FILED December 28, 2016 2016 IL App (4th) 160271 Carla Bender th 4 District Appellate NO. 4-16-0271 Court, IL IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
VANTAGE HOSPITALITY GROUP, INC., ) Appeal from Plaintiff-Appellee, ) Circuit Court of v. ) Adams County Q ILL DEVELOPMENT, LLC, d/b/a Shepherd’s Inn, ) No. 14LM32 Defendant-Appellant. ) ) Honorable ) Debra L. Wellborn, ) Judge Presiding.
JUSTICE STEIGMANN delivered the judgment of the court, with opinion. Justices Harris and Appleton concurred in the judgment and opinion.
OPINION
¶1 In 2006, plaintiff, Vantage Hospitality Group, Inc. (Vantage), and defendant, Q Ill
Development, LLC, d/b/a Shepherd’s Inn (QIll), entered into a franchise agreement titled
“America’s Best Value Inn Brand Membership Application and Agreement” (Agreement), pur-
suant to which QIll could use the America’s Best Value Inn brand to market and operate its hotel
in Quincy, Illinois. The Agreement included an area of protection clause (Area of Protection),
which limited Vantage’s ability to execute new franchise agreements with other hotels in the
Quincy area.
¶2 In February 2014, Vantage filed a complaint alleging that QIll had failed to pay
its required monthly dues under the Agreement. In response, QIll filed an answer and a counter-
claim, alleging that Vantage had breached the Agreement by licensing a hotel in Hannibal, Mis-
souri, contrary to the Area of Protection provision. ¶3 In October 2015, Vantage filed a motion to dismiss QIll’s counterclaim pursuant
to section 2-619(a)(9) of the Code of Civil Procedure (Code) (735 ILCS 5/2-619(a)(9) (West
2014)). Attached to that motion were (1) a document titled “Special Considerations Addendum”
(Addendum) and (2) an affidavit of Jordan Langlois, the vice president of brand management for
Vantage. In its motion to dismiss, Vantage argued that QIll had breached the Addendum begin-
ning in December 2006 by failing to attend mandatory annual meetings, a fact asserted by
Langlois in his affidavit. Vantage argued further that QIll’s breach of the Addendum voided any
Area of Protection clause, meaning that Vantage’s licensing of the Hannibal hotel did not consti-
tute a breach. The trial court granted Vantage’s motion to dismiss.
¶4 In December 2015, QIll filed a motion to reconsider the trial court’s decision to
dismiss QIll’s counterclaim. In that motion, QIll argued, in part, that Langlois’s affidavit failed
on multiple grounds to comply with Illinois Supreme Court Rule 191(a) (eff. Jan. 4, 2013). After
a hearing on the motion to reconsider, the court struck part of Langlois’s affidavit but adhered to
its decision to dismiss QIll’s counterclaim. QIll appeals. We affirm.
¶5 I. BACKGROUND
¶6 A. The Agreement
¶7 On February 2, 2006, Vantage and QIll executed the Agreement that allowed QIll
to use the America’s Best Value Inn brand to style and market its hotel in Quincy, Illinois. The
Agreement also included an Area of Protection clause, which provided the following: “[Vantage]
shall not allow its name or offer membership to any property within 40 miles of Quincy. Hanni-
bal, MO, will be allowed only on applicants with a new construction or major renovation.”
¶8 B. Vantage’s Complaint
¶9 In February 2014, Vantage filed a complaint alleging that QIll had failed to pay
-2- its monthly dues as required by the Agreement. Vantage requested $34,550 in damages, plus
court costs. Attached to the complaint was the Agreement, among other attachments.
¶ 10 C. QIll’s Counterclaim
¶ 11 In May 2014, QIll filed an answer and a one-count counterclaim alleging breach
of contract. Specifically, QIll alleged that Vantage violated the Agreement by licensing a hotel in
Hannibal, Missouri, thereby violating the Area of Protection clause. QIll sought monetary dam-
ages and attorney fees as a remedy for Vantage’s alleged breach of the Agreement. In June 2014,
Vantage filed an answer to QIll’s counterclaim.
