{ "id": 3574938, "name": "BARRY MOGUL, Plaintiff-Appellee, v. KENNETH TUCKER, Defendant-Appellant", "name_abbreviation": "Mogul v. Tucker", "decision_date": "1987-02-06", "docket_number": "No. 86\u20141546", "first_page": "610", "last_page": "614", "citations": [ { "type": "official", "cite": "152 Ill. App. 3d 610" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "381 N.E.2d 249", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "72 Ill. 2d 399", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5442966 ], "opinion_index": 0, "case_paths": [ "/ill-2d/72/0399-01" ] }, { "cite": "366 N.E.2d 418", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1978, "opinion_index": 0 }, { "cite": "51 Ill. App. 3d 373", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3385713 ], "weight": 2, "year": 1978, "pin_cites": [ { "page": "377" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/51/0373-01" ] }, { "cite": "278 Ill. App. 559", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 3163719 ], "pin_cites": [ { "page": "563" } ], "opinion_index": 0, "case_paths": [ "/ill-app/278/0559-01" ] }, { "cite": "278 Ill. App. 350", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 3162910 ], "year": 1935, "pin_cites": [ { "page": "358" } ], "opinion_index": 0, "case_paths": [ "/ill-app/278/0350-01" ] }, { "cite": "359 N.E.2d 171", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "41 Ill. App. 3d 128", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2487436 ], "pin_cites": [ { "page": "131" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/41/0128-01" ] }, { "cite": "439 N.E.2d 60", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1976, "opinion_index": 0 }, { "cite": "108 Ill. App. 3d 505", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3010812 ], "year": 1976, "pin_cites": [ { "page": "508-09" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/108/0505-01" ] }, { "cite": "378 N.E.2d 588", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "61 Ill. App. 3d 765", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3345178 ], "pin_cites": [ { "page": "768" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/61/0765-01" ] }, { "cite": "436 N.E.2d 611", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1978, "opinion_index": 0 }, { "cite": "106 Ill. App. 3d 1025", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3035314 ], "year": 1978, "pin_cites": [ { "page": "1032" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/106/1025-01" ] }, { "cite": "407 N.E.2d 145", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "85 Ill. App. 3d 621", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3197983 ], "pin_cites": [ { "page": "622" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/85/0621-01" ] }, { "cite": "430 N.E.2d 87", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 8, "opinion_index": 0 }, { "cite": "102 Ill. App. 3d 438", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3071436 ], "weight": 8, "pin_cites": [ { "page": "444" }, { "page": "443" }, { "page": "443" }, { "page": "443" }, { "page": "443" }, { "page": "443" }, { "page": "444" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/102/0438-01" ] } ], "analysis": { "cardinality": 462, "char_count": 7619, "ocr_confidence": 0.775, "pagerank": { "raw": 5.33135200572371e-08, "percentile": 0.33578270393370424 }, "sha256": "2c1ce69922b5e21dee7fe327d2e9c0113e1e52f51d01affb89673398b042f0d3", "simhash": "1:3aab1d974b4ba405", "word_count": 1281 }, "last_updated": "2023-07-14T16:53:41.650258+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "BARRY MOGUL, Plaintiff-Appellee, v. KENNETH TUCKER, Defendant-Appellant." ], "opinions": [ { "text": "PRESIDING JUSTICE SULLIVAN\ndelivered the opinion of the court:\nThis 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.\nIn 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\u2019s 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 \u201cfor reinstatement so that the parties may proceed to the merits.\u201d Mogul v. Tucker (1981), 102 Ill. App. 3d 438, 444, 430 N.E.2d 87.\nOn remand plaintiff filed an amended complaint seeking money damages only, and in defendant\u2019s answer he again raised laches as an affirmative defense. On plaintiff\u2019s 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\u2019s motion for reconsideration but granted his motion for certification under Rule 308.\nSection 2 \u2014 619 of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2 \u2014 619) allows a defendant to raise, in a motion to dismiss, any \u201caffirmative matter\u201d which operates to avoid or defeat plaintiff\u2019s 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\u2019s 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.