JEFF CHRACA, Plaintiff-Appellant, v. U.S. BATTERY MANUFACTURING COMPANY, Defendant-Appellee (and YUHUAN COUNTY LITIAN METAL PRODUCTS COMPANY, LTD., Defendant).
Docket No. 1-13-2325
Illinois Official Reports Appellate Court
December 19, 2014
2014 IL App (1st) 132325
Decision Under Review: Appeal from the Circuit Court of Cook County, No. 11-L-005924; the Hon. Moira S. Johnson, Judge, presiding. Judgment: Reversed.
Appellate Court Caption: JEFF CHRACA, Plaintiff-Appellant, V. U.S. BATTERY MANUFACTURING COMPANY, Defendant-Appellee (and YUHUAN COUNTY LITIAN METAL PRODUCTS COMPANY, LTD., Defendant).
District & No.: First District, Fifth Division Docket No. 1-13-2325
Filed: December 19, 2014
Decision Under Review: Appeal from the Circuit Court of Cook County, No. 11-L-005924; the Hon. Moira S. Johnson, Judge, presiding.
Judgment: Reversed.
Counsel on Appeal:
A. Mark O‘Danovich and Bryan E. Curry, both of Bullaro & Carton PC, of Chicago, for appellee.
Panel: JUSTICE McBRIDE delivered the judgment of the court, with opinion. Justices Gordon and Reyes concurred in the judgment and opinion.
OPINION
¶ 1 This appeal concerns the plaintiff‘s right under section 2-621 of the Illinois Code of Civil Procedure (
¶ 2 The personal injuries that led to this lawsuit occurred in 2009, while plaintiff Jeffrey Louis Chraca was unpacking a shipment of golf cart batteries sent by defendant U.S. Battery Manufacturing Company (hereinafter, U.S. Battery) to Chraca‘s employer, Chicago Battery, d/b/a Interstate Batteries, in Skokie, Illinois. Chraca, who was 32 years old at the time, was lifting and carrying individual batteries with the assistance of a flexible, black strap that arrived with the shipment. Each of the “US-2200 XC” six-volt, deep-cycle golf cart batteries weighed roughly 63 pounds, and was 10 inches long, 7 inches wide, and 11 inches tall. Chraca‘s shoulder and neck were wrenched when the strap gave way. He has attributed the strap‘s failure to the fact that two metal hooks or U-shaped brackets which were riveted to each end separated from the strap. He contends the strap was “unreasonably dangerous for its foreseeable uses in that it did not function as intended.” His employer has been compensating Chraca under the provisions of the Workers’ Compensation Act (
¶ 3 The defect alleged in a strict product liability action may be a manufacturing defect, a design defect, or a marketing defect (meaning a failure to give adequate instructions or warning). Restatement (Third) of Torts: Products Liability § 1 cmt. a (1998).
¶ 4 Under the common law, an injured consumer may bring allegations of strict product liability against all entities in the distributive chain, including the product‘s manufacturer, supplier, wholesaler, retailer, and commercial lessor. Murphy v. Mancari‘s Chrysler Plymouth, Inc., 381 Ill. App. 3d 768, 772-73, 887 N.E.2d 569, 574 (2008); Hammond v. North American Asbestos Corp., 97 Ill. 2d 195, 206, 454 N.E.2d 210, 216-17 (1983); Crowe v. Public Building Comm‘n, 74 Ill. 2d 10, 15, 383 N.E.2d 951, 953 (1978) (extending strict liability to commercial lessors). Even though suppliers and sellers do not create defects, they put defective products into the stream of commerce and may be held strictly liable to the injured user. Hammond, 97 Ill. 2d at 206, 454 N.E.2d at 216-17. Imposing liability upon nonmanufacturers “is justified on the ground that their position in the marketing process enables them to exert pressure on the manufacturer to enhance the safety of the product.” Hammond, 97 Ill. 2d at 206, 454 N.E.2d at 216; Graham v. Bostrom Seating, Inc., 398 Ill. App. 3d 302, 306, 921 N.E.2d 1222, 1226 (2010) (the loss caused by unsafe products should be borne by those who derive economic benefit and create the risk of harm by placing products in the stream of commerce).
