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                              Appellate Court                            Date: 2017.10.19
                                                                         16:07:24 -05'00'




                     Doe v. Coe, 2017 IL App (2d) 160875



Appellate Court   JANE DOE, a Minor, by Her Mother and Next Friend, Jane A. Doe,
Caption           and by Her Father and Next Friend, John Doe; JANE A. DOE,
                  Individually; and JOHN DOE, Individually, Plaintiffs-Appellants, v.
                  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 the United Church of Christ
                  Board, Defendants-Appellees).



District & No.    Second District
                  Docket No. 2-16-0875



Filed             August 17, 2017



Decision Under    Appeal from the Circuit Court of Kane County, No. 15-L-216; the
Review            Hon. James R. Murphy, Judge, presiding.



Judgment          Reversed and remanded.
     Counsel on               Francis C. Lipuma, of Law Office of Francis C. Lipuma, of Chicago,
     Appeal                   and Kevin M. Lyons, of Lyons Law Group, LLC, of Downers Grove,
                              for appellants.

                              James E. Abbott and Michael L. Hahn, of Litchfield Cavo LLP, of
                              Chicago, for appellees.



     Panel                    JUSTICE BIRKETT delivered the judgment of the court, with
                              opinion.
                              Justices Hutchinson and Zenoff concurred in the judgment and
                              opinion.


                                               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
       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

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       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
       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
       that 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 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

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                 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
       within the UCC, and thus 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 commenting on the dissent’s concerns, the majority refused to excuse the affiant’s
       failure to attach the documents.

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¶ 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
       are 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 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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