2-1005 Motions Manual - Pretrial Motions Practice 050917
2-1005 Motions Manual - Pretrial Motions Practice 050917
2-1005 Motions Manual - Pretrial Motions Practice 050917
Page
I. INTRODUCTION 1
C. Leave to Amend 16
1. By plaintiff 25
2. By defendant 25
3. Supreme Court Rule 191(a) 27
a. The Rule 27
b. Application 27
E. Standards To Be Applied 43
F. Leave To Amend 45
G. Motions To Reconsider 48
1. In General 48
2. Evidentiary Matters 48
H. Enforcement 49
1. In General 49
2. Supreme Court Rule 304(a) 49
3. Supreme Court Rule 192 50
L Problems Of Waiver and Appeal 50
Page
A. In General 53
1. Overlap with Section 2-615 motions 54
2. Overlap with Section 2-1005 motions 54
a. Similarities 54
b. Differences 55
E. Standards To Be Applied 64
I. INTRODUCTION.
Although Sec. 2-619.1 of the Civil Practice Law (735 ELCS 5/2-
619.1 (West 2004)) provides a pleading device for the filing of
combined motions, it does not authorize hybrid motion practice. Our
Supreme Court in Janes v. First Federal Savings, 57 Ill. 2d 398, 312
N.E. 2d 605 (1974), expressly disapproved of hybrid motion practice
and stated that it should not be sanctioned at the trial level. Hence,
it is imperative that members of the bench and bar alike be precise in
the manner in which pre-trial motions are presented and the manner
in which they are ruled upon. The bar must be vigilant in labeling
their motions since the motion itself determines the standards
applicable to their resolution. The bench must be careful to maintain
a clear record as to the type of motion being decided so that a
reviewing court is able to address the merits of a ruling. Although a
reviewing court may disregard the trial court's failure to distinguish
between the various types of pre-trial motions (see Janes v. First
Federal Savings, supra.; Moreno v. Joe Perillo, 112 Ill. App. 3d 670,
445 N.E.2d 1184 (1983-1st Dist)) where no prejudice to the
respondent is evident (Anzinger v. Illinois, 144111. App. 3d 719, 494
N.E.2d 655 (1986-1st Dist)), a reversal will follow where there is a
prejudice to the non-moving party. Illinois Graphics Co. v. Nickum,
159 EL 2d 469, 639 N.E.2d 1282 (1994); Premier v. LaSalle, 115 Ill.
App. 3d 638, 450 N.E.2d 1360 (1983-2nd Dist). Prejudice can occur
by reason of the movant's failure to label a motion. Eddings v.
Dundee, 135 Ill. App. 3d 190, 478 N.E.2d 888 (1985-2nd Dist).
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SUMMARY JUDGMENT PROCEEDINGS
(a) For plaintiff. Any time after the opposite party has
appeared or after the time within which he or she is required
to appear has expired, a plaintiff may move with or without
supporting affidavits for a summary judgment in his or her
favor for all or any of the relief sought.
1. Generally.
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an issue of fact when one is found to exist. Addison v. Whittenberg,
124 M. 2d 287, 529 N.E.2d 552 (1988); Puttman v. May, 118 lll. 2d
107, 514 N.E.2d 188 (1987).
Although Section 2-1005, sub-sections (a) and (b) each state that
a party may move for summary judgment "with or without supporting
affidavits", if a motion for summary judgment is not supported by
evidentiary material which if uncontradi cted would entitle the movant
to judgment as a matter of law, the parties are in no different position
then when they joined in issue and the motion will be denied. Cato v.
Thompson, 83 III. App. 3d 321, 403 N.E.2d 1239 (1980-2nd Dist);
Kielbasa v. St. Mary of Nazareth Hosp., 209 Ill. App. 3d 401, 568
N.E.2d 208 (1991-1st Dist).
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2nd Dist), distinguished on other grounds by Galik v. County of Lake,
335 III. App. 3d 325, 781 N.E.2d 522 (2002-2nd Dist); Manahan v.
Daily News-Tribune, 50 M. App. 3d 9, 365 N.E.2d 1045 (1977-3d
Dist); Wegener v. Anna, 11111. App. 3d 309, 296 N.E.2d 354 (1973-
5th Dist).
