request to

l)age 3 of 6

Page 3

admit calls for admission of fact or conclusion of

law is reviewed de novo)), and the second is anappeal from an order granting summary judgment

(see Outboard Marine Corp. v. Liberty MutualInsurance Co., 154 Il1.2d 90, 102, 180 Ill.Dec. 691,607 N.E.2d 1204 (1992) (whether summaryjudgment was properly granted is reviewed de novo)).

The purose of summary judgment is to determinewhether a question of fact exists. See Addison v.Whittenberg, 124 Ill.2d 287, 294, 124 111.Dec. 571,

529 N.E.2d 552 (1988). This relief is proper whenthe pleadings, affdavits, depositions andadmissions of record, construed strictly against themoving party, show that there is no genuine issue asto any material fact and that the moving part isentitled to judgment as a matter of law. See Morrisv. Margulis, 197 IlL2d 28, 35, 257 Il.Dec. 656, 754N.E.2d 314 (2001); accord Purtill v. Hess, 111Hl.d 229, 240-44, 95 Il.Dec. 305,489 N.E.2d 867

(1986). While summary judgment has been called a"drastic measure," it is an appropriate tool to

employ in the expeditious disposition of a lawsuit inwhich " 'the right of the moving part is clear andfree from doubt.' " Morris, 197 Il2d at 35, 257Il.Dec. 656, 754 N.E.2d 314, quoting Purtil, 111

HUd at 240,95 IlDec. 305,489 N.E.2d 867.

Pursuant to Rule 216, a part to an action may

serve another part to that **856 ***53 action with

a written request for his admission of "any

specified relevant fact set forth in" that request.

134 I11.2d R. 216(a); see P.R.s, International, 184

m.2d at 234, 234 IHDec. 459, 703 N.E.2d 71.The part receiving the request then has 28 days inwhich to either deny or object to the request. See134 m.2d R. 216(c). If he does neither, thosefactual matters in the request are deemed judicial

admissions which cannot later be controverted byany contradictory evidence. See 134 Il.2d R.216(c); see also Banco Popular v. EeneficialSystems, Inc., 335 IlApp.3d 196, 208, 269 iiL.Dec.389, 780 N.E.2d 1113 (2002) (failure to respond asrequired by Rule 216(c) results in admission offacts which cannot later be disputed).

(2)(3) *200 However, Rule 216 applies exclusivelyto the admission of facts or "ultimate facts" whichmight give rise to legal conclusions. See P.R.S.

International, 184 m.2d at 236, 239, 234 m.Dee.

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799 N.E.2d 852344 Il.App.3d 196,799 N.E.2d 852, 279 Ill.ec. 49

(Cite as: 344 II.App.3d 196, 799 N.E.2d 852, 27911.Dec. 49)

459, 703 N.E.2d 71; Walker v. Valor Insurance

Co., 314 iil.App.3d 55, 62, 246 II Dec. 835, 731

N.E.2d 363 (2000) ("Rule 216 applies only to theadmission of facts"). Thus, a par may not includelegal conclusions in his request to admit. See

P.R.S. International, 184 II2d at 236, 234II.Dec. 459, 703 N.E.2d 71; Wa/ker, 314nl.App.3d at 62, 246 Ill.ec. 835, 731 N.E.2d 363

("legal conclusions may not be admitted or includedin a Rule 216 request"). Any question propounded

in the request to admit which seeks the admission ofa conclusion of law is improper in form (see P.R.S.

lntemational, 184 m.2d at 236, 234 m.Dec. 459,

703 N.E.2d 71), and the failure to respond to thatquestion does not result in a judicial admission. SeeF.R.S. International, 184 m.2d at 239, 234m.Dec. 459, 703 N.E.2d 71; accord BancoPopular, 335 I11.App.3d at 209, 269 II.Dec. 389,

780 N.E.2d 1113; see also Hubeny v. Chairse, 305II.App.3d 1038, 1043, 238 iil.Dec. 976, 713N.E.2d 222 (1999) (ifrequest asks part to admit toconclusion of law, part's failure to respond isirrelevant and "a trial on the issue" is "required").

Accordingly, we must determine whether thedefendant's request to admit to which plaintiff didnot respond properly included questions of fact, andsubsequently, whether these facts deemed admittcddue to plaintiffs failure to respond support the trialcourt's award of summary judgment to defendant.

(4J With respect to question 1, we find that,contrary to plaintiffs contention, this is a question

of fact. Specifically, it asked:"1. Do you admit that on June 2, 1999, that thePlaintiff did not operate, maintain, or control acertin motor vehicle on a working ramp at

O'Hare Airort * * *?"Through this question, defendat sought anadmission from plaintiff that plaintiff was notpresent on the service ramp at the time of the

alleged incident. This is clearly a question of fact.See Hubeny, 305 IlI.App.3d at 1044, 238 Il.Dec.976, 713 N.E.2d 222 (question in request to admitseeking admission of whether an action was taken

or an event occurred is a question of fact); see alsoPryor v. Industrial Comm'n, 201 IlLApp.3d 1, 5,146 iil.Dec. 825, 558 N.E.2d 788 (1990) (whetheraccident occurred and who was present are issues offact). Thus, plaintiffs failure to repond to question1 results in its admission. See F.R.S. International,

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184 HI.d at 239, 234 II.Dec. 459, 703 N.E.2d 71.

(5) Likewise, question 2 of defendant's request to

admit asked:

"2. Do you admit that on the aforesaid date, andtime, the Defendant * * * did not own or operatea certain motor vehicle, at O'Hare Airport on (thesame) working service ramp * * *?"

This too is a question of fact, as it sought an

admission from plaintiff that defendant was notpresent at the scene of the alleged **857 ***54incident. See Hubeny, 305 iil.App.3d at 1044, 238IIl.ec. 976, 713 N.E.2d 222; Pryor, 201 m.App.3dat 5, 146 I1I.Dec. 825, 558 N.E.2d 788. Becauseplaintiff failed to respond to this question of fact, itis deemed admitted. See P.R.S. International, 184m.2d at 239, 234 Il.Dec. 459, 703 N.E.2d 71.

(6) *201 Question 3 of defendant's request to admitasked:"3. Do you admit that on the aforementioned

dates, times and places * * * did the Defendant ** * own (sic ) a certain motor vehicle being

operated, maintained and controlled by its agents,servants and/or employees, which came in contactwith the vehicle operated by the Plaintifl"

In propounding this question, defendant sought theadmission by plaintiff that his motor vehicle and amotor vehicle being drven by defendant's agent

collded on the service ramp on the day in question.Just as questions 1 and 2in the request to admit,this is a question of fact, dealing with whether anevent, namely the accident, actually occured. SeeHubeny, 305 IlApp.3d at 1044, 238 I1L.Dec. 976,

713 N.E.2d 222; Pryor, 201 IlL.App.3d at 5, 146IlI.Dec. 825, 558 N.E.2d 788. Thus, plaintiffsfailure to respond to this queston also constitutes

an admission. See P.R.S. International, 184 Il.2d

at 239, 234 m.Dec. 459,703 N.E.2d 71.

Therefore, we find that questions 1, 2 and 3 are

questions of fact that were properly included in

defendant's request to admit. Thus, plaintiffsfailure to respond to them, namely, to deny them orobject to their content within 28 days as mandatedunder the auspices of Rule 216, results in theiradmission. See i 34 IlL.2d R. 216; P.R.S.International, 184 :m.2d at 235- 36, 234 II.Dec.459, 703 N.E.2d 71 (Rule 216 is not a suggestionbut, rather, a rule that must strictly be obeyed andenforced). Accordingly, these admisions canot be

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799 N .E.2d 852344 IlApp.3d 196,799 N.E.2d 852,279 I1L.Dec. 49(Cite as: 344 1I.App.3d 196,799 N.E.2d 852,279 I1I.Dec. 49)

controverted by any contradictory evidence. See134 Ill.d R. 216( c); accord Eanco Popular, 335

IlL.App.3d at 208, 269 I1L.Dec. 389, 780 N.E.2d

1113.

With respect to questions 1, 2 and 3, plaintiffcontends that even if these are deemed to be

questions of fact, it becomes evident that the factscontained in those admissions create genuine issuesof material fact which prohibit the grant of summaryjudgment in this cause. This is because, as plaintiffpoints out, questions 1 and 2 result in theadmissions that neither plaintiff nor defendant

operated motor vehicles at the time, date and

location of the alleged accident, yet question 3

results in the admission that vehicles operated by

plaintiff and defendant at the time, date and 10cationof the accident "came in contact" with each other.We agree. Ostensibly, the admission that neitherpart was present at the scene of the accident is indirect conflct with the admission that the partieswere present and involved in the accident. Thus,these contradictory admissions give rise to a

conflicting issue of material fact, namely, whether acollsion occurred between a vehicle operated by

plaintiff and a vehicle for whose operationdefendant is responsible.

However, upon our review of the other questionscontained in defendant's Rule 216 request to admit,specifically question 5, we find that there is no basisupon which to support any finding of liabilty *202against defendant, even assuming a collsionbetween the partes occurred.

(7)(81(9) Question 5 asks plaintiff to admit thefollowing:

"5. Do you admit that on the aforesaid date, theDefendant * * * did not commit any of thefollowing acts or omissions:(a) operating, maintaining and controllng a motorvehicle on the aforesaid Service Ramp so thatPlaintiffwas greatly injured;**858 ***55 (b) failing to keep proper and/orany lookout for traffc then and there lawfully

proceeding on said service ramp;(c) operating said motor vehicle in a recklessmaner with disregard for safety of persons andother motor vehicles lawflly driven on said

service ramp, in violation of Ilinois Statute

5111-503;

Page 5 of6

Page 5

(d) operating said motor vehicle on the aforesaid

roadway at a rate of speed that was greater thanwas reasonable, proper and prudent, havingregard of traffc, the condition of the roadway andthe use of way;(e) act in violation of lIinois Statute 5/1 1-601(a),

by operating a motor vehicle at a rate of speedthat was greater than was reasonable, proper and

prudent, having regard for traffc, the condition ofthe roadway and the use of way;(t) failing to stop and/or turn the course and/orreduce the speed of said motor vchicle in time toavoid a collsion with another vehicle on the

aforesaid service ramp;

(g) failing to make proper and/or any use of thebrakes of said motor vehicle in time to avoid

causing a collsion with another motor vehicle on

the aforesaid service ramp."Omitting consideration of subparts (c) and (e),which are questions of law (see People v. Wallace,

77 IlL.App.3d 979, 981, 33 1I.Dec. 687, 397 N.E.2d20 (I979) ("( w )hether certin conduct occurred is aquestion of fàct, but whether certain conduct

violates a certin statute is a question of law");

accord McCoy v. McCoy, 227 Il.App.3d 244, 247,169 1l.Dec. 244, 591 N.E.2d 124 (1992)),plaintiffs failure to respond to the remaining

subparts of question 5 resulted in the judicialadmission of the following facts: defendant was notoperating a vehicle that injured plaintiff, defendantkept a proper lookout, defendant was operating the

vehicle at a reasonable and proper speed, defendantstopped and/or turned the course and/or reduced

speed to avoid a collsion, and defendant properly

used his brakes in an attempt to avoid the collsion.See Hubeny, 305 IlApp.3d at 1044, 238 Il.Dec.976, 713 N.E2d 222 (request to admit with respectto action taken or event's occurrnce is question offact that is admitted if not answered). The

assertions in these subpar, as set forth bydefendant in its request to admit, specificallytrcked the language used by plaintiff in hiscomplaint as a predicate for defendant's liability.Thus, plaintiffs admission of these factualassertions, *203 through his failur to respond tothem, eliminates any basis or foundation fordefendant's alleged negligence as postured in the

complaint. See P.R.S. International, 184 m.2d at243-44, 234 m.nee. 459, 703 N.E.2d 71 (throughfailure to respond to request to admit, paryconstrctively admitted to facts which precluded

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(Cite as: 344 II.App.3d 196,799 N.E.2d 852,279 IIl.ec. 49)

Page 6

finding of alleged liability, and thus, summaryjudgment for opposing part was proper).

Accordingly, although questions 1, 2 and 3 may becharacterized as conflcting admissions with respectto whether a collsion occurred, even were we toassume, as plaintiff claims, that a collsion didindeed occur, plaintiffs failure to respond toquestion number 5 is preemptive and leaves nobasis upon which to support any finding of liabilityagainst defendant, thereby rendering the trial court'sgrant of summar judgment proper in this cause.

CONCLUSIONFor the foregoing reasons, we affirm the holding ofthe trial court.

Affnned.

GORDON and McNULTY, JJ., concur.

344 IlApp.3d 196, 799 N.E.2d 852, 279 IlDec.49

END OF DOCUMENT

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u i-1v vt:~av

775 N.E.2d 987

201 Il2d 324, 775 N.E.2d 987, 266 IlWec. 915

(Cite as: 201 I1.2d 324, 775 N.E.2d 987, 266 II.Dec. 915)

po

Brief.. and Other Related Documents

Supreme Court of Ilinois.Shirley ROBIDOUX, Indiv. and a,; Ex'r of the

Estate of Harey Robidoux,Deceased, Appellee,

v.Uretz J. OLIPHANT, M.D., et aL. (Uretz J.

Oliphant, M.D., et aI., Appellants).No. 91072.

June 20, 2002.Rehearing Denied Aug. 29, 2002.

Widow of motorcyclist who died at hospitalfollowing accident sued doctor and clinic thatemployed doctor. The Circuit Court, Champaign

County, Jolm R. DelaMar, J., strck affdavit ofwidow's expert and granted defendants summarjudgment. Widow appealed. The Appellate Courtreversed, and defendants petitioned for appeaL.

After allowing petition to appeal, the Supreme

Cour McMorrow, 1., held that: (1) lack ofnotarzation did not render expert's summaryjudgment affdavit insuffcient; (2) failure to attachto affdavit papers expert had relied upon did render

affdavit insuffcient; and (3) tral cour did notabuse its discretion in denying motion to reconsidersummaiy judgment.

