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Motions, Affidavits, and Orders

RICHARD H. CHAPMAN
Clark Hill PLC

JAMES L. OAKLEY
Thompson Coburn LLP Chicago

COPYRIGHT 2012 BY IICLE .

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I. Motions in General [11.1] Scope of Discussion [11.2] Nature and Use of Motions [11.3] Basic Statutory Sections and Court Rules [11.4] Procedural Guide Filing and Service of Motion Considerations of Procedure 1. [11.5] Motion as General Appearance 2. [11.6] Time Within Which To Make Motion 3. [11.7] When Motion Deemed To Be Made 4. [11.8] What Motions Must Be Noticed F. [11.9] Form of Notice of Motion G. [11.10] Form of Basic Motion 1. [11.11] Legibility 2. [11.12] Caption 3. [11.13] Relief Sought and Basis Therefor 4. [11.14] Reference to and Incorporation of Other Matters on Which Motion Is Based 5. [11.15] Signature 6 [11.16] Address and Telephone Number 7. [11.17] Certificate of Service 8. [11.18] Serving and Filing Motions 9. [11.19] Opposition to Motion 10. [11.20] Hearing on Motion 11. [11.21] Failure To Call Motions for Hearing 12. [11.22] Renewal of Motions II. Affidavits A. B. C. D. E. F. G. H. I. J. K. [11.23] [11.24] [11.25] [11.26] [11.27] [11.28] [11.29] [11.30] [11.31] [11.32] [11.33] Introduction Definition Use Rules as to Form and Content Who May Make and Take Affidavits Title or Caption Contents of Affidavit Oath and Signature of Affiant Jurat Affidavits Made in Bad Faith Penalties Outline Form A. B. C. D. E.

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III. Orders A. B. C. D. E. F. [11.34] [11.35] [11.36] [11.37] [11.38] [11.39] Introduction Presentation of Draft Orders Form of Order Service of Orders Sanctions for Noncompliance Language in Order Creating Appellate Jurisdiction

IV. Motions To Strike and Motions To Dismiss A. Nature and Use of Motion 1. [11.40] Scope of Discussion 2. [11.41] Summary of Statutory Provisions a. [11.42] Motions Under Code of Civil Procedure 2-615 b. [11.43] Motions Under Code of Civil Procedure 2-619 3. [11.44] Summary of Court Rules 4. [11.45] Purpose of Motion To Dismiss 5. [11.46] Effect of Motion as Admission 6. [11.47] Waiver by Failure To File Motion 7. [11.48] Practical Considerations in Determining Whether To Attack a Prior Pleading by Motion 8. [11.49] Time for Filing and Proof of Service B. [11.50] Outline Form of Motion To Strike Complaint 1. [11.51] Specification of Grounds 2. [11.52] Grounds of Motion C. [11.53] Forms of Motions Attacking Complaints on Various Grounds 1. [11.54] Skeleton Form of Motion Attacking Complaint and Several Causes of Action or Counts 2. [11.55] Form of Specification That Complaint Is Insufficient in Law 3. Form of Specification of Various Grounds Mentioned in Code of Civil Procedure 2-619 a. [11.56] No Jurisdiction of Subject Matter b. [11.57] Lack of Legal Capacity To Sue or Be Sued c. [11.58] Another Action Pending d. [11.59] Former Adjudication e. [11.60] Statute of Limitations f. [11.61] Release or Discharge g. [11.62] Statute of Frauds h. [11.63] Minority or Other Disability

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4. [11.64] Form of Motion To Require More Definite Statement 5. [11.65] Form of Motion To Strike (or Amend) Prayer for Relief 6. [11.66] Form of Motion To Require Statement of Multiple Claims in Separate Counts D. [11.67] Setting Motion and Notice of Motion E. Ruling on Motion To Dismiss 1. [11.68] Power of Court 2. [11.69] Answer After Ruling V. Motions Relating to Untrue Pleadings A. B. C. D. [11.70] [11.71] [11.72] [11.73] Scope of Discussion Statutory Considerations Proper Use of Motion Practical Considerations

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I. MOTIONS IN GENERAL
A. [11.1] Scope of Discussion In 11.2 11.22 below, motions as a part of civil practice and procedure before trial are discussed. No effort is made to discuss the contents of special motions or the specific subject matter of the various motions that might be made. These sections are concerned only with the general rules applicable to all motions. Starting with 11.40 below, this chapter deals in detail with motions to strike and to dismiss and their uses. In addition, 11.23 11.33 below discuss affidavits, and 11.34 11.39 discuss orders. Although Illinois practice permits motions to be made orally in court without notice, this chapter does not consider those motions but is limited to written motions. Further, the Illinois Code of Civil Procedure, 735 ILCS 5/1-101, et seq., and the Supreme Court Rules contain particular requirements for certain motions, such as motions for continuance and motions for summary judgment, in addition to the general rules regarding motions. The statutory provisions and rules concerning specific types of motions, particularly regarding special purpose motions, must be ascertained in detail in each instance. The purpose of this chapter is merely to cover those rules and procedures related to all motions in general. B. [11.2] Nature and Use of Motions The most frequent use for motions is objecting to pleadings as provided for in 735 ILCS 5/2615 and 5/2-619 and for summary judgment as provided for in 735 ILCS 5/2-1005. However, motions are not limited to presenting issues or attacking pleadings. Another important function of a motion is as an appearance, as provided for in S.Ct. Rule 181. Further, motions are used for other incidental matters relative to the progress of the cause, such as for a continuance, in relation to discovery procedures, etc. A motion must be brought to the attention of the court, and the court must be asked to rule on it. Verlinden v. Turner, 351 Ill.App. 511, 115 N.E.2d 576 (1st Dist. 1953) (abst.). To be considered, motions must be made promptly and at the earliest possible time. Stein v. Automatic Electric Co., 152 Ill.App. 392 (1st Dist. 1910). Obviously, a motion can be made only if there is an action pending between parties, and it is further restricted to incidental matters in the progress of a particular case. Maiman-Hurwitz Manufacturing Co. v. Maiman, 247 Ill.App. 416 (1st Dist. 1928). Motions may request more than one kind of relief or relief in the alternative. Dross v. Farrell-Birmingham Co., 51 Ill.App.2d 192, 200 N.E.2d 912 (1st Dist. 1964); Klairmont v. Elmhurst Radiologists, S.C., 200 Ill.App.3d 638, 558 N.E.2d 328, 146 Ill.Dec. 365 (1st Dist. 1990). A motion on which no order is ever entered or that is never called to the attention of the court presumably is waived or abandoned. Brandes v. Illinois Protestant Childrens Home, Inc., 33 Ill.App.2d 319, 179 N.E.2d 425 (1st Dist. 1962) (abst.); City National Bank of Hoopeston, Illinois v. Langley, 161 Ill.App.3d 266, 514 N.E.2d 508, 112 Ill.Dec. 845 (4th Dist. 1987); Herricane Graphics, Inc. v. Blinderman Construction Co., 354 Ill.App.3d 151, 820 N.E.2d 619, 289 Ill.Dec. 843 (2d Dist. 2004). See also 11.21 below.

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C. [11.3] Basic Statutory Sections and Court Rules Code of Civil Procedure 2-620 provides that the form and contents of motions, notices regarding the same, hearings on motions, and all other matters of procedure relative thereto, shall be according to rules. 735 ILCS 5/2-620. Code of Civil Procedure 1-104(b) makes it clear that the reference to rules is to the rules of the Supreme Court. 735 ILCS 5/1-104(b). That section goes on to provide that, subject to the Supreme Court Rules, the circuit courts may make rules regulating their . . . business. Id. Code of Civil Procedure 2-615 sets forth the general rules regarding the use of motions to object to other pleadings, and Code of Civil Procedure 2-619 sets forth the various reasons for which a complaint may be dismissed because of certain defects or defenses, all of which are to be raised by motion. Code of Civil Procedure 2-1005 governs motions for summary judgment. The Supreme Court has adopted the following rules: Rule 11 12 104 Topic Manner of serving motions on parties and the method of delivery Manner and filing of proof of service Methods and procedures regarding the filing of motions, service, proof of service, and, in certain cases, excusing service and the consequences of failure to serve motions, etc. Format of motions and other papers legibility, titles, multiple parties, addresses, and telephone numbers Designation of motions conforming to the division of the circuit court Incorporation of other materials by reference in motion Motions as appearances and time for filing motions attacking the complaint Time for filing motions other than those directed to the complaint Extension of time for filing motions Time for hearings on motions

131

132

134 181

182

183 184

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Under S.Ct. Rule 21, the circuit judges in each circuit may adopt rules of procedure as long as they are consistent with the statutes and the Supreme Court Rules, but the rules thus adopted, so far as practicable, shall be uniform throughout the State. Finally, there are various local practices that have developed in each of the circuits.

PRACTICE POINTER It is extremely important to not only review provisions of the Illinois Rules of Civil Procedure and the Illinois Supreme Court Rules, but to also review rules of the individual judicial circuits as well as rules that individual judges may have promulgated concerning motions. These rules often address issues such as specific filing and motion procedures, the need for and timing of submission of courtesy copies, citation formats, etc. These rules can be located in the rulebooks that are published or online through individual circuit court websites. Also, it is a good practice to contact an individual judges clerk to ascertain that judges most recent motion practices and procedures.

D. [11.4] Procedural Guide Filing and Service of Motion The usual motion papers are the motion itself, proof of service, notice of hearing on the motion if the motion is to be set, proof of service, and, in some circuits, memorandum of authority in support of the motion. Additionally, a party may include a proposed order to be entered by the court in ruling on the motion and, in some instances, proof of service of the order. The sequence (together with a cross-reference to the sections of the statutes and rules) is as follows: 1. The written motion is to be filed with the clerk with a certificate of counsel or other proof that copies have been served on all parties, unless the court has on motion excused service on any party, or unless the party has been found in default. S.Ct. Rule 104. 2. Service of the motion is accomplished by a. delivery of a copy of the motion to the attorney of record by leaving a copy in the office of the attorney or, if a party is not represented by counsel, to the party personally by leaving it at the residence of the party with a family member over 13 years of age; b. by depositing the motion in a United States post office or post office box enclosed in an envelope plainly addressed to the attorney (or the party if the party is unrepresented) at his or her business address or residence with postage fully prepaid; c. by delivering them to a third-party commercial carrier including deposit in the carriers pick-up box or drop off with the carrier's designated contractor enclosed in an envelope plainly addressed to the attorney (or the party if the party is unrepresented) at his or her business address or residence with postage fully prepaid; or

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d. via facsimile machine to the office of the attorney or party who has consented to receive service by facsimile transmission. S.Ct. Rule 11. S.Ct. Rule 11 does not authorize telephonic notice. Stewart v. Lathan, 401 Ill.App.3d 623, 929 N.E.2d 1238, 341 Ill.Dec. 159 (1st Dist. 2010). COMMENT: S.Ct. Rule 11 specifically provides that one option for serving papers to opposing counsel is to deposit them in a United States mailbox. Interestingly, the First District Appellate Court has held that, while perhaps this rule should be revisited, Rule 11 does not forbid handdelivering a letter to the court and mailing a copy to the opposing party. Kamelgard v. American College of Surgeons, 385 Ill.App.3d 675, 895 N.E.2d 997, 324 Ill.Dec. 282 (1st Dist. 2008).

PRACTICE POINTER As a matter of courtesy, practitioners frequently serve motions on opposing parties via email transmission. Counsel will oftentimes agree early in a case to circulate all motions, responses, and replies via e-mail in order to speed their delivery, maximizing the time for each party to review and, when appropriate, respond to the filings.

3. Proof of service of the motion should be filed with the clerk and should consist of a written acknowledgement signed by the person served, a certificate of the attorney, or an affidavit of the person other than an attorney who made delivery or who deposited it in the mail. In the latter instance, the proof should state the time and place of the mailing, the complete address that appeared on the envelope, and the fact that proper postage was prepaid. S.Ct. Rule 12. (In Cook County, by reason of Circuit Court Rule 2.1(c), the exact time of mailing, if notice is mailed, should be inserted on the affidavit of mailing; this time is to be before 4:00 p.m. if only the minimum number of days for notice is given.) 4. Except in actions appearing on the daily trial call, written notice of the presentation and hearing of all motions should be given to all parties. In some circuits, motions are set automatically on certain days pursuant to local rules, and the clerk automatically sends notice of the hearing date on the motion; under those circumstances, no additional notice is required. When a notice is necessary, it should state the name of the judge before whom the hearing will occur and the date, time, and place of presentation. The notice should state that a copy of the motion is attached or that it has previously been served on the party or his or her attorney. 5. Proof of service of notice of hearing on the motion should be made in the same manner as indicated in paragraph 3 above. 6. In some circuits, local rules or orders of the chief judge require a memorandum of law or brief supporting the motion to be filed (and presumably served) before the motion will be heard. The best practice would be to refer to the memorandum or brief in the motion and in the notice regarding the hearing and actually attach the memorandum or brief to the motion itself.