\nWhere, 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\u2014 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 \u2014 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.\nSection 2 \u2014 619(d) states:\n\u201cThe 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.\u201d\nSection 2 \u2014 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.\nUpon our review of the pleadings and affidavits filed in support of and in opposition to defendant\u2019s 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\u2019s clear statement of intent to acquire his proportionate interest, and that defendant\u2019s assumption of the venture\u2019s risk was voluntary, as was his decision to deny plaintiff a portion of the opportunity. Mogul v. Tucker (1981), 102 Ill. App. 3d 438, 443, 430 N.E.2d 87.\nWe found lacking that element of delay that prejudices or misleads a defendant or causes him to pursue a course different from that which he would have otherwise taken. (102 Ill. App. 3d 438, 443, 430 N.E.2d 87.) Specifically, we stated that it did not appear that defendant changed his position in reliance on plaintiff\u2019s inaction; rather, \u201cdefendant simply ignored plaintiff\u2019s attempts to assert his rights and proceeded with the shopping center development.\u201d 102 Ill. App. 3d 438, 443, 430 N.E.2d 87.\nWe also found that plaintiff\u2019s explanation for not filing suit earlier (that he feared reprisals from his employer, whose officers included defendant, and that he was trying to resolve the dispute amicably through discussions with the other general partners) was reasonable. (Mogul v. Tucker (1981), 102 Ill. App. 3d 438, 443, 430 N.E.2d 87.) Accordingly, we concluded that \u201cdefendant failed to establish either that plaintiff\u2019s delay was unreasonable or that he was prejudiced by the delay.\u201d (Mogul v. Tucker (1981), 102 Ill. App. 3d 438, 443, 430 N.E.2d 87.) We therefore held that the laches defense was not properly applied -under the circumstances of the case, and we reversed the trial court\u2019s judgment that the action is barred by laches and remanded the cause \u201cfor reinstatement so the parties may proceed to the merits.\u201d 102 Ill. App. 3d 438, 444, 430 N.E.2d 87.\nIn light of the foregoing, there can be no doubt that we disposed of the motion to dismiss on its merits, thereby precluding defendant from raising the defense of laches on remand in his answer to plaintiff\u2019s amended complaint.\nIn an attempt to salvage his laches defense, defendant relies on certain deposition testimony that plaintiff first learned of defendant\u2019s participation in the subject real estate development more than six months earlier than the date alleged in the complaint and that he was offered (and apparently refused) an opportunity to participate in the development. Although this evidence might be relevant as to issues remaining in the case, it is clear that it would not have had any affect on our resolution of the laches question even assuming that this evidence could have been raised in the motion to dismiss.\nIn response to the question identified by the trial court, we hold that defendant was precluded from raising the defense of laches in his answer by our opinion in the prior appeal herein. Accordingly, we affirm the order granting plaintiff\u2019s motion to strike the affirmative defense of laches and this cause is remanded for the disposition of remaining issues.\nAffirmed and remanded.\nLORENZ and PINCHAM, JJ., concur.\nThornton, Ltd. v. Rosewell (1977), 51 Ill. App. 3d 373, 366 N.E.2d 418, aff\u2019d (1978), 72 Ill. 2d 399, 381 N.E.2d 249, cited by defendant, does not stand for a contrary proposition. In Thornton, the reviewing court merely stated that where the circuit court determined that it had erred in denying a motion to dismiss, it could permit defendants to raise the same issues in their answer. 51 Ill. App. 3d 373, 377.", "type": "majority", "author": "PRESIDING JUSTICE SULLIVAN" } ], "attorneys": [ "Rosenthal & Schanfield, of Chicago (Lawrence M. Templer, of counsel), for appellant.", "Feiwell, Galper, Lasky & Berger, Ltd., of Chicago (Daniel C. Meenan, Jr., and William H. Hrabak, Jr., of counsel), for appellee." ], "corrections": "", "head_matter": "BARRY MOGUL, Plaintiff-Appellee, v. KENNETH TUCKER, Defendant-Appellant.\nFirst District (5th Division)\nNo. 86\u20141546\nOpinion filed February 6, 1987.\nRosenthal & Schanfield, of Chicago (Lawrence M. Templer, of counsel), for appellant.\nFeiwell, Galper, Lasky & Berger, Ltd., of Chicago (Daniel C. Meenan, Jr., and William H. Hrabak, Jr., of counsel), for appellee." }, "file_name": "0610-01", "first_page_order": 632, "last_page_order": 636 }