1 Prior to the start of trial, the trial court ruled that any jury findings c oncerning the FIRST DIV

ISION FEBRUARY 19, 2008

No. 1- 06-0861

FANE LOZMAN a

nd BL UE WATER ) Appeal from the PARTNERS, INC., ) Circuit Court of ) Co ok Co un ty. Plaintiff s-Appell ants, )

) v. ) ) GERALD D. PUTNAM, TERRA NOVA ) TRADING, L .L.C., STUART TOWNSEND, ) MARRGWEN TOWNSEND, TOWNSEND ) ANALYTI CS, LTD., CHICAGO TRADING AND ) ARBITRAGE, L .L.C., ARCHIPEL AGO, L.L .C., ) Honorab le ARCHIPELAG O HOLDI NGS, L.L .C., GDP., INC, ) Allen S. Go ldber g, and VIRAGO ENTERPRI SES, L.L.C., ) Judge Presi ding. ) Defend ants-App ellees. ) JUSTICE ROBERT E. GORDON d elivere d the opini on of the c ourt: Plaintiff Fane Lozman and d

efenda nt Geral d Putnam we

re busine ss associ ates who se relationship turned sour. On April 17, 1995, they signed a written agree

ment regarding the sharing of revenues and commissions. Just six months later, on October 9, 1995, they signed mutual releases that voided their April 17 agree ment. After a dual benc

h and jury

trial, 1 the circuit court of Cook County held on July 2, 2005,No. 1- 06-0861

pa rt ie s’ eq ui ta bl e c la im s w er e m er el y ad vi so ry. 2 that the release and the doctrine of laches barred plaintiffs’ cause of action for usurpation of corporate opportunities. Lozman v. Putnam , Nos. 01 L 16377, 99 C H 11347, 2 1, 27 (Circ uit Court of Cook County), (hereina fter Lozman ). The plaintiffs are Lozman and B lue Water Partners, Inc. ( BWP), an Illinois corporation. Lozma n and Putna

m were both office

rs in BWP pr

ior to the e

xecution of

the rele ase; and

it is BWP’s corporate opportunity that Lozman claimed Putnam usurped. The Putnam-related defendants include: Terra Nova Trading, L .L.C, an I llinois limited liability company established by

Putnam whic

h recei ved, ac cording

to Lozma

n, the cor porate opportuni ties usurp ed from B WP; and Arc hipelag o, L.L .C. and Ar

chipela go Holdi ngs, L .L.C, Illinois limited liability companies esta blished by Putnam subsequent to Terra Nova and which Lozman claimed were the ultimate re cipients of the opportunities usurped from BWP. Plaintiff also claimed that GDP, Inc. (i.e., Ge rald D. Putnam) received corporate oppor tunities usurped from BWP. Putnam is the sole shareholder and director of GDP, I nc., an Illinois corporation. In addition to the Putnam defendants, there a re the Townsend defendants: Stuart and Marrgwen Townsend, the computer pr ogrammers who programmed br okerage and trading software for BWP; and Townsend Analy tics, Ltd., (TAL), their programming firm, which is an Illinois corporation. The trial court found that it was plaintiff L ozman who introduced the Townsends to defe

ndant Putna

m, and tha

t BWP’s re lationship

with the Townsends was a valuable asset used to establish Terra Nova.No. 1- 06-0861

2 The abbreviation “CTA” for Chicago T rading & Arbitrage , L.L .C. was used by the appellate court in Lozman v. Putnam , 328 I ll. App. 3d 761 (2002 ). We will u se the sa me abbreviation for the sake of consistency

. 3 Defendant Chicago Trading and Arbitrage, L .L.C. (CTA), 2 was a small order execution sys tem (SOES)trading

business, formed by Put

nam and the Townse

nds and loc ated in th e same office as BWP and Terra Nova. Plaintiffs alleg ed that they we re entitled to revenues genera ted by CTA, an I

llinois limited liability company

. Althoug h court or ders dismi ssing co

unts aga inst defe ndants CTA

and Vira go Ente rprises, L.L .C. were

named in t

he notice of appea l, plaintif fs’ appe llate bri ef make s no arg uments wit

h respect to these two defendants and thus these two defe ndants are not part of this appeal. For the r easons di scussed b elow, we affirm t he order and opinion of the tr

ial cour t. BACKGROUND The Partnership Plaintiff Lozman and defendant Putnam met in 1986, when they both worked for the Chicago securities firm of Walsh Greenwood. Lozman later developed the idea for ScanShift, a computer program for trader s that displayed trading

and price data based on the appear ance of a pilot’s controls in an airplane, rather than in rows and columns. Lozman had previously been a pilot with the United S tates Mar ines. In Janu ary 1994, L ozman cont

acted the compute

r progr amming f irm of def endant T AL to program ScanShift. TAL ow ned and marketed its own software prog ram called RealTick whichNo. 1- 06-0861

3 On April 5, 1994, Putnam filed an SS-4 federal employ er identification form, on which he stated that the principal activity of BWP was as a “securities broker-dealer providing brokerdealer services.” 4 displayed the trading

prices of stocks. Lozman wanted to prog ram ScanShift so that it appeared as a “window” or component of RealTick. TAL is owned by defe

ndants Stuart and Marrgwen Townsend. In Februar

y 1994, Lozman discussed ScanShift with Putnam. Putnam then approached the law firm of Foley

& Lardner

to incorporate BWP, which was done on March 28, 1994. Putnam was the president and Chief Executive Officer of BWP, and Lozman was the vicepresident and the chairman of the board of dire ctors. Putnam and Lozman were also direc tors and equity share

holders, with each owning 50%. 3 Lozma n testifie d that he a

nd Putnam ha

d agre ed to for

m a broke r-deal er firm t

o “softdoll ar” Sca nShi ft, so that t he sof tware c ould be furn ished in ex change f or bro kerage commi ssio ns. W ith s oft-d ollar broke rage, th e cust omer r eceive s soft ware fro m the b rokera ge firm in exchange

for giv ing the brokera

ge fir m commissions for the

customer ’s trade s. On June 6, 19 94, Lo zman and Put nam met wi

th the Tow

nsends at their off ices to dis cuss programming ScanShift to work with RealTick. I n June and July 1994, Putnam and Lozman offered the Townsends a 15 j equity in and 15 j profits of BWP, in return for

the Towns ends’ programming work on ScanShift. However, the Townsends never became office rs, directors or controlling shareholders of BWP. L ozman claimed that it was during this time that he disclosedNo. 1- 06-0861

4 A patent for ScanShift was not issued until November 18, 1997. The patent was issued to BWP, and BWP still held the patent when the complaints in this case were filed.

5 On Octobe

r 28, 1994 , Putnam fi led with th e Ill inois Depa rtment of Employ ment Secu

rity an unempl oyment liabil ity f orm statin

g that the primar

y bu siness activity

of BWP was

in “providing securities broker-deale r services to financial institutions.” Also on October 28, 1994, an I llinois busi

ness reg istration form was filed with

the I llinois De

partmen t of Reven

ue to obta in a tax identification number for BWP, and it listed BWP’s principal activity a s a broker-dealer.

