Gaylor v. Campion, Curran, Rausch, Gummerson and Dunlop, P.C. ( 2012 )

ILLINOIS OFFICIAL REPORTS
Appellate Court
Gaylor v. Campion, Curran, Rausch, Gummerson & Dunlop, P.C.,
2012 IL App (2d) 110718
Appellate Court ROBERT W. GAYLOR, JOANN A. GAYLOR, ROBERT E. GAYLOR,
Caption and MORNA GAYLOR, Plaintiffs-Appellants, v. CAMPION,
CURRAN, RAUSCH, GUMMERSON AND DUNLOP, P.C., and LEE
C. LOCKWOOD, Defendants-Appellees.
District & No. Second District
Docket No. 2-11-0718
Filed November 15, 2012
Held Plaintiffs waived any objection to the dismissal of the fraud count in their
(Note: This syllabus second amended complaint against defendants which alleged one count
constitutes no part of of legal malpractice and one count of fraud based on a transaction in
the opinion of the court which plaintiffs invested in a business venture to develop and sell
but has been prepared electroluminescent technology, since plaintiffs filed a one-count third
by the Reporter of amended complaint alleging legal malpractice following the dismissal
Decisions for the and that count did not refer to or adopt the dismissed fraud count, and the
convenience of the damage award for plaintiffs was not manifestly erroneous.
reader.)
Decision Under Appeal from the Circuit Court of McHenry County, No. 04-LA-82; the
Review Hon. Michael T. Caldwell, Judge, presiding.
Judgment Affirmed.
Counsel on Peter M. Katsaros and Laura A. Balson, both of Golan & Christie LLP,
Appeal and Harry C. Lee, of Law Office of Harry C. Lee, both of Chicago, for
appellants.
Christopher J. Graham, Dawn C. Wrona-Eby, and Joseph P. Kelly, all of
Jones Lemon & Graham LLP, of Geneva, for appellees.
Panel JUSTICE ZENOFF delivered the judgment of the court, with opinion.
Justice Birkett concurred in the judgment and opinion.
Justice McLaren specially concurred, with opinion.
OPINION
¶1 Plaintiffs, Robert W. Gaylor (Robert), Joann A. Gaylor, Robert E. Gaylor (Bobby), and
Morna Gaylor, filed a two-count second amended complaint against defendants, Campion,
Curran, Rausch, Gummerson & Dunlop, P.C. (the Campion firm), and Lee C. Lockwood, an
associate attorney of the Campion firm, alleging legal malpractice and common-law fraud.
The trial court dismissed the fraud count, and the matter proceeded to trial on plaintiffs’ one-
count third amended complaint alleging legal malpractice only. The jury returned a verdict
in favor of plaintiffs and awarded them damages of $182,625. Plaintiffs appeal, arguing (1)
that the trial court erred in dismissing their fraud count and (2) that the jury’s determination
of damages was manifestly inadequate and ignored proven elements of damages. For the
following reasons, we affirm.
¶2 BACKGROUND
¶3 The relevant background begins with the filing of plaintiffs’ second amended complaint
alleging legal malpractice and fraud. Plaintiffs alleged the same background facts in both
counts. Plaintiffs owned and operated an excavating business and had used the Campion firm
for various legal matters since 1998. In June 2002, Brian Bettis approached plaintiffs about
the possibility of participating in a business venture to develop, manufacture, and sell
electroluminescent technology (EL technology). Bettis represented to plaintiffs that he had
obtained a number of patents for EL technology and that an Illinois corporation named ISD
Technologies, LLC, in which Bettis and other investors were involved, currently owned the
intellectual property rights and patents associated with EL technology.
¶4 Plaintiffs decided to participate in the EL technology venture with Bettis through a new
company that would be called Ions, Inc. Plaintiffs and Bettis planned to transfer ISD
Technologies’ purported assets, including all intellectual property rights in EL technology,
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into Ions. Bettis represented to plaintiffs that all of the present and future EL technology
products would become the exclusive property of Ions. The contemplated products included
a helmet kit, a safety vest, a backpack, a bicycle kit, and jewelry.
¶5 In their legal malpractice count, plaintiffs alleged that, beginning in early July 2002, they
consulted with Mark Gummerson, a partner in the Campion firm, and told him of their
business plans with Bettis. Plaintiffs sought Gummerson’s legal advice in connection with
the proposed transfer of ISD Technologies’ purported assets to Ions. Gummerson referred
plaintiffs to Lockwood, telling plaintiffs that this type of transaction was Lockwood’s
expertise. Bobby asked Gummerson whether separate counsel was necessary to represent
plaintiffs and Bettis in the transaction, and Gummerson told plaintiffs that separate counsel
was unnecessary.
¶6 Plaintiffs alleged that, leading up to the closing to finalize the transaction, plaintiffs
informed Lockwood that their intention was for all of the EL technology ever developed by
Bettis to become the sole and exclusive property of Ions. Plaintiffs also instructed Lockwood
to draft an agreement that would require Bettis to transfer to Ions all intellectual property
rights in all EL technology he developed, for 10 years from the date of the closing and for
an additional 10 years pursuant to an automatic option to renew the agreement. Plaintiffs
asked Lockwood numerous times whether he had in his possession the patents that Bettis had
obtained in the EL technology, and Lockwood repeatedly indicated that he had them in his
office.
¶7 Regarding the closing, which took place on October 10, 2002, plaintiffs alleged that
Lockwood began by passing out the documents he had drafted. The closing was attended by
plaintiffs; Bettis; Bettis’s girlfriend, Sharon Munn; Bettis’s son, Rocky Bettis; Rocky’s
girlfriend, Cathy; Bettis’s daughter, Danielle; and Bruce Salk. Plaintiffs alleged, on
information and belief, that Salk was an attorney representing himself and other investors in
ISD Technologies. Plaintiffs’ understanding was that Lockwood was representing plaintiffs
and Bettis. Lockwood and Salk were the only attorneys present at the closing.
¶8 As he had prior to the closing, Bobby asked Lockwood if he had the patents that had been
issued in Bettis’s name. Lockwood could not find the patents. Someone telephoned patent
attorney Thomas Vigil, who faxed to the closing a memo stating that he was preparing patent
applications on Bettis’s behalf but that he had not filed them. Lockwood, Bettis, Salk, and
Munn all told plaintiffs that Bettis had “pending patent applications” in EL technology, and
that the applications were “better legal protection” than patents.
¶9 Plaintiffs went through with the closing. Bettis signed a licensing agreement; however,
the licensing agreement did not transfer intellectual property rights in EL technology as
plaintiffs had desired. Instead, the licensing agreement gave Ions “an exclusive license to
modify the EL products” and granted Ions “the exclusive right to sell the modified EL
products to end users.” Through the preorganization subscription agreement signed at the
closing, shares of stock in Ions were to be issued to plaintiffs, Bettis, Munn, Mary Nelson,
Rocky, and A&B Partnership.
¶ 10 Plaintiffs alleged that they had an attorney-client relationship with the Campion firm,
Gummerson, and Lockwood. Plaintiffs further alleged that the Campion firm, Gummerson,
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and Lockwood committed legal malpractice by, among other things, (1) failing to assign the
matter to a qualified transactional attorney with expertise in patent law and contract drafting;
(2) assuming multiple representations of clients with conflicting and adverse interests,
without explaining the risks of doing so or obtaining conflict waivers; (3) failing to follow
plaintiffs’ instructions; and (4) failing to protect their clients’ interests at the closing or in the
EL technology. Plaintiffs alleged that they had incurred damages exceeding $400,000.
¶ 11 In their fraud count, which plaintiffs pleaded in the alternative to their legal malpractice
count, plaintiffs began by alleging that there was no attorney-client relationship between
plaintiffs and the Campion firm, Gummerson, or Lockwood. As they had in their legal
malpractice count, however, plaintiffs alleged that, beginning in early July 2002, they
consulted with Gummerson and told him of their business plans with Bettis. Plaintiffs
alleged that it was only Bettis who sought legal advice from the firm. Nevertheless,
Gummerson referred “plaintiffs and Bettis” to Lockwood and told them that this type of
transaction was Lockwood’s expertise. Bobby asked Gummerson whether separate counsel
was necessary to represent “plaintiffs and Bettis” in the transaction, and Gummerson told
plaintiffs that separate counsel was unnecessary.
¶ 12 As they had in their legal malpractice count, plaintiffs alleged that they informed
Lockwood that their intention was for all of the EL technology ever developed by Bettis to
become the sole and exclusive property of Ions. In addition, plaintiffs instructed Lockwood
to draft an agreement that would require Bettis to transfer to Ions all intellectual property
rights in all EL technology he developed, for 10 years from the date of the closing and for
an additional 10 years pursuant to an automatic option to renew the agreement. However,
plaintiffs alleged that Lockwood never informed plaintiffs that he and the Campion firm
“could not work to realize their intentions because they were not acting as plaintiffs’
attorneys.”
¶ 13 Regarding the closing, plaintiffs alleged that they “relied exclusively on the factual
representations” made by Lockwood “to lead them successfully through this complicated
maze of legal documents.” Plaintiffs’ understanding at the closing was that Lockwood and
the Campion firm were protecting plaintiffs’ interests. Plaintiffs formed this belief based
upon Gummerson’s statement that separate counsel for plaintiffs was unnecessary, but
Gummerson’s statement was false.
