Litigation partner James Oakley has published a chapter on "Motions, Affidavits, and Orders" in the 2012 edition of "Illinois Civil Practice: Opening the Case." The handbook, published by the Illinois Institute for Continuing Legal Education, guides practitioners through the procedural maze of commencing a civil action in Illinois.

Oakley's 50-page article covers motions to strike, motions to dismiss, affidavits in support of motions, and much more. The article also includes frequent "practice pointers" on best practices when drafting and filing motions, affidavits, and orders. He co-authored the chapter with Richard Chapman, a litigator with Clark Hill in Chicago.

Oakley is a partner in the Business Litigation group and litigates disputes involving contracts for goods or services and promissory notes, as well as business torts, including fraud and tortious interference with contractual relationships. He also represents developers, contractors and material suppliers in mechanics' lien and bond claim matters and construction contract disputes.

This chapter was first published by IICLE® Press

I. MOTIONS IN GENERAL

A. [11.1] Scope of Discussion

In §§11.2 – 11.22 below, motions as a part of civil practice and procedure before trial are discussed. No effort is made to discuss the contents of special motions or the specific subject matter of the various motions that might be made. These sections are concerned only with the general rules applicable to all motions. Starting with §11.40 below, this chapter deals in detail with motions to strike and to dismiss and their uses. In addition, §§11.23 – 11.33 below discuss affidavits, and §§11.34 – 11.39 discuss orders.

Although Illinois practice permits motions to be made orally in court without notice, this chapter does not consider those motions but is limited to written motions. Further, the Illinois Code of Civil Procedure, 735 ILCS 5/1-101, et seq., and the Supreme Court Rules contain particular requirements for certain motions, such as motions for continuance and motions for summary judgment, in addition to the general rules regarding motions. The statutory provisions and rules concerning specific types of motions, particularly regarding special purpose motions, must be ascertained in detail in each instance. The purpose of this chapter is merely to cover those rules and procedures related to all motions in general.

B. [11.2] Nature and Use of Motions

The most frequent use for motions is objecting to pleadings as provided for in 735 ILCS 5/2-615 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 on it. Verlinden v. Turner, 351 Ill.App. 511, 115 N.E.2d 576 (1st Dist. 1953) (abst.). To be considered, motions must be made promptly and at the earliest possible time. Stein v. Automatic Electric Co., 152 Ill.App. 392 (1st Dist. 1910). Obviously, a motion can be made only if there is an action pending between parties, and it is further restricted to incidental matters in the progress of a particular case. Maiman-Hurwitz Manufacturing Co. v. Maiman, 247 Ill.App. 416 (1st Dist. 1928). Motions may request more than one kind of relief or relief in the alternative. Dross v. Farrell-Birmingham Co., 51 Ill.App.2d 192, 200 N.E.2d 912 (1st Dist. 1964); Klairmont v. Elmhurst Radiologists, S.C., 200 Ill.App.3d 638, 558 N.E.2d 328, 146 Ill.Dec. 365 (1st Dist. 1990).

A motion on which no order is ever entered or that is never called to the attention of the court presumably is waived or abandoned. Brandes v. Illinois Protestant 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.

C. [11.3] Basic Statutory Sections and Court Rules

Code of Civil Procedure §2-620 provides that the "form and contents of motions, notices regarding the same, hearings on motions, and all other matters of procedure relative thereto, shall be according to rules." 735 ILCS 5/2-620. Code of Civil Procedure §1-104(b) makes it clear that the reference to rules is "to the rules of the Supreme Court." 735 ILCS 5/1-104(b). That section goes on to provide that, subject to the Supreme Court Rules, the circuit courts may make rules "regulating their . . . business." Id.

Code of Civil Procedure §2-615 sets forth the general rules regarding the use of motions to object to other pleadings, and Code of Civil Procedure §2-619 sets forth the various reasons for which a complaint may be dismissed because of certain defects or defenses, all of which are to be raised by motion. Code of Civil Procedure §2-1005 governs motions for summary judgment.

