Illinois Law_Supreme Court-Foreclosure

7/31/2019 Illinois Law_Supreme Court-Foreclosure

1/45

COOK COUNTY NEW JUDGES PROGRAM

ILLINOIS SUPREME COURT RULES

April 24, 2003

Hon. Stephen A. Schiller These materials do not give comprehensive treatment to the Rules. Their intention is to describe the general purpose of theRules, and to treat a number of issues which frequently arise before trial judges.

I - The Role Of Rules -

SCR 1 provides:

General rules apply to both civil and criminal proceedings. The rules on proceedings in the trial court, together with the CivilPractice Law [735 ILCS 5/2-101 et seq.] and the Code of Criminal Procedure [725 ILCS 5/100-1 et seq.], shall govern allproceedings in the trial court, except to the extent that the procedure in a particular kind of action is regulated by a statuteother than the Civil Practice Law [735 ILCS 5/2-101 et seq.]. The rules on appeals shall govern all appeals.

The purpose of our Supreme Court rules is to facilitate the orderly disposition of the business of courts and to expedite theprompt administration of justice. (See Gibellina v. Handley (1989), 127 Ill. 2d 122, 134).

II - Conflict Between Supreme Court Rules And Legislation -

Under our constitutional form of government, the judicial branch will ultimately determine conflicts which may arisebetween the constitution and the activities of branches of government, and those which arise between branches of governmentconcerning their respective powers under the constitution. Marbury v. Madison (1803), 5 U.S. 137.

In speaking to the applicability of these principles, the Illinois Supreme Court has held that pursuant to the separation of powers clause of the Constitution of the State of Illinois (Ill. Const. 1970, art. II, Sec. 1), the legislature has the power to enactlaws concerning judicial practice which "do not unduly infringe upon the inherent powers of the judiciary." The court has


2/45

further determined that where enacted laws directly and irreconcilably conflict with a rule of the Supreme Court on a matterwithin the court's authority, the rule will prevail. Examples where such conflicts have been found are illustrated in:

People v. Cox (1980), 82 Ill.2d 268, where the court struck down a legislatively enacted process for the review of sentencesbecause of its conflict with the scope of review of sentences defined by SCR 615(b)(4).

OConnell v. St. Francis Hospital (1986), 112 Ill. 2d 273, which held that the Civil Practice Act (Section 2-1009), to the extentthat it granted plaintiffs' counsel an unrestricted right to non-suit a case and refile it, without regard to the status of thestatute of limitations at the time, conflicted with SCR 103(b), and thus violated the judiciary's constitutional prerogative toeffectively manage the courts' business.

Burger v. Lutheran General Hospital, 324 Ill. App.3d 743 (1st Dist. 2001), held that a statute's impact on patient privacy andon the courts' control of discovery of certain sections of the Hospital Licensing Act do not violate principles of separation of powers. The majority's opinion in Burger explains its distinction from the Court's holdings in Kunkel v. Walton, (1997) 179Ill.2d 519 and Best v. Taylor Machine Works, (1997) 179 Ill.2d 367. Those cases had held, however, that certain provisions of

the Civil Justice Act had overstepped the constitution's grant of power to the legislature. In those cases the legislation hadimposed discovery rules which the courts were responsible for administering which would have affected matters neithermaterial or relevant to pending claims.

III - Rules Of Construction -

SCR 2 provides that the rules of construction used to interpret enacted statutes and codes apply to the construction andapplication of Supreme Court Rules; i.e. consideration should be given, not only to the literal meaning of a rule, but itspurpose as well. See discussion People v. Fitzgibbon (1998), 184 Ill.2d 320, 325.

In applying or construing a Rule, it must be emphasized that a judge does not have greater discretion than he/she would havein dealing with legislative enactments. The Illinois Supreme Court has continuously stressed that it expect the Rules to becomplied with:

The rules of court we have promulgated are not aspirational. They are not suggestions. They have the force of law, and thepresumptions must be that they will be obeyed and enforced as written. Robidoux v. Oliphant, 201 Ill.2d 324, 332 (2002),citing Bright v. Dicke, 166 Ill.2d 204, 210 (1995)

IV - Conflict Between A Statute And Rules Or General Constitutional Principles Should Not Be Examined By The TrialJudge Unless Necessary To The Adjudication Of A Dispute -


3/45

In Hearne v. Illinois State Board of Education (1999), 185 Ill.2d 443, the circuit court had granted relief to an a petitioner inan administrative review proceeding both on the ground that the record did not support the administrative decision and thatthe code provisions under which the proceedings took place were constitutionally defective. the Supreme Court, citing Trentv. Winningham (1996), 172 Ill.2d 420, vacated the portion of the circuit court's judgment concerning the constitutionality of the School Code, reasoning that:

Circuit courts, however, should not compromise (the stability of the legal system) ... by declaring legislation unconstitutionalwhen the particular case does not require it.

...

Indeed, it is well established that questions regarding the constitutionality of statutes should be considered only whenessential to the disposition of a case, i.e., where the case cannot be determined on other grounds. (Citing Bonaguro v. CountyOfficers Electoral Board (1994), 158 Ill.2d 391, 396)

An additional rationale for the court's decision was reflected in its observation that to hold otherwise would invite more directappeals to the Supreme Court under SCR 302 in instances where the normal appellate process would suffice.

V - Proceedings In The Trial Court in Civil Cases -

A. PROCESS AND NOTICE -

1. SCR 103(b) - Dismissal Of An Action For Failure to Exercise Diligence In Obtaining Timely Service Of A Defendant -

The rationale for Rule 103(b) is explained in O'Connell v. St. Francis Hospital (1986), 112 Ill. 2d 273, 282, where the IllinoisSupreme Court stated:

Nothing is more critical to the judicial function than the administration of justice without delay. [citations omitted] Central todischarging this function, the judiciary must be unimpeded in considering and rendering judgments on matters before it.[Citations.] Rule 103(b) was adopted by this court to effectuate its historical and constitutional mandate to render justicefairly and promptly.

Due diligence in serving process is essential to this purpose, for it is the sole legally sufficient means of alerting defendants tothe pendency of a civil suit.


4/45

The rule does not establish a specific time frame within which service must be accomplished. Rather a party's diligence is tobe measured against objective factors. Cases discussing the significance of the passage of time and relevant factors to be usedin addressing motions under the Rule include:

Womick v. Jackson (1990), 137 Ill.2d 371; and Segal v. Sacco (1990), 136 Ill.2d 282.

Dismissal under the rule can raise substantial statute of limitation consequences affecting the right to refile under 735 ILCS5/13-217.

Rule 103(b) Prior to its 1997 Amendment provided that:

(b) Dismissal for Lack of Diligence. If the plaintiff fails to exercise reasonable diligence to obtain service prior to theexpiration of the applicable statute of limitations, the action as a whole or as to any unserved defendant may be dismissedwithout prejudice. If the failure to exercise reasonable diligence to obtain service occurs after the expiration of the applicablestatute of limitations, the dismissal shall be with prejudice. In either case the dismissal may be made on the application of anydefendant or on the court's own motion.

This rule was amended during 1997 to read:

(b) Dismissal for Lack of Diligence. If the plaintiff fails to exercise reasonable diligence to obtain service on a defendant, theaction as to that defendant may be dismissed without prejudice, with the right to refile if the statute of limitation has not run.The dismissal may be made on the application of any defendant or on the court's own motion.

The amendment gives the trial court the power to dismiss the case as to the tardily served defendant only, whereas theoriginal text gave the court the power to dismiss the action "as a whole or as to any unserved defendant". The language of theamendment may obscure the possibility of a subtle change in meaning. The right to refile, under the amended rule, is asagainst defendants for whom the statute of limitations has not run, presumably as of the time of refiling. The original textabsolutely precluded refiling only where statute of limitations ran before the plaintiffs failure to exercise reasonable diligenceto obtain service. Under the 1997 amendment, reasonable diligence is determined by looking at the plaintiff's efforts to obtainservice from the time of the filing of the complaint to the time service is obtained. The issue as when the statute of limitationsmay have run relates only to the question of whether the plaintiff may refile in the event of a dismissal. (See Rice v. FordMotor Company, (1st Dist. 2000) 316 Ill.App.3d 547. Therefore, under the amended rule, the right to refile is more limited.However, where the statute of limitations has not run, at the time of the dismissal, the dismissal must be without prejudice.Paige Myatt v. Mount Sinai Hospital (1st Dist. 2000), 313 Ill.App.3d 482.


5/45


6/45

The rule has been held to apply to lies contained in oral representations to a trial court by counsel seeking to justify a motionfor a continuance. Modern Mailing Sys. v. McDaniels (4th Dist. 1989), 191 Ill. App. 3d 347.