5 to Putnam and the Townsends his knowledge of: small order execution system (SOES), a form of electronic trading; trading r oom business; electronic trading; and an electronic stock exchange. On October 12, 1994, Lozman assigne d his rights in ScanShift to BWP. 4 Lozman and Putna m agre ed that B WP would re ceive the broker age c ommissions f

rom trade rs, as a r esult of BWP furnishing computer software to traders. 5 On Novemb er 14, 19 94, Terr a Nova Tr

ading, L.L .C. was inc orporat ed in I llinois, wit

h Putnam owning 100% of the stock. Terra Nova had its offic e in the same space as BWP at 318 West Adams , Chicag o. Lozman and Put nam testif ied that they

would mar

ket ScanS hift to traders through BWP free of cha rge, but money

from licensing would be routed through Ter ra Nova. Lozman testified that Terra Nova was created simply to allay the fea

r of the Townsends that partial ownership in BWP might have an adverse impact on their r elationships with existingNo. 1- 06-0861

6 This term was used by the pa rties and by the trial c ourt in its July 25, 2005, opinion. Lozman , Nos. 01 L 16377 & 99 CH 11347, slip op. at 20. We do not know its significance. 6 broker-dealer customers and to insulate the Townse nds from any tra

ding liability. Lozman claimed that he would not have consented to the formation of Terr a Nova if he had known that he would not be a 50% owner. Lozman alleg ed that he, Putnam and the Townsends had an oral agree ment that a

ny proceed s from “a

ny e lectron

ic tradin g, SOES tr

ading a nd elect ronic exchanges” that were develope d would be shared on “an equal basis.” (Second Ame nd. Compl..Para. 39 (d)). The jury found that Putnam did not breach an oral agree ment to deliver an ownership interest in Terra Nova to plaintiffs. In January

1995, Lozman was in a serious bicy cle accident, which led to months of painful physical thera

py. At the time, he was unsure whether he could return to work. L ozman claimed that after the accident, he could not monitor defe ndants’ activities in BWP and Terra Nova. Lozman alleged tha t during this time, BWP did not receive funds to which it was entitled. (Second Amend. Compl. Para. 51). In Ma rch 1995 , Lozma

n returned to the o ffice, and prac ticed his “

numchucks” 6 there to continue his physical thera py. Putnam testified that L ozman swung “numchucks” at others in the office. On April 17, 1995, Lozman and Putnam signed a commission-splitting ag reement that covered: (1) “futures and future s options commissions generated for customer accounts initiated through Scanshift or Townsend Software”; (2) “ commissions paid by Townsend for theNo. 1- 06-0861

7 Samuel Long was the pre sident of Analytic Service s L.L.C., (A S), a company e stablished by Putnam and L ozman to market and sell ScanShift to brokerage customers. Putnam and Lozman each held a 25% intere st. 7 promotion of their software products”; and (3) “equity and equity options commissions gener ated from customer accounts initiated through Scanshift or Townsend Softwa re.” Putnam tes tified tha

t in June 1995 , he dec ided to en d his rela tionship wi

th Lozma n due to Lozman’s disruptive behavior in the office a nd complaints received about Lozman from colleagues, vendors and customers. Lozman alleged that in June and July 1995, Putnam and the Townsends met with another trader, Lewis B orsellino, and discussed the creation of a SOES trading org anization. (Second Amend. Compl. Para. 53). Lozman allege d that this was a corporate opportunity diverted from BWP. Loz

man a lleg ed th at on

June 3 0, 199 5, he

was l ocke d out o f the

offi ces o ccup ied b y B WP and Terra Nova. L ozman sent a letter, dated July 11, 1995, to Putnam, TAL and Samuel Long 7 informing them that ScanShift could no longer be sold as an option to RealTick. Lozman alleged that from July through October 1995, defendants continued to promote ScanShift, with the Townsends’ RealTick software (Second Amend. Compl. Para. 59). Putnam and Marrgwen Townsend testified that the re lationship soured between Lozman on one hand and the Townsends and Putnam on the other, when Lozman would repeatedly a rrive

unannoun ced at TA L to di scuss tec

hnical bu gs in the ScanShift

softwar e. Lo zman wouldNo. 1- 06-0861

8

demand that TAL engineers fix immediately any technical bug and refused to leave the premises. Stuart and Marrgwen Townsend asked him to stop arr iving unannounced. Lozman testified that in September 1995 he attempted to find leg al counsel but lacked the financial resources to pay the retainer. The Termination On Octobe

r 9, 1995, just six months after having si gned th eir Apri l 17 agr eement, Putnam and Lozman terminated it and ended their business rela tionship. In order to effect the termi natio n, th ey signed a n umber of doc ument s on Oc tober 9, in cludi ng: (1) thre e relea ses of lia

bility , each si gned by

Lozma n, Putnam a

nd Lon g; (2) a letter sig

ned by Putnam re signing

as presi dent and b oard mem ber of B WP; (3) a “Secured Demand Note,” sig ned by Lozman, for $15,000 to Putnam and (4) two “ Assignme nt[s] Separa

te From Ce

rtifica te” sig ned by Putnam and

transfe rring t o Lozman 416.5 “Common A Voting Shares” of B WP and 17 “Common B Non-Voting Shares.” Lozman, Putnam and Long each signed releases that, e xcept for the inserted names, were identica lly worded an

d only four sen tences l ong. The

releas e signe d by

Lozma n stated: “I, Fane B . Lozma

n, as Chai rman of B lue Water

Partners, Inc., hereby

release Analy

tic Services, Terra Nova Trading L.L .C., Gerald D. Putnam and Samuel Long from any oblig ations past and present arising from my

past association with those entities and persons and as a result of the attached ag reement. Further, I F ane B. L

ozman personally

releas e Analy

ticNo. 1- 06-0861

9 Services, Terra Nova Trading L.L .C., Gerald D. Putnam and Samuel Long from any

obligat ions as a r

esult of my

past association with those entities and persons and as a result of the attache d agre ement. I ag ree to r elease and hold h armless A

naly tic Servic es, Terra Nova Trading L .L.C., Gerald D. Putnam and Samuel Long from any obligat ions resu lting fr om the atta

ched ag reemen t. I further ag

ree not to disclose the details of this agreement or to discuss Terra Nova Trading L .L.C,. and Analy tic Services or my p ast busine ss relati onship with Gerald D . Putnam, Sa

muel R. Long , Terra

Nova Tra

ding L .L.C, . and Ana

lyti c Servic es, with my current or future prospects or clients.” The “attached agre ement” mentioned in the releases was the April 17, 1995 commission sharing agree ment. The

words “V oid 10/9/95 " were written by ha

nd at the b ottom of the

April 17 agreement, followed by the signatures of both Putnam and Lozman. Lozman testified that he believed that the October 9 release voided only

the April 17 agree ment, whic

h was atta

ched to the relea se. Howe ver, the trial cou rt held tha

t the rele ase covered both : (1) obligations as a result of L ozman’s past association with the named entities and persons; and

(2) obligations as a result of the attached ag reement. Lozman , Nos. 01 L 16377 & 99 CH 11347, slip op. at 16. The release signed by

Putnam was identical to the above-quoted release, except it statedNo. 1- 06-0861

10

that he was president of Terra Nova Tr ading, L.L .C. and that he released Blue Water, Partners Inc., and Fane

