nineteenth order the trial court stated that it was dismissed saying plaintiff's complaint pursuant to section two six one zero nine however than the body of the court's order went on to address substance then went on to address substantive issues that would have been more appropriate under a two six one one motion and if plaintiff's contention that the court misunderstood or misapplied the standards of review under those two sections of affirmative material that defeats the complaint now that affirmative tiriel this court stated is not supposed to be in the nature of evidence so that two six one nine motion was deeply explained in the howell v aqua illinois case the affidavit that was submitted by susie danner is more in the nature of evidence that's not appropriate on a two six one nine motion which is supposed to be simply affirmative matter and so that court this court in such shit paragraph thirty of the how complaint affirmative matter means some kind of defense other than simply name getting the essential allegations of the plaintiff's cause of action and then in paragraph thirty seven of that same case a claim concerning the negation of the pla that were attached to it essentially were that yes but evidence no matter that was not proper to a to review on the two six one nine and now the defendant wants to make something of the fact that there was no when the court mentioned it there inappropriate on that kind of motion and it's also important to note that earlier in the proceedings in this matter the court had actually cut off discovery defendants requested discovery the parties exchanged it and then defendants came in and said no more discovery too early in the process well discovery and the evidence that comes out in discovery is what you eventually would basically summary judgment motion on to these parties had never even touched that point and that was  this court's holding in the howard case which said that the affidavit on the two six one nine motion cannot simply come in and contradict material facts contained within the complaint and as the appellant then contends that the two six one motion should not have been granted because it was improperly supported by the factual affidavit which powell says is not appropriate on those motions defendants have requested defendant's brought in improperly too soon and when the trial court went to look at the two six one nine motion it again considered that evidence that defendant was bringing in as factual allegations that should have been submitted as an answer so the is simply does the complaint states enough facts to apprise the defendant of the cause of action that they're called to answer and this complaint comes down to i think over one hundred factual allegations and paragraphs and to support the counts that were being brought against the defendants and so there's plenty of facts in there to apprise the defendants what was going on in fact the original complaint well when we get around to the thirty minute complaint that broad claim was based on the language of the contract which was attached to the complaint in paragraph six of the party's original contract which is in the appendix at page fifty two then defendants had signed in the agreed to certain warranties representing that seller had good title to everything that was being sold under this contract it was discovered by the plaintiffs after this matter was initiated seller did not have good title to all of that seller actually did not have permission to enter into this contract at all seller was supposed to obtain permission from a third party represented by way of this contract what in the record demonstrates that they didn't even have permission to enter into the contract  the list there's something you have a record cite for that the plaintive discovery by way of when when the complaint was first served it was served on remax corporate in colorado and that corporate attorney called me and said here's some other information you need to know they disclosed it to me with a confidentiality agreement so that because of the agreement that this language or prohibition against it and it is contained in this proprietary to remax so they did not want that disclosed on the public record but it is part of that agreement that mr danner has to have permission from remax corporate before agreeing to make any transfers of the language but basically you would require emacs approval if the except if you're applying an approved so how does that impact sure i think the closest analogy to with that language is a real estate transaction where a seller comes and says i'll sell you this property but of course the buyer has to be approved for their mortgage or their loan before that the closing can happen everybody knows the approval has to happen but if you find out as you get to closing seller never had clear title to the property in the first place then whether the buyer can get approved for their loan or not makes no difference the seller was fraudulent in coming and saying that they could sell the property in the first place is having the right to enter this contract and accept monies under in the first place she accepted a payment of fifteen thousand dollars from him she then moved her business basically swatted as a business in this property for a year never paid rent never paid utilities took advantage of that the building and then said i don't want to follow through with this agreement anymore and it was after all that fell out then plaintiff did find out she never had authority to enter the agreement in the first place so i do think it's two separate issues yes he would have had to be approved but he would have just found out later perhaps that she never had a for a did enter it and we may be still be here on the fraud idea and that fried continued throughout the parties relationships so even the second agreement that the defendant wants to come in and say well they signed you know this decision this release this language the fraud had begun well before when they represented they could sell this in the first place so every agreement after that is tainted by that fraud