In its recent holding in Visvardis v. Ferleger, the First District Appellate Court expressed a strong preference for form over substance with respect to the proper designation of a motion to dismiss, and offered a warning for defense counsel weighing the distinction between two statutory provisions allowing for the dismissal of a complaint at the pleadings stage – 735 ILCS 5/2-615 and 735 ILCS 5/2-619. --- N.E.2d ----, 2007 WL 2163995, at *1 (1st Dist. July 27, 2007). Though the distinction between the two provisions seems clear enough – a 2-615 motion is based on a plaintiff’s failure to state a claim under which relief can be granted, while a motion under 2-619 deals with dismissal based on an affirmative matter – in practice, it is not uncommon for defense counsel to use the two interchangeably, or at least pay less-than-careful attention to the proper designation of the motion. And if a trial judge is willing to overlook the procedural defect and rule on the substance of the motion, the defendant’s error is harmless. Under Ferleger, however, if the defendant styles its motion under 2-615 when relying on an affirmative matter to defeat the claim, regardless of whether the trial court grants the motion based on the affirmative matter, the appellate court will confine its review to the standard for dismissal under 2-615, and a well-pled complaint that should technically be dismissed based on an affirmative matter will be allowed to proceed to discovery.
Ferleger, perhaps somewhat ironically, is an attorney malpractice case. The underlying matter involved a dispute between two brothers that had been co-owners of a business, with one asserting claims against the other for breach of fiduciary duty and fraud based on various acts of malfeasance and mismanagement. The defendants in the underlying case filed a motion for summary judgment, which the trial court granted, stating that the plaintiff, through his attorney, had failed to produce “a single fact” in response to the defendant’s motion. A motion to reconsider, supported by some 30 exhibits in a form that the court found to be disorganized and insufficient to create an issue of material fact, was not successful. The plaintiff eventually appealed, with different counsel, and the appellate court affirmed.
The plaintiff then sued the attorney that had represented him at the trial-court level for malpractice, alleging that the attorney had failed to sue all responsible parties, did not procure the necessary documents for the plaintiff’s expert to reach a conclusion regarding certain acts of wrongdoing, and did not produce the proper evidence in response to the motion for summary judgment. The trial court dismissed the plaintiff’s fourth amended complaint for malpractice, finding that, even if his attorney had not committed malpractice, the plaintiff would have lost his claim against the underlying defendants. The court noted that both the trial and appellate courts had “found the facts as alleged to be insufficient to sustain the case.”
The defendant attorney brought his motion under 2-615, but relied primarily on the appellate court’s affirmation of the trial court’s rejection of the plaintiff’s claims in the underlying action. As the appellate court reviewing the malpractice claim concluded, to the extent the defendant attorney argued that the plaintiff could not “relitigate a question that the appellate court has adjudicated against him in the underlying suit,” his defense “sound[ed] in collateral estoppel,” and 735 ILCS 5/2-619(a)(4) was the proper statutory authority for attacking a claim based on the preclusive effect of a prior judgment.
The court cautioned that “[m]eticulous practice requires proper designation of all motions. ” In the underlying suit, the plaintiff simply argued that the allegations in his complaint were sufficient to state a claim, which, as the appellate court noted, was all he was required to do in response to a 2-615 motion. And, said the court, even though the trial court in the malpractice case had dismissed the claim under 2-615, it relied on facts outside of the complaint when it cited the decisions of both the trial and appellate courts in the underlying action as support for its decision. The court concluded that this confusion deprived the plaintiff of an adequate opportunity to respond.
[Plaintiff] did not have an opportunity to respond properly to the mislabeled motion. Allowing the defendant to attack the complaint under section 2-619 after failing to file the proper motion would be unjust “because the purpose of the statute is to give the plaintiff an opportunity to cure the defect in the trial court.” (citing Rown v. Novotny, 157 Ill. App. 3d 691, 694, 510 N.E.2d 1111 (1987)). As [the defendant attorney] brought only a section 2-615 motion, and the court granted only a section 2-615 motion, we will confine our review to the standards for reviewing section 2-615 motions. Accordingly, we ignore all arguments based on facts not shown on the face of the complaint.
The appellate court went on to hold that the complaint had stated a cause of action for malpractice, and found that the trial court was without grounds to dismiss the complaint under 2-615.
At a minimum, the holding in Ferleger should encourage more careful practice on the part of defense counsel contemplating motions to dismiss. If trial courts are inclined to adopt the First District’s reasoning, relying on the proper statutory authority for a motion to dismiss will become every bit as important as the grounds for dismissal themselves.