¶ 5 In many cases, however, only the manufacturer is ultimately ordered to compensate the consumer for his injuries, and the product‘s suppliers and sellers waste resources defending themselves from the consumer‘s suit. Restatement (Third) of Torts: Products Liability § 1 cmt. a (1998); Crowe, 74 Ill. 2d at 13, 383 N.E.2d at 952 (“Because the ultimate loss will ordinarily be borne, through indemnification, by the party that created the defect, the public policy concern is really who, between the injured user and the seller, should bear the initial loss.“). Therefore, in many jurisdictions, legislation immunizes nonmanufacturing defendants from strict liability under certain circumstances (Restatement (Third) of Torts: Products Liability § 1 cmt. a (1998)), even though this immunity may occasionally mean a consumer is left with no remedy at all (Restatement (Third) of Torts: Products Liability § 1 cmt. e(2) (1998) (citing, e.g., Saieva v. Budget Rent-A-Car of Rockford, 227 Ill. App. 3d 519, 591 N.E.2d 507 (1992))). See also Kellerman, 119 Ill. 2d at 113, 518 N.E.2d at 117 (defendants whose sole basis of liability is their role as members of the distributive chain are able to extract themselves from a product liability action at an early stage, before they incur the expense of fully litigating the dispute). The Illinois legislature has provided this immunity to nonmanufacturers in section 2-621 of the Code of Civil Procedure.
¶ 6 Section 2-621 is applicable only to cases such as Chraca‘s that allege injury from defective products. Section 2-621 provides that “[i]n any product liability action based in whole or in part on the doctrine of strict liability in tort” (
¶ 7 Additionally, the Illinois statute provides that a plaintiff may, “at any time,” “move to vacate the order of dismissal and reinstate” the certifying defendant, “provided plaintiff can show” that the certifying defendant did not identify the correct manufacturer or if the manufacturer is judgment proof, either because the statute of limitations or repose on the plaintiff‘s claim has run, the manufacturer is not amenable to service of process or the jurisdiction of the court, or the manufacturer is unable to satisfy any judgment or reasonable settlement.
¶ 8 After being served in Georgia, U.S. Battery retained Illinois counsel and filed a section 2-621(a) motion to be dismissed from Chraca‘s suit.
¶ 9 Chraca then asked the court for leave to file a first amended complaint adding allegations against Yuhuan and for the court to appoint APS International, Ltd. (hereinafter, APS), as a special process server to serve this new defendant in China. The court granted both requests as well as Chraca‘s subsequent motion for a default judgment against the strap manufacturer after it had been “served with Complaint and Summons in accordance with the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters.” The People‘s Republic of China and the United States of America are both parties to The Hague Convention. See Hague Conference on Private International Law, Status table, Members of the Organisation,
¶ 10 Chraca next filed a written response opposing U.S. Battery‘s dismissal. He argued in part that the Chinese strap manufacturer was “‘thumbing its nose’ at this Illinois court” by “ignoring this action,” and that this was sufficient grounds under Kellerman, 119 Ill. 2d 111, 518 N.E.2d 116, to keep U.S. Battery in the case. Chraca provided an affidavit from one of his attorneys, Bryan J. O‘Connor, Sr., stating that despite obtaining service through the APS agency, it was counsel‘s opinion that there was “no good faith basis to assert that Illinois has jurisdiction over [the manufacturer]” and that Chraca would be unable to collect on the default judgment. Chraca also filed an affidavit and supporting records from a paralegal employed by APS detailing how APS served Yuhuan in accordance with The Hague Convention. The paralegal explained that under the treaty, Chraca was entitled to a default judgment, but that a defaulted defendant would have one year to “reopen” the judgment. Chraca also filed his attorney‘s supplemental affidavit and a printout of an email conversation that counsel had in late August 2012 with a Mayer, Brown attorney, R. Terence Tung. In the email messages, attorney O‘Connor had asked attorney Tung how to demonstrate to the court that there is “no reasonable expectation of ever collecting a judgment against the Chinese company,” and Tung opined:
“1. there is no arrangement for reciprocal enforcement of judgment between the US and the People‘s Republic of China (‘PRC‘) and as such, it is not possible to register a US judgment in China;
2. to initiate collection proceedings, it will be necessary to start fresh proceedings in the PRC in the name of your client based presumably on an action in tort.
Please, however, note that your client will have to instruct a PRC law firm to act on his behalf in the collection proceedings but the amount of damages that may be awarded in the PRC will be significantly less than that in the US. I suppose that how one can demonstrate that there is ‘no reasonable expectation of ever collecting a judgment against the Chinese company’ is a question of US law[,] and *** we can *** explore whether or how your client can discharge the burden of proving the quoted statement. Kindly let us know how you wish us to proceed.”