¶ 12 D. Vantage’s Section 2-619 Motion To Dismiss QIll’s Counterclaim
¶ 13 In October 2015, Vantage filed, under section 2-619(a)(9) of the Code, a motion
to dismiss QIll’s counterclaim. In support of its motion, Vantage attached (1) the affidavit of
Jordan Langlois, Vantage’s Vice-President of Brand Management, and (2) the Addendum, which
was executed by representatives of Vantage and QIll on February 23, 2006, three weeks after
Vantage and QIll initially executed the Agreement. The Addendum stated that it was “incorpo-
rated into the [Agreement].” The Addendum included the following new Area of Protection pro-
vision:
“[Vantage] agrees not to establish, or, or [sic] allow to exist, any other
[Vantage] properties, within a 10 mile radius of Quincy, IL, will also include a
right of first refusal for a radius of 40 miles, from Quincy IL. Hannibal, MO will
be allowed only on properties under new construction or major renovations, for
the period of the contract.”
¶ 14 The Addendum also included a section titled “Conditions of Area of Protection.”
That section included the following relevant provision: QIll “shall send at least one property rep-
-3- resentative to the Annual conference every year for educational training, Brand initiatives, and
overall ROI analysis” (Annual Meeting Provision). The Addendum concluded with the following
language: “The terms and conditions of this Addendum shall be controlling over any conflicting
terms and conditions contained in the [Agreement] to which this Addendum is attached and
made a part thereof.”
¶ 15 Vantage asserted that QIll violated the Annual Meeting Provision of the Adden-
dum, as shown in Langlois’s affidavit, which stated, in pertinent part, the following:
“QIll *** failed to ever, during the entire term of the contract, to [sic] send
at least one of its representatives to the annual [Vantage] training conferences
held in Las Vegas, Nevada[,] in December of 2006 through 2012 ***.”
¶ 16 Langlois’s Affidavit concluded with the following two paragraphs:
“9. This affidavit is given in support of Plaintiff’s Motion to Dismiss the
Defendant’s Counterclaim ***.
10. The foregoing is true and correct to the best of my personal
knowledge, and I could competently testify in open court if called upon to do so,
as to the facts set forth herein.”
¶ 17 Vantage argued in its motion to dismiss that QIll’s breach of the Annual Meeting
Provision of the Addendum voided the limitations placed on Vantage by the Area of Protection
clause of the Addendum. Vantage concluded that QIll’s breach constituted a “sufficient affirma-
tive matter that defeats [QIll’s] [c]ounterclaim, pursuant to § 2-619(a)(9) of the [Code].”
¶ 18 QIll filed a written response in November 2015 to Vantage’s section 2-619 mo-
tion to dismiss. In that response, QIll argued that (1) the alleged “affirmative matter” argued by
Vantage in its motion failed because it did nothing more than refute a well-pleaded fact in the
-4- counterclaim, (2) Vantage’s claim regarding the Annual Meeting Provision in the Addendum
failed because that provision constitutes a “condition subsequent,” not a “condition precedent,”
and (3) QIll’s counterclaim is to be taken as true for purposes of a section 2-619 motion.
¶ 19 E. The Trial Court’s December 2, 2015, Order
¶ 20 The trial court conducted a hearing on Vantage’s motion to dismiss and granted it
in a written order on December 2, 2015. The order accepted Vantage’s argument that QIll violat-
ed the Annual Meeting Provision of the Addendum, thereby voiding the Area of Protection
clause. The court explained that the “evidence presented by Vantage taken in the light most fa-
vorable to QIll does support by a preponderance of the evidence Vantage’s claim that an Area of
Protection no longer existed at the time that Vantage entered into an agreement for [a] *** Brand
Hotel in Hannibal, Missouri.” The court added that “[n]o opposing evidence which would raise
any issue of genuine fact is presented by QIll.”
¶ 21 F. QIll’s Motion To Reconsider
¶ 22 Later in December 2015, QIll filed a motion to reconsider the trial court’s deci-
sion to grant Vantage’s motion to dismiss. In that motion, QIll made three arguments:
(1) Langlois’s affidavit failed to comply with Rule 191(a), (2) the trial court failed to take as true
the allegations contained in QIll’s counterclaim, and (3) the court improperly construed ambigui-
ties between the original Agreement and the Addendum.
¶ 23 Specifically, in its first argument, QIll argued that Langlois’s affidavit failed to
comply with Rule 191(a) on the following four grounds: (1) the assertions in the affidavit were
not based on Langlois’s personal knowledge, (2) the affidavit did not have attached sworn or cer-
tified copies of all the papers upon which Langlois relied, (3) the affidavit did not contain facts
admissible in evidence but instead contained conclusions, and (4) the affidavit did not show that
-5- Langlois could testify competently to the facts stated in the affidavit. On this last point, QIll
questioned how Langlois could have personal knowledge that no representative of QIll attended
the annual meetings.
