VANTAGE HOSPITALITY GROUP, INC., Plaintiff-Appellee, v. Q ILL DEVELOPMENT, LLC, d/b/a Shepherd‘s Inn, Defendant-Appellant.
NO. 4-16-0271
IN THE APPELLATE COURT OF ILLINOIS FOURTH DISTRICT
December 28, 2016
2016 IL App (4th) 160271
Honorable Debra L. Wellborn, Judge Presiding.
Appeal from Circuit Court of Adams County No. 14LM32
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), pursuant 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 counterclaim, alleging that Vantage had breached the Agreement by licensing a hotel in Hannibal, Missouri, contrary to the Area of Protection provision.
¶ 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
I. BACKGROUND
¶ 5 A. The Agreement
¶ 6 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. Hannibal, MO, will be allowed only on applicants with a new construction or major renovation.”
¶ 7 B. Vantage‘s Complaint
¶ 8 In February 2014, Vantage filed a complaint alleging that QIll had failed to pay
¶ 9 C. QIll‘s Counterclaim
¶ 10 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 damages 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.
¶ 11 D. Vantage‘s Section 2-619 Motion To Dismiss QIll‘s Counterclaim
¶ 12 In October 2015, Vantage filed, under
“[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.”
¶ 13 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-
¶ 14 Vantage asserted that QIll violated the Annual Meeting Provision of the Addendum, 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 ***.”
¶ 15 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.”
¶ 16 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 affirmative matter that defeats [QIll‘s] [c]ounterclaim, pursuant to
¶ 17 QIll filed a written response in November 2015 to Vantage‘s section 2-619 motion 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
¶ 18 E. The Trial Court‘s December 2, 2015, Order
¶ 19 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 violated 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 favorable 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.”
¶ 20 F. QIll‘s Motion To Reconsider
¶ 21 Later in December 2015, QIll filed a motion to reconsider the trial court‘s decision to grant Vantage‘s motion to dismiss. In that motion, QIll made three arguments: (1) Langlois‘s affidavit failed to comply with
¶ 22 Specifically, in its first argument, QIll argued that Langlois‘s affidavit failed to comply with
¶ 23 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.
¶ 24 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.
¶ 25 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 decision 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.”
¶ 27 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
“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 submitted an affidavit to refute this evidentiary fact. The fact of nonattendance of a QIll representative at the annual conference in December 2006 is admitted. Pursuant to the Addendum from that point forward[,] Vantage had no obligation to provide that Hannibal, Missouri[,] will only allow applicants of a new or major reconstruction to use the name of America‘s Best Value Inn or be offered membership by the brand as part of an area protecting QIll from same brand name competition 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.”
¶ 28 This appeal followed.
II. ANALYSIS
¶ 30 A. The Claim That Langlois‘s Affidavit Failed To Comply With Rule 191(a)
¶ 31 Before addressing the substance of QIll‘s claim that Langlois‘s affidavit failed to comply with
¶ 32 QIll‘s written response to Vantage‘s motion to dismiss, as well as QIll‘s later arguments 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
¶ 33 1. The Motion To Reconsider
¶ 34 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 reconsider 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] Affidavit 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 Langlois‘s affidavit.
¶ 35 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 matter 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
¶ 37 2. The Gardner Holding
¶ 38 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 motion 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 attention (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-
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.
¶ 39 Based upon the above discussion of the circumstances before us, this court concluded 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 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.) Id. at 248-49, 571 N.E.2d at 1111.
¶ 40 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 appeal provided any explanation as to why the statements at issue were not presented in the plaintiff‘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.
¶ 41 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 thereafter granted the defendant‘s motion for summary judgment. The plaintiff subsequently filed a motion to reconsider that had attached thereto the documentation that plaintiff‘s original response to defendant‘s motion did not contain, as required by
“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.” (Emphasis 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.
¶ 42 We note that
¶ 43 3. The Gardner Holding Applies to Arguments, Not Just Evidence
¶ 44 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-
¶ 45 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 response 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 discovered 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
party may not raise a legal theory for the first time in a motion to reconsider).”
¶ 46 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 appeal.” (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 holding 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.’ ”
¶ 47 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.“); Department 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 administrative review case, before the administrative law judge, the Civil Service Commission, or the circuit court).
¶ 48 4. The Trial Court Abused Its Discretion By Granting the Motion To Reconsider
¶ 49 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-
¶ 50 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 appeal, QIll challenges the trial court‘s decision to grant only partially its motion to reconsider, asserting that no portion of Langlois‘s affidavit met the requirements of
¶ 51 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 reconsider. 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
¶ 52 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.’ ”
¶ 53 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 burdened with unnecessary costs, and the trial court had an interest in not squandering its scarce judicial resources. Specifically, Vantage had a legitimate interest in having its motion to dismiss under
¶ 54 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 diligent 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
¶ 55 The Gardner holding is of its greatest importance when, as here, it concerns dispositive motions. That is, a party filing or opposing a dispositive motion, such as a motion for involuntary dismissal under
¶ 56 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.
¶ 57 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
¶ 58 B. The Claim That There Are No Conditions to the Area of Protection Provisions
¶ 59 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.
¶ 60 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 violation essentially cancelled the Area of Protection provision that QIll otherwise would have enjoyed. 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 practices, 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 contradict 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
¶ 61 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 concluded 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.
III. CONCLUSION
¶ 62 For the foregoing reasons, we affirm the trial court‘s judgment.
¶ 63 Affirmed.