motions, affidavits, and orders

8/12/2019 Motions, Affidavits, And Orders

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©COPYRIGHT 2012 BY IICLE®. 11 — 1

Motions, Affidavits, andOrders

RICHARD H. CHAPMANClark Hill PLC

JAMES L. OAKLEYThompson Coburn LLPChicago

11



ILLINOIS CIVIL PRACTICE: OPENING THE C ASE

11 — 2 WWW.IICLE.COM

I. Motions in General

A. [11.1] Scope of Discussion

B. [11.2] Nature and Use of Motions

C. [11.3] Basic Statutory Sections and Court Rules

D. [11.4] Procedural Guide — Filing and Service of Motion

E. 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. [11.23] Introduction

B. [11.24] Definition

C. [11.25] Use

D. [11.26] Rules as to Form and Content

E. [11.27] Who May Make and Take Affidavits

F. [11.28] Title or Caption

G. [11.29] Contents of AffidavitH. [11.30] Oath and Signature of Affiant

I. [11.31] Jurat

J. [11.32] Affidavits Made in Bad Faith — Penalties

K. [11.33] Outline Form



MOTIONS, AFFIDAVITS, AND ORDERS

ILLINOIS INSTITUTE FOR CONTINUING LEGAL EDUCATION 11 — 3

III. Orders


B. [11.35] Presentation of Draft Orders

C. [11.36] Form of Order

D. [11.37] Service of Orders

E. [11.38] Sanctions for Noncompliance

F. [11.39] 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 Adjudicatione. [11.60] Statute of Limitations

f. [11.61] Release or Discharge

g. [11.62] Statute of Frauds

h. [11.63] Minority or Other Disability



ILLINOIS CIVIL PRACTICE: OPENING THE C ASE


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


B. [11.71] Statutory Considerations

C. [11.72] Proper Use of Motion

D. [11.73] Practical Considerations



MOTIONS, AFFIDAVITS, AND ORDERS §11.2


I. MOTIONS IN GENERAL


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 subjectmatter 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 thoserules 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 5/2-

615 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 onit. 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 Children’s 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.



§11.3 ILLINOIS CIVIL PRACTICE: OPENING THE C ASE


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 sectiongoes 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 Topic

11 Manner of serving motions on parties and the method of delivery

12 Manner and filing of proof of service

104 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.

131 Format of motions and other papers — legibility, titles, multiple

parties, addresses, and telephone numbers

132 Designation of motions conforming to the division of the circuitcourt

134 Incorporation of other materials by reference in motion

181 Motions as appearances and time for filing motions attacking the

complaint

182 Time for filing motions other than those directed to the

complaint

183 Extension of time for filing motions

184 Time for hearings on motions





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 judge’s clerk to

ascertain that judge’s 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 theoffice 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 13years of age;

b. by depositing the motion in a United States post office or post office box enclosed inan envelope plainly addressed to the attorney (or the party if the party isunrepresented) 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 thecarrier’s pick-up box or drop off with the carrier's designated contractor — enclosedin an envelope plainly addressed to the attorney (or the party if the party isunrepresented) at his or her business address or residence with postage fully prepaid;or





d. via facsimile machine to the office of the attorney or party who has consented toreceive 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 hand-

delivering 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 e-

mail 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.





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 paragraph3 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 court’s personal jurisdiction over a defendant constitutes a

general appearance. Under 735 ILCS 5/2-301(a-5), an objection to the court’s jurisdiction must

be raised in the first pleading or motion filed, other than a motion for extension of time to answeror 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 court’s 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 theobjecting party on the objection is waived by the party’s 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 party’s 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 party’s 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).





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 theoriginal deadline and why an extension of time should be granted, but may not engage in an open-

ended inquiry that considers conduct that is unrelated to the causes of the party’s 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 asrequired 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 5/2-

301.