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7. After the motion has been heard, it is customary for the court to announce its ruling orally and, at the same time, to instruct the lawyer who prevails to prepare the order ruling on the motion. 8. When required by local court rules, a proof of service of a copy of the order on all opposing counsel or parties not represented by counsel should be made as indicated in paragraph 3 above and filed with the clerk. Even though such a procedure may not be required by the rules, it is a good practice, particularly when opposing counsel does not appear at the hearing on the motion. Filing proof of service of a copy of the order on opposing counsel will avoid any contention at a later date that counsel was not aware that the order had been entered. E. Considerations of Procedure 1. [11.5] Motion as General Appearance A motion that fails to attack the courts personal jurisdiction over a defendant constitutes a general appearance. Under 735 ILCS 5/2-301(a-5), an objection to the courts jurisdiction must be raised in the first pleading or motion filed, other than a motion for extension of time to answer or otherwise appear, but such objection may be raised alongside other motions seeking relief on other grounds. Deutsche Bank National Trust Co. v. Hall-Pilate, 2011 IL App (1st) 102632, 957 N.E.2d 924, 354 Ill.Dec. 330 (holding that defendant waived objection to personal jurisdiction in foreclosure proceeding in which it filed motion to stay approval of sale of property without also challenging courts jurisdiction). There is disagreement between the First and Second Appellate Districts as to whether a party who waives an objection to jurisdiction by filing a motion does so only prospectively, or whether such a motion retroactively validates earlier orders entered without jurisdiction. C.T.A.S.S. & U. Federal Credit Union v. Johnson, 383 Ill.App.3d 909, 891 N.E.2d 558, 561 562, 322 Ill.Dec. 543 (1st Dist. 2008); GMB Financial Group, Inc. v. Marzano, 385 Ill.App.3d 978, 899 N.E.2d 298, 326 Ill.Dec. 81 (2d Dist. 2008). If the court denies the motion attacking personal jurisdiction, error in ruling against the objecting party on the objection is waived by the partys taking part in further proceedings, unless the objection is on the ground that the party is not amenable to process issued by an Illinois court. 735 ILCS 5/2-301(c). 2. [11.6] Time Within Which To Make Motion If a partys initial appearance is made by a motion attacking the complaint, it must be made within the time required for an appearance, which will be either within 30 days after service or, in some types of action, on a specified day. In matters generally seeking less than $50,000 in damages, the motion may be filed either on the return day (day appearance only is required) or when the answer should be filed. See S.Ct. Rules 101(b), 181 and other rules referred to therein. Other than a motion that constitutes a partys initial appearance in the case, all motions attacking a pleading other than the complaint must be filed within 21 days after the last day allowed for the filing of the pleading attacked. S.Ct. Rule 182(c).

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S.Ct. Rule 183 provides that the court, for good cause shown on motion after notice to the opposite party, may extend the time for filing any pleading or the doing of any act which is required by the rules to be done within a limited period, either before or after the expiration of the time. The burden of establishing good cause rests on the party seeking relief under Rule 183. The circuit court has the sound discretion to consider all objective, relevant evidence presented by the delinquent party with respect to why there is good cause for its failure to comply with the original deadline and why an extension of time should be granted, but may not engage in an openended inquiry that considers conduct that is unrelated to the causes of the partys original noncompliance. Vision Point of Sale, Inc. v. Haas, 226 Ill.2d 334, 875 N.E.2d 1065, 1079, 314 Ill.Dec. 778 (2007). 3. [11.7] When Motion Deemed To Be Made A motion is deemed to be made when it is filed in the office of the clerk in accordance with S.Ct. Rule 104 (except for motions filed pursuant to 735 ILCS 5/2-1401). Although the rules require a motion to be served on opposing counsel or on a party who does not have an attorney and require that the motion itself contain a certificate or other proof of service, these requirements are not jurisdictional, as S.Ct. Rule 104(d) provides in part: Failure to deliver or serve copies as required by this rule does not in any way impair the jurisdiction of the court over the person of any party. However, mere filing of a motion in the office of the clerk is not sufficient unless it is brought to the attention of the court, and the court is asked to rule on it. People v. Hornaday, 400 Ill. 361, 81 N.E.2d 168 (1948); Verlinden v. Turner, 351 Ill.App. 511, 115 N.E.2d 576 (1st Dist. 1953) (abst.). See also Richey Manufacturing Co. v. Mercantile National Bank of Chicago, 40 Ill.App.3d 923, 353 N.E.2d 123 (1st Dist. 1976), in which the court stated that a posttrial motion was abandoned when not called to the attention of the court, and Chand v. Schlimme, 138 Ill.2d 469, 563 N.E.2d 441, 150 Ill.Dec. 554 (1990), in which the Supreme Court of Illinois held that filing a notice of appeal was not an abandonment of the posttrial motion. A party who has appeared and argued a motion cannot claim later that the court has no right to rule on the motion or that the motion was in fact not a motion or was not properly filed. Rush v. Johnson, 75 Ill.App. 234 (1st Dist. 1897). 4. [11.8] What Motions Must Be Noticed As already noted, different circuits have different procedures for notification of hearings. In some circuits, notices are sent and settings are made by the clerk; in other circuits, there is a motion day; in still other circuits, the parties set the motion and send notice themselves. When practicing in an unfamiliar circuit, the attorney should check with the clerk to find out what the appropriate procedure is. As a matter of general principle, the appearance of counsel for the adverse party and his or her participation in a hearing on a motion constitute a waiver of the requirement of notice of motion unless that appearance is made in some special fashion as provided for in 735 ILCS 5/2301.

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F. [11.9]

Form of Notice of Motion IN THE CIRCUIT COURT OF __________ COUNTY, ILLINOIS

____________________ v. ____________________

) ) )

No. ____________________

NOTICE OF MOTION To: ________________________ ___________________________ __________________________ On ___________________________________, _________, at ________________ [a.m.] [p.m.] or as soon thereafter as counsel may be heard, I shall appear before the Honorable ______________________________ or any Judge sitting in that Judge's stead, in the courtroom usually occupied by [him] [her], located at ________________________________, Illinois, and present ________________________________________________________. Name _____________________________ Address ___________________________ City/State/Zip _______________________ Atty. No. _________________ Pro Se 99500 Attorney for _________________________ Telephone ___________________________

PROOF OF SERVICE BY DELIVERY I, _________________________________________, [the attorney] [non-attorney], certify that on the ___________ day of ___________________________, _______, I served this notice by delivering a copy personally to each person to whom it is directed. Date _____________________, __________ ____________________________________ Signature/Certification PROOF OF SERVICE BY MAIL I, _________________________________________, [the attorney] [non-attorney], certify that I served this notice by mailing a copy to ______________________________________ at _______________________________________ and depositing the same in the U.S. Mail at (address on envelope) _____________________________________ at _____________ [a.m.] [p.m.] on the (place of mailing) __________ day of __________________________, ________, with proper postage prepaid. Date _____________________, __________ ____________________________________ Signature/Certification

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PROOF OF ELECTRONIC SERVICE (WHERE PERMISSIBLE) I, _____________________________________________, [the attorney] [non-attorney], certify that on the ________ day of _______________________________, _________, I served this notice electronically [via the Clerks Office e-filing system] [by telefax transmission (______ pages)] with consent of the recipient where permissible under Ill.S.Ct. Rule 11, at fax no. ___________________, at ________ [a.m.] [p.m.], from _______________________________. (place) Date _____________________, __________ ____________________________________ Signature/Certification NOTE: If more than one person is served by delivery or mail, additional proof of service may be made by attaching an additional sheet to this notice of motion. In Cook County and various other counties, by local rule, the notice of hearing (unless of an emergency nature), if given by personal service, must be delivered before 4:00 p.m. on the second court day preceding the hearing of the motion and, if by mail, must be deposited in a United States post office or post-office box on the fifth court day preceding the hearing of the motion. Cook County Circuit Court Rule 2.1(c). While the Circuit Court of Cook County has repealed its rule requiring 10 days notice before a hearing on a summary judgment motion, a similar rule remains in other Illinois circuit courts. Additionally, in the Law Division of the Circuit Court of Cook County, all motions for summary judgment must be filed and noticed for hearing such that a briefing schedule is set by the court at least 45 days before the trial date. Cook County Circuit Court Rule 2.1(f). It is extremely important to consult a circuit courts local rules to determine whether they contain specific requirements for certain types of motions. NOTE: While this is the general rule, it is essential to consult the judges standing order as, oftentimes, individual judges have different notice requirements. Further, in the Circuit Court of Cook County and in other circuits, the court has prescribed a briefing schedule to avoid unnecessary duplication. The movant may file a brief with the motion. The respondent may respond within 28 days thereafter, and the movant may reply within 10 days thereafter. The movant then files all briefs with the presiding judge at least 3 court days before the hearing date. Cook County Circuit Court Rule 2.1(d).

PRACTICE POINTER Judges will often enter a briefing schedule order (particularly in the Circuit Court of Cook County) on the date a motion is presented to the court (date on notice of motion). However, it is best to be prepared to address a motion on the initial presentment date as the court may have questions and/or wish to hear the motion. Further, it is advisable to deliver courtesy copies to the judges chambers prior to initial presentment of a motion both because it is required by some judges and also because it is worthwhile to permit the court to review your motion before it is presented.

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G. [11.10] Form of Basic Motion [Caption] DEFENDANTS MOTION TO STRIKE AND DISMISS COMPLAINT Now comes defendant, ________________, by its attorneys, ________________, and, for its motion to strike and dismiss the Complaint pursuant to 2-615 of the Code of Civil Procedure, states: 1. Section 2-615 of the Code of Civil Procedure, 735 ILCS 5/2-615, provides in pertinent part: (a) All objections to pleadings shall be raised by motion. The motion shall point out specifically the defects complained of, and shall ask for appropriate relief, such as: that a pleading or portion thereof be stricken because substantially insufficient in law, or that the action be dismissed . . . or that designated immaterial matter be stricken out . . . and so forth. 2. [Here state various allegations forming basis for relief sought as suggested in 11.13 below.] 3. [Same as above.] 4. [Same as above.] WHEREFORE, defendant, ________________, respectfully requests this Court to strike and dismiss the Complaint, to award its costs, and for such other relief as this Court deems proper. _____________________________________ Defendant By: _________________________________ [one of its attorneys] [Set forth name, address, and telephone number of moving counsel.]

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Alternative form of basic motion: [Caption] DEFENDANTS MOTION TO STRIKE AND DISMISS COMPLAINT Now comes defendant, ________________, by its attorneys, ________________, and moves this Court to strike and dismiss the Complaint of plaintiff, pursuant to [2-615] [2619] of the Code of Civil Procedure, 735 ILCS 5/[2-615] [2-619], and, in the support of this Motion, states:

[If the motion is filed under 2-615, it should read: 1. Section 2-615 of the Code of Civil Procedure provides in pertinent part: (a) All objections to pleadings shall be raised by motion. The motion shall point out specifically the defects complained of, and shall ask for appropriate relief.] 2. [Here, again, state various allegations forming basis for relief sought.] 3. [Same as above.] 4. [Same as above.] [If the motion is filed under 2-619, it should read: 1. Section 2-619 of the Code of Civil Procedure provides in pertinent part: (a) Defendant may, within the time for pleading, file a motion for dismissal of the action or for other appropriate relief upon any of the following grounds. *** (9) That the claim asserted against defendant is barred by other affirmative matter avoiding the legal effect of or defeating the claim.] 2. [Here state various allegations forming basis for relief as suggested in 11.13 below.] 3. [Same as above.] 4. [Same as above.] [If, for example, the plaintiff bases its cause of action on a written agreement and fails to attach or recite the agreement, state:]

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5. Section 2-606 of the Code of Civil Procedure provides: If a claim or defense is founded upon a written instrument, a copy thereof, or of so much of the same as is relevant, it must be attached to the pleading as an exhibit or recited therein. Plaintiff has failed to attach a copy of the Order or recite its existence as a basis for alleged liability to [him] [her] in the Complaint. Thus, the Complaint must be dismissed. 6. The Complaint fails to set forth any facts on which relief may be granted. [Strategically, it is advisable to include in this type of general language a catchall so that if additional grounds are discovered between the date of filing and argument, this language may incorporate that argument.] WHEREFORE, defendant, ________________, respectfully moves this Court to strike and dismiss the Complaint of plaintiff and award defendant the costs of this action. _____________________________________ Defendant By: _________________________________ [one of its attorneys] [Set forth name, address, and telephone number of moving counsel.] The forms above are basic outline forms. Annotations to each part appear in 11.11 11.22 below. 1. [11.11] Legibility S.Ct. Rule 131(a) requires that motions, like all other pleadings, must be legibly written, typewritten, printed, or otherwise duplicated. If this requirement is not complied with, the clerk shall not file the document. 2. [11.12] Caption S.Ct. Rule 131(b) requires that all papers, including motions, be entitled in the court and cause, and the plaintiffs name . . . placed first. Rule 131(c) provides that, in cases in which there are two or more plaintiffs or two or more defendants, it is sufficient in entitling papers, except a summons, to name the first-named plaintiff and the first-named defendant with the usual indication of other parties as long as the official number of the cause is also indicated. S.Ct. Rule 132 provides that the caption must contain the words at law, in chancery, in probate, small claim, or other designation conforming to the organization of the circuit court into divisions. The rule goes on to provide: Misdesignation shall not affect the jurisdiction of the court. Id.