Lozman. The release sig ned by Long was also identical, except it stated that he was president of Analy

tic Services and the he released Blue Water Partners, Inc. and F ane Lozman. In the resigna

tion letter dated October 9, 1995, Putnam stated: “Dear Fa ne, Please accept this letter as my resig

nation as President and Board Member of Blue Water Partners, Inc.” “Cancelled” was handwritten on Putnam’s two BWP stock certificate s. In a “Secured D emand Note,” dated October 9, 1995, L ozman stated: “I promise to pay $15,000 to Gerald D. Putnam after profits from the sale of my invention known as ‘ScanShift’ exceed $100,000.” Lozma n alleg ed that th e relea se he sig ned was c onditione d on Putnam a nd Townse

nds’ return to him of the ScanShift software programming code, which was controlled by TAL. (Second Amend. Compl. Para. 60). At trial, Lozman and Putnam provided contr adictory testimony about whether re turning the ScanShift code was a condition precede nt to the validity of the release. The trail court found that “[t]he only evidence that plaintiffs proffered to rebut the presumption that no conditions precedent existed was plaintiff Lozman’s own testimony that the parties had agreed ora

lly to return the ScanShift code ba ck to Blue Water Partners.” Lozman , Nos. 99 CH 11347 and 01 L 16377, slip op. at 14. The trial court held that Lozman’s testimony was insufficient to rebut the presumption that a written agre ement that does not state any conditions precedent, does not have any

. Lozman , slip op. at 14. Putnam tes tified tha

t he belie ved that s igning

the Octob er 9 rel ease onl y ob ligate d him to return the BWP stock certif icates, though n

ot phy sically

returne d, beca

use they were be ing heldNo. 1- 06-0861

11

at the law firm of Foley

& Lardner . The trial court found that, by accepting Putnam’s resignation as president and director of BWP, L ozman obtained complete control over BWP and ScanShift. Lozman , slip op. at 13. After the Octobe

r 9 rele ases we

re signed, L ozman term

inated a ll relationships with ScanShift customers by ca ncelling the licenses. Also, Jon Najarian became a sha reholder and director of BWP. On November 20, 1995, Lozman and Putnam signed a termination agreement that was backdated to October 9, 1995. BWP retained attorney Craig Fowler, who had been Na jarian’s lawy er, to dr aft a ter mination a

greement to ver

ify that Putna

m had res igned h

is ownership in BWP. Fowler also prepared transfer documents to transfer Putnam’s stock certificates on Novembe r 20, 1995 . Putnam wa s not repr esented by c ounsel. Although the termination agreement stated that it was “ made and entered into as of the 9 th day of October 1995,” there is no dispute that the agreeme nt was actually sig

ned in November 1995. The agree ment state d in part: “Effective immediately , the Shareholder’s Agreement is her eby terminated and of no further force or effect; provided, however, that any causes o f action

which may

have ar isen ther eunder p rior to the date of this Te

rmination Agree ment, whe

ther for or with respect to action s, inactio ns, brea ches the reof or other ma tters, shall survive this termination.” The clau se of the

terminat ion agr eement that prese

rves “a ny c auses of

action” appears toNo. 1- 06-0861

12

conflict with the October 9 release. Lozman testified that he believed that the termination agree ment pre served a

ny c laims conc erning

the sourc e code, electro

nic trad ing, and an elec

tronic exchange. Putnam testified that Lozman presente d the termination agreement as a clea n-up document that bette r refle cted the ir previo

us agre ement und

er the r elease s and res olved pro

blems with the tr

ansfer of share s. Lozman allege d that Putn am and the To wnsen ds for med Ch icago T radin g and Arb itrage (CTA), a SOES trading business located in the same office as BWP and Terra Nova. (Second Amend. Compl. Para. 67). Lozman allege d that CTA developed advanced software a nd computer mechanisms that led to the development of an electronic c omputer network (ECN). (Second Amend. Compl. Para. 67). Lozman alleg ed that CTA was using Townsend software and generating reve

nues to which plaintiffs claimed they were entitled based on the April 17, 1995, agreement. (Second Amend. Compl. Para. 68). L ozman alleged that this was the same line of business as that in which BWP was engaged. (Sec ond Amend. Compl. Para. 69). Defendant Putnam testified that in October 1996, he attended a mee ting with NASDAQ representatives, whereby

he realized he could build his own qualified electronic communication network (ECN). In December

1996, the Archipelago defendants we re created as a joint venture betwe en TAL a nd Terra Nova, wit

h Putnam as

the Chief Executive

Office r. The Ar chipela go def endants’ business included an ECN. The Townsend defendants supplied the ECN software , and Terra Nova provided the

broker- dealer

service s. Putnam te stified that Terr a Nova’ s broker

age lic ense and security c apital were necessary to start Archipelago’s ECN, for its timely debut as allowedNo. 1- 06-0861

13

under new SE C regul ation s. Ter ra Nova ceased its s ponso rship of Arch ipela go, aft er Arch ipela go obtained its own broker-dealer license. The tria l court found that Archipelago was more like a stock exchange than a broker-dea ler. Lozman , Nos. 99 CH 11347 and 01 L 16377, slip op. at 9. Archipelago has since merg ed with the New York Stock Exchange. Procedural History Although the Putnam-Lozman relationship was formally dissolved on October 9, 1995, plaintiffs waited until August 9, 1999, almost four y ears later, to file their initial complaint. The complaint, which alleged usurpation of corporate opportunity and brea

ch of joint venture, was later dismissed with

out preju dice. On Decemb er 6, 199 9, plaintif fs filed a 22-coun t first amended complaint (No. 99 CH 11347) against Putnam, the Townsend defe ndants, Terra Nova Trading, L.L .C., CTA and the Archipelago defendants. Plaintiffs alleged that misappropriated assets included: (1) B WP’s leasehold interest at 318 West Adams, Chicago; (2) BWP’s ScanShift computer code, progr ammed by the Townsends; (2) BWP’s ScanShift computer software progra ms, compiled by the Townsends to run on RealTick softwar e; (4) Put nam’s wor

k time, owe d to BWP; (5) a perce ntage share of

the softdollar brokerage trading

revenues due to BWP; (6) revenues owed to B WP from the sale of ScanShift software; and (7) corporate opportunities in the elec tronic trading field, SOES room trading and the electronic stock exchang e. On March 24, 2000, the trial court or ally dismissed w

ith prejud ice the f ollowing countsNo. 1- 06-0861

8 The numbe

ring of the count s is the same in both th e first a mended a nd the subs equently filed, se cond ame

nded comp laint.

9 The tria l court dismissed co

unts 9 thro

ugh 12, b ecause

the Arch ipelag o defend

ants did not exist at the time; count 17, for lack of standing; count 21, because no independent ac tion existed for

breach of a duty of good faith and fair de aling; a

nd count 2 2 for con spiracy , with respect to the Archipelago def endants, because they

could not have conspired with their own agents

. 14 from the first amended complaint: 5, 6, 7, 8, 9, 10, 13, 15, 16, 17, and 21. 8 The tria l court a lso dismissed w

ith prejud ice coun ts 11and 12 , with res

pect to CT

A and the Archipe lago de fendant s

on ly, an d c ou nt 22 wi th re sp ec t t o T er ra No va , C TA an d t he Ar ch ip el ag o d ef en da nt s o nl y. With respe ct to the A

rchipel ago de fendant s, the tria l court dismissed with

prejudic e all the counts against them (which were counts 9 throug h 12, 17, 21 and 22) pursuant to section 2- 615 of the Code of Civil Procedure (735 IL CS 5/2-615 (West 2000). 9 On April 19, 2000, the trial court ordere d the M arch 24 order a mende d to ad d that “[t] he dis miss al of t he Arch ipela go defendants with prejudice is a final and appeala ble order.” On April 18, 2002, the appellate court affirmed the trial cour t’s dismissal of counts 11, 12, 17, 21 and 22 against the Archipelag o defendants. Lozman v. Putnam , 328 Ill. App. 3d 761, 767 (2002). However, the appellate court he ld that the trial court’s dismissal of Counts 9 and 10 (which both alleged usurpation of corpora te opportunities) was not a “final and appealable” order. Lozman , 328 Ill. App. 3d at 772.No. 1- 06-0861