Appellate Cour reversed, circuit court affnned.

Kilbride, 1., dissented and filed opinion, in whichHarrison, C.J., joined.

West Headnotes

(11 Courts ~85(2)1 06k&5(2) Most Cited CasesSupreme Cour's primaiy tak in constring a rule is

Page 1 of14

Page 1

to ascertain and give effect to. the intent of itsdrafers.

I21 Courts ~85(2)lO6k85(2) Most Cited CasesThe most reliable indicator of the intent of a rule'sdrafters is the language used, which should be givenits plain and ordinaiy meaning.

PI Appeal and Error ~893(1)30k&93(1) Most Cited CasesThe constrction of a statute is a question of lawand is reviewed de novo.

(41 Appeal and Error ~893(1)30k&93(1) Most Cited CasesThe constrction of a rule is a question of law and isreviewed de novo.

(51 Judgment €'185.1(4)228kI85.l(4) Most Cited Cases

Expert affdavits submitted in connection with

summaiy judgment motions must not consist ofconclusions but of facts admissible in evidence,

even though at tral an expert may give an opinionwithout disclosing the facts underlying that opinion,as an affidavit utilized in a summar judgmentproceeding caot be cross-examined and itspurpose is totally different from testimony at trial.Sup.Ct.Rules, Rule 191.

(6) Judgment ~178228k 1 78 Most Cited CasesThe purose of summary judgment is not to try aquestion off act, but to detennine if one exists.

(71 Judgment ~185(2)228k i 85(2) Most Cited CasesAlthough a plaintiff is not required to prove his caseat the sumar judgment stage, in order to survivea motion for summary judgment, the nonmoving

part must present a factual basis that wouldarguably entitle the part to a judgent.

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CBA000245

775 N.E.2d 987

201 Il2d 324, 775 N.E.2d 987, 266 I1I.Dec. 915

(Cite as: 2011l.2d 324, 775 N.E.2d 987, 2661l.Dec. 915)

(8) Judgment €=185.2(2)228kI85.2(2) Most Cited Cases

An affidavit submitted in the summar judgmentcontext serves as a substitute for testimony at triaL.

(9) Judgment €=185.1(1)228kI85.l(I) Most Cited Cases

It is necessary that there be strict compliance withrule governing affdavits submitted in connection

with summary judgment motions to insure that trialjudges are presented with valid evidentiary factsupon which to base a decision. Sup.Ct.Rules, Rule191.

(10) Judgment €=185.1(1)228k185.1(I) Most Cited Cases

110) Judgment €=185.1(8)228kI8S.l(8) Most Cited Cases

Attached-papers provision of rule governing

sumary judgment affdavits, requinng thatsupporting documents be attached to the affdavit,must be strctly followed, and failure to do so is notmerely a technical violation of the rule.Sup.Ct.Rules, Rule 191.

(H) Judgment €=185.1(6)228kI85.1(6) Most Cited Cases

Affdavit that was signed and indicated that theperson signing it had been sworn under oath wasnot rendered insufficient due to lack of notarization.Sup.Ct.Rules, Rule 191.

(12) Judgment €=185.1(8)228k185.l(8) Most Cited Cases

Affdavit of plaintiffs expert in medical malpracticeaction was properly stricken by trial court insummar judgment proceeding, where no sworn orcertified copies of papers which expert relied onwere attched to the affdavit, in violation ofattached-papers provision of rule governing

summar judgment affidavits. Sup.Ct.Rules, Rule191.

(13) Appeal and Error €=22330k223 Most Cited CasesAlleged error of tral court durg summaryjudgment proceeding in strking affdavit of

Page 2 of 14

Page 2

plaintiffs expert without a hearing and without

providing her an opportnity to correct affdavit'sdeficiencies was waived by plaintiff on appeal,where plaintiff did not raise issue in her motion toreconsider summar judgment or during hearng onthat motion.

(14) Appeal and Error €=94930k949 Most Cited Cases

1141 Judgment €=186228k 186 Most Cited CasesA ruling on a motion to reconsider a summary

judgment is within the sound discretion of the trialcourt and wil not be disturbed absent an abuse of

that discretion.

1151 Judgment €=186228kl86 Most Cited CasesTrial cour in medical malpractice action did not

abuse its discretion by denying plaintiffs motion toreconsider summar judgment, though defects inaffdavit of plaintiffs expert giving rise to summaryjudgment had been corrected by supplemental

affidavit, as the interests of finality and effciencyrequired cour not to consider late-tenderedevidence, and there had been a chronic pattern oftardiness on the part of plaintiff thoughout the

proceeings.**989*326***917 Karen L. KendaIl, Peoria, andEdward M. Wagner, *327 Urbana, both of Heyl,Royster, Voelker & Allen, for appeIlants.

Michael D. Mar, Jeffey M. Goldberg and MarkA. Brown, of Jeffrey M. Goldberg & Associates,Ltd., and Bruce R. Pfaff, Chicago, for appeIlee.

Justice McMORROW delivered the opinion of thecourt:

This appeal stems from the death of HareyRobidoux, who was injured in a motorcycleaccident on July 15, 1995, and was subsequently

taken to the Carle Foundation Hospital (the

Hospital) in Urbana. While there, he was treatedby, inter alia, defendant Uretz J. Oliphant, M.D., anemployee of defendant Carle Clinic Association(the Clinic). Harey Robidoux died at the Hospital

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CBA000246

775 N.E.2d 987

201111.2d 324,775 N.E.2d 987, 266 IlDec. 915

(Cite as: 201 Hl.d 324, 775 N.E.2d 987, 266 II.Dec. 915)

the same day. In June 1997, plaintiff ShirleyRobidoux, Harvey's widow, sued Oliphat and the

Clinic, along with several others who are not partiesto this appeal, in the circuit court of ChampaignCounty. In 1999, following defendants' motions

for summary judgment, plaintiff fied a response towhich she attached the affidavit of David Richards,M.D., plaintiffs expert witness. On October 4,1999, Oliphant fied a supplemental reply to

plaintiffs response and a motion to strike Richards'affdavit. The next day, October 5, the tral courtgranted Oliphant's motion to strike, as well as his"unrefuted" motion for summary judgment Thetrial court subsequently granted the Clinic's motionfor summary judgment. Plaintiff appealed, and theappellate court reversed. No. 4-00-0105

(unpublished order under Supreme Court Rule 23).We allowed defendants' petition for leave to appeaL.177 I1l.d R. 315. For the reasons set fort below,

we reverse the judgment of the appellate court.

BACKGROUNDThe following facts are taken from the pleadings

and *328 other materials of record, includingRichards' affdavit and Oliphant's deposition. On

July 15, 1995, plaintiffs decedent, HarveyRobidoux (decedent), was injured in a motorcycleaccident and was taken to the HospitaL. He arrivedat the emergency room shortly after 12 p.m.Oliphant, the head of the Hospital's trauma division,was not in the emergency room when decedent

arived, and took no part in his initial care andtreatment. At 12:32 p.m., it was ordered that

decedent undergo a computed tomography (CT)scan. During this scan, decedent went into cardiacarest. Oliphant, who arrved at the emergency

room about this time, ordered the CT scan halted,and decedent was taken to the operating room.

Oliphant, who is a board-certified general surgeon,began operatig on decedent at about 1: 15 p.m. Hetestified in his deposition that he found a large,ruptued hematoma, or blood clot, extending fromdecedent's pelvis upward and spreading over halfhis abdomen. Oliphant determined that decedent'sWac vein (FNll was completely **990 ***918severed, and he believed that all of deceent's ilac

vessels on one side were tom. Decedent died a

Page 3 of 14

Page 3

short time later. According to Oliphant, the causeof death was intra-abdominal bleeding from thesevered or injured iliac vessels.

FNL. The term "iliac vein" is defied as"any of three veins on each side of the

body corresponding to and accompanying

the iliac arteries," which are themselvesdermed as "either of the large arteriessupplying blood to the lower trunk and

hind limbs." Webster's Third NewInternational Dictionary 1125 (1993).

The term "ilac" is derived from "ilum,"which is a bone in the pelvis. Webster's

Third New International Dictionary 1126(1993).

In his deposition, Oliphant was asked if alternativemeasures, including starting surgery earlier, mighthave saved decedent's life. Oliphant answered thatbecause of the severity of decedent's injuries, he didnot believe it would have made any difference.Oliphant also stated *329 that his treatment of

decedent on July 15, 1995, was within theappropriate standard of care.

In counts I thugh 1I of her four amendedcomplaint, plaintiff alleged that Oliphant wasnegligent in failing timely to (1) institueappropriate fluid resuscitation theray, (2) diagnoseinternal bleeding, (3) treat internal bleeding, and (4)diagnose an unstable pelvic fracture. In counts Xthrough XII plaintiff sought to hold the Clinic,Oliphant's employer, vicariously liable forOliphant's actions.

Oliphant and the Clinic filed motions for summaryjudgment. In Oliphant's motion, to which heattched excerpts from his deposition, Oliphant

asserted that he was not involved in the initialtreatment of decedent and there was no negligencein his subsequent treatment of decedent Plaintiffsresponse was filed seven days afer the initialdeadline set by the trial cour, but within an

extended deadline that was set by the court sua

sponte. (FN2J Plaitiff asserted in her response thatthere were genuine issues of material fact as towhether Oliphant acted within the standard of care.

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CBA000247

775 N.E.2d 987

201112d 324,775 N.E.2d 987, 266 II.Dec. 915

(Cite as: 201 BI.d 324, 775 N.E.2d 987, 266 IIDec. 915)

Attached to plaintiffs response was Dr. Richards'

signed affdavit, which stated in full:

FN2. Plaintiff was initially given untilSeptember 22, 1999, to respond to the

motions for summary judgment. OnSeptember 27, the tral court extended thedeadline to September 29, which is the

date the response was fied.

"The undersigned, being first duly sworn underoath, deposes and states as follows:1. I am a physician licensed to practice medicine

in the State of Ohio and a board certified generalsurgeon;2. I have been treating trauma patients with

injuries similar to those of Harvey Robidoux andhave practiced in the same area of health caremedicine that is at issue in this case in excess ofsix years;3. I have reviewed the records of Ford-Baier

Ambulance Service and Carle FoundationHospital, as well as various *330 depositions,

including the deposition of Urtez (sic) J.Oliphant, M.D.;4. That in my opinion, based upon a reasonable

degree of medical certainty, the care andtreatment provided by Dr. Oliphant to Harvey

Robidoux at Carle Foundation Hospital on July15, 1995, fell below the standard of care. In myopinion, Dr. Oliphant failed to recognize in a

timely fashion that the patient had a(n) unstable

pelvic fractue that was the most probable source

of the bleeding, failed to take appropriate

measures to provide adequate fluid resuscitationtherapy and failed to take appropriate measures toimmobilze and repair the damages (sic) bloodvessels;5. In my opinion, based upon a reasonable

degree of medical certainty, had the patientreceived appropriate fluid resuscitation in a

timely maner, and **991 ***919 appropriatetratment to immobilze and repair the damage to

blood vessels in the pelvic region, it is more

probably tre than not that the patient would havesurvived.6. This affdavit is based on my education,

trining and experience, as well as my review of

Page 4 of 14

Page 4

the various materials referenced herein and that,if sworn as a witness, I can and wil testifYcompetently to the fact" and opinions stated

herein, to a reasonable degree of medical

certainty. "

Oliphant fied a supplemental reply to plaintiffsresponse and a motion to strike Richards' affdavit.In his motion, Oliphant alleged that Richards'

affdavit was improper and in violation of SupremeCourt Rule 191 (145 Bl.d R. 191). Oliphantasserted that the affidavit was undated andunverified, and therefore did not contravene

Oliphant's summar judgment motion, which wassupported by his sworn deposition testimony.According to Oliphant, there was no indication inRichards' affdavit "of verification or swearing

under oath by any proper offcial or notary public. II

Oliphant added that Richards' affidavit consisted ofIIvague conclusions II and contained no admissible

facts, and thus did not comply with Supreme CourRule 191, which requires that such affidavits setfort with particularity "the facts" upon *331 whichthe affiant relied. 145 Bl.d R. 191. In addition,

Oliphant pointed to a Rule 191 requirement that

sworn or certified copies of all papers upon whichthe affant relies must be attached to the afdavit.No such papers were attched to Richards' affdavit.

The tral cour granted Oliphant's motion to stre,

explaining that Richards' afdavit lIis not verifiedand does not comport with the requisites ofSupreme Court Rule 191. II The court then grantedOliphant's motion for sumar judgment, which thecourt held IIstands umefuted in effect." Plaintifffied a motion to reconsider, to which she attchedRichards' supplemental affdavit. Oliphant filed a

response to plaintiffs motion to reconsider and amotion to strke Richards' supplementa affdavit.

Because the original judge who grnted Oliphant'smotion for summary judgment had since retired, adifferent judge presided over a joint hearing onplaintiffs motion to reconsider, Oliphant's motion tostrike Richards' supplemental affdavit, and the

Clinic's motion for summar judgment. Despitefinding that Richards' supplemental affidavit waslIadequate to create a genuine issue of material

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CBA000248

775 N.E.2d 987

201 JlL.2d324, 775 N.E.2d 987, 266 I1I.Dec. 915

(Cite as: 201 Hl.d 324, 775 N.E.2d 987, 266 ii.Dec. 915)

fact," the trial court nevertheless granted Oliphant'smotion to strke, "not because (the affidavit) isdefective under Rule 191, but because it is nottimely." The court therefore denied plaintiffsmotion to reconsider and held that the summary

judgment in favor of Oliphant remained lIin fullforce and effect." The court also granted the

Clinic's motion for summary judgment. Finally, thecourt found, pursuant to Supreme Cour Rule 304(a)(155 IIL2d R. 304(a)) that, as to all of these rulings,there was no just reason to delay enforcement or

appeaL.

