Doe v. Coe

2017 IL App (2d) 160875
No. 2-16-0875
Opinion filed August 17, 2017
_____________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT
______________________________________________________________________________

JANE DOE, a Minor, by her Mother and Next ) Appeal form the Circuit Court
Friend, Jane A. Doe, and by her Father and ) of Kane County.
Next Friend, John Doe; JANE A. DOE, )
Individually; and JOHN DOE, Individually, )
)
Plaintiffs-Appellants, )
)
v. ) No. 15-L-216
)
CHAD COE; THE FIRST )
CONGREGATIONAL CHURCH OF )
DUNDEE, ILLINOIS; PASTOR AARON )
JAMES; THE FOX VALLEY ASSOCIATION )
ILLINOIS CONFERENCE OF THE UNITED )
CHURCH OF CHRIST; THE ILLINOIS )
CONFERENCE OF THE UNITED CHURCH )
OF CHRIST; THE UNITED CHURCH OF )
CHRIST; THE GENERAL SYNOD OF THE )
UNITED CHURCH OF CHRIST; and THE )
UNITED CHURCH OF CHRIST BOARD, )
)
Defendants )
)
(The Fox Valley Association Illinois )
Conference of the United Church of Christ; the )
Illinois Conference of the United Church of )
Christ; the United Church of Christ; the General )
Synod of the United Church of Christ; and ) Honorable
the United Church of Christ Board, ) James R. Murphy,
Defendants-Appellees). ) Judge, Presiding.
______________________________________________________________________________

JUSTICE BIRKETT delivered the judgment of the court, with opinion.
Justices Hutchinson and Zenoff concurred in the judgment and opinion.
2017 IL App (2d) 160875

OPINION

¶1 Plaintiffs, Jane Doe, Jane A. Doe, and John Doe, brought claims against several

individuals and entities that were part of the United Church of Christ (UCC). The claims were

based on the sexual misconduct of Chad Coe during his tenure as youth pastor at the First

Congregational Church of Dundee, Illinois (FCC), a congregation within the UCC. Plaintiffs

alleged that Coe groomed Jane Doe, a minor and member of the FCC’s youth group, and

eventually had sex with her on FCC’s property. Defendants in this appeal are the UCC, the UCC

Board, the General Synod of the UCC, the Illinois Conference of the UCC (IUCC), and the Fox

Valley Association of the Illinois Conference of the UCC. The trial court dismissed with

prejudice plaintiffs’ claims against defendants, but we reverse and remand for further

proceedings.

¶2 I. BACKGROUND

¶3 In their complaint, plaintiffs alleged that defendants were negligent in the hiring,

supervision, and retention of Coe. Defendants filed a motion to dismiss under section 2-619.1 of

the Code of Civil Procedure (Code) (735 ILCS 5/2-619.1 (West 2014)), combining arguments

for dismissal under section 2-615 and section 2-619 of the Code (735 ILCS 5/2-615, 2-619 (West

2014)).

¶4 “A section 2-615 motion attacks the legal sufficiency of the plaintiff’s claims, while a

section 2-619 motion admits the legal sufficiency of the claims but raises defects, defenses, or

other affirmative matter, appearing on the face of the complaint or established by external

submissions, that defeats the action.” Aurelius v. State Farm Fire & Casualty Co., 384 Ill. App.

3d 969, 972-73 (2008). For the section 2-619 component of their motion, defendants submitted

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the affidavits of Jorge Morales and John Dorhauer as affirmative matter defeating plaintiffs’

allegation that Coe was defendants’ employee at the relevant time.

¶5 Morales averred that he was the “Conference Minister” of the IUCC, while Dorhauer

claimed that he was the “General Minister and President” of the UCC. Both affiants stated that

they were “knowledgeable regarding the Constitution and Bylaws of the [UCC] as well as the

ecclesiastical structure of the [UCC].” Both affiants described the UCC as “an unincorporated

Protestant religious association consisting of Local Churches, Associations, Conferences and a

General Synod.” They asserted that those various entities within the UCC were “separate,

distinct, and autonomous,” and therefore “free to choose the manner and methods in which they

conduct their own business affairs.” To support their claims about the organizational structure of

the UCC, Morales and Dorhauer quoted the UCC Constitution. According to Morales and

Dorhauer, Coe was strictly the employee of the FCC and not of defendants. Defendants were not

involved, nor had authority to be involved, in the hiring of Coe by the FCC. They also lacked

authority to discipline or terminate Coe.

¶6 For the section 2-615 component of their motion to dismiss, defendants contended that

plaintiffs failed to allege facts establishing that defendants knew or should have known of Coe’s

particular unfitness for the position of youth pastor.