15

The appellate court found that “the circuit court’ s dismissal of counts 9 and 10 involving Ar ch ip el ag o d id no t d is po se of th e p ar ti es ’ r ig ht s o n a de fi ni te pa rt of th e l it ig at io n, na me ly, Archipelago’s putative liability ,” because the trial court did not dismiss Count 14, which sought rescissim of Lozman’s October 9 re lease. Lozman , 328 Ill. App. 3d at 769. The appellate c ourt found that plaintiffs had pled sufficient facts in the complaint “to show, alleg edly, the line of business from Blue Water to Archipelago, with Putnam as the fiducia ry link.” Lozman , 328 I ll. App. 3d at 770. Because of this link, Archipelag o had potential, putative liability. Lozman , 328 I ll. App. 3d

at 770. As

a result, the appe llate cou rt dismisse d the appe al with re spect to counts 9 and 10. Lozman , 328 Ill. App. 3d at 772. On December 28, 2000, plaintiffs filed a second ame nded complaint. Defendants pled affirmative defenses including rele ase, laches and ratification and filed a counterclaim for declaratory

relief. On Dece mber 20, 2 001, plain

tiffs file d a separ

ate act ion (No. 0 1 L 163 77) ag ainst defendants GDP and Virago. On January 22, 2003, plaintiffs filed a second amended complaint in this second action which alleged three counts: (1) usur pation of corporate opportunity ; (2) unjust enrichment; and (3) fraudulent convey ance of assets. The trial court dismissed count 3, and on November 1, 2004, granted summary judgment for defendant Virag o on counts 1 and 2. On March 12, 2003, plaintiffs moved the trial court for leave to file a revised, second amended complaint against the Archipelago defendants and to vacate the March 24, 2000, dismissal of counts 9 and 10 against the Archipelago de fendants. On April 7, 2004, the trial court de nied plai ntiffs’ motion. Thu s, the Arc hipelag o defend

ants wer e out of the case, prior toNo. 1- 06-0861

10 The Archipelago defenda nts were not part of the trial, due to the trial court’s orders on March 24, 2000 and April 7, 2004; in addition, Virago was not part of the tria l due to the trial 16 trial. On July 16, 2003, the trial court gra nted summary judg

ment motions: by the Townsend defendants for count 12 (joint venture), and count 19 (bre ach of oral contract to pay revenue and commission); and by defenda nts Putnam, Terra Nova and the Townsend defendants for counts 1, 3 and 11 (injunctive relief). On November 1, 2004, the trial court granted summar y judgment for

defendants on count 20 (specific performance to deliver T erra Nova stock). On November 5, 2004, the tria l court stated that its ruling was only w ith respect to specific performance, a nd not damages. On November 1, the trial court also granted de fendant Virago’s motion for summary judgment on the remaining counts against it: count 1 (corpora te usurpation), and count 2 (unjust enrichment), which were from the second action. On Nove mber 3, 2004, the trial court also granted the summary judgme

nt motion of Putnam, Terra Nova and the Townsend defendants on ame nded count 22 (conspiracy

). Starting on November 16, 2004, a dual bench and jury trial was held, concluding on Decemb er 16, 2004. On Nov ember 1 6, 200 4, th e tria l cour t rule d that any jury find ings

concer ning the equitabl e claims were mer ely advisory . The equ

itable cl aims inclu

ded coun ts 2 and 4, for usurpation of corporate opportunities Both the Archipe lago de fendant s and Vira go wer e not par t of the tr ial. 10 As a result ofNo. 1- 06-0861

court’s order on November 1, 2004. 17 prior dismissal and summary judgme nt orders, the counts at issue at trial were: counts 2 and 4, usurpation of corporate opportunity , against defendants Putnam and Terra N ova; count 14, equitable remedies of rescission, cancellation and r eformation of the October 9 release; c ount 18, damages for breach of

the April 17, 1995 agreement; count 19, damag es for breach of an alleg ed oral co ntract by defenda nts P utnam and Ter ra Nova to pay BWP “reven ues an d brok erage commission s” due under a “s oft-dolla r broker age tr ading a greement”; an

d count 20 , damag es, against defendants Putnam and Terra N ova, resulting from Putnam’s alleged promise to Lozman to delive r a 50% ow

nership i nterest i n Terra Nova. I n addition , there were als o counts a gainst defenda nt GDP from the sec ond action (No. 01 L 16377) for usurpa

tion of corporate

opportuni

ty and unjust enrichment. The jury found for plaintiff BWP on its cl aim of usu rpation o f corpor

ate oppor tunities, against Putnam and Terra Nova (counts 2 a nd 4). The jury f

ound for defendants Putnam and Terra Nova: on count 18, plaintiffs’ claim for brea ch of the written April 17, 1995 contract; and on count 19, plaintiffs’ claim for breach of an alleged oral contract. The jury also found for defendant GDP on count 1 (usurpation of corporate oppor tunities) of the second action. In addition, the jury

answered 12 special interroga tories. In the interrog atories, the jury found that: a broker-dealer business was re asonably incident to the pre sent or prospective business o f BWP; Putna

m bre ache d his f

iduc iary duty to BWPby

usur ping business f

rom B WP and pursu ing that business w

ith Terr a Nova; Pu

tnam fail ed to disc lose to BWP t he corpo rateNo. 1- 06-0861

18

opportunities of a broker-dealer business, a SOES room, an ECN and a n electronic exchange; and Putnam did no t promise Lozman a 50% interest in Terra Nova. With respe ct to the O ctober 9 , 1995 re lease, t he jury found tha

t: it was notsigned on the condition that Putna

m would fur

nish L ozman the Sc anShift so urce co de; it was

just and e quitable to Lozma n and BWP; i

t was notobtained by Putnam without disclosure of materia l facts; it was supporte d by

consider ation; the scope of the rele ase was notlimited to releasing the April 17, 1995, agreement; and plaintiffs ratified the re lease. The jury also found, w

ithout regard to the validity of the release, that: defendants did not breach the written April 17, 1995 contract; there wa s no oral contract to give L ozman 50% ownership of Terra Nova; and the value of Terra Nova was $2,500,000. On July 25, 2005, the trial court entered judg ment for defendants Putnam, Terra Nova and GDP on Counts 2, 4, 18, 19 and 20; on all claims against GDP; and on the counterclaim for declaratory

judgment. The trial court concluded that the October 9 release was valid; that plaintiffs ratified the release; and that the doctrine of laches barred plaintiff s’ claims of corporate usurpation (counts 2 and 4 from the first action; and count 1 from the second a ction). On August 23, 2005, the trial court entered an orde r modifying its July