Plaintiff appealed, and the appellate court reversedand remanded. No. 4-00- 0105 (unpublished orderunder Supreme Court Rule 23). The appellatecourt first *332 held that the striking of an affdavitfor noncompliance with Rule 191 should hereviewed de novo and not under the "abuse ofdiscretion" stadard. The court then found that,while Richards' original affdavit might have

violated Rule 191 in a technical sense, it wasnevertheless substantively in compliance and shouldnot have been stricken. This affdavit, theappellate court further held, presented a genuineissue of matenal fact as to whether Oliphant's

treatment of decedent fell **992 ***920 below thestandard of cae. Accordingly, the appellate court

detennined that the tral court improperly granted

sumar judgment in favor of Oliphant and theClinic. We allowed defendants' petition for leaveto appeal. 177 Il2d R. 315.

ANALYSIS(1)(2)(31(4) The question before us is one ofstatutory constrction. We are asked to detenninethe precise scope of the requirements set forth inRule 191(a). It is well settled that the construction

of our JUles is comparable to this court'sconstrction of statutes. The committee commentsto Supreme Court Rule 2 state that "the samepriciples that govern the constrction of statutesare applicable to the JUles." 134 Ill.d R. 2,

Committee Comments; cf. Bright v. Dicke, 166Il.2d 204, 210, 209 IlI.Dec. 735, 652 N.E.2d 275(1995) (supreme court JUles are neither aspirationalnor are they suggestions; "(t)hey have the force oflaw, and the presumption must be that they wil be

Page 5 of 14

Page 5

obeyed and enforced as written"). As is the casewith statutes, our primary task in constring a JUle

is to ascertain and give effect to the intent of itsdrafters. in re Estate of Rennick, 181 Hl.d 395,404-05, 229 IlI.Dec. 939, 692 N.E.2d 1150 (1998).

"The most reliable indicator of intent is thelanguage used, which should be given its plain andordinar meaning." Rennick, 181 Il.2d at 405, 229

ll.Dec. 939, 692 N.E.2d 1150. The constrction ofa statute is a question of law and is reviewed denovo. In re Estate of Dierkes, 191 m.2d 326, 330,246 Il Dec. 636, 730 N.E.2d 1101 (2000). Wetherefore review the interpretation of Rule 191(a)de novo.

*333 Rule 191 (a) states in pertinent part:"Affdavits in support of and in opposition to amotion for summary judgment under section2-1005 of the Code of Civil Procedure * * * shallbe made on the personal knowledge of theaffiants; shall set forth with particularity the facts

upon which the claim, counterclaim, or defense isbased; shall have attached thereto sworn or

certified copies of all papers upon which theaffant relies; shall not consist of conclusions but

of facts admissible in evidence; and shall

affinatively show that the amant, if sworn as awitness, can testify competently thereto." 145

Il.2d R. 191(a).

Plaintiff directs our attention to this cour's decisionin Wilson v. Clark, 84 Hl.d 186, 49 IlDec. 308,417 N.E.2d 1322 (1981), and argues that, in light ofthis decision, the requirements of Rule 191(a)

cannot be given literal effect. We disagree.

In Wilson, this cour adopted Rules 703 and 705 ofthe Federal Rules of Evidence pertaining to an

expert's testimony at tral. Rule 703 states in

peiiinent part:"The facts or data in the particular case upon

which an expert bases an opinion or inference

may be those perceived by or made known to theexpert at or before the hearing. If of a type

reasonably relied upon by expert in theparticular field in fonning opinions or inferencesupon the subject, the facts or data need not beadmissible in evidence in order for the opinion or

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CBA000249

775 N.E.2d 987

201 n1.d 324, 775 N.E.2d 987, 266 IIDec. 915

(Cite as: 201 Il.2d 324, 775 N.E.2d 987,266 Il.Dec. 915)

inference to be admitted." Fed.R.Evid. 703.The cour in Wilson noted that, in a trial context,"(b loth Federal and State court have interpretedFederal Rule 703 to allow opinions based on factsnot in evidence." Wilson, 84 II.2d at 193, 49

nl.Dec. 308, 417 N.E.2d 1322.

Rule 705 states:"The expert may testify in terms of opinion orinference and give reasons therefor without firsttestifying to the underlying facts or data, unless

the court requires otherwise. The expert may inany event be required to disclose the underlyingfacts or data on cross-examination." Fed.R.Evid.

705.

**993 ***921 In accordance with Rule 705, weheld in Wilson that, at trial, "an expert may give anopinion without disclosing *334 the fact')underlying that opinion." Wilson, 84 nl.2d at 194,

49 Il.Dec. 308,417 N.E.2d 1322. "Under Rule 705

the burden is placed upon the adverse par duringcross-examination to elicit the facts underlying theexpert opinion." Wilson, 84 Il.2d at 194,49 IlDec.

308, 417 N.E.2d 1322. We explained in Wilsonthat our "following of Federal Rules 703 and 705comports with the modem trend liberalizing certintral procedures." Wilson, 84 Il.2d at 195, 49

Il.Dec. 308, 417 N.E.2d 1322. Thus, underWilson, an expert testifying at trial may offer anopinion based on facts not in evidence, and the

expert is not required on direct examination to

disclose the fact underlying the expert's opinion.

Plaintiff at bar argues in essence that there is aninconsistency between Wilson and the plainlanguage of Rule 191(a). As noted, under Wilson,

an expert's opinions may be offered at tral in theform of conclusions. However, under the plain

language of Rule 191(a), an expert's affdavit insupport of or in opposition to a motion for sumarjudgment must consist not of conclusions but offacts admissible in evidence, and it must set fort

these fact with paricularity. Plaintiff thus appears

to contend that we should constre Rule 191(a) notaccording to its plain language, but rather in

confomiity with the more relaxed standardestablished in Wilson.

Page 6 of 14

Page 6

The diffculty with plaintiffs contention is thatWilson deals with an expert's testimony at trial,while Rule 191(a) deals with affdavits in support ofor in opposition to motions for summary judgment.As wa') explained by our appellate court in Kostenv. St. Anne's Hospital. 132 IlAppJd 1073, 88Il.Dec. 149, 478 N.E.2d 464 (1985), these twoprocedural settings are very different. In Kosten,

the plaintiff raised the same argument as doesplaintiff at bar, contending that, in light of thiscourt's decision in Wilson, her expert's affidavit"need not state any facts but may set fort onlyconcJusions." Kosten, 132 IlApp.3d at 1080, 88II.Dec. 149, 478 N.E.2d 464. In rejecting thisargument, our appellate court explained:

"Wilson has no relevance to summary judgmentprocedure. An affdavit utilize in summarjudgment procedure *335 is totally different fromtestimony at triaL. The affdavit cannot becross-examined as can a witness at triaL.Supreme Court Rule 191 is specific in mandatingthat affdavits cannot consist of conclusions but

must set forth facts admitted in evidence.

(Citation.J Wilson did not ovenu1e or modifyRule 191." Kosten, 132 IlApp.3d at 1080, 88

Il.Dec. 149,478 N.E.2d 464.

Accord Landeros v. Equity Property &Development, 321 Il.AppJd 57, 63, 254 Ul.Dec.

351, 747 N.E.2d 391 (2001); Woolums v. Huss,

323 IlLAppJd 628, 636, 257 Il.Dec. 39, 752N.E.2d 1219 (2001); Northrop v. Lopatka, 242lll.AppJd 1, 8, 182 nLDec. 937, 610 N.E.2d 806

(I993). (FN3)

FN3. This court has not directly addressedthe issue of Rule 191 as it relates to Wilson.

However, in Majca v. Beekil, 183 H1.d407, 423-24, 233 nl.Dec. 810, 701 N.E.2d1084 (l 998), we affirmed the striking of anexpert's affdavit on the ground that it wasconclusory rather than fact based and thusdid not meet the requirements of Rule 191.

See also Bucheleres v. Chicago ParkDistrict, 171 Il.2d 435, 462-63, 216

Il.Dec. 568, 665 N.E.2d 826 (1996)

(upholding the striking of an expert'saffdavit for failure to comply with Rule191, where affdavit was challenged as

(g 2006 Thomson/West. No Claim to Orig. U.S. GoV!. Works.

htt://print.westlaw.comldelivery .html?dest=atp&format=HTMLE&dat,

CBA000250

775 N.E.2d 987

201 iil.2d 324, 775 N.E.2d 987,266 iil.Dec. 915

(Cite as: 20l1l.2d 324, 775 N.E.2d 987,266 IlDec. 915)

being "merely conjectural").

(5)(6)(7)(81(9) We agree with the reasoning of thecourt in Kosten. Summary judgment isappropriate where "the pleadings, depositions, andadmissions on fie, together with the affdavits, ifany, show that there is no genuine issue as to anymaterial fact **994 ***922 and that the movingpart is entitled to a judgment as a matter of law."

735 ILCS 5/2- 1005(c) (West 1998); Gilbert v.Sycamore Municipal Hospital, 156 Il.2d 511,517-18, 190 Ill.Dec. 758, 622 N.E.2d 788 (1993).The purpose of summary judgment is not to tr a

question of fact, but to determine if one exists.Gilbert, 156 Il.2d at 517, 190 1ll.Dec. 758, 622

N.E.2d 788. Although a plaintiff is not required toprove his case at the summary judgment stage, inorder to survive a motion for summary judgment,

the nonmoving part must present a factual basisthat would arguably entitle the part to a judgment.Allegro Services, Ltd. v. Metropolitan Pier &Exposition Authority, 172 Il.2d 243, 256, 216IlDec. 689, 665 N.E.2d 1246 (1996). Anaffdavit submitted in the summary judgmentcontext serves as a substitute for testimony at triaL.*336Fooden v. Board of Governors of StateColleges & Universities, 48 Hl.d 580, 587, 272N.E.2d 497 (1971). Therefore, it is necessar thatthere be strct compliance with Rule 191(a) "to

insure that tral judges are presented with valid

evidentiary facts upon which to base a decision."Solon v. Godbole, 163 Il.App.3d 845, 851, 114

IlL.Dec. 890, 516 N.E.2d 1045 (1987).

Fui1her support for the position taken by the courtin Kosten can be found in the federal court ofappeals decision in Hayes v. Douglas Dynamics,

Inc., 8 F.3d 88 (1st Cir.1993), which addressed an

issue similar to the Rule 191-Wilson question. In

Hayes, the court considered the interplay between

Rule 705 of the Federal Rules of Evidence (one ofthe rules adopted in Wilson) and Rule 56(e) of theFederal Rules of Civil Procedur. Rule 56(e), asubsection of the federal rule governing motions forsumar judgment in federal court, is similar to ourRule 191(a). Rule 56(e) states in pertinent par:

"Supporting and opposing affdavits shall bemade on personal knowledge, shall set fort such

Page 7 of14

Page 7

facts as would be admissible in evidence, and

shall show affrmatively that the affant iscompetent to testify to the matters stated therein.Sworn or certified copies of all papers or partthereof referred to in an affdavit shall be attchedthereto or served therewith." Fed.R.Civ.P. 56(e).

The plaintiffs in Hayes raised essentially the sameargument as did the plaintiff in Kosten and plaintiffin the case at bar, i.e., that under Federal Rule ofEvidence 705, the conclusory assertions made intheir experts' affidavits were suffcient to withstanda motion for summary judgment. The court inHayes disagreed, and affined the trial court'sgranting of summary judgment. According to theHayes court, such affidavits submitted in oppositionto a motion for summary judgment must meet thestandards of Rule 56(e), which "requires that thenonmoving par 'set fort specific facts showingthat there is a genuine issue for tria!.' " Hayes, 8F.3d at 92, quoting Fed.R.Civ.P. 56(e). The court

added that the plaintiffs' reliance upon Rule 705was "largely inapposite" *337 because that rule"was designed to apply in the context of a tral,where cross-examination provides an opportnity to

probe the expert's underlying facts and data and totest the conclusions reached by the expert." Hayes,8 F.3d at 92.

The court in Hayes furter stated:"The evidentiar rules regarding expert testimony

at trial were 'not intended * * * to make summarjudgment impossible whenever a par"t hasproduced an expert to support its position.'(Citation.) We are not wiling to allow thereliance on a bare ultimate expert conclusion to

become a free pass to tral every time that aconfict of fact is based on expert testiony. Aswith all other evidence submitted on a motion forsummar judgment, expert affdavits must **995***923 be reviewed in light of (Rule) 56." Hayes,8 F.3d at 92.

See also Merit Motors, Inc. v. Chrsler Corp., 569F.2d 666, 673 (D.C.Cir.l977) ("To hold that Rule

703 prevents a court from grating summarjudgment against a pa who relies solely on anexpert's opinion that has no more basis * * * than ** * theoretical speculations would seriously

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CBA000251

775 N.E.2d 987

201 Il2d 324, 775 N.E.2d 987, 266 nl.Dec. 915

(Cite as: 201 II.2d 324, 775 N.E.2d 987.266 IlDec. 915)

undermine the policies of Rule 56. We areunwiling to impose the fiitIess expenses oflitigation that would result from such a limitation onthe power of a court to grant summary judgment");Evers v. General Motors Corp., 770 F.2d 984, 986(II th Cir. i 985) (concluding that Rules 703 and 705"do not alter the requirement of (Rule) 56(e) that anaffdavit must set forth specific facts in order tohave any probative value").

In light of these authorities, we conclude that Rule19l(a) should be consted according to the plainand ordinary meaning of its language. Itsrequirements should be adhered to as written. See

Bright v. Dicke, 166 Bl.d 204, 210, 209 1I.Dec.

735, 652 N.E.2d 275 (1995). If we were to lessenthese requirements and interpret Rule 19l(a) in

conformity with the more relaxed standardestablished in Wilson, we would be making"su11ary judgment impossible whenever a par

has produced an expert to support its position."*338 Merit Motors, 569 F.2d at 673. We declineto construe Rule 19l(a) in this manner.