¶ 14 Plaintiffs alleged that, in addition to misrepresenting that plaintiffs did not need separate
counsel for the transaction, Gummerson, Lockwood, and the Campion firm made the
following misrepresentations or omissions of material fact: (1) they failed to disclose that the
Campion firm represented Bettis only; (2) they misrepresented that Lockwood was an expert
in complex intellectual property transactions; (3) they misrepresented that Bettis owned
patents in EL technology; (4) they misrepresented that the patents were physically present
in the Campion firm’s office; and (5) they misrepresented that pending patent applications
offered better legal protection than patents. Plaintiffs relied on these misrepresentations or
omissions in deciding to go through with the closing. Plaintiffs alleged that they had incurred
damages exceeding $400,000, and they also sought damages for emotional distress and
punitive damages.
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¶ 15 Defendants moved to dismiss plaintiffs’ second amended complaint, pursuant to section
2-615 of the Code of Civil Procedure (Code) (735 ILCS 5/2-615 (West 2006)). On April 25,
2008, the trial court struck several paragraphs of plaintiffs’ legal malpractice count. In
addition, the court struck plaintiffs’ fraud count in its entirety. The court found that legal
malpractice was “the gravamen of both counts” and considered the fraud count to be “a back
door way to try to tack punitive damages onto a legal malpractice case.” The court granted
plaintiffs leave to file an amended complaint as to the legal malpractice count, but not as to
the fraud count. The court indicated that plaintiffs were free to file a motion for leave to file
an amended complaint as to the fraud count within 28 days of entry of the order.
¶ 16 Plaintiffs timely filed a one-count third amended complaint alleging legal malpractice
only. The complaint contained no reference to the previously dismissed fraud count. On the
same day, plaintiffs also timely filed a motion for leave to file a two-count third amended
complaint alleging both legal malpractice and fraud. Plaintiffs attached to their motion a
proposed amended complaint and stated in the motion that the proposed fraud count was set
forth “just as it was set forth in the Second Amended Complaint.” Plaintiffs contended that
the count “state[d] a meritorious claim for fraud, pled in the alternative to their claim for
legal malpractice.” The trial court denied plaintiffs’ motion for leave to file the third
amended complaint containing the fraud count.
¶ 17 The matter proceeded to trial on plaintiff’s third amended complaint containing the legal
malpractice count only. Bobby testified that his friend Chuck August introduced him to
Bettis sometime in June 2002 and that Bobby invested $20,003 in Bettis’s EL technology
venture in a “handshake deal.” Bobby and Bettis made plans to develop EL technology
through a newly formed corporation named Ions.
¶ 18 The testimony concerning plaintiffs’ initial meetings with defendants was conflicting.
Bobby, Robert, and Morna testified to meeting with Gummerson at the Campion firm in
either late June or early July 2002, and all three recalled Gummerson saying that he would
be able to represent plaintiffs and Bettis in the Ions transaction. Bobby, Robert, and Morna
also testified to a second meeting with Gummerson that took place sometime in July 2002,
at which Gummerson assigned the matter to Lockwood, stating that this type of transaction
was Lockwood’s expertise. Gummerson denied meeting with plaintiffs in either June or July
2002. Lockwood admitted to meeting with Bobby, August, and Bettis on July 12, 2002;
however, he testified that Bobby was there only because he was a party to the Ions
transaction, not because he was a client. Lockwood also testified to meeting with plaintiffs
on two occasions in late July 2002.
¶ 19 Bobby testified that, prior to closing the Ions transaction, plaintiffs invested additional
money with Bettis. On July 25, 2002, plaintiffs deposited $11,000 into a bank account
created for Ions, to be used toward payment of business expenses. Plaintiffs also gave Bettis
$3,000 on October 3, 2002, for Bettis’s personal use because “he was short of money and
pretty hard up.” Copies of these checks were admitted into evidence.
¶ 20 Bobby testified that, in early October 2002, approximately one week prior to the closing,
he had a 3½ hour meeting with August in the basement conference room of the Campion
firm. He testified that Lockwood was in and out of the meeting. He further testified that he
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asked Lockwood to get the patents and that, as before, Lockwood told Bobby that the patents
were “upstairs.” August testified that he recalled the early October 2002 meeting and that the
“one key point” at the meeting was the patents. Lockwood denied meeting with Bobby or
August in early October 2002. A fax from Lockwood to plaintiffs, dated October 10, 2002,
was admitted into evidence. The fax cover sheet contained the following message: “Enclosed
you will find a Preorganization Subscription Agreement, a Buy-Sell Agreement, a Licensing
Agreement, and a Put Option, which I presume to prepare on your behalf.”
¶ 21 Regarding the closing, Bobby testified that it lasted approximately 4½ hours on the
afternoon of October 10, 2002. He testified that Lockwood passed out the closing documents
and began explaining them but that Bobby interrupted Lockwood to ask where the patents
were. According to Bobby, Lockwood said that they were “upstairs” and that he would have
someone bring them down. Eventually, Lockwood left the closing room to join in the search.
After 20 to 25 minutes, Lockwood returned and said that he could not find the patents. Bobby
testified that he said he would not close the deal unless he could see the patents with Bettis’s
name on them.
¶ 22 Bobby testified that Lockwood then called Vigil, who faxed a document to the closing
that stated: “I have been retained by Mr. Brian Bettis to prepare and file three patent
applications identified below.” Lockwood then called Vigil on speaker phone in the closing
room. According to Bobby, Vigil said that Bettis had patents pending, not patents.
¶ 23 Bobby testified that either Bettis or Vigil stated that patents pending can be better than
patents. According to Bobby, Lockwood agreed with this statement. Bobby testified that
either Bettis or Vigil explained that patents pending were better because the patent
applications were confidential, while the contents of the patent applications would become
public after the patents were granted. Vigil testified that he explained during the conference
call that the patent applications were drafts that had not yet been filed. Vigil also testified that
he would not have said that patents pending were better than patents.
¶ 24 Bobby testified that he said to Lockwood, “As my attorney, are you telling me that this
is what I need to close?” According to Bobby, Lockwood said, “Yes, close the deal,” and
Bobby relied on his advice. Lockwood denied saying that a patent pending was better than
a patent. He also testified that Bobby never asked him, “As my lawyer, should I close?”
According to Lockwood, he told Bobby at the closing that he did not represent him and that
he represented Bettis only.
¶ 25 At the closing, plaintiffs paid $365,300 in checks, consisting of $150,000 paid to A&B
Partnership, $91,850 paid to Mary Nelson, $41,750 paid to Munn, $35,000 paid to Corinne
and Jordan Beller, $30,000 paid to Bettis, and $16,700 paid to Rocky. Copies of all of these
checks were admitted into evidence. Also at the closing a licensing agreement was signed
by which Bettis granted to Ions “an exclusive license to modify the EL Products” and “the
exclusive right to sell the modified EL Products to end users.” The term of the licensing
agreement was 10 years, which would be followed by an additional 10-year term at Bettis’s
option. The recitals section of the licensing agreement stated that Bettis held “various
patents” in EL technology.
¶ 26 Bobby, Robert, and Morna testified regarding their efforts to develop the Ions business
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following the closing, which were hampered by Bettis becoming “missing in action.” Bobby
testified that Vigil came up with the idea of having Bobby and Robert sign the patent
applications as co-inventors. Vigil testified that plaintiffs finally got in touch with Bettis and
that Bettis signed declaration pages for the patent applications in February 2003. Vigil further
testified that he filed the patent applications with Bobby’s and Robert’s signatures as co-
inventors on February 24, 2003, and that Bettis contacted him soon afterward with concern
over the added signatures. Vigil testified that, ultimately, he filed amended applications on
May 1, 2003, with Bettis’s signature alone, but that no patents were ever issued for EL
technology, because Bettis abandoned the refiled applications. Bobby testified that he paid
Vigil $16,000 for his work on the patent applications. Morna testified that plaintiffs also had
deposited a check for $10,000 into the Ions bank account on October 31, 2002. Copies of
both checks were admitted into evidence. Bobby testified that plaintiffs decided to end their
involvement with Ions after receiving a letter in March 2003 from an attorney in California
whom Bettis had retained.
¶ 27 Following the closing plaintiffs received two letters from Gummerson on behalf of the
Campion firm, both of which were admitted into evidence. The first letter, dated November
8, 2002, addressed several issues that Bobby had raised concerning the closing, then stated:
“Although our firm has represented you in the past, and we hope to have a long, continuing
relationship with you, for the transaction that was just concluded we were hired to represent
Brian Bettis’ interests, and we clearly communicated that to you on several occasions,
including the closing.” The second letter, dated April 24, 2003, stated: “As you are aware,
significant disagreements have arisen between the directors and shareholders of Ions, Inc.
subsequent to the transaction wherein you purchased stock of Ions, Inc. from Brian Bettis.
During that transaction, as you are also aware, we represented only Brian Bettis ***.” The
letter concluded: “Because we consider Chuck August, Brian Bettis and you to be clients, we
must regretfully terminate our representation of the corporation in this matter, due to the
conflicts which have arisen.”
¶ 28 The only expert witness to testify was plaintiffs’ retained expert witness, Dean Small.