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Following the formal portions of the caption, a heading should be placed on the instrument designating it as Defendants Motion To Dismiss Plaintiffs Complaint, Defendants Motion To Strike Portions of Plaintiffs Complaint, or some other brief statement of the purpose of the motion and the identity of the party making it. 3. [11.13] Relief Sought and Basis Therefor The first paragraph of the motion should contain a complete statement of the relief sought or the order desired by the movant. This statement should identify the moving party and should set forth the basis on which the relief is sought. A motion made in accordance with a particular statute or portion of a statute should identify the statute in the first paragraph along with the other items mentioned. A typical example of the introductory paragraph of a motion would be as follows: The defendant, John Jones, moves the Court, pursuant to 2-615 of the Code of Civil Procedure, to enter an order dismissing this complaint or, in the alternative, to strike certain portions of it and, in support of this motion, states to the Court: [or] NOW COMES John Jones, Defendant, by his attorneys, A, B, C, and D, and, pursuant to 2-615 of the Code of Civil Procedure, moves that the complaint, or certain portions of it, be stricken and, in support of this motion, states: Following the introductory paragraph, the motion should contain in separate, numbered paragraphs (for the convenience of both the court and counsel during the argument and in preparing the eventual order) each of the reasons known to support the relief sought. In connection with this portion of a motion, see Code of Civil Procedure 2-615(b), which provides: 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 must specify wherein the pleading or division thereof is insufficient. 735 ILCS 5/2-615(b). This section of the statute does not require the citation of supporting authority. As previously noted, some circuits require a brief of the law in support of the motion, but this brief is not required to be in the motion itself. Typical examples of this portion of the motion are as follows: The complaint fails to allege the violation of any duty owed by the defendant to the plaintiff. [or] The complaint fails to allege any proximate cause between the alleged negligence of the defendant and the occurrence complained of.

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It is usually advisable to include some general language in the motion, as well as specific defects, as that will permit argument on additional matters if subsequently thought desirable. Suggestions of form are as follows: The complaint and each count of the complaint fail to set forth any facts on which relief may be granted. [or] The complaint merely alleges conclusions and does not set forth any ultimate facts on which relief may be granted. 4. [11.14] Reference to and Incorporation of Other Matters on Which Motion Is Based If both the pleading itself and the particular portion objected to are sufficiently identified, it is not necessary to attach or directly quote from the other pleading in the motion in question. Accordingly, it is appropriate in the motion to point out the following to the court: Paragraph 7(a) of Count II of the Second Amended Complaint should be stricken as it is nothing more than a legal conclusion on the part of the pleader, unnecessary to [his] [her] cause of action. Code of Civil Procedure 2-615(c) provides: Upon motions based upon defects in pleadings, substantial defects in prior pleadings may be considered. 735 ILCS 5/2-615(c). Again, it is not necessary to attach or quote from the prior pleadings as long as they and the specific portions of them in question are adequately identified for convenient reference. See S.Ct. Rule 134. If reference is made in the motion to some document or portion of a document that is not already on file in the case, then, as a matter of common sense, it is necessary to attach that document to the motion and make reference to it in the motion or, alternatively, refer to and quote from the document in the motion and be prepared to present the document at the time of argument on the motion. However, if the court does not have ready access to the document at issue, it is advisable to provide copies to the court with the pleading. 5. [11.15] Signature S.Ct. Rule 137 provides: Every pleading, motion and other paper of a party represented by an attorney shall be signed by at least one attorney of record in his individual name, whose address shall be stated. A party who is not represented by an attorney shall sign his pleading, motion, or other paper and state his address. Except when otherwise specifically provided by rule or statute, pleadings need not be verified or accompanied by affidavit. The signature of an attorney or party constitutes a certificate by him that he has read the pleading, motion or other paper; that to the

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ILLINOIS CIVIL PRACTICE: OPENING THE CASE

best of his knowledge, information, and belief formed after reasonable inquiry it is well grounded in fact and is warranted by existing law or a good-faith argument for the extension, modification, or reversal of existing law, and that it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation. 6. [11.16] Address and Telephone Number S.Ct. Rule 131(d) provides: All papers filed in any cause or served upon the opposite party shall bear the name and business address and telephone number, if any, of the responsible attorney or attorneys and the law firm filing the same, or of the party who appears in his own proper person. It is suggested that this portion of the motion should also include the zip code and the telephone area code. 7. [11.17] Certificate of Service S.Ct. Rule 104(b) provides: Pleadings subsequent to the complaint, written motions, and other papers required to be filed shall be filed with the clerk with a certificate of counsel or other proof that copies have been served on all parties who have appeared and have not theretofore been found by the court to be in default for failure to plead. The rule is complied with by the form of certificate attached to the notice, which is set out in 11.9 above, presupposing service by mail as provided for in S.Ct. Rule 11. If the service is effected by any other means, the form of certificate must be changed accordingly. Counsel may use the certification as prescribed by 735 ILCS 5/1-109. 8. [11.18] Serving and Filing Motions The rules regarding service and requiring filing of motions are S.Ct. Rules 11, 12, and 104(b). 9. [11.19] Opposition to Motion Many motions seek relief that is not opposed. If it is desirable to oppose a motion, there is no requirement in the statute or in the rules that any responsive pleading setting forth the basis of the opposition be filed. It is sufficient that opposing counsel appear at the time and place set for the hearing and state objections to the motion. If the motion in question is supported by an affidavit and the opposition is based on facts not of record, contrary to the contents of the supporting affidavit, then, as a practical matter, opposing counsel should prepare and file a counteraffidavit in the form provided for in S.Ct. Rule 191 and in 735 ILCS 5/2-619 and 5/2-1005. All facts in a

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MOTIONS, AFFIDAVITS, AND ORDERS

11.20

supporting affidavit that are not contradicted by counteraffidavits or other appropriate means are deemed admitted. Raintree Homes, Inc. v. Village of Long Grove, 209 Ill.2d 248, 807 N.E.2d 439, 282 Ill.Dec. 815 (2004). 10. [11.20] Hearing on Motion S.Ct. Rule 184 appears to be the only provision dealing with the hearing on a motion. That rule simply provides: No provision in these rules or in the Civil Practice Law prescribing a period for filing a motion requires that the motion be heard within that period. Either party may call up the motion for disposition before or after the expiration of the filing period. Id. In many circuits, the motion will be set on a regular calendar or automatically set by the clerk and notice will be given to counsel. At the time and place specified on the calendar, in the clerks notice, or in notice by either counsel to the other (and, of course, to the court in that situation), the motion will be heard before the court. It is customary for the court to permit the moving party to present his or her motion and argument in support of the motion and then permit opposing counsel to make his or her argument. It is also customary in most circuits for the court to permit moving counsel to reply to opposing counsels argument. At this point, the court will most likely either announce its decision passing on the motion and proceed with the steps relative to the entry of an appropriate order or, in a complicated case, take the issue under advisement and possibly require counsel to prepare, file, and serve written briefs of the law in support of their various positions. The matter of orders entered on motions after hearings is contained in other sections of this chapter. COMMENT: A movant should provide courtesy copies of the motion, the response filed by the opponent, and the reply to the judges chambers several days prior to the hearing on such motion. It is important to check each judges standing order to determine whether that judge prefers a certain method of timing a delivery of courtesy copies. Failure to comply with standing orders regarding courtesy copies will not only result in embarrassment for the movement at the hearing, but risks annoying the judge and wasting time by forcing a continuance of the hearing (many judges rely on the courtesy copies to prepare for the hearing).

PRACTICE POINTER The importance of being familiar with the standing orders of every judge counsel appears before cannot be overemphasized. It demonstrates both a respect for the judge and a familiarity with that courtroom and its procedures.

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11.21

ILLINOIS CIVIL PRACTICE: OPENING THE CASE

11. [11.21] Failure To Call Motions for Hearing The burden is on the movant to have a motion heard. Failure to do so may amount to waiver of the issues raised by the motion. See 11.2 above. It is recommended that the local rules be checked to determine whether the Cook County rule or a similar rule has been adopted.

PRACTICE POINTER Cook County Circuit Court Rule 2.3 provides that if a motion is not called for hearing within 90 days from the date of filing, the court may enter an order overruling or denying the motion by reason of the delay.

12. [11.22] Renewal of Motions There is no prohibition to the renewal of any motion that has been made and passed on by the court unless the court has found its order ruling on the motion to be final and appealable in accordance with S.Ct. Rule 304(a). However, the practice is not viewed with approval. Accordingly, it is improper to present successive motions seeking the same relief, and, therefore, it has been held that once a matter has been raised by motion and has been ruled on by the court, the court should decline to reconsider the issues thus passed on if they are raised in a subsequent motion on the same matter. Kay v. Kay, 46 Ill.App.2d 446, 197 N.E.2d 121 (1st Dist. 1964). In certain limited instances, an issue once raised by motion and passed on by the court may be raised again in other forms at later stages of the proceedings. In this regard, Code of Civil Procedure 2-619 contains the following provisions: (d) The raising of any of the foregoing matters by motion under this Section does not preclude the raising of them subsequently by answer unless the court has disposed of the motion on its merits; and a failure to raise any of them by motion does not preclude raising them by answer. (e) Pleading over after denial by the court of a motion under this Section is not a waiver of any error in the decision denying the motion. 735 ILCS 5/2-619. Although it is generally the rule that issues, once determined on a motion, cannot be raised on a later motion, in the situation in which a motion previously ruled on in like or identical form was presented to the trial judge with the allegation or inference that the motion judge had erred, the trial judge is not only empowered but bound to correct a wrong ruling, and [would err] in failing to do so. Banks v. United Insurance Company of America, 28 Ill.App.3d 60, 328 N.E.2d 167, 170 (1st Dist. 1975). See also Scardina v. Colletti, 63 Ill.App.2d 481, 211 N.E.2d 762 (1st Dist. 1965).

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II. AFFIDAVITS
A. [11.23] Introduction Sections 11.24 11.33 below deal with general rules regarding affidavits used in connection with pretrial proceedings. Rules regarding affidavits used at other stages of trial proceedings and those affidavits for which there are special statutory requirements are not dealt with here. Affidavits are used in conjunction with pretrial motions for the purpose of supplying factual information necessary to support those motions. B. [11.24] Definition Affidavits are ex parte statements of fact made in writing and under oath or certified in accordance with 735 ILCS 5/1-109. They are voluntary statements that are formally reduced to writing and sworn to or affirmed before some officer authorized by law to take them. People ex rel. McCline v. Meyering, 356 Ill. 210, 190 N.E. 261 (1934); Cox v. Stern, 170 Ill. 442, 48 N.E. 906 (1897); Roth v. Illinois Farmers Insurance Co., 202 Ill.2d 490, 782 N.E.2d 212, 270 Ill.Dec. 18 (2002). C. [11.25] Use The most common use of an affidavit in pretrial proceedings is in support of motions to dismiss under Code of Civil Procedure 2-619 and in support of motions for summary judgment under Code of Civil Procedure 2-1005. Section 2-619 provides in part: (a) Defendant may, within the time for pleading, 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: *** (c) If, upon the hearing of the motion, the opposite party presents affidavits or other proof denying the facts alleged or establishing facts obviating the grounds of defect, the court may hear and determine the same and may grant or deny the motion. If a material and genuine disputed question of fact is raised the court may decide the motion upon the affidavits and evidence offered by the parties, or may deny the motion without prejudice to the right to raise the subject matter of the motion by answer and shall so deny it if the action is one in which a party is entitled to a trial by jury and a jury demand has been filed by the opposite party in apt time. 735 ILCS 5/2-619.