In addition, a successor attorney may be held accountable for filings made by his/her predecessor, if it is learned that apreviously filed pleading or document was not well founded in fact. In Nissenson v. Bradley (1st Dist. 2000), 316 Ill.App.3d1035, successor counsel, shortly after substituting in as plaintiff's counsel in a medical malpractice case, learned that the

doctor who had been named in the Section 2-622 certificate that had been filed with the complaint, denied that he had everstated that the defendant's conduct failed to meet the applicable standard of care, and denied the content of the certificatethat had been attributed to him. The lawyer failed to make any timely disclosure to either the court or the opposing lawyer.When these facts were subsequently learned, the trial judge imposed a sanction pursuant to SCR 137. In affirming theapplication of the sanction, the appeals court quoted the court in Walsh v. Capital Engineering & Manufacturing Co., 312Ill.App.3d 910 (2000):

Counsel cannot simply remain silent when faced with ... newly discovered information, file additional papers with the courtthat do not reveal the more recent discovery and by such silence allow court and opposing counsel to draw erroneous

conclusions or proceed on improper assumptions. Instead, once it appears that the prior factual allegation is in error, thismust be brought forthrightly to the attention of court and opposing counsel, at least in the next available court filing.

While the imposition or denial of sanctions under the rule is within the discretion of the trial judge and will not be reversedbarring abuse. (see Peterson v. Randhava (1st Dist. 2000), 313 Ill.App.3d 1; Estate of Smith v. Smith (3rd Dist. 1990), 201 Ill.App. 3d 1005) However, where there is a failure to fully appreciate a violation of the rule through the application of sanctions,appellate courts will remand a Rule 137 claim for further proceedings. E.g. Pitulla v. Novoselsky (1st Dist 1990); 202 Ill. App.3d 103. (Also see Pritzker v. Drake Towers (1st Dist. 1996), 283 Ill. App3d 587, holding that a party signing an affidavit musttake responsibility for any false statement knowingly or recklessly made, even if the affidavit was signed on the direction or

advice of counsel).When Sanctions are imposed, a judge must:

... set forth with specificity the reasons and basis of any sanction so imposed either in the judgment order itself or in aseparate written order.

Failure to make sufficient findings will likely result in a remand to the trial court. Airolen Capital Ventures, Inc. v. Petri (2dDist. 1994), 265 Ill. App. 3d 80.


7/45

The Timing Of A Petition For Rule 137 Sanctions: Courts have rejected the argument that a petition may only be broughtafter judgment is entered. This argument is based on the following language in the Rule:

... Motions brought pursuant to this rule must be filed within 30 days of the entry of final judgment.

The appellate court in Peterson v. Randhava (1st Dist. 2000), 313 Ill.App.3d 1, noted that Rule 137 is designed to help

expedite the litigation, and not merely to provide sanctions:... we do not believe a litigant should be required to mount a lengthy, costly defense against a harassing or untrue pleading, if such an expenditure of resources may be avoided (cite omitted). ... if one party to a lawsuit can demonstrate that the opposingparty pursued a false or harassing claim, Rule 137 does not require the trial court to defer resolution of the issue until theultimate disposition of the case.

The holding in Randhava does include a caveat. An early application for Rule 137 sanctions, notwithstanding the possibilitythat a petition may address a material fact alleged in a complaint, does not invite the trial court to, on its own motion, entersummary judgment against an offending party. In speaking of summary judgment pursuant to 735 ILCS 5/2-1005, the courtnoted:

...nowhere in the statute does it authorize the court to dispose of the case as a matter of law, absent a request by one of theparties. In fact, the statute (735 ILCS 5/2-1005) allows for the opposing party to file counter-affidavits before or at the time of hearing on the motion. These principles demonstrate that a motion for sanctions bears little resemblance to a motion forsummary judgment.

C. - Appearances and Time for Answers, Replies and Motions -

1. SCR 183 - Extensions of Time -

Rule 183 provides the trial court with the discretion to extend the time for filing any pleading or doing any act which isrequired to be done under the Rules. Discretion can be exercised only when a request is placed before the court through amotion. The motion can be made either before or after the expiration of the time within which the act in question is to beperformed. However the discretion afforded the trial judge is not unlimited. The Rule requires a showing of "good cause" forthe requested extension. The Supreme Court has emphasized that substantial compliance with this requirement is necessary.The assertion that a delay will not result in prejudice or inconvenience to an opposing party does not constitute a showing of "good cause". Bright v. Dicke, 166 Ill.2d 204, 209 (1995)


8/45

2. SCR 185 - Telephone Conferences -

Except as may be otherwise provided by rule of the circuit court, the court may, at a party's request, direct argument of anymotion or discussion of any other matter by telephone conference without a court appearance. The court may further directwhich party shall pay the cost of the telephone calls. In agreeing to such proceedings, it important for the trial judge to fullyconsider logistical details such as court reporting.

3. Rule 187 - Motions For Change Of Venue On The Ground of Forum Non Conveniens -

Sub-paragraph (a) requires that such motions be filed within 90 days after the last day allowed for the filing of an answer.

Although Supreme Court Rule 181(a) seems to require that, unless otherwise ordered, an answer is required "on or beforethe last day on which he (a defendant) is required to appear", the Court appears to have held that where the circuit courtdoes not set a date for the filing of an answer, the 90 day period provided for under the rule does not begin to run. See Millerv. Consolidated Rail Corporation (1996), 173 Ill.2d 252.

A motion to transfer venue or to dismiss on the ground of forum non-conveniens does not attack the jurisdiction of the court.The motion, therefore, is addressed to the discretion of the trial court, but is subject to review in the event discretion isabused. (See e.g. Meyers v. Bridgeport Machines Division of Textron, Inc. (1986), 113 Ill. 2d 112; Schoon v. Hill (1st Dist.1990), 207 Ill. App. 3d 601). It may relate to both inter- and intra- state issues.

In making its decision, the trial court must consider certain private and public factors. The Supreme Court defined applicablefactors in Bland v. Norfolk (1987), 116 Ill. 2d 217 and, Boner v. Peabody (1991), 142 Ill. 2d 523:

1) The relative ease of access to sources of proof;

2) The availability of compulsory process for attendance of an unwilling witnesses;

3) The cost of obtaining the attendance of willing witnesses;

4) The accessibility of a scene for possible viewing by a trier of fact;

5) Other problems that would make the trial of a case more difficult, and/or add to its duration and expense;

6) Any obstacles to a fair trial that might exist;


9/45

7) Any administrative difficulties which could flow from relative court congestion between competing venues;

8) Any local interest that might exist in having a controversy decided in a particular forum;

9) Interest in conserving finite judicial resources and the weight of the responsibility of jury service presented to an unrelatedforum; and

10) In inter-state forum non conveniens situations, the possible application of foreign law to the resolution of the matter.

Deference is to be given to the plaintiff's choice of a forum. That deference is to be substantial when the plaintiff chooses aforum within which he/she resides, (McClain v. Illinois Central (1988), 121 Ill. 2d 278).

Special note should be taken that motions brought pursuant to Rule 187 do not dispute jurisdiction within the venue that themotion is brought. Therefore, the Supreme Court has determined that in deciding a forum non conveniens question, the trial

judge should not consider factors which go to the issue of the court's jurisdiction. For example, in Vinson v. Allstate, (1991),144 Ill.2d 306, 312, the Supreme Court held that a trial court abused its discretion in considering the fact that the defendantdid business in the county where the case was pending in conjunction with other "private interests." Also see Evans v. MDCON, Inc. (1st Dist. 1995), 275 Ill. App.3d 292. Within the same context, see Hulsey v. Scheidt (1994), 258 Ill.App.3d 567, 578,which cited Franklin v. FMC Corp (1986), 150 Ill.App.3d 343, 348. In Evans, the court found that the presence of a registeredagent, an office, or a principal place of business are insubstantial links for forum non conveniens analysis; notwithstandingthe fact that they go to the issue of jurisdiction.

Where A Forum Non Conveniens Motion Is Granted, The Defendant Is Deemed to Have Waived Any Statute Of LimitationsDefenses If The Cause Is Filed In Another Forum -

Miller v. Consolidated Rail Corporation (1996), 173 Ill. 2d 252, dealt with a situation where the defendant had convinced thetrial judge that Madison County was an inconvenient forum. Defendant's motion under Rule 187 focused on Indiana as theappropriate venue. The plaintiff refiled the case in Missouri. After losing a forum non conveniens motion in that court, thedefendant filed a statute of limitations defense. Plaintiff returned to Madison County and moved to reinstate the case on theground that the defendant had violated the condition of that court's dismissal pursuant to Rule 187. Plaintiff argued thatunder SCR 187(c)(2)(i), the defendant must waive any statute of limitation defense in exchange for requested relief:

(2) Dismissal of an action under the doctrine of forum non conveniens shall be upon the following conditions:


10/45

...

(ii) if the statute of limitations has run in the other forum, the defendant shall waive that defense.

The court rejected the defense argument that the waiver language should only apply where a case is timely filed in the firstinstance and the statute of limitations runs while it is pending in the Illinois forum:

Although defendant views the condition in subdivision (c)(2)(i) as prejudicially requiring a waiver of the statute of limitationsdefense in another forum where it is a viable defense both in that forum and while the lawsuit was previously pending in theIllinois court which granted the dismissal for forum non conveniens. Defendant merely obfuscates the issue. In such instances,a defendant may successfully raise the statute of limitations in the first instance in the Illinois court and have the casedismissed.