¶ 24 As its second argument, QIll contended that (1) Vantage’s motion to dismiss
merely denied the allegations of QIll’s counterclaim and (2) the trial court failed to take as true
the allegations contained in QIll’s counterclaim, which QIll claimed the court was required to do
when ruling on a section 2-619 motion to dismiss.
¶ 25 Last, QIll argued that the trial court failed to properly resolve two “ambiguities”
contained within the Agreement and the Addendum. Specifically, QIll argued that the Agreement
and the Addendum both included an Area of Protection provision and that an ambiguity arose as
to which Area of Protection provision ought to apply. In addition, QIll argued that the terms of
the Addendum were “conditions subsequent,” not “conditions precedent,” and that Vantage was
the first party to breach either the Agreement or the Addendum. As relief, QIll asked the trial
court to strike Langlois’s affidavit, vacate its order dismissing QIll’s counterclaim, and enter a
new order denying Vantage’s motion to dismiss.
¶ 26 In March 2016, the trial court conducted a hearing on QIll’s motion to reconsider.
Vantage argued that the motion to reconsider was inappropriate because QIll did not allege that
there was newly discovered evidence or that the court had misapplied the law in reaching its de-
cision to dismiss. QIll responded by arguing that the court “made errors in the application of law
regarding the affidavit.” The court stated its concern “if there was any mistake on my part in
what needed to be in that affidavit or attached to that that I did not consider. *** I would like to
review that for that issue.” The court noted that “if there’s something I’m not addressing, now is
the time to do it, as opposed to us coming back here.”
-6- ¶ 27 G. The Trial Court’s March 17, 2016, Order
¶ 28 On March 17, 2016, the trial court entered a written order denying QIll’s motion
to reconsider. In that order, the court addressed the merits of QIll’s arguments that the Langlois
affidavit violated Rule 191(a). Apparently in agreement with at least some of QIll’s assertions in
the motion to reconsider, the court struck multiple paragraphs of Langlois’s affidavit but deter-
mined that “the court’s ruling on [Vantage’s section 2-619] motion to dismiss does not rely on
any of the matters stricken from the affidavit.” The court explained as follows:
“The [c]ourt does not find that personal knowledge of attendance at an
event must have written documentation attached and therefore also finds that the
affidavit satisfies the initial burden of going forward with the motion to dismiss.
The burden then shifts to the [c]ounter[c]laimant. Counter[c]laimant has not sub-
mitted an affidavit to refute this evidentiary fact. The fact of nonattendance of a
QIll representative at the annual conference in December 2006 is admitted. Pursu-
ant to the Addendum from that point forward[,] Vantage had no obligation to pro-
vide that Hannibal, Missouri[,] will only allow applicants of a new or major re-
construction to use the name of America’s Best Value Inn or be offered member-
ship by the brand as part of an area protecting QIll from same brand name compe-
tition in Hannibal, Missouri.”
In addition, the court determined that the Agreement and Addendum were not ambiguous. In
denying QIll’s motion to reconsider, the court’s order included language that “there is no just
reason to delay enforcement or appeal of this decision.”
¶ 29 This appeal followed.
¶ 30 II. ANALYSIS
-7- ¶ 31 On appeal, QIll argues that (1) the trial court erred by granting Vantage’s section
2-619 motion to dismiss “because the court did not strike the entire affidavit of Jordan Langlois”
and (2) the court erred by finding that there were conditions to the areas of protection under the
Agreement and Addendum. By making only these arguments, QIll has abandoned the primary
argument it made in response to Vantage’s motion to dismiss the counterclaim. That abandoned
argument was that “the ‘affirmative matter’ presented by the movant must do more than refute a
well-pleaded fact in the complaint,” and Vantage’s motion to dismiss allegedly did not meet that
standard.
¶ 32 A. The Claim That Langlois’s Affidavit Failed To Comply With Rule 191(a)
¶ 33 Before addressing the substance of QIll’s claim that Langlois’s affidavit failed to
comply with Rule 191(a), we address the procedural context in which that argument was made in
the trial court. Specifically, we note that the argument QIll now makes regarding alleged defi-
ciencies in Langlois’s affidavit was never presented or argued to the trial court when it conduct-
ed the initial hearing on Vantage’s motion under section 2-619 of the Code to dismiss QIll’s
counterclaim. In its motion to dismiss, Vantage attached Langlois’s three-page affidavit, as well
as the Addendum, and argued based thereon that QIll’s violation of the Addendum allegedly
constituted an affirmative matter under section 2-619(a)(9) of the Code because they effectively
caused QIll to lose its Area of Protection, which was the basis of QIll’s counterclaim.