Small testified that he was a patent attorney with several years of experience overseeing
complicated business transactions involving intellectual property. Small testified to his
opinion that defendants fell below the standard of care for attorneys in their handling of the
Ions transaction. He testified that the standard of care required defendants to perform due
diligence on Bettis’s purported patents prior to recommending to plaintiffs that they proceed
with the closing. Small testified that, without due diligence, a buyer would not have the
information necessary to determine an appropriate price for the intellectual property he
sought to buy. Small further testified that defendants fell below the standard of care in
identifying and informing plaintiffs of the nature and existence of the patents. Regarding the
licensing agreement that defendants drafted, Small testified that it was defective for various
reasons. Small testified that, to accomplish plaintiffs’ objectives, defendants should have
used an asset purchase agreement, which should have contained representations and
warranties from the seller to the buyer. Finally, Small testified that defendants fell below the
standard of care when they represented multiple parties at the closing without explaining the
risks or obtaining waivers. This was improper because Bettis’s interests as a seller of
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intellectual property were adverse to plaintiffs’ interests as buyers of that property.
¶ 29 The jury returned a verdict for plaintiffs. The verdict form contained spaces for four
categories of damages. The jury awarded plaintiffs $182,625 in damages for out-of-pocket
amounts plaintiffs paid at the closing. The jury awarded no damages for out-of-pocket
amounts plaintiffs paid as their opening investment in the EL technology, for credit card
expenses Bobby and Morna incurred to develop the Ions business after the closing, or for
fees plaintiffs paid to Vigil for legal services following the closing. In addition, the jury
answered “Yes” to a special interrogatory that asked whether plaintiffs had proven the
existence of an attorney-client relationship between plaintiffs and defendants for the Ions
transaction. After the trial court denied plaintiffs’ motion for a new trial, plaintiffs timely
appealed.
¶ 30 ANALYSIS
¶ 31 Plaintiffs argue on appeal (1) that the trial court erred in dismissing their fraud count and
(2) that the jury’s determination of damages was manifestly inadequate and ignored proven
elements of damages. We address each argument in turn.
¶ 32 Dismissal of Fraud Count
¶ 33 Plaintiffs argue that the trial court erred in dismissing the fraud count of their second
amended complaint, because they were entitled, pursuant to section 2-613(b) of the Code
(735 ILCS 5/2-613(b) (West 2006)), to plead legal malpractice and common-law fraud in the
alternative.
¶ 34 We must first address defendants’ waiver1 argument. Defendants contend that plaintiffs
waived any objection to the dismissal of the fraud count in their second amended complaint
by filing their one-count third amended complaint, which did not refer to or adopt the
previously dismissed fraud count. Plaintiffs contend that they preserved their fraud count for
appellate review by filing a motion for leave to file a two-count third amended complaint
containing the identical fraud count that the trial court had previously dismissed. Plaintiffs
ask us to review de novo the dismissal of the fraud count. However, we agree with
defendants that plaintiffs waived any objection to the dismissal of the fraud count.
1
Our supreme court has emphasized that “waiver,” which is the “intentional relinquishment
of a known right,” is not interchangeable with “forfeiture,” which is the “failure to make the timely
assertion of the right.” (Internal quotation marks omitted.) Gallagher v. Lenart, 226 Ill. 2d 208, 229
(2007). However, because our supreme court has used the word “waiver” in its Foxcroft (Foxcroft
Townhome Owners Ass’n v. Hoffman Rosner Corp., 96 Ill. 2d 150 (1983)) line of cases, we will
abide by its choice. As Justice Warren D. Wolfson put it:
“The pleading-over cases use the word ‘waiver.’ But waiver is the ‘intentional
relinquishment of a known right.’ [Citation.] It would be more accurate to use the word
‘forfeiture’ since it is obvious that no actual waiver was intended by [plaintiffs]. We will,
however, use the word ‘waiver’ to be consistent with the language in the decisions.”
Zawadzka v. Catholic Bishop, 337 Ill. App. 3d 66, 67 n.1 (2003).
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¶ 35 “The rules governing the preservation of dismissed claims for purposes of appellate
review are clear and well settled.” Bonhomme v. St. James, 2012 IL 112393, ¶ 17. Our
supreme court has held that, following entry of an order dismissing a complaint, if a party
files an amended complaint that is complete in itself and does not refer to or adopt the prior
pleading, the party has waived any challenge to the order dismissing the prior complaint.
Foxcroft Townhome Owners Ass’n v. Hoffman Rosner Corp., 96 Ill. 2d 150, 154-55 (1983).
The “ ‘earlier pleading ceases to be a part of the record for most purposes, being in effect
abandoned and withdrawn.’ ” Foxcroft, 96 Ill. 2d at 154 (quoting Bowman v. County of Lake,
29 Ill. 2d 268, 272 (1963)). The Foxcroft rule promotes “ ‘the interest in the efficient and
orderly administration of justice’ ” (Bonhomme, 2012 IL 112393, ¶ 28 (quoting Foxcroft, 96
Ill. 2d at 154)) by “ensur[ing] that the court and the defendant possess objective means of
knowing with certainty which claims the plaintiff is pursuing, *** [and by] ensur[ing] that
a cause proceeds to trial only on the claims contained in the final amended complaint.”
Bonhomme, 2012 IL 112393, ¶ 29.
¶ 36 A party has three methods available to it for avoiding waiver and preserving dismissed
claims for appellate review. Vilardo v. Barrington Community School District 220, 406 Ill.
App. 3d 713, 719 (2010). First, a party can stand on the dismissed counts, take a voluntary
dismissal of any remaining counts, and argue the matter at the appellate level. Vilardo, 406
Ill. App. 3d at 719. Second, a party can file an amended pleading that realleges, incorporates
by reference, or refers to the dismissed counts. Vilardo, 406 Ill. App. 3d at 719. A “simple
paragraph or footnote” is sufficient for this purpose. Tabora v. Gottlieb Memorial Hospital,
279 Ill. App. 3d 108, 114 (1996). Third, a party can perfect an appeal from the dismissal
order prior to filing an amended pleading that does not refer to or adopt the dismissed counts.
Vilardo, 406 Ill. App. 3d at 719.
¶ 37 The burden of preserving dismissed claims for appellate review “is not onerous.”
Bonhomme, 2012 IL 112393, ¶ 26 n.1. Therefore, where a party has failed to employ one of
the above methods for avoiding waiver, “ongoing objections” to a dismissal order will not
be sufficient to preserve the issue for appeal. Bonhomme, 2012 IL 112393, ¶¶ 20-22;
Boatmen’s National Bank of Belleville v. Direct Lines, Inc., 167 Ill. 2d 88, 100 (1995). This
is true even where a party raises objections to a dismissal order in a motion to reconsider, in
a motion for a new trial, or in motions in limine. Bonhomme, 2012 IL 112393, ¶¶ 20-23;
Boatmen’s, 167 Ill. 2d at 100.
¶ 38 Plaintiffs’ one-count third amended complaint did not refer to or adopt the previously
dismissed fraud count in any way. Plaintiffs also did not stand on their dismissed count or
perfect an appeal from the dismissal order prior to filing their one-count third amended
complaint. Therefore, under the Foxcroft rule, plaintiffs have waived any challenge to the
order dismissing their fraud count. They have “in effect abandoned and withdrawn” their
fraud claim.
¶ 39 Had plaintiffs done nothing more than file their one-count third amended complaint, this
case would be identical procedurally to Foxcroft, and our analysis would end here. However,
this case contains a procedural twist. On the same day that they filed their one-count third
amended complaint alleging legal malpractice, plaintiffs also filed a motion for leave to file
a two-count third amended complaint alleging legal malpractice and fraud. The fraud count
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in plaintiffs’ proposed two-count third amended complaint was identical to the fraud count
that the trial court had previously dismissed. Plaintiffs contend that, by seeking leave
essentially to refile the previously dismissed fraud count, they avoided the consequences of
the Foxcroft rule and preserved the count for de novo appellate review. We disagree.
¶ 40 Plaintiffs’ actions were insufficient under existing case law to avoid waiver, because our
supreme court’s Foxcroft line of cases indicates that preservation results, not from the
attempt to file an amended complaint that incorporates or references a previously dismissed
count, but from actually filing such a complaint. See Bonhomme, 2012 IL 112393, ¶ 26 (“[I]f
plaintiff wished to challenge on appeal the trial court’s dismissal of her emotional distress
and defamation claims, it was incumbent upon her to somehow reference or incorporate
those counts in her third amended complaint [which was the final amended complaint
actually filed in the trial court].”); Foxcroft, 96 Ill. 2d at 155 (“For the above-related reasons
we adhere to this rule, and conclude that allegations in former complaints, not incorporated
in the final amended complaint, are deemed waived.” (Emphasis added.)). Here, plaintiffs
never actually filed an amended complaint that incorporated or referenced the previously
dismissed fraud count.
¶ 41 The special concurrence nevertheless concludes that plaintiffs preserved the fraud count
for appellate review, reasoning that “the preservation of the cause of action comes from the
attempt to file the amended complaint containing the [dismissed] cause of action, not from
the trial court’s decision to grant or deny leave to file it.” Infra ¶ 81. The special concurrence
suggests that, given what occurred here, we should treat as interchangeable the filing of a
motion for leave to file an amended pleading and the actual filing of an amended pleading.
We disagree with this reasoning. Again, our supreme court has indicated that preservation
results from incorporating or referencing a previously dismissed count in the final amended
pleading actually filed in the trial court. See Bonhomme, 2012 IL 112393, ¶ 23; Foxcroft, 96
Ill. 2d at 154 (stating that the court “perceive[s] no undue burden in requiring a party to
incorporate in its final pleading all allegations which it desires to preserve for trial or review”
(emphasis added)). Neither Bonhomme nor Foxcroft said that preservation can result from
including a dismissed count in a proposed amended complaint that is never filed.
