BEFORE THE HEARING BOARD
ILLINOIS ATTORNEY REGISTRATION
In the Matter of:
Commission No. 07 CH 16
On January 17, 2008, the Chair entered an Order ruling on a Motion for Summary Judgment filed by Respondent on November 30, 2007. Certain of the Administrator's exhibits attached to his Objection to Respondent's Motion for Summary Judgment were stricken and he was given leave to file an Amended Objection to Respondent's Motion for Summary Judgment. In that Order, the Chair wrote:
…After a motion for summary judgment is filed, the nonmoving party must present a factual basis that would arguably entitle him to a judgment. The factual basis must be properly substantiated, which requires compliance with Supreme Court Rule 191(a). Robidoux v. Oliphant, 201 Ill. 2d 324, 335, 775 N.E.2d 987 (2002). Rule 191(a) provides that "affidavits in support of and in opposition to a motion for summary judgment . . . shall be made on the personal knowledge of the affiants; shall set forth with particularity the facts upon which the affiant relies; shall not consist of conclusions but of facts admissible in evidence; and shall affirmatively show that the affiant, if sworn as a witness, can testify competently thereto." The Court has stated that the Supreme Court Rules, including Rule 191(a), "neither are aspirational nor are they mere suggestions; ‘they have the force of law, and the presumption must be that they will be obeyed and enforced as written.'" Robidoux, 201 Ill. 2d at 340, quoting Bright v. Dicke, 166 Ill. 2d 204, 210, 652 N.E.2d 275 (1995).
In the present case, the Administrator failed to present any affidavits or authenticated documents to support his objection to Respondent's Motion for Summary Judgment. Accordingly, the Administrator has failed to present a factual basis that would entitle him to judgment…
The Administrator filed an Amended Objection to Respondent's Motion for Summary Judgment on February 5, 2008, which he concluded by stating that "The Respondent's motion should be denied because the Administrator had pled a cause of action if proven that fits within the definition of fraud and there is a question that will be best resolved by the panel hearing the testimony of parties and weighing the evidence as a whole." The Administrator attached three exhibits to his Amended Objection, together with an Affidavit in which the affiant swears that Exhibits 1 and 2 are true and correct copies of certain Installment Contracts for the Sale of Real Estate, and Exhibit 3 is a true and correct copy of a May 18, 2001, letter written by the Regional Counsel for the U.S. Department of Veterans Affairs, the essence of which is his opinion as to the legal effect of certain real estate transactions which involve the substance of the charges against Respondent.
Subsequently, on the Chair's order, a full Hearing Panel was designated to consider and rule on the pending Motion for Summary Judgment.
Notwithstanding the Chair's statements in the quoted paragraphs above, that the nonmoving party in the case of a Motion for Summary Judgment must present a factual basis that would arguably entitle him to a judgment, and, quoting the Supreme Court, that the Supreme Court Rules, including Rule 191(a), "neither are aspirational nor are they mere suggestions; ‘they have the force of law, and the presumption must be that they will be obeyed and enforced as written,'" the Administrator chose not to support the allegations of the Complaint by affidavits (or by other means, such as by discovery depositions and/or subpoened documents), or by reference to admissions in the Respondent's Answer, if any, but, instead, expressed his view (manifestly rejected by the foregoing Supreme Court quotation), that "…(t)he Respondent's motion should be denied because the Administrator had pled a cause of action if proven that fits within the definition of fraud and there is a question that will be best resolved by the panel hearing the testimony of parties and weighing the evidence as a whole."
By failing to take advantage of the opportunity to file an amended response to the Motion for Summary Judgment with appropriate factual support, the Administrator compels us to rule on the Motion on the basis of the record as it now stands. In declining to oppose the Motion with such factual support, the Administrator does not engage in a mere technical failure to comply with Rule 191(a); he leaves us with no alternative but to grant Respondent's Motion for Summary Judgment. Other than the unsupported allegations of the Complaint, there is no basis by which we can conclude the Administrator would arguably be entitled to a judgment.
We are mindful that the Administrator may very well have been able to overcome the burden of Rule 191(a) and have established that there exists an arguable issue of fact that would justify a trial on the merits, but he did not do so. ARDC Hearing Panels are obligated to decide matters of law and fact in accordance with applicable rules and legal principles, and we do so in this case, based on the record and pleadings presented by the parties. Accordingly,
IT IS ORDERED that Respondent's Motion for Summary Judgment is granted and judgment in favor of Respondent be, and is hereby, entered.
Date Entered: April 17, 2008
|Michael C. Greenfield, Chair, Panel Members Tiffany M. Ferguson and Kenneth A. Peters concurring|