2015 IL App (1st) 133899
FIFTH DIVISION January 9, 2015
No. 1-13-3899
OSLER INSTITUTE, INC., ) ) Appeal from the Plaintiff-Appelant, ) Circuit Court of ) Cook County v. ) ) No. 05 CH 11260 RICHARD C. MILLER, ) ) Honorable Defendant-Appellee, ) Richard J. Billik, Jr., ) Judge Presiding. (Constance Stanley, Deborah McIntosh, Thomas Jeffers, ) and Nighthawk Medical Educators, Ltd., Defendants). )
JUSTICE McBRIDE delivered the judgment of the court, with opinion. Justice Gordon and Justice Reyes concurred in the judgment and opinion.
OPINION
¶1 Plaintiff Osler Institute, Inc., appeals from the circuit court's granting of defendant
Richard Miller's motion to dismiss Osler's complaint pursuant to section 2-619(a)(9) of the Code
of Civil Procedure (Code) (735 ILCS 5/2-619(a)(9) (West 2012)) and the circuit court's denial of
Osler's motion to strike an affidavit. On appeal, Osler argues that: (1) the circuit court erred by
granting Miller's section 2-619(a)(9) motion to dismiss on the basis of laches; and (2) the circuit
court erred by denying Osler's motion to strike Miller's affidavit in support of his section 2-
619(a)(9) motion to dismiss. We affirm.
¶2 In July 2005, Osler filed suit in Cook County against: defendant Richard Miller;
Constance Stanley, Deborah McIntosh, and Thomas Jeffers, who are not parties to this appeal;
and Nighthawk Medical Educators, Ltd., which is not a party to this appeal, in case No. 05 CH
11260 (2005 action). According to the complaint, Osler is a "non-profit corporation engaged in
medical education" with a principal place of business in Terre Haute, Indiana. It offers No. 1-13-3899
"specialty review courses to help physicians *** prepare for their board exams." Osler alleged
that, in April 2005, Miller and Jeffers incorporated Nighthawk and then, along with Stanley and
McIntosh, did business as principals of Nighthawk while still employed by Osler using Osler's
resources to do so. As a result, Osler alleged causes of actions including a breach of fiduciary
duty and duty of loyalty, misappropriation of trade secrets, breach of contract, tortious
interference with Osler's business relations and prospective economic advantage, tortious
interference with Osler's contractual relations, tortious interference with fiduciary duty and duty
of loyalty, and civil conspiracy.
¶3 On September 14, 2005, the circuit court entered a consent decree between Osler and
Miller, Stanley, McIntosh, and Nighthawk. The consent decree barred Miller, Stanley,
McIntosh, and Nighthawk from: competing with Osler; soliciting, contacting, or contracting with
any employee of Osler; and acquiring, utilizing or disclosing, directly or indirectly, Osler's trade
secrets or confidential information obtained while Miller, Stanley, and McIntosh were employed
by Osler. The consent decree also provided:
"1. The Court has jurisdiction over the subject matter
herein and has personal jurisdiction over all parties to this action
pursuant to 765 ILCS § 1065/1 et seq. and 735 ILCS § 5/2-
209(a)(1), (a)(2), (a)(7), (a)(11) and/or (b).
2. Venue is proper in this Circuit pursuant to 735 ILCS
§ 5/2-101.
3. The term of this Consent Decree is 36 months from the
date of entry.
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4. The geographic scope of this Consent Decree is the
United States of America.
***
16. This Court retains jurisdiction of this action for the
purpose of enforcing or modifying this Consent Decree and for the
purpose of granting such additional relief as may be necessary or
appropriate."
¶4 On May 8, 2006, Osler gave notice that it would present a verified petition for rule to
show cause before the circuit court. The attached petition alleged that Miller had violated the
consent decree by serving as a faculty member for one of Osler's competitors, MD Exam Prep,
and by unlawfully disclosing Osler's confidential information and proprietary trade secrets to
MD Exam Prep. Specifically, Osler alleged that MD Exam Prep was offering the same course as
Osler, "Radiation Oncology," in the same city as Osler, Louisville, Kentucky, with the same
faculty as Osler, on almost exactly the same days as Osler.