25 opinion to add judgment for defendants on Count 14 (rescission, cance llation and reformation of the October 9 release). On March 14, 2006, the trial court de nied plaintiff’s posttrial motion. On March 31, 2006, plaintiffs filed a notice of appeal appe aling a list of over 20 orders. In the ir appel late brie f, plainti ff aske d this cour t to reve rse only six orders: (1) July 24, 2005 or

der and o pinion, en

tered after the

dual benc

h and jury

trial;No. 1- 06-0861

19

(2) Aug ust 23, 200 5 order, amending the July 24 order to include

dismissal o f count 14 ; (3) March 14, 2006 order, deny ing plaintiffs’ posttrial motion; (4) November 3, 2006 order gra nting the Townsend defendants’ motion for summary judgment on amended count 22; (5) March 24, 2000, order dismissing the Archipelago defendants pursuant to section 2- 615, affirmed in part by

this court, with the appeal dismissed with respect to counts 9 and 10; and (6) Apri l 7, 2004, order of the circ uit court, on reman

d, deny ing plai ntiffs’ motion to vacate the March 24 dismissal of counts 9 and 10 aga inst the Archipelago defendants and deny ing plai ntiffs’ motion to fil e additional count s again st the Arc hipelag o defend

ants. Alternatively, plaintiffs see k a new trial “as to all defendants originally named in this action.” This case has been appealed a total of thre e times. First, on January 22, 2000, this court affirmed the trial court’s denial of plaintiffs’ motion for a tempora ry restra ining order. Second, on April 18, 2002, this court issued an opinion affirming in part the trial court’s dismissal pursuant to section 2-615. The third time is the instant appeal. For the reasons discussed be low, this cour t affirm s. ANA LYSIS In their appellate brief

to this court, plaintiffs make four claims: (1) the trial court erred on July 25, 2005, when it held after the trial that the Oc tober 9 release and the equitable doctrineNo. 1- 06-0861

11 The tria l court fo und that the Octobe

r 9 rele ase pre cluded pl aintiffs ’ recov ery on counts 2 and 4, for usurpation of corporate opportunities. Lozman , Nos. 01 L 16377 and 99 CH 11347, slip op. at 10. Count 14 sought rescission, cancellation and reformation of the Octobe r 9 release.

12 Plaintiffs’ appellate brief makes no argume nts with respect to the other counts decided against plaintiffs after trial: count 18 (breac h of written April 17, 1995 agreement), count 19 (breach of alleged or

al contract to pay

“soft-dollar” revenues to BWP) and count 20 (bre ach of an alleged promise to deliver 50% ownership interest in Ter ra Nova to Lozman). I

n essence, plaintiff s’ appel late brie fs decid

ed to drop

the leg al counts

and proc eed only

on the equ

itable counts.

13 As explained below, only counts 9 and 10 (usurpa tion of corporate opportunity ) are properl y be fore this

court. 20 of laches precluded plaintiffs’ recovery 11 on counts 2 and 4; 12 (2) the trial court erred on March 24, 2000 when it dismissed the Archipelago defendants under se ction 2-615; 13 (3) the trial court erred on July 25, 2005 when it held that def endant GDP was covered by the October 9 release; and (4) t he trial c ourt err

ed on Nove

mber 3, 20 04 when it

grante d the Town send def endants’ motion for summary judgme nt on amended count 22. Standards of Review Plaintiffs appeal the trial court’s judgment after a dua l bench and jury tr

ial, as well as orders by the tr

ial court granting motions to dismiss pursuant to section 2-615 of the Code of Civil Proce dure (73 5 ILCS 5/2-615 ( West 2000) ) and motions for sum mary judgmen t (735 I LCSNo. 1- 06-0861

21

5/2-1005 (West 2000)). For fac tual findi ngs made by a trial cou rt during a bench trial, we apply a “manif est weight of the evidence” standar d. Eyc haner v. Gross , 202 Ill. 2d 228, 251 (2002). We apply the same standard for a jury

verdict. Hanumad

ass v. Cof field, Un garet ti & Har ris , 311 Ill. App. 3d 94, 102 (1 999). A f

inding is against the manif

est weig ht of the e

vidence “only when an o

pposite conclusion is apparent or when the findings appea r to be unreasonable, arbitrary , or not based on the evidence.” Eychane

r , 202 Ill. 2d at 252. This court will also apply a de novo standard of review to grants of motions to dismiss under section 2 -615 (735 IL CS 5/2-615) (West 2000 )) and mo tions for s ummary judgmen t (735 I LCS 5/2-1005 (West 2000). Iseb erg v. Gross , 366 Ill. App. 3d 857, 860 (2006) (dismissal under section 2 -615); Ragan v. Columbia Mutual Insuranc e Co. , 183 Ill. 2d 342, 349 (1998) (summary judgment). With respect to summary judgme nt, our supreme court has held that it “is proper where, when viewed in the light most favorable to the nonmoving par ty, the pleading s, depositions and admissions on file reveal that there is no genuine issue as to any material fact and that the moving party is e

ntitled to judgment as a matter of law.” Ragan , 183 Ill. 2d at 349. By contr ast, a motion to dismiss under section 2-615 is a challenge to the legal sufficiency

of the complaint. Iseberg , 366 Ill. App. 3d at 860. I n reviewing the legal suffic iency of the complaint, we regard all well-ple d facts as true and draw all reasona ble inference in favor of the plaintiff. Iseberg , 366 Ill. App. 3d at 860. We construe the complaint liberally and dismiss only when it appears that plaintiffs could not re cover under any set of facts. Iseberg , 366No. 1- 06-0861

14 In addition, rescission and cance llation (count 14) are equitable remedies, to which the equitable defense of laches also applied. Adams v. Greg Weeks, I nc ., 327 Ill. App. 3d 380, 384 (2002) ( rescissi on and ca

ncellati on are e quitable

remedie s); Wilkonson v. Yovetich , 249 Ill. App. 3d 439, 446

(1993) ( rescissi on is an eq

uitable r emedy ); Hannigan v. Hoffmeister , 240 Ill. App. 3d 1065, 1074 (1992) ( laches is an equi table de fense) ; John J. Calnan C o. v. Tals ma Builde rs, 22 Ill. App. 3d at 861. I. L aches Plaintiffs claim that the October 9 release did not preclude their r ecovery on counts 2 and 4 for usur

pation of corpora te opport unities, b ecause : (1) the r elease was inva lid due to defendants’ breach of fiduciar y duty and failure to disclose material facts; (2) plaintiffs wer e entitled to the remedy of

rescission (3) plaintiffs were also entitled to the remedy of cancellation; (4) plaintiffs did not ratify the r elease, as the trial court found; (5) even if the release was valid, its scope did not include plaintiffs’ claims of breach of fiduciary duty and corpor

ate usurpation; and (6) Putnam’s failure to disclose material facts prec luded the trial court’s finding of laches

. For the reasons discussed below, this court rejects plaintiffs’ laches arguments. Since we affirm t he trial c ourt’s laches finding, we do not need to consider plaintiffs’ first five ar guments. Plaintiffs’ first five arguments all relate to the rele ase: its validity, rescission, canc ellation, ratific ation and

scope. H owever , the tria l court’s decision rested on two inde

pendent g rounds: the release; and the equitable doctrine of laches . Since we accept the latte r, we do n

ot need to consider the former. 14No. 1- 06-0861

Inc. , 67 Ill. 2d 213, 220 (1977) (cance llation is an equitable remedy ). 23 Plaintiff s claim tha

t the tria l court e rred on Jul

y 25 , 2005 whe

n it found t

hat laches barred plaintiffs’ recovery

on counts 2 and 4 (usurpation of corporate opportunities). Lozman , Nos. 01 L 16377 and 99 CH 11347, slip op. at 10. Usurpation of a corpor ate opportunity is a claim base d in equity and thus subject to the equitable de fense of laches