Notwithstanding the foregoing, plaintiff points tothe special concurrence in Woolums v. Huss, 323IlLApp.3d 628, 257 iii.Dec. 39, 752 N.E.2d 1219(2001), which asserts an essential equivalencebetween expert opinion testimony at trial and anexpert's affdavit in a summary judgment context.The special concurrence argues that, given thiscourt's decision in Wilson, "the admission of anexpert opinion under Rule 191 at the summarjudgment stage reuires a greater showing of

foundation than is required for admission of the

same expert opinion at triaL" Woolums, 323Il.App.3d at 642, 257 IlDec. 39, 752 N.E.2d 1219(Steigmann, PJ., specially concurring). Accordingto the special concurrence, this is an inconsistency

for which there is no sound basis.

We find this argument unconvincing. As noted,Federal Rules 703 and 705 were designed to applyto an expert's testimony at triaL. Rule 191, on theother hand, was drafted to apply to pretrialproceedings, including summar judgment. Forpurposes of our analysis, there is no equivalence

between these two procedurl contexts.

Page 8 of 14

Page 8

Accordingly, there is no inconsistency in having

one standard for admission of an expert's testimonyat trial and a different, more strngent standard foradmission of an expert's affdavit in support of or inopposition to a motion for summary judgment. Asnoted, such an affdavit serves as "a substitute fortestimony taken in open court." Fooden v. Board ojGovernors of State Colleges & Universities, 48Il.2d 580, 587, 272 N.E.2d 497 (1971). Given

that cross-examination is unavailable as a means totest an affidavit, it is not surprising that the standardfor admission of an affdavit in a summaryjudgment context would be higher than for theadmission of an expert's opinion at triaL. Cf Solonv. Godbole, 163 II.App.3d 845, 851, II4 Il.Dec.890, 516 N.E.2d 1045 (1987) ("strict compliancewith Supreme Cour Rule 191(a) is necessary toinsure that trial judges are *339 presented withvalid evidentiary facts upon which to .base adecision").

For the reasons set fort above we conclude that

Wilson is inapplicable to a summary judgmentsituation. Therefore, an expert's affidavit insupport of or in opposition to a motion for summaryjudgment must adhere to the requirements set fortin the plain language of Rule 19l(a).

**996 ***924 Plaintiff next argues that even ifWilson does not apply, and Rule 191(a) therefore isconstred according to its plain meaning, the rule'sprovision requiring that supporting documents beattached to the afdavit need not be strictlyfollowed. According to plaintiff, the failure toattach such papers to the affdavit is merely a

technical violation of the rule and should bedisregarded if the affant is competent to testifY attral. We disagree.

(10) We have already held that Rule 19l(a)'srequirements are to be consted according to the

plain language of the rule. Here, the plainlanguage clearly requires that such papers beattached to the affdavit. Moreover, supreme courtrules, like statutes, should be constred as a whole,with individual provisions interpreted in light of

other relevant provisions. See Michigan AvenueNational Bank v. County of Cook, 191 Hl.d 493,

(Ç 2006 ThomsonlWest. No Claim to Orig. U.S. Govt. Works.

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CBA000252

775 N.E.2d 987

20111.2d 324, 775 N.E.2d 987, 266 Il.Dec. 915

(Cite as: 201 II.2d 324, 775 N.E.2d 987, 266 II.Dec. 915)

504, 247 fI.Dec. 473, 732 N.E.2d 528 (2000).

The Rule 191(a) provisions barng conclusionary

assertions and requiring an affdavit to state factswith "paricularity" would have little meaning werewe to constre the attached-papers provision as

merely a technical requirement that could bedisregarded so long as the affant were competent totestifY at triaL.

In support of her position, plaintiff relies uponBeals v. Huffman, 146 Il.App.3d 30, 99 Il.Dec.706, 496 N.E.2d 281 (1986), which held that thefailure to attach to an affidavit the papers on whichan affant relies is a technical violation of Rule

191 (a). According to the court in Beals, suchtechniea1 interpretations are not favored, andtechnical insuffciencies such *340 as the failure toattach documents should be disregarded if itappears that the affant would be a competent

witness at triaL. Beals, 146 I1I.App.3d at 39, 99Il.Dec. 706, 496 N.E.2d 281. For the reasons setfort above, we decline to constue theatched-papers provision in this manner. As westated in Bright v. Dicke, 166 nL2d 204, 210, 209nl.Dec. 735, 652 N.E.2d 275 (1995), the rules ofthis cour neither are aspirational nor are they meresuggestions; "rtJhey have the force of law, and thepresumption must be that they wil be obeyed and

enforced as written."

(Ill Plaintiff next urges that an affdavit need notbe notarized in order to comply with therequirements of Rule 191(a). We agree.

We note initially that there is no expressrequirement in Rule i 91(a) that an affdavit benotaized. As was noted in Northrop v. Lopatka,

242 IH.App.3d 1, 7, 182 I1I.Dec. 937, 610 N.E.2d806 (1993), "Supreme Court Rule 191 does notexpressly require that affdavits include evidence ofthe adinistration of an oath to the affiant." What

is required is that the "affdavit must be signed bythe deponent or his name must appear therein as theperson who took the oath." Northrop, 242III.App.3d at 7,182 Il.Dec. 937, 610 N.E.2d 806.

The signed affdavit at issue in Northrop recited

that the affiant, " 'after being duly sworn upon (hisl

Page 9 of 14

Page 9

oath(,) depose(s) and statersl as follows.' "

Northrop, 242 IlI.App.3d at 7, 182 IlI.Dec. 937, 610N.E.2d 806. The court in Northrop held that thisaffidavit was "minimally suffcient, as thedeponent's name appears as one having taken anoath." Northrop, 242 IlI.App.3d at 7, 182 llI.Dec.937, 610 N.E.2d 806. In the instant case, Richards'affdavit, which was also signed, presents a similarrecitation, stating that "(tJhe undersigned, being firstduly sworn under oath, deposes and states asfollows." The appellate court below relied upon

Northrop in concluding that Richards' affdavit didnot violate Rule 191(a), even though the affidavitlacked notarization. We agree with thisinterpretation of the rule.

**997 *341 ***925 Notwithstanding theforegoing, defendants argue that in order to complywith Rule 191(a), an affidavit must appear to havebeen sworn to before an officer of the court. Insupport, defendants point to decisions by our

appellate court in People v. Smith, 22 1I.App.3d377, 317 N.E.2d 300 (1974), and Hough v. Weber,

202 II.App.3d 674, 147 nl.Dec. 857, 560 N.E.2d 5(1990). Defendants' reliance upon these decisionsis misplaced.

Smith contains an assertion that an affdavit mustappear to have been sworn to before an officer.The court in Hough cites to Smith in makingessentially the same assertion. However, neither ofthese decisions involves Rule 191(a), which by itstenus applies to "raJffdavits in support of and inopposition to a motion for summary judgment undersection 2-1005 of the Code of Civil Procedure,

affdavits submitted in connection with a motion forinvoluntary dismissal under section 2-619 of theCode of Civil Procedure, and affidavits submitted inconnection with a special apperance to contest

jurisdiction over the person, as provided by section2-301(b) of the Code of Civil Procedure." (FN4J

145112d R. 19I(a).

FN4. Defendants also point to HamerHolding Group, inc. v. Elmore, 244IH.App.3d 1069, 184 IlLDec. 598, 613

N.E.2d Il90 (1993), which on its surfaceappeas to implicate Rule 191(a). There,

ß)2006 Thomson/West. No Claim to Orig. U.S. Govt. Works.

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CBA000253

775 N.E.2d 987

201 I1l.2d 324,775 N.E.2d 987, 266 II.Dec. 915

(Cite as: 201 m.2d 324, 775 N.E.2d 987,266 Il.Dec. 915)

the court held that the affdavits inquestion "lacked * * * the seal of a notary

and as such do not comport with SupremeCourt Rule 191(a)." Hamer, 244II.AppJd at 1084, 184 Hl.Dec. 598, 6I3

N.E.2d 1190. However, this holding wasclearly judicial dictum, i.e., not essential tothe decision. See Black's Law Dictionary465 (7th ed. 1999). In addition, it isquestionable whether these affdavits were

of a type that is included within the scope

of Rule 191(a). Hamer dealt with theenforceability of a covenant not tocompete, and the affdavits in question

were attached to the defendant's petitionseeking to bar enforcement of the covenanton the ground of a change incircumstances. They were not filed in

support of or in opposition to a summaryjudgment motion, nor do they appear to

have been filed in connection with a

special appearance to contest jurisdictionover the person or in connection with a

section 2-619 motion to dismiss.

In Smith, the "affdavit" in question stated,

allegedly *342 falsely, that the person named in anaccompanying ballot application was "physicallyincapable of being present at the polls on election

day." Smith, 22 IIApp.3d at 378,317 N.E.2d 300.This affdavit was the centerpiece of an indictment

charging the defendants, including the physician

who signed the affdavit, with conspiracy to commitpeijui. The affdavit did not fall within the scope

of Rule 191(a). It was not fied in support of or inopposition to a summary judgment motion, nor wasit submitted in connection with a special appearanceto contest jurisdiction over the person or inconnection with a section 2-619 motion to dimiss.The same is true of Hough, which dealt with adispute between a widow and her husband's adultchildren over the disintennent of the husband's

remains. The widow sued to prevent thedisintennent, and the trial court issued a preliminarinjunction in her favor. The defendatssubsequently fied a motion for rehearing and a

motion to presrve the evidence, both of which

were denied. The affdavit in question was

Page 10 of14

Page 10

submitted in support of the motion to preserve

evidence. As was the case in Smith, this affidavitwas not within the scope of Rule 191(a). These

decisions provide no support for defendants'

argument that Rule 19l(a) requires an affdavit tobe notarized.

Defendants also attempt to distinguish Northrop v.Lopatka, 242 Ill.App.3d 1, 182 IlI.ec. 937, 610

N.E.2d 806 (1993), where, as noted, an affidavitwas found to be IIminimalJy suffcient" under Rule191 even though the affidavit was not notarized.Defendants note that the affant in Northrop" **998***926 unlike Richards in the instant case, " hadalready given sworn deposition testimony, but hadthereafter filed a defective affidavit." The

appellate court below rejected this same argument,correctly concluding that "(t)he fact that Richards

had not yet been deposed is irrelevant." As theappellate court noted, "(t)he court (in Northrop )actually found the affidavit suffcient because theaffant had taken an *343 oath, not because he had

been deposeci" This conclusion by the appellatecourt below is supported by the language used by

the court in Northrop, which stated: "Weneverteless conclude that the affdavit here was

minimally suffcient, as the deponent's nameappears as one having taken an oath." Northrop,242 iil.App.3d at 7, 182 Il.Dec. 937, 610 N.E.2d

806.

We now apply our constrction of Rule 19I(a) toRichards' original affdavit, which, as previously

indicated, was strcken by the tiial couii. We noteinitially that, contrar to the tral court's assertion

that the affdavit was "not verified," we find that itshowed suffcient signs of verification to meet therequirements of Rule 19l(a). As discussedpreviously, an affdavit need not be notaized inorder to comply with Rule I91(a). Instead, it mustbe signed by the affant, or "his name must appeartherein as the person who took the oath." Northropv. Lopatka, 242 IJl.App.3d 1, 7, 182 IlDec. 937,610 N.E.2d 806 (1993). Here, Richards' affdavitwas signed, and his name appeared as one havingtaken an oath. Lack of notarization did not renderthis affdavit insufficient.

~ 2006 Thomson/West. No Claim to Orig. U.S. Gov!. Works.

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CBA000254

775 N.E.2d 987

201 Hl.d 324, 775 N.E.2d 987, 266 IIDec. 915

(Cite as: 201 Bl.d 324, 775 N.E.2d 987,266 IIDec. 915)

As to the requirement that facts be set forth withparticularity and that the affidavit consist not ofconclusions but of facts admissible in evidence,

Richards' initial affdavit does appear to besomewhat concJusionar. However, we are notconvinced that the affdavit. is as devoid of factualsupport as defendant,; maintain. In his affdavitRichards mentions, for example, decedent's"unstable pelvic frcture," which, according to

Richards, Oliphant failed to recognize in a timely

fashion as the most probable source of bleeding.Richards also points to "damage to blood vessels inthe pelvic region," opining that there should havebeen "appropriate treatment to immobilze andrepair" such damage.

(12) Nevertheless, it is undisputed that the affdavitdid not have attached "sworn or certified copies ofall papers upon which the affant relie (d)." 145Il.2d R. 191(a). As *344 noted, this requirement

is inextricably linked to the provisions requiring

specific factual support in the affdavit itself. It isnot a mere technical requirment. Were we torelax this attched-papers requirement and constreit in confoimity with the more lenient standard

established in Wilson, we would be lowering the barand allowing the avoidance of summary judgmentwhenever a party is able to produce an expert tosupport its position. See Merit Motors, Inc. v.Chrysler Corp., 569 F.2d 666, 673 (D.C.Cir.l977).We are unwiling to allow the simple production ofan expert's conclusion "to become a free pass totral" in such a context. Hayes v. Douglas

Dynamics, Inc., 8 F.3d 88, 92 (I st Cir. i 993).

Notwithstanding the foregoing, plaintiff asserts thatthe trial couii' decisions to strike Richards' initial

affidavit and grant the motion for summaryjudgment were taen without a hearing. Plaintifftherefore argues that she "was 'deprived of anyopportnity to correct deficiencies in the originalaffdavit before it was sticken or, most importantly,

to submit a supplemental afdavit prior to the trialcourt('s) ruling on the motion for summaryjudgment. "

(13) Plaintiff did not raise this issue in her motionto reconsider, nor was it raised during the hearing

Page 11 of14

Page 11

on this motion. "Questions**999 ***927 not raisedin the trial cour cannot be argued for the first timeon appeaL." Ragan v. Columbia Mutual InsuranceCo., 183 I1L2d 342, 355, 233 IlLDec. 643, 70 IN.E.2d 493 (1998). Plaintiff therefore has waivedthis issue. In addition, under the local circuit courtrules, "(t)he allowance of oral arguments uponmotions (is) discretionary with the court," whichmay "decide a motion without hearing oralarguments." 6th Judicial Cir. Ct. R. 2.l(c) (eff.February 6, 1997). According to these rules, it waswithin the court's discretion to grant the motion tostrike the affdavit and the motion for summarjudgment without conducting a hearing.