and that essentially is plaintiff's argument to to say everything since then is colored by this fraud and you can't take advantage of these agreements that were  it on time did he did he attempted to make the payment the first time she said don't worry about it the second time later that summer she said there's other things going on weight will deal with it later the third time maybe same answer it was three or four times and it wasn't until the fourth time later in the fall he's trying to make this payment she says no i won't accept it and by the way i'm  how how do you know they're ok i believe he's alleged it to begin with all along that he attempted to make the payments and the only dispute of that is her factual dispute that of the time i don't believe that there is an admission of either party in the rescission agreement of a breach i'm looking at it now are you referring on appendix page fifty eight to the paragraph that says the parties acknowledge no party has fully performed its duties or  obligations if that's the language then then yes the parties had not fully performed it his second payment had been refused he never had a chance to make the next payments that were in line and she certainly did not fulfill her paragraph twenty eight of the second amendment complains our about march twenty first two thousand and thirteen when the second payment was due defending the standard told mr byron he could make the payment don't later date due to the unexpected expenses of an involvement in unrelated people that's that would reference the march conversation then july october again in paragraph thirty three november and paragraph thirty five and then the december attempt in paragraph thirty eight are there any other questions on that so just to clarify though you had asked me where he had responded i have said that there was a mission a breach but i was looking at the way you say ok that both parties admitted th feel fully ok and there's a one bit different yes and i would i would argue and i think it is supported by the record that statement of the parties have not fully performed now this is really a failure but they had reached this point of dispute in disagreement before it could be fully reformed indeed by mr you know laterally saying she wasn't going to the other claims of the amended complaint and susie dinner when there was no contractual arrangement between those two parties and yet it is lin wood two thousand that bore the brunt of those expenses and stan are essentially squatting her business in that building for a year standard was privileged in her actions she took with regard to that and i think it's enough to say that it's time she in that mutual rescission and release agreement acknowledged that mr byron had certain rights to business arrangements including those homestead and the home steps listings that are discussed a lot in the record so there is no privilege when you have acknowledged that somebody else has the right to that business relationship and then you go in interfere with it  and then finally they release language that defendants want to make a lot of again the fraud from the original contract of defendants flows through and taint every agreement they made later and there is bad faith that showed in failing to abide by the other terms of that agreement that included their release language and finally the lawsuit began before that release could be signed parties had essentially reached a point of no agreement no return and so the release itself was never executed and this dispute arose before it ever could be for those reasons and as stated in the records the plaintiff would ask that this court reverse the orders negates the cause of action or refutes conclusions of law or material fact and i think that that is fairly clear throughout the case i think the distinguishing thing it that gets a little confusing is when they say that you can't just refute an allegation you can refute immaterial fact or negate a complete cause of action in this case the affidavit itself refuted the entirety of counts six the entirety of count seven and the entirety of count  the fact that plaintiff's essentially in about one paragraph of their response to the motion to dismiss in the trial or stated that they didn't think the affidavit was correct then on its face completely failed to respond to what was in that affidavit i operate to come to the same result in that you can use an affidavit or to six nineteen purposes to refute specific conclusions of law or material fact but if you're just using it to  tonight sometimes they call that refute individual allegations throughout that's a different situation and that's not what has happened here they're actually piri few allegations in count six seven a operated to make that entire situation possible it made rendered impossible for gainor to actually perform on that issue and then with respect to the  commissions and i if there was anything to respond to the plaintiffs should have responded to that affidavit which is by and by as he and a whole bunch of other cases that this or is aware of a plaintiff failure to properly contest onset of this case if you go back to the beginning of the record it was actually admitted that that payment was not made on time there was it invented breach and i would disagree with counsel's representation of what that particular paragraph in the in the means i think that paragraph means that both sides have done things wrong that are in breach of the initial contract and now we're trying to remedy that by mutually releasing ourselves from that prior contract it was initially admitted  new allegation that was brought up much after what was agreed to as sensually the deadline for filing suit and the difficulty with that is it has it has made things very confusing but this up this  corporate up a good point in that there was an e mail where he essentially admitted to times there was refused payment and the only dates that terrorists ever been any evidence of would have been the july november and accounts and my client had absolute right to refuse those payments because they were in breach