D - Motions for Summary Judgments and Evidentiary Affidavits -

1. SCR 191 - Proceedings Under Sections 2-1005, 2-619, and 2-301(b) of the Code of Civil Procedure -

Rule 191(a) Governs The Time Within A Motion For Summary Judgment Can Be Brought -

Although concerned primarily with rules regarding affidavits, in 1992 the rule was revised to place discretion in the trialcourt regarding the timing of summary judgment and other dispositive motions. The Civil Practice Act (735 ILCS 2-

1005(a)&(b)) provides that a motion for summary judgment may be brought at "any time." Responding to what wasprobably observed by the Supreme Court as excessive use of summary judgment as a means for delay, rather than for

judicial economy, the court promulgated an amendment to the Rule. Rule 191 now provides, in abrogation of Section 5/2-1005, that such motions "must be filed before the last date, if any, set by the trial court for the filing of dispositive motions".

Rule 191 also governs the form and content of affidavits and other materials that can be considered by a trial court indetermining motions which require consideration of evidence, such as summary judgement (735 ILCS 5/2-1005), certainmotions under 735 ILCS 5/2-619, and some motions accompanying special and limited appearances attacking the jurisdictionof the court (735 ILCS 5/2-301(b)).


11/45

Affidavits considered on summary judgment must contain facts of which the affiant has personal knowledge, and whichhe/she would be competent to testify to at trial (Consolidated Freightways Corp. v. Peacock Eng'g Co. (1st Dist. 1993), 256 Ill.App. 3d 68). Matters asserted in an affidavit which the affiant would not be competent to testify to must be disregarded (E.g.An affidavit which asserts testimony that would have been barred at trial by the "Dead Man's Act" must be stricken, In reEstate of Levy (1st Dist. 1975), 27 Ill. App. 3d 362). The affidavit may not consist of conclusions Madeo v. Tri-LandProperties, Inc. (2d Dist. 1992), 239 Ill. App. 3d 288). Nor may statements predicated on "information and belief" be

considered as evidence for the purposes of Rule 191, Beattie v. Lindelof (1st Dist. 1994), 262 Ill. App. 3d 372). An affidavitpredicated on conclusions and information and belief can neither carry nor defeat a motion for summary judgment (Lackey& Lackey v. Prior (5th Dist. 1992), 228 Ill. App. 3d 397).

If the content of an affidavit is based on papers, the documents relied upon must be attached in the form of either certified orsworn copies. This would include the opinions of experts which are dependent on the content of reports that practitioners inthe witness' field would reasonably rely upon - (FRE 703, Brooks ex rel. Brooks v. Illinois Masonic Hosp. & Medical Ctr. (1stDist. 1992), 240 Ill. App. 3d 521). Where an affidavit refers to an exhibit, failure to attach the exhibit can be viewed as atechnical defect, as long as affiant swears to personal knowledge of the contents (Vavadakis v. Commercial Nat'l Bank (1st

Dist. 1988), 178 Ill. App. 3d 278). The holding in Vavadakis is very much in doubt given the Supreme Court's recent decisionin Robidoux v. Oliphant, 201 Ill.2d 324. In Robidoux, the Court held that a trial judge had properly stricken an expert'saffidavit which had been filed in response to summary judgment. The affidavit referred to various documents the expert hadconsidered in reaching his opinion. However, the documents were not actually submitted with the affidavit:

... this requirement is inextricably linked to the provisions requiring specific factual support in the affidavit itself. It is not amere technical requirement. Were we to relax the attached-papers requirement ..., we would be lowering the bar andallowing the avoidance of summary judgment whenever a party is able to produce an expert to support its position.Robidoux, 201 Ill.2d at 344.

The Court in Robidoux further sustained the trial court's denial of the plaintiff's request to file the necessary supplementalmaterials made after the affidavit was stricken and defendant's motion for summary judgment granted:

Robidoux, 201 Ill.2d at 346 quoting Gardner v. Navistar International Transportation Corp., 213 Ill. App.3d 242 at 248-249(1991)

Rule 191(b) does provide possible relief to a respondent to a motion for summary judgment where evidence necessary to meetthe motion is in the hands of the movant or other adverse parties.


12/45

An affidavit seeking relief under Rule 191(b) must specifically set forth the identities of persons whose testimony would benecessary to meet a motion, as well as the expected content of such testimony. Relief is available in the form of a continuance,and leave to take depositions or to use interrogatories, the content of which can be eventually considered on determination of a motion. (Also see 735 ILCS 5/2-1005 (c)). A general request for additional discovery is not sufficient to defeat or delayconsideration of a motion for summary judgment. An affidavit complying with SCR 191(b) is required (IntercontinentalParts, Inc. v. Caterpillar, Inc. (1st Dist. 1994), 260 Ill. App. 3d 1085.

E - Discovery, Requests for Admission, and Pretrial Procedure -

1. - SCR 201 - General Discovery Provisions -

Rule 201 provides an overview of discovery in civil cases. It discusses the substance of concerns that a trial judge mustaddress in taking responsibility for administering discovery and pretrial proceedings under SCR 218. There are two aspectsof the Rule that present recurring issues -

a) SCR 201(e) Sequence of Discovery - The rules do not mandate any particular order or sequence of discovery. In the eventof conflicts between the parties, the trial judge may use reasonable discretion in ordering a sequence of discovery; either in aSCR 218 order, or as individual problems are presented through motion practice.

b) SCR 201(k) Reasonable Attempt to Resolve Differences Required - The rule requires the parties to make a real effort toresolve discovery disputes. Under the rule, the court need take cognizance of a claim that an irreconcilable dispute exists onlyupon the representation of "counsel responsible for the trial of the case."

2. - SCR 202 - Purposes for Which A Deposition Can Be Taken -

The Rule broadly deals with the matter of both evidence and discovery depositions. Of particular note to the trial judge is thelanguage which provides that, barring the agreement of the parties, if an evidence deposition is to be taken within 21 days of trial, a discovery deposition is not permitted. The purpose of this provision is to mitigate against causes for delays because of difficulty in sequencing both discovery and evidence depositions. It is also consistent with the intent of SCR 218(c) that alldiscovery be completed not less than 60 days before trial.

3. - SCR 206 - Method of Taking Depositions on Oral Examination

An innovation of the 1996 amendment of the Rule is the durational limitation of subsection (d):


13/45

No discovery deposition of any party or witness shall exceed three hours regardless of the number of parties involved in thecase, except by stipulation of all parties or by order upon showing that good cause warrants a lengthier examination.

In most instances, where there are disputes regarding the duration of a deposition, a useful approach is to permit thedeposing party to begin the deposition with a three hour segment, thus creating a transcript which will give the court a betterbasis for determining whether the deposing lawyers are using their time effectively.

4. - SCR 207 - Signing and Filing Depositions - The 1996 amendment of the Rule eliminated any right on the part of adeponent to change a transcript, except where the text to be changed is "based on errors in reporting or transcription."

5. -SCR 212 - Use of Depositions - Illinois' Supreme Court Rules draw a sharp dichotomy between depositions taken for thepurpose of discovery and those which are taken for evidentiary purposes. Rule 212(a) curtails the use of discoverydepositions. The content of such a deposition can be used:

(1) for impeachment through the use of prior inconsistent statements;

(2) to demonstrate the otherwise admissible admissions of a party;

(3) where any content would meet any exception to the hearsay rule; and

(4) in lieu of an affidavit of the deponent.

In 2001, the Supreme Court added a new subpart (a)(5) to SCR 212. The new subsection opens the door to the use of discovery depositions of witnesses, other than parties and those called to give opinions, for evidentiary purposes. Such use of discovery weapons is subject to the sound discretion of the trial judge when the deponent is unable to "attend or testifybecause of death or infirmity", no evidence deposition of the witness is available, and the court finds that such use "will dosubstantial justice between or among the parties.

In Re Estate of Rennick (1998), 181 Ill.2d 395, the Supreme Court emphasized the distinction between a discovery depositionbeing used to place testimony before a trial court, and the use of an admission contained within a deponents discoverydeposition testimony. Rennick involved a malpractice trial against a lawyer who had died during its pendency. He had beendeposed prior to his death. The Court held that the trial court had erred in not permitting an admission made by the decedentduring the course of a deposition. It emphasized that the use of the admission is distinct from the use of any of the content of adiscovery deposition as testimony.


14/45

6. - SCR 213 - Written Interrogatories to Parties -

Written interrogatories produce numerous issues for the trial judges attention. Subsections of the rule deal most frequentlyaddressed in motions are:

a. Subsection (c) limits the number of interrogatories that may be served on a part to 30, including subparts. Any larger

number requires prior approval by the trial judge. Note should be taken of Subsection (j) which provides that the SupremeCourt may approve standard forms of interrogatories for different classes of cases. The Court has in fact approved sets of for:

(1) Making inquiry of plaintiffs in motor vehicle cases.

(2) Making inquiry of defendants in motor vehicle cases.

(3) Making inquiry in marriage dissolution cases.

(4) Making inquiry of plaintiffs in medical malpractice cases.

(5) Making inquiry of defendant doctors in medical malpractice cases.