*345 For the reasons set fort above, we conclude

that, under any stadard of review, Richards' initialaffdavit clearly did not meet the plain-language

requirements of Rule 19l(a). It was therefore noterror for the trial court to strike this affdavit andgrant summary judgment in favor of defendants.

Plaintiff next argues that the trial court erred instriking Richards' supplemental affdavit and

denying plaintiffs motion for reconsideration. Wedisagree.

We note initially that while the supplemental

affdavit states that "copies of the records and

depositions that (Richards) reviewed and reliedupon in support of (his J opinions are attchedhereto as Group Exhibit B," we could find no suchGroup Exhibit B attached to the supplemental

affdavit in the record. This exhibit is referred to

during the hearing on plaintiffs motion toreconsider, but its absence from the record onappeal leaves us to speculate as to whether the

appropriate documents were attched to theaffdavit, as required by Rule 191(a).

Plaintiff correctly notes that the judge at theheang on the motion to reconsider held that thesupplemental affdavit was adequate under Rule19l(a). The judge stated that "this time in thesupplemental affdavit Dr. Richards incorporates '"* * cerin specific facts upon which he's relying in

ariving at his opinion," and the judge concluded

that this affdavit "would be adequate to create a

(Ç 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works.

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CBA000255

775 N.E.2d 987

201 Ill.2d 324,775 N.E.2d 987, 266 ll.Dec. 915

(Cite as: 201 Bl.d 324, 775 N.E.2d 987,266 I1.Dec. 915)

genuine issue of material factll However, the

judge struck the afdavit "not because it isdefective under Rule 191, but because it is nottimely." The judge stated that "(t)here is simply noexplanation, much less a good one tendered, as towhy the supplemental affidavit * * * was notsubmitted" prior to the tral court's decision on the

motion for summar judgment.

In reaching this conclusion, the trial judge citedGardner v. Navistar International Transportation

Corp., 213 IIApp.3d 242, 157 Il Dec. 88, 571N.E.2d 1107 (1991), where the court stated:

*346 "Trial cours should not permit litigants tostand mute, lose a motion, and then franticallygather evidentiary material to show that the courterred in its ruling. Civil proceedings already

suffer from far too many delays, and the interestsof finality and effciency require that the trialcourts not consider such late-tendered evidentiarymaterial, no matter what the contents thereof maybe." (Emphasis in originaL.) Gardner, 213

IlApp.3d at 248-49, 157 Il.Dec. 88, 571 N.E.2d1107.

The judge also noted that "there has been a chronicpattern (oftardiness) throughout this case which hastrly infected these proceedings." He thenprovided a chronology of plaintiffs tardinesses inthe case:

"Two Motions for Judgment were fied by thedefense because the Plaintiff had not fiedamended pleadings in compliance with the timeframes set by (the trial court). The first Motionfor Judgment was fied March 22nd, 1999, and

(the tral cour) granted the Plaintiff an extension

of time to respond and grted **1000 ***928that extension * * * to April 13th of 1999.

Again, the Plaintiff did not fie in a timely

fashion, so a second Motion for Judgment wasfied April the 15th of 1999. Notwithstading

that, (the trial cour) granted leave to fie a ThirdAmended Complaint on May the llth of 1999.On June 17th of 1999 another Motion forExtension of Time was allowed the Plaintiff (bythe trial cour), this time to respond to a Motionto Strike and Dismiss. Notwithstanding the

extension of time, the response for the Motion to

Page 12 of 14

Page 12

Strike and Dismiss was filed eight days late. OnJuly 21 st of 1999, neverteless(,) the Plaintiff wasgiven leave to amend the complaint again. * * *On September 13th of 1999 the Plaintiffs Motionfor Leave to File a Fourth Amended Complaint,

quote 'belatedly,' closed quotes, was granted by(the tral court) over the objection of theDefendant, and the Plaintiff was given toSeptember 22nd of 1999 to file a response to theMotions for Summary Judgment that I am beingasked to reconsider today. On (September) 27th

of 1999, (the trial court), again, apparently ex

parte, afforded the Plaintiff an opportunity to

respond to September the 29th of 1999, and itwas not until October 5th of 1999 that SummaryJudgment was granted."

The judge concluded that "the sound exercise ofthe *347 Court's discretion dictates granting theMotion to Strike the Supplemental Affdavit simplyon the basis of timeliness or lack thereof." .

(14)(15) A ruling on a motion to reconsider iswithin the sound discretion of the trial court andwil not be disturbed absent an abuse of that

discretion. Willams v. Covenant Medical Center,316 IlApp.3d 682, 693, 250 Ill.Dec. 40, 737N.E.2d 662 (2000); Higgens v. House, 288Ill.App.3d 543, 546, 223 Il.Dec. 886, 680 N.E.2d1089 (1997). Given the circumstances in this case,and given the sound policy reasons invoked by the

tral judge, we cannot say that it was an abuse ofdiscretion for the judge to strke the supplemental

affdavit. The trial court therefore did not err instking the supplemental affdavit and in denying

the motion for reconsideration.

CONCLUSIONFor the reasons set forth above, we conclude that

Supreme Court Rule 191(a) should be constredaccordig to the plain and ordinar meaning of itslanguage. Its provisions should be adhered to aswritten. In addition, an affidavit need not benotarized to comply with Rule 191(a), so long as itis either signed by the affiant or his name appears asone having taken an oath. We conclude furter thatit was not error for the trial cour to strke Richards'original affidavit and grant the motions forsummar judgment, nor was it errr for the trial

~ 2006 Thomson/West. No Claim to Orig;. U.S. Govt. Works.

http://print.westlaw.comJdeliveiy.html?dest=atp&fonnat=HTMLE&d:CBA000256

775 N.E.2d 987

201 iil.2d 324,775 N.E.2d 987, 266 IlI.Dec. 915

(Cite as: 201 Il.2d 324, 775 N.E.2d 987, 266 Il.Dec. 915)

cour to strike Richards' supplemental affdavit and

deny plaintiffs motion for reconsideration. We

therefore reverse the judgment of the appellate

court, which reversed the judgment of the circuitcourt and affrm the judgment of the circuit court

Appellate court judgment reversed; circuit courtjudgment qfrmed

Justice KILBRIDE, dissenting:

i respectfully dissent from the majority'ssanctioning of summary judgment in this case whenthe trial court *348 failed to comply with themandates of secion 2-1005 of the Code of CivilProcedure (the Code) (735 ILCS 5/2-1005 (West2000)). Specifically, the trial court granted

summary judgment in this case without the benefitof "the hearing" specifically contemplated by theCode. See 735 ILCS 5/2-1005(c) (West2000).

Before setting out my opposition to thefundamental, procedural flaw in this case, I note mydisagreement with the majority's**1001 ***929

interpretation of Rule 191's attachment requirementas it relates to the rule's paricularity requirement.The linchpin of the majority's ultimate conclusion isthat plaintiffs original affdavit failed because theplaintiff did not attach documents in support of theaffdavit. If all other matters were equal, the

majority's conclusion on that point would becorrect. I contend, however, that all else was notequal and that the plaintiff was not afforded a levelplaying field.

The attachment issue was first raised by thedefendants after plaintiff filed the original affidavitin opposition to the summary judgment motion.

The defendants' supplemental replies and motionsto strike alleged that the plaintiffs affdavit wasimproper and in violation of Supreme Court Rule191. The supplemental pleadings in reply werefiled the day before the trial judge granted summarjudgment. Without affording the plaintiff anyopportnity to respond to the new objections, thenext day the tral court strck plaintiffs affdavit.After striking plaintiffs affdavit, the tral couit then

Page 13 of14

Page 13

reasoned that summar judgment for defendant wasinescapable because plaintiff had, in effect,presented no opposition to the summary judgmentmotion. In short the tral court pennitted the

defendants to blind-side the plaintiff by ignoring thesummary judgment hearing requirement anddepriving the plaintiff of the right to file a

counteraffdavit or otherwise respond to thedefendants' supplemental fiings.

*349 Section 2- 1005 unequivocally contemplates ahearing on summary judgment motions. Section2-1005 provides that the "opposite part may priorto or at the time of the hearing on the motion filecounteraffidavits." (Emphasis added.) 735 ILCS512- i 005( c ) (West 2000). If there is no hearing,how can the deadline for fiing counteraffdavits beestablished? Section 2- 1005 plainly grants theopposing part the right to present counteraffdavitsat the time of the summar judgment hearing.

Here, the opposing part (plaintiff) did not receivethe benefit of a hearing where he might have curedany defects in the original response and affdavit.

The majority explains that the lack of a hearing inthis case is of no moment because the local circuitCOUlt rules pennit oral hearings on a discretionar

basis and plaintiff waived the issue. I disagree withboth of these reasons. First, it is inexplicable howthe majority can countenance the usurpation of astatutory reuirement by a local circuit cour rule.The procedural reuirements of section 2- I 005 areplain and simple, legal requirements, binding uponall Ilinois trial courts.

Second, on the issue of waiver, we may considerissues not properly preserved by the paries in order

to ensure a just result. Geise v. Phoenix Co. ojChicago, Inc., 159 iil.2d 507, 514, 203 iil.Dec.454, 639 N.E.2d 1273 (1994). Summary judgmentis a drstic means of disposing of litigation and thecourt has a duty to constre the record strctlyagainst the movant and liberally in favor of thenonmoving par. Gilbert v. Sycamore Municipal

Hospital, 156 Il.2d 511,518, 190 II.Dec. 758,622N.E.2d 788 (1993). Moreover, summar judgmentshould be entered only when the right of the movingparty is clea and free from doubt. Gilbert, 156

1J 2006 Thomson/est. No Claim to Orig. U.S. Govt. Works.

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CBA000257

775 N.E.2d 987

201 Il.2d 324,775 N.E.2d 987, 266 Ill.Dec. 915

(Cite as: 20111.2d 324, 775 N.E.2d 987, 266 II.Dee. 915)

Ill.d at 518,190 iii.Dec. 758, 622 N.E.2d 788.

In this case, waiver should not have been reliedupon by the majority because of the procedural

iregularities that occured below. The trial courtshould have allowed plaintiff the opportnity torespond to defendants' *350 supplementalobjections, fied the day before it awarded summarjudgment to defendant. The trial cour procedure

used here is tantamount to blindfolding theopponent and then asking the opponent to shoot at amoving **1002 ***930 target. In addition, whileplaintiffs arguments concerning the lack of a

hearing on the summary judgment motion were notraised in a written motion, those arguments were

raised before the trial court by plaintiff durng oralargument on the motion to reconsider. Because

plaintiff afforded the trial cour the opportnity tocorrct its own error, the rationale behind the

waiver rule is not present. See People v.Segoviano, 189 Il1.2d 228, 253, 244 Ill.Dec. 388,725 N.E.2d 1275 (2000) (Rathje, 1., speciallyconcuring); In re Marriage of Houghton, 301IIApp.3d 775, 780, 235 IlI.Dec. 60, 704 N.E.2d409 (1998); see also People v. Wiliams, 173 II2d48, 85, 218 II.Dec. 916, 670 N.E.2d 638 (1996)

(application of the waiver rule is less rigid wherethe basis for the objection is the trial court'sconduct).

Furtermore, I also disagree with the majority'sdecision regarding Rule 191 because of thepractical implications of the majority'sinterpretation of the attachment requirement.

Although I agree with the majority that theattchment requirement is more than a meretechnicality, I do not believe that we should blindlydemand strict compliance. Rather, the attachmentof documents should be enforced with an eye

towards the practicalities of managing a court file.For instace, at oral argument, plaintiffs counsel

clarfied that the sae documents relied upon by theplaintiffs doctor were already fied of record. Whythen should we require duplicative filings of thesame documents relied upon by multiple parties insupport of or in opposition to a summary judgmentmotion? A par should be permitted to complywith the attachment provision by incorporating by

Page 14 of 14

Page 14

reference the identification of the pertinent papers.

Finally, on a minor point of reference by themajority, I also respectfully object to the notion thata litigant's *351 right to tral could be equated witha " 'free pass to trial' " (201 Il.2d at 344, 266II.Dec. at 926, 775 N.E.2d at 998, quoting Hayes v.

Douglas Dynamics, Inc., 8 F.3d 88, 92 (1stCir.1993)). If anything, the "free pass" in this case

is the unwarranted grant of summary judgment andthe defendants' pass from triaL. Every litigant isentitled to a trial and that right may only be deniedby summary judgment when the right of the movingpart is clear and free from doubt. Gilbert, 156

Il2d at 518, 190 nLDec. 758, 622 N.E.2d 788.

Accordingly, for the reasons set forth in thissepamte opinion, I respectfully dissent.

Chief Justice HARRSON joins in this dissent.

201 Il2d 324,775 N.E.2d 987, 266 IIL.Dec. 915

Briefs and Other Related Documents (Back totop)

. 2001 WL 34156993 (Appellate Brief) ReplyBrief of Appellant (Oct. 01, 2001 )Original Image ofthis Document (PDF)

. 2001 WL 34156991 (Appellate Brief) ResponseBrief of Plaintiff-Appellee (Sep. 17, 2001)Original

Image of this Document (PDF)

. 2001 WL 34156992 (Appellate Brief) Brief ofAppellant (Jut 11, 2001)Original Image of thisDocument with Appendix (PDF)

. 2001 WL 34156994 (Appellate Brief) Answer toPetition for Leave to Appeal (Apr. OS,2001)Original Image of this Document (PDF)

. 2001 WL 34387750 (Appellate Brief) Petition forLeave to Appeal Pursuant to Supreme Cour Rule315 (Mar. 13, 200l)Original Image of thisDocument (PDF)

(i 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works.

