In other words, "[i]f a defendant's affidavit contesting jurisdiction is not refuted by a counteraffidavit filed by the plaintiff, the facts alleged in the defendant's affidavit are accepted as true." Id. (citing Doolin v. K-S Telegage Co., 75 Ill. App. 3d 25, 29 (1979); Wiedemann v. Cunard Line Ltd., 63 Ill. App. 3d 1023, 1031 (1978)). ¶ 48 Calvary is correct that Coral did not submit a counteraffidavit in response to Berger's affidavits.

Finnegan v. Les Pourvoiries Fortier, Inc. (1990), 205 Ill. App.3d 17, 24, 562 N.E.2d 989; Kutner v. DeMassa (1981), 96 Ill. App.3d 243, 247, 421 N.E.2d 231, 234-35. Relying upon Doolin v. K-S Telegage Co. (1979), 75 Ill. App.3d 25, 393 N.E.2d 556, and Continental Nut Co. v. Robert L. Berner Co. (7th Cir. 1965), 345 F.2d 395, plaintiffs contend that Bryant Brokers' affidavits are insufficient because they do not specifically respond to the allegations in plaintiffs' complaint. In Doolin, the court denied defendant's motion to quash because defendant's affidavit avoided reference to certain facts material to the disposition of the case.

¶ 38 Only a counter affidavit can meet the defendant's affidavit; contrary allegations in the complaint cannot do so. See Professional Group, 136 Ill.App.3d at 1089; Doolin v. K-S Telegage Co., 75 Ill.App.3d 25, 29 (1979). "The trial court will accept as true any facts in the defendant's affidavit that the plaintiff does not contradict by counteraffidavit ***."

¶ 63 YCA's offer of proof indicates that it also proposed to describe or provide the jury with the YCA-Zegus affiliation contract, taxicab regulations that were adopted by seven Illinois communities near Chicago (Buffalo Grove, Des Plaines, Elgin, Evanston, Morton Grove, Palatine, and Skokie), and the photographs of suburban cab logos. YCA does not argue these additional exhibits on appeal and has waived our consideration of them. Doolin v. K-S Telegage Co. , 75 Ill.App.3d 25, 28, 30 Ill.Dec. 520, 523, 393 N.E.2d 556, 559 (1979) (an appellant who fails to argue an issue waives it); Ill. S. Ct. R. 341(h)(7) (eff. July 1, 2008) (supreme court rule indicating that points not argued on appeal are waived). In any event, not one piece of these additional materials contradicted the fact that the appearance of Ezeagu's cab was determined by YCA, in that YCA chose to use Yellow Cab's distinctive name, color scheme, and logo.

Unrebutted allegations are taken as true. Doolin v. K-S Telegage Co., 75 Ill. App.3d 25, 29 (1979). In the event of a material evidentiary conflict, we must remand the matter to the trial court for an evidentiary hearing. Kalata v. Healy, 312 Ill. App.3d 761, 765 (2000).

(See Met-L-Wood Corp. v. Lifetime Pools, Inc. (N.D. Ill. 1979), 475 F. Supp. 149, 151; Wessel Co. v. Yoffee Beitman Management Corp. (N.D. Ill. 1978), 457 F. Supp. 939, 940. Cf. Doolin v. K-S Telegage Co. (1979), 75 Ill. App.3d 25, 29, 393 N.E.2d 556, 559 ("defendants' affidavit will be determinative of the motion only if it negates the facts upon which the plaintiff bases jurisdiction because otherwise, the defendant has not effectively controverted plaintiff's prima facie showing that the defendant has submitted to the jurisdiction of Illinois").) The cases following Kutner cite Federal precedent and each other.

Finally, we note that the Lees did not file affidavits in support of their motion. Construing a motion to dismiss for improper jurisdiction as brought under now section 2-619 of the Civil Practice Law (Ill. Rev. Stat. 1985, ch. 110, par. 2-619), the court in Doolin v. K-S Telegage Co. (1979), 75 Ill. App.3d 25, 29, 393 N.E.2d 556, held that, "premised as it is on a matter which does not appear on the face of the complaint," such a motion must be accompanied by a supporting affidavit. However, Doolin is not controlling here. Although not so labeled, the Lees' motion was more in the nature of a motion under section 2-619 of the Civil Practice Law to dismiss the third-party complaint on grounds appearing on its face.

Where well-alleged facts within an affidavit are not contradicted by counteraffidavit, they must be taken as true notwithstanding the existence of contrary averments in the adverse party's pleadings. ( Kutner v. DeMassa (1981), 96 Ill. App.3d 243, 421 N.E.2d 231.) If a defendant's affidavit contesting jurisdiction is not refuted by a counteraffidavit filed by the plaintiff, the facts alleged in the defendant's affidavit are accepted as true. Doolin v. K-S Telegage Co. (1979), 75 Ill. App.3d 25, 393 N.E.2d 556. Here, defendant's affidavit specifically states that plaintiffs were not the intended beneficiaries of the contract between Andeck and McAfee. Plaintiffs filed no counteraffidavit.

However, where well-alleged facts within an affidavit are not contradicted by counteraffidavits, they must be taken as true notwithstanding the existence of contrary averments in the adverse party's pleadings. ( Kutner v. DeMassa (1981), 96 Ill. App.3d 243, 421 N.E.2d 231; Central Clearing, Inc. v. Omega Industries, Inc. (1976), 42 Ill. App.3d 1025, 1028, 356 N.E.2d 852, 855.) If a defendant's affidavit contesting jurisdiction is not refuted by a counteraffidavit filed by the plaintiff, the facts alleged in the defendant's affidavit are accepted as true. Kutner v. DeMassa (1981), 96 Ill. App.3d 243, 421 N.E.2d 231; Doolin v. K-S Telegage Co. (1979), 75 Ill. App.3d 25, 29, 393 N.E.2d 556, 559; Wiedemann v. Cunard Line Limited (1978), 63 Ill. App.3d 1023, 1031, 380 N.E.2d 932, 938. Plaintiffs' unverified complaint filed on December 27, 1983, alleged that defendants entered into the Florida agreement with DC, DCI and De Almeida, which provided that De Almeida, on behalf of DC and DCI would write the Accreditation Council in Lake Bluff, Illinois, informing it that seminars sponsored by plaintiffs were erroneously claimed by plaintiffs to have been certified by DC and DCI. The Florida agreement further provided De Almeida would send identical letters to post office officials in Washington and New York (Brooklyn, Rockville Centre, Oceanside) informing them that plaintiffs had used DCI's nonprofit mailing permit.

Thus, although some factual basis for long-arm jurisdiction must be pled, under our liberal rules of pleading the allegation of a tortious act in New Mexico is sufficient for pleading purposes to support an inference of minimum contacts. See Doolin v. K-S Telegage Company, 75 Ill. App.3d 25, 30 Ill. Dec. 520, 393 N.E.2d 556 (1979). Cf. Braband v. Beech Aircraft Corporation, 51 Ill. App.3d 296, 9 Ill. Dec. 684, 367 N.E.2d 118 (1977).