(6) Making inquiry of defendant hospitals in medical malpractice cases. hospitals.

b. Subsection (d) provides that interrogatories must be responded to within 28 days of service. It also provides that particularobjections can be filed in lieu of an answer to one or more interrogatories. The objections stand as an adequate response untilsuch time as either the interrogating party or the respondent brings them before the court for ruling.

c. Subsection (f) - requires, that upon written interrogatory, a party must disclose the identity, location and subject of thetestimony of all witnesses who will testify at trial. Effective July 1, 2002, the Rule was amended so that opinion witnesses,formerly addressed under subsection (g) are now covered by subsection (f). The amended rule divides witnesses into threecategories:

(1) Lay witnesses -


15/45

(2) Independent expert witnesses - being a person who will be giving an expert opinion but is neither a party, employee of aparty nor retained by a party to give an opinion. A treating physician is an example of an expert who is likely to fall into thiscategory.

(3) Controlled expert witnesses - being persons who are either parties, employees of a party or persons who have beenretained to give an opinion.

With regard to the first two categories of witnesses, a response is sufficient if it gives reasonable notice of the testimony to beoffered taking into account limitations (or lack thereof) on the responding parties knowledge. Committee comments urge thatthe "reasonable notice" requirement be candidly observed and offered the suggestion that a disclosure that an intendedwitness would be testifying "about the accident" would be an inadequate response where the intended questioning mightinclude "the lighting and weather conditions at the time of the accident".

With regard to the third category, "controlled expert witnesses", a response must "identify: (i) the subject matter on whichthe witness will testify; (ii) the conclusions and opinions of the witness and the bases therefor; (iii) the qualification of thewitness; and (iv) any reports prepared by the witness about the case. These are the same as the requirements under the priorform of Rule 213(g) with one exception. Where the former 213(g) required that the respondent "provide all reports of theopinion witness" in order to fully comply with the Rule, the new Rule seems to only require the respondent to "identify ... anyreports prepared by the witness about the case". It is possible that no change was intended, since the commentary to theamendment does not discuss this modification in language.

The appellate court has found that there are circumstances under which a trial judge lacks the discretion to permit a witnessto testify, at least with regard to material matters, in the face of a failure to disclose pursuant to SCR 213(f). Even where it isclear that an objecting party had knowledge of the existence of a witness and the nature of the information that he may have,a witness may be excluded where there has been a failure to disclose the intent to call him/her as a witness:

Litigants have a right to rely, not only on the plain language of discovery rules, but also on the fact that courts will enforcethem. American Service Insurance v. Olszewski, (1st Dist. 2001), 324 Ill. App.3d 743.

Historically, permitting a previously undisclosed opinion to be admitted in evidence on a material issue will likely lead toreversal. (E.g. Parker v. Illinois Masonic Warren Barr Pavilion (1st Dist. 1998), 299 Ill. App3d 495). Recently, the SupremeCourt avoided ruling directly on the question as to whether an opinion by a party who had been deposed but had notdisclosed the opinion in either the deposition or in response to a Rule 213(g) interrogatory could be excluded from testifying.McMath v. Katholi (2000), 191 Ill.2d 251. In McMath, the court held that counsel for plaintiff, by arguing exclusion of theopinion under then repealed SCR 220, waived the right to raise an objection under 213(g) after the trial had been concluded.


16/45

In this context, it is important to note, however, that the July 1, 2002 amendment to Rule 213 added a subpart (k) whichseems to provide the trial judge with greater discretion:

"This rule is to be liberally construed to do substantial justice between or among the parties."

The commentary to this portion of the amendment stresses that "the purpose of the rule is to allow for a trial to be decided onthe merits". This principle, the commentary advises, should guide the court in determining what course of action to take inthe face of a discovery violation being addressed under Rule 219.

d. Subsection (g) which formerly addressed discovery relating to both lay and expert opinion witnesses has, effective July 1,2002, been substantially amended. All of the content related to opinion witness disclosure has been moved to subsection (f).Subsection (g) now addresses "Limitation on Testimony and Freedom to Cross-Examine"

The July 1, 2002 amendment to the subsection takes some content from the original subsection (i) of Rule 213. That portion of the rule provides that omission of information from a response to an interrogatory should not limit testimony where theinformation had been expressed in a deposition. The Rule further provides, that in the event of an objection, the partyoffering the testimony has the burden of proving that the matters in question have in fact been disclosed. This result isconsistent with Illinois case law and the intent that technicalities give way, at least in some respects, to substantial justicebetween litigants.

One court has held that opinions included in the pleadings or deposition testimony of an opposing party do not requiredisclosure under Rule 213(g). Renshaw v. Black (5th Dist. 1998), 299 Ill. App 3d 412. And the Supreme Court in Schultz v.Northeast Illinois Regional Commuter Railroad Corporation, 201 Ill.2d 260 (2002), held that evidence that an objecting partywas otherwise aware of an opinion could be found in arguments made during the course of a pretrial conference. Schultz, 201Ill.2d at 295-296.

The 2002 Amendment removed any constraints on a cross-examining party's eliciting opinions or information from a witnessthat had not previously been disclosed. The only limitation being, that in a case involving multiple paries, the cross-examiningparty is precluded from bringing out such undisclosed information, where his/her position is aligned with the party whooffered the witness in the first instance.

(e) Subsection (i) adds a duty to timely supplement or amend prior answers to interrogatories as new or better informationbecomes known to a respondent, thus eliminating the need for supplemental interrogatories. (See SCR 213(i))


17/45

7. - SCR 214 - Discovery of Documents, Objects and Tangible Things -

An often complained of discovery abuse is the lumping together of large numbers of documents in response to requests toproduce. In many instances documents not called for by the request may be produced as well, leading parties to complain thatthe intent of the respondent is to make discovery more difficult. The 1996 amendment to the Rule adds the requirement thatthe responding party:

... produce the requested documents as they are kept in the usual course of business or organized and labeled to correspondwith the categories in the request, and all retrievable information in computer storage in printed form.

It is not infrequent for a requesting party and respondent to dispute whether or not given requested materials exist. This kindof controversy can usually be resolved under the rule by permitting a sworn deposition to be taken of the responding partyregarding the materials, and or the requirement of an affidavit(s).

The 1996 version of SCR 214, like SCR 213(i), places the burden of a responding party to supplement his/her production asadditional materials are discovered.

8. - SCR 215 - Physical and Mental Examination of Parties and Other Persons - Prior to January 1, 1996, examinationspursuant to this rule were limited to those which would be conducted by a physician. The Rule has been expanded to include:

... examination by a licensed professional in a discipline related to the physical or mental condition which is involved.

9. - SCR 216 - Admission of Fact or of Genuineness of Documents -

This Rule is designed to take matters that cannot be seriously controverted out of a trial. If a party served with a request to

admit fails to respond within 28 days, the matters set forth in the request, or the genuineness of a document tendered aredeemed admitted. A response can come either in the form of an admission, sworn denial, a sworn statement as to why theresponding party cannot truthfully make an admission or denial, or objections as to the propriety of the request or specificparts of it.

An admission under Rule 216 is a judicial admission. The subject of the admission is virtually incontrovertible. However aparty can lose the benefit of such an admission by introducing evidence on issues which would otherwise be controlled by aRule 216 admission. See Rowe v. State Bank of Lombard (2d Dist. 1993), 247 Ill. App.3d 686.


18/45

The requirement that a party served with requests under this rule respond within 28 days is subject to SCR 183. Where aparty fails to either move adequately for an extension of time pursuant to that Rule, or serve proper responses within 28 days,the trial judge does not have the discretion to grant relief from the Rule. Further, the requirement that a response be sworn isabsolute. Where a party timely files a an unsworn response, the trial judge is without discretion to allow the filing of anaffidavit in support of the response absent a showing of good cause. Bright v. Dicke, 166 Ill.2d 204 (1995); Tires'n Tracks, Inc.v. Dominic Fiordirosa Construction Co., 331 Ill. App.3d 87 (2nd Dist. 2002).

The Purpose of SCR 216 goes beyond discovery and, in the interest of judicial economy, serves to limit issues to be tried byreaching ultimate facts -

In PRS International Inc. v. Shred Pax (1998), 184 Ill.2d 224, the Supreme Court concluded that requests to admit properlyinclude "any specified relevant fact." It rejected the argument that it does not include "ultimate facts." It emphasized thatthe purpose of the Rule is not limited to discovery:

Although requests to admit are often classified as a discovery device and treated as such in practice, the purpose of admissions is not to discover facts but to establish some of the material facts in a case without the necessity of formal proof attrial.

Failure to respond to requests for admission does not concede either the accuracy of asserted statements of the law nor admitbroad conclusory statements.

10. - SCR 218 - Pretrial Procedures - This rule, which was substantially revised effective January 1, 1996, places primaryresponsibility with the trial judge to manage the processing of pending cases. While the Rule permits each circuit to developmore particular rules, unless such rules exist and have been approved by the Supreme Court, SCR 218 provides:

... the court shall hold a case management conference within 35 days after the parties are at issue and in no event more than182 days following the filing of the complaint. At the conference counsel familiar with the case and authorized to act shallappear and the following shall be considered ... .

The rule enumerates matters to be considered at a case management conference. Subsection (c) requires that an order beentered following the case management conference which recites agreements and actions taken by the court. It furthercontemplates the scheduling of all discovery.