¶ 34 QIll’s written response to Vantage’s motion to dismiss, as well as QIll’s later ar-
guments in court, argued that (1) the alleged “affirmative matter” cited by Vantage in its motion
failed because it did nothing more than refute a well-pleaded fact in the counterclaim,
(2) Vantage’s claims regarding the Annual Meeting Provision in the Addendum fails because
that provision constitutes a “condition subsequent,” not a “condition precedent,” and (3) QIll’s
-8- counterclaim is to be taken as true for purposes of a section 2-619 motion. Important for this
case, QIll in its initial response and arguments never raised any claimed alleged deficiencies in
Langlois’s affidavit.
¶ 35 1. The Motion To Reconsider
¶ 36 Only after the trial court granted Vantage’s motion to dismiss did QIll challenge
the adequacy of Langlois’s affidavit in support of that motion, doing so in the motion to recon-
sider that QIll filed four weeks after the trial court had granted Vantage’s motion to dismiss. In
its reply brief to this court, QIll cites its initial response to Vantage’s motion to dismiss and
claims that in paragraph three thereof, “the inadequate and improper nature of Langlois’[s] Affi-
davit was sufficiently addressed by [QIll] to avoid its objections to the affidavit from being
waived.” We have carefully read paragraph three, and this assertion is false. Similarly false is
QIll’s claim that at the hearing on Vantage’s motion to dismiss, QIll raised any objections about
¶ 37 In fact, at the hearing on Vantage’s motion to dismiss, QIll’s counsel referred to
its written response to Vantage’s motion to dismiss and said, “We cited two reasons” why that
motion should be denied. (Emphasis added.) Counsel then explained that those two reasons were
(1) the allegations in Vantage’s motion to dismiss did not properly constitute an affirmative mat-
ter but instead merely refuted the facts within the counterclaim and (2) the Agreement and the
Addendum each contain an Area of Protection provision, and the conditions regarding the Area
of Protection provision in the Addendum do not affect the Area of Protection provision in the
Agreement. To be clear, at no point did QIll raise any of the Rule 191(a) objections to Langlois’s
affidavit either before or during the hearing on Vantage’s motion to dismiss under section 2-619
of the Code.
-9- ¶ 38 Despite this failure, QIll filed a motion to reconsider in which—for the first
time—it challenged Langlois’s affidavit on the ground that it did not comply with Rule 191(a).
Specifically, in its motion to reconsider, QIll alleged that Langlois’s affidavit “(1) was not made
using the affiant’s personal knowledge, (2) did not have attached sworn or certified copies of all
papers upon which the affiant relied, (3) did not contain facts admissible in evidence, and (4) the
affiant did not show how he could testify competently to the facts stated in the affidavit.” Of
course, all of these alleged deficiencies were present in Langlois’s affidavit prior to the initial
hearing on Vantage’s motion to dismiss under section 2-619(a) of the Code, and as we have not-
ed, QIll raised none of these objections at or before that hearing. So, the first question, given
these circumstances, is why did the trial court grant the motion to reconsider, at least to the ex-
tent of conducting a hearing thereon and then later striking some paragraphs from Langlois’s af-
fidavit? The record provides no explanation.
¶ 39 2. The Gardner Holding
¶ 40 Twenty-six years ago, this court was confronted with a civil case in which the
plaintiff filed a motion for reconsideration of the trial court’s order granting the defendant’s mo-
tion for summary judgment. Gardner v. Navistar International Transportation Corp., 213 Ill.
App. 3d 242, 571 N.E.2d 1107 (1991). We expressed our disapproval of the plaintiff’s motion in
that case, explaining as follows:
“The intended purpose of a petition to reconsider is to bring to the court’s atten-
tion (1) newly discovered evidence which was not available at the time of the first
hearing, (2) changes in the law, or (3) errors in the court’s previous application of
existing law. [Citation.] Even if [this] affidavit were sufficient under Supreme
Court Rule 191, the trial court would have been justified in disregarding the con-
- 10 - tents of that affidavit solely because all of that material had been available prior to
the hearing on the motion for summary judgment [citation], and plaintiff did not
provide any explanation (much less a reasonable one) as to why this material was
not offered in response to the motion for summary judgment before the hearing
was held [citation].” (Emphasis in original.) Id. at 248, 571 N.E.2d at 1111.