¶5 On May 26, 2006, Osler filed a fee petition based on the violation alleged in its verified
petition for rule to show cause. The fee petition alleged that Osler learned of Miller's violation
of the consent decree the week of May 1, 2006. The fee petition also totaled the attorney fees
and costs incurred as a result of the violation. The petition stated that, "[c]onsistent with the
Consent Decree, Osler reserves the right to seek additional attorneys' fees and other expenses and
costs incurred in connection with enforcing the degree for its remaining term, or until September
14, 2008."
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¶6 In August 2006, the circuit court entered an order that Miller was to pay Osler a total of
$13,379.35, the final payment being due on September 21, 2006. The order also stated that the
court retained jurisdiction to enforce the terms of the 2005 consent decree.
¶7 On September 26, 2008, 12 days after the 2005 consent decree expired, Osler filed suit
against Miller, Stanley, McIntosh, and 18 other defendants in the Vigo County superior court in
the state of Indiana (Indiana action). The complaint alleged that, two years prior on September
27, 2006, Osler learned that defendants, including Miller, were sending out stolen copies of Osler
lecture notes, PowerPoint files, and "other valuable and confidential files" using various business
names in order to compete with Osler. Specifically, Osler alleged defendants had violated the
consent decree in March and April 2006 in Toronto, Ontario, Canada, and in June 2006 in
Louisville, Kentucky.
¶8 In November 2009, the Vigo County superior court granted Miller's motion to dismiss the
Indiana action, finding that the court lacked subject matter jurisdiction pursuant to the consent
decree and also based on the doctrine of comity. See Osler Institute, Inc. v. Miller, No. 84A05-
1003-PL-237, slip op. at 5 (Ind. Ct. App. Sept. 30, 2010); see also Hermesdorf v. Wu, 372 Ill.
App. 3d 842, 850 (2007) (a reviewing court may take judicial notice of a written decision that is
part of the record in another court).
¶9 The court of appeals of Indiana affirmed the dismissal of the Indiana action, but
disagreed with the superior court's conclusion that the action was barred by a lack of subject
matter jurisdiction or comity considerations. Miller, No. 84A05-1003-PL-237, slip op. at 5. The
court first noted:
"In the instant case, there is no dispute that the Illinois
court had jurisdiction over the prior action and rendered a final
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judgment on the merits of that action. There is also no dispute that
Osler and Miller were parties to the Illinois action and are parties
in the case herein. Consequently, claim preclusion bars Osler's
Indiana action against Miller." Id. at 6.
The court of appeals went on to affirm the dismissal based on res judicata, finding that Osler
could have brought its claims in the 2005 action that had been filed in the circuit court of Cook
County. Id. at 6-7. The court observed:
"[A]ccording to Osler's Indiana pleading, '[o]n September 27,
2006, [Osler] first learned of the theft, conversion, and
unauthorized use of its power[-]point presentations, lecture
DVD[s], and lecture notes for medical board review courses by the
defendants….' [Citation.] And September 27, 2006, was just over
a year after the Illinois court entered the Consent Decree, and
about two years before the Illinois court's stated jurisdiction over
the decree was set to expire. ***
Having been aware of the newly alleged conversion almost
two full years before the expiration of the Illinois court's
jurisdiction to enforce the Consent Decree, Osler could well have
raised its Indiana claims in the Illinois action. Osler's newly
discovered information was within the subject matter of the
Consent Decree, which was based, among other things, on Osler's
original allegations that Miller had misappropriated Osler's trade
secrets. Further, the Illinois court expressly retained jurisdiction
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over the parties to that action 'for the purpose of enforcing or
modifying this Consent Decree and for the purpose of granting
such additional relief as may be necessary or appropriate.'