An amendment which became effective October 4, 2002 answered the question as to whether rebuttal witnesses need bedisclosed. The amendment to subsection (c) requires case management orders to schedule the disclosure of such witnesses.


19/45

The same amendment makes clear that the requirement that all witnesses be disclosed no later than 60 days beforecommencing trial may be waived by agreement of the parties without affecting the trial date.

11. SCR 219 - Consequences of Refusal to Comply with Rules or Order Relating to Discovery or Pretrial Conferences -

Rule 219 provides a structure for dealing with failures to comply with orders entered pursuant to SCR 218 as well as failuresto respond, or to respond in good faith, to properly promulgated discovery. Subsection (c) sets forth a range of possiblesanctions which increase in magnitude to either dismissing a claim brought by, or entering a judgment against an offendingparty. See Clymore v. Hayden (4th Dist. 1996), 278 Ill. App.3d 862.

Recently, however, the Supreme Court emphasized, that the extreme sanction of dismissal or exclusion of material evidencewhich is likely to determine the outcome of a case is to be imposed only where there is a finding of purposeful and essentiallycontumacious behavior. Shimanovsky v. General Motors Corporation (1998), 181 Ill.2d 112. In any event, it is important torecognize the need to conduct a complete hearing on the nature of the noncompliance of an offending party and the resultingprejudice to a moving party prior to imposing any sanction.

The Supreme Court has also held that Rule 219 can be used to reach pre-filing behavior of a party which has had the effect of destroying evidence which would likely be material in contemplated litigation:

... a potential litigant owes a duty to take reasonable measures to preserve the integrity of relevant and material evidence.This duty is based on the courts concern that, were it unable to sanction a party for the pre-suit destruction of evidence, apotential litigant could circumvent discovery rules or escape liability simply be destroying the proof prior to filing suit.(Shimanovsky v. General Motors Corporation (1998), 181 Ill.2d 112).

The adoption of subsection (e) in 1996 eliminated the possibility that an offending party could escape sanctions by nonsuitingand refiling:

A party shall not be permitted to avoid compliance with discovery deadlines, orders or applicable rules by voluntarilydismissing a lawsuit. In establishing discovery deadlines and ruling on permissible discovery and testimony, the court shallconsider discovery undertaken (or the absence of same), any misconduct, and orders entered in prior litigation involving aparty. The court may, in addition to the assessment of costs, require the party voluntarily dismissing a claim to pay anopposing party or parties reasonable expenses incurred in defending the action including but not limited to discoveryexpenses, opinion witness fees, reproduction costs, travel expenses, postage and phone charges.


20/45

Thus the rule adds significantly to the costs that can be considered as a condition for allowing a nonsuit pursuant to 735 ILCS5/2-1009. It does not, however impair the absolute right of a plaintiff to take a nonsuit, if the requirements of 735 ILCS 5/2-1009 are otherwise met. The Supreme Court in Morrison v. Wagner, (2000) 191 Ill.2d 162, corrected the appellate court'sdenial of a plaintiff's motion to nonsuit his complaint on the ground of discovery abuse. It stressed that Rule 219(e) "alters theconsequences of taking a voluntary dismissal rather than restricting a party's right to obtain such a dismissal."

At least one appellate court has concluded that the power to award costs Rule 219(e) is not intended to unduly burden aplaintiff's right, even for tactical reasons, to take a voluntary nonsuit. In Scattered Corporation v. Midwest ClearingCorporation (1st Dist. 1998), 299 Ill. App.3d 653, the court held that a condition to awarding the additional costs provided forunder the rule is a finding that the offending party has, in failing to respond to discovery, acted in a demonstrably deliberate,contumacious or unwarranted manner with disregard for the courts authority.

12. - SCR 237 - Compelling Appearance of Witnesses at Trial -

While Rule 237 remains essentially the same in most respects, the 1996 amendments made a significant change in subsection(b). That section deals with notices to parties to be available and/or to produce witnesses under their control at trial. The Rulepreviously permitted a party to also require the production of documents and tangible things at trial. The amendment to rulelimits such requests to "things previously produced during discovery."

F - Trials -

1. - SCR 231 - Motions for Continuance -

This rule governs motions for continuance. Although practice tends to be informal, the rule requires that a case reached fortrial be heard, "unless a sufficient excuse is shown for the delay" (SCR 231(f)).

Generally speaking, a motion for a continuance is addressed to the sound discretion of the trial judge. A movant cannotcomplain of abuse of discretion in the denial of a continuance in the absence of an adequate presentation which meets therequirements of Rule 231(a). (State Farm Mut. Auto. Ins. Co. v. Haskins (2d Dist. 1991), 215 Ill. App. 3d 242; c.f. Jack v.Pugeda (5th Dist. 1989), 184 Ill. App. 3d 66). A judge's abuse of discretion in denying a continuance may be subject to review.Duran v. Chicago & N.W. Ry. (1st Dist. 1975), 26 Ill. App. 3d 645). Granting a motion for a continuance is not a final andappealable order and will not be reviewed.

Reasons for a continuance may include the unavailability of counsel, a party, or a material witness. Rule 231(a) requires that

a motion demonstrate due diligence was used, identify the missing quantity, establish the materiality of any presently


21/45

unavailable evidence/testimony, and represent that, given a continuance, it is reasonable to believe that the witness/evidencewill be available. Obviously, it would be injudicious to grant a continuance if the court is not convinced the witness orevidence in question will be available at some reasonable point in time in the future.

A common sanction imposed when a plaintiff is unprepared for trial is the entry of an order of dismissal for want of prosecution (DWP). With regard to causes of action accruing prior to March 9, 1995, a dismissal for want of prosecution has

not been generally viewed as a final and appealable order (see Flores v. Dugan (1982), 91 Ill. 2d 108). The rationale for thisholding is that under 735 ILCS 5/13-217, an action dismissed for want of prosecution can be refiled within one year of thedismissal; even if the statute of limitations had run during the pendency of the dismissed action, or during the year followingdismissal. Of course, where a period of limitation in excess of one year remained for the claim, the plaintiff would be entitledto refile during the greater period. While the authority of Flores was expressly confirmed by the Supreme Court in its recentdecision in Vaughn Oil Company v. Caldwell Troutt & Alexander (1998), 181 Ill. 2d 489, the Court went on to hold that aDWP order does in fact become a final and appealable order at the time the right to refile under section 5/13-217 expires. Inso holding the Court acknowledged that its decision could produce an additional two years during which plaintiffs could fileapplications for reconsideration of such a dismissal through the use of Section 5/2-1401 petitions (735 ILCS 5/2-1401).

An additional caution should be considered in relation to dismissals for want of prosecution. Although a case which has been"DWPed" is not viewed as being disposed of on its merits under SCR 273, the Court has held that 735 ILCS 5/2-217 permitsonly one refiling, regardless of whether the applicable statute of limitations is still open. Flessner v. Young Development Co.(1991), 145 Ill.2d 252. Therefore, a dismissal of a second filing is final as between the plaintiff and the named defendants.However, if a subsequent filing, based on the same transaction names new defendants, and the statute of limitations is open,the case may be prosecuted, but only against the previously unnamed defendants. Saffold v. Concept I, Inc. (2000), 316Ill.App.3d 993.

2. SCR 234 Voir Dire - Examination of Jurors and Cautionary Instructions -

Effective May 1, 1997, language was added to SCR 234 which appears to extend to counsel a right to address questionsdirectly to potential jurors during voir dire:

The court shall conduct the voir dire examination of prospective jurors by putting to them questions it thinks appropriatetouching upon their qualifications to serve as jurors in the case on trial. The court may permit the parties to submitadditional questions to it for further inquiry if it thinks they are appropriate, and shall permit the parties to supplement theexamination by such direct inquiry as the court deems proper for a reasonable period of time depending upon the length of examination by the court, the complexity of the case, and the nature and extent of the damages. Questions shall not directly or


22/45

indirectly concern matters of law or instructions. The court shall acquaint prospective jurors with the general duties andresponsibilities of jurors.

This rule requires the trial court to take full responsibility for the conduct of voir dire examination. While the language of theamendment requires some right to direct inquiry by counsel, the trial judge is given great discretion in exercising reasonablecontrol over such questioning.

It should also be noted that Rule 234 also provides that:

Questions shall not directly or indirectly concern matters of law or instruction.

This language notwithstanding, questions concerning the law or a juror's ability to follow the law may be addressable whereit may go to a question of bias. See People v. Stack (1986), 112 Ill.2d 301 (dealing with a juror's ability to consider the insanitydefense), and Schneider v. Kirk (1967), 83 Ill. App.2d 170, (dealing with a juror's ability to accept the concept of strictliability in a dram shop case) However, voir dire can't be used as a means to educate and argue, see Limer v. Casassa (4thDist 1996), 273 Ill. App3d 300, 303 (dealing with effect of publicity regarding tort reform on a juror's thinking).

3. SCR 236. Admission of Business Records -

This rule, to a large extent, governs the business records exception to the hearsay rule in Illinois. It expressly excludes policeaccident reports. Such reports may, however be admissible under other exceptions to the hearsay rule (e.g. for impeachmentpurposes, (People v. Strausberger (2d Dist. 1987), 151 Ill. App. 3d 832).