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11.26

ILLINOIS CIVIL PRACTICE: OPENING THE CASE

Section 2-1005 provides in part: (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 part of the relief sought. (b) For defendant. A defendant may, at any time, move with or without supporting affidavits for a summary judgment in his or her favor as to all or any part of the relief sought against him or her. *** (e) Form of affidavits. The form and contents of and procedure relating to affidavits under this Section shall be as provided by rule. 735 ILCS 5/2-1005. D. [11.26] Rules as to Form and Content Since affidavits are, by their nature, self-serving declarations of a witness that are not subject to cross-examination, strict rules have been adopted regarding their form and content for the protection of opposing parties. S.Ct. Rule 191 is controlling with reference to affidavits used in support of motions under 735 ILCS 5/2-619 and 5/2-301(b) and affidavits used in support of motions for summary judgment under 735 ILCS 5/2-1005. If an affidavit is used in connection with some other form of motion, it would be advisable to meet the requirements of S.Ct. Rule 191, which provides: (a) Requirements. Motions for summary judgment under section 2-1005 of the Code of Civil Procedure and motions for involuntary dismissal under section 2-619 of the Code of Civil Procedure must be filed before the last date, if any, set by the trial court for the filing of dispositive motions. Affidavits in support of and in opposition to a motion for summary judgment under section 2-1005 of the Code of Civil Procedure, affidavits submitted in connection with a motion for involuntary dismissal under section 2-619 of the Code of Civil Procedure, and affidavits submitted in connection with a motion to contest jurisdiction over the person, as provided by section 2-301 of the Code of Civil Procedure, shall be made on the personal knowledge of the affiants; shall set forth with particularity the facts upon which the claim, counterclaim, or defense is based; shall have attached thereto sworn or certified copies of all papers upon which the affiant relies; shall not consist of conclusions but of facts admissible in evidence; and shall affirmatively show that the affiant, if sworn as a witness, can testify competently thereto. If all of the facts to be shown are not within the personal knowledge of one person, two or more affidavits shall be used. (b) When Material Facts Are Not Obtainable by Affidavit. If the affidavit of either party contains a statement that any of the material facts which ought to appear in the affidavit are known only to persons whose affidavits affiant is unable to procure by reason of hostility or otherwise, naming the persons and showing why their

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11.27

affidavits cannot be procured and what affiant believes they would testify to if sworn, with his reasons for his belief, the court may make any order that may be just, either granting or refusing the motion, or granting a continuance to permit affidavits to be obtained, or for submitting interrogatories to or taking the depositions of any of the persons so named, or for producing papers or documents in the possession of those persons or furnishing sworn copies thereof. The interrogatories and sworn answers thereto, depositions so taken, and sworn copies of papers and documents so furnished, shall be considered with the affidavits in passing upon the motion. E. [11.27] Who May Make and Take Affidavits Section 1-109 of the Code of Civil Procedure provides that when a pleading or document to be filed with the court must be sworn to or verified under oath, such requirement is defined to include a certification of such pleading, affidavit, or other document under penalty of perjury as follows: Under penalties as provided by law pursuant to Section 1-109 of the Code of Civil Procedure, the undersigned certifies that the statements set forth in this instrument are true and correct, except as to matters therein stated to be on information and belief and as to such matters the undersigned certifies as aforesaid that he verily believes the same to be true. 735 ILCS 5/1-109. Section 1-109 certifications are frequently used in place of affidavits because they do not need to be notarized. In general, any person, whether or not a party to the pending litigation, may make an affidavit as long as that person is competent and can understand the nature of an oath, affirmation, or certification. S.Ct. Rule 191 requires that the person making the affidavit have personal knowledge of the facts covered by the affidavit. As a general rule, affidavits in Illinois are taken by clerks, notaries, and any other persons authorized by law to administer oaths and take affidavits. It is perfectly proper for a notary to take an affidavit anywhere in Illinois, as notaries are not restricted to the counties in which they are appointed. Farwell v. Horton, 301 Ill.App. 372, 22 N.E.2d 958 (2d Dist. 1939). Code of Civil Procedure 1-109 also permits affidavits to be made by certification, thereby dispensing with the need for the administration of an oath to the affiant. As such, S.Ct. Rule 191 affidavits need not be notarized to be valid. Robidoux v. Oliphant, 201 Ill.2d 324, 775 N.E.2d 987, 996, 266 Ill.Dec. 915 (2002). Affidavits made outside Illinois may be taken by any person authorized to administer oaths or take affidavits by the laws of the state in which the affidavit is taken. 5 ILCS 255/6. However, when an affidavit is made out of state, it must be clear from the face of the affidavit that the officer before whom it was made was in fact authorized by the state in which it was made to take affidavits or administer oaths. Herbert v. Roxana Petroleum Corp., 12 F.2d 81 (E.D.Ill. 1926); Bell v. Farwell, 189 Ill. 414, 59 N.E. 955 (1901). Of course, these issues can be avoided through the use of a 1-109 certification as set forth above.

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11.28

ILLINOIS CIVIL PRACTICE: OPENING THE CASE

PRACTICE POINTER In nearly all situations, attorneys prepare affidavits based on communications with those who will execute such affidavits. However, a witness signing an affidavit may be deposed or cross-examined about the averments of the affidavit that the witness signs. Accordingly, the attorney preparing an affidavit for a witness to review and comment on before signature should be mindful of this fact. Accordingly, the attorney should use the affiants own words and terminology as much as possible. In that way, a witness will not be as likely to be impeached when examined about the document or to have to testify that he or she does not know the meaning of certain words or terms in the affidavit itself. Indeed, the best affidavits are those that mimic as reasonably as possible the testimony that witness would give in a deposition, trial, or other evidentiary hearing.

F. [11.28] Title or Caption The affidavit should begin with the caption of the case in which it is to be used even though the failure to include a caption does not invalidate the affidavit. Harris v. Lester, 80 Ill. 307 (1875); Roth v. Illinois Farmers Insurance Co., 202 Ill.2d 490, 782 N.E.2d 212, 270 Ill.Dec. 18 (2002). Following the caption, the affidavit should identify the motion it is intended to support, for example: Affidavit in Support of Motion for Summary Judgment by Defendant, John Doe. Following the caption and the identification line, the affidavit should clearly indicate on its face the state and county in which it was made. The purpose of this requirement is to indicate on the face of the affidavit where the act was done. People v. Nelson, 150 Ill.App. 595 (1st Dist. 1909). Again, failure to meet this requirement does not invalidate the affidavit. Cox v. Stern, 170 Ill. 442, 48 N.E. 906 (1897). Certifications authorized by 735 ILCS 5/1-109 need not contain a caption. G. [11.29] Contents of Affidavit S.Ct. Rule 191, which is often used as a basis for the contents and propriety of affidavits, specifically requires that affidavits affirmatively show that the affiant, if sworn as a witness, can testify competently thereto. Respondents to affidavits often contend that the affidavit is insufficient if it does not contain such a specific recital. However, courts have held that the rule does not demand that the affidavit contain that phrase and is, rather, satisfied if it affirmatively appears from the whole of the document that the affiant would be a competent witness if called. See Streams Club, Ltd. v. Thompson, 180 Ill.App.3d 830, 536 N.E.2d 459, 129 Ill.Dec. 619 (2d Dist. 1989). The contents of an affidavit should be statements of fact. Those statements should be made positively but need not show the source of the affiants knowledge except under those special circumstances mentioned in S.Ct. Rule 191. Also, as previously noted, the statement should be based on the personal knowledge of the affiant. In rare instances, when specifically authorized by

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11.31

statute, an affidavit may be made on information and belief rather than on firsthand knowledge. In those unusual instances, it is necessary for the affidavit to indicate clearly that certain statements are on information and belief so that those statements may be distinguished from the statements based on personal knowledge of the affiant, which is easily accomplished by the use of the words, Affiant is informed and believes that . . ., before the factual information about which the affiant does not possess personal knowledge. Affidavits should not state conclusions. Dangeles v. Marcus, 57 Ill.App.3d 662, 373 N.E.2d 645, 15 Ill.Dec. 299 (1st Dist. 1978); Schultz v. Plankinton Bank, 40 Ill.App. 462 (1st Dist. 1891); Majca v. Beekil, 183 Ill.2d 407, 701 N.E.2d 1084, 233 Ill.Dec. 810 (1998); Steiner Electric Co. v. NuLine Technologies, Inc., 364 Ill.App.3d 876, 847 N.E.2d 656, 301 Ill.Dec. 646 (1st Dist. 2006). In accordance with this rule, an affidavit made for the purpose of establishing an agreement should set forth the facts underlying the existence of the agreement and not merely the affiants opinion or conclusion that there was an agreement. S.Ct. Rule 191 also provides that [m]otions for summary judgment under section 2-1005 of the Code of Civil Procedure and motions for involuntary dismissal under section 2-619 of the Code of Civil Procedure must be filed before the last date, if any, set by the trial court for the filing of dispositive motions. H. [11.30] Oath and Signature of Affiant It is absolutely essential that an affidavit be sworn to. Kehoe v. Rounds, 69 Ill. 351 (1873). The first sentence of the body of the affidavit normally uses the phrase, John Doe, on oath states. . . . The affiant should sign the affidavit somewhere on its face (normally at the end). Theobald v. Chicago, Milwaukee & St. Paul Ry., 75 Ill.App. 208 (1st Dist. 1897). It is recommended that, in order to conform with S.Ct. Rule 191, the affidavit contain a separate paragraph that states, essentially, the following: The Affiant, if called on to testify as a witness, can testify competently to the matters and facts set forth herein except when those matters and facts are stated on information and belief and, as to those allegations, to the extent permitted by the Rules of Evidence. However, distinctions as to the form of the oath are not critical, and leave may be obtained from the trial court to amend the pleading if it has not been verified. Spanberger v. Tulyasathien, 76 Ill.App.3d 867, 395 N.E.2d 689, 32 Ill.Dec. 459 (5th Dist. 1979); Northrop v. Lopatka, 242 Ill.App.3d 1, 610 N.E.2d 806, 182 Ill.Dec. 937 (4th Dist. 1993). I. [11.31] Jurat The jurat is that portion of an affidavit in which the officer certifies that the affidavit was sworn to before him or her by the affiant. A jurat should be attached to the affidavit to make it complete and to avoid the problem of having to prove matters of signature, oath, etc. Cox v. Stern, 170 Ill. 442, 48 N.E. 906 (1897).

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ILLINOIS CIVIL PRACTICE: OPENING THE CASE

As part of the jurat, the officer taking the affidavit should indicate his or her official title and the county or state of which he or she is an officer, and his or her seal should be affixed to the affidavit itself. None of these requirements is so critical that a failure to comply with it would invalidate the affidavit, but common sense again dictates that, for the sake of expediency, these elements should be included. See 1 I.L.P. Affidavits 6 (1988). Alternatively, Code of Civil Procedure 1-109 permits affidavits to be certified as opposed to verified. 735 ILCS 5/1-109. The use of this format dispenses with the need of obtaining a notary public or other form of jurat. J. [11.32] Affidavits Made in Bad Faith Penalties Code of Civil Procedure 2-1005(f) provides that, if it appears to a court that an affidavit is presented in bad faith or solely for the purpose of delay, the court shall order the party employing it to pay to the other party the amount of the reasonable expenses which the filing of the affidavit caused him or her to incur, including reasonable attorneys fees, and any offending party or attorney may be adjudged guilty of contempt. 735 ILCS 5/2-1005(f). Although this provision relates only to affidavits in support of motions for summary judgment, the same penalties might be imposed for affidavits made in bad faith or for the sole purpose of delay in conjunction with any motion made before trial. See S.Ct. Rule 137. K. [11.33] Outline Form The following is an outline of a typical affidavit made in support of a motion: [Caption] AFFIDAVIT IN SUPPORT OF MOTION FOR [See 11.28 above.] STATE OF ILLINOIS COUNTY OF _________ ) )

_____________________ on oath states: 1. [Here state facts as explained in 11.29 above.] 2. [Same as above.] 3. [Same as above.]

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Signed: _____________________________ Signed and sworn to before me, a Notary Public, of __________ County, Illinois, by ___________________, this ___ day of __________, 20__. __________________________________ Notary Public (SEAL) [See 11.31 above.]

III. ORDERS
A. [11.34] Introduction There are no provisions regarding the general nature of orders in the Code of Civil Procedure. The only direct reference to matters of a general nature concerning orders is found in S.Ct. Rule 271. Once a matter has been brought to the courts attention and a decision has been requested by a motion, it is assumed that the court will render a decision and that some record must be made of that decision. The making of this record is the function of an order. There has developed the practice of presentation of written orders prepared by counsel to be signed by the judge and filed in the case together with the entry of a brief notation on the docket sheet indicating that this has been done. The typical entry on a docket sheet is, Motion heard and granted as per signed order on file. The procedures in relation to the preparation, presentation, signing, and filing of orders and the sanctions imposed for failure to comply with those rules are discussed in 11.35 11.39 below. If the docket entry provides for a written order, the time for an appeal runs from the time the written order is filed, not from the time of entry of the docket order. See S.Ct. Rule 272. For some of the difficulties that may be encountered in appealing from the docket order, see Davidson Masonry & Restoration, Inc. v. J.L. Wroan & Sons, Inc., 2 Ill.App.3d 524, 275 N.E.2d 654 (4th Dist. 1971). B. [11.35] Presentation of Draft Orders S.Ct. Rule 271 provides: When the court rules upon a motion other than in the course of trial, the attorney for the prevailing party shall prepare and present to the court the order or judgment to be entered, unless the court directs otherwise. The rule adopts the former practice, followed in chancery, of requiring the attorney to submit a draft of any necessary order covering the ruling by the court. The practical effect is to relieve clerks of the burden of preparing full orders from minute or docket orders and, further, to

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11.36

ILLINOIS CIVIL PRACTICE: OPENING THE CASE

facilitate the preparation of records on appeal. It should be noted that the rule reserves to the judge the discretion to determine that the preparation and presentation of a draft order is not necessary in a particular situation. However, unless the judge specifically exercises his or her discretion and excuses the preparation of a draft order and makes a written record of that determination, counsel for the prevailing party should, absolutely, comply with this rule particularly in view of the sanctions and penalties for failure to comply discussed in 11.38 below. C. [11.36] Form of Order A typical form of order ruling on a motion is set forth in this section. This form will, of course, have to be adapted to fit the particular situation covered by the motion and the courts ruling on it. In drafting an order, counsel should note that an appellate court will presume that an order entered by the trial court was in conformity with law and had a sufficient factual basis. Foutch v. OBryant, 99 Ill.2d 389, 459 N.E.2d 958, 76 Ill.Dec. 823 (1984) (holding that when there was no transcript of hearing on motion to vacate, there is no basis for holding that trial court abused discretion in denying motion). This presumption is particularly important when there is no transcript of a hearing in which a motion was decided, because the party assigning error has the burden to present a sufficiently complete record of the proceedings at trial to support a claim of error, and any doubts which may arise from the incompleteness of the record will be resolved against the appellant. Id. Thus, the party prevailing on a motion may wish to keep the order as general as possible in order to take advantage of the presumption of correctness. However, it is worth noting that a trial court order that lacks specificity may be vacated on appeal. MuellmanCohen v. Brak, 361 Ill.App.3d 52, 836 N.E.2d 678, 296 Ill.Dec. 927 (1st Dist. 2005) (vacating trial court order disqualifying counsel when it failed to specify grounds).