[Citation]." Miller, No. 84A05-1003-PL-237, slip op. at 6-7.
¶ 10 In September 2011, Osler filed a complaint in case No. 11 CH 33466 (2011 action).
¶ 11 In November 2011, Osler filed the supplemental complaint to the 2005 action at issue in
the present case, identical in substance to the complaint filed in the 2011 action. In it, Osler
alleged: while still employed by Osler in 2006, defendants continued to operate continuing
medical education businesses under various names including The Canadian Institute for C.M.E.
and MD Exam Prep in the state of Indiana; prior to the defendants' cessation of employment with
Osler, they removed power point presentations, lecture DVDs, and lecture notes for medical
board review courses from Osler and converted the property for their own use; Osler's property
was taken without the knowledge or permission of Osler; Osler's property was used by
Nighthawk, The Canadian Institute for C.M.E., and MD Exam Prep without Osler's permission;
and Osler learned of the theft, conversion, and unauthorized use of its property on September 27,
2006. Both complaints alleged the same causes of action, including theft, conversion, the
unauthorized use of Osler's property, and violation of the consent decree. Ultimately, Osler
requested the value of the converted property and the profits realized by defendants in using the
converted property as damages.
¶ 12 In April 2012, Miller filed a motion to dismiss Osler's complaint in the 2011 action,
alleging that the complaint was duplicative and contained various other deficiencies.
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¶ 13 In September 2012, after a hearing, the circuit court granted Miller's motion to dismiss
the 2011 complaint, basing its ruling on the insufficient nature of the complaint and the
duplicative nature of the action.
¶ 14 In January 2013, Osler filed its first amended supplemental complaint in the instant
action which contained the same substantive factual allegations as the supplemental complaint
but expanded upon the causes of action, including conversion, trespass to chattels, civil
conspiracy, and violation of the consent decree.
¶ 15 In March 2013, Miller filed a motion to dismiss Osler's first amended supplemental
complaint pursuant to section 216-9.1 of the Code, or a combined section 2-615 and section 2-
619 motion to dismiss. See 735 ILCS 5/216-9.1 (West 2012). Specifically, Miller brought his
motion under section 2-615, alleging that Osler's complaint was defective, section 2-619(a)(3),
alleging that Osler filed duplicative complaints in the supplemental 2005 action and the 2011
action, and section 2-619(a)(9), alleging Osler's complaint must be barred based on the
affirmative defense of laches. Specifically, Miller argued that Osler failed to allege in its
amended supplemental complaint that Miller was guilty of any acts of deception that delayed
Osler's filing of the supplemental 2011 complaint, that Miller did not learn of the alleged
violation until after the consent decree had expired, two years after Osler initially learned of the
violation, and that because Osler delayed filing suit in the circuit court of Cook County for five
years after it learned of the violation, Miller was unable to "secure or locate certain relevant
witnesses, documents, web site data, marketing materials, promotional materials and other
critical exculpatory evidence which he might have *** used to properly defend himself against
these meritless allegations" and he "did not retain or possess copies of whatever PowerPoint
presentations, lecture DVD's [sic], lecture notes, emails and/or correspondence, marketing
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materials, promotional materials, or website data which might have supported his defense of this
claim." In support of the motion, Miller attached, in pertinent part, a personal affidavit in which
he stated:
"3. I have been unable to locate and no longer possess relevant
witness information, documents, web site data, marketing materials,
promotional materials, [PowerPoint] presentations, lecture DVD's [sic],
lecture notes, emails and/or correspondence, which I may have generated
or that may have existed between September 14, 2005-September 14,
2008.
4. I thought I was complying with the terms of the Consent Decree
after the Court entered its order on August 10, 2006, sanctioning me for a
prior violation which occurred in Louisville, Kentucky.