4. SCR 239 - Jury Instructions -

Subsection (a) mandates that whenever the IPI contains an instruction that is applicable to a matter before a trial court, it"shall be used" unless the trial judge determines that it mistates the law. Snelson v. Kamm, 2003 Ill. Lexis 456, * 10 (March20, 2003). However, where opinions of the Appellate or Supreme Courts indicate a need for modification, a trial judge shoulduse an applicable instruction which has been modified in accordance with the caselaw. For example, see discussion in Snelsonregarding the proper use in appropriate cases of the term "loss of a normal life" in place of "disability" in damagesinstructions; consistent with the holding of the Appellate Court in Smith v. City of Evanston, 260 Ill. App.3d 925 (1st Dist.1994).

G - Entry Of Orders And Judgments -


23/45

1. SCR 273 - Effect of Involuntary Dismissal -

Rule 273 provides that unless an order of dismissal or an applicable code provision provides otherwise, any involuntarydismissal for reasons other than jurisdiction or venue, or nonjoinder operates as an adjudication on the merits. Thecharacterization of the dismissal is important because it can effect the right to refile, (see 735 ILCS 5/13-217), or theapplication of the doctrine of res judicata, both as against the parties to the original litigation as well as those possibly subject

to liability based on principles of vicarious responsibility.A narrow issue that frequently arises is whether a dismissal with prejudice of an action against an agent because of a statuteof limitation, usually through the application of SCR 103(b), 735 ILCS 5/2-619(5), or on summary judgment constitutes adisposition on the merits so as to bar an existing action against a principle predicated on the doctrine of respondeat superior.The Supreme Court of Illinois partially resolved this issue in Downing v. Chicago Transit Authority (1994), 162 Ill. 2d 70. InDowning the court acknowledged that the disposition of a complaint against an agent without an assessment of thesubstantive claims against him/her should not bar an action against the principle:

When a summary judgment is granted because the statute of limitations has run, the merits of the action are never examined.To label such an order as an adjudication on the merits would be the quintessential act of exalting form over substance.

Courts cannot ignore the basis on which the summary judgment was granted. If, as in this case, that basis bears norelationship to the actual merits of the case, it would be inappropriate to apply the doctrine of res judicata to another party tothe action.

By its holding the Court appeared to depart from a long line of cases which had held that the unfavorable disposition of thecases against the agent, regardless of the basis for the disposition, barred actions against the principle. (See Towns v. YellowCab Co. (1978), 73 Ill. 2d 113).

A caveat is in order. The majority opinion in Downing specifically reserved overruling Towns. While both the dispositions inDowning and Towns turned on a determination of a pretrial motion, the dismissal of the action against the agent in Downingwas on the basis of a summary judgment predicated on SCR 103(b), while the dismissal in Towns was a discovery sanctionunder then Rule 219(c). The majority in Downing noted that this distinction is important:

Rule 273 applies only to an involuntary dismissal of an action, such as what occurs when a motion to dismiss under section 2-615 or section 2-619 of the Code of Civil Procedure is granted. A summary judgment is not an involuntary dismissal.(Downing v. CTA)


24/45

Leow v. A&B Freight Line, Inc. (1997), 175 Ill.2d 176, apparently eliminated this distinction as to motions for summary judgment and dispositive motions turning on statutes of limitations under 735 ILCS 5/2-619(5). In Leow, the action against adefendant driver was dismissed through a ruling on a 2-619(5) motion. The driver's employer promptly moved to dismiss theearlier action filed against it on the grounds of res judicata. The Supreme Court overturned the trial court's dismissal of theaction against the employer stating:

... the fact that the employee in this case utilized a section 2-619 motion to dismiss rather than a motion for summary judgment, does not warrant a different result from that reached in Downing. ... To adhere to the policy behind Rule 273, aninvoluntary dismissal as to the employee, like a summary judgment, should not be automatically labeled a judgment on themerits with respect to the employer. But rather, as directed in Downing, the basis on which the judgment was granted shouldbe examined to determine whether the merits of the case were ever considered.

A note of confusion is introduced by the fact that while the Court was unanimous as to outcome, it was divided 4-3 on thebasis for the result. This controversy turns on the Court's holding in Rein v. David Noyes & Co. (1996), 172 Ill.2d 325. TheLeow majority noted that subsequent to the Court's decision in Downing, it held, in Rein, that a dismissal under 2-619(5), wasa disposition on the merits for the purpose of SCR 273. It concluded however that its decision in Leow was not inconsistent.The court found a significant distinction between the two cases in the fact that the defendants were different parties in Leow,while the defendants in consecutively filed actions were the same in Rein. Discussing cases decided under the Federal Rules of Civil Procedure (Rule 41(b)), the Court concluded that in a Rein situation, res judicata arises because the same issue has beendecided between the same parties, notwithstanding the fact that the particular issue does not go to the merits of the plaintiff'sclaim(s).

The remaining justices were of the opinion that a dismissal on statute of limitations grounds is a determination on the meritsunder SCR 273. However, they concluded that statute of limitations is a defense that is personal to the pleader. Therefore,such a dismissal is not dispositive of claims against third parties, even where the liability of the third party is predicated onrespondeat superior arising from the conduct of the dismissed party.

A trial judge, in some instances, can eliminate any issue by, when granting a motion to dismiss predicated on statute of limitations, including a finding in his/her ruling that the dismissal is not on the merits. See Walters v. Yellow Cab (1st Dist.1994), 265 Ill. App3d 331.

The Court has reached a consistent result in a line of cases where, like statute of limitation, the basis for dismissal has notincluded the merits of the substantive cause of action. In DeLuna v. Triester (1999), 185 Ill.2d 565, the Supreme Courtconcluded that a dismissal for failure to comply with 735 ILCS 5/2-622 (i.e. provide an opinion of a qualified expert as a partof a filing of a medical malpractice case), is a disposition on the merits:


25/45

In this case, Rule 273 fulfilled its intended purpose. Plaintiff knowingly defied a statutory pleading requirement, in order tochallenge the constitutionality of the requirement. Plaintiff could have requested leave to satisfy section 2-622, and/or refilehis complaint. He chose not to do so. Had Rule 273 not operated in precisely the manner intended, plaintiff could have refiledthe action yet again. The rule therefore preempted potentially needless litigation.

The Court went on to state, consistent with its holding in Leow, that dismissal of an agent on grounds personal to that party,does not necessarily mandate a dismissal of the an action brought against a principal predicated on respondeat superior. TheCourt went on to affirm the appellate court's rejection of the argument that the dismissal of the claim against Dr. Triesternecessarily required dismissal of a claim against St. Elizabeth Hospital predicated on Dr. Triester's conduct:

... a judgment against a plaintiff based on a defense personal to one defendant does not have a res judicata effect insubsequent litigation against a different defendant who might be vicariously liable. (Citing Restatement (Second) of Judgments @51 (1982).

The Court has also specifically found that a dismissal of a complaint for failure to state a cause of action constitutes adisposition on the merits, whether the dismissal was in an Illinois court or another forum. River Park, Inc. v. City of Highland Park (1998), 184 Ill.2d 290. In terms of res judicata, the River Park decision resolved that any further action by theplaintiff in the dismissed action would be barred as to any other claims that would depend on the group of operative factswhich gave rise to the dismissed action.

River Park marks Illinois rejection of the "same evidence test" and the recognition of the "transactional test" as the solemeans for apply the doctrine of res judicata:

... we hold that the same evidence test is not determinative of identity of cause of action. Instead, pursuant to the transactionalanalysis, separate claims will be considered the same cause of action for the purposes of res judicata if they arise from a singlegroup of operative facts, regardless of whether they assert different theories of relief.

A possibly recurring issue was addressed in response to a plaintiff's claim that the cause of action dismissed by a federal courtconstituted a federal claim, and therefore the dismissal should not bar the filing of a state claim. The Court concluded thatwhile the plaintiff could not invoke federal jurisdiction on the state claim alone, that having elected to file a federal claim, theplaintiff risked the loss of related state claims by not attempting to invoke the federal court's supplemental jurisdiction. TheCourt noted that in the event the federal court disposed of the federal claims, and declined jurisdiction as to the remainingstate claims, the plaintiff would have been left with those causes in tact for refiling in a state forum; but not for any additionalclaims which had not been pleaded in the federal court. This construction of River Park was subsequently confirmed by thecourt's decision in Nowak v. St. Rita High School (2001), 197 Ill.2d 381. Justice Harrison noted:


26/45

By declining jurisdiction over the plaintiff's pendent state claim, dismissing it for lack of jurisdiction, the district court ineffect reserved plaintiff's right to pursue the matter in state court. The doctrine of res judicata need not be applied in amanner inconsistent with fundamental fairness.

VI. Civil Appeals Rules -

A - APPEALS FROM THE CIRCUIT COURT -

1. SCR 303 - Appeals from Final Judgments of the Circuit Court in Civil Cases -

SCR 303(a)(1) governs the time within which a notice of appeal must be filed. The rule requires such a notice to be filedwithin 30 days after the entry of the final judgment appealed from, or within 30 days after the entry of an order disposing of atimely filed last pending post-judgment motion.