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Docket No. 93710-Agenda 13-January 2003.WILLIAM DAWDY, JR., Appellee, v. UNION PACIFIC

RAILROAD COMPANY et al., Appellants. Opinion filed August 21, 2003.

JUSTICE FREEMAN delivered the opinion of the court:

Plaintiff, William Dawdy, Jr., brought a personal injury action in the circuit court of Madison County against defendants, the Union Pacific Railroad Company and Rodney Riederer. Plaintiff sought damages for injuries sustained in a motor vehicle accident that occurred in Macoupin County. Defendants moved to transfer the action to Macoupin County under the doctrine of forum non conveniens. The circuit court denied the motion and the appellate court affirmed. No. 5-00-0293 (unpublished order under Supreme Court Rule 23).

We allowed defendants' petition for leave to appeal (177 Ill. 2d R. 315(a)). We now reverse the appellate and circuit courts and remand this cause to the circuit court of Madison County with directions to transfer the cause to Macoupin County.

BACKGROUND

On the morning of May 20, 1997, plaintiff was driving a tractor westbound on Illinois Highway 108 in Macoupin County. At the same time, Riederer, acting within the scope of his employment with Union Pacific, was driving a truck eastbound on the same highway. The vehicles collided, causing plaintiff to be seriously injured.

On May 19, 1999, plaintiff filed a two-count complaint in the circuit court of Madison County. Count I alleged negligence in the operation of defendants' vehicle. Count II, addressed solely to Union Pacific, alleged that the railroad was negligent also for failing to train and supervise Riederer and for failing to ensure that vehicle attachments would not extend beyond the width of their vehicles when operated on public thoroughfares.

Defendants filed a motion to transfer venue from Madison County to adjacent Macoupin County under the doctrine of forum non conveniens. In their motion, defendants alleged as follows. Plaintiff resides in Greene County. The action arose in Macoupin County. Riederer resides in Macoupin County. Union Pacific is a Delaware corporation with its principal place of business in Omaha, Nebraska. Union Pacific does business in Macoupin County. Of the 18 witnesses who may be called to testify at trial, most of them reside in or near Macoupin County, and none of them reside in Madison County. Also, the docket of the Madison County circuit court is more congested than that of the Macoupin County circuit court. Thus, according to defendants, Macoupin County would be the most convenient forum to try this case. Defendants argued that "this case has absolutely no connection whatsoever with Madison County, Illinois. There is no basis or reason for filing this case in this court other than 'forum shopping.' "

In his memorandum in opposition to defendants' motion to transfer venue, plaintiff argued that venue in Madison County is just as convenient as in Macoupin County. Plaintiff alleged as follows. Union Pacific operates a facility in Madison County. Of the 18 potential witnesses, 14 reside in neither Madison County nor Macoupin County and, accordingly, will be required to travel regardless of where the case is tried. The average additional miles required for the 18 potential witnesses to travel to Madison County rather than to Macoupin County is approximately 18 miles per witness. Most of the witnesses conduct business regularly in Madison County. Plaintiff's attorney resides in Madison County, and defendants' attorneys

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reside closer to Madison County than to Macoupin County. According to plaintiff, his choice of forum is entitled to deference and defendants failed to show that the factors in a forum non conveniens analysis strongly weigh in favor of transfer.

The circuit court of Madison County denied defendants' motion to transfer. Defendants appealed. Initially, the appellate court reversed the circuit court's order and remanded the cause with directions to transfer venue to Macoupin County. However, on plaintiff's motion for rehearing, the appellate court vacated its decision and affirmed the circuit court's denial of defendant's motion to transfer venue. The appellate court held that, in light of this court's decision in First American Bank v. Guerine, 198 Ill. 2d 511 (2002), it was "compelled" to vacate its previous decision and issue a new decision affirming the circuit court's order denying defendants' motion to transfer venue to Macoupin County.

This court allowed defendants' petition for leave to appeal. 177 Ill. 2d R. 315(a). We subsequently granted the Illinois Trial Lawyers Association leave to submit an amicus curiae brief in support of plaintiff. 155 Ill. 2d R. 345.

ANALYSIS

Defendants contend that the appellate court erred in affirming the circuit court's denial of defendants' motion to transfer venue. Defendants argue, inter alia, that Macoupin County, and not Madison County, is the most convenient forum to try this case.

I. Forum Non Conveniens: Controlling Principles

The Illinois venue statute provides that an action must be commenced: (1) in the county of residence of any defendant who is joined in good faith, or (2) in the county in which the cause of action arose. 735 ILCS 5/2-101 (West 2000). If there exists more than one potential forum, the equitable doctrine of forum non conveniens may be invoked to determine the most appropriate forum. Griffith v. Mitsubishi Aircraft International, Inc., 136 Ill. 2d 101, 105 (1990); Bland v. Norfolk & Western Ry. Co., 116 Ill. 2d 217, 223 (1987). The doctrine is based on considerations of fundamental fairness and sensible and effective judicial administration. The doctrine allows the court in which the action was filed to decline jurisdiction and direct the lawsuit to an alternative forum that the court determines can better serve the convenience of the parties and the ends of justice. Vinson v. Allstate, 144 Ill. 2d 306, 310 (1991); Wieser v. Missouri Pacific R.R. Co., 98 Ill. 2d 359, 365 (1983), quoting Adkins v. Chicago, Rock Island & Pacific R.R. Co., 54 Ill. 2d 511, 514 (1973); see Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 507, 91 L. Ed. 1055, 1062, 67 S. Ct. 839, 842 (1947).

Although the forum non conveniens doctrine has a long history at common law, its general application crystallized following Gulf Oil. See Guerine, 198 Ill. 2d at 515; Wieser, 98 Ill. 2d at 365. Illinois courts employ the analytical framework of Gulf Oil in forum non conveniens cases. See, e.g., Meyers v. Bridgeport Machines Division of Textron, Inc., 113 Ill. 2d 112, 118-19 (1986) (collecting cases), quoting Gulf Oil, 330 U.S. at 508-09, 91 L. Ed. 2d at 1062-63, 67 S. Ct. at 843; People ex rel. Compagnie Nationale Air France v. Giliberto, 74 Ill. 2d 90, 110-11 (1978), quoting Gulf Oil, 330 U.S. at 508-09, 91 L. Ed. at 1062-63, 67 S. Ct. at 843.

In Gulf Oil, the Court discussed private interest factors affecting the litigants and public interest factors affecting court administration. Gulf Oil, 330 U.S. at 508, 91 L. Ed. at 1062, 67 S. Ct. at 843. A court must balance the private and public interests in determining the appropriate forum in which the case should be tried. Private interest factors include the convenience of the parties; the relative ease of access to sources of testimonial, documentary, and real evidence; the availability of compulsory process to secure attendance of unwilling witnesses; the cost to obtain attendance of willing witnesses; the possibility of

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viewing the premises, if appropriate; and all other practical considerations that make a trial easy, expeditious, and inexpensive. See Cook v. General Electric Co., 146 Ill. 2d 548, 557 (1992); Vinson, 144 Ill. 2d at 310.

The relevant public interest factors include: the administrative difficulties caused when litigation is handled in congested venues instead of being handled at its origin; the unfairness of imposing jury duty upon residents of a county with no connection to the litigation; and the interest in having local controversies decided locally. Gulf Oil, 330 U.S. at 508-09, 91 L. Ed. at 1062-63, 67 S. Ct. at 843; see Cook, 146 Ill. 2d at 557; Vinson, 144 Ill. 2d at 311.

An additional consideration under the forum non conveniens doctrine is deference to the plaintiff's choice of forum. A plaintiff's right to select the forum is substantial. Unless the factors weigh strongly in favor of transfer, the plaintiff's choice of forum should rarely be disturbed. Griffith, 136 Ill. 2d at 106, quoting Jones v. Searle Laboratories, 93 Ill. 2d 366, 372-73 (1982), quoting Gulf Oil, 330 U.S. at 508, 91 L. Ed. at 1062, 67 S. Ct. at 843; Moore v. Chicago & North Western Transportation Co., 99 Ill. 2d 73, 77 (1983) (collecting cases); see Gulf Oil, 330 U.S. at 508, 91 L. Ed. at 1062, 67 S. Ct. at 843. "This deference to plaintiff's choice of forum is commonly referred to as an unequal balancing test." Wieser, 98 Ill. 2d at 366.

However, the plaintiff's choice of forum is not entitled to the same weight or consideration in all cases. "When the home forum has been chosen, it is reasonable to assume that this choice is convenient." Piper Aircraft Co. v. Reyno, 454 U.S. 235, 255-56, 70 L. Ed. 2d 419, 436, 102 S. Ct. 252, 266 (1981). "Similarly, when the site of the accident or injury is chosen, the choice is convenient because the litigation has the aspect of being 'decided at home.' " Guerine, 198 Ill. 2d at 518; see Brummett v. Wepfer Marine, Inc., 111 Ill. 2d 495, 499-500 (1986). "When the plaintiff is foreign, however, this assumption is much less reasonable. Because the central purpose of any forum non conveniens inquiry is to ensure that the trial is convenient, a foreign plaintiff's choice deserves less deference." Piper, 454 U.S. at 256, 70 L. Ed. 2d at 436, 102 S. Ct. at 266; see McClain v. Illinois Central Gulf R.R. Co., 121 Ill. 2d 278, 289 (1988); Bland, 116 Ill. 2d at 227-28 (collecting cases). Indeed, as a panel of our appellate court has observed:

"[W]hen the plaintiff is foreign to the forum chosen and the action that gives rise to the litigation did not occur in the chosen forum, this assumption [of convenience] is no longer reasonable. Instead, it is reasonable to conclude that the plaintiff engaged in forum shopping to suit his individual interests, a strategy contrary to the purposes behind the venue rules." Certain Underwriters at Lloyds, London v. Illinois Central R.R. Co., 329 Ill. App. 3d 189, 196 (2002).

We agree.

Courts have long acknowledged the existence of forum shopping:

" '[A]ll choices of tribunal are commonly used by all plaintiffs to get away from judges who are considered to be unsympathetic, and to get before those who are considered more favorable; to get away from juries thought to be small-minded in the matter of verdicts, and to get to those thought to be generous; to escape courts whose procedures are burdensome to the plaintiff, and to seek out courts whose procedures make the going easy.'

We would add that ordinarily plaintiffs' zeal in those respects is matched only by defendants' efforts in seeking to avoid such fora." Espinosa v. Norfolk & Western Ry. Co., 86 Ill. 2d 111, 123 (1981), quoting Miles v. Illinois Central R.R. Co., 315 U.S. 698, 707, 86 L. Ed. 1129, 1135, 62 S. Ct. 827, 832 (1942) (Jackson, J., concurring).

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This court has acknowledged that a plaintiff, in choosing a forum, might shop for the most favorable forum. Wieser, 98 Ill. 2d at 368; Espinosa, 86 Ill. 2d at 123.

However, courts have never favored forum shopping:

" 'The judiciary has never favored this sort of shopping for a forum. It has sought to protect its own good name as well as to protect defendants *** against the practice of seeking out soft spots in the judicial system in which to bring particular kinds of litigation. But the judges with lawyerly indirection have not avowed the interest of the judiciary in orderly resort to the courts as a basis for their decision, and have cast their protective doctrines in terms of sheltering defendants against vexatious and harassing suits. This judicial treatment of the subject of venue leads Congress and the parties to think of the choice of a forum as a private matter between litigants, and in cases like the pressent [sic] obscures the public interest in venue practices ***.' " Espinosa, 86 Ill. 2d at 122-23, quoting Miles, 315 U.S. at 706, 86 L. Ed. at 1135, 62 S. Ct. at 831-32 (Jackson, J., concurring).

Accordingly, while courts acknowledge that plaintiffs forum shop, courts may not consider this practice in a forum non conveniens analysis. Wieser, 98 Ill. 2d at 368; Espinosa, 86 Ill. 2d at 123. By itself, forum shopping "furnishes no legal reason for sustaining" a plaintiff's choice of forum. Pruitt Tool & Supply Co. v. Windham, 379 P.2d 849, 850 (Okla. 1963). " ' "[D]ecent judicial administration could not tolerate [forum shopping] as a persuasive or even legitimate reason for burdening *** communities with litigious controversies which arose elsewhere and should in all justice be tried there." ' " Pruitt Tool, 379 P.2d at 850, quoting St. Louis-San Francisco Ry. Co. v. Superior Court, Creek County, 290 P.2d 118, 121 (1955). A plaintiff's right to choose a forum "cannot be permitted to override the public interest in, and need for, an orderly, efficiently operated judicial system." Espinosa, 86 Ill. 2d at 123.

In Griffith, this court explained the forum non conveniens unequal balancing test when the plaintiff chooses a foreign forum:

"Under our current forum non conveniens analysis, deference to the plaintiff's choice of forum is but one factor, along with other relevant private and public interest factors, to be considered in the balancing process. The deference given to plaintiff's choice of forum is a factor which may be given more or less weight within the test, depending on whether the plaintiff is a resident of the forum selected. In deciding a forum non conveniens motion, a court is to take all the relevant factors into account, giving each factor, including plaintiff's choice of forum, proper deference or weight under the circumstances. If the plaintiff is foreign to the forum selected, the forum choice should be given less deference than it would be given if the plaintiff were a resident of the forum selected. The test, then, is whether the relevant factors, viewed in their totality, strongly favor transfer to the forum suggested by defendant.

By giving plaintiff's choice of forum more or less weight within the formula, the current test takes into account the plaintiff's status as a resident or a nonresident of the forum chosen. We are satisfied that the current test ensures that a nonresident plaintiff's choice of forum will not be accorded undue deference ***." Griffith, 136 Ill. 2d at 107-08.

