Lawless v. Central Production Credit Ass'n , 228 Ill. App. 3d 500 ( 1992 )

JUSTICE COOK,

concurring in part and dissenting in part:

I concur in the majority’s disposition of count II.

The supreme court has the power to enact rules governing proceedings in the trial court. (134 Ill. 2d R. 1; see also Ill. Rev. Stat. 1989, ch. 110, par. 1 — 104(a).) A majority of the circuit judges in each circuit may also adopt rules, but those rules must be consistent with the rules of the supreme court and with State statutes. (134 Ill. 2d R. 21(a); see also Ill. Rev. Stat. 1989, ch. 110, par. 1 — 104(b).) Individual trial judges have inherent power to deal with the cases before them (Bejda v. SGL Industries, Inc. (1980), 82 Ill. 2d 322, 329, 412 N.E.2d 464, 467; Terrill v. St. Louis Southwestern Ry. Co. (1987), 154 Ill. App. 3d 983, 986, 507 N.E.2d 1282, 1284), but they do not have the power to make rules of court. If each judge had the power to make his or her own rules, Supreme Court Rule 21(a), which directs that so far as practicable rules be uniform throughout the State, would be violated. (134 Ill. 2d R. 21(a).) An individual trial judge may establish procedures in a particular case which seem very much like rules, but those procedures take the form of orders, with notice to the parties. A trial judge may not simply assume those practicing in his or her courtroom know his “rules.” Of course, the parties did have some knowledge of the procedures employed by the trial court in this case.

The trial judge’s letter outlining his procedures leaves some unanswered questions. The procedures address the filing of briefs, but not the filing of affidavits. Will extensions of time be granted routinely, or only upon good cause shown? If the trial judge chooses not to allow oral argument will he so notify the parties, and will the nonmovant then have some additional time to file affidavits? If the trial judge chooses to have oral argument, the nonmovant should have until the time of the hearing to file counteraffidavits, by virtue of section 2— 1005(c) of the Code, notwithstanding the trial judge’s 14-day requirement for briefs. It is no answer that those regularly practicing before the trial judge know how these cases are handled.

Court rules must be reasonable, and less formal procedures in individual cases must be reasonable as well. (See People v. Adams (1983), 116 Ill. App. 3d 315, 320, 451 N.E.2d 1351, 1355.) Summary judgments should be granted only where there has been a fair and full opportunity to respond. (Midwest Bank & Trust Co. v. Village of Lakewood (1983), 113 Ill. App. 3d 962, 972, 447 N.E.2d 1358, 1364.) The 14 days allowed in this case for plaintiff to file a brief, and apparently counter-affidavits, was not a sufficient length of time. The time set for responding should approximate the reasonable time necessary for responding, and should not be justified by the possibility that the time may be extended. A procedure which makes it likely that parties will not respond is not a good procedure. (Compare Cannon v. Dini (1992), 226 Ill. App. 3d 82, 89 (reversing a Rule 103(b) (134 Ill. 2d R. 103(b)) dismissal), and dissenting opinion of Justice DiVito.) On their face the trial court’s procedures here favor movants, who have no deadline for the preparation of their briefs and affidavits.

Plaintiff should have sought an extension of time to file a brief and counteraffidavits in this case, preferably within the 14 days, but in any case as soon as possible. Still, the shortness of the time period chosen by the trial court greatly increased the potential for attorney error, especially in this case where the mail time to plaintiff’s attorney’s office was apparently six days. Attorneys cannot be expected to act immediately on every piece of mail which comes into their offices.

I am not convinced any problem with the 14-day period was cured by the fact that the trial court did not rule on the motion for summary judgment until 44 days after it was filed. After the 14 days had passed, plaintiff may have reasoned it was too late to request an extension of time (but see 134 Ill. 2d R. 183), and that the appropriate remedy was a motion to vacate. When the motion for summary judgment was not immediately ruled upon, plaintiff could have reasoned the court had decided to set it for hearing. Nor am I convinced that any problems with this procedure were resolved by the fact that plaintiff filed a motion to vacate, together with a brief and supporting affidavits. The trial court’s order simply says, “Plaintiff’s Motion to Vacate Summary Judgment is hereby denied.” There is no indication the trial court reconsidered its ruling upon the motion for summary judgment in light of the brief and affidavits.