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 _____________________________ Atty. No. _________________ Pro Se 99500

Address ___________________________ Attorney for _________________________

City/State/Zip _______________________ 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 _____________________, __________

____________________________________






PROOF OF ELECTRONIC SERVICE (WHERE PERMISSIBLE)

I, _____________________________________________, [the attorney] [non-attorney], certify

that on the ________ day of _______________________________, _________, I served this

notice electronically [via the Clerk’s 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 _____________________, __________

____________________________________


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 secondcourt 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 court’s 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 judge’s 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 judge’s 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.





G. [11.10] Form of Basic Motion

[Caption]

DEFENDANT’S 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.]





Alternative form of basic motion:

[Caption]

DEFENDANT’S 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] [2-

619] 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 outspecifically 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:]





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 plaintiff’s 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 .





Following the formal portions of the caption, a heading should be placed on the instrument

designating it as “Defendant’s Motion To Dismiss Plaintiff’s Complaint,” “Defendant’s Motion

To Strike Portions of Plaintiff’s 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.





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 thatdocument 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





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 mayuse 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





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 clerk’s

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 counsel’s 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 judge’s chambers several days prior to the hearing on such motion.

It is important to check each judge’s standing order to determine whether that judge prefers acertain 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.





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 hasdisposed 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).





II. AFFIDAVITS


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 andthose 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.





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 forsummary 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





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. Theinterrogatories 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 CivilProcedure, 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 personsauthorized 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.





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

affiant’s 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 acaption.

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 affiant’s 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





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 affiant’s

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 thefiling 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).





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 attorney’s fees, and any offending party or attorney may be adjudgedguilty 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.]





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


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 court’s 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 thewritten 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





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 court’s

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.

O’Bryant, 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 abuseddiscretion 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. Muellman-

Cohen 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.





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 generalorder 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 court’s oral ruling on a motion, it can often be difficult to concentrate on the preciseissues 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 court’s ruling. Counsel seeking to have

a trial court’s 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.





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 court’s 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 court’s ruling on the matter. It has been held, in Brandes v. Illinois Protestant

Children’s 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 Young’s 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)).





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 court’s 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 courtmakes 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.





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 andappellate 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 court’s 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).





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





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), aff’d, 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 Ass’n, 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 party’s well-

pleaded 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.





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 plaintiff’s 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 defendant’s minority or otherdisability; 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 well-

pleaded 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 plaintiff’s allegations. See Cain, supra.





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 ofavoiding 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.





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 unlimitedamendment.

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





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. HardinCounty 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 defendantsanswered, 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 plaintiff’s 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 Ass’n, 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





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 PriorPleading by Motion

A motion attacking the sufficiency of a pleading may point out to the adverse party the

defects in that party’s 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

plaintiff’s 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 beanticipated that the pleadings and admissions made by the whole record will demonstrate, as a

matter of law, that the plaintiff’s 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 thetime 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 defendant’s

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





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 adefendant 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 causeshown 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. ) No. ________________

)

________________________, )

Defendant. )

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.





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 plaintiff’s 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. Themotion may be dated, but the rules do not provide for dating. It is signed by the party or the

party’s 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 “substantiallyinsufficient in law,” the motion must specify where this insufficiency exists. 735 ILCS 5/2-

615(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.





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, themotion 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:


[Continue, following the same format, with motions

to dismiss subsequent counts that are deficient.]





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:


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).





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 _________.


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).





c. [11.58] Another Action Pending


There is another action pending between the same parties for the same cause as this

action.



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


The cause of action sought to be asserted in the complaint is barred by a prior

judgment.



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


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

____.







f. [11.61] Release or Discharge


The cause of action sought to be asserted in the complaint has been [released ] [satisfied

of record ] [discharged in bankruptcy].



g. [11.62] Statute of Frauds


The [claim] [demand ] sought to be asserted in the complaint is unenforceable under the

statute of frauds, ____ ILCS ____.



h. [11.63] Minority or Other Disability


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.



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:





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 §2-

612(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 plaintiff’s 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).





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 givesnotice 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.





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 5/2-615(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 afinal 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.





V. MOTIONS RELATING TO UNTRUE PLEADINGS


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 precludetheir 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 topay 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 thefiling 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 lawyer’s firm can also be

jointly and severally liable with the lawyer. Id.





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.

motions, affidavits, and orders

Documents