¶ 42 The special concurrence concludes that the trial court refused to allow plaintiffs to
comply with Foxcroft and Bonhomme and that we should not fault plaintiffs for attempting,
albeit unsuccessfully, to preserve the fraud count for appellate review. Infra ¶ 83. The special
concurrence “find[s] it curious that abandonment of the count at issue is determined by
unsuccessfully trying not to abandon it.” (Emphasis in original.) Infra ¶ 83. In Boatmen’s,
our supreme court expressly rejected the special concurrence’s reasoning. In holding that the
plaintiff’s continued objections to the trial court’s dismissal order were insufficient to
preserve the dismissed counts for appellate review, the court in Boatmen’s emphasized that
it “has rejected the notion that dismissed complaints may nevertheless be reviewed when a
plaintiff does not manifest an intent to abandon the original counts.” Boatmen’s, 167 Ill. 2d
at 100. Rather than base determinations of preservation and abandonment on a subjective
analysis of a plaintiff’s intent, our supreme court has instead opted for a clear, objective
procedure that leaves no question in the minds of trial courts or reviewing courts as to
whether a count has been preserved.
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¶ 43 As to the special concurrence’s position that the trial court refused to permit plaintiffs to
comply with Foxcroft, the record shows otherwise. At the conclusion of the hearing during
which the court dismissed the fraud count contained in plaintiffs’ second amended
complaint, the following exchange occurred:
“MR. KATSAROS [plaintiffs’ attorney]: Just for the record, I want to point out that
in Count II [the fraud count] we have pled that the Defendants were not the Plaintiffs’
lawyers. Count II is clearly–
THE COURT: It’s not sufficiently pled. It relies for its basis on the attorney/client
relationship.
You can’t do both.
If you want to pick it, you want to pick a theory you can proceed on, you can do one
or the other. You can’t do both.
MR. KATSAROS: We can plead fraud and abandon legal malpractice?
THE COURT: You may. It depends on how you plead it. You may be faced with an
election of remedies. You may also be making a fatal mistake. I don’t know.
MR. KATSAROS: You could just–I’m just trying to understand your ruling.
THE COURT: Understand this. I’m striking Count II. I’m not going to explain to you
how to replead it.
MR. KATSAROS: Can I have 28 days to tender a replead–according to the
instructions of the Court?
THE COURT: I’m not going to give you blanket leave to replead this complaint. I
want you to make the motion. You can do that whenever you want.”
As the transcript indicates, there was no discussion regarding a desire by plaintiffs to comply
with Foxcroft or to preserve their fraud count for appellate review. Rather, the trial court
indicated that, if plaintiffs were to decide to continue to pursue their fraud count, it wanted
the opportunity to review an amended count before granting plaintiffs leave to file it. The
trial court was expecting an amendment and gave no indication that it would prohibit
compliance with Foxcroft if plaintiffs chose not to amend the fraud count. In plaintiffs’
subsequent motion for leave to file the two-count third amended complaint, plaintiffs did not
indicate that they wished to file the complaint for purposes of preserving the fraud count for
appellate review. Rather, as if they were asking the trial court to reconsider its earlier
dismissal order, plaintiffs argued in the motion that the dismissed count “state[d] a
meritorious claim for fraud” and that they should be able to plead legal malpractice and fraud
in the alternative because “their choice between two contradictory legal theories *** need
not be made at the pleading stage, but rather at trial.” In short, plaintiffs did not seek to
comply with Foxcroft and Bonhomme and the trial court did not prohibit plaintiffs from
doing so.
¶ 44 Plaintiffs contend that “they simply followed an order of the court” when they filed their
one-count third amended complaint and their motion for leave to file a two-count third
amended complaint. This is another argument that our supreme court has rejected.
Bonhomme, 2012 IL 112393, ¶¶ 24-26; Boatmen’s, 167 Ill. 2d at 99-100. Even if plaintiffs
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were following the trial court’s instruction, “plaintiff[s] could not treat that instruction as a
license to ignore Foxcroft.” Bonhomme, 2012 IL 112393, ¶ 26 (“[E]ven had the trial court
instructed plaintiff to appeal the dismissal of her defamation and emotional distress counts
only after filing her third amended complaint, her argument would remain unavailing.”
(Emphasis omitted.)). In Boatmen’s, the trial court explicitly told the plaintiff that its actions
were sufficient to preserve an objection to a dismissal order for appellate review. Boatmen’s,
167 Ill. 2d at 100. The supreme court held that even this explicit instruction did not “preclude
a finding of waiver.” Boatmen’s, 167 Ill. 2d at 100. The court stated that the “[p]laintiffs
should not be excused from following rules intended to preserve issues for review by relying
on a trial judge’s erroneous belief that an issue was properly preserved for review.”
Boatmen’s, 167 Ill. 2d at 100. If a plaintiff cannot rely on a trial court’s explicit but erroneous
assurance that an issue was preserved for review, then plaintiffs in this case should not be
able to rely on the actions of a trial court that made no statement whatsoever regarding
preservation of an issue for review. As discussed above, the record indicates that the trial
court was expecting an actual amendment when it indicated that it would entertain a motion
for leave to file an amended fraud count, not that the trial court was giving instructions or
assurances concerning the preservation of an issue for appeal. Once plaintiffs knew that they
would not be amending their fraud count, it was incumbent on them–not on the trial court–to
ensure that they followed appropriate procedures to preserve the previously dismissed count
for review by, for example, including in the one-count third amended complaint a footnote
or some other reference to the dismissed fraud count.
¶ 45 We also decline to recognize plaintiffs’ actions as a new method for preserving dismissed
counts for appellate review, because, as we alluded to above, it would be inconsistent with
our supreme court’s Foxcroft line of cases and it would lead to confusion in trial courts rather
than promote the efficient and orderly administration of justice. Through its “nearly 50 years
of unbroken jurisprudence” on this issue (Bonhomme, 2012 IL 112393, ¶ 31), our supreme
court has endorsed a simple method for preserving dismissed counts for appellate review:
“[U]nless the amended pleading somehow incorporates or references the pleadings in the
former complaint, ‘a party who files an amended pleading waives any objection to the trial
court’s ruling on the former complaints.’ ” Bonhomme, 2012 IL 112393, ¶ 23 (quoting
Boatmen’s, 167 Ill. 2d at 99). The court has stated that it “perceive[s] no undue burden in
requiring a party to incorporate in its final pleading all allegations which it desires to
preserve for trial or review.” Foxcroft, 96 Ill. 2d at 154. The payoff for adhering to this
simple procedure is promotion of “ ‘the interest in the efficient and orderly administration
of justice.’ ” Bonhomme, 2012 IL 112393, ¶ 28 (quoting Foxcroft, 96 Ill. 2d at 154). As
discussed above, reference to a dismissed claim in a plaintiff’s final amended complaint
(actually filed in the trial court) gives “the court and the defendant *** objective means of
knowing with certainty which claims the plaintiff is pursuing” and “ensure[s] that a cause
proceeds to trial only on the claims contained in the final amended complaint.” Bonhomme,
2012 IL 112393, ¶ 29.
¶ 46 Here, plaintiffs simultaneously filed a one-count third amended complaint alleging legal
malpractice only and a motion for leave to file a two-count third amended complaint alleging
legal malpractice and fraud. Once the trial court denied plaintiffs’ motion, plaintiffs
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proceeded to trial on their one-count final amended complaint. Plaintiffs did not file an
amended complaint that, for example, contained a footnote referencing the previously
dismissed fraud count. Plaintiffs’ actions gave no objective indication of their intentions, to
defendants or to the trial court. At best, plaintiffs’ belief that they had preserved their fraud
count was based upon their subjective interpretation of their actions. Were we to recognize
plaintiffs’ actions as a new method for avoiding waiver, we would generate confusion and
complexity where the supreme court has endorsed clarity and simplicity. Given our supreme
court’s recognition of a clear, simple, and effective procedure for avoiding waiver, we see
no reason to recognize plaintiffs’ actions as a new method for preserving dismissed counts
for appellate review.
¶ 47 Although we can review for an abuse of discretion the trial court’s denial of plaintiffs’
motion for leave to file the two-count third amended complaint containing the previously
dismissed fraud count, we conclude that this does not save plaintiffs from the effects of their
waiver under the Foxcroft rule. Ordinarily, the denial of a motion for leave to file an
amended complaint is reviewed for an abuse of discretion. Century-National Insurance Co.
v. Tracy, 316 Ill. App. 3d 639, 646 (2000). Here, as we have discussed, plaintiffs did not
amend their previously dismissed fraud count in any manner. Rather, plaintiffs sought leave
to refile the very fraud count that the trial court had previously dismissed as legally
insufficient. Because it had already determined that plaintiffs’ fraud count was defective, the
trial court was justified in denying plaintiffs’ motion on the basis that the “new” fraud count
was unamended. If plaintiffs had sought leave to file a fraud count that was not identical to
the previously dismissed count, but was actually amended, we would review the merits of
the amended fraud count. In this case, however, because plaintiffs did not seek leave to file
an amended fraud count, there was no amendment for the trial court, or for this court, to
review.