Subparagraph (a)(2) further provides that the filing of a timely post-judgment motion stays the period during which a noticeof appeal can be filed. However, the rule expressly provides that a motion for reconsideration of a ruling on a post judgmentmotion will not toll the running of the time within which a notice of appeal must be filed.

In a non-jury proceeding, it is clear that an initial motion to reconsider a judgment of the court will toll the period duringwhich a notice of appeal must be filed. It must be emphasized that such a motion must be "directed against the judgment" inorder to be effective. A post summary judgment motion to file an amended complaint pursuant to 735 ILCS 5/2-1005, forexample would not be sufficient to stay the 30 day filing period. Fultz v. Haugan (1971), 49 Ill.2d 131.

The vitality of the holding in Fultz was emphatically confirmed in the majority opinion of a sharply divided Supreme Courtin Berg v. Allied Security Inc. (2000), 193 Ill.2d 186. In Berg, the plaintiff filed a timely motion to reconsider a summary

judgment entered in defendant's favor, and in the alternative asked for leave to file an amended complaint. The trial courtdenied the motion to reconsider, but took the motion for leave to file an amended complaint under advisement. Subsequently,42 days after it had denied the motion to reconsider, it denied the motion to file an amended complaint. The plaintiff filed itsnotice of appeal four days later.

The Supreme Court held that the appellate court lacked jurisdiction to consider the appeal, since the 30 days during whichnotice of appeal had to filed ran from the denial of the motion to reconsider the previously entered summary judgment. It

concluded that the motion for leave to file an amended pleading, under Fultz, did not attack the judgment, therefore its


27/45

pendency did not stay the period of time during which a notice had to be filed in order to give jurisdiction to decide theappeal. The majority expressly rejected the argument that since 735 ILCS 5/2-1005(g) permits a court, as an alternative tosummary judgment, to allow the filing of an amended pleading, such an action by the court would necessarily defeatsummary judgment.

Although, not necessarily germane to the consideration of trial judges, it is of interest to note, that a question that furtherdivided the court was whether an appellate court could exercise its discretion to excuse compliance with the timely filing of notice of appeal requirement of Rule 303. The majority held that it could not.

2. SCR 304 - Appeals from Final Judgments that Do Not Dispose of an Entire Proceeding -

Rule 304(a) affords discretion to a trial judge to a make a disposition which is final, which adjudicates "fewer than all theclaims," "or the rights and liabilities of fewer than all the parties", an appealable order. Without such a determination by thetrial judge, such dispositions are not ordinarily appealable.

Without an express finding by the trial judge, a partial disposition of either claims filed or the rights of fewer than all partiesis not appealable. (Ariola v. Nigro (1958), 13 Ill. 2d 200; In re Air Crash Disaster (1st Dist. 1994), 259 Ill. App. 3d 231). Nomatter how clear the finality of a judgment as to fewer than all parties or all claims, without the clear statement of the tr ial

judge that there is no justice cause for delaying an appeal, the judgment is not appealable. People exrel. Ryan v. Rude WayEnterprises Inc., 326 Ill. App.3d 959 (1st Dist. 2001).

However, a trial court cannot use SCR 304(a) to grant a party a right to appeal an order which is not final. For example, inCabinet Serv. Tile, Inc. v. Shroeder (1st Dist. 1993), 255 Ill. App. 3d 865, the appellate court dismissed an appeal of the trialcourt's denial of a motion to dismiss a complaint, even though the court had entered a Rule 304(a) finding, (c.f. the power of the trial court to certify a question under SCR 308). It is important to recognize that for the purpose of jurisdiction under therule, "It is not the court's finding that makes the judgment final, but it is the court's finding that makes ... a final judgment(where fewer than all claims are disposed of) appealable." (See Virre v. Zayre Stores, Inc. (2d Dist. 1991), 212 Ill. App.3d505).

In general, each count of a complaint pleading distinct theories for the same injury may constitute a distinct claim for 304(a)purposes. See Carlson v. Moline Board of Education (3d Dist. 1984), 124 Ill. App.3d 967, where the complaint included threecounts for the same injury: structural work act violations, common law negligence and a violation of the school code. Where,however, the counts are not based on distinct theories, but rather on alternative forms of a single theory, (e.g. negligence)stated in separate counts, they do not state separate claims for the purpose of the rule. Rice v. Burnley (1st Dist. 1992), 230 Ill.App.3d 987.


28/45

The effect of a trial judge's determination that the dismissal of a count of a complaint should not be appealable under SCR304(a) cannot be avoided through the nonsuit of remaining counts without risking the loss of the nonsuited counts. TheSupreme Court recently decided, in Rein v. David A. Noyes (1996), 172 Ill. 2d 325, that the doctrine of res judicata wouldpreclude the refiling of counts nonsuited under such circumstances. In that case, the plaintiff failed to prevail on his appeal of the dismissal of the counts for which the court had denied a 304(a) finding. The Court emphasized:

..., an interpretation contrary to that reached here would emasculate Rule 304(a) by allowing a plaintiff to circumvent a trial judge's denial of a Rule 304(a) certification by refiling previously dismissed counts following an unsuccessful judgment orappeal on counts not previously appealed. Rein v. David A. Noyes (1996), 172 Ill. 2d 325, 343.

The rationale of Rein would be applicable only to counts that would have been barred by the doctrine of res judicata becausethey could have been decided on their merits if the nonsuited counts had gone to trial. See discussion of Torcasso v. StandardOutdoor Sales, Inc, (1993), 157 Ill. 2d 484 at 172 Ill. 2d 338.

However, where an order or finding which would not be appealable absent 304(a) language, becomes a final and appealableorder by virtue of a nonsuit of remaining portions of a case, the refiling of the case does not deprive an appeals court of

jurisdiction of any appeal which may have been filed in the interim by a defendant. In Dubina v. Mesirow RealtyDevelopment, Inc., (1997), 178 Ill.2d 496, following the plaintiff's nonsuit of his case, a nonsettling defendant appealed goodfaith findings regarding the settlement of other defendants in that case. While the appeal was pending, the plaintiff refiled.The court concluded that the refiling did not deprive the appellate court of jurisdiction to review the good faith findings madein the first action. Overruling the appellate court's opinion in Kleiman v. Northwestern Memorial Hospital (1st Dist. 1993),253 Ill. App.3d 47, the Court stressed that a refiled action is an entirely new and separate action, and not a reinstatement of the old action.

Note, the rule requires that the record clearly indicate a trial judge's determination that a question should be appealable.Language such as dismissal "with prejudice" is not sufficient. What is required is either direct reference to Rule 304(a) or tothe court's determination that there is no good cause for delaying appeal of the disposition of the cause of action or party inquestion. Phillips v. Brown, 107 Ill.2d 381 (2001).

Rule 304(b)(5) provides that any contempt order which imposes a penalty of any kind is a final and appealable order.

In addition, Rule 304(b)(4) provides that any order granting or denying post judgment relief prayed for in a petition pursuantto 735 ILCS 5/2-1401 is appealable. Recently, a divided (5-2) Illinois Supreme Court ruled that petitions for relief from void

judgments on the ground that the trial court lacked jurisdiction brought more than 30 days from the date of judgment areviewed as being brought under Section 5/2-1401. The majority also found that the requirements that petitions for relief be


29/45

filed within two years of judgment and that they brought without unreasonable delay set forth a meritorious defense do notapply to petitions attacking the jurisdiction of the court. Justice McMorrow in Sarkissian v. Chicago Board of Education, 201Ill.2d 95 (2002), a case where a petition for relief was filed by the defendant and granted by the trial court more than sevenyears after the entry of a default judgment, observed that Section 2-1401 a) eliminates all common law means for attacking a

judgment that is more than 30 days old, and at the same time provides in Section 2-1401 f) that:

Nothing entailed in this Section affects any existing right to relief from a void order or judgment, or to employ any existingmethod to procure that relief.

Accordingly, she concluded that subsection (f) was intended to preserve attacks on judgments based on jurisdiction in Section2-1401 without making them subject to the limitations provided on attacks which concede jurisdiction. The consequence of this analysis is that any ruling granting or denying petitions for this kind of relief is appealable under SCR 304(b); eventhough a favorable ruling on a petition may have reopened the underlying proceedings that the Section 2-1401 motion relatedto.

3. SCR 305 - Stays of Judgments Pending Appeal -

SCR 305 deals with the mechanics of stays pending appeal. Under the rule motions for a stay are to be made within the periodof time during which a notice of appeal can be filed. Ordinarily such motions must be first presented to the trial court.Application can only be made to a reviewing court in the event a stay is denied in the trial court or upon a showing that anapplication to the trial court would not be practical. (SCR 305(d))

The filing of a notice of appeal does not, in and of itself, deprive the trial court of jurisdiction to enforce its judgment. A stayof judgment can be the consequence of a statute or rule which is provided for by a legislative act or rule of court; e.g. SCR306(f). Or a stay can be the result of an order entered by a trial or reviewing court. In the absence of an automatic stay, thefailure of a party to seek and obtain a stay, permits proceedings on the judgment to continue, even during the pendency of theappeal.

