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02/06/87 Barry Mogul, v. Kenneth Tucker

February 6, 1987

BARRY MOGUL, PLAINTIFF-APPELLEE

v.

KENNETH TUCKER, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIFTH DIVISION

504 N.E.2d 872, 152 Ill. App. 3d 610, 105 Ill. Dec. 587 1987.IL.140

Appeal from the Circuit Court of Cook County; the Hon. Thomas E. Hoffman, Judge, presiding.

APPELLATE Judges:

PRESIDING JUSTICE SULLIVAN delivered the opinion of the court. LORENZ and PINCHAM, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE SULLIVAN

This is a permissive interlocutory appeal under Supreme Court Rule 308 (87 Ill. 2d R. 308) from an order striking the affirmative defense of laches. The question presented is whether defendant is precluded from raising the defense in his answer by our prior opinion in this case, Mogul v. Tucker (1981), 102 Ill. App. 3d 438, 430 N.E.2d 87.

In 1979 plaintiff filed a complaint for an accounting and specific performance of an agreement under which he claimed a 25% interest in a shopping center project. The trial court granted defendant's motion to dismiss the action as being barred by laches. On the appeal therefrom, the sole issue raised was whether the laches defense was properly applied and, finding that it had not been, we reversed the order of dismissal and remanded the cause "for reinstatement so that the parties may proceed to the merits." Mogul v. Tucker (1981), 102 Ill. App. 3d 438, 444, 430 N.E.2d 87.

On remand plaintiff filed an amended complaint seeking money damages only, and in defendant's answer he again raised laches as an affirmative defense. On plaintiff's motion this defense was stricken with prejudice, with the court ruling that our earlier opinion in this matter was dispositive on the issue of laches. The court denied defendant's motion for reconsideration but granted his motion for certification under Rule 308.

Section 2-619 of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2-619) allows a defendant to raise, in a motion to dismiss, any "affirmative matter" which operates to avoid or defeat plaintiff's claim. One such affirmative matter is the defense of laches. (Blankenship v. County of Kane (1980), 85 Ill. App. 3d 621, 622, 407 N.E.2d 145.) Contrary to defendant's assertion, the issue of laches does not have to be decided after a trial on the merits but may properly be determined on a motion to dismiss if its applicability appears from the face of the complaint or by affidavits submitted with the motion. In re Adoption of Miller (1982), 106 Ill. App. 3d 1025, 1032, 436 N.E.2d 611; Beckham v. Tate (1978), 61 Ill. App. 3d 765, 768, 378 N.E.2d 588.

Where, as in the case at bar, the elements of the defense do not appear on the face of the pleading attacked, the motion to dismiss must be supported by affidavit. (Ill. Rev. Stat. 1985, ch. 110, par. 2-619(a).) The motion to dismiss in this case was supported by affidavit and thus will be deemed to have been brought under what is now section 2-619 of the Code of Civil Procedure. See Davis v. Weiskopf (1982), 108 Ill. App. 3d 505, 508-09, 439 N.E.2d 60, and Johnson v. Nationwide Business Forms, Inc. (1976), 41 Ill. App. 3d 128, 131, 359 N.E.2d 171.

Section 2 -- 619(d) states:

"The raising of any of the foregoing matters by motion under this Section does not preclude the raising of them subsequently by answer unless the court has disposed of the motion on its merits; and a failure to raise any of them by motion does not preclude raising them by answer."

Section 2 -- 619(d) expressly limits the right to raise such matters by answer to instances where they have not been raised by motion, or where, if so raised, the court has not ruled on their merits. If, however, the court has disposed of the motion on its merits, all the grounds set forth therein have been adjudicated and cannot be again presented by answer. See Randall Dairy Co. v. Pevely Dairy Co. (1935), 278 Ill. App. 350, 358; Hitchcock v. Reynolds (1935), 278 Ill. App. 559, 563. *fn1

Upon our review of the pleadings and affidavits filed in support of and in opposition to defendant's motion to dismiss, we noted in the previous appeal that plaintiff gave early and repeated notice to defendant of his intention to participate in the investment opportunity represented by the shopping center development project, that defendant chose to proceed with the project in the face of plaintiff's clear statement of intent to acquire his proportionate interest, and that defendant's assumption of the venture's risk was ...


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