. Tarin v. Pellonari , 253 Ill. App. 3d 542, 550-51 (1993) ( laches applied to claim of misappropriation of corporate opportunities). Plaintiff s claim er ror, bec ause: (1 ) since Pu tnam, as a

fiducia ry , had a du

ty to disclose certain facts and failed to do so, the “running of time” for laches began on the date that plaintiffs actually discover

ed his fraud; (2) laches may not be use d as an af

firmativ e defen se in those limited circumstances where a fiduciary knowingly violated a

restriction and pressed ahead; (3) laches cannot be found where the statute of limitations has not run; and (4) in the alterna tive, plaintiff s claim tha

t they were dil igent, a

nd any finding to the con

trary was ag ainst the manifest weight of the ev idence. For the r

easons st ated bel ow, we do

not find pl aintiffs ’ argu

ments persuasive. In order to preva

il on the affirmative defense of laches , defendants must prove: (1) that there was “a lack of due dilige nce” by plaintiffs in bringing suit; and (2) plaintiffs’ delay resulted in “prejudice” to defendants. People v. McClure , 218 I ll. 2d 375, 3 89 (2006) ; Jameson Rea lty Group v. Kostiner , 351 I ll. App. 3d 416, 431- 32 (2004) ; People v. Hawkins , 181 Ill. 2d 41, 54 (1998). For the first requirement, plaintiffs “must have failed to see k prompt redress after havingNo. 1- 06-0861

24

knowledge of the facts upon which [their] claim is based.” Eckber g v. Be nso , 182 Ill. App. 3d 126, 132 (1989). Plaintiff “need not have a

ctual knowledge

of the spe cific fa

cts upon w

hich his claim is based

if he fails to ascertain the truth through rea dily available cha

nnels and the circumstances are such that a rea sonable person would make inquiry concerning these facts.” Eckberg , 182 Ill. App. 3d at 132. The determination of whether laches applies to a particular set of facts is left to the sound discretion of the trial judge. Hannigan , 240 Ill. App. 3d at 1074;. Tarin , 253 Ill. App. 3d at 550; Pettey v. First National B ank , 225 I ll. App. 3d 539, 545- 46 (1992) ; Eckberg , 182 Ill. App. 3d at 131 . An appellate court will not disturb a trial court’s determination of laches “unless that determination is so clearly wrong as to constitute an abuse of discretion.” Hannigan , 240 I ll. App. 3d at

1074; Tarin , 253 Ill. App. 3d at 550. An abuse of discre tion occurs when the trial court’s judgment was “palpably erroneous, contrary

to the manifest weight of the evidence, or manifestly unjust.” O’Brien v. Mey er , 281 Ill. App. 3d 832, 835 (1996). The burden of pleading and proving the defense is on the movant. Hannigan , 240 Ill. App. 3d at 1074. The trial court found both laches requirements satisfied because: (1) plaintiffs did not exhibit due diligence in pursuing their claims, when they knew at the time of the release signing that Putna

m intende d to contin

ue opera ting Ter ra Nova as a brok er-dea ler business rea sonably incident to BWP’s business; and (2) defendants would be prejudiced, since they relied on the release in pursuing their own businesses. Lozman , Nos. 01 L 16377 and 99 CH 11347, slip op. at 26-27. On appea l, plaintif fs claim t hat diffe rent laches rules apply in the fiducia ry context.No. 1- 06-0861

25

First, pl aintiffs

claim tha t where a defenda nt fiducia ry had a duty

to disclose

facts a nd faile d to do so, then the “running of time” for laches began on the date that plaintiffs actually discovered defendant’s fraud. Prueter v. Bork , 105 Ill. App. 3d 1003, 1007 (1981). Prueter , cited and quoted by plaintiff , states: “Although the period of time on which laches is predicated normally begins t o run either when

the plain tiff lea rns of the facts on which h

is rights are bas ed or whe

n a reas onable pe

rson woul d acquire such knowledge, a diff erent rule applies where a fiduciar y relation ship is invo lved. Wher e a fiduc iary

has a duty

to disclose certain facts to the plaintiff but fraudulently fails to do so, plaintiff ’s failur e to asce rtain the se fact s is excuse d. In such cas es, the running of time begins when the fra ud is actually discovere d by plaintiff.” (Citations omitted) Prueter , 105 Ill. App. 3d at 1007. However, plaintiffs’ brief failed to specify the facts that defendant failed to disclose, with the dates wh en plaint

iff actu ally discover ed those f acts. 210 Ill. 2 d R. 341 (h) (7) (“A

rgumen t” section of appellant’s brief “shall contain” citation to “the pages of the record relied on”). Since plaintiff s have fa iled to ev en alleg e – let alone prove – the date s of their

discover y, f acts uniq uely within their possession, plaintiffs have failed to explain how the trial court abused its discretion in computing the time when laches should have begun to run. Second, p laintiff

s claim tha

t laches may

not be use d an as an

affirma tive def ense in those limited circumstances where “a fiduciary knowingly violated a

restriction *** and pressedNo. 1- 06-0861

26

ahead. ” For su

pport, pla intiff ci ted a 1929case: FICA v. Burnha m , 251 Ill. App. 333 (1929). FICA is no t on p oint . The o pini on nev er even discu sses f iduci ary duty. Aft er cit ing FICA , plaintiffs also cited Pettey , 225 I ll. App. 3d (without a

page c ite) whic

h also doe s not discu ss fiduciary duty . Even if FICA and Pettey

were somehow relevant, this section of plaintiffs’ brief does not di scuss fa

cts or contain any

citations to the re cord, as

require d by

Supreme C ourt Rule 341(h)(7). 210 Ill. 2d R. 341(h)(7) ( “Argument” section of appellant’s brie f “shall contain” citation to “the pages of the record r elied on”). Plaintiff’s failure to provide evidentiary support waived a ny p ossible wa

y th is court c ould ente

rtain the ir arg

ument. Third, pla intiffs c laim that laches cannot be found before the five-y ear statute of limitations

ran, and cited for support Pinelli v. Alpine Development Corp ., 70 Ill. App. 3d 980, 1004 (1979). Pinellistates: “ laches will not be found if the delay is short of the statutory period of limitati ons and there has been no chang e of circumstances .” (Emphasis added.) Pinelli , 70 Ill. App. 3d at 1004. Plaintiffs do not even try to argue that there had been no c hange of circumstances, between the formal dissolution of the Putnam-L ozman business relationship on October 9, 1995, and plaintiffs’ filing of their first complaint on Aug ust 9, 1999, almost four ye ars late r. As Pinellistates, “[a] party seeking to rescind a contract on grounds of fr aud or misrepresentation must elect to do so promptly after learning of the fra

ud or misrepresentation.” (Emphasis added.) Pinelli , 70 Ill. App. 3d at 1004. Pinellidoes not help plaintiffs. Last and least, plaintiffs arg ue in the alternative “that they were diligent, and any

finding to the con trary was ag ainst the manifest weight of the evide nce.” Pla intiffs ma ke this cla

im in one line w

ithout any factua l support or lega

l argument. This c ourt has r epeate dly held that aNo. 1- 06-0861

27

party waive s a point by failing to a rgue it. Roiser v. Cascade Mountain, Inc. , 367 Ill. App. 3d 559, 568 (2006) (by f

ailing to offer supporting lega l authority or “any

reasoned argument,” plaintiffs waived consideration of their theory for asserting personal jurisdiction over defenda nts); People v. Ward , 215 Ill. 2d 317, 332 (2005) (“point raised in a brie f but not supporte d by

citation t o releva nt author ity * ** is ther

efore f orfeite d”); In re Marriage of Bates , 212 I ll. 2d 489, 5 17 (2004)(“A rev iewing court is e ntitled to have issue s clear ly d efined w ith releva nt author ity c ited”); Ferguson v. Bill Berg er, Associates, Inc. , 302 Ill. App. 3d 61, 78 (1998) (“it is not necessary to decide this question since the defendant has waived the issue” by failing to offer case ci tation or other supp ort as Supr eme Court