¶ 41 Based upon the above discussion of the circumstances before us, this court con-
cluded its analysis with the following two sentences, which for ease of reference we will deem
the Gardner holding:
“Trial courts should not permit litigants to stand mute, lose a motion, and then
frantically gather evidentiary material to show that the court erred in its ruling.
Civil proceedings already suffer from far too many delays, and the interests of fi-
nality and efficiency require that the trial courts not consider such late-tendered
evidentiary material, no matter what the contents thereof may be.” (Emphasis in
original.) Id. at 248-49, 571 N.E.2d at 1111.
¶ 42 The Gardner holding has been repeatedly quoted approvingly by Illinois courts.
See, for instance, In re Estate of Bennoon, 2014 IL App (1st) 122224, ¶ 93, 13 N.E.3d 236;
Devyn Corp. v. City of Bloomington, 2015 IL App (4th) 140819, ¶¶ 65-66, 38 N.E.3d 1266
(where this court noted that neither the plaintiff’s motion for rehearing nor its argument on ap-
peal provided any explanation as to why the statements at issue were not presented in the plain-
tiff’s cross-motion for summary judgment); CNB Bank & Trust, N.A. v. Rosentreter, 2015 IL
App (4th) 140141, ¶ 140, 39 N.E.3d 337 (“We realize that, in their motion for reconsideration,
defendants presented additional evidence to the trial court. But the trial court was not obliged to
consider it.”); Koczor v. Melnyk, 407 Ill. App. 3d 994, 1003, 944 N.E.2d 345, 353 (1st Dist.
- 11 - 2011); Universal Scrap Metals, Inc. v. J. Sandman & Sons, Inc., 337 Ill. App 3d 501, 508, 786
N.E.2d 574, 581 (1st Dist. 2003); Perkey v. Portes-Jarol, 2013 IL App (2d) 120470, ¶ 108, 1
N.E.3d 5 (“The trial court’s ruling striking the evidence conformed with the principle that ‘[t]rial
courts should not permit litigants to stand mute, lose a motion, and then frantically gather evi-
dentiary material to show that the court erred in its ruling.’ ”); Peregrine Financial Group, Inc. v.
TradeMaven, L.L.C., 391 Ill. App. 3d 309, 320, 909 N.E.2d 837, 847 (1st Dist. 2009) (“The trial
court was justified in disregarding [the affidavit at issue] because the information contained
therein was available to the plaintiff at the time of the summary judgment motion hearing and,
therefore, should have been brought then.”); Merchants Bank v. Roberts, 292 Ill. App. 3d 925,
930, 686 N.E.2d 1202, 1207 (2d Dist. 1997) (“The motion for reconsideration in this case failed
to satisfy the above test [from Gardner] in any respect. Therefore, the trial court did not err in
denying that portion of the emergency motion seeking reconsideration of the trial court’s order
***.”); Simmons v. Reichardt, 406 Ill. App. 3d 317, 325, 943 N.E.2d 752, 758 (4th Dist. 2010);
Stringer v. Packaging Corp. of America, 351 Ill. App. 3d 1135, 1141, 815 N.E.2d 476, 481 (4th
Dist. 2004).
¶ 43 The Gardner holding has even been cited approvingly by the Illinois Supreme
Court. In Robidoux v. Oliphant, 201 Ill. 2d 324, 327, 775 N.E.2d 987, 989 (2002), the trial court
struck the affidavit of the plaintiff’s expert witness in that medical malpractice case and thereaf-
ter granted the defendant’s motion for summary judgment. The plaintiff subsequently filed a mo-
tion to reconsider that had attached thereto the documentation that plaintiff’s original response to
defendant’s motion did not contain, as required by Illinois Supreme Court Rule 191(a) (eff. Aug.
1, 1992). The trial court denied the motion to reconsider, citing the Gardner holding, which the
supreme court quoted in its entirety. Robidoux, 201 Ill. 2d at 346, 775 N.E.2d at 999. The su-
- 12 - preme court then concluded as follows:
“A ruling on a motion to reconsider is within the sound discretion of the
trial court and will not be disturbed absent an abuse of that discretion. [Citations.]