5. I did not have any notice of the alleged violation on September
27, 2006, until I was served with the Indiana lawsuit sometime between
October 2008-December 2008."
¶ 16 In August 2013, we affirmed the circuit court's dismissal of the 2011 action as
duplicative. Osler Institute, Inc. v. Miller, 2013 IL App (1st) 123053-U.
¶ 17 On October 1, 2013, the circuit court dismissed the section 2-615 portion of Miller's
motion to dismiss, finding that Osler's amended supplemental complaint was "both procedurally
and substantively sufficient to state a cause of action and adequately apprise defendant of the
nature of the claims he is called upon to answer."
¶ 18 On October 15, 2013, Osler filed a memorandum of law in opposition to Miller's section
2-619 motion to dismiss, arguing that the laches defense did not apply to Miller. The same day,
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Osler also filed a motion to strike paragraphs 3, 4, and 5 of Miller's affidavit in support of his
section 2-619 motion "on the grounds that the statements made in those paragraphs are
conclusory."
¶ 19 On October 22, 2013, Miller filed a reply in support of his section 2-619 motion to
dismiss in which he also noted his contention pursuant to section 2-619(a)(3) was moot as the
circuit court's dismissal of the 2011 complaint had been affirmed on appeal subsequent to
Miller's filing of his motion to dismiss.
¶ 20 On November 12, 2013, in a written order, the circuit court found that Osler's motion to
strike was without merit and granted Miller's motion to dismiss based on laches.
¶ 21 On appeal, Osler first contends that the trial court erred by dismissing its complaint on
the basis of laches.
¶ 22 A motion pursuant to section 2-619 challenges a complaint based on certain defects or
defenses. 735 ILCS 5/2-619 (West 2012). Section 2-619(a)(9) provides for dismissal of a claim
if it is barred by some affirmative matter. 735 ILCS 5/2-619(a)(9) (West 2012). An "affirmative
matter" is any defense other than a negation of the essential allegations of the plaintiff's cause of
action. Kedzie & 103rd Currency Exchange, Inc. v. Hodge, 156 Ill. 2d 112, 115 (1993). In
reviewing a dismissal pursuant to a section 2-619 motion, the court must interpret the pleadings
and supporting materials in the light most favorable to the nonmoving party. Mo v. Hergan,
2012 IL App (1st) 113179, ¶ 34. If the defendant satisfies the initial burden of presenting an
affirmative matter, the burden then shifts to the plaintiff to establish that the defense is
unfounded or requires the resolution of an essential element of material fact before it is proven.
Kedzie, 156 Ill. 2d at 116. "If, after considering the pleadings and affidavits, the trial judge finds
that the plaintiff has failed to carry the shifted burden of going forward, the motion may be
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granted and the cause of action dismissed. [Citation.]" (Internal quotation marks omitted.) Van
Meter v. Darien Park District, 207 Ill. 2d 359, 377 (2003).
¶ 23 "Laches is an equitable principle which bars an action where, because of delay in
bringing suit, a party has been misled or prejudiced or has taken a course of action different from
what the party otherwise would have taken." Senese v. Climatemp, Inc., 289 Ill. App. 3d 570,
578 (1997). In order to present a successful defense of laches, a defendant must show both that
the plaintiff lacked diligence in presenting its claim and the defendant was prejudiced as a result
of the delay. Mo, 2012 IL App (1st) 113179, ¶ 36. A claim of laches will only be considered
present where there is:
" '(1) [C]onduct on the part of the defendant giving rise to the
situation of which complaint is made and for which the
complainant seeks a remedy; (2) delay in asserting the
complainant's rights, the complainant having had notice or
knowledge of defendant's conduct and the opportunity to institute a
suit; (3) lack of knowledge or notice on the part of the defendant
that the complainant would assert the right on which he bases his
suit[;] and (4) injury or prejudice to the defendant in the event
relief is accorded to the complainant.' " O'Brien v. Meyer, 281 Ill.
