By Colin H. Dunn
The common law’s hyper-technical pleading rules were often criticized for elevating form over substance. Strict enforcement of those rules by courts often led to “miscarries of justice.” 3 Ill. Prac., “Civil Procedure Before Trial” 22:6 (2nd ed.).
So decades ago, the General Assembly passed the Civil Practice Act (the predecessor to the current Code of Civil Procedure) to remove those common-law barriers that unfairly prevented the trial of a case on its merits. The act’s “liberal construction” philosophy meant that the rights of litigants would not rest upon “the technicalities of pleading and procedure.” McMillen v. Rydbom, 56 Ill. App. 2d 14, 29-30 (1965).
However, as the defendants recently found out in Reynolds v. Jimmy John’s Enterprises LLC, 2013 IL App (4th) 120139, it is still important to meticulously follow the procedures set out in the code.
In Reynolds, the plaintiff was injured by a Jimmy John’s delivery guy. According to the plaintiff, the delivery guy, in an effort to make his “freaky fast” delivery in 15 minutes per company policy, took a shortcut through several parking lots, failed to yield to traffic and collided with the plaintiff’s motorcycle. The plaintiff sued various Jimmy John’s corporate entities (he had settled with the driver), alleging they were directly liable for his injuries by failing to properly train and supervise the driver.
After the driver’s deposition was taken, the defendants filed motions to dismiss pursuant to Sections 2-615 “and/or” 2-619(a)(9) of the Code of Civil Procedure, attaching that deposition and other documents as exhibits in support of their motions. The defendants argued they did not owe a duty to supervise or train the driver, the plaintiff did not adequately plead facts to support such a duty and the plaintiff’s allegations were contradicted by the testimony of the driver. The circuit court granted the defendants’ motion.
That was incorrect motion practice, according to the 4th District Appellate Court. Reversing the circuit court, the 4th District noted that Section 2-619.1 of the code permits combined motions pursuant to Section 2-615, Section 2-619 and Section 2-1005, but that provision “explicitly requires that a motion combining both Sections 2-615 and 2-619(a) 1) must be in parts, 2) must ‘be limited to and shall specify that it is made under’ either Section 2-615 or 2-619 and 3) must ‘clearly show the points or grounds relied upon under the [s]ection upon which it is based.'” The defendants’ motions did not comply with those requirements.
Moreover, combined motions pursuant to Section 2-619.1 retain procedural distinctions between Section 2-615, Section 2-619 and Section 2-1005 based motions and parties are not free to ignore these distinctions. See Green v. Trinity International University, 344 Ill. App. 3d 1079, 1086 (2003). A Section 2-615(a) motion to dismiss tests the legal sufficiency of the complaint based on defects apparent on its face. Doe-3 v. McLean County Unit District No. 5 Board of Directors, 2012 IL 112479, Paragraph 15.
“In other words, the defendant in such a motion is saying, ‘So what? The facts the plaintiff has pleaded do not state a cause of action against me.'” Winters v. Wangler, 386 Ill. App. 3d 788, 792 (2008). A Section 2-615(a) motion presents the question of whether the facts alleged in the complaint, viewed in the light most favorable to the plaintiff and taking all well-pleaded facts and all reasonable inferences that may be drawn from those facts as true, are sufficient to state a cause of action upon which relief may be granted. Doe-3, 2012 IL 112479, Paragraph 16.
In ruling on a Section 2-615 motion, the court only considers 1) those facts apparent from the face of the pleadings, 2) matters subject to judicial notice and 3) judicial admissions in the record. Gillen v. State Farm Mutual Automobile Insurance Co., 215 Ill. 2d 381, 385 (2005).
On the other hand, Section 2-619(a)(9) of the code provides that a defendant may file a motion for dismissal of the action on the grounds “the claim asserted against defendant is barred by other affirmative matter avoiding the legal effect of or defeating the claim.” 735 ILCS 5/2-619(a)(9) (West 2010). Section 2-619(a)’s purpose is to provide litigants with a method of disposing of issues of law and easily proved issues of fact — relating to the affirmative matter — early in the litigation. Van Meter v. Darien Park District, 207 Ill. 2d 359, 367 (2003).