¶ 48 Plaintiffs further contend that they preserved the fraud count for appellate review both
by stating in their response to defendant’s motion for summary judgment that they intended
to preserve the fraud count for appeal and by objecting to the dismissal in their motion for
a new trial. However, having failed to employ one of the three recognized methods for
avoiding waiver under Foxcroft, plaintiffs could not preserve their fraud count by making
ongoing objections to the dismissal order. See Bonhomme, 2012 IL 112393, ¶¶ 20-23;
Boatmen’s, 167 Ill. 2d at 100.
¶ 49 Our conclusion is supported by the consideration that plaintiffs’ motion for leave to file
an amended complaint containing the fraud count was in substance a motion to reconsider
the dismissal order. “A motion is defined by its substance rather than its heading.” Langone
v. Schad, Diamond & Shedden, P.C., 406 Ill. App. 3d 820, 829 (2010). As mentioned above,
plaintiffs asserted in their motion for leave to file the third amended complaint that the fraud
count in the attached proposed complaint was set forth “just as it was set forth” in the
previously dismissed second amended complaint. Thus, plaintiffs’ fraud count was not
“amended.” Instead, plaintiffs simply offered additional argument for why the court should
not have dismissed the count. Again, our supreme court has held that a motion to reconsider
a dismissal order is not sufficient to avoid waiver under Foxcroft. Bonhomme, 2012 IL
112393, ¶¶ 20-23; Boatmen’s, 167 Ill. 2d at 100.
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¶ 50 We note that, even if we were to conclude that plaintiffs successfully avoided waiver
under the Foxcroft rule, we would still reject plaintiffs’ argument that the trial court erred in
dismissing the fraud count. Plaintiffs contend that they successfully pleaded legal malpractice
and fraud in the alternative, because they pleaded legal malpractice based upon the existence
of an attorney-client relationship and fraud based upon the nonexistence of an attorney-client
relationship. We disagree. Plaintiffs pleaded essentially the same facts in both counts, but
simply affixed different labels to them. This was not an appropriate use of alternative
pleading. Nettleton v. Stogsdill, 387 Ill. App. 3d 743, 760 (2008); Majumdar v. Lurie, 274
Ill. App. 3d 267, 273-74 (1995); see also Neade v. Portes, 193 Ill. 2d 433, 445 (2000)
(“While pleading in the alternative is generally permitted [citation], duplicate claims are not
permitted in the same complaint.”).
¶ 51 Even though plaintiffs began their fraud count by alleging that there was no attorney-
client relationship between plaintiffs and the Campion firm, Gummerson, or Lockwood,
which was a conclusory allegation, they went on to allege facts establishing an attorney-client
relationship. For example, as they had in their legal malpractice count, plaintiffs alleged that,
beginning in early July 2002, they consulted with Gummerson and told him of their business
plans with Bettis. Plaintiffs alleged that Gummerson referred “plaintiffs and Bettis” to
Lockwood. Plaintiffs further alleged that, when Bobby asked Gummerson whether separate
counsel was necessary to represent “plaintiffs and Bettis” in the transaction, Gummerson told
plaintiffs that separate counsel was unnecessary. These were essentially the same facts that
plaintiffs alleged in their legal malpractice count to establish an attorney-client relationship.
Merely by conclusorily stating that defendants were not actually their attorneys, plaintiffs did
not plead an alternative set of facts.
¶ 52 Damages
¶ 53 Plaintiffs’ second argument on appeal is that the jury’s determination of damages was
manifestly inadequate and ignored proven elements of damages. Plaintiffs further contend
that they are entitled to a new trial on damages only. Defendants argue in response that
plaintiffs have forfeited the issue on appeal and, alternatively, that the jury’s damages award
was well within the range supported by the evidence.
¶ 54 Once again, we first address defendants’ forfeiture argument. Defendants contend that
plaintiffs forfeited any objection to the jury’s damages award by failing to raise the issue in
their motion for a new trial. Plaintiffs maintain that they sufficiently raised the issue in their
posttrial motion. Plaintiffs point out that, even though their posttrial motion “did not
specifically request a new trial for damages on grounds of inadequacy,” it did contain three
paragraphs discussing the “conclusive” evidence of damages and state that, “despite the
undisputed evidence of damages ***, the jury awarded [p]laintiffs only $182,650.” Plaintiffs
further point out that the trial court characterized these statements as argument when it said
at the hearing on their motion, “[Y]ou didn’t really mention it in your oral argument, but you
did raise the issue in the post-trial motion that the damages were inadequate.” Plaintiffs also
point out that the trial court concluded that damages were “purely a jury call,” before it
denied plaintiffs’ motion.
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¶ 55 Illinois Supreme Court Rule 366(b)(2)(iii) (eff. Feb. 1, 1994) provides that “[a] party may
not urge as error on review of the ruling on the party’s post-trial motion any point, ground,
or relief not specified in the motion.” Section 2-1202(b) of the Code (735 ILCS 5/2-1202(b)
(West 2010)) further dictates that a posttrial motion “must contain the points relied upon,
particularly specifying the grounds in support thereof, and must state the relief desired.” Our
supreme court has described the “threefold” purpose underlying Rule 366(b)(2)(iii). Brown
v. Decatur Memorial Hospital, 83 Ill. 2d 344, 349 (1980). First, the rule allows the trial court
to review earlier decisions without the pressure of an ongoing trial. Brown, 83 Ill. 2d at 349.
Second, the rule allows the reviewing court to ascertain from the record whether the trial
court was afforded an opportunity to correct an alleged error. Brown, 83 Ill. 2d at 349. Third,
the rule prevents litigants from stating mere general objections and then raising on appeal
arguments that the trial judge was not given an adequate opportunity to consider. Brown, 83
Ill. 2d at 349-50. A litigant can satisfy the rule’s specificity requirement by including in a
posttrial motion “a simple, succinct statement of the factual or legal basis” for the party’s
contention of error. Brown, 83 Ill. 2d at 350. “A party seeking to preserve an issue for review
must raise the issue with enough specificity and clarity to serve the purposes of Rule
366(b)(2)(iii).” Ryan v. Katz, 234 Ill. App. 3d 536, 542 (1992).
¶ 56 We agree with plaintiffs that they did not forfeit the issue of the sufficiency of the jury’s
damages award, because the purposes underlying Rule 366(b)(2)(iii) were adequately served.
As plaintiffs point out, even though the argument section of their posttrial motion did not
include a discussion concerning damages, the trial court characterized their discussion of
damages as argument and addressed the issue at the hearing on the motion. Moreover,
although plaintiffs did not cite authority to support their assertions that damages were
inadequate, their discussion of damages did contain specific contentions regarding the
inadequacy of the damages award. Plaintiffs discussed the “uncontradicted testimony”
regarding their expenditures in connection with the Ions closing and asserted that “the
evidence conclusively proved” damages totaling $422,490.38. Plaintiffs then asserted that,
“despite the undisputed evidence of damages ***, the jury awarded [p]laintiffs only
$182,650.” Although it did so only minimally, plaintiffs’ posttrial motion raised more than
a general objection to the damages award, and it afforded the trial court an opportunity to
determine whether an error had occurred. The trial court addressed the issue and found no
error, concluding that damages were “purely a jury call.” Given these considerations, we
conclude that plaintiffs did not forfeit the issue for appeal.
¶ 57 We nevertheless reject plaintiffs’ argument that the jury’s damages award was manifestly
inadequate and ignored proven elements of damages. As mentioned above, plaintiffs argue
that, because the jury found that defendants were negligent, the jury “had no choice but to
award $422,490.38,” which is the total amount of damages that “proximately flowed” from
defendants’ negligence. Plaintiffs further argue that little deference is owed to the jury’s
determination of damages, because plaintiffs’ damages were “fixed and liquidated” as shown
by the undisputed checks introduced into evidence at trial.
¶ 58 Defendants argue in response that the jury’s damages award was well within the flexible
range supported by the evidence. In particular, defendants argue that the jury could have
concluded that the $34,003 that plaintiffs invested in Bettis and Ions prior to the closing was
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not proximately caused by defendants’ negligence, because plaintiffs did not rely on
defendants’ advice in making these payments. Regarding the $365,300 that plaintiffs paid
at the closing, defendants argue that the jury could have concluded that plaintiffs were not
entitled to recover this entire amount, because there was evidence that plaintiffs did not walk
away from the closing empty-handed. Defendants further argue that subsequent events,
which were not reasonably foreseeable by defendants at the time of the closing, were
ultimately what caused plaintiffs to lose their entire investment. Finally, defendants argue
that the jury could have concluded that defendants owed plaintiffs no duty in connection with
the postclosing expenditures totaling $23,187.38.
¶ 59 While the amount of a damages award is generally within the discretion of the jury, a new
trial may be warranted (1) “if the damages are manifestly inadequate,” (2) “if it is clear that
proved elements of damages have been ignored,” or (3) “if the amount awarded bears no
reasonable relationship to the loss suffered by the plaintiff.” Merrill v. Hill, 335 Ill. App. 3d
1001, 1006 (2002) (citing Hollis v. R. Latoria Construction, Inc., 108 Ill. 2d 401, 407
(1985)). “Less deference is owed to the jury’s award when damages in a fixed and liquidated
amount are involved, in contrast, for example, to traditional personal injury damages.”