In some instances, the failure to seek a stay may render an appeal moot. For example, where a party appeals a foreclosure orpartition which resulted in a sale which was confirmed by the trial court, absent a stay of the trial judge's confirmation of thesale, the interest acquired by the non-party purchaser cannot be attacked, even if the appellant were to prevail on his/herappeal (SCR 305(j). The sole exception to this rule being the instance where the underlying judgment is found to be void forlack of jurisdiction.


30/45

As harsh as this rule may seem, it is justified on the ground that there is a need to protect the "integrity and finality of property sales, including judicial sales." See discussion, Steinbrecher et. al. v. Steinbrecher, 197 Ill.2d 514 (2001). The four

justice majority in Steinbrecher emphasized:

Absent this policy, no person would purchase real property involved in a judicial proceeding, if afterwards he incurred thehazard of losing the property due to facts unknown to him at the time of the sale. A party may avoid the harshness of this ru leby complying with the procedural mechanisms available, such as a motion to stay enforcement of the judgment and sale.

4. SCR 306 - Appeals from Orders of the Circuit Court Granting New Trials and Granting or Denying Certain Motions -

Rule 306 permits litigants to petition the appellate court for leave to appeal certain non-dispositive orders:

(1) An order granting a new trial;

(2) An order either denying or allowing a dismissal or transfer of a case on the grounds of forum non conveniens;

(3) An order denying a motion to dismiss on the grounds of jurisdiction, where the plaintiff's claim of jurisdiction ispredicated on Illinois "long arm statute."

(4) An order granting or denying a motion for change of venue, where the only basis for claimed venue is defendant'sresidence.

(5) Some interlocutory orders which affect the care and custody of unemancipated minors.

(6) An order of the circuit court which remands the proceeding for a hearing de novo before an administrative agency;

(7) Effective December 31, 2002, orders either granting or denying class certification may be the basis for a petition for aninterlocutory appeal under Rule 306.

It is important to note that the granting of a petition by the appellate court under Rule 306 results in an automatic stay of allproceedings in the trial court. (SCR 306(f))

5. SCR 307 - Interlocutory Appeals as of Right -


31/45

Certain interlocutory orders are appealable as of right. These include dispositions on motion or petitions to appoint receivers,to issue or dissolve injunctions, to place a mortgagee in possession, etc. . It also applies to some child custody orders and, since1992, a denial of a petition for waiver of parental notice of abortion. Case law has further interpreted the Rule to include,within the meaning of appealable orders relating to injunctions, orders either granting or denying arbitration. Notaro v. Nor-Evan Corp., 98 Ill.2d 268 (1983), Federal Signal Corp. v. SLC Technologies, Inc., 318 Ill. App.3d 1101 (2001).

Although an order may mandate an action by a party, it may not be appealable under Rule 307(a)(1), if the trial judge'sdirection is ministerial or administrative in nature. In People v. Philip Morris, 198 Ill.2d 87 (2001), the Illinois Supreme Courtfound that a direction by the trial judge to deposit certain contested proceeds in an escrow account subject to further order of court was not subject to interlocutory appeal:

Such orders do not affect the relationship of the parties in their everyday activities apart from the litigation and, therefore,are distinguishable from traditional forms of injunctive relief.

There are special rules that apply to the perfection of the appeal of an interlocutory order. Specifically, with regard to TROs,it had been held that the provisions of Rule 307(a) which require that appeals of orders "granting, modifying, refusing,dissolving or refusing to dissolve or modify an injunction" must be perfected by notice of appeal filed within 30 days of theentry of the subject order, is applicable to TROs. Bohn Aluminum & Brass v. Barker (1973), 55 Ill.2d 177. Subsection (d) wasadded to Rule 307 in 1989. The added subsection provides specifically that review of orders "granting or deny(ing)" TROsmust be perfected by filing a petition in the appellate court, and notice of appeal in the trial court within two days of theorder. The Appellate Court for the First District in Friedman v. Thorson (1999), 303 Ill. App3d 131, held that the provisionsof 307(d), requiring perfection of appeal within two days, is also applicable to appeals of orders modifying or refusing tomodify TROs. It reached this conclusion predicated on its view that the spirit of the 1989 amendment was to carve outexpedited appeals rules specifically apropos to TROs. That purpose, the court found, would not be served if orders relating tomodification were not subject to expedited review.

Failure to pursue interlocutory review does not preclude the review, following a final judgment, of questions which couldhave been presented in an interlocutory appeal. Supreme Court Rule 307(a) speaks in permissive terms:

An appeal may be taken to the Appellate Court from an interlocutory order of court ... .

Therefore, the fact that an issue may be reviewable through an interlocutory appeal does not result in a requirement that theissue be appealed immediately or waived. The Supreme Court in Salsitz v. Fritz Kreiss, et al, 198 Ill.2d 1 (2001), held that theplaintiffs failure to perfect an appeal of the disposition of its petition to stay arbitration under Rule 307, did not waive theright to appeal the question of arbitrability following the final disposition of the case.


32/45

There are other instances, however, where failure to bring an appeal of an interlocutory ruling which is appealable underSCR 307 can result in a loss of right to appeal questions of law which were treated in the interlocutory ruling. For example,where there is a denial of a motion for a temporary restraining order or for a preliminary injunction on the ground that theunderlying complaint does not state a cause of action, failure to appeal the ruling under SCR 307(d) forecloses the right toappeal a subsequent dismissal of the complaint for failure to state a cause of action. In Strata Marketing, Inc. v. Murphy, etal, (1st Dist. 2000) 317 Ill.App.3d 1054, the trial court denied a motion for a temporary restraining order based on a claim

that one of the defendants was violating a noncompete clause. In making its ruling, the trial court held that the reason for thedenial was that the noncompete clause alleged in the complaint was facially unenforceable. The plaintiff subsequentlyappealed the dismissal of the complaint on a 735 ILCS 5/2-615 motion to dismiss. The appeals court held that since the earlierruling on the TRO had not been appealed, under SCR 307(d), the determination that the alleged noncompete clause wasunenforceable was the law of the case and was res judicata on that issue for the purpose of the motion to dismiss.

6. SCR 308 - Interlocutory Appeals by Permission-

The permission referred to under this rule, is that of the trial court. However, the trial court's permission notwithstanding,the appellate court has discretion to either allow or deny leave to appeal pursuant to this rule.

This rule imposes two criteria to justify an interlocutory appeal: first, there must be a substantial ground for difference of opinion; second, in the conjunctive, an immediate appeal may materially advance the ultimate determination of the litigation.(Eshaghi v. Hanley Dawson Cadillac Co. (1st Dist. 1991), 214 Ill. App. 3d 995).

Assuming that the criteria for such an appeal have been met, the trial judge has the responsibility for entering a written orderwhich clearly identifies the question of law that is being "certified." (Mirly v. Basola (5th Dist. 1991), 221 Ill. App. 3d 182).

In effect, a refusal of a trial judge to certify a question pursuant to Rule 308, precludes review of interlocutory orders, exceptwith regard to issues which can be raised under Rules 304 or 306.

7. SCR 366 - Powers of Reviewing Court - Scope of Review and Procedure -

Generally, a party may not urge error on review of any issue not presented in a timely post trial motion. (SCR 366(b)(2)(iii).This rule does not apply to either directed finding, summary judgments, nor, for that matter, the court's judgment afterhearing evidence in a non-jury matter. Therefore, where there has been no jury, and where there is no specific provision of


33/45

the law or rules which requires a post disposition motion, post trial motions are not required. See Mohn v. Posegate (1998),184 Ill.2d 540.

VII. Rules on Criminal Proceedings in the Trial Court

A - Waivers and Pleas -

1. SCR 401 - Waiver of Counsel -

There is a constitutional imperative that counsel be provided to any defendant in a criminal matter where there exists thepossibility of incarceration. (Argersinger v. Hamlin, 407 U.S. 25 (1972)). The Supreme Court's rule responds specifically tothe issue of waiver of this right.

Any waiver of counsel shall be in open court. The court shall not permit a waiver of counsel by a person accused of an offense

punishable by imprisonment without first, by addressing the defendant personally in open court, informing him of anddetermining that he understands the following:

(1) The nature of the charge;

(2) The minimum and maximum sentence prescribed by law, including, when applicable, the penalty to which the defendantmay be subjected because of prior convictions or consecutive sentences; and

(3) That he has a right to counsel and, if he is indigent, to have counsel appointed for him by the court.

The rule also requires that the required advice, and a defendant's responses thereto, be recorded.

The procedures mandated by this rule are not required where imprisonment is not in fact imposed. (See Scott v. Illinois, 440U.S. 367 (1979); and People v. Stahr (2d Dist. 1994), 255 Ill. App. 3d 624). However, it should be noted that imposition of evena suspended prison sentence which could later be imposed upon the violation of a condition or the occurrence of a subsequentevent, is sufficient to invoke the requirements of Rule 401. Alabama v. Shelton, 535 U.S. , 122 S.Ct. 1764 (2002)

2. SCR 402 - Pleas of Guilty -

In May of 1997 the caption and introductory paragraph of SCR 402 were amended to read:


34/45

Pleas of Guilty or Stipulations Sufficient to Convict -

In hearings on pleas of guilty, or in any case in which the defense offers to stip

Illinois Law_Supreme Court-Foreclosure

Documents

Transcript of Illinois Law_Supreme Court-Foreclosure