App. 3d 832, 838 (1996) (quoting Pyle v. Ferrell, 12 Ill. 2d 547,
553 (1958)).
The burden is on the defendant to establish laches by a preponderance of the evidence. O'Brien,
281 Ill. App. 3d at 834. Whether the defense of laches is available to a defendant depends on the
facts and circumstances of each case. Nancy's Home of the Stuffed Pizza, Inc. v. Cirrincione,
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144 Ill. App. 3d 934, 941 (1986). In addition, the defense of laches is more than a mere delay in
asserting a right. Id. Rather, the defendant must show prejudice or hardship rather than a mere
passage of time. Id.
¶ 24 As an initial matter, the parties disagree as to the standard of review. Osler claims that a
ruling on a section 2-619 motion to dismiss is reviewed de novo, citing In re Estate of Schlenker,
209 Ill. 2d 456, 461 (2004), and Piser v. State Farm Mutual Automobile Insurance Co., 405 Ill.
App. 3d 341, 345 (2010). Miller argues that the standard of review for a decision based upon
laches is an abuse of discretion, citing Lozman v. Putnam, 379 Ill. App. 3d 807 (2008), and
Hannigan v. Hoffmeister, 240 Ill. App. 3d 1065 (1992). However, the cases that Miller cites are
distinguishable. In Lozman, the circuit court made the factual determination that the doctrine of
laches barred the plaintiffs' recovery on certain claims after a full jury trial, rather than applying
the doctrine pursuant to a section 2-619 motion to dismiss like in the present case. Lozman, 379
Ill. App. 3d at 818-19. Hannigan involved a petition for mandamus filed against a government
body, not a section 2-619 motion to dismiss in a case between a corporation and an individual.
Hannigan, 240 Ill. App. 3d at 1074-75. In addition, Illinois case law is clear that the dismissal of
a cause pursuant to section 2-619 is reviewed de novo. Borowiec v. Gateway 2000, Inc., 209 Ill.
2d 376, 383 (2004); Michigan Indiana Condominium Ass'n v. Michigan Place, LLC, 2014 IL
App (1st) 123764, ¶ 9; Ashley v. Pierson, 339 Ill. App. 3d 733, 737 (2003); see also Valdovinos
v. Tomita, 394 Ill. App. 3d 14, 18 (2009) (finding that the appellate court "does not give
deference to the circuit court's judgment on a motion to dismiss pursuant to section 2-619 but,
rather, reviews the matter de novo"). Accordingly, we apply a de novo standard of review to the
circuit court's grant of Miller's 2-619 motion to dismiss on the basis of laches.
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¶ 25 In the present case, we find the circuit court properly applied the defense of laches. First,
the record shows that Osler learned of the alleged violation on September 27, 2006, just short of
two months after the circuit court had ordered Miller to pay sanctions to Osler, based on Osler's
fee petition. However, Osler did not file a claim based on that violation until September 26,
2008, almost two full years after it originally discovered the alleged violation and 12 days after
the consent decree expired. Moreover, Osler filed suit in the state of Indiana, despite both
having previously filed a petition or rule to show cause and a fee petition for a violation of the
consent decree in the circuit court of Cook County and the consent decree's explicit language that
the circuit court of Cook County would retain jurisdiction "for the purpose of enforcing or
modifying this Consent Decree and for the purpose of granting such additional relief as may be
necessary or appropriate." As the circuit court pointed out below:
"Instead of properly bringing the matter before the court that had
entered and retained jurisdiction over the enforcement of the 2005
Consent Decree, [Osler] elected to sit on [its] hands for two
years—until after the Consent Decree had expired—before
bringing its claims, not in Illinois, but in Indiana. "
Osler has alleged nothing to suggest that Miller somehow caused Osler's delay in filing suit for
the almost two years after it discovered the violation. As the supreme court explained, the
defendant cannot be "guilty of any affirmative act of deception to prevent suspicion and inquiry."