Given the circumstances in this case, and given the sound policy reasons invoked
by the trial judge, we cannot say that it was an abuse of discretion for the judge to
strike the supplemental affidavit. The trial court therefore did not err in striking
the supplemental affidavit and in denying the motion for reconsideration.” (Em-
phasis added.) Id. at 347, 775 N.E.2d at 1000.
We emphasize that the “sound policy reasons invoked by the trial judge” (id.) that the supreme
court referred to were essentially the Gardner holding.
¶ 44 We note that Illinois Supreme Court Rule 191(a) (eff. Jan. 4, 2013) states that its
requirements apply to affidavits in support of and in opposition to a motion for summary judg-
ment under section 2-1005 of the Code as well as “affidavits submitted in connection with a mo-
tion for involuntary dismissal under section 2-619 of the [Code].” Accordingly, all of the case
law, including Gardner and its progeny, that deal with affidavits in the context of motions for
summary judgment apply in full to affidavits submitted in connection with a motion for involun-
tary dismissal under section 2-619 of the Code, as in the present case.
¶ 45 3. The Gardner Holding Applies to Arguments, Not Just Evidence
¶ 46 Gardner and all of the cases subsequent thereto citing Gardner involved a trial
court’s granting of a motion for summary judgment with the other side thereafter filing a motion
to reconsider and trying “frantically” to gather evidentiary material to show that the trial court
erred by so ruling. However, that particular context is merely fortuitous; no reason exists why the
Gardner holding should not apply fully to either (1) rulings (as in this case) on motions for in-
- 13 - voluntary dismissal under section 2-619(a) of the Code or (2) to arguments, not just evidence,
which are presented after the fact to the court. In other words, the present case does not involve
the failure by QIll to present evidence at the initial hearing on Vantage’s motion to dismiss under
section 2-619 of the Code; instead, this case involves QIll’s failure to present an argument—
namely, the alleged deficiencies in Langlois’s affidavit under Rule 191(a)—that QIll later argued
to the court in its motion to reconsider as a basis for the court to deny Vantage’s motion to dis-
miss. Because, as we have pointed out, all of these alleged deficiencies were entirely clear before
the hearing on the motion to dismiss, QIll was required to present its argument regarding these
alleged deficiencies before or (at a minimum) at the time of the hearing on the motion. All of the
policy reasons contained in the Gardner holding and cited approvingly by the many cases that
have adopted that holding apply fully to arguments, as well as evidence.
¶ 47 This conclusion is hardly novel. The Supreme Court of Illinois recently addressed
the situation in which a party sought to present a new argument in a motion to reconsider after its
complaint had been dismissed. In Evanston Insurance Co. v. Riseborough, 2014 IL 114271, ¶ 36,
5 N.E.3d 158, the supreme court wrote the following:
“Evanston’s argument with respect to the relation back doctrine was argued for
the first time in its motion for reconsideration of the circuit court’s dismissal of
the second amended complaint. Evanston failed to raise the argument in its re-
sponse to defendants’ motion to dismiss; thus, it has forfeited the argument. The
purpose of a motion to reconsider is to bring the court’s attention newly discov-
ered evidence that was not available at the time of the original hearing, changes in
existing law, or errors in the court’s application of the law. [Citation.] *** Holzer
v. Motorola Lighting, Inc., 295 Ill. App. 3d 963, 978[, 693 N.E.2d 446] (1998) (a
- 14 - party may not raise a legal theory for the first time in a motion to reconsider).”
¶ 48 In Rayner Covering Systems, Inc. v. Danvers Farmers Elevator Co., 226 Ill. App.
3d 507, 510, 589 N.E.2d 1034, 1036 (1992), the Second District wrote that “the parties should
make a full presentation of evidence and arguments at the initial summary judgment hearing,
rather than at a later hearing on a motion to reconsider or, even later yet, when the case is on ap-
peal.” (Emphasis added.) Two years later, the Second District reiterated that point and made its
connection to the Gardner holding clear. In John Alden Life Insurance Co. v. Propp, 255 Ill.