Merrill, 335 Ill. App. 3d at 1006. A reviewing court “ ‘will not substitute its judgment for
that of the jury *** unless there is a lack of a reasonable basis for the verdict shown in the
record.’ ” Glassman v. St. Joseph Hospital, 259 Ill. App. 3d 730, 766 (1994) (quoting
Hernandez v. Lukas, 104 Ill. App. 3d 692, 694 (1982)).
¶ 60 If a court determines that a damages award was inadequate, it may order a new trial on
all issues or, if certain criteria are met, a new trial on damages only. Hollis, 108 Ill. 2d at 408.
A new trial on the issue of damages alone is warranted if (1) “the jury’s verdict on the
question of liability is amply supported by the evidence,” (2) “the questions of damages and
liability are so separate and distinct that a trial limited to the question of damages is not
unfair to the defendant,” and (3) “the record suggests neither that the jury reached a
compromise verdict, nor that, in some other identifiable manner, the error which resulted in
the jury’s awarding inadequate damages also affected its verdict on the question of liability.”
(Internal quotation marks omitted.) Hollis, 108 Ill. 2d at 408.
¶ 61 “A successful legal malpractice claim places the plaintiff in the same position that she
would have occupied but for the attorney’s negligence.” Nettleton, 387 Ill. App. 3d at 749.
This comports with the “ ‘general rule of [tort] damages,’ ” which is that “ ‘the wrongdoer
is liable for all injuries resulting directly from the wrongful acts ***, provided the particular
damages are the legal and natural consequences of the wrongful act imputed to the defendant,
and are such as might reasonably have been anticipated.’ ” (Internal quotation marks
omitted.) Nettleton, 387 Ill. App. 3d at 749 (quoting Haudrich v. Howmedica, Inc., 169 Ill.
2d 525, 543 (1996)). In a traditional legal malpractice case in which the plaintiff alleges that
the defendant’s malpractice caused the plaintiff to lose a cause of action, “an award of
damages equal to the amount she did not receive as a result of the defendant’s malpractice
is necessary to place the plaintiff in the same position that she would have occupied had the
defendant not been negligent.” Nettleton, 387 Ill. App. 3d at 752. By contrast, where a legal
malpractice plaintiff alleges that the defendant attorney’s advice fell below the standard of
reasonable legal services, “any damages which proximately flow from the client’s acceptance
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of that advice are recoverable in a negligence action against the attorney.” Metrick v. Chatz,
266 Ill. App. 3d 649, 655 (1994). However, “ ‘Illinois has long recognized the applicability,
in questions of damages, of the doctrine of avoidable consequences, which prevents a party
from recovering damages for consequences which that party could reasonably have
avoided.’ ” Union Planters Bank, N.A. v. Thompson Coburn LLP, 402 Ill. App. 3d 317, 356
(2010) (quoting Maere v. Churchill, 116 Ill. App. 3d 939, 946 (1983)).
¶ 62 Proof of proximate cause requires proof of both “cause in fact” and “legal cause.” Union
Planters, 402 Ill. App. 3d at 343. Courts employ either of two tests to determine “cause in
fact.” Union Planters, 402 Ill. App. 3d at 343. Under the traditional “but for” test, “ ‘a
defendant’s conduct is not a cause of an event if the event would have occurred without it.’ ”
Union Planters, 402 Ill. App. 3d at 343 (quoting Thacker v. UNR Industries, Inc., 151 Ill. 2d
343, 354 (1992)). Under the “substantial factor” test, “ ‘the defendant’s conduct is said to be
a cause of an event if it was a material element and a substantial factor in bringing the event
about.’ ” Union Planters, 402 Ill. App. 3d at 343 (quoting Thacker, 151 Ill. 2d at 354-55).
Legal cause, on the other hand, “ ‘is essentially a question of foreseeability: a negligent act
is a proximate cause of an injury if the injury is of a type which a reasonable man would see
as a likely result of his conduct.’ ” (Internal quotation marks omitted.) Union Planters, 402
Ill. App. 3d at 343 (quoting Lee v. Chicago Transit Authority, 152 Ill. 2d 432, 456 (1992)).
“ ‘[A]n injury will be found not to be within the scope of the defendant’s duty if it appears
“highly extraordinary” that the breach of the duty should have caused the particular injury.’ ”
Union Planters, 402 Ill. App. 3d at 343 (quoting Lee, 152 Ill. 2d at 456).
¶ 63 We agree with defendants that the jury’s damages award fell within the range supported
by the evidence. Regarding the $34,003 in payments that plaintiffs made to Bettis and Ions
prior to the closing, we agree with defendants that the jury reasonably could have concluded
that defendants’ negligence did not proximately cause plaintiffs to incur these expenses.
Bobby testified that he gave Bettis $20,003 in a “handshake deal” prior to seeking legal
advice from defendants. Bobby further testified that, on July 25, 2002, plaintiffs deposited
$11,000 into a bank account created for Ions. Although plaintiffs had sought legal advice
from defendants by this point, plaintiffs presented no evidence suggesting that they relied on
defendants’ advice in making the deposit. Finally, Bobby testified that he gave Bettis $3,000
on October 3, 2002, for his personal use because Bettis “was short of money and pretty hard
up.” Again, plaintiffs presented no evidence that they relied on defendants’ advice in giving
Bettis this money. Therefore, it was not against the manifest weight of the evidence for the
jury not to award plaintiffs any portion of their preclosing investments as damages.
¶ 64 Regarding the $365,300 that plaintiffs paid at closing, we also agree with defendants that
the jury reasonably could have concluded that defendants’ negligence did not proximately
cause damages in this full amount. The evidence supported a range of smaller damages
awards. Although plaintiffs contend that their payment of the entire $365,300 “proximately
flowed” from their reliance on defendants’ advice, proximate causation, as discussed above,
requires proof of “cause in fact” and “legal cause.” Regarding the “cause in fact” aspect of
proximate cause, defendants point out that plaintiffs presented no evidence that they would
not have gone through with the closing had defendants given them adequate legal advice.
Although Bobby testified that he relied on Lockwood’s advice that plaintiffs go through with
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the closing, this testimony was not uncontroverted, as Lockwood denied that Bobby ever
requested his advice regarding whether to close. Moreover, although Small testified to his
opinion that the standard of care required defendants to advise plaintiffs not to go through
with the closing, Small also testified that due diligence under the standard of care would have
provided plaintiffs with the information necessary to determine an appropriate price for the
intellectual property they sought to buy. Thus, while the jury could have determined based
on the evidence presented that plaintiffs would not have gone through with the closing but
for defendants’ negligence, this was only one of several conclusions supported by the
evidence. The jury reasonably could have concluded that, had plaintiffs received competent
advice, they still would have gone through with the transaction but they would have paid less
for what they received.
¶ 65 Similarly, while plaintiffs maintain in their brief that they left the closing as shareholders
in a company with no value, plaintiffs offered no expert testimony to support this assertion.
Plaintiffs offered no expert testimony that the pending patent applications were completely
devoid of value. Additionally, plaintiffs’ testimony that, as late as February 2003, they were
still actively pursuing the Ions business suggests that the company had value. The jury
reasonably could have concluded that defendants’ negligence was not the “cause in fact” of
damages in the amount of $365,300.
¶ 66 The jury also reasonably could have concluded that defendants’ negligence was not the
“legal cause” of damages in the full amount of $365,300. Again, legal cause is a question of
the reasonable foreseeability of the injury when the negligent act occurs. Union Planters, 402
Ill. App. 3d at 343. Defendants elicited testimony suggesting that the Ions business ultimately
failed after Bobby and Robert signed the patent applications as co-inventors and plaintiffs’
relationship with Bettis deteriorated. In addition, Vigil testified that the reason no patents
were ever issued for EL technology was that Bettis abandoned the refiled applications. Thus,
even if the jury had determined that defendants’ negligence was the cause in fact of
plaintiffs’ expenditure of the full $365,300, the jury still could have concluded that plaintiffs’
ultimate loss of that entire investment was not reasonably foreseeable at the time of the
closing and, therefore, that defendants’ negligence was not the proximate cause of damages
totaling $365,300. The jury could have concluded that it was not reasonably foreseeable that
Bettis would become “missing in action,” that Bobby and Robert would resort to signing the
patent applications as co-inventors, or that Bettis would abandon the applications.
¶ 67 We further determine that the jury reasonably could have concluded that defendants’
negligence was not the proximate cause of plaintiffs’ postclosing expenditures relating to the
Ions business. Regarding the $16,000 paid to Vigil for his work on the patent applications,
plaintiffs again contend that this payment “proximately flowed” from defendants’ negligence.
However, given the testimony at trial, the jury need not have decided that plaintiffs would
not have had to incur these attorney fees but for defendants’ negligence. See Nettleton, 387
Ill. App. 3d at 752 (“[W]here a legal malpractice plaintiff alleges that the defendant’s
malpractice caused her to incur attorney fees, an award of damages equal to the amount of
attorney fees she would not have had to spend but for the defendant’s negligence is necessary
to put the plaintiff in the same position she would have occupied had the defendant not been
negligent.”). Vigil testified that he had not yet filed the patent applications at the time of the
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closing. Thus, even if defendants had given plaintiffs adequate legal advice at the closing,
defendants still would have had to pay Vigil to finalize and file the patent applications. As
discussed above, the jury need not have determined that plaintiffs would not have gone
through with the closing but for defendants’ negligence; instead, the jury reasonably could
have concluded that plaintiffs still would have gone through with the closing but perhaps
paid a lower price. Therefore, the jury’s decision not to award $16,000 in damages for
plaintiffs’ payment to Vigil was supported by the evidence.