¶ 11 The circuit court considered the written submissions, heard oral arguments, and then granted the section 2-621 dismissal of U.S. Battery.
¶ 12 Only two weeks later, however, Chraca filed a motion to reinstate his claim against U.S. Battery pursuant to either subsection (b)(3) or (b)(4) of the same statute.
“The plaintiff may at any time subsequent to the dismissal move to vacate the order of dismissal and reinstate the
certifying defendant or defendants, provided plaintiff can show one or more of the following: ***
(3) That the manufacturer no longer exists, cannot be subject to the jurisdiction of the courts of this State, or, despite due diligence, the manufacturer is not amenable to service of process; or
(4) That the manufacturer is unable to satisfy any judgment as determined by the court[.]”
735 ILCS 5/2-621(b) (West 2010).
¶ 13 One of Chraca‘s grounds for reinstating U.S. Battery was that according to his reading of Kellerman, 119 Ill. 2d 111, 518 N.E.2d 116, all that he needed to show in order to bring the product wholesaler back into the case under subsection (b)(3) was that it “appeared” there was no jurisdiction over the product manufacturer and that it would be “fruitless” to pursue an action.
“4. There is no judicial assistance treaty of arrangement for reciprocal enforcement of a judgment between the United States and the [PRC]. Consequently, Chinese courts generally will not recognize or enforce a judgment obtained in an American state court. It is almost impossible to directly register in China a judgment obtained in an American state court. Without being so registered, therefore, a judgment entered in an American state court is not directly collectible in China against a Chinese company.
5. In order to actually obtain a judgment against a Chinese company, it would be necessary to initiate a new action in PRC; in this case, presumably an action in tort against the alleged Chinese manufacturer.
***
10. It is our opinion that in all likelihood Chinese courts may not recognize or enforce a judgment obtained against Yuhuan County Litian Metal Products Ltd. in the Circuit Court of Cook Count, Illinois, as any such judgment typically could not be directly registered in China. Accordingly, any judgment entered against Yuhuan County Litian Metal Products Ltd. in the Circuit Court of Cook County, Illinois is almost impossible to be directly collectible in China against Yuhuan County Litian Metal Products Ltd. Rather, as stated above, a separate action would have to be initiated in China against Yuhuan County Litian Metal Products Ltd. Thus, the action against Yuhuan in Illinois very likely would be fruitless.”
¶ 14 In its written response, U.S. Battery contended Chraca was misstating the legal standard for reinstatement. U.S Battery also provided an affidavit from Connie Steinberg, JessLink‘s sole owner, who conceded that JessLink “imported and distributed” parts and materials and that her company had purchased the Yuhuan-manufactured battery strap at issue and then “supplie[d]” the strap to U.S. Battery. Steinberg also said that she had been buying Yuhuan-made straps for about 10 years.
¶ 15 The court denied Chraca‘s motion. The judge reasoned that Chraca had previously
¶ 16 About two months later, Chraca returned with a “motion to reconsider” in which he again disputed the court‘s jurisdiction over Yuhuan. He tendered an affidavit executed by Don Wang on April 11, 2013. Wang indicated that he speaks Mandarin Chinese and that on March 19, 2013, he dialed the cell phone number for Yuhuan‘s owner, Ji Rong Chen, which was part of the manufacturer‘s contact information that U.S. Battery gave to Chraca in September 2011. According to Wang, Chen then told him that Yuhuan was not selling its products in the United States, was not employing anyone in the United States, and “does not do any business in the United States.”
¶ 17 In its response in opposition to Chraca‘s motion, U.S Battery pointed out that the statements Wang was attributing to Chen were hearsay and that there was no apparent reason for Chraca to have waited 18 months to make the phone call to China.
¶ 18 After oral arguments, the judge stated that Chraca‘s motion was captioned as a reconsideration request, but, because her prior ruling had been without prejudice, she was treating the motion as a second motion to reinstate. See Berge v. Mader, 2011 IL App (1st) 103778, ¶ 9, 957 N.E.2d 968 (indicating courts are guided not by just the caption of a motion but also by its substance). On appeal, Chraca characterizes this motion as a request for reinstatement rather than a request to reconsider the previous motion. Given the content of the motion and its treatment by the parties and trial judge, we will also address the motion as a second motion to reinstate. After the judge said she would be denying the second motion to reinstate, there was some discussion as to whether the ruling should be without prejudice to filing a third motion to reinstate or should be made final and appealable. The judge agreed to delay entering her ruling until the attorneys researched and discussed their appellate options and told her how they preferred to proceed.