Pyle, 12 Ill. 2d at 554. Osler argues that Miller's removal of PowerPoint presentations, lecture
DVDs, and lecture notes owned by Osler and converting them for his own use constituted an
affirmative act of deception that led to the delay. However, it is undisputed that Osler learned of
this second alleged violation of the consent decree on September 27, 2006. Even assuming
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Miller removed the PowerPoint presentations, lecture DVDs, and lecture notes owned by Osler
and converted them for his own purposes on September 27, 2006, such actions by Miller still
would not explain why Osler waited almost two years, until September 26, 2008, to file suit in
the state of Indiana. Osler has never offered any explanation for why it waited almost two years
to file. We conclude that Osler lacked the required diligence in pursuing the present action.
¶ 26 Moreover, there is no question that Miller suffered prejudice as a result of Osler's delay
in filing suit. First, because Osler waited until after the consent decree expired to file suit, Miller
was "lulled into doing that which he would not have done *** had the right been properly
asserted." (Internal quotation marks omitted). O'Brien, 281 Ill. App. 3d at 839. Miller argued in
his motion to dismiss that as a result of the delay he was unable to "secure or locate certain
relevant witnesses, documents, web site data, marketing materials, promotional materials and
other critical exculpatory evidence which he might have *** used to properly defend himself
against these meritless allegations" and he "did not retain or possess copies of whatever
[PowerPoint] presentations, lecture DVD's [sic], lecture notes, emails and/or correspondence,
marketing materials, promotional materials, or website data which might have supported his
defense of this claim." This claim is supported by Miller's affidavit, in which he averred that he
believed he was in compliance with the consent decree after being sanctioned for the Kentucky
violation and that he did not learn of the alleged violation at issue in the present case until he was
served with the Indiana lawsuit between October and December 2008. Miller also averred that
he was unable to locate and no longer possessed relevant witness information, documents, web
site data, marketing materials, promotional materials, PowerPoint presentations, lecture DVDs,
lecture notes, emails or correspondence, "which [he] may have generated or that may have
existed between September 14, 2005-September 14, 2008." Osler claims that Miller should have
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maintained "any information relevant to the consent decree until its expiration" and
"[p]resumably, Miller would be expected to maintain whatever evidence he possessed during the
pendency of the Indiana litigation." However, Osler did not file suit in Indiana until September
26, 2008, 12 days after the consent decree expired, and, according to his affidavit, Miller did not
learn of the Indiana suit until October 2008 at the earliest. Osler has not cited to any legal
authority to suggest that Miller was required to maintain documentation or information relevant
to the consent decree once the consent decree expired. See Ill. S. Ct. R. 341(h)(7) (eff. July 1,
2008) (the argument section of appellant's brief "shall contain the contentions of the appellant
and the reasons therefor, with citation of the authorities and the pages of the record relied on").
Here, we find it was reasonable for Miller to dispose of any documentation that might have been
relevant to the consent decree once the consent decree expired.
¶ 27 In addition, because Osler waited until after the consent decree expired and first filed suit
in the state of Indiana, Miller was forced to defend multiple lawsuits in two states over a span of
years beginning in 2008, based on an alleged violation of the consent decree that Osler learned of
in 2006. As an appellate court, we may affirm on any basis in the record, regardless of whether
the circuit court relied on that basis. Gallaher v. Hasbrouk, 2013 IL App (1st) 122969, ¶ 17.
With this principle in mind, we note that the Indiana Court of Appeals found that essentially the
same action that Osler has filed in the present case was barred by res judicata because Osler
could have filed the action in the circuit court of Cook County but instead chose to file it in the
state of Indiana. In doing so, the court noted that Osler learned of the alleged violation almost
two full years before the consent decree was set to expire and the "newly discovered information
was within the subject matter of the Consent Decree, which was based *** on Osler's original
allegations that Miller had misappropriated Osler's trade secrets. Further, the Illinois court
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expressly retained jurisdiction over the parties to that action ***." (Emphasis added.) Miller,
No. 84A05-1003-PL-237, slip op. at 6-7.