Rule 341 r

equires ); 210 Ill. 2d R. 341(h)(7) (argument in appellate br ief must be supported by c itation to legal authority a nd factual record). For the foregoing r

easons, we do not find plaintiffs’ laches arguments persuasive. II . Dismissa

l of Arch ipelag o Defen

dants Plaintiffs already a

ppealed, and this court already affirmed, the section 2-615 dismissal of most of the counts against the Archipelago de fendants. Lozman , 328 I ll. App. 3d at 772. Th

is court dismissed the prior appeal only with respect to counts 9 and 10. Lozman , 328 Ill. App. 3d at 772. Thus, only the trial court’s se ction 2-615 dismissal of counts 9 and 10 is before this court at this time. In re Christopher K. , 217 Ill. 2d 348, 363 (2005) (“The law- of-the-case doctrine prohibits the reconsideration of issues that have been decided by a reviewing court in a prior appeal” ); Norto n v. C ity of Ch icago , 293 Ill. App. 3d 620, 624 (1997) (“A question of law decided on appea l is binding

on the tria

l court on remand a nd the app ellate c ourt if the case isNo. 1- 06-0861

15 With respect to counts 9 and 10, this court previously held: “the circuit court’s dismissal of counts 9 and 10 involving Archipelago did not disposed of the par ties’ rights on a definite part of the litigation, namely, A rchipelago’s putative liability , because count 14, the pending rescission count, was not dismissed.” Lozman , 328 Ill. App. 3d at 769. Count 14 sought rescission of the October 9, release. Lozman , 328 Ill. App. 3d at 765. 28 appealed again”). Count 9 sought injunctive relief for usurpation of corporate oppor tunity. Lozman , 328 I ll. App. 3d at 765. Count 10 sought an accounting, constructive trust and moneta ry relief for usurpation of corporate opportunity

. Lozman , 328 Ill. App. 3d at 765. 15 “Archipelago’s putative liability” was throug

h Putnam who was “the fiduciary link” in “the line of business from Blue Water to Archipelago.” Lozman , 328 Ill. App. 3d at 769-70. As we held above, the affirmative defe nse of laches barred

recove ry on plaintif

fs’ clai ms for usurpation of corporate opportunity

. Great We st Casualt y Co . v. Cote , 365 Ill. App. 3d 100, 105 (2006) (an appellate court can af firm the trial court’s dismissal on any g round warranted by the rec ord, e ven if

it was not t he reas on giv en for t he dis miss al), ci ting Beckman v. Freeman United Coal Mining Co. , 123 I ll. 2d 281, 2 86 (1988) . Thus, pla intiffs c annot suc ceed on

their remainin g count s 9 and 10 a

gainst t he Arch ipelag o defend

ants. III. Defendant GD P In its brief to this court, plaintiffs claim that the trial court should have e ntered judgment against defendant GDP. The counts ag ainst GDP that went to trial were count 1 (usurpation ofNo. 1- 06-0861

29

corporate opportunities) and count 2 (unjust enrichment). I n its July 25, 2005 opinion, the trial court found that: (1) GDP should be held liable for any corporate opportunities that Putnam and Terra Nova were held liable for usurping; and (2) GDP would be unjustly enriched if it were allowed to keep any

monetary distributions resulting fr om its imputed liability. Lozman , Nos. 01L 16377 and 99 CH 11347, slip op. at 7-8. However, the tr ial court also found that both the October 9 release and the doctrine of laches barred any finding of damages for plaintiffs. Lozman , Nos. 01L 16377 and 99 CH 11347, slip op. at 10 and 27. In the ir appel late brie f, plainti ffs aba ndoned th eir clai

ms agai nst GDP by

failing to provide any f

acts or legal reasoning. Plaintiffs’ br ief mentioned GDP twice: (1) in the jurisdict ional stat ement, wh

ich state d that the

jury returne d an advis ory

verdict in favor of GDP; and (2) in the four-sentence section of its arg ument relating to GDP. GDP is not mentioned once in the stat ement of facts. Pl aintiffs

do not iden

tify defenda nt GDP; the

y do not explain

what role GDP play ed in the e

vents; an d they do not spec ify

the corp orate op

portunitie s that wer

e alleg edly transferred to GDP. The four-sentence arg

ument section concerning GDP contains no facts and lists what ar e, in essenc e, arg

ument hea

dings: “GDP was

not cover

ed by the Relea se. Plaint

iffs are entitled t o judgme nt agai nst GDP [record cite omitted]. The usurped corporate opportunities were in par t transfe rred to G DP. The tr

acing a uthoritie s cited a

bove [in a prior section] also support liability against GDP [two case c itations, omitted].” The trial court agreed with most of the asser tions in the above paragraph. The trial cour tNo. 1- 06-0861

30

did find that the opportunities were transferred, in part, to GDP, and that liability could be traced in part to GDP. The place where the trial court and pla intiffs differ is that the trial court found that both the October 9 release and the doctrine of laches barred recovery . In the above paragraph, plaintiffs claim that “GDP was not c overed by the Release” but without offering any supporting facts or legal analy sis. The brief filed on behalf of defenda nt GDP noted that plaintiffs’ brief waived any arguments concerning de fendant GDP by f ailing to supply fac

ts and legal reasoning. I

nstead of replying , plaintiffs’ reply br ief dropped their GDP claims entirely

. As already

noted above, a party

waives a point by fa

iling to argue it. Roiser v. Cascade Mountain, Inc. , 367 Ill. App. 3d 559, 568 (2006) (by failing to offer supporting leg al authority or “any re asoned argument,” plaintiffs waived conside ration of their theory

for asserting personal jurisdict ion over d

efenda nts); People v. Ward , 215 Ill. 2d 317, 332 (2005) (“point raised in a brief bu t not suppor

ted by citation t o releva nt author ity * ** is ther

efore f orfeite d”); In re Marriage of Bates , 212 Ill. 2d 489, 517 (2004) (“A revie wing court is entitled to have issues clearly defined with rele vant authority

cited.” ); Ferguson v. Bill Berg er Associates, Inc. , 302 I ll. App. 3d 61 (1998) (“it is not necessary to decide this question since the defendant has waived the issue” by failing

to offer case citation or other support as Supreme Court Rule 341 re quires); 210 Ill. 2 d R. 341(h) (7) (ar

gument i n appella te brief must be sup

ported by citation t o legal authority and factual record). IV. A mended Co

unt 22 Ag ainst Tow

nsend De fendant s On appeal, plaintiffs claim that the trial court erred on Nove mber 3, 2004, when it grantedNo. 1- 06-0861