The Supreme Court has adopted the following rules:

Rule 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 circuit court

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 the office of the attorney or, if a party is not represented by counsel, to the party personally by leaving it at the residence of the party with a family member over 13 years of age;

b. by depositing the motion in a United States post office or post office box enclosed in an envelope plainly addressed to the attorney (or the party if the party is unrepresented) at his or her business address or residence with postage fully prepaid;

c. by delivering them to a third-party commercial carrier — including deposit in the carrier's pick-up box or drop off with the carrier's designated contractor — enclosed in an envelope plainly addressed to the attorney (or the party if the party is unrepresented) at his or her business address or residence with postage fully prepaid; or

d. via facsimile machine to the office of the attorney or party who has consented to receive service by facsimile transmission. S.Ct. Rule 11.

S.Ct. Rule 11 does not authorize telephonic notice. Stewart v. Lathan, 401 Ill.App.3d 623, 929 N.E.2d 1238, 341 Ill.Dec. 159 (1st Dist. 2010).

COMMENT: S.Ct. Rule 11 specifically provides that one option for serving papers to opposing counsel is to deposit them in a United States mailbox. Interestingly, the First District Appellate Court has held that, while perhaps this rule should be revisited, Rule 11 does not forbid 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 paragraph 3 above and filed with the clerk. Even though such a procedure may not be required by the rules, it is a good practice, particularly when opposing counsel does not appear at the hearing on the motion. Filing proof of service of a copy of the order on opposing counsel will avoid any contention at a later date that counsel was not aware that the order had been entered.

E. Considerations of Procedure

1. [11.5] Motion as General Appearance

A motion that fails to attack the 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 answer or otherwise appear, but such objection may be raised alongside other motions seeking relief on other grounds. Deutsche Bank National Trust Co. v. Hall-Pilate, 2011 IL App (1st) 102632, 957 N.E.2d 924, 354 Ill.Dec. 330 (holding that defendant waived objection to personal jurisdiction in foreclosure proceeding in which it filed motion to stay approval of sale of property without also challenging 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 the objecting 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 the original 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 as required by this rule does not in any way impair the jurisdiction of the court over the person of any party." However, mere filing of a motion in the office of the clerk is not sufficient unless it is brought to the attention of the court, and the court is asked to rule on it. People v. Hornaday, 400 Ill. 361, 81 N.E.2d 168 (1948); Verlinden v. Turner, 351 Ill.App. 511, 115 N.E.2d 576 (1st Dist. 1953) (abst.). See also Richey Manufacturing Co. v. Mercantile National Bank of Chicago, 40 Ill.App.3d 923, 353 N.E.2d 123 (1st Dist. 1976), in which the court stated that a posttrial motion was abandoned when not called to the attention of the court, and Chand v. Schlimme, 138 Ill.2d 469, 563 N.E.2d 441, 150 Ill.Dec. 554 (1990), in which the Supreme Court of Illinois held that filing a notice of appeal was not an abandonment of the posttrial motion.

A party who has appeared and argued a motion cannot claim later that the court has no right to rule on the motion or that the motion was in fact not a motion or was not properly filed. Rush v. Johnson, 75 Ill.App. 234 (1st Dist. 1897).

4. [11.8] What Motions Must Be Noticed

As already noted, different circuits have different procedures for notification of hearings. In some circuits, notices are sent and settings are made by the clerk; in other circuits, there is a motion day; in still other circuits, the parties set the motion and send notice themselves. When practicing in an unfamiliar circuit, the attorney should check with the clerk to find out what the appropriate procedure is.

As a matter of general principle, the appearance of counsel for the adverse party and his or her participation in a hearing on a motion constitute a waiver of the requirement of notice of motion unless that appearance is made in some special fashion as provided for in 735 ILCS 5/2-301.

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