PRACTICE POINTER In Cook County, if a draft order is to be submitted subsequent to ruling, the court generally requires that it be presented to opposing counsel; even if not required by the court, it is best to suggest presentation to the court to avoid any question of impropriety or lack of notice.

ORDER This matter coming on to be heard on the motion ________________________, the Court, having heard the arguments of counsel and being fully advised in the premises, finds as follows: 1. 2.

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Based on the foregoing facts, the Court makes the following conclusions of law: 1. 2. IT IS THEREFORE ORDERED, ADJUDGED, AND DECREED as follows: 1. 2. ENTER: _____________________________________ Judge Sometimes it is desirable to set forth the findings, and sometimes it is better to have a general order entered without specific findings. Depending on the specific motion that is presented to the court and what is desired to be achieved, a decision will have to be made at this point whether to use an open-end form or a specific form with findings. An order should state specifically whether the relief granted is with or without prejudice and when a pleading, or some part thereof, is dismissed or stricken without prejudice, the order should specifically grant the right to file an amended version of the dismissed or stricken pleading. Both moving and responding counsel should give due consideration to preparation of the draft order to be entered following the conclusion of the hearing on the particular motion. This advance consideration will keep all counsel focused on the issues to be raised and serve as a checklist for items to be included in any proposed order. Further, during the time immediately after the courts oral ruling on a motion, it can often be difficult to concentrate on the precise issues to be addressed. In drafting an order, counsel should note the rule that, especially in the absence of a transcript on a hearing in which the motion was decided, a judgment is presumed to be correct, that the burden is on the party assigning error to establish the error, and that any doubt arising from the incompleteness of the record will be resolved against the appellant. See Riopelle v. Northwest Community Hospital, 195 Ill.App.3d 750, 552 N.E.2d 1220, 142 Ill.Dec. 479 (1st Dist. 1990), and Haudrich v. Howmedica, Inc., 169 Ill.2d 525, 662 N.E.2d 1248, 215 Ill.Dec. 108 (1996), in which the orders did not specifically discuss the basis of the trial courts ruling. Counsel seeking to have a trial courts order affirmed on appeal may desire to keep the order as general as possible to take advantage of the presumption of its correctness. However, there is a risk that an appellate court may vacate a general order and direct the trial court to specify the reasons for its decision. See Muellman-Cohen, supra.

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11.37

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PRACTICE POINTER When one can anticipate numerous findings, it is best to have a court reporter present (in a situation in which the court does not otherwise provide one) so that a transcript of the findings will be available to both the party drafting the order and the court (should opposing counsel question the correctness of the order). If a court reporter is not present, as a prevailing party drafting the order it is essential that counsel include in the order language such as, the Court having heard the evidence and the arguments of counsel and being fully advised in the premises, because when such language is included, it is presumed that the court heard adequate evidence to support the decision that was rendered. Foutch, supra, 459 N.E.2d at 960.

D. [11.37] Service of Orders There are no Supreme Court Rules dealing with the service of orders; however, as noted in 11.36 above, the better practice is to serve the draft order on the parties in order to determine whether there is any objection as to the form of the order. This practice will further forestall any subsequent objection as to lack of knowledge of a specific order. Under certain circumstances, local rules or practice requires the service of orders on parties, a notable example of that being an order to show cause in a contempt proceeding. Attorneys are advised to consult the local court rules and the statutory language under which a specific order is obtained.

PRACTICE POINTER S.Ct. Rule 12 may be deemed in some circuits to apply to orders and therefore should be followed, depending on local rule.

E. [11.38] Sanctions for Noncompliance As indicated in 11.36 above, the burden is on the prevailing party to prepare and present a draft of the order to the court to cover the courts ruling on any motion. If the prevailing party fails to do so, there is, at the outset, the very basic penalty that results from the fact that there is no record of the courts ruling on the matter. It has been held, in Brandes v. Illinois Protestant Childrens Home, Inc., 33 Ill.App.2d 319, 179 N.E.2d 425 (1st Dist. 1962) (abst.), that a motion on which no order is entered is presumably waived or abandoned. Further, S.Ct. Rule 271 has the same binding effect as a statute (In re Youngs Estate, 414 Ill. 525, 112 N.E.2d 113 (1953); Premier Electrical Construction Co. v. American National Bank of Chicago, 276 Ill.App.3d 816, 658 N.E.2d 877, 213 Ill.Dec. 128 (1st Dist. 1995)), and compliance with the rule is mandatory (Sparacino v. Ferona, 9 Ill.App.2d 422, 133 N.E.2d 753 (2d Dist. 1956)).

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There are other practical sanctions or penalties for noncompliance with the rule regarding the presentation of drafts of orders, such as the loss of interest or expensive and embarrassing problems on appeal, all of which result from a deficiency with reference to orders. See George Kaye, Attorneys! Present Your Drafts!, 52 Ill.B.J. 480 (1964). F. [11.39] Language in Order Creating Appellate Jurisdiction Generally, any judgment that adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties is not enforceable or appealable and may be revised until the entry of a judgment adjudicating all the claims, rights, and liabilities of all the parties. S.Ct. Rule 304(a). Rule 304(a) creates an exception to this general rule of appellate procedural law by permitting appeals from trial court orders that only dispose of a portion of the controversy between parties. Mostardi-Platt Associates, Inc. v. American Toxic Disposal, Inc., 182 Ill.App.3d 17, 537 N.E.2d 922, 923, 130 Ill.Dec. 593 (1st Dist. 1989). A trial court may allow for immediate enforcement or appeal if it makes an express written finding that there is no just reason for delaying either enforcement or appeal or both. S.Ct. Rule 304(a). Such a finding may be made at the time of the entry of the judgment or thereafter on the courts own motion or on the motion of any party. Id. It is important to note that the time for filing a notice of appeal begins on the date the trial court makes such a finding. Id. In order to be immediately appealable, an order must contain an explicit reference to S.Ct. Rule 304(a) and track its language. Coryell v. Village of La Grange, 245 Ill.App.3d 1, 614 N.E.2d 148, 150, 185 Ill.Dec. 14 (1st Dist. 1993) (holding that contained finding that it was final and appealable did not satisfy Rule 304(a) and confer jurisdiction on appellate court). Thus, an order that enters judgment on fewer than all of the claims in an action should specifically state, there is no just reason for delaying enforcement or appeal. Id. Note that inclusion of this language cannot turn a nonfinal order into one that is final and appealable. Id. The rule simply allows a party to appeal a final judgment when other parts of a larger lawsuit remain in the trial court.

IV. MOTIONS TO STRIKE AND MOTIONS TO DISMISS


A. Nature and Use of Motion 1. [11.40] Scope of Discussion Sections 11.41 11.69 below discuss the use of motions to strike and to dismiss to test the sufficiency of prior pleadings or to test the right of the party to bring suit. 2. [11.41] Summary of Statutory Provisions Basically, motions can be divided into two categories: a. pleading motions, in which the facts alleged are taken as true; and b. fact motions, in which affidavits, pleadings, and discovery materials may be used to show that there is no contested material issue of fact.

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The courts have repeatedly criticized the combining of motions to dismiss with motions for summary judgment. In Janes v. First Federal Savings & Loan Association of Berwyn, 57 Ill.2d 398, 312 N.E.2d 605, 609 (1974), the Supreme Court attacked the practice of filing motions to dismiss and for summary judgment by stating: Decision of this case has been made unnecessarily difficult because the trial and appellate courts and the parties have not drawn a sufficiently sharp distinction between the proper inquiry on a motion to dismiss and a motion for summary judgment. . . . The Civil Practice Act . . . establishes two distinct procedures. . . . To combine an inquiry into whether a pleading is sufficient to state a cause of action with an examination which almost necessarily assumes that a cause of action has been stated and proceeds to determine whether there are any material issues of fact to be tried is likely to confuse both the parties and the court. . . . We therefore expressly disapprove the procedure followed in the trial court. The defendants in this case should have first challenged the legal sufficiency of the complaint. When, and only when, a legally sufficient cause of action had been stated should the court have entertained the motions for summary judgment and considered the affidavits filed in support thereof. To deal with the problem noted in Janes, 2-619.1 was added to the Code of Civil Procedure. It provides: Motions with respect to pleadings under Section 2-615, motions for involuntary dismissal or other relief under Section 2-619, and motions for summary judgment under Section 2-1005 may be filed together as a single motion in any combination. A combined motion, however, shall be in parts. Each part shall be limited to and shall specify 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 upon under the Section upon which it is based. 735 ILCS 5/2-619.1. It is still preferred first to attack the legal sufficiency of the complaint, then to raise any affirmative matters, and then to seek summary judgment on the various alternative bases. The trial courts failure to distinguish in its ruling between the types of motions is not grounds for reversal if there is no prejudice (Anzinger v. Illinois State Medical Inter-Insurance Exchange, 144 Ill.App.3d 719, 494 N.E.2d 655, 98 Ill.Dec. 533 (1st Dist. 1986)), but it is grounds for reversal when there is prejudice (Premier Electrical Construction Co. v. LaSalle National Bank as Trustee Under Trust #49475, 115 Ill.App.3d 638, 450 N.E.2d 1360, 71 Ill.Dec. 481 (2d Dist. 1983); Burton v. Airborne Express, Inc., 367 Ill.App.3d 1026, 857 N.E.2d 707, 711, 306 Ill.Dec. 308 (5th Dist. 2006)). If the appellate court is unable to determine the reasons for the granting of the motion, reversal is warranted. Eddings v. Dundee Township Highway Commissioner, 135 Ill.App.3d 190, 478 N.E.2d 888, 88 Ill.Dec. 397 (2d Dist. 1985).

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a. [11.42] Motions Under Code of Civil Procedure 2-615 Code of Civil Procedure 2-615 provides that all objections to pleadings shall be raised by motion. It sets forth the general requirements governing the motions and outlines some but not all the relief relating to pleadings that may be granted by the motion procedure. A distinction should be made between a motion to strike and a motion to dismiss. Actions are dismissed; portions of pleadings are stricken. Bejda v. SGL Industries, Inc., 82 Ill.2d 322, 412 N.E.2d 464, 45 Ill.Dec. 113 (1980). Code of Civil Procedure 2-615 provides that a motion may request that 1. a pleading, in whole or in part, be stricken because it is substantially insufficient in law; 2. the action be dismissed; 3. a pleading be made more definite and certain in a specified particular; 4. designated immaterial matter be stricken; 5. necessary parties be added; or 6. designated mis-joined parties be dismissed. Code of Civil Procedure 2-615 also provides that when the objection is that the particular pleading or a part of it is substantially insufficient in law, the motion must specify where or what part of the pleading is insufficient. Additionally, Code of Civil Procedure 2-615 provides that 1. on motions based on defects in pleadings, substantial defects in prior pleadings may be considered (735 ILCS 5/2-615(c)); and 2. a party may seasonably move for judgment on the pleadings (735 ILCS 5/2-615(e)).

PRACTICE POINTER An interesting possibility under Code of Civil Procedure 2-615(c) is that when the defendant did not file a motion objecting to the complaint, and the plaintiff files a motion objecting to the answer, the court has the right to review the original complaint and, if appropriate, strike all or a portion of it.