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57 El. 2d 376, 313 N.E.2d 457 (1974). The distinction between a
pleading motion pursuant to Section 2-615 and a fact motion pursuant
to Section 2-1005 was the subject of the Supreme Court's decision in
Janes v. 1st Fed. Savings, supra., wherein the court severely criticized
the failure of both the parties and the trial court for neglecting to
observe and honor the distinctions in proceeding to argue and decide
a motion which combined both pleading and factual issues.
Sections 2-1005 (a), (b) and (c) provide the statutory authorization
for the entry of a partial summary judgment for any part, but less than
all, of the relief sought by a party or as to the issue of liability alone.
Sections 2-1005 (a) and (b) clearly authorize the entry of partial
summary judgment on one or more, but less than all, of the counts of
a multi-count complaint. See Brewer v. Daubert, 72 Ill. App. 3d 718,
391 N.E.2d 110 (1979-1st Dist); Metropolitan v. Pontarelli, 7 Ill.
App. 3d 829, 288 N.E.2d 905 (1972-1st Dist). If a partial summary
judgment is entered on the issue of liability only under Section 2-
1005(c), the order is interlocutory in nature and may be modified or
vacated at any time before a final judgment is entered. Leopold v.
Levin, 45 111. 2d 434, 259 N.E.2d 250 (1970).
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Code of Civil Procedure even though they do not result in the
entitlement of a party to either a complete or partial judgment. The
effect of Section 2-1005(d) which was adopted by the legislature
effective September 14, 1985, was to render the decision in
Schutzenhofer v. Granite Cityaesl, 93 I11.2d 208, 443 N.E.2d 563
(1982), no longer applicable to summary judgment proceedings.
Relief under this section may be granted upon motion of a party or by
the court on its own initiative when ruling on a motion for either full
or partial summary judgment.
1. By Plaintiff.
2. By Defendant.
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pleaded facts in the complaint that the defendant leaves
uncontradicted by evidentiary material submitted in support of the
motion. Bank of Waukegan v. Epilepsy Foundation, 163 DI. App. 3d
901, 516 N.E.2d 1337 (1987-2nd Dist); Florsheim v. Travelers, 75
App. 3d 298, 393 N.E.2d 1223 (1979-1st Dist); Metropolitan v.
Pontarelli, supra.
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621(1984-1st Dist). Relief under Rule 219 may not be available if the
discovery request in itself was not timely. Certified v. Hodgkins, 145
Ill. App. 3d 406, 495 N.E.2d 1080 (1986-1st Dist). If the discovery
requested is not essential to the determination of the issues raised by
the motion for summary judgement, then relief under Rule 219(c)(i)
ought not be granted and the respondent must comply with the
provisions of Rule 191(b). Kittleson v. United Parcel, 162111. App.
3d 966, 379 N.E.2d 1268 (1987-1st Dist).
(b) Application.
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Several Circuit Courts have provided by Circuit Court Rule for
the outside date upon which a motion for summary judgment may be
filed. Examples of such rules at as follows:
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1. Generally.
2. Pleadings.
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Carruthers v. Christopher, supra. A party may be able to rely upon
his own verified pleadings to support or oppose a motion for
summary judgment if the verification satisfies the requirements of
Supreme Court Rule 191(a). See Central v. Omega, 42 Ill. App. 3d
1025, 356 N.E.2d 852 (1976-Ist Dist); but see Doherty v. Kill, 140
Ill. App. 3d 158, 488 N.E.2d 629 (1986-1st Dist); Wooding v. L & J,
99 111. App. 3d 382, 425 N.E.2d 1055 (1981-1st Dist); LaMonte v.
City ofBelleville, 41 DI. App. 3d 697, 355 N.E.2d 70 (1976-5th Dist).
3. Admissions.
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admissions" or "evidentiary admissions". The rules attendant to each
type of admission differ, especially in the ability of the party against
whom the admission is offered to introduce evidentiary material
which contradicts the admission.
a. Judicial Admissions.
b. Evidentiary Admissions.