"If central emphasis were placed on any one factor, the forum non conveniens doctrine would lose much of the very flexibility that makes it so valuable." Piper, 454 U.S. at 249-50, 70 L. Ed. 2d at 432, 102 S. Ct. at 263; see Guerine, 198 Ill. 2d at 518; Peile v. Skelgas, Inc., 163 Ill. 2d 323, 336-37 (1994); Bland, 116 Ill. 2d at 227.

Forum non conveniens is applicable on an intrastate as well as on an interstate basis. In other words, the doctrine may be applied where the choice is between forums in the same state as well as when the choice is between forums in different states. The same considerations of convenience and fairness apply in

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deciding the question of the forum for trial. Guerine, 198 Ill. 2d at 517; Bland, 116 Ill. 2d at 224; Meyers v. Bridgeport Machines Division of Textron, Inc., 113 Ill. 2d 112, 119 (1986); Torres v. Walsh, 98 Ill. 2d 338, 350-51 (1983); see Peile, 163 Ill. 2d at 330-36 (upholding intrastate application of forum non conveniens).

The determination of a forum non conveniens motion lies within the sound discretion of the trial court. On review, the trial court's decision will be reversed only if it can be shown that the court abused its discretion in balancing the relevant factors. Bland, 116 Ill. 2d at 223; Meyers, 113 Ill. 2d at 117-18 (collecting cases); Wieser, 98 Ill. 2d at 365. An abuse of discretion will be found where no reasonable person would take the view adopted by the trial court. Schwartz v. Cortelloni, 177 Ill. 2d 166, 176 (1997); see People v. Illgen, 145 Ill. 2d 353, 364 (1991); In re Possession & Control of the Commissioner of Banks & Real Estate of Independent Trust Corp., 327 Ill. App. 3d 441, 476 (2001).

II. The Present Case

Applying the forum non conveniens factors to this case, we conclude that the circuit court abused its discretion in denying defendants' motion to transfer to Macoupin County. Although we acknowledge plaintiff's right to choose the forum, we conclude, after considering the record, that the factors weigh strongly in favor of transfer. See Griffith, 136 Ill. 2d at 106. The record strongly indicates that a trial in Macoupin County would better serve the convenience of the parties and the ends of justice. See Bland, 116 Ill. 2d at 223.

Turning to the private interest factors, we begin by examining the facts regarding the relative ease of access to evidence. We note plaintiff's argument that we may not consider mileage distances because this information was not part of the record. "However, an appellate court may take judicial notice of matters not previously presented to the trial court when the matters are capable of instant and unquestionable demonstration." Boston v. Rockford Memorial Hospital, 140 Ill. App. 3d 969, 972 (1986), citing May Department Stores Co. v. Teamsters Union Local No. 743, 64 Ill. 2d 153, 159 (1976). "Courts often take judicial cognizance of the distances between two or more locations *** and the customary routes and usual time required for travel between them." 1 C. Fishman, Jones on Evidence §2:56, at 120 (7th ed. 1992); accord M. Graham, Cleary & Graham's Handbook of Illinois Evidence §202.2, at 60 (7th ed. 1999); 1 R. Steigmann, Illinois Evidence Manual §2:21 (3d ed. 1995); see, e.g., City of Chicago v. Waters, 363 Ill. 125, 131 (1936).

In the present case, the accident occurred in Macoupin County. Although only two of the potential witnesses actually reside in Macoupin County, most of the potential 18 witnesses identified by defendant reside closer to Macoupin County than Madison County. Although two of the potential witnesses work at the Illinois State Police headquarters in Collinsville, part of which is in Madison County, none of the potential witnesses reside in Madison County. Four out of the ten medical providers are located in Macoupin County or adjacent Greene County. The remaining six medical providers are located in either Sangamon County or Macon County, both of which are closer to Macoupin County than to Madison County. Because the location of the accident is in Macoupin County, and the location of the identified witnesses are on a whole closer to Macoupin County than Madison County, these factors slightly weigh in favor of the convenience of Macoupin County over Madison County.

Another private interest factor is the possibility of viewing the premises, if appropriate. The appellate court apparently gave this factor no weight. The court concluded: "although the accident occurred in Macoupin County, there is nothing in the record to indicate that a view of the accident site will be necessary."

This reasoning misses the mark. This convenience factor is not concerned with the necessity of viewing

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the site of the injury, but rather is concerned with the possibility of viewing the site, if appropriate. See Gulf Oil, 330 U.S. at 508, 91 L. Ed. at 1062, 67 S. Ct. at 843. Adhering to Gulf Oil, this court has recognized that "the possibility of having a jury view the scene of an accident is an important consideration in ruling upon a forum non conveniens motion." (Emphasis added.) Moore, 99 Ill. 2d at 80. Further, the necessity or propriety of viewing the scene is a decision left within the discretion of the trial court. See Cook, 146 Ill. 2d at 559; Washington, 144 Ill. 2d at 403.

In this case, if the trial court later determines that viewing the accident site is appropriate, the accident occurred in Macoupin County. Although Macoupin County adjoins Madison County, it would be irrational for a jury composed of Madison County residents to travel to Macoupin County to view the accident scene. See, e.g., Vinson, 144 Ill. 2d at 312-13. Further, such viewing arguably could be accomplished more expeditiously if the case were tried in Macoupin County. See, e.g., Evans v. MD Con, Inc., 275 Ill. App. 3d 292, 296 (1995).

We next weigh all other practical considerations that make a trial easy, expeditious, and inexpensive. Plaintiff observes that his attorneys maintain an office in Madison County, and defendants' attorneys are located only a short distance away in neighboring St. Clair County. While a court may consider this factor, "little weight should be accorded it." Boner v. Peabody Coal Co., 142 Ill. 2d 523, 534 (1991).

Also, according to plaintiff, "the fact that Macoupin County adjoins Madison County must be taken into consideration in the analysis. Where the distance is so minimal, it becomes incredulous to argue inconvenience in the county chosen by Plaintiff." He asserts that "because the two counties are adjoining any difference in mileage would be insignificant for purposes of determining convenience."

We note that amicus "[s]upports the Plaintiff's position that the trial court did not abuse its discretion in keeping the case in Madison County." Amicus additionally contends "that on a motion to transfer between adjacent counties, the private interest 'convenience' factors should conclusively be weighed in plaintiff's favor." Amicus observes that "[t]he doctrine of forum non conveniens concerns convenience at trial" and posits that "travel between adjacent counties is common and not inconvenient." Therefore, according to amicus, trial in an adjacent county is not inconvenient to a defendant as a matter of law.

We cannot accept the contention that trial in an adjacent county is conclusively not inconvenient for a defendant. In upholding denials of forum non conveniens motions to transfer venue, this court has observed that the forums chosen by plaintiffs and those suggested by defendants were located in adjacent counties. See, e.g., Griffith, 136 Ill. 2d at 113. However, this court has repeatedly recognized that no single forum non conveniens factor should be accorded central emphasis or conclusive effect. Jones v. Searle Laboratories, 93 Ill. 2d 366, 373 (1982). "Mileage is but one factor of convenience. 'If central emphasis were placed on any one factor, the forum non conveniens doctrine would lose much of the very flexibility that makes it so valuable.' " Bland, 116 Ill. 2d at 227, quoting Piper, 454 U.S. at 249-50, 70 L. Ed. 2d at 432, 102 S. Ct. at 263. Illinois courts have transferred venue to adjacent counties based on forum non conveniens. See, e.g., Washington, 144 Ill. 2d at 404 (Madison County to Bond County); Evans, 275 Ill. App. 3d at 298 (Cook County to Will County).

On the whole, we conclude that the private interest factors favor the convenience of Macoupin County over Madison County.

The relevant public interest factors include judicial administration and court congestion, imposing jury duty on the residents of a community unrelated to the litigation, and the local interest in local controversies. See Gulf Oil, 330 U.S. at 508-09, 91 L. Ed. at 1062-63, 67 S. Ct. at 843. The public interest factors strongly weigh against Madison County as the appropriate forum in which this case should be tried.

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The court congestion factor, by itself, is relatively insignificant (Guerine, 198 Ill. 2d at 517; Peile, 163 Ill. 2d at 342-43) and is not sufficient to justify transfer of venue when none of the other relevant factors weigh strongly in favor of transfer. Griffith, 136 Ill. 2d at 114. Nonetheless, this court has repeatedly recognized that it is appropriate to consider the congested conditions of the docket in the plaintiff's chosen forum. Bland, 116 Ill. 2d at 229; Wieser, 98 Ill. 2d at 372-73 (and cases cited therein).

This court has found the annual report of the Administrative Office of the Illinois Courts (Annual Report) to be a proper reference in assessing court congestion. This court has already taken notice of Madison County's congested court docket. See Washington, 144 Ill. 2d at 403.

Plaintiff does not dispute that the docket of the Madison County circuit court is more congested than that of Macoupin County. Indeed, he cannot. The Annual Report for 1998 reveals that there were 1,867 jury actions for damages in excess of $50,000 pending in Madison County, while only 137 of such cases were pending in Macoupin County. Further, in such cases, the average time lapse between filing and verdict in Madison County was 29.3 months, but only 17.3 months-one year less-in Macoupin County. These statistics demonstrate that the docket of the circuit court of Madison County, through the time that plaintiff filed his complaint, continued to be "crowded to the point where congestion is of great concern." Bland, 116 Ill. 2d at 230.

Another public interest factor concerns the local interest in local controversies. The appellate court reasoned as follows: "the accident occurred in Macoupin County, and defendant Riederer is a resident of said county. However, the facts also demonstrate that Madison County has a legitimate interest in this case because defendant Union Pacific conducts business in Madison County." Plaintiff additionally pointsto the fact that Riederer maintains a post office box in Madison County and travels there "nearly daily for his mail."

This reasoning is erroneous. Merely conducting business, or maintaining a post office box, in Madison County does not affect the forum non conveniens issue. It is assumed on a forum non conveniens motion that the plaintiff's chosen forum is a proper venue for the action. If defendant Union Pacific did no business in Madison County, that county would have been an improper venue for the case. See 735 ILCS 5/2-101 (West 2000) (action must be commenced in county of residence of a defendant or the county where the action arose); 735 ILCS 5/2-102(a) (West 2000) (foreign corporation is only resident of those counties in which it has an office or does business). Accordingly, the fact that the defendant conducts business within Madison County is not a dispositive factor in this case. A forum non conveniens motion causes a court to look beyond the criteria of venue when it considers the relative convenience of a forum. See Vinson, 144 Ill. 2d at 311; Bland, 116 Ill. 2d at 226. If the fact that the defendant conducts business, or maintains a post office box, in the plaintiff's chosen forum were dispositive, the forum non conveniens "doctrine itself would be entirely vitiated, and no transfer would ever be obtained. Rather, plaintiff's choice would be elevated to the stature of a dispositive consideration, which is patently not to be allowed." Franklin v. FMC Corp., 150 Ill. App. 3d 343, 347 (1986); accord Evans, 275 Ill. App. 3d at 296-97 (collecting cases).

Turning to the relevant facts, the accident occurred in Macoupin County and not Madison County. Neither plaintiff nor Riederer reside in Madison County. Although some of the witnesses may work in Madison County, there is little else connecting them to Madison County. Clearly, Madison County has little or no interest in trying the action of a nonresident whose claim arose in Macoupin County.

Conversely, unlike Madison County, Macoupin County has a strong connection with and interest in this action. In addition to Riederer, some of the witnesses reside in Macoupin County. Most significantly, the fact that the accident occurred in Macoupin County gives the action a local interest. See Guerine, 198 Ill. 2d at 518; Washington, 144 Ill. 2d at 403; Bland, 116 Ill. 2d at 229.

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Addressing the public interest factor of jury duty, we conclude that the residents of Madison County should not be burdened with jury duty given the fact that the action did not arise in, and has no relation to, their county. See Washington, 144 Ill. 2d at 404; Vinson, 144 Ill. 2d at 313. Rather, the accident occurred in Macoupin County. This gives Macoupin County a significant interest in the dispute and, therefore, it would not be unfair to burden the residents thereof with jury duty in this case. Cook, 146 Ill. 2d at 558-59.

As we noted earlier, the appellate court ultimately held that, in light of our decision in Guerine, it was "compelled" to affirm the circuit court's denial of defendant's motion to transfer venue to Macoupin County. However, Guerine is readily distinguishable from this case.

In Guerine, we concluded that the balance of the forum non conveniens factors did not strongly favor transfer from the plaintiff's chosen forum. We held that where the potential trial witnesses are scattered among several counties, including the plaintiff's chosen forum, and no single county enjoys a predominant connection to the litigation, the plaintiff may not be deprived of his or her chosen forum. Guerine, 198 Ill. 2d at 526. Plaintiff conceded at oral argument that Guerine was based on the totality of the circumstances of that case and did not alter forum non conveniens principles in Illinois.

In this case, however, none of the witnesses reside in Madison County and Macoupin County has a predominant connection to this case. The sole fact that one defendant maintains a post office box in Madison County does not give Madison County a legitimate interest in or connection to this case.

Further, nothing in Guerine can be read to condone forum shopping. In Guerine, we observed that "[a] concern animating our forum non conveniens jurisprudence is curtailing forum shopping by plaintiffs." Guerine, 198 Ill. 2d at 521, citing Torres, 98 Ill. 2d at 351. As our appellate court has observed:

"An integral part of the forum non conveniens analysis is fairness to the litigants and convenience to those that will be called to testify at trial. Realigning parties for the purpose of fixing venue in a county where there may be a more favorable outcome to plaintiffs does not reinforce or complement the principles of forum non conveniens. Instead, it perverts them." Certain Underwriters, 329 Ill. App. 3d at 199.

We agree. See Torres, 98 Ill. 2d at 351.