Motions made under Code of Civil Procedure 2-615 may not raise facts that are not present in the pleadings. Elliott v. Illinois Central R.R., 318 Ill.App. 112, 47 N.E.2d 375 (1st Dist. 1943). The motion may rely only on the pleadings and may not rely on discovery materials or raise new

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facts by affidavits. Mutual Tobacco Co. v. Halpin, 414 Ill. 226, 111 N.E.2d 155 (1953); Arthur Rubloff & Co. v. Leaf, 347 Ill.App. 191, 106 N.E.2d 735 (1st Dist. 1952). Prior pleadings may be considered by a motion under this section. Reconstruction Finance Corp. v. Pines, 295 Ill.App. 262, 14 N.E.2d 886 (1st Dist. 1938). Motions to strike pleadings as substantially insufficient at law may be dispositive motions. Matters that are outside the pleadings may not be considered. Mutual Tobacco, supra; Louis v. Barenfanger, 81 Ill.App.2d 104, 226 N.E.2d 85 (5th Dist. 1966), affd, 39 Ill.2d 445 (1968). Exhibits to the pleadings may be considered and will control over the allegations in the pleadings. Outboard Marine Corp. v. James Chisholm & Sons, Inc., 133 Ill.App.3d 238, 478 N.E.2d 651, 88 Ill.Dec. 336 (2d Dist. 1985). Reliance on matters outside the pleadings is a basis for reversal even if those matters would sustain a motion for summary judgment. Cain v. American National Bank & Trust Company of Chicago, 26 Ill.App.3d 574, 325 N.E.2d 799 (1st Dist. 1975). Motions filed under Code of Civil Procedure 2-615(e) are for judgment on the pleadings. The issue raised under that section is whether the complaint states a cause of action. Intersport, Inc. v. National Collegiate Athletic Assn, 381 Ill.App.3d 312, 885 N.E.2d 532, 538, 319 Ill.Dec. 261 (1st Dist. 2008); Pollack v. Marathon Oil Co., 34 Ill.App.3d 861, 341 N.E.2d 101 (5th Dist. 1976). The standard for granting a motion for judgment on the pleadings is that the court must determine whether the pleadings present a fact issue. Baillon v. S.S. Kresge Co., 4 Ill.App.3d 82, 277 N.E.2d 719 (4th Dist. 1972). The motion tests whether there is a material issue as set forth in the pleadings and does not test whether there is any factual support for the pleading. The motion admits all well-pleaded facts. Employers Insurance of Wausau v. Ehlco Liquidating Trust, 186 Ill.2d 127, 708 N.E.2d 1122, 237 Ill.Dec. 82 (1999). A complaint should not be stricken unless the court concludes that there is no possible set of facts in support of the allegations that would entitle the plaintiff to relief. See Anderson v. Marquette National Bank, 164 Ill.App.3d 626, 518 N.E.2d 196, 115 Ill.Dec. 671 (1st Dist. 1987). When the plaintiff moves for judgment on the pleadings, the issue posed is whether the answer states a valid defense. Brown v. Gill, 343 Ill.App. 460, 99 N.E.2d 393 (3d Dist. 1951) (abst.). A motion for judgment on the pleadings . . . admits the truth of the opposite partys wellpleaded facts, and a judgment on the pleadings is proper when the pleadings reveal questions of law, not of fact. [Citation omitted.] Pfeil v. Weerde, 152 Ill.App.3d 759, 504 N.E.2d 988, 989, 105 Ill.Dec. 703 (2d Dist. 1987); Baillon, supra. For purposes of resolving a motion for judgment on the pleadings, the court must consider as admitted all well-pleaded facts set forth in the pleadings of the nonmoving party and the fair inferences drawn therefrom. Employers Insurance of Wausau, supra. The court must also examine the pleadings to determine whether an issue of material fact exists, and, if not, determine whether the controversy can be resolved solely as a matter of law. b. [11.43] Motions Under Code of Civil Procedure 2-619 Code of Civil Procedure 2-619 sets forth some of the grounds that may be urged in a motion to dismiss or for other appropriate relief. 735 ILCS 5/2-619. It provides that if these grounds do not appear on the face of the pleading attacked, the motion must be supported by affidavit.

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The grounds so specified are 1. a lack of jurisdiction of the subject matter of the actions; 2. a lack of legal capacity in a party to sue or to be sued; 3. another action is pending between the same parties for the same cause; 4. the action is barred by a prior judgment; 5. the action was not commenced within the time limited by law; 6. the plaintiffs claim or demand has been released, satisfied of record, or discharged in bankruptcy; 7. the claim or demand asserted is unenforceable under the statute of frauds; 8. the claim or demand asserted is unenforceable because of a defendants minority or other disability; and 9. the claim or demand asserted is barred by other affirmative matter avoiding the legal effect of or defeating the claim or demand. There are basic differences between Code of Civil Procedure 2-615 motions and Code of Civil Procedure 2-619 motions. A 2-615 motion tests the legal sufficiency of the complaint. The filing of the motion brings into play certain legal principles, such as the admission of wellpleaded facts, but not the conclusions of law. Richards v. Leimbacher, 131 Ill.App.2d 775, 267 N.E.2d 523 (3d Dist. 1971). The complaint is construed as a whole and not in disconnected parts. Courtney v. Board of Education of City of Chicago, 6 Ill.App.3d 424, 286 N.E.2d 25 (1st Dist. 1972). A complaint should not be dismissed unless it clearly appears that no set of facts could be proved that would entitle the plaintiff to relief. Callaizakis v. Astor Development Co., 4 Ill.App.3d 163, 280 N.E.2d 512 (1st Dist. 1972); Cain v. American National Bank & Trust Company of Chicago, 26 Ill.App.3d 574, 325 N.E.2d 799 (1st Dist. 1975). Objections to pleadings must be specific, and if specific objections are not noted, they are waived. Berry v. G.D. Searle & Co., 56 Ill.2d 548, 309 N.E.2d 550 (1974). Furthermore, a motion filed under Code of Civil Procedure 2-615 may consider only facts alleged in the complaint; consideration of any other facts from an affidavit or any other source is not proper. Motions brought under Code of Civil Procedure 2-619 may in some instances be fact motions under Code of Civil Procedure 2-1005 or may be pleading motions under Code of Civil Procedure 2-615. If the defect appears in the pleading, a motion to dismiss may be filed without supporting affidavits. Indeed, under Cali v. DeMattei, 121 Ill.App.3d 623, 460 N.E.2d 121, 77 Ill.Dec. 262 (5th Dist. 1984), a 2-615 motion may be more appropriate. Motions under Code of Civil Procedure 2-619 may be supported by affidavits if the defect does not appear in the pleading. The matters raised by a 2-619 motion are generally in the nature of affirmative defenses, avoiding the effects of the plaintiffs allegations. See Cain, supra.

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A motion challenging jurisdiction under Code of Civil Procedure 2-619 should not be treated as a general appearance if it is limited to the issue of jurisdiction over the person. Central Clearing, Inc. v. Omega Industries, Inc., 42 Ill.App.3d 1025, 356 N.E.2d 852, 1 Ill.Dec. 570 (1st Dist. 1976). It is to be noted that a 2-619 motion concedes the well-pleaded facts of the complaint. Connelly v. Estate of Dooley, 96 Ill.App.3d 1077, 422 N.E.2d 143, 52 Ill.Dec. 462 (1st Dist. 1981). A further distinction between a Code of Civil Procedure 2-1005 motion and a Code of Civil Procedure 2-619 motion is that under 2-619, a judge may decide the motion on evidence and affidavits. A motion of summary judgment provides that if there is a contested material issue of fact, the motion should be denied. Thus, a hearing may be held on potentially dispositive issues raised by the motion under 2-619, but not under 2-1005. Code of Civil Procedure 2-619 motions are essentially based on specified and enumerated defenses as set forth in the motion. The section is designed not for attacks on the pleadings but for dispositions on summary issues of law or on easily proved issues of fact. The timing of these motions is generally after the pleadings are at issue, and specific defenses are raised or may be raised to defeat the right of recovery. It is a method of raising defenses that have the effect of avoiding the claim and is usually dispositive of the case. A further distinction should be made between Code of Civil Procedure 2-615 motions and Code of Civil Procedure 2-1005 motions (summary judgments). In the former, the inquiry is to the nature of the pleadings and their sufficiency to state a cause of action. In the latter, the inquiry is to whether the pleadings, depositions, affidavits, and admissions show a genuine issue as to any material fact. The Supreme Court expressly disapproved of the combining of 2-615 and 2-1005 motions in the same pleadings. Janes v. First Federal Savings & Loan Association of Berwyn, 57 Ill.2d 398, 312 N.E.2d 605 (1974). However, the First District Appellate Court has acknowledged the practice and treated a 2-615 motion as a Code of Civil Procedure 2-619 motion, allowing admissions of a party in depositions to negate the allegations of the pleadings, and, in effect, counted the motion as one brought under 2-619, thus avoiding the repetitious filing of motions. Dixon v. Ford Motor Credit Co., 72 Ill.App.3d 983, 391 N.E.2d 493, 29 Ill.Dec. 230 (1st Dist. 1979). When no jury is requested, disputed issues of fact, unlike motions under Code of Civil Procedure 2-1005, may be resolved by the court; however, when there are credibility issues, the court should conduct an evidentiary hearing. Emerson v. LaSalle National Bank, 40 Ill.App.3d 794, 352 N.E.2d 45 (2d Dist. 1976); Denton Enterprises, Inc. v. Illinois State Toll Highway Authority, 77 Ill.App.3d 495, 396 N.E.2d 34, 32 Ill.Dec. 921 (1st Dist. 1979); Consumer Electric Co. v. Cobelcomex, Inc., 149 Ill.App.3d 699, 501 N.E.2d 156, 159 160, 103 Ill.Dec. 135 (1st Dist. 1986). 3. [11.44] Summary of Court Rules S.Ct. Rule 181 provides that an appearance may be made by motion. It states the time for these appearances under particular types of summons authorized by the rules.

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S.Ct. Rule 182 provides that a motion attacking a pleading other than the complaint must be filed within 21 days after the last day allowed for the filing of the pleading attacked. S.Ct. Rule 191 requires that a motion attacking a pleading on one of the grounds specified in 735 ILCS 5/2-619 and relying on facts outside of the pleading being attacked must be supported by an affidavit that complies with S.Ct. Rule 191. 4. [11.45] Purpose of Motion To Dismiss A motion to dismiss questions the legal sufficiency of the complaint or other pleading to which it is directed. A motion to strike some portion of a pleading questions (a) the legal sufficiency or (b) the relevance of that part of the pleading to which it is directed. Common forms of 735 ILCS 5/2-615 motions are motions to dismiss, motions to strike, and motions for judgment on pleadings. The first two motions generally do not dispose of the actions, and the plaintiff in these cases should be allowed to amend unless it becomes apparent even after amendment that no cause of action may be stated. In re Estate of Hopkins, 166 Ill.App.3d 652, 520 N.E.2d 415, 117 Ill.Dec. 254 (2d Dist. 1988).

PRACTICE POINTER As a practical matter, after granting a Code of Civil Procedure 2-615 motion to strike or dismiss, a trial court will generally permit a plaintiff an opportunity to replead in order to correct its defective complaint. However, whether to permit further amendment of pleadings or to terminate the litigation rests within the discretion of the trial court. Capitol Indemnity Corp. v. Stewart Smith Intermediaries, Inc., 229 Ill.App.3d 119, 593 N.E.2d 872, 877 878, 171 Ill.Dec. 52 (1st Dist. 1992). In this regard, the trial court may consider the ultimate efficacy of the claim and whether the plaintiff had prior opportunities to amend. Section 2-615 does not grant plaintiffs the right to unlimited amendment. When presenting a motion under Code of Civil Procedure 2-615, do not simply concede when the plaintiff seeks leave to amend after you win the motion. It may be possible to pursue a dismissal with prejudice by arguing, e.g., that there truly are no set of facts on which the plaintiff could state a claim, or that the plaintiff has had ample opportunity to try to plead the claim (e.g., has already amended a couple of times). Hirsch v. Feuer, 299 Ill.App.3d 1076, 702 N.E.2d 265, 273, 234 Ill.Dec. 99 (1st Dist. 1998).

