Robidoux v. Oliphant

JUSTICE KILBRIDE, dissenting:

I respectfully dissent from the majority’s sanctioning of summary judgment in this case when the trial court failed to comply with the mandates of section 2 — 1005 of the Code of Civil Procedure (the Code) (735 ILCS 5/2— 1005 (West 2000)). Specifically, the trial court granted summary judgment in this case without the benefit of “the hearing” specifically contemplated by the Code. See 735 ILCS 5/2 — 1005(c) (West 2000).

Before setting out my opposition to the fundamental, procedural flaw in this case, I note my disagreement with the majority’s interpretation of Rule 191’s attachment requirement as it relates to the rule’s particularity requirement. The linchpin of the majority’s ultimate conclusion is that plaintiff’s original affidavit failed because the plaintiff did not attach documents in support of the affidavit. If all other matters were equal, the majority’s conclusion on that point would be correct. I contend, however, that all else was not equal and that the plaintiff was not afforded a level playing field.

The attachment issue was first raised by the defendants after plaintiff filed the original affidavit in opposition to the summary judgment motion. The defendants’ supplemental replies and motions to strike alleged that the plaintiff’s affidavit was improper and in violation of Supreme Court Rule 191. The supplemental pleadings in reply were filed the day before the trial judge granted summary judgment. Without affording the plaintiff any opportunity to respond to the new objections, the next day the trial court struck plaintiffs affidavit. After striking plaintiffs affidavit, the trial court then reasoned that summary judgment for defendant was inescapable because plaintiff had, in effect, presented no opposition to the summary judgment motion. In short, the trial court permitted the defendants to blindside the plaintiff by ignoring the summary judgment hearing requirement and depriving the plaintiff of the right to file a counteraffidavit or otherwise respond to the defendants’ supplemental filings.

Section 2 — 1005 unequivocally contemplates a hearing on summary judgment motions. Section 2 — 1005 provides that the “opposite party may prior to or at the time of the hearing on the motion file counter affidavits. ’ ’ (Emphasis added.) 735 ILCS 5/2 — 1005(c) (West 2000). If there is no hearing, how can the deadline for filing counteraffidavits be established? Section 2 — 1005 plainly grants the opposing party the right to present counteraffidavits at the time of the summary judgment hearing. Here, the opposing party (plaintiff) did not receive the benefit of a hearing where he might have cured any defects in the original response and affidavit.

The majority explains that the lack of a hearing in this case is of no moment because the local circuit court rules permit oral hearings on a discretionary basis and plaintiff waived the issue. I disagree with both of these reasons. First, it is inexplicable how the majority can countenance the usurpation of a statutory requirement by a local circuit court rule. The procedural requirements of section 2 — 1005 are plain and simple legal requirements, binding upon all Illinois trial courts.

Second, on the issue of waiver, we may consider issues not properly preserved by the parties in order to ensure a just result. Geise v. Phoenix Co. of Chicago, Inc., 159 Ill. 2d 507, 514 (1994). Summary judgment is a drastic means of disposing of litigation and the court has a duty to construe the record strictly against the movant and liberally in favor of the nonmoving party. Gilbert v. Sycamore Municipal Hospital, 156 Ill. 2d 511, 518 (1993). Moreover, summary judgment should be entered only when the right of the moving party is clear and free from doubt. Gilbert, 156 Ill. 2d at 518 .

In this case, waiver should not have been relied upon by the majority because of the procedural irregularities that occurred below. The trial court should have allowed plaintiff the opportunity to respond to defendants’ supplemental objections, filed the day before it awarded summary judgment to defendant. The trial court procedure used here is tantamount to blindfolding the opponent and then asking the opponent to shoot at a moving target. In addition, while plaintiff’s arguments concerning the lack of a hearing on the summary judgment motion were not raised in a written motion, those arguments were raised before the trial court by plaintiff during oral argument on the motion to reconsider. Because plaintiff afforded the trial court the opportunity to correct its own error, the rationale behind the waiver rule is not present. See People v. Segoviano, 189 Ill. 2d 228, 253 (2000) (Rathje, J., specially concurring); In re Marriage of Houghton, 301 Ill. App. 3d 775, 780 (1998); see also People v. Williams, 173 Ill. 2d 48, 85 (1996) (application of the waiver rule is less rigid where the basis for the objection is the trial court’s conduct).

Furthermore, I also disagree with the majority’s decision regarding Rule 191 because of the practical implications of the majority’s interpretation of the attachment requirement. Although I agree with the majority that the attachment requirement is more than a mere technicality, I do not believe that we should blindly demand strict compliance. Rather, the attachment of documents should be enforced with an eye towards the practicalities of managing a court file. For instance, at oral argument, plaintiff’s counsel clarified that the same documents relied upon by the plaintiffs doctor were already filed of record. Why then should we require duplicative filings of the same documents relied upon by multiple parties in support of or in opposition to a summary judgment motion? A party should be permitted to comply with the attachment provision by incorporating by reference the identification of the pertinent papers.

Finally, on a minor point of reference by the majority, I also respectfully object to the notion that a litigant’s right to trial could be equated with a “ ‘free pass to trial’ ” (201 Ill. 2d at 344, quoting Hayes v. Douglas Dynamics, Inc., 8 F.3d 88, 92 (1st Cir. 1993)). If anything, the “free pass” in this case is the unwarranted grant of summary judgment and the defendants’ pass from trial. Every litigant is entitled to a trial and that right may only be denied by summary judgment when the right of the moving party is clear and free from doubt. Gilbert, 156 Ill. 2d at 518 .

Accordingly, for the reasons set forth in this separate opinion, I respectfully dissent.

CHIEF JUSTICE HARRISON joins in this dissent.