¶ 28 Osler claims that it filed suit in Indiana because "virtually" every defendant except for
Miller resided in the state of Indiana and the conduct complained of occurred in Indiana or
Ontario, Canada. However, as even the Indiana Court of Appeals noted, the circuit court of
Cook County had expressly retained jurisdiction over the parties to the consent decree for the
purpose of enforcing the consent decree and Osler waited almost two years, until after the
consent decree expired, to file suit. Osler further argues that it is unaware of any authority that
holds allowing two years to pass after learning of a potential claim before filing suit is an
unreasonable delay but the cases on which Osler relies are distinguishable. See In re Marriage
of Tutor, 2011 IL App (2d) 100187; McSweeney v. Buti, 263 Ill. App. 3d 955 (1994).
¶ 29 In Marriage of Tutor, the appellate court found that the respondent had forfeited the
defense of laches because he failed to cite to any page in the record in support of his argument.
Marriage of Tutor, 2011 IL App (2d) 100187, ¶¶ 30-31. Here, in contrast, Miller has cited to the
record in support of his motion to dismiss and also included a supporting affidavit.
¶ 30 In McSweeney, the administrator of a deceased partner's estate and the assignees of the
proceeds of a portion of the deceased partner's partnership interest sued the surviving partners for
a declaratory judgment, an accounting, and damages for the defendants' unilateral sale of the
partnership property to themselves. McSweeney, 263 Ill. App. 3d at 956. After a trial, the circuit
court entered judgment in favor of the plaintiffs and against the defendants. Id. at 958. One of
the issues on appeal was whether the circuit court erred by not barring the plaintiffs' claim based
on the affirmative defense of laches where the claim was filed more than two years after the right
to the accounting had accrued. Id. at 961-62. The appellate court found:
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"[L]aches is not apparent on the face of the complaint. The right to
maintain an action for accounting had not expired. Additionally,
since there was [no] unreasonable delay in bringing an action for
relief that prejudiced the rights of the other party, the doctrine of
laches is not applicable to the case at bar. Therefore, [the plaintiff]
is not precluded from maintaining an action for an accounting by
reason of the five-year statute of limitations." Id. at 962.
We first note that the procedural posture of the present case is completely different than that in
McSweeney. Here, the defense of laches was addressed in a section 2-619(a)(9) motion to
dismiss, while in McSweeney the court addressed the defense of laches in the context of a trial on
the issue of liability. Id. at 958. Furthermore, the court in McSweeney found no other
circumstances that would prejudice the defendants as a result of the delay. Id. at 962. In the
present case, as discussed above, additional circumstances resulted in prejudice to Miller due to
Osler's delay.
¶ 31 Finally, we again observe that whether the defense of laches is available to a defendant
depends on the facts and circumstances of each case. Cirrincione, 144 Ill. App. 3d at 941.
Under these circumstances, we find that Osler lacked diligence in filing suit and that the delay in
filing resulted in significant prejudice to Miller. Accordingly, the circuit court properly granted
Miller's motion to dismiss on the basis of laches.
¶ 32 Osler next contends that paragraphs three, four, and five of Miller's affidavit in support of
his motion to dismiss should have been stricken, alleging they are conclusory and technically
deficient. Osler concludes that because Miller's affidavit in support of his motion to dismiss had
been stricken, his motion to dismiss should have been denied.
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¶ 33 Illinois Supreme Court Rule 191(a) (eff. Jan. 4, 2013) provides:
"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."