¶ 19 On July 15, 2013, the judge entered a written order denying Chraca‘s motion. The order did not specify whether the denial of reinstatement was “with prejudice” or “without prejudice,” but it included Illinois Supreme Court Rule 304(a) (eff. Feb. 26, 2010) language. By its own terms, Rule 304(a) applies only to final judgments or orders. Ill. S. Ct. R. 304(a) (eff. Feb. 26, 2010). Thus, Rule 304(a) is inapplicable to orders entered “without prejudice.” See Kellerman, 119 Ill. 2d at 115, 518 N.E.2d at 118 (stating that if dismissal orders were nonfinal, then Rule 304(a) would be inapplicable). If the order at issue was not final, then the special finding under Rule 304(a) would have served no purpose and would not make the order appealable. Kellerman, 119 Ill. 2d at 115, 518 N.E.2d at 118. An order that is final and appealable is an order that terminates litigation between the parties on the merits of the cause. Kellerman, 119 Ill. 2d at 115, 518 N.E.2d at 118. “While the order need not dispose of all the issues presented by the pleadings, it must be final in the sense that it disposes of the rights of the parties, either upon the entire controversy or upon some definite and separate part thereof.” (Internal quotation marks omitted.) Kellerman, 119 Ill. 2d at 115, 518 N.E.2d at 118. We read
¶ 20 Chraca first argues Kellerman sets out “the evidentiary standard on a motion to reinstate” and obligates the plaintiff to show only that “it ‘appears’ that an action against the foreign manufacturer would be ‘unavailing or fruitless.’ ” Appellee U.S. Battery responds that Chraca is “reimagining the language and holding” of the case, that Kellerman does not lessen the plaintiff‘s evidentiary burden, and that the statutory language is controlling.
¶ 21 We address questions of statutory interpretation de novo. JPMorgan Chase Bank, N.A. v. Earth Foods, Inc., 238 Ill. 2d 455, 461, 939 N.E.2d 487, 490 (2010). Our task is to ascertain and give effect to the intent of the Illinois legislature. JPMorgan, 238 Ill. 2d at 461, 939 N.E.2d at 490. We do this by considering the plain language of the statute, and when it is clear, we apply it as written without resorting to other rules of statutory construction. JPMorgan, 238 Ill. 2d at 461, 939 N.E.2d at 490.
¶ 22 We find that Kellerman does not set out an evidentiary standard for retaining or reinstating a nonmanufacturing defendant in a strict product liability action. The language that Chraca has quoted and relied on throughout these proceedings in the trial and appellate courts is merely a descriptive summary of section 2-621. The Kellerman court was not construing any specific statutory terms and its summary of the statute does not diminish or enhance the legislature‘s wording. Also, the Kellerman court did not analyze any evidence and, therefore, nothing in its opinion could be considered an evidentiary standard. According to the plainly worded statute, it is Chraca‘s burden to show that he is entitled to have the court vacate the dismissal order and reinstate the nonmanufacturing defendant to his product liability action. Chraca needed to show either that the product manufacturing defendant “is unable to satisfy any judgment as determined by the court” or “cannot be subject to the jurisdiction of the courts.”
¶ 23 We next consider whether the evidence Chraca relied on was sufficient to satisfy either of those two statutory grounds. We address the ruling de novo, because the trial court heard no disputed evidence, made no findings of fact, and ruled solely on the basis of documentary evidence (Rosenthal-Collins Group, L.P. v. Reiff, 321 Ill. App. 3d 683, 687, 748 N.E.2d 229, 233 (2001)), namely, the various affidavits.
¶ 24 We find that Chraca failed to show that Yuhuan is “unable to satisfy any judgment.”
¶ 25 Chraca presented no information about Yuhuan‘s financial viability and the record suggests Yuhuan is an ongoing business, because Chraca‘s Mandarin Chinese translator, Wang, purports to have reached Yuhuan‘s owner on his cell phone several years after Chraca was injured. Chraca‘s attorney misconstrued the statutory language when he asked attorney Tung how Chraca could demonstrate to the Illinois trial court that there is “no reasonable expectation of ever collecting a judgment against the Chinese [manufacturing] company.” Tung‘s response and the joint affidavit of the two Chinese attorneys about their local court‘s unwillingness to “recognize or enforce a judgment obtained in an American state court” do not indicate that Yuhuan was declared bankrupt or is no longer operating and thus is unable to satisfy any judgment” as that phrase is used in the statute at issue.
