CBA Record April-May 2017

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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
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,
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
#FBF #CBAHistory
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aluminum sculpture balances on the
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