In the present case, the weight of the private interest factors favors Macoupin County. The weight of the public interest factors greatly favors Macoupin County. Further, the deference to plaintiff's choice of Madison County is reduced because he does not reside there and the action did not arise there. Considering all relevant private and public interests, we conclude that the balance of factors strongly favors transfer to Macoupin County. This determination rested within the discretion of the circuit court, subject to reversal only upon a showing of abuse, i.e., that no reasonable person would take the circuit court's position. See, e.g., Bland, 116 Ill. 2d at 223; Schwartz, 177 Ill. 2d at 176. We conclude that this standard was met in this case. Accordingly, we hold that the circuit court abused its discretion in denying defendants' motion to transfer venue from Madison County to Macoupin County based on the doctrine of forum non conveniens.

III. Remaining Contentions

We note defendants' additional contention that the circuit court's denial of their motion to transfer venue violates various federal and state constitutional provisions. However, our reversal of the circuit court on forum non conveniens grounds obviates discussion of defendants' constitutional claim. See Beahringer v. Page, 204 Ill. 2d 363, 369-70, 378 (2003); City of Detroit v. Gould, 12 Ill. 2d 297, 304 (1957) (both holding that constitutional questions will not be decided if case can be determined on other grounds).

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CONCLUSION

For the foregoing reasons, the judgment of the appellate court and the order of the circuit court of Madison County are reversed, and the cause is remanded to the circuit court of Madison County with directions to transfer the cause to Macoupin County.

Appellate court reversed;

circuit court reversed;

cause remanded with directions.

JUSTICE RARICK took no part in the consideration or decision of this case. JUSTICE KILBRIDE, dissenting:

I respectfully dissent from the majority opinion. The majority flatly disregards this court's repeated pronouncements that the forum non conveniens doctrine gives courts broad discretionary power that should be exercised only in exceptional circumstances when the interests of justice require a trial in a more convenient forum. Boner v. Peabody Coal Co., 142 Ill. 2d 523, 527-28 (1991), citing Bland v. Norfolk & Western Ry. Co., 116 Ill. 2d 217, 223 (1987); First American Bank v. Guerine, 198 Ill. 2d 511, 520 (2002), quoting Peile v. Skelgas, Inc., 163 Ill. 2d 323, 335 (1994), quoting Torres v. Walsh, 98 Ill. 2d 338, 346 (1983), citing Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 91 L. Ed. 1055, 67 S. Ct. 839 (1947). This case does not present a situation where, as indicated by the majority, "[t]he record strongly indicates that a trial in Macoupin County would better serve the convenience of the parties and the ends of justice" and "no reasonable person would take the view adopted by the trial court." (Emphasis added.) Slip op. at 8. The trial court noted all of the relevant factors, assessed their relative importance under the circumstances of this case, and concluded that a transfer was not warranted. Thus, it cannot be held that the trial court abused its discretion in refusing to transfer this case to Macoupin County.

The majority discounts that defendant Union Pacific, a foreign corporation, is a resident of Madison County for venue purposes. See 735 ILCS 5/2-102(a) (West 2000) (in the case of a foreign corporation, residence is defined as any county where the corporation has an office or is doing business). Union Pacific's contact with Madison County is not minimal or marginal. The record demonstrates that Union Pacific does not merely conduct business in Madison County, it operates a facility there and employs numerous citizens of Madison County, including some of the potential witnesses who work out of this facility.

I also disagree with the majority's conclusion that in a forum non conveniens analysis, the court should not consider the fact that the defendant conducts business in Madison County. Slip op. at 13. This court has held that the "extent and type of business" conducted in the forum are certainly appropriate considerations for the court in a forum non conveniens analysis. Boner, 142 Ill. 2d at 540. Thus, the majority's conclusion that the court should not consider the fact that Union Pacific conducts business in Madison County is inexplicable.

In Boner, this court recognized that, where a defendant company has offices and conducts active operations in a county, its activities in that county are "by no means marginal." Boner, 142 Ill. 2d at 540. Thus, when weighing the relative "convenience" of Madison County to the defendants, the fact that Union Pacific operates facilities in Madison County militates against finding the forum "inconvenient" to the defendants.

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Certainly the residents of Madison County have an interest in the resolution of this litigation involving a corporation that operates facilities within its borders. Presumably, Union Pacific and its numerous Madison County resident employees pay taxes in Madison County. Hence, the county's resources would not be overburdened with the trial of a case involving the alleged negligence of one of its corporate residents. See Boner, 142 Ill. 2d at 540. Although plaintiff did not file suit in his home forum and, thus, his choice of forum is given less deference, his choice of forum is, nevertheless, still accorded considerable weight. Boner, 142 Ill. 2d at 542. This is especially true where, as here, the defendants' forum choice is neither plaintiff's home forum nor Union Pacific's home forum. See Boner, 142 Ill. 2d at 542.

It is also unfair and inaccurate for the majority to suggest that the plaintiff in this case has somehow engaged in " '[r]ealigning parties for the purpose of fixing venue in a county where there may be a more favorable outcome' " to him. Slip op. at 14, quoting Certain Underwriters at Lloyds, London v. Illinois Central R.R. Co., 329 Ill. App. 3d 189, 199 (2002). The plaintiff in this case did not "realign the parties." Plaintiff was simply injured in an accident with a truck owned by Union Pacific, driven by a Union Pacific employee. Nor did plaintiff include Union Pacific as a defendant for any improper forum shopping purpose. Union Pacific is a necessary and indispensable party to this litigation. Not only was Union Pacific the owner of the truck and the employer of defendant Riederer, but plaintiff's complaint also specifically alleges that Union Pacific was negligent for failing to train and supervise Riederer and for failing to ensure that vehicle attachments would not extend beyond the width of its vehicles when operated on public thoroughfares.

I also acknowledge the majority's concerns regarding the number of cases filed in Madison County. Nevertheless, just as plaintiffs sometimes choose a forum because of a perceived advantage, some defendants move for dismissal or transfer under the doctrine of forum non conveniens not because of genuine concern with convenience but because they believe that an alternative forum would be more friendly to their interests. Accordingly, this court should be hesitant to supplant a trial court's forum non conveniens ruling where, as here, such a transfer will not " 'better "serve the convenience of the parties and the ends of justice." ' " Wieser v. Missouri Pacific R.R. Co., 98 Ill. 2d 359, 365 (1983), quoting Adkins v. Chicago Rock Island & Pacific R.R. Co., 54 Ill. 2d 511, 514 (1973), quoting Lonergan v. Crucible Steel Co. of America, 37 Ill. 2d 599, 606 (1967); accord Vinson v. Allstate, 144 Ill. 2d 306, 310 (1991); see Gulf Oil Corp., 330 U.S. at 507, 91 L. Ed. at 1062, 67 S. Ct. at 842.

On a forum non conveniens motion, the burden is on the defendant to show that relevant private and public interest factors "strongly favor" the defendant's choice of forum to warrant disturbing plaintiff's choice. Griffith v. Mitsubishi Aircraft International, Inc., 136 Ill. 2d 101, 107 (1990). " 'In most instances, the plaintiff's initial choice of forum will prevail, provided venue is proper and the inconvenience factors attached to such forum do not greatly outweigh the plaintiff's substantial right to try the case in the chosen forum.' " (Emphasis added.) Guerine, 198 Ill. 2d at 520, quoting Peile, 163 Ill. 2d at 335-36. Although this is a difficult standard for defendants to meet, "it does not foreclose legitimate transfers when the balance of factors strongly favors litigation in another forum." (Emphases added.) Guerine, 198 Ill. 2d at 521.

In this case, the existing record does not support defendants' claim that the trial court did not properly consider or apply the relevant forum non conveniens factors. Defendants have not produced a verbatim record of the proceedings. In ruling on a forum non conveniens motion, a court must engage in a fact-sensitive analysis. In Guerine, this court strongly cautioned that trial courts "give more careful consideration to forum non conveniens motions" and "leave a better record of their analyses" so that reviewing courts can make more informed decisions. Guerine, 198 Ill. 2d at 520-21. Implicit in this court's admonition was a directive that litigants provide the trial court with a record of the relevant factors, supported by facts and evidence, as opposed to supposition or conjecture, in support of or in

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opposition to the forum non conveniens motion. See Gridley v. State Farm Mutual Automobile Insurance Co., 329 Ill. App. 3d 422, 425 (2002), appeal allowed, 201 Ill. 2d 566 (2002).

Here, no affidavits have been filed stating that Madison County would be an inconvenient forum for any of the witnesses. In fact, defendants' counsel would be required to travel from their office in St. Clair County through Madison County to try this case in Macoupin County, and plaintiff's counsel maintains an office in Madison County. Other than generic and conclusory allegations regarding cost and inconvenience of bringing witnesses from adjacent counties to Madison County and perceived difficulties scheduling witnesses to testify at trial in a county with a busy court docket, defendants have not asserted facts indicating any actual impediments to accessing sources of testimonial, documentary, and real evidence.

None of defendants' arguments assert any real inconvenience to the defendants or any practical problems militating against trying this case in Madison County. Accordingly, there was sufficient evidence on the relevant interests to sustain the trial court's ruling. See Foutch v. O'Bryant, 99 Ill. 2d 389, 391-92 (1984) (if the record is insufficient to support defendant's claim of error, then the reviewing court must presume that the trial court's order was in conformity with established legal principles and had a sufficient factual basis).

Nevertheless, the majority completely sidesteps this court's latest discussion of the forum non conveniens doctrine that occurred barely one year ago in Guerine. In Guerine, a Kane County resident was killed in an accident that occurred in De Kalb County. A lawsuit was filed in Cook County. One of the defendants was a Cook County resident, and the other defendant resided in Indiana, but would have to drive through Cook County to trial in either Kane or De Kalb County. The potential witnesses were scattered among several counties in the same area of the state, including Kane and De Kalb Counties, although several witnesses filed affidavits stating that they would be willing to travel to Cook County for trial. There was nothing in the record to indicate that a jury view of the accident site would be necessary. In determining that the trial court abused its discretion in granting the defendants' motion to transfer venue from Cook County to De Kalb County, this court noted that both counties had significant ties to the case and potential witnesses were scattered among several counties, including the plaintiff's chosen forum. Guerine, 198 Ill. 2d at 526.

This case is factually indistinguishable from Guerine. In both cases, the accident did not occur in plaintiff's chosen forum, neither the plaintiff nor one of the defendants resided in plaintiff's chosen forum, and some of the witnesses lived or worked in plaintiff's chosen forum. In the instant case, like Guerine, both Madison and Macoupin County have significant ties to the case, and the potential witnesses are scattered throughout several counties in the same area of the state. The only distinguishing factors between these cases are that Guerine was filed in Cook County rather than Madison County, and plaintiff's chosen forum in Guerine happened to be the residence of the individual defendant rather than residence of the corporate defendant. The majority in this case does not provide any reason to distinguish between the residence of an individual defendant and that of a corporate defendant. These minor differences alone do not justify a different result here.

In Guerine, this court acknowledged "the frustrating litigation quagmire created in the wake of Torres v. Walsh, 98 Ill. 2d 338 (1983), where we first applied the forum non conveniens doctrine to intrastate transfers" and, noting that Illinois forum non conveniens law is "less than clear," this court attempted to clarify the doctrine. Guerine, 198 Ill. 2d at 519, 526. Today's decision takes two steps backward. Not only does it cast doubt on the validity and applicability of Guerine to future cases, but it also further complicates and confuses an area of the law that is already "less than clear."

Since Madison County adjoins Macoupin County, I agree with plaintiff that it is incredulous for

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defendants to argue inconvenience in the county chosen by plaintiff. When adjoining counties are involved, " ' "[t]he battle over the forum results in a battle over minutiae." ' " Guerine, 198 Ill. 2d at 519-20, quoting Peile, 163 Ill. 2d at 335, quoting Peile, 242 Ill. App. 3d at 522 (Lewis, J., specially concurring).

Macoupin County undoubtedly has an interest in deciding a controversy involving an accident that occurred within its borders. Nonetheless, Madison County also has a legitimate interest in deciding a controversy involving one of its residents, Union Pacific, a company that operates facilities there and employs numerous citizens of Madison County, including some potential witnesses.

Contrary to the majority view, transfer to Macoupin County is not required by the heavier court docket of Madison County, particularly when one of the defendants is a resident of Madison County. See Guerine, 198 Ill. 2d at 525. In taking notice of Madison County's congested court docket, the majority relies on Bland, 116 Ill. 2d at 230, Washington v. Illinois Power Co., 144 Ill. 2d 395, 403 (1991), and the 1998 annual report of the Administrative Office of the Illinois Courts (AOIC), rather than on the record of this case. While the AOIC reports may be helpful, the trial court is in the best position to assess the current burdens on its own docket. See Boner, 142 Ill. 2d at 538-39. In ruling on defendants' motion, the Madison County circuit court did not note any administrative problems in its docket or in its ability to try this case in an expeditious manner. "Court congestion is a relatively insignificant factor, especially where the record does not show the other forum would resolve the case more quickly." (Emphasis added.) Guerine, 198 Ill. 2d at 517, citing Brummett v. Wepfer Marine, Inc., 111 Ill. 2d 495, 503 (1986). Moreover, court congestion should be afforded little consideration in a case that is legitimately filed in the resident forum of one of the defendants.

On balance, considering the totality of the circumstances, I believe that the private and public interest factors do not strongly favor Macoupin County over Madison County. Defendants have failed to meet their burden of showing, as they allege in their brief, that there is "no connection" to Madison County. In fact, defendants' assertion that this case has absolutely no connection to Madison County is factually inaccurate and misleading. This is not a case of exceptional circumstances where sensible judicial administration and the interests of justice require a trial in a more convenient forum. See Guerine, 198 Ill. 2d at 520; Peile, 163 Ill. 2d at 335; Torres, 98 Ill. 2d at 346. Furthermore, I believe that the resources of this court are more profitably spent deciding fully developed controversies than unnecessarily micromanaging forum non conveniens rulings. See Guerine, 198 Ill. 2d at 520. The majority's conclusion that the trial court abused its discretion in denying an intrastate forum non conveniens motion to transfer the case to an adjacent county is unsupported by both the law and the record.

For the foregoing reasons, I respectfully dissent.

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