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and their uses can be found in Cleary & Graham's Handbook of
Illinois Evidence, section 802.11 (5th ed. 1990). As noted therein,
evidentiary admissions maybe controverted (Avers v. Metcalf, 39 Ill.
307 (1866)) or explained (Haskell v. Siegmund, 28111. App. 2d 1, 170
N.E.2d 393 (1960-3d Dist)). Admissions and statements of fact made
in the following circumstances generally constitute "evidentiary
admissions":
4. Affidavits.
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of and in opposition to motions for summary judgment. The form
and content requirements for such affidavits are controlled by the
provisions of Rule 191(a) which is discussed in detail in sub-section
8 of this section, infra.
5. Depositions.
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as exhibits to a motion for summary judgment or a response in
opposition, may not be considered in ruling upon the motion. See
Cato v. Thompson, 83 Ill. App. 3d 321, 403 N.E.2d 1239 (1980-2nd
Dist).
7. Presumptions.
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operated remains the burdened party on the issue. Franciscan Sisters
v. Dean, 95 III. 2d 452, 448 N.E.2d 872 (1983); Diederich v. Walters,
65 171. 2d 95, 357 N.E.2d 1128 (1976). The effect of a rebuttable
presumption is no different in a summary judgment proceeding.
Anderson v. Scon.za, 179 III. App. 3d 202, 534 N.E.2d 445 (1989-1st
Dist).
a. The Rule.
b. Interpretation.
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2. Set forth with particularity the facts upon which the claim,
counterclaim or defense is based;
The second and fourth elements are usually dealt with as a single
element. They require that the affidavit consist of facts admissible in
evidence, set forth with particularity, and not conclusions. Affidavits
which merely set forth opinions of the affiant but fail to set forth the
factual support for the opinion do not satisfy these requirements.
Wilson v. Bell, 214 311. App. 3d 868, 574 N.E.2d 200 (1991-1st
Dist); Wells v. A &P, 171111. App. 3d 1012, 525 N.E.2d 1127 (1988-
1st Dist); Extel v. Cermetek 183 111. App. 3d 688, 539 N.E.2d 320
(1989-1st Dist); but see Matuszak v. Cerniak, 346 Ill. App. 3d 766,
805 N.E.2d 681 (2004-3rd Dist)(distinguishing Bell where an expert
witness's opinion in an affidavit was admissible as evidence). A .
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opinion in the affidavit. Although Wilson v. Clark, 84 Ill. 2d 186,
417 N.E.2d 1322 (1981), permits an expert to render opinion
testimony at trial without disclosing the facts upon which the opinion
is based, the holding in Wilson v. Clark has no relevance to summary
judgment procedure. Robidoux v. Oliphant, 201 Ill. 2d 324, 775
N.E.2d 987 (2002); Kosten v. St. Anne's Hosp., 132 III. App. 3d
1073, 478 N.E.2d 464 (1985-1st Dist). As was noted in Wilson v.
Bell, supra,: "An expert's opinion is only as valid as the basis and
reasons for the opinion...When there is no factual support for an
expert's conclusions, his conclusions alone do not create a question
of fact." Wilson, 214 111. App. 3d at 875-876.
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attach all of one's records to establish a negative. That is to say that
one need not attach all of one's records to an affidavit to support a
statement in an affidavit that no particular record exists or that no
reference to a given fact exists in the records. Such a statement can
be competently made in an affidavit without attachment by the person
who has examined the records in issue provided that the opposing
party has been afforded an opportunity to examine the records.
Tipsord v. Unarco, 188 M. App. 3d 895, 544 N.E.2d 1198 (1989-4th
Dist).
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impeachment. Beauvoir v. Rush, 137 Ill. App. 3d 294, 484 N.E.2d
841 (1985-1st Dist).
9. Counter-Evidentiary Material.
b. Timeliness.
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judgment. The failure on the part of a trial court to consider counter-
evidentiary materials offered for the first time on the date of the
hearing on the motion is error. Lombard v. Elmore, 134 Ill. App. 3d
898, 480 N.E.2d 1329 (1985-1st Dist). However, a trial court is not
required to consider counteraffidavits submitted for the first time after
the order granting summary judgment has been entered. Mid
America v. Smith, 109 111. App. 3d 1121, 441 N.E.2d 949 (19824th
Dist). For a more in depth discussion of this issue, see Section G(2)
hereinafter.