App. 3d 1005, 1011, 627 N.E.2d 703, 707 (1994), the Second District quoted the Gardner hold-
ing and then referred to its decision in Rayner for the proposition that “ ‘the parties should make
a full presentation of evidence and arguments at the initial summary judgment hearing, rather
than at a later hearing on a motion to reconsider.’ ”
¶ 49 Of course, this is the same rule that applies regarding the forfeiture of arguments
that a party wishes to raise on appeal. It has long been the law of the State of Illinois that a party
who fails to make an argument in the trial court forfeits the opportunity to do so on appeal. See
1010 Lake Shore Ass’n v. Deutsche Bank National Trust Co., 2015 IL 118372, ¶ 14, 43 N.E.3d
1005 (“Issues not raised in either the trial court or the appellate court are forfeited.”); Depart-
ment of Human Services v. Porter, 396 Ill. App. 3d 701, 720, 921 N.E.2d 367, 381 (2009) (party
forfeited the argument she sought to bring before the appellate court by not raising it, in an ad-
ministrative review case, before the administrative law judge, the Civil Service Commission, or
the circuit court).
¶ 50 4. The Trial Court Abused Its Discretion By Granting the Motion To Reconsider
¶ 51 We note again that Gardner and all of the cases subsequent thereto citing the
Gardner holding were concerned procedurally with a situation in which a party’s motion to re-
- 15 - consider was denied and that party was the appellant. As the supreme court explained in
Robidoux, a trial court’s ruling on a motion to reconsider is within the sound discretion of the
trial court and will not be disturbed absent an abuse of discretion. Robidoux, 201 Ill. 2d at 347,
225 N.E.2d at 1000. In each of the cases previously mentioned, the supreme court and the vari-
ous districts of the appellate court found no abuse of discretion by the trial court by denying the
motion to reconsider. Those courts all cited the Gardner holding in so ruling, with the supreme
court even going to the point of deeming that holding as constituting “sound policy reasons.” Id.
¶ 52 The procedural posture of the parties in this case is different because the trial
court here granted (at least partially) QIll’s motion to reconsider, only to nonetheless adhere to
its earlier ruling granting Vantage’s section 2-619 motion to dismiss the counterclaim. On ap-
peal, QIll challenges the trial court’s decision to grant only partially its motion to reconsider, as-
serting that no portion of Langlois’s affidavit met the requirements of Rule 191(a) and, accord-
ingly, the trial court erred by relying upon anything in that affidavit.
¶ 53 We previously explained that QIll utterly failed to meet the standards of the
Gardner holding, and under these circumstances, we can affirm the trial court’s judgment—
namely, granting Vantage’s section 2-619 motion to dismiss—while at the same time disagreeing
with the trial court’s underlying reasoning. In other words, we can—and do—hold that under the
circumstances of this case, the trial court abused its discretion by granting, even partially, QIll’s
motion to reconsider. Had the trial court not done so, this court would not need to concern itself
with the trial court’s order of March 17, 2016, in which the court denied the motion to reconsid-
er. Instead, we could focus our attention on what was before the trial court when it entered its
initial order on December 2, 2015, granting Vantage’s motion to dismiss the counterclaim. With
our focus now on the trial court’s December 2, 2015, order, we conclude (for reasons we explain
- 16 - later) that the court did not err by granting Vantage’s motion to dismiss.
¶ 54 We can take this action because we are affirming the trial court’s judgment, not
reversing it. As this court recently explained in Khan v. Gramercy Advisors, LLC, 2016 IL App
(4th) 150435, ¶ 167, 61 N.E.3d 107, “ ‘[T]his court reviews the determination of the trial court,
not its reasoning, and therefore we may affirm on any basis in the record[,] [regardless of]
whether *** the trial court relied on that basis or its reasoning was correct.’ ”
¶ 55 To the extent that the application of the Gardner holding in this case might at first
blush seem harsh, we point out that interests are present in this case besides those of QIll. For
example, Vantage had an interest in having this case expeditiously resolved without being bur-
dened with unnecessary costs, and the trial court had an interest in not squandering its scarce ju-
dicial resources. Specifically, Vantage had a legitimate interest in having its motion to dismiss
under section 2-619 of the Code resolved on the date the court set for a hearing on that motion.
Permitting QIll to lose that motion and then frantically gather new arguments to show that the
trial court erred in its ruling imposed extra and unnecessary costs upon Vantage, which was then
forced to respond to QIll’s motion to reconsider and to prepare for a hearing on that motion. The
costs of Vantage’s counsel to do so were additional, unnecessary expenditures with which Van-
tage should not have been encumbered.