Motions to strike or dismiss generally relate to the pleadings before the issues are joined, although motions for judgment on the pleadings may be made before or after the issues are joined. Pollack v. Marathon Oil Co., 34 Ill.App.3d 861, 341 N.E.2d 101 (5th Dist. 1976). In motions to strike, only the pleadings may be considered, and new matters may not be presented by motions, affidavits, or depositions. Elliott v. Illinois Central R.R., 318 Ill.App. 112, 47 N.E.2d 375 (1st Dist. 1943); Mutual Tobacco Co. v. Halpin, 414 Ill. 226, 111 N.E.2d 155 (1953); Louis

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v. Barenfanger, 81 Ill.App.2d 104, 226 N.E.2d 85 (5th Dist. 1966); Charles Hester Enterprises, Inc. v. Illinois Founders Insurance Co., 137 Ill.App.3d 84, 484 N.E.2d 349, 91 Ill.Dec. 790 (5th Dist. 1985). Motions for judgment on the pleadings must set forth that no material issue of fact exists. Baillon v. S.S. Kresge Co., 4 Ill.App.3d 82, 277 N.E.2d 719 (4th Dist. 1972); Daymon v. Hardin County General Hospital, 210 Ill.App.3d 927, 569 N.E.2d 316, 155 Ill.Dec. 316 (5th Dist. 1991). These motions are made after pleadings are complete, generally not before the answer. Motions for judgment on the pleadings do not test the issue of the evidence, but only the pleadings, and admit the well-pleaded facts. Village of Worth v. Hahn, 206 Ill.App.3d 987, 565 N.E.2d 166, 151 Ill.Dec. 895 (1st Dist. 1990). In such a motion, a denial of an allegation has to be taken as true when considering the motion. A.A. Erickson Bros. v. Jenkins, 41 Ill.App.2d 180, 190 N.E.2d 383 (1st Dist. 1963). An excellent example of the application of a motion for judgment on the pleadings is contained in Pied Piper Yacht Charters Corp. v. Corbel, 17 Ill.App.3d 281, 308 N.E.2d 35 (1st Dist. 1974), in which the plaintiff sued to recover earnest money deposited under a contract providing for return of the money if the sale was not closed within 30 days. The defendants answered, admitting that the sale had never closed, and further stated that negotiations had dragged on for months, the land had been held off the market, and the defendant had suffered losses. The plaintiffs motion for judgment on the pleadings was granted because the facts alleged in the answer, even if proved, would not constitute a defense under the contract. 5. [11.46] Effect of Motion as Admission The allegations of a pleading attacked by a motion to strike or dismiss are deemed to be true for the limited purpose of testing their sufficiency in the hearing on the motion. Acorn Auto Driving School, Inc. v. Board of Education of Leyden High School District No. 212, 27 Ill.2d 93, 187 N.E.2d 722 (1963). They do not, however, constitute binding legal admissions by the movant in any other phase of the case. Only well-pleaded facts are admitted by the motion for the limited purpose of the motion only. Conclusions of law or fact unsupported by allegations of specific facts are not admitted. Joslin v. Ashelford, 29 Ill.App.2d 202, 172 N.E.2d 806 (2d Dist. 1961). A motion to strike does not admit allegations in the complaint that are in conflict with facts disclosed by an exhibit attached to and made part of a complaint. Sangamon County Fair v. Stanard, 9 Ill.2d 267, 137 N.E.2d 487 (1956); Groenings v. City of St. Charles, 215 Ill.App.3d 295, 574 N.E.2d 1316, 158 Ill.Dec. 923 (2d Dist. 1991); Brock v. Anderson Road Assn, 287 Ill.App.3d 16, 677 N.E.2d 985, 989, 222 Ill.Dec. 451 (2d Dist. 1997). 6. [11.47] Waiver by Failure To File Motion Code of Civil Procedure 2-612 provides that all defects in pleadings, either in form or substance, not objected to in the trial court are waived. 735 ILCS 5/2-612. Failure to object to a pleading by motion may, accordingly, constitute a waiver of a pleading deficiency, especially when the objection is one of form rather than substance. However, if a complaint with all intendments in its favor fails to state any cause of action, this objection may be made at any time

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in any pleading or by any other means regardless of whether the complaint is attacked by motion and even for the first time on appeal. Lasko v. Meier, 394 Ill. 71, 67 N.E.2d 162 (1946); Inland Real Estate Corp. v. Lyons Savings & Loan, 153 Ill.App.3d 848, 506 N.E.2d 652, 106 Ill.Dec. 852 (2d Dist. 1987). 7. [11.48] Practical Considerations in Determining Whether To Attack a Prior Pleading by Motion A motion attacking the sufficiency of a pleading may point out to the adverse party the defects in that partys theory in pleading. For this reason, some attorneys file motions only when they believe the motion may determine the litigation in that the pleading attacked cannot successfully be amended to state a cause of action or a defense. A motion for judgment on the pleadings may be made before or at the trial if the complaint fails to state a cause of action or if, on the whole record made by the pleadings, it appears that the plaintiffs action cannot prevail or that the defendant has, as a matter of law, a defense. Code of Civil Procedure 2-615(e) provides that any party may seasonably move for judgment on the pleadings. 735 ILCS 5/2-615(e). See the review of cases in 11.45 above. When it can be anticipated that the pleadings and admissions made by the whole record will demonstrate, as a matter of law, that the plaintiffs case fails, a defendant might well forego a motion in the nature of a demurrer and file a motion for judgment once the pleadings are concluded. When one of the grounds provided in Code of Civil Procedure 2-619 is to be relied on, the pleader must decide whether to raise the point by motion or by answer. Code of Civil Procedure 2-615 permits but does not require that the objection be raised by motion. Raising the issue by motion sometimes affords a means for summary conclusion of litigation. 8. [11.49] Time for Filing and Proof of Service A motion attacking the complaint filed as a first pleading in a case must be filed within the time required under the Supreme Court Rule applicable to the particular proceeding in which it is filed. When the summons requires appearance within 30 days, the defendant may make his or her appearance by filing a motion within the 30-day period. S.Ct. Rule 181. If the defendants appearance to this type of summons is made in some other manner (for instance, by filing a written entry of appearance), the motion (if he or she elects to file one) must be filed on or before the last day on which the defendant was required by the summons to appear. Id. The 30-day period is computed from the day the copy of the summons is left with the person designated by law and not from the day a copy is mailed, in case mailing is also required. Id. When the summons requires appearance on a specified day, unless the notice to the defendant in the summons provides otherwise, the defendant who elects to file a motion may file it on or before the specified time for appearance. If the defendant under this type of summons has filed a written appearance either voluntarily or under court requirement, an additional ten days after the

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day of appearance is allowed for filing the motion. S.Ct. Rule 181(b)(1). (In the Municipal Department of the Circuit Court of Cook County and various other small claim districts, pursuant to local rules, the defendant may file the motion within a fixed number of days after the date appearance is required to be filed.) In a forcible detainer action, the summons requires appearance on a specified day. If a defendant in the action elects to file a motion, it must be done before the time specified in the summons. S.Ct. Rule 181(b)(2). A motion attacking a pleading other than the complaint must be filed within 21 days after the last day allowed for filing the pleading attacked. S.Ct. Rule 182(c). A motion is served in accordance with S.Ct. Rule 11. A certificate of counsel or other proof of service on all parties who have appeared and have not been yet found by the court to be in default is attached to the motion, and the motion, with this attachment, is filed with the clerk of the court. Service of the motion may be excused by the court or any judge of the court for good cause shown on ex parte application. However, the attorney filing the motion, when service has been excused, shall furnish a copy promptly and without charge to any party requesting it. S.Ct. Rule 104(c). B. [11.50] Outline Form of Motion To Strike Complaint IN THE CIRCUIT COURT ____________ JUDICIAL CIRCUIT ____________ COUNTY, ILLINOIS ________________________, Plaintiff, v. ________________________, Defendant. ) ) ) ) ) )

No. ________________

MOTION TO STRIKE AND DISMISS COMPLAINT Now comes defendant, ____________, by its attorneys, ____________, and moves this Court to strike the Complaint of plaintiff pursuant to [2-615] [2-619] of the Code of Civil Procedure, 735 ILCS 5/[2-615] [2-619], and, in support thereof, states: 1. [Set forth each ground in separate, numbered paragraphs.] 2.

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Dated: ________________

By: ___________________________________ Attorney

____________________ Street ____________________, Illinois Telephone: ________________ Attorney for: ______________ [Attach certificate of mailing.] COMMENT: A motion attacking a complaint or other pleading or portion of it has the same physical format as the complaint. It must be entitled in the court and cause. The plaintiffs name is placed first. If there are multiple parties, it is sufficient to name the first-named plaintiff and the first-named defendant with the usual indication of other parties (et al. or and others), but the official number of the cause must be indicated. S.Ct. Rules 131(b), 131(c). The document is entitled Motion To Dismiss, Motion To Strike Complaint, Motion Attacking Complaint, Motion To Dismiss Counterclaim, or Motion To Strike Answer, as the case may be. The grounds of the motion are then stated. A concluding prayer is permissible but unnecessary. The motion may be dated, but the rules do not provide for dating. It is signed by the party or the partys attorney. If it is the first paper filed in the cause or served on the opposite party, it must bear the business address and telephone number, if any, of the attorney filing it or of the party who appears in his or her own proper person. S.Ct. Rule 131(d). A certificate of service on the opposite party should be attached to the original motion when filed. 1. [11.51] Specification of Grounds Code of Civil Procedure 2-615(a) requires that the motion point out specifically the defects complained of. If a ground of the motion is that the pleading or a part of it is substantially insufficient in law, the motion must specify where this insufficiency exists. 735 ILCS 5/2615(b). Code of Civil Procedure 2-615(a) and 2-615(b) contemplate that a motion of this character may be filed to the entire complaint or to divisions or portions of it. 2. [11.52] Grounds of Motion Among the grounds are the following: a. The pleading attacked or a portion of it is substantially insufficient in law (735 ILCS 5/2-615), which in the case of a complaint or counterclaim may mean a failure to state a cause of action. b. The pleading attacked is indefinite and uncertain in a specified particular. Id. c. The pleading attacked contains immaterial or irrelevant matter. Id.

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11.53

ILLINOIS CIVIL PRACTICE: OPENING THE CASE

d. The allegations of a complaint or counterclaim are insufficient to warrant the relief prayed. 735 ILCS 5/2-604. e. The pleader is required to state multiple claims in separate counts on which separate recoveries might be had. 735 ILCS 5/2-603(b). f. The complaint refers to a written agreement that is neither attached to nor recited in the complaint. 735 ILCS 5/2-606. g. One or more grounds stated in Code of Civil Procedure 2-619 exist. The motion may be based on one or more of these grounds, without affidavit, if the defect appears on the face of the pleading. If one of the grounds specified in 2-619 exists but does not appear on the face of the complaint, it still may be the ground of a motion if supported by an appropriate affidavit. C. [11.53] Forms of Motions Attacking Complaints on Various Grounds When a motion is filed attacking a multi-count complaint and particularly when, in addition to moving to dismiss one or more counts, the motion also is directed to portions of counts, the motion may more properly be styled a Motion Attacking Complaint than a Motion To Dismiss Complaint, since all the relief sought in the motion is not encompassed within the word dismiss. Such a motion is in 11.54 below. 1. [11.54] Skeleton Form of Motion Attacking Complaint and Several Causes of Action or Counts [Caption] MOTION ATTACKING COMPLAINT Defendant moves in separate motions as follows: I To dismiss Count I of the complaint on the following grounds: [Statement of grounds of motion.] II To dismiss Count II of the complaint on the following grounds: [Statement of grounds of motion.] [Continue, following the same format, with motions to dismiss subsequent counts that are deficient.]

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MOTIONS, AFFIDAVITS, AND ORDERS

11.55

COMMENT: If relief other than dismissal is sought in such a motion, the motions to dismiss, following the foregoing format, may be followed by other Roman-numbered divisions seeking appropriate relief, such as the following: III To strike subparagraph (a) of paragraph 7 of Count III and its re-allegation in Count IV on the following grounds: [Statement of grounds of motion.] Dated: ________________ By: ___________________________________ Attorney

____________________ Street ____________________, Illinois Telephone: ________________ Attorney for: ______________ [Attach certificate of mailing.] 2. [11.55] Form of Specification That Complaint Is Insufficient in Law The [complaint] [counterclaim] [particular count of the complaint or counterclaim] is substantially insufficient in law for the following reasons: 1. It does not allege [state omitted allegation that affects the sufficiency of the complaint]. 2. It appears on the face of the complaint that [state matters affecting the sufficiency of the cause of action, such as that the plaintiff was guilty of contributory negligence]. As an alternative, the opening paragraph of the form might be phrased: The [complaint] [counterclaim] [particular count of the complaint or counterclaim] does not state [a cause of action against this defendant] [a case for the relief prayed against this defendant] for the following reasons: 1. It does not allege [state omitted allegation that affects the sufficiency of the complaint]. 2. It appears on the face of the complaint that [state matters affecting the sufficiency of the cause of action, such as that the plaintiff was guilty of contributory negligence]. COMMENT: Code of Civil Procedure 2-615(b) requires that a motion based on a claimed legal insufficiency must specify where the attacked pleading is insufficient. Code of Civil Procedure 2-612(b) provides that no pleading is bad in substance that reasonably informs the opposite party of the claim sought to be asserted. 735 ILCS 5/2-612(b).

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11.56

ILLINOIS CIVIL PRACTICE: OPENING THE CASE

When some but not all counts of a complaint are defective, the motion must attack the defective counts. A motion to dismiss the whole complaint should not be allowed when only some of the counts are deficient. Barzowski v. Highland Park State Bank, 371 Ill. 412, 21 N.E.2d 294 (1939); Regan v. Grady, 343 Ill. 423, 175 N.E. 567 (1931). 3. Form of Specification of Various Grounds Mentioned in Code of Civil Procedure 2-619 a. [11.56] No Jurisdiction of Subject Matter The court has no jurisdiction of the subject matter of this action for the reason that ____________. COMMENT: This is one of the grounds for involuntary dismissal stated under 735 ILCS 5/2-619. If the ground appears on the face of the complaint, this specification would be sufficient if the reason given for lack of jurisdiction was an appropriate one. If the lack of jurisdiction does not appear on the face of the complaint, then, under Code of Civil Procedure 2-619, the motion must be supported by affidavit. There should then be added to the specification the following: as appears from the affidavit(s) of ____________________________, attached hereto. b. [11.57] Lack of Legal Capacity To Sue or Be Sued [When objection appears on face of complaint:] Plaintiff does not have legal capacity to [sue] [be sued] because __________. [Add, when objection does not appear on the face of the complaint:] as appears from the affidavit(s) of __________________________, attached hereto. [When objection appears on the face of the complaint:] Defendant does not have legal capacity to [sue] [be sued] because _________. [Add, when objection does not appear on the face of the complaint:] as appears from the affidavit(s) of _______________, attached hereto. COMMENT: Lack of legal capacity of the plaintiff to sue or of the defendant to be sued is a ground of involuntary dismissal provided under 735 ILCS 5/2-619(a)(2).