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3d 562, 390 N.E.2d 60 (1979-1st Dist).
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10. Missing or Unavailable Evidence.
E. Standards to be Applied.
One must never lose sight of the fact that the movant in a
summary judgment proceeding is the burdened party. As such, it is
not until the movant has come forward with evidentiary material
which, if uncontradicted, would entitle him or her to judgment as a
matter of law, that the respondent is ever required to submit
evidentiary material in opposition to the motion. Kielbasa v. St. Mary
of Nazareth Hosp., 209 Ill. App. 3d 401, 568 N.E.2d 208 (1991-1st
Dist). The summary judgment sought should be granted if the court
is prepared to find that there exists no genuine issue as to any
outcome determinative material fact and the moving party is entitled
to judgment as a matter of law. Carruthers v. Christopher, supra.
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In ruling on a motion for summary judgment, the court is required
to strictly construe all evidentiary material submitted in support of the
motion while liberally construing all evidentiary material submitted
in opposition. Kolakowski v. Voris, 83 111. 2d 388, 398, 415 N.E.2d
397 (1980). All evidentiary material submitted in opposition to a
motion for summary judgment will be taken as true for the purposes
of ruling on the motion; conversely, all evidentiary material submitted
in support of the motion will be taken as true unless the opponent
submits contradictory evidentiary material. Fooden v. Board of
Governors, 48111.2d 580, 272 N.E.2d 497 (1972). If the evidentiary
material before the court could lead to more than one conclusion or
inference, then the court must adopt the conclusion or inference that
is most favorable to the opponent of the motion. Lapidot v.
Memorial 144111. App. 3d 141, 494N.E.2d 838 (1986-4th Dist). But
inferences or conclusions drawn from the evidentiary material before
the court must be reasonable. Courts are not required to adduce
remote factual possibilities in favor of the opponent of such a motion.
Gehrman v. Zajac, 34 Ill. App. 3d 164, 340 N.E.2d 184 (1975-1st
Dist). Similarly, parties are not permitted to rely upon guess,
speculation or conjecture to oppose a motion for summary judgment.
Consolino v. Thompson, 127 III. App. 3d 31, 468 N.E.2d 422 (1984-
1st Dist).
F. Leave to Amend.
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In Siebert v. Continental, 161 Ill. App. 3d 891, 515 N.E.2d 728
(1987-1st Dist), the court held that Section 24005(g) permits a court
to grant a plaintiff leave to file an amended complaint after the entry
of a summary judgment which constituted a final judgment. The
Siebert Court held that the relevant factors which a trial court should
consider in determining whether to exercise its discretion in favor of
granting leave to file an amended pleading are (1) whether the
proposed amendment would cure the defective pleading; (2) whether
other parties would sustain prejudice or surprise by virtue of the
proposed amendment; (3) the timeliness of the proposed amendment;
and, (4) whether previous opportunities to amend the pleading could
be identified. The court further held that the last element need not be
applied if the first three elements are decided in favor of allowing the
amendment.
In Wells v. Great Atlantic & Pacific, 171 Ill. App. 3d 1012, 525
N.E.2d 1127 (1988-1st Dist), another division of the 1st District of
the Appellate Court declined to follow Siebert v. Continental and
held that Section 2-1005(g) and Section 2-616(c) of the Code of Civil
Procedure must be construed with reference to one another so that
both sections may be given harmonious effect and as such, once a
summary judgment has been entered which constitutes a final
judgment, the only amendment which maybe made is one to conform
the pleadings to the proofs.
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Court, rejected the analysis in Wells, supra, and essentially adopted
the four part analysis set forth in Siebert. But, contrary to Siebert,
. that court held that the fourth element, "whether previous
opportunities to amend the pleading could be identified", was a
necessary element to the analysis. In so doing, the court found that
when a plaintiff fails to offer any justification as to why the proposed
amendment could not have been offered prior to the entry of a
summary judgment, a trial court does not abuse its discretion when it
denies leave to amend under section 2-1005(g).