of the original contract there is nothing in the record to support an allegation that a timely payment was attempted to be made absolutely nothing and to say anything contrary to that would be patently false and i think that's part of the problem we have with respect we've got into the pro that were brought up a little bit earlier part of the problem we have is there's the record and then there are statements outside the record and what we heard earlier were statements outside of the right there's nothing in the record anywhere to support an allegation of fraud that the defendants did not have authority to enter into the initial contract and the other problem that i have with that are not only i think it's a little unfair to call it an initial contract it's actually an option contract it's a contract for sale of assets and a contract or an option to purchase should the person exercise the option and should they get permission from remax to enter into the franchise agreement it's not a sale of the entire business that is an option contract is a little bit different than a straight up sale of a business at no point in time anywhere in the record is there anything to support anything that is outside of what is contained in that initial contract into bring in parol evidence and to allow council to decide to conversations that are nowhere and in the record is hugely and improper at this point with respect it needed to and signed by all parties they were all represented her all evidence outside of that up release and outside of that option contract is improper and the only thing that counsel has brought to argue against that is i want to turn then to the tortious interference counts which recounts for through by and we've already talked a little bit about the issues whether or not only the president is reaching the august twenty five contract back into that but my position is that based on the record there has been a mission to at the trial court properly dismissed counts four and five because the only allegations that are gaining one by are that defendant dan or subsequent to that breach and before executing the december twenty third team release did a couple of things that were essentially privileged actions you know allowed people to go and get other jobs or to sell different things from her business to little bit of an unusual count it's essentially a breach of contract for failure to cooperate with the accounting as set forth and did in the december twenty third teen agreement and the problem we have here is going back to that that december twenty thir release in that particularly release the parties agreed to engage in a process of accounting or file for an accounting on or before july first of twenty fourteen no where in any complaint has factors under there alternating here we have a breach of contract it is a law complaint and it contains none of the necessary elements to ask for an accounting this is a completely released based upon the plain english of that agreement between the parties  trying to get through all of the counts that we have release all parties entered into a release and by its express terms neither party filed for an accounting prior to life first of twenty fourteen both parties agreed to waive the right to an accounting and then operation of  and the issue that was brought up with respect to this is that there was no signing the second release they said what was said in there but a person cannot agree to something have that agreement  then decide after the fact that you know i just don't want to sign it and the courts are very clear that the failure to sign a release does not make a settlement agreement an offer it is clear by the plain language of the december twenty thir release that the parties intended for after july first of twenty four tina the accounting provision was satisfied meaning either an accounting was done or neither party filed suit on that accounting that there was a covenant not to and a mutual release supply ability that is what was bargained for by the parties both the plaintiff and defendant were represented in fact they were represented by the counsel that is here in this room the language is clear there was ras there were specific facts upon which the release was they set throughout that release and parole evidence is only admissible when the contract is ambiguous and there is nothing in between with either of the contracts in this case  i want to address a couple things first of all there is a lot of mention in the of pelleas argument about evidence and the the facts of it or refuting or denying evidence when i hear on evidence we never got to that point at the trial level the whole issue is the survival of the complaint i think it's telling that defendants have felt compelled to bring forth some evidence to try to refute or deny the allegations of the complaint because that tends to show the complaint itself does state a cause of action and they felt the need to defend against it but have wanted to disguise that defense in the realms of a two six one five motion to six point nine motion and not call it what it really is let's get past the point of the pleadings and to the evidence if there's evidence to hear and decide which is right which is wrong which is credible which is not let's get there but we're not to that point yet that's what we're here for today's to say the complaint needs to survive for the parties to actually bring forth their evidence the release language in the party's agreement and the core you'll be able to read through that and see yourselves but it's it is clear language that release was to be signed after the two thousand and twelve in this court is on that squares with what this case is saying and you can't bring in that affidavit on the two six one nine motion which is all this evidence refuting or denying the complaint whether you whichever word you want to use t describe it you can't use evidence on a two six one nine motion and dispute the complaint that way and for that reason the court's decision to dismiss the complaint based on the two sitting on my motion was an error and so we ask that this