¶7 In their response to the motion to dismiss, plaintiffs asserted that the affidavits of Morales

and Dorhauer were, in several respects, out of compliance with Illinois Supreme Court Rule

191(a) (eff. Jan. 4, 2013). One deficiency pointed out by plaintiffs was that neither Morales nor

Dorhauer attached the Constitution and Bylaws of the UCC, which each affiant cited as support

for his assertions about the UCC’s organization. Subsequently, defendants attached copies of the

UCC Constitution and Bylaws to their reply in support of their motion to dismiss. (While the

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record indicates that the Constitution and Bylaws are separate documents, we refer to them

collectively, after the parties’ usage on appeal.)

¶8 The trial court found merit in both components of defendants’ motion to dismiss. The

court determined that plaintiffs failed to allege that defendants “knew or should have known

about [Coe’s] background or his particular unfitness for [his] job [as youth pastor].” On the

section 2-619 aspect of defendants’ challenge, the court implicitly rejected plaintiffs’ argument

that the affidavits of Morales and Dorhauer were deficient under Rule 191(a). The court found

that the affidavits were “conclusive on *** autonomous relationship, the nonhierarchical

formation of the church and the formation of the [UCC] as a congregational organization.”

According to the court, the affidavits established that Coe was not employed by defendants and,

therefore, they defeated plaintiffs’ claims.

¶9 II. ANALYSIS

¶ 10 On appeal, plaintiffs renew their argument that the affidavits of Morales and Dorhauer

did not comply with Rule 191(a). The interpretation of a supreme court rule is a question of law,

which we review de novo. BLTREJV3 Chicago, LLC v. Kane County Board of Review, 2014 IL

App (2d) 140164, ¶ 12. We agree that the affidavits were fatally deficient because the affiants

failed to attach copies of the UCC Constitution and Bylaws. Rule 191(a) provides in pertinent

part:

“Affidavits in support of and in opposition to a motion for summary judgment under

section 2-1005 of [the Code] [(735 ILCS 5/2-1005 (West 2014))] [and] affidavits

submitted in connection with a motion for involuntary dismissal under section 2-619 of

[the Code] *** shall be made on the personal knowledge of the affiants; shall set forth

with particularity the facts upon which the claim, counterclaim, or defense is based; shall

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have attached thereto sworn or certified copies of all documents 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.

If all of the facts to be shown are not within the personal knowledge of one person, two

or more affidavits shall be used.” (Emphasis added.) Ill. S. Ct. R. 191(a) (eff. Jan. 4,

2013).

The italicized portion of this language states the “attached-papers requirement,” as the court in

Robidoux v. Oliphant, 201 Ill. 2d 324, 344 (2002), termed it. In Robidoux, the court found that

the affidavit of the plaintiff’s expert failed to meet the attached-papers requirement because the

expert did not attach the documents on which he relied for his assertions. Id. at 339, 344. The

court held that “strict compliance” with Rule 191(a) is “necessary *** to insure that trial judges

are presented with valid evidentiary facts upon which to make a decision.” (Internal quotation

marks omitted.) Id. at 336. Although the court was speaking in the context of a summary

judgment proceeding, the need for strict compliance with Rule 191(a) applies equally in a

proceeding on a motion for involuntary dismissal under section 2-619 of the Code. The reason is

that, in both proceedings, the question for decision is whether the existence of a genuine issue of

material fact precludes dismissal or, absent such an issue of fact, whether dismissal is proper as a

matter of law. Ultsch v. Illinois Municipal Retirement Fund, 226 Ill. 2d 169, 178 (2007).

¶ 11 Defendants claim that the attached-papers requirement did not mandate attachment of the

UCC Constitution and Bylaws, because both Morales and Dorhauer professed personal

knowledge of the UCC’s organization independent of the documents. Regardless of what

Morales and Dorhauer might have known apart from the documents, they quoted the UCC

Constitution and Bylaws to support their assertions about the autonomy of the various entities

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within the UCC, and thus they relied on the documents within the meaning of the rule.

Consequently, they were required to attach the documents so that the trial court could review the

bases for their assertions.

¶ 12 Defendants ask us to relax the attached-papers requirement in these circumstances

because (1) plaintiffs evidently were familiar with the UCC Constitution and Bylaws, since they

cited them in their complaint (yet, we note, did not attach them there), and (2) defendants

ultimately attached the documents to their reply in support of their motion to dismiss, and

therefore the trial court had them for review. As we construe Robidoux, there is no room for

exception to the attached-papers requirement. See Robidoux, 201 Ill. 2d at 339-40 (stating that

Rule 191(a) must be enforced as written and rejecting the notion that failure to comply with the

attached-papers requirement is a “technical violation” of the rule).

¶ 13 Even if Robidoux could be read as allowing some flexibility in the attached-papers

requirement, there is no room for exception on the grounds defendants suggest. First, since the

intent of Rule 191(a) is to provide the trial court with a valid evidentiary basis upon which to

rule (id. at 336), it is immaterial that plaintiffs were already familiar with the UCC Constitution

and Bylaws when they filed their complaint.