¶ 26 Although we conclude Chraca has not met his burden under section 2-621(b)(4), we do find that he is entitled to reinstatement of U.S. Battery pursuant to section 2-621(b)(3) because the evidence shows Illinois does not have personal jurisdiction over Yuhuan.
¶ 27 The Illinois long-arm statute allows its courts to exercise personal jurisdiction to the full extent allowed by the state and federal constitutions.
¶ 28 Personal jurisdiction comes in two forms: specific jurisdiction and general jurisdiction. The assertion of specific jurisdiction is
¶ 29 Chraca bases his jurisdiction argument primarily on Nicastro, 564 U.S. 873, 131 S. Ct. 2780, in which the Supreme Court held that a New Jersey court could not lawfully exercise personal jurisdiction over a British manufacturer whose metal-shearing machine, distributed through an American company that targeted the entire United States market, caused a severe hand injury in New Jersey. An employee of a scrap metal recycler alleged that the three-ton machine was defectively designed or manufactured. Nicastro v. McIntyre Machinery America, Ltd., 201 N.J. 48, 987 A.2d 575, 577 (N.J. 2010).
¶ 30 The Supreme Court held, however, that the British company‘s mere placement of its product into the stream of commerce, with the expectation that the product might be sold and used in the forum state, was insufficient to justify specific personal jurisdiction in the forum state over the foreign manufacturer. Nicastro, 564 U.S. at 882, 131 S. Ct. at 2788. The manufacturer must have “targeted” the forum before it would be deemed to have submitted to the jurisdiction of the forum. Nicastro, 564 U.S. at 882, 131 S. Ct. at 2788. We reiterate that as a general rule, the exercise of judicial power over a foreign defendant is not lawful unless the foreign defendant has “‘purposely avail[ed] itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws.’ ” Nicastro, 564 U.S. at 877, 131 S. Ct. at 2785 (quoting Hanson v. Denckla, 357 U.S. 235, 253 (1958)). Officials of the British company had attended trade shows in several states but not in New Jersey, the company shipped its products to an independent American distributor, and as many as four of its machines ended up in New Jersey. Nicastro, 564 U.S. at 886, 131 S. Ct. at 2790. However, the British company had no office, employees or property in New Jersey, it paid no taxes in New Jersey, and it sent no advertising or employees to the state. Nicastro, 564 U.S. at 886, 131 S. Ct. at 2790. The British company was not subject to jurisdiction in New Jersey because it had not sent goods to, advertised in, or otherwise targeted New Jersey. Nicastro, 564 U.S. at 886, 131 S. Ct. at 2785. Again, it is not enough that a defendant might predict that its goods will reach the forum state. Nicastro, 564 U.S. at 882, 131 S. Ct. at 2788. “[I]t is the defendant‘s actions, not his expectations, that empower a State‘s courts to subject him to
¶ 31 In Wiles, an injured worker brought a strict product liability action against a Japanese manufacturer after two of four machines it sold in Japan were shipped by the buyer to Illinois. Wiles v. Morita Iron Works Co., 125 Ill. 2d 144, 146-47, 530 N.E.2d 1382, 1383 (1988). The Japanese company was unaware that its machines were destined for Illinois and had made no effort to market to this forum. Wiles, 125 Ill. 2d at 160, 530 N.E.2d at 1389-90. The manufacturer had no knowledge either during contract negotiations or when its machines were delivered to the buyer in Japan that the buyer intended to transport the machines to Illinois, or even that the buyer had a facility in Illinois. Wiles, 125 Ill. 2d at 160, 530 N.E.2d at 1290. The unilateral actions of the buyer did not satisfy the requirement of contact with Illinois. Wiles, 125 Ill. 2d at 160, 530 N.E.2d at 1390.