¶ 56 Further, the trial court had already conducted a hearing on Vantage’s section 2-
619 motion to dismiss and ruled upon it. (We note—and commend—the trial court for its dili-
gent preparation in advance of the hearing on the motion to dismiss in this complicated case. At
that hearing, the court told counsel that the court had taken the file home the night before and
read it “forward and back.”) The additional time and effort required of the court to consider
QIll’s motion to reconsider the court’s earlier decision constituted a clear waste of scarce judicial
- 17 - resources.
¶ 57 The Gardner holding is of its greatest importance when, as here, it concerns dis-
positive motions. That is, a party filing or opposing a dispositive motion, such as a motion for
involuntary dismissal under section 2-619 of the Code, should always be required to muster eve-
rything the party has at the hearing on that motion. The other party and the court are entitled to
no less. When, as here, a dispositive motion is granted, leading to the dismissal of a complaint or
counterclaim, permitting the losing party to file a motion to reconsider based upon evidence or
arguments fully known and available prior to the hearing on that motion is exactly what the
Gardner holding was designed to prevent: “Civil proceedings already suffer from far too many
delays, and the interests of finality and efficiency require that the trial courts not consider such
late-tendered evidentiary material, no matter what the contents thereof may be.” (Emphasis in
original.) Gardner, 213 Ill. App. 3d at 248-49, 571 N.E.2d at 1111.
¶ 58 Accordingly, for the reasons earlier stated, because we conclude that the trial
court erred by granting the motion to reconsider in which QIll—for the first time—raised any
questions about the adequacy of the Langlois affidavit, we decline to address on the merits QIll’s
arguments regarding that affidavit. Our doing so means that we are rejecting QIll’s argument on
appeal that the trial court erred by not striking all of Langlois’s affidavit.
¶ 59 Because we concede that our analysis and conclusion on this point is somewhat
unusual, we also provide the following alternative reason to reject QIll’s argument regarding
Langlois’s affidavit. That alternative is that if we considered on the merits the trial court’s ruling
after it (1) granted the motion to reconsider and (2) determined to adhere to its earlier decision to
grant Vantage’s motion to dismiss under section 2-619 of the Code, we would still find no error
in the court’s ruling. We so conclude even though, for the reasons QIll argues on appeal,
- 18 - Langlois’s affidavit could have been more direct or more clear regarding some of the questions
QIll raises about it. However, we are disinclined to second-guess the trial court’s determination
regarding this matter, even though we are fully aware that our review is de novo.
¶ 60 B. The Claim That There Are No Conditions to the Area of Protection Provisions
¶ 61 QIll next argues that the trial court erred in finding that there were conditions to
the Area of Protection under the agreement and Addendum. We earlier explained the argument
on this point that QIll made to the trial court, which is essentially the same argument that QIll
makes on appeal. The trial court was not persuaded, and neither are we.
¶ 62 As the trial court noted in its written March 2016 order denying QIll’s motion to
reconsider (which we consider for its insight on the court’s thinking on this issue that is unrelated
to the technical sufficiency of the Langlois affidavit), the Addendum imposed conditions upon
the Area of Protection enjoyed by QIll, and one of those was that QIll was to send at least one
property representative every year to the annual Las Vegas conference for training. The court
found that Langlois’s affidavit established that QIll had violated that condition and that this vio-
lation essentially cancelled the Area of Protection provision that QIll otherwise would have en-
joyed. This conclusion is entirely consistent with Illinois law. In Fayezi v. Illinois Casualty Co.,
2016 IL App (1st) 150873, ¶ 44, 58 N.E.3d 830, the court wrote the following:
“ ‘[U]nder well-established statutory procedure for section 2-619 motion practic-
es, plaintiff’s failure to properly contest [a movant’s] affidavit by submitting a
counteraffidavit is fatal to his cause of action. The failure to challenge or contra-
dict supporting affidavits filed with a section 2-619 motion results in an admission
of the fact stated therein. [Citation.]’ [Citation.]”
Because QIll failed to submit a counteraffidavit, Langlois’s affidavit filed with Vantage’s motion
- 19 - resulted in an admission of the facts stated in that affidavit.
¶ 63 As a last matter on this point, the trial court rejected QIll’s claim that there was an
ambiguity regarding the Area of Protection provisions in the agreement and in the Addendum,
regarding whether the language of the Addendum applied to the Agreement. The trial court con-
cluded that the Addendum language was not ambiguous as to the application of the conditions
contained therein to both described Areas of Protection, and we agree.
¶ 64 III. CONCLUSION
¶ 65 For the foregoing reasons, we affirm the trial court’s judgment.
¶ 66 Affirmed.
- 20 -