¶ 14 It is even immaterial that the trial court could resort to copies of the UCC Constitution

and Bylaws elsewhere in the record. The majority in Robidoux enforced the attached-papers

requirement without denying the dissent’s observation that the documents on which the

plaintiff’s expert relied “were already filed of record.” Id. at 350 (Kilbride, J., dissenting, joined

by Harrison, C.J.). The dissent was concerned about the “practical implications of the majority’s

interpretation of the attachment requirement” and suggested that a party should be able to meet

the requirement by incorporating by reference documents already filed. Id. Without

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commenting on the dissent’s concerns, the majority refused to excuse the affiant’s failure to

attach the documents.

¶ 15 Notably, even though copies of the UCC Constitution and Bylaws were elsewhere in the

record, they were not “sworn or certified” copies as required by Rule 191(a) (Ill. S. Ct. R. 191(a)

(eff. Jan. 4, 2013)).

¶ 16 Defendants cite several decisions, none of which sways our understanding of the

attached-papers requirement. They cite an unpublished decision, for which we admonish them

that our supreme court rules prohibit such citations except for certain purposes, none of which is

involved here. See Ill. S. Ct. R. 23(e)(1) (eff. July 1, 2011). Defendants also cite Otis Elevator

Co. v. American Surety Co., 314 Ill. App. 479, 484 (1942), where the First District Appellate

Court found that the plaintiff “substantially complied” with Illinois Supreme Court Rule 15 (eff.

Aug. 1, 1938), a prior version of Rule 191(a), because the documents referenced in the affidavits

submitted by the plaintiff were either attached to the plaintiff’s complaint, in the defendant’s

possession, or available to the defendant for review. We decline to follow Otis Elevator, as its

holding is questionable following Robidoux’s declaration that there must be strict compliance

with Rule 191(a) and that the failure to attach the documents on which the affiant relies is not a

technical violation of the rule. Robidoux, 201 Ill. 2d at 336, 339-40.

¶ 17 Defendants also bring to our attention Nichols v. City of Chicago Heights, 2015 IL App

(1st) 122994, another case from the First District. In Nichols, the plaintiffs attacked on several

grounds an affidavit submitted by the defendant. One ground was that the affidavit, contrary to

Rule 191(a), did not attach the city resolutions on which the affiant relied. The trial court denied

the plaintiff’s motion to strike. The appellate court, without acknowledging Robidoux, implicitly

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rejected the plaintiff’s attachment argument. Id. ¶ 62. Since this holding is inconsistent with

Robidoux, we decline to follow Nichols.

¶ 18 We join, rather, those cases (including another decision from the First District) that give

the language of Robidoux its due and regard the attached-papers requirement as rigid. See

Lucasey v. Plattner, 2015 IL App (4th) 140512, ¶ 23 (“That the various documents Peterson

failed to attach to his affidavit may be found elsewhere in this record is utterly irrelevant.”);

Preze v. Borden Chemical, Inc., 336 Ill. App. 3d 52, 57 (2002) (“The plain language of Rule

191(a) requires that documents supporting an affidavit must be attached. [Citation.] The failure

to attach the documents is fatal. [Citation.]”).

¶ 19 In light of Robidoux, we hold that the trial court erred in relying on the affidavits of

Morales and Dorhauer in granting the section 2-619 component of defendants’ motion to

dismiss. Defendants do not ask us to affirm the dismissal independently of the trial court’s

ruling on their section 2-619 challenge. In fact, in their arguments on appeal, defendants do not

treat their section 2-615 and 2-619 challenges as independent but weave the affidavits of Morales

and Dorhauer into what they label as an attack on the legal sufficiency of plaintiffs’ complaint.

Those aspects that we can identify as proper challenges to the legal sufficiency of the complaint

fail to demonstrate an alternative basis for affirmance. Defendants provide virtually no legal

context for their challenges. They do not set forth the elements of the negligence claims brought

by plaintiffs, and their sole relevant citation is a parenthetical sketch of the holding in Van Horne

v. Muller, 185 Ill. 2d 299 (1999). Like an appellant’s brief, an appellee’s brief must conform to

Illinois Supreme Court Rule 341(h)(7) (eff. Jan. 1, 2016), which requires that arguments be

supported by authority. Defendants’ arguments do not meet this requirement. Consequently,

defendants fail to demonstrate an alternative basis to affirm the dismissal of plaintiffs’ complaint.

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¶ 20 III. CONCLUSION

¶ 21 For the foregoing reasons, we reverse the judgment of the circuit court of Kane County

and remand for further proceedings.

¶ 22 Reversed and remanded.

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