¶ 34 Here, Osler argues that Miller's affidavit was deficient because it was conclusory and
because the statements did not set forth with particularity the facts upon which Miller's laches
defense was based. Paragraph three of Miller's affidavit stated that he no longer possessed
relevant witness information, documents, website data, marketing materials, promotional
materials, PowerPoint presentations, lecture DVDs, lecture notes, emails or correspondence,
"which [he] may have generated or may have existed" during the period of time covered by the
consent decree. Paragraph four states that Miller believed he was in compliance with the consent
decree after he was sanctioned for the 2006 Kentucky violation. Paragraph five states that Miller
did not receive notice of the alleged violation in the present case until he was served with the
Indiana lawsuit between October and December 2008. Miller's affidavit establishes that he
believed he was in compliance with the consent decree and that he did not receive notice of a
violation of the consent decree until at least October 2008, which would explain why he would
no longer be in possession of relevant witness information, documents, website data, marketing
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materials, promotional materials, PowerPoint presentations, lecture DVDs, lecture notes, e-mails,
or correspondence that would have existed during the consent decree period. Osler claims that
the term "relevant" is an improper legal conclusion and that Miller was required to identify and
name each "missing" document, but fails to cite any case law to support its argument. Illinois
Supreme Court Rule 341(h)(7) (eff. July 1, 2008) requires that the argument section of an
appellant's brief "shall contain the contentions of the appellant and the reasons therefore, with
citation of the authorities and the pages of the record relied on." Failure to support a contention
with relevant authority fails to meet this requirement and results in waiver of the argument.
Cholipski v. Bovis Lend Lease, Inc., 2014 IL App (1st) 132842, ¶ 53. In addition, we disagree
with Osler that "relevant" is an improper legal conclusion. The plain and ordinary meaning of
the word "relevant" is either "having significant and demonstrable bearing on the matter at hand"
or "affording evidence tending to prove or disprove the matter at issue or under discussion."
Merriam-Webster's Collegiate Dictionary 987 (10th ed. 1996). We find Miller's use of the term
"relevant" to be perfectly acceptable method of describing how the witness information,
documents, website data, marketing materials, promotional materials PowerPoint presentations,
lecture DVDs, lecture notes, emails, and correspondence relate to the matter at hand. Osler also
argues that "Miller had every reason to maintain these so-called exculpatory documents up to the
time he received notice of Osler's claim during October 2008." However, this argument is again
unsupported by any legal authority or citation to the record and amounts to a conclusion that fails
to meet the requirements of Illinois Supreme Court Rule 341(h)(7). We find that Miller's
affidavit is sufficient to support his argument that he was prejudiced by Osler's delay in filing
suit in the state of Indiana until 12 days after the consent decree expired and an additional 3-year
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delay in filing suit in the circuit court of Cook County, which explicitly retained jurisdiction over
the action for the purposes of enforcing the consent decree.
¶ 35 In addition, the cases that Osler does cite are distinguishable from the present case. See
American Service Insurance Co. v. China Ocean Shipping Co. (Americas), Inc., 402 Ill. App. 3d
513, 524 (2010) (finding that an affidavit was properly stricken where it decided the definition of
the term "insured" for the court and it was unclear whether the affiant had personal knowledge of
the insurance policy at issue); Madden v. F.H. Paschen/S.N. Nielson, Inc., 395 Ill. App. 3d 362,
388 (2009) (holding that the statement that an area was "under control" of the defendants at the
time of the accident at issue was a legal conclusion rather than a statement of fact); Webber v.
Armstrong World Industries, Inc., 235 Ill. App. 3d 790, 798-99 (1992) (striking down certain
averments in an affidavit from the plaintiff’s coworker that failed to identify the place and time
of exposure to asbestos in a personal injury case based on alleged exposure to asbestos). The
cited cases are neither factually similar to the present case nor do they use the same terminology
in the affidavits at issue and therefore are inapposite. Accordingly, we find the circuit court
properly denied Osler’s motion to strike Miller's affidavit and properly relied on Miller's
affidavit in support of his motion to dismiss.
¶ 36 For the foregoing reasons, we affirm the judgment of the circuit court.
¶ 37 Affirmed.
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