¶ 68 Regarding the remaining postclosing expenditures, totaling $7,187.382 and related to the
development of the Ions business, it was also reasonable for the jury to conclude that
defendants’ negligence was not the proximate cause of these expenditures. Plaintiffs
presented no evidence that, but for defendants’ negligence, they would not have had to spend
these funds to develop the Ions business. Even had defendants given plaintiffs competent
legal advice, plaintiffs still may have gone through with the closing and incurred these
expenses developing the business.
¶ 69 Based on the foregoing, we conclude that the jury’s damages award was supported by the
evidence, that it was not manifestly inadequate, and that the jury did not ignore proven
elements of damages. Given our determination that damages were adequate, we need not
address plaintiffs’ argument that they are entitled to a new trial on damages only.
¶ 70 CONCLUSION
¶ 71 For the above reasons, we affirm the judgment of the circuit court of McHenry County.
¶ 72 Affirmed.
¶ 73 JUSTICE McLAREN, specially concurring.
¶ 74 I specially concur because, although I agree as to the result regarding the dismissal of the
fraud count, I disagree with the analysis. In order to understand the context of the procedural
posture of the case, I wish to restate the following procedural facts:
“The court granted plaintiffs leave to file an amended complaint as to the legal
malpractice count, but not as to the fraud count. The court indicated that plaintiffs were
free to file a motion for leave to file an amended complaint as to the fraud count within
28 days of entry of the order.
Plaintiffs timely filed a one-count third amended complaint alleging legal malpractice
only. The complaint contained no reference to the previously dismissed fraud count. On
the same day, plaintiffs also timely filed a motion for leave to file a two-count third
amended complaint alleging both legal malpractice and fraud. Plaintiffs attached a
proposed amended complaint to their motion, and stated in the motion that the proposed
2
This amount consisted of $2,634.46 in credit card expenses and other expenditures totaling
$4,552.92 (plaintiffs deposited $10,000 in the Ions bank account on October 31, 2002, but withdrew
the remaining $5,447.08 when eventually they closed the bank account).
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fraud count was set forth ‘just as it was set forth in the Second Amended Complaint.’
Plaintiffs contended that the count ‘state[d] a meritorious claim for fraud, pled in the
alternative to their claim for legal malpractice.’ The trial court denied plaintiffs’ motion
for leave to file the third amended complaint containing the fraud count.” Supra ¶¶ 15-
16.
¶ 75 I believe that the motion for leave to file the two-count third amended complaint, filed
contemporaneously with or subsequent to the single-count third amended complaint that was
filed in conformity with the trial court’s order, was a valid attempt to preserve the fraud
count. Or more precisely, the motion for leave to file is the antithesis of proof of an
abandonment of the claim. The attempt to file the two-count amended complaint, in which
the fraud count was not amended in any way, indicated that plaintiffs were attempting to
keep intact the claim of error regarding the dismissal of the fraud count. Put another way, the
pleading was unchanged because plaintiffs believed that there was no defect to cure and that
the “amended” complaint stated a cause of action. See Childs v. Pinnacle Health Care, LLC,
399 Ill. App. 3d 167, 178 (2010) (wherein similar attempts were not deemed abandonments
under Foxcroft). The majority determines that there is no abuse of discretion in denying leave
to file when there has been no change in the pleading. Although it cites to no authority to
support its conclusion that “[b]ecause it had already determined that plaintiffs’ fraud count
was defective, the trial court was justified in denying plaintiffs’ motion on the basis that the
‘new’ fraud count was unamended” (supra ¶ 47), the majority apparently bases this
conclusion on the “abuse of discretion” analysis as set out in Hayes Mechanical, Inc. v. First
Industrial, L.P., 351 Ill. App. 3d 1, 7 (2004), specifically, whether the new pleading “cures
the defect.”
¶ 76 The majority’s conclusion that there was no abuse of discretion in denying the filing is
based upon the fact that, because the fraud count had not changed, the proposed two-count
third amended complaint could not possibly cure the defect. See supra ¶ 41. The majority is
presuming that the previously dismissed fraud count was defective and, thus, without
changes, it must be defective in the proposed pleading as well. The majority’s a fortiori
analysis presumes that the previously dismissed fraud count failed to state a cause of action
in order to logically conclude that there was no cure if there was no change. The majority,
by only looking at the amended pleading and determining that the fraud count was identical
and, therefore, defective, is making, not an analysis, but a conclusion based upon a
presumption. Again, the majority relates, “Because it had already determined that plaintiffs’
fraud count was defective, the trial court was justified in denying plaintiffs’ motion on the
basis that the ‘new’ fraud count was unamended.” Supra ¶ 47. The majority is concluding
that a determination by a trial court can supplant a determination by a court of review as to
the merits of a pleading. It is either experiencing a new form of denial as to a reviewing
court’s ability to consider the merits of a trial court’s judgment, or it is basing its decision
on the presumption that the trial court’s judgment was correct in dismissing the initial fraud
count. The majority then decides that, since the proposed fraud count was identical, it must
be defective as well. I suggest that the majority’s attempt to rationalize its presumptive
conclusion is a circumlocution. I submit that, were the opposite presumption applied (that
the previously dismissed fraud count was not defective), then the proper conclusion would
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be that, if the fraud count was not changed, it would be an abuse of discretion not to allow
the filing of the pleading.
¶ 77 I believe that the proper analysis should not be based upon either presumption. That
would require this court to first determine, de novo, whether the previously dismissed fraud
count was defective. If it were, a review of the new pleading would be based, not on either
presumption, but on the merits of the fraud count in the proposed third amended complaint.
The majority renounces this analysis, claiming that it would compromise or subvert the
holding in Foxcroft and be contrary to the holding in Boatmen’s.3 However, as will be
explained below, the failure to grant leave to file did not prevent appellate review, as the
grant or denial of leave would have no effect on our authority to review the merits.
¶ 78 The majority claims that a portion of the transcript establishes that the trial court did not
refuse to allow plaintiffs to perfect review of the fraud count. If that were the case, then I do
not see why the trial court would have “indicated that, if plaintiffs were to decide to continue
to pursue their fraud count, it wanted the opportunity to review an amended count before
granting plaintiffs leave to file it.” Supra ¶ 43. Thus, if plaintiffs wanted to stand on the
count, what were they supposed to do? Change it in order to comply with the trial court’s
statement or let it stand and have its filing denied? The trial court told plaintiffs that they had
to seek leave to replead, and now the majority is faulting them for doing so. Contrary to the
majority’s conclusion that plaintiffs did not comply with Bonhomme or Foxcroft, neither case
contained such a factual prerequisite as was placed upon plaintiffs by the trial court in this
case, and the majority has placed these plaintiffs in an impossible position by requiring
compliance with the two cases while refusing to acknowledge the “procedural twist,” as the
majority has called it, which was neither reflected nor discussed in the two cases. Supra ¶ 39.
Considering the totality of the record, it is patently clear that plaintiffs were attempting to
comply with Foxcroft, Bonhomme, and the trial court’s “suggestion” that leave be sought to
file an amended fraud count. If the trial court was aware of the “twist” it placed upon the
procedural posture of the case, it should have granted leave to file the two-count complaint,
in order to perfect review, and then dismissed the fraud count as redundant.
¶ 79 After reviewing the previously dismissed fraud count, I determine (rather than presume,
as the majority does) that it was defective. However, I would determine that it is immaterial
whether the trial court abused its discretion in denying leave to file, because it would not
affect our review of the merits of the first, second, or third amended complaint based upon
the cases referenced in paragraph 81 below.
¶ 80 The majority is concerned that, in some manner or form, plaintiffs are flanking and
flouting the Foxcroft holding. I disagree. Our supreme court recently stated in Bonhomme:
“We repeat, unless the amended pleading somehow incorporates or references the
pleadings in the former complaint, ‘a party who files an amended pleading waives any
objection to the trial court’s ruling on the former complaints.’ [Citation.]” Bonhomme,
2012 IL 112393, ¶ 23.
3
The majority later acknowledges such an analysis, though only as an “even if” alternative
to its “presumption” analysis. See supra ¶¶ 50-51. I agree with the analysis contained therein.