31

summary judgme

nt for the Townsend defendants on amended count 22 (c onspiracy). Lozman v. Putnam , No. 99 CH 11347, slip op. at 4 (Nov. 3, 2004). “Civil conspiracy is define d as ‘a combination of two or more persons for the purpose of accomplishing by

concerted action either an unlawful purpose or a lawful purpose by

unlawful means.’ ” McClure v. Owen Corning Fiberg lass, Corp. , 188 Ill. 2d 102, 133 (1999), quoting Buckner v. Atlantic Plant Maintenance, I nc. , 182 I ll. 2d 12, 23 (1998). T o state a claim for civil conspira cy , a plaint

iff must a llege b oth: (1) a

n agre ement; an

d (2) a tortious act committed in furtherance of that agr

eement. McClure , 188 Ill. 2d at 133. A defendant is liable as a conspirator if he or she “ ‘understands the gene ral objectives of the conspiratorial scheme, acc epts them, and agrees, either explicitly

or implicitly to do [his or her] part to further those objectives.’ ” McClure , 188 Ill . 2d at 133, q uoti ng Adcock v. Brakega te, Ltd. , 164 Ill. 2d 54, 64 (1994) Plaintiffs argued to the trial court that an ag reement existed between Putnam and the Townsend defendants and that they committed “a tortious act” in furtherance of that ag reement. Lozman , No. 99 CH 11347, slip op. at 2. Specifically, plaintiffs cla imed to the trial court, first, that the “ Townsends falsely repres ented to Pl aintiff L ozman that t

hey did not wish

to become involved as owners in a broker/dealer business for f ear of unwarranted liability .” Lozman , No. 99 CH 11347, slip op. at 2. Based on this allegedly false representation, Putnam and the Townsends convinced plaintiffs to form a new company , which was Terra Nova. Lozman , No. 99 CH 11347, slip op. at 2. Lozman claimed that he would not have ag reed to the formation of Terra Nova if he knew that the Townsends ha d lied. Lozman , No. 99 CH 11347, slip op. at 2. Plaintiffs claimed that the Townsends’ subsequent willingness to become owners of Archipelago,No. 1- 06-0861

32

which was also a broker-dealer business, showe d that the Townsends’ alleged fear was false. Lozman , No. 99 CH 11347, slip op. at 2. Second, p laintiff

s claimed to the tria

l court tha

t the Town sends we

re “invo lved in concerted action” with Putnam on June 30, 1995, when, on the same day, Putnam locked Lozman out of the offices shared by BWP and Terra Nova, and Marrg wen Townsend told Lozman that she would not give him permission to sell the Townsend version of ScanShift. Lozman , No. 99 CH 11347, slip op. at 2-3. In addition, plaintiffs claimed that Stuart Townsend falsely informed Lozman that the ScanShift source code had be en destroye d. Lozman , No. 99 CH 1 1347, slip op. at 3. Before the trial court, the parties disputed wha t was the correct standard of proof. Plaintiffs claimed that the correct standard was the normal standa rd on a summary judg

ment motion, namely, whether ther e is a triable issue of fact. Lozman , No. 99 CH 11347, slip op. at 2. That standard is noted above, in the standard of review se ction of this opinion. However, defendants claimed that the correct standar d was “clear and convincing” evidence. Lozman , No. 99 CH 11347 , slip op. a

t 2. Bec ause pla

intiffs r elied on c ircumsta

ntial evid ence, d efenda nts

as se rt ed th at th e “ cl ea r a nd co nv in ci ng ” s ta nd ar d w as re qu ir ed by McClure , 188 Ill. 2d at 134 and Ray Dance

r, Inc. v. D M C Corp. , 230 Ill. App. 3d 40, 50 (1992). In response, plaintiffs arg ued to the trial court that an unreported, federal district cour t case showed that the “clear and convincing” standard was not required. Lozman , No. 9 9 CH 11 347, s lip o p. at 2 , citi ng State Farm Mut

ual Automo

bile Co. v. Abrams , No. 96 C 6365 (Ill. May 11, 2000), (cited to the trial court by plaintiffs).No. 1- 06-0861

33

The trial court correctly

noted that the federal district court case ca rried no precedential value, a nd instea d applied the “cle ar and c onvincing” standa rd requi red by our supre me court in McClure

. Lozman , No. 99 CH 11347, slip op. at 4. In McClure , our supr eme cour t held tha t: “If a civil conspirac

y is shown by

circumstantial evidence, however, the evidenc e must be clear and convincing.” McClure , 188 Ill. 2d at 134. I f the facts are as consistent with innocent conduct as they a

re with guilty c onduct, then the evidence is neither clear nor c onvincing. McClure , 188 Ill. 2d at 140-41. I f a party relies solely on circ

umstantial evidence to prove a conspiracy

claim, the heightened “clear a nd convincing” standard is implicated by the summary judgment motion. Ray Dance r , 230 Ill. App. 3d at 50. To determine whether a genuine issue of fact exists, the trial court must consider the “clear and convincing ” standard of proof. Ray Dancer , 230 Ill. App. 3d at 50. The trial court stated that if the “ordinary ” standard for a summary judgment motion had applied, it would not have granted the motion. Lozman , No . 99 CH 1 134 7, s li p op . at 4. In support of

this conc lusion, the

trial cou rt noted “ [i]n particu

lar” tha t defend ants did no t dispute plaintiffs’ assertion that Stuart Townsend had lied to Lozman about the destruc tion of the ScanShift source code. Lozman , No. 99 CH 1 1347, slip o p. at 4. The trial c ourt state d that it granted the su mmary jud gment m otio n onl y because t he hei ghtene d “clea r and co nvin cing” standard was required on this summary judgment motion. Lozman , No. 99 CH 11347, slip op. at 4. On appeal, plaintiffs do not contest the “clear and convinc ing” standard . Thus, the standard of proof is not an issue before this court. Also, plaintiffs do not dispute the fact thatNo. 1- 06-0861

16 Plaintiffs’ “unlawful” claim was not raised in their posttrial motion either. 34 their proof consisted of circumstantial evidence, thus triggering the heightened standar d. Inste ad, on ap

peal, pla intiffs r aise a c laim that they

did not ra

ise before the tr

ial cour t, namely that the trial cour t was mistaken when it stated that plaintiffs were required to show a tortious act. Lozman , No. 9 9 CH 11 347, s lip o p. at 3 , quot ing McClure , 188 Ill. 2d at 133. On appeal, plaintiff

s claim tha

t Putnam’s breach o f fiducia ry duty was “unl awful” a

nd that a c ivil conspira cy claim may

be based on either a tortious or unlaw ful act. In their brief to the trial cour t in opposition to the summary judgment motion, plaintiffs stated repeatedly

that proof of a conspiracy required proof of an agr

eement and at least one tortious act in furtherance of the conspiracy . The brief spent many pages detailing the tortious acts committed by defe

ndants. The I llinois Supr

eme Court

has held, under “ ‘ the doctr ine of inv ited err or,’ ” that a par

ty “ ‘may not re quest to proceed in one manner and then later c ontend on appeal that the course of action was in error.’ ” People v. Harvey , 211 Ill . 2d 36 8, 385 (2004 ) quot ing People v. Carter , 208 Ill. 2d 309, 319 (2003). To permit a party to use, as a vehicle for reversal, the e xact action which it pro cured i n the t rial c ourt “ ‘woul d offen d all n otio ns of f air pl ay’ ” and enc ourage duplicity by

litigants. Harvey , 211 Ill . 2d at 385 qu otin g People v. Villarreal , 198 Ill. 2d 209, 227 (2001). Thus, plaintiffs cannot raise on appeal the question of whethe r they could show a

n

un la wf ul , a s o pp os ed to a t or ti ou s, ac t i n f ur th er an ce of

th e c on sp ir ac y. 16 Even if th is court p ermitted

plaintiff s to raise this issue f

or the fir st time on a

ppeal,No. 1- 06-0861

35

plaintiff s’ appel late brie f does not identify the allegedly

unlawfu l, as oppos ed to torti ous, acts which they fa

iled to bring to the attention of the trial court. For the foregoing r

easons, we do not find plaintiffs’ argument persua sive, and thus affirm the trial court’s November 3, 2004, order gr anting the Townsend defendants’ motion for summary judgme

nt on count 22.

CONCLUSIO N For the f orego ing rea sons, we a

ffirm the order a nd opinion o f the tria

l court. Affirmed. WOLFSON and GARCI

A, JJ., concur.