CBA Record

thereby allowing the movant to reassert the defense in its answer, as permitted under section 2-619(d); or (2) if the merits of the motion are to be decided (perhaps because, if granted, the entire case can be disposed of ), conduct an evidentiary hear- ing to determine whether the motion will ultimately be granted or denied. It is rea- sonable to surmise that, the more complex the factual dispute, the less likely the court will be inclined to entertain deciding it by invoking the evidentiary hearing option under section 2-619(c). When in doubt, a trial court might play it safe for all parties by denying the motion and permitting the movant to re-raise the defense in its answer under section 2-619(d). Conclusion The takeaway is tactically important from both defense and plaintiff perspectives. When a movant brings a section 2-619 motion, and no jury demand has been filed, the existence of material and genu- ine factual issues needed for deciding that motion does not guarantee the motion’s denial. Thus, a plaintiff needs to think proactively when filing a complaint and consider including a jury demand if, for no other reason, than to prevent a trial court from resolving contested issues of fact by way of an evidentiary hearing under sec- tion 2-619(c) when the defendant files its section 2-619 motion. Conversely, if no jury demand has been made, a defendant’s section 2-619 motion becomes a powerful weapon to dispose of a plaintiff’s case on the merits, giving the movant the ability to have a trial court actually decide contested issues of fact in connection with its motion to dismiss by way of an evidentiary hearing. Michael D. Richman is a partner in the Appellate Group at the Chicago office of Reed Smith. He has been involved in more than 100 appeals throughout his 36 years of practice

demonstrate the existence of a genuine and material factual issue regarding application of the interposed affirmative defense to the pleaded claim. And, if a timely jury demand is already in place, the motion can likely be defeated because genuine factual issues cannot, by virtue of section 2-619(c), be resolved via a section 2-619 motion. See Hertel v. Sullivan, 261 Ill. App. 3d at 160 (“court may not decide a disputed question of fact if a jury demand is filed.”). However, assuming no jury demand has been filed, the strategy becomes entirely different. That is because the mere existence of factual issues may not be enough to defeat the motion. Without question, the respondent must affirmatively challenge the movant’s evidence and, to be prudent, submit competing evidentiary materials. This can take the form of propounding written discovery, submitting affidavits and deposing the movant’s affiants or other relevant witnesses. But here, the stakes are higher, because even the existence of a fac- tual issue might not be enough to defeat the motion to dismiss. That is because one of the purposes of a section 2-619 motion is to resolve disputed facts. Thus, the movant will try to persuade the trial court to con- duct an evidentiary hearing to decide the disputed facts for resolution of the section 2-619 motion and, in the process, dismiss the plaintiff’s claims. Presented with material disputed facts, the trial court has several options to dispose of a section 2-619 motion: (1) deny the motion, but not on the merits,

the parties’ positions under oath through depositions early on and then at the hear- ing itself as witnesses. Defeating a Section 2-619 Motion What should a non-movant do proac- tively to defeat a section 2-619 motion? Assuming the ground raised is not purely a legal matter to be decided on the face of the pleadings, the respondent needs to LawPay is proud to partner with the Chicago Bar Association, and any Chicago Bar members who sign up for a LawPay account will get their first 3 months free.To learnmore or to get started, visit lawpay.com/cba/ or call 866/376-0950. Accept Client Credit Cards through LawPay Recommended by 46 state and more than 50 local bar associations, LawPay is proud to be the preferred payment partner of more than 35,000 law firms. Designed specifically for the legal industry, LawPay provides attorneys with a simple, secure, and online way to accept credit cards in their practice. LawPay understands the unique compliance and financial requirements placed on attorneys. The LawPay platform was designed to correctly separate earned and unearned payments, giving you peace of mind that your credit card transac- tions are always handled correctly.

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Standing over the entrance to the CBA Building is the male figure of Justice by sculptor Mary Block. The cast aluminum sculpture balances on the book of law while holding a bird (peace) in his right hand and a globe (the global nature of life) in his left.

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