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11.60

c. [11.58] Another Action Pending [When objection appears on the face of the complaint:] There is another action pending between the same parties for the same cause as this action. [Add, when objection does not appear on the face of the complaint:] as appears from the affidavit(s) of _______________, attached hereto. COMMENT: Seldom will it appear on the face of the complaint that there is another action pending involving the same parties and subject matter. Accordingly, in most cases when this ground is used, an affidavit will be required. d. [11.59] Former Adjudication [When objection appears on the face of the complaint:] The cause of action sought to be asserted in the complaint is barred by a prior judgment. [Add, when objection does not appear on the face of the complaint:] as appears from the affidavit(s) of _______________, attached hereto. COMMENT: The affidavit supporting this ground should set forth sufficient facts to show that the prior judgment is in fact a former adjudication of the issue sought to be litigated in the present controversy. e. [11.60] Statute of Limitations [When objection appears on the face of the complaint:] The action sought to be asserted in the complaint was not commenced within ____ years after that action accrued and is therefore barred by the statute of limitations, ____ ILCS ____. [Add, when objection does not appear on the face of the complaint:] as appears from the affidavit(s) of _______________, attached hereto.

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11.61

ILLINOIS CIVIL PRACTICE: OPENING THE CASE

f.

[11.61] Release or Discharge [When objection appears on the face of the complaint:]

The cause of action sought to be asserted in the complaint has been [released] [satisfied of record] [discharged in bankruptcy]. [Add, when objection does not appear on the face of the complaint:] as appears from the affidavit(s) of _______________, attached hereto. g. [11.62] Statute of Frauds [When objection appears on the face of the complaint:] The [claim] [demand] sought to be asserted in the complaint is unenforceable under the statute of frauds, ____ ILCS ____. [Add, when objection does not appear on the face of the complaint:] as appears from the affidavit(s) of _______________, attached hereto. h. [11.63] Minority or Other Disability [When objection appears on the face of the complaint:] Defendant, at the time mentioned in the complaint, was a minor, and, for that reason, the claim sought to be asserted in the complaint against [him] [her] is unenforceable. [Add, when objection does not appear on the face of the complaint:] as appears from the affidavit(s) of _______________, attached hereto. COMMENT: A like specification may be made when, at the time referred to in the complaint, the defendant was under other disability. 735 ILCS 5/2-619(a)(8). 4. [11.64] Form of Motion To Require More Definite Statement [Caption] MOTION TO REQUIRE MORE DEFINITE STATEMENT Defendant moves that plaintiff be required to make [his or her complaint] [a specified portion of his or her complaint] more definite and certain by specifying _______________, for the following reasons:

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11.65

1. [State in separate, numbered paragraphs reasons a more particular statement should be required.] 2. 3. COMMENT: Code of Civil Procedure 2-615(a) specifically authorizes a motion that a pleading be made more definite and certain in a specified particular, and Code of Civil Procedure 2612(a) provides that the court may order a more particular statement if any pleading is insufficient in substance or in form. The pleader also should consider the provision for demanding a bill of particulars. 735 ILCS 5/2-607. Of course, a motion to require a more definite statement may also be made a division of a motion requesting other relief with respect to the pleading attacked. It may also be an alternative motion filed with a motion to dismiss. 5. [11.65] Form of Motion To Strike (or Amend) Prayer for Relief [Caption] Defendant moves that the Prayer for Relief be [stricken] [amended in a specified particular] for the following reasons: 1. [State in separate, numbered paragraphs reasons the prayer should be stricken or amended.] 2. 3. COMMENT: See the Practice Pointers in 11.3 and 11.21 above relating to the requirement in Cook County and other counties that motions be called up for hearing within 90 days of filing. COMMENT: Code of Civil Procedure 2-604 requires that complaints and counterclaims contain specific prayers for the relief to which the pleader deems himself or herself entitled and provides that relief prayed for that is not sustained by allegations may be objected to on motion or in the answering pleading. 735 ILCS 5/2-604. The purpose of requiring specific prayers for relief in a complaint is to inform the defendant of the nature of the plaintiffs claim and the extent of damages sought so that the defendant may prepare to meet the demand or permit a default to be taken against him or her. Rauscher v. Albert, 145 Ill.App.3d 40, 495 N.E.2d 149, 150 151, 99 Ill.Dec. 84 (5th Dist. 1986).

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11.66

ILLINOIS CIVIL PRACTICE: OPENING THE CASE

6. [11.66] Form of Motion To Require Statement of Multiple Claims in Separate Counts [Caption] Defendant moves that plaintiff be required to state [his] [her] claim for _______________ in a separate count, for the following reasons: 1. [State in separate, numbered paragraphs the basis for the contention that the claim is a separate claim on which a separate recovery may be had.] 2. 3. COMMENT: Each separate claim or cause of action on which a separate recovery may be had is required to be stated in a separate count. 735 ILCS 5/2-603(b). D. [11.67] Setting Motion and Notice of Motion There is no requirement that a motion be heard within the time in which it is required to be filed either under the Supreme Court Rules or the Code of Civil Procedure. S.Ct. Rule 184. Either party may call up the motion for disposition before or after the expiration of the filing period. Id. Code of Civil Procedure 2-620 provides that notices regarding motions, hearings on motions, and all other matters of procedure relative thereto shall be according to rules. 735 ILCS 5/2-620. Many courts, by local rule, provide for automatic setting of a motion of this character. Under most of these rules, the clerk, when a motion is filed, places it on a motion setting and then gives notice to involved counsel of the time the motion will be heard. As indicated in 11.21 above, the Circuit Court of Cook County has specifically provided that the burden of calling for hearing any motion previously filed is on the party making the motion, and, [i]f any such motion is not called for hearing within 90 days from the date it is filed, the court may enter an order overruling or denying the motion by reason of the delay. Cook County Circuit Court Rule 2.3. While local rules should be consulted in other counties, the foregoing is critical in Cook County since substantive rights otherwise raised by motion can be lost because of the failure to attend to the timely setting and hearing of the motion. In the Circuit Court of Cook County, Municipal Department, First District (Chicago), when a motion is filed in lieu of an answer, the clerk will automatically set the motion for hearing on a date certain and should mail a postcard to opposing counsel advising of the filing of the motion and the time and place of hearing. This practice does not change or modify the requirements of S.Ct. Rule 104(b) relating to service on opposing counsel of all pleadings filed. When this practice does not prevail, a party wishing a motion heard should serve a notice of motion.

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MOTIONS, AFFIDAVITS, AND ORDERS

11.69

E. Ruling on Motion To Dismiss 1. [11.68] Power of Court The court, in ruling on the motion, determines the sufficiency of the pleading or the part of the pleading attacked. Substantial defects in prior pleadings may be considered. 735 ILCS 5/2615(c). See 11.42 above. After ruling, the court may enter an appropriate order in accordance with the particular status, sustain the motion and permit amendment, deny the motion and permit pleading over, terminate the litigation in part, or terminate the litigation in its entirety. 735 ILCS 5/2-615(d). The nature of the relief granted, if the movant is successful, will, of course, depend on the relief sought in the motion. If the pleading attacked is insufficient in substance or form, the court may order a fuller or more particular statement. 735 ILCS 5/2-612(a). If the pleadings do not sufficiently define the issues, the court may order other pleadings prepared. Id. It has been held that, after an order of dismissal, leave to plead over is a matter of discretion with the court and is not a matter of right. Streich v. General Motors Corp., 5 Ill.App.2d 485, 126 N.E.2d 389, 395 (1st Dist. 1955). When the court rules on a motion relating to pleadings, the attorney for the prevailing party shall prepare and present to the court the order or judgment to be entered unless the court directs otherwise. S.Ct. Rule 271. A final order or judgment is a determination by the court on the issues presented by the pleadings that ascertains and fixes absolutely and finally the rights of the parties to the litigation. See Department of Central Management Services v. American Federation of State, County & Municipal Employees, 182 Ill.2d 234, 695 N.E.2d 444, 230 Ill.Dec. 954 (1998). The involuntary dismissal of an action pursuant to Code of Civil Procedure 2-615 or Code of Civil Procedure 2-619 operates as an adjudication on the merits. Id. See also River Park, Inc. v. City of Highland Park, 184 Ill.2d 290, 703 N.E.2d 883, 234 Ill.Dec. 783 (1998); DeLuna v. Treister, 185 Ill.2d 565, 708 N.E.2d 340, 236 Ill.Dec. 754 (1999). Such a dismissal operates as a final judgment on the merits for purposes of res judicata. See also S.Ct. Rule 273, which provides in pertinent part: Unless the order of dismissal or a statute of this State otherwise specifies, an involuntary dismissal of an action, other than a dismissal for lack of jurisdiction, for improper venue, or for failure to join an indispensable party, operates as an adjudication upon the merits. 2. [11.69] Answer After Ruling As pointed out in 11.68 above, the court, in ruling on motions, may enter appropriate orders permitting or requiring pleading over. 735 ILCS 5/2-615(d). The time within which an answer is required after denial of a motion is not specifically covered by either the Code of Civil Procedure or court rules. Accordingly, the court order disposing of the motion should fix this time.

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11.70

ILLINOIS CIVIL PRACTICE: OPENING THE CASE

V. MOTIONS RELATING TO UNTRUE PLEADINGS


A. [11.70] Scope of Discussion While generally motions related to untrue pleadings are not heard until the conclusion of the trial or the hearings to which they relate, there is no basis, in statute or otherwise, to preclude their filings before conclusion. Since the subject matter of this chapter is motions and their uses before trial (or with respect to pleadings), it is within the purview of this chapter to mention the uses of motions relative to untrue pleadings. B. [11.71] Statutory Considerations S.Ct. Rule 137 provides in pertinent part the mode for obtaining attorneys fees and other sanctions in relation to untrue pleadings, providing: If a pleading, motion, or other paper is signed in violation of this rule, the court, upon motion or upon its own initiative, may impose upon the person who signed it, a represented party, or both, an appropriate sanction, which may include an order to pay to the other party or parties the amount of reasonable expenses incurred because of the filing of the pleading, motion or other paper, including a reasonable attorney fee. C. [11.72] Proper Use of Motion An untrue pleading may be attacked via a motion made pursuant to S.Ct. Rule 137. Pursuant to Rule 137, the trial court may impose sanctions against a party or his or her counsel for filing a motion or pleading that is not well grounded in fact, not supported by existing law, or lacks a good-faith basis for modification, reversal, or extension of the law, or is interposed for any improper purpose. Peterson v. Randhava, 313 Ill.App.3d 1, 729 N.E.2d 75, 79, 246 Ill.Dec. 75 (1st Dist. 2000). As the Peterson court explained, [t]he purpose of Rule 137 is to prevent the filing of frivolous and false lawsuits and, as a result, Rule 137 motions may be filed at any stage of a case. Id. Courts use an objective standard in evaluating what was reasonable under the circumstances as they existed at the time of filing and sanctions are appropriate when a pleading contains false statements. See, e.g., Whitmer v. Munson, 335 Ill.App.3d 501, 781 N.E.2d 618, 631, 269 Ill.Dec. 821(1st Dist. 2002) (reversing denial of Rule 137 motion for sanctions in which verified complaint contained facts plaintiff had to have known were false when complaint was filed). The courts will consider an award of sanctions not only for active false statements, but also for failure to disclose material facts to the court. See Brubakken v. Morrison, 240 Ill.App.3d 680, 608 N.E.2d 471, 181 Ill.Dec. 398 (1st Dist. 1992). Additionally, the fact that a false statement or omission is the result of an honest mistake is no defense to entry of a sanction. Id. To the extent that an individual lawyer has engaged in sanctionable conduct, that lawyers firm can also be jointly and severally liable with the lawyer. Id.

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11.73

The trial court is required to conduct a hearing on both the merits and the amount of fees and is required to enter specific findings on the entry or denial of such sanctions. See North Shore Sign Co. v. Signature Design Group, Inc., 237 Ill.App.3d 782, 604 N.E.2d 1157, 178 Ill.Dec. 634 (2d Dist. 1992). D. [11.73] Practical Considerations The motion brought under S.Ct. Rule 137 is merely another tool or weapon, if you will against the improper and, in this case, untrue pleading. Its use and the timing of its use rest with the pleader.

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