The Supreme Court has settled the split in authority relating to the
interpretation of Section 2-1005(g) with its decision in Loyola
Academy v. S & S Roof, 146 111. 2d 263, 586 N.E.2d 1211 (1992).
The Supreme Court adopted the four part test outlined in Siebert, but
did not dispense with the fourth element as did the Siebert court.
Contrary to the Appellate Court, the Supreme Court in Loyola
Academy found that the plaintiff had met all four elements of the
analysis and held that the trial court had abused its discretion in
failing to permit the amendment. The Supreme Court, citing with
approval to Kupianen v. Graham, 107 Ill. App. 3d 373, 437 N.E.2d
774 (1982-1st Dist), held that the four factors to be examined in
determining whether a party should be granted leave to file an
amended pleading pursuant to Section 2-1005(g) after the entry of a
summary judgment are as follows:
1) Whether the proposed amendment would cure the defective
pleading;
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4) Whether previous opportunities to amend the pleading could
be identified.
The Supreme Court again reiterated that the trial court is vested with
broad discretion in motions to amend.
G. Motions to Reconsider
1. In General.
2. Evidentiary Matters.
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time with a motion for reconsideration after an order granting
summary judgment has been entered. Getman v. Indiana Harbor, 172
Ill. App. 3d 297, 526 N.E.2d 557 (1988-1st Dist). The submission of
new evidentiary material in opposition to a motion for summary
judgment in support of a motion for reconsideration is a matter
committed to the sound discretion of the trial court. But the court's
discretion should not be exercised in favor of allowing the submission
of such material for the first time after an order for summary
judgment has been entered in the absence of some reasonable
explanation of why it was not available at the time of the original
hearing. In the absence of any such explanation, there is no reason to
reconsider or change the original ruling on the motion. Delgato v.
Brandon. 131 Ill. 2d 183, 545 N.E.2d 689 (1989); Gardner v.
Navistar, 213 Ill. App. 3d 242, 571 N.E.2d 1107 (1991-4th Dist).
H. Enforcement
1. In General.
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requisite finding pursuant to Supreme Court Rule 304(a). Unless and
until an order is appealable, it may be modified at any time prior to
the entry of the final order which terminates the litigation in toto.
. Santana v. Zipperstein, 142 Ill. App. 3d 386, 491 N.E.2d 1231 (1986-
I st Dist).
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be raised at the trial level before the motion is ruled upon. If a party
fails to object to the sufficiency of an opponent's evidentiary material
prior to the court's ruling upon a motion for summary judgment, the
issue is deemed waived for purposes of both a motion for
reconsideration (Stone v. McCarthy, supra) and for purposes of
appeal (Wogelius v. Dallas, 152 III. App. 3d 614, 504 N.E.2d 791
(1987-1st Dist); Urban v. Inverness, 176 DI. App. 3d 1, 530 N.E.2d
976 (1988-Ist Dist)).
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The granting of a motion for summary judgment the effect of
which is to terminate the litigation in total is subject to appeal
pursuant to Supreme Court Rule 301. If the order granting a
summary judgment is in itself a final judgment as to one or more but
fewer that all of the parties or claims, it can be appealed prior to the
termination of the entire case only when the trial judge makes the
requisite finding pursuant to Supreme Court Rule 304(a). Santana v.
Zipperstein, 142 II App. 3d 386, 491 N.E.2d 1231 (1986-1st Dist).
(a) Defendant may, within the time forpleading, file a motion for
dismissal of the action or for other appropriate relief upon any of the
following grounds. If the grounds do not appear on the face of the
pleading attacked the motion shall be supported by affidavit:
(1) That the court does not have jurisdiction of the subject
matter of the action, provided the defect cannot be removed by a
transfer of the cause to a court having jurisdiction.
(2) That the plaintiffdoes not have legal capacity to sue or 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 bankruptcy.
(7) That the claim asserted is unenforceable under the
provisions of the Statute of Frauds.
(8) That the claim asserted against the defendant is
unenforceable 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
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