MOTIONS TO DISMISS PURSUANT TO 735 ILCS 5/2-615 AND 2-619

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2. Distinguished From Section 2-615 Motions To Dismiss A 2-619 motion can be distinguished from a 2-615 motion in that a motion to dismiss under 735 ILCS 5/2-615 attacks only the legal sufficiency of the complaint and does not raise affirmative factual defenses, as does a motion under 2-619. Urbaitis v. Commonwealth Edison, 143 Ill. 2d 458, 575 N E 2d 548 (1991). ======================================================= PRACTICE TIP: “So What” Motions vs. “Yes, But” Motions In Winters v. Wangler, 386 Ill. App. 3d 788, 898 N.E.2d 776 (4th Dist. 2008) and Barbar-Colman Co. v. A&K Midwest Insulation Co., 236 Ill. App.3d 1065, 603 N.E.2d 1215 (4th Dist. 1992), the courts outline the differences between dispositive motions under Sections 2-615, 2-619 and 2-1005. The Winters court explains that 2-619 motions are sometimes called “Yes, But” motions because the defendant is saying “Yes, the complaint was legally sufficient, but an affirmative matter exists that defeats the claim.” By contrast, the court explains that 2-615 motions are sometimes called “So What” motions because the defendant is saying “So what The facts the plaintiff has pleaded do not state a cause of action against me.” ======================================================= 3. Distinguished From Section 2-1005 Summary Judgment Motions Although similar to a summary judgment motion, a section 2-619 motion differs in that the court may, in its discretion, decide questions of fact “upon the hearing of the motion.” Consumer Electric Co. v. Cobelcomex, Inc., 149 Ill. App. 3d 699, 703, 501 N.E.2d 156, 159 (1 st Dist. 1986). See also Barbar-Colman Co. v. A&K Midwest Insulation Co., 236 Ill. App.3d 1065, 603 N.E.2d 1215 (4th Dist. 1992) (listing five key differences between 2-619 and 2-1005 motions). 4. Affidavits And Other Evidence In Support Of 2-619 Motion Affidavits filed in support of Section 2-619 motions are controlled by Illinois Supreme Court Rule 191. Elliot v. LRSL Enterprises, Inc., 226 Ill. App. 3d 724, 589 N.E.2d 1074 (2d Dist. 1992). Rule 191(a) should be construed according to the plain and ordinary meaning of its language. Its requirements should be adhered to as written, Ribidoux v. Oliphant, 201 Ill. 2d 324, 337, 775 N. E. 2d 987 (2002), citing Bright v. Dicke, 166 Ill. 2d 204, 210. 652 N. E. 2d 275 (1995). An affidavit will be stricken if it does not have attached sworn or certified copies of all papers upon which the affiant relied, Robidoux, 201 Ill. 2d at 343, 775 N. E. 2d 987. Although the statute speaks only of supporting a 2-619 motion with affidavits, other evidence may also be submitted in support of the motion. Fremont Comp. Ins. Co. v. Ace Chicago Great Dane Corp., 304 Ill. App. 3d 734, 710 N.E.2d 132 (1 st Dist. 1999). Urban v. Loham, 227 Ill. App. 3d 772, 592 N.E.2d 292 (1 st Dist. 1992). 8
If the “affirmative matter” on which the Section 2-619 motion is based is not apparent on the face of the complaint, the motion must be supported by affidavit or other evidence. Kedzie and 103rd Currency Exchange, Inc. v. Hodge, 156 Ill. 2d 112, 116, 619 N.E.2d 732 (1993). If evidentiary facts asserted in an affidavit filed in support of a motion to dismiss are not refused by counteraffidavit, the court will take those facts as true, notwithstanding contrary unsupported allegations in the plaintiff’s pleading. Marriage of Kohl, 334 Ill. App. 3d 867, 877, 778 N.E.2d 1169, 1178 (1 st Dist. 2002); Pryweller v. Cohen, 282 Ill. App. 3d 899, 907, 668 N.E.2d 1144, 1149 (1 st Dist. 1996). By presenting adequate affidavits supporting the asserted defense, the defendant satisfies the initial burden of going forward on the motion. The burden then shifts to the plaintiff. A counteraffidavit is necessary to refute evidentiary facts properly asserted by the defendant’s affidavit supporting the motion, or else the fact are deemed admitted. If, after considering the pleadings and affidavits, the trial judge finds that the plaintiff has failed to carry the shifted burden of going forward, the motion may be granted and the cause of action dismissed. Kedzie and 103rd Currency Exchange, Inc. v. Hodge, 156 Ill. 2d 112, 116, 619 N.E.2d 732, 735 (1993). Accord Van Meter v. Darien Park District, 207 Ill. 2d 359, 377 799 N.E.2d 273, 284 (2003). 5. 2-619 Motion Resolves Issues Of Law Or Easily Proved Facts A motion under this section affords a means of disposing of issues of law or of easily proved facts at the outset of a case. Torcasso v. Standard Outdoor Sales, Inc., 157 Ill. 2d 484, 486, 626 N.E.2d 225, 226 (1992); Turner v. 1212 S. Michigan Partnership, 355 Ill. App. 3d 885, 823 N.E.2d 1062 (1 st Dist. 2005). If the defects are not apparent on the face of the pleadings, affidavits may be employed to bring affirmative matters to light which would bar the litigation. Cramsey v. Knoblock, 191 Ill. App. 3d 756, 764, 547 N.E.2d 1358, 1364 (4 Dist. 1989). This section affords a defendant an expeditious means to obtain a summary disposition of an action based upon an affirmative bar to the plaintiffs right to recovery. Mayfield v. Acme Barrel Co., 258 Ill. App 3d 32, 629 N.E.2d 690, 693 (1 Dist. 1994). 6. Deciding Issues Of Fact / Evidentiary Hearings Under 2-619 In resolving a Section 2-619 motion, “[a] court will take as true those facts in defendant’s affidavit supporting his motion to dismiss if the plaintiff fails to refute those facts in a counteraffidavit, notwithstanding contrary unsupported allegations in the plaintiff’s pleadings.” Pryweller v. Cohen, 282 Ill. App. 3d 899, 907, 668 N.E.2d 1144, 1149 (1 st Dist. 1996). If the affidavits presented on a Section 2-619 motion present disputed facts, and there is no jury issue or demand, the court may resolve disputed issues of fact through an evidentiary hearing. Consumer Electric Co. v. Cobelcomex, Inc., 149 Ill. App. 3d 699, 703-04, 501 N.E.2d 156, 159 (1 st Dist. 1986). See also Hernandez v. New Rogers Pontiac, Inc., 332 Ill. App. 3d 461, 773 N.E.2d 77 (1st Dist. 2002) (resolving 2-619 motion based on res judicata following an evidentiary hearing); Kirby v. Jarrett, 190 Ill. App. 3d 8, 13, 545 N.E.2d 965 (1989) (where the trial court conducts an evidentiary hearing on a Section 2-619 motion to dismiss, the appellate court will not reverse the court’s factual findings unless they are against the manifest weight of the evidence.) 9
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MOTIONS TO DISMISS PURSUANT TO 735 ILCS 5/2-615 AND 2-619

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