A motion for involuntary dismissal under Section 2-619(a)(9) of the code admits the legal sufficiency of the complaint, admits all well-pleaded facts and all reasonable inferences therefrom and asserts an affirmative matter outside the complaint bars or defeats the cause of action. Kean v. Wal-Mart Stores, Inc., 235 Ill. 2d 351, 361 (2009). In a Section 2-619(a) motion, the movant is essentially saying “‘Yes, the complaint was legally sufficient, but an affirmative matter exists that defeats the claim.'” Winters, 386 Ill. App. 3d at 792.
The standard articulation of an affirmative matter is “‘[A] type of defense that either negates an alleged cause of action completely or refutes crucial conclusions of law or conclusion[s] of material fact unsupported by allegations of specific fact contained [in] or inferred from the complaint … [not] merely evidence upon which defendant expects to contest an ultimate fact stated in the complaint.'” Smith v. Waukegan Park Dist., 231 Ill. 2d 111, 121 (2008) (quoting 4 Richard A. Michael, “Illinois Practice” Section 41.7, at 332 (1989)).
The Supreme Court has further described an affirmative matter as “some kind of defense ‘other than a negation of the essential allegations of the plaintiff’s cause of action'” ( Smith , 231 Ill. 2d at 120-21) and “‘something in the nature of a defense which negates the cause of action completely'” ( Van Meter, 207 Ill. 2d at 367).
An affirmative matter does not include “‘evidence upon which defendant expects to contest an ultimate fact stated in the complaint.'” Smith, 231 Ill. 2d at 121. In other words, an affirmative matter is not the defendant’s version of the facts, as such a basis merely tends to negate the essential allegations of the plaintiff’s cause of action. Howle v. Aqua Illinois, Inc., 2012 IL App (4th) 120207, Paragraph 34.
Accordingly, Section 2- 619(a)(9) does not authorize the defendant to submit affidavits or evidentiary matter for the purpose of contesting the plaintiff’s factual allegations and presenting its version of the facts. See Smith, 231 Ill. 2d at 121-22. Where a defendant seeks to address the complaint’s factual allegations, a summary judgment motion pursuant to Section 2-1005 of the code is the proper vehicle. Howle, 2012 IL App (4th) 120207, ¶ 37.
The court found that in addition to not meeting the technical requirements of Section 2-619.1, the “defendants improperly used Section 2-615 and Section 2-619(a)(9) to contest the sufficiency of factual allegations — as apparent from defendants’ use of facts outside the pleadings — the trial court erred in granting defendants’ motions to dismiss.” If the defendants wanted to challenge the plaintiff’s factual allegations, they had to do that either with a motion for summary judgment or at trial.
The court also rejected the defendants’ argument that Section 2-615 and Section 2-619 motions are similar to a motion for summary judgment pursuant to Section 2-1005 of the code (735 ILCS 5/2-1005 (West 2010)). A crucial distinction between a Section 2-615(a) motion and a summary judgment motion lies in what each motion assumes from the trial court: A Section 2-615(a) motion accepts all well-pleaded facts while questioning whether the pleadings sufficiently state a cause of action; in contrast, a motion for summary judgment challenges the facts and “assumes that a cause of action has been stated.” Mydlach v. DaimlerChrysler Corp., 226 Ill. 2d 307, 315 (2007).
Another distinction is a Section 2-615 motion considers only the facts on the face of the pleadings while a Section 2-1005 summary judgment motion goes beyond the pleadings to determine if the case presents an issue of fact. See 4 Richard A. Michael, “Illinois Practice” Section 38:3, at 308-12 (2d ed. 2011) (discussing relationship of summary judgment motion to other dispositive motions).
A Section 2-619(a)(9) motion shares procedural similarities with a summary judgment motion in that affidavits and other evidentiary matter is permitted to support the affirmative matter and a shifting burden of proof upon satisfaction of the defendant’s burden of producing an affirmative matter that completely bars the plaintiff’s cause of action.
A Section 2-619(a)(9) motion is not a substitute for a summary judgment motion. Malanowski v. Jabamoni, 293 Ill. App. 3d 720, 724 (1997). Section 2-619(a)(9) does not authorize motions asserting plaintiff’s essential allegations are “not true” — the motion accepts all well-pleaded facts as true — and is not a shortcut to resolve factual issues about the veracity of plaintiff’s essential allegations.
The court found that Section 2-615(a) and Section 2-619(a)(9) were not proper vehicles to contest factual allegations contained in the complaint. That’s what summary judgment (or a trial) is for. And despite the code’s “liberal construction” philosophy, “meticulous motion practice demand[ed] preservation of the distinctions between Sections 2-615, 2-619, and 2-1005.”