While summary judgment is a useful procedure, “it is a drastic means of disposing of litigation.” (Purtill v. Hess (1986), 111 Ill. 2d 229, 240, 489 N.E.2d 867, 871.) Summary judgments should not be granted by default, but only where justified by the papers before the court. Ill. Rev. Stat. 1989, ch. 110, par. 2 — 1005(c) (“The judgment sought shall be rendered without delay if the [papers] *** show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law”); see Hibernia National Bank v. Administration Central Sociedad Anonima (5th Cir. 1985), 776 F.2d 1277, 1279 (summary judgment improper even if local rule violated by failure to respond).

Counsel have not cited any prior Illinois case which approves the granting of a motion for summary judgment without allowing the parties some opportunity for oral argument. The Code contemplates at least a hearing on a motion for summary judgment. (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 1005(c) (“The opposite party may prior to or at the time of the hearing on the motion file counteraffidavits” (emphasis added)).) The rules of the sixth circuit also contemplate a hearing. (6th Jud. Cir. R. 2.1(f), at 5 (eff. June 1, 1983) (a “motion for summary judgment shall not be heard until ten (10) days after service of the notice of motion under Supreme Court Rule 11” (emphasis added)).) We should be careful about approving a procedure so at odds with general practice. Supreme Court Rule 352(a) allows appellate courts to dispose of any case without oral argument as provided therein. (134 Ill. 2d R. 352(a).) No similar rule allows a trial court to dispense with oral argument as a matter of routine. In the Federal courts, oral argument is not required on a motion for summary judgment, but there must be an adequate opportunity to respond to the movant’s arguments. See Lujan v. National Wildlife Federation (1990), 497 U.S. 871, 910, 111 L. Ed. 2d 695, 730, 110 S. Ct. 3177, 3200 (Blackmun, J., dissenting, joined by Brennan, Marshall, and Stevens, JJ.).

Affidavits filed in the present case indicate that defendant Central Production Credit Association, and plaintiff’s employer, FmHA, work together in many areas; that plaintiff discharged a debt to defendant in bankruptcy; that Donald Cochran, defendant’s president for the area in question, told an FmHA official that because of plaintiff “they had taken a hit for $500,000”; that defendant had not had communication with FmHA’s Lawrenceville office since that time; that nothing could be done to resolve those differences; and Cochran’s “only suggestion was for [plaintiff] to be moved.” Robert Chambers, FmHA’s director for the State of Illinois, testified that defendant’s complaints about plaintiff were not the reason for plaintiff’s transfer or termination; the reason was an ongoing OIG investigation. The details disclosed by the OIG investigation (which as hearsay should not be considered in deciding this motion) might furnish strong support for defendant’s position that its comments were not the cause of plaintiff’s transfer, but a court cannot weigh evidence in deciding a motion for summary judgment; if an issue of material fact exists the motion must be denied. (Gatlin v. Ruder (1990), 137 Ill. 2d 284, 292-94, 560 N.E.2d 586, 589-90.) There is an exception where what is contained in the papers on file would constitute all of the evidence before the court at trial; in that event, if the evidence would be insufficient to go to the jury, the court should treat the motion as it would one for directed verdict. (Fooden v. Board of Governors of State Colleges & Universities (1971), 48 Ill. 2d 580, 587, 272 N.E.2d 497, 500; Pyne, 129 Ill. 2d at 358, 543 N.E.2d at 1308.) The ex parte proceedings in this case do not justify an assumption that the exception applies here.

I would reverse the summary judgment on count I, and remand for the trial court to conduct a hearing on the motion at which oral argument would be allowed.