¶ 32 Chraca also relies on Morris, which involved a ceiling fan that was manufactured in Taiwan and alleged to have fallen from a consumer‘s ceiling because of defective design and manufacture. Morris v. Halsey Enterprises Co., 379 Ill. App. 3d 574, 882 N.E.2d 1079 (2008). The Taiwanese manufacturer made fans for Casablanca Fan Company (Casablanca), which was incorporated in Illinois. Morris, 379 Ill. App. 3d at 575, 882 N.E.2d at 1081. The manufacturer was aware that hundreds of thousands of its fans were distributed and marketed in the United States through national home improvement chain stores, including Home Depot and Lowe‘s, and through a national network of at least 600 lighting stores. Morris, 379 Ill. App. 3d at 577, 882 N.E.2d at 1082. The manufacturer shipped its products to California and to Home Depot‘s regional distribution centers. Morris, 379 Ill. App. 3d at 577, 882 N.E.2d at 1082. The manufacturer, however, had no control over the distribution of its fans within this country, was not aware of which specific states its fans were being marketed or sold in, and was not aware that its fans were being marketed or sold in Illinois. Morris, 379 Ill. App. 3d at 582-83, 882 N.E.2d at 1086-87. Accordingly, this court found that there were not sufficient minimum contacts to justify the exercise of personal jurisdiction over the Taiwanese manufacturer. Morris, 379 Ill. App. 3d at 583, 882 N.E.2d at 1087.
¶ 33 Applying these principles to the record in this appeal, we find that Chraca has clearly shown that the Chinese manufacturer of the battery strap “cannot be subject to the jurisdiction of the courts” and, thus, the other defendant should be reinstated to the case.
¶ 34 The Wehmeyer and Steinberg affidavits establish that Yuhuan manufactured the strap in Zhejiang Province, China, and then sold it to a Chinese trading company located in Shenyang, China, which conveyed the strap to JessLink in California. JessLink is the importer and distributor of the strap in the United States. JessLink
¶ 35 We reach this conclusion despite U.S. Battery‘s contention that Wehmeyer was not attempting to describe or detail the full extent of the manufacturer‘s contacts with Illinois so that Chraca could sue the manufacturer in his home forum. It is apparent from what Wehmeyer and Steinberg did say that the connection between the Chinese manufacturer and Illinois is tenuous and that Yuhuan did not have contact with any business or individual in this forum.
¶ 36 U.S. Battery also contends that one could validly speculate from the record that companies throughout Illinois are receiving component parts or products from Yuhuan. U.S. Battery, however, does not point to any specific facts indicating that Yuhuan could be subject to general jurisdiction or that Chraca‘s argument for reinstatement due to lack of specific jurisdiction has been misleading or incomplete. We are confident that if Yuhuan had any contacts with Illinois, its name would have shown up in at least one of the searches that Chraca‘s counsel made. According to his affidavit and attached printouts, Chraca‘s attorney was unable to find a website for Yuhuan that is accessible in the United States. He could not find Yuhuan‘s name in the corporate and foreign corporate listings that are maintained by the Illinois Secretary of State or in the foreign corporate listing kept by the California Secretary of State.
¶ 37 Furthermore, although translator Wang‘s affidavit about his telephone conversation with Yuhuan‘s owner, Chen, is arguably hearsay evidence, Wang, nevertheless, confirmed the other, competent evidence indicating that Yuhuan “(a) does not sell its products in the United States, (b) does not do any business in the United States, and (c) does not have employees in the United States.”
¶ 38 There are no facts suggesting the Chinese manufacturer was even aware its strap had made its way as far as Illinois. Yuhuan did not target this forum and its conduct was not directed at this market so that Illinois has the power to subject Yuhuan to a judgment concerning its product.
¶ 39 For these reasons, we find that Chraca met his burden of showing through competent evidence that the certifying defendant, U.S. Battery, should be reinstated as an active defendant to this case. See Logan v. West Coast Cycle Supply Co., 197 Ill. App. 3d 185, 191, 553 N.E.2d 1139, 1143 (1990) (indicating a plaintiff must put on competent evidence to show under section 2-621 that the certifying defendant should remain in the case). See generally Rosenthal-Collins Group, 321 Ill. App. 3d at 687, 748 N.E.2d at 233 (“[i]t is up to the moving party to present competent evidence to
¶ 40 Finally, we respond to the concerns voiced by Chraca‘s attorney that he has been personally and unfairly attacked by opposing counsel in the briefs filed with this court. We agree that U.S. Battery‘s brief includes numerous inappropriate and unnecessary remarks about Chraca‘s lawyer. The comments exceed the scope of zealous advocacy. We expect litigants to confine their arguments to the issues on appeal.
¶ 41 The judgment of the circuit court is reversed.
¶ 42 Reversed.