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¶ 81 In this case, unlike in Bonhomme, plaintiffs attempted to file an amended pleading
preserving the dismissed cause of action. As the majority noted, a plaintiff may preserve a
dismissed cause of action by filing an amended pleading that realleges, incorporates by
reference, or refers to the dismissed count in as little as a paragraph or even a footnote. Supra
¶ 36. Here, plaintiffs did not merely refer to the dismissed fraud count in a footnote; they
included the entire count, using the exact same language as they had before. While the trial
court denied plaintiffs leave to file an amended pleading that contained the exact same count
that was contained in the former complaint, the preservation of the cause of action comes
from the attempt to file the amended complaint containing the cause of action, not from the
trial court’s decision to grant or deny leave to file it. This case is more in line with several
cases wherein the plaintiff attempted to file an amended pleading but was denied leave to do
so. In these cases, the appellate court determined that the denial of leave to file did not
preclude appellate review, and there was no suggestion that the failure to obtain leave to file
constituted an abandonment. Silver Fox Limousine v. City of Chicago, 306 Ill. App. 3d 103,
105-06 (1999) (“But the loss of the right of review of an earlier complaint is triggered by the
filing of an amended complaint. Here, plaintiff was denied leave to file a second amended
complaint. Under these circumstances, both complaints are properly before us. The question
in this case is academic. The second amended complaint incorporates all the issues raised in
the first. Only issues not preserved are deemed abandoned. Boatmen’s National Bank, 167
Ill. 2d at 99.” (Emphasis in original.)); Russ v. Pension Consultants Co., 182 Ill. App. 3d
769, 774 (1989) (“[S]ince the court did not grant leave to file the second amended complaint,
the plaintiff may properly seek review of the order dismissing the amended complaint as well
as the order denying him leave to file the second amended complaint; and the adequacy of
both complaints is properly before this court.”) Thus, I would review the merits of the fraud
count de novo, not for an abuse of discretion (as the majority does), and determine that the
fraud count did not state a cause of action. See Silver Fox Limousine, 306 Ill. App. 3d 103;
Russ, 182 Ill. App. 3d 769; see also People ex rel. Madigan v. Tang, 346 Ill. App. 3d 277,
282-83 (2004) (“Regardless, the claims dismissed in the first amended complaint would be
subject to dismissal for the same reasons as the claims in the second amended complaint as
discussed below. Thus, even if the claims were not waived, we would hold that they were
properly dismissed.”). In my view, it is immaterial, for purposes of preserving the fraud
count for appellate review, whether the trial court abused its discretion in denying leave to
file. Although the court should have allowed the filing of the pleading and then dismissed
the fraud count with prejudice to perfect the issue for appellate review, we still have the
authority to review the merits of the proposed third amended complaint, regardless of the
denial. See Silver Fox, 306 Ill. App. 3d 103; Russ, 182 Ill. App. 3d 769. If the trial court
committed error, it was in requiring leave to file an amended complaint and then not granting
leave to preserve the error according to the majority’s narrow interpretation that
abandonment is the only result of a denial of leave to file. If plaintiffs had thereafter filed,
or attempted to file, a new pleading that did not contain the defective fraud count, then the
factual scenarios in Foxcroft, Bonhomme, and this case would be substantially the same. I
submit that abandonment would be patent and based upon plaintiffs’ volitional action or
inaction. But the cases are substantially different, and, unfortunately, the majority fails to
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recognize the difference.
¶ 82 The majority determines that Foxcroft has been violated because the fraud count was not
included in the pleading that went to trial. The reason that it was not included was not that
plaintiffs failed to include it, but that the trial court refused their request to allow them to do
so. The concept of proceeding to trial “only on the claims contained in the final amended
complaint” (internal quotation marks omitted) (supra ¶ 45) makes sense only if the plaintiff
proceeded to trial on what he wanted to include in the pleading. Since plaintiffs were not
allowed to file the proposed complaint that contained the dismissed fraud count, they were
not allowed to proceed to trial on what they tried to preserve for appeal. “Proceeding to trial”
is a collateral fact of no consequence, unless the plaintiff has not done anything to attempt
to preserve an issue by including that which the plaintiff desires to adjudicate at trial. If the
plaintiff attempts to do so, and he submits a pleading that includes a dismissed count, as
instructed by the trial court, the trial court’s refusal to allow preservation should not be
deemed an abandonment under this concept as well.
¶ 83 Foxcroft held that abandonment was determined by what a plaintiff fails to do, such as
failing to include a dismissed count in his most recent timely filing. Now, the majority has
determined that, if one is denied leave to file a timely amended pleading that references or
includes the dismissed count, the dismissed count will be deemed abandoned. I find it
curious that abandonment of the count at issue is determined by unsuccessfully trying not to
abandon it. More curious is that the sine qua non, the count at issue, was not merely
mentioned in the proposed amended pleading, it was included virtually verbatim, in full
compliance with Foxcroft. According to the majority, the only way to determine if a plaintiff
has attempted to preserve an issue would be via an act of the trial court and not inaction on
the part of the plaintiff. Here, only if the trial court had granted leave to file would the
majority determine that plaintiffs had not abandoned the count at issue. Foxcroft and
Bonhomme said that failure to include or reference the count was abandonment. Here, the
count was included in the proposed amended pleading. Foxcroft and Bonhomme did not say
that the trial court’s denial of leave to file a pleading that satisfied the requirements of
Foxcroft and Bonhomme was an abandonment by the plaintiff. The majority has effectively
determined that, if you file an amended pleading without including or referencing a
dismissed count, the trial court may prevent you from properly filing an amended complaint
that follows the supreme court’s strictures for preserving the dismissed cause of action,
contrary to Childs, Silver Fox, and Russ, supra. Taking the majority’s holding to its logical
extreme, what would happen if the plaintiff in a different case filed a new inclusive amended
complaint without leave of court? Would the amended complaint, which included the count
at issue, be subject to a motion to strike? If it were, would the issue in the dismissed count
be preserved? I submit that the majority would determine that there must be an abandonment
because the process in Foxcroft was not followed.
¶ 84 The prior supreme court cases determined abandonment based upon the failure to
somehow apprise the trial court that the plaintiff wished to preserve the dismissed count for
review. The majority here has determined that, if a plaintiff fails to do exactly what the prior
cases said would be evidence of an intent not to abandon, then the trial court’s refusal to
allow the plaintiff to attempt to preserve the issue by inclusion would constitute proof of
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abandonment. The majority determines that Foxcroft and Bonhomme are binding precedent
even though they are factually distinguished on at least one major point: the plaintiffs in
Foxcroft and Bonhomme did not to seek leave to include the counts at issue in amended
complaints. Neither Foxcroft nor Bonhomme considered the effect of a grant or a denial of
leave to file an amended complaint containing the counts at issue. Thus, the majority has
engrafted an additional “procedural twist” or convoluted conundrum to determining
abandonment: a trial court’s refusal to allow preservation of an issue constitutes
abandonment. In Foxcroft and Bonhomme, the supreme court determined abandonment based
upon what the plaintiff did or did not do. The majority has now enlarged the holdings to
include what the trial court does or does not do as well. Whether the trial court does or does
not grant leave is immaterial to ascribing actions to the plaintiff.4 There is nothing in
Foxcroft or Bonhomme that says that this mode or manner is the only way to preserve an
issue, nor do they consider and discuss: (1) a factual situation where the plaintiff was denied
leave of court to file that which those cases said was sufficient; or (2) whether the filing of
the proposed pleading without leave of court would qualify as non-abandonment. I believe
that it is reasonable to conclude that plaintiffs “somehow” incorporated the former pleading
in the proposed new amended pleading that the trial court did not allow to be filed. Hence,
I do not believe that the trial court or defendants were lulled into a belief that plaintiffs were
abandoning the fraud claim. Further, I do not believe that Bonhomme would criticize the
analysis that I have suggested.
¶ 85 The majority suggests that my analysis is neither contained in nor approved of by
Bonhomme and, thus, the only way that plaintiffs could have preserved the issue for appeal
was to include the fraud count or some reference to it in the new pleading filed. I submit that
this begs the question. I submit that the reason that my analysis is not contained in
Bonhomme is that Ms. Bonhomme did not attempt to file an amended complaint with the
counts at issue included. Unless the supreme court is prescient, it would not have anticipated
the scenario here, and, even if it did, its comments regarding a nonexistent scenario would
have been dicta. Furthermore, if Ms. Bonhomme or plaintiffs herein had sought leave to file
an amended pleading with the counts at issue included, and the trial court were to continue
to strike the proposed pleading because it contained the language deemed necessary by the
majority, and continued to do so ad infinitum, the “final pleading” would never be filed. I
suspect that punishment for contempt of court, based upon plaintiffs’ repeated attempts at
filing, might give this court jurisdiction over the contempt, but jurisdiction to hold what?
Plaintiffs should not be punished for attempting to somehow incorporate or reference the
pleadings from the former complaint by including the fraud count in their proposed
complaint. It would appear that the majority has held that, where the trial court told plaintiffs
not to file a fraud count again, and plaintiffs incorporated the fraud count in the proposed
amended pleading, plaintiffs have nowhere to go. According to the majority, plaintiffs were
at the mercy of a trial court that refused to allow any pleading to be filed that had any
4
Applying this same logic, it would appear that a trial court’s refusal to allow an offer of
proof would no longer be error but would constitute abandonment on the part of the profferer. See
People ex rel. Department of Transportation v. Kotara, L.L.C., 379 Ill. App. 3d 276, 284-85 (2008).
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reference to the dismissed fraud count. The absurdity of such a rationale flies in the face of
Bonhomme’s dictate that a plaintiff must “somehow” incorporate or reference the pleadings
from the former complaint. Apparently, the majority believes that “somehow” means this
way, and this way only, even if the trial court has declared that plaintiffs are not to proceed
this way.
¶ 86 The reason that plaintiffs failed to “somehow” preserve the issue was not that they failed
to try to do so, it was that the trial court refused their request to allow them to do so.
Previously, abandonment was gleaned from what someone failed to do, or failed to try to do,
such as failing to include a dismissed count in his most recent timely filing. Now, the
majority has determined that, even if one tries to file a timely amended pleading that includes
or references a dismissed count, and the trial court does not allow him to do so, the dismissed
count will be deemed abandoned. Abandonment is determined by doing what? When one is
prevented from filing a pleading in compliance with the strictures of the supreme court in
Boatmen’s, Foxcroft, and Bonhomme in order not to abandon it.5
5
I believe that the majority has committed the same mistake of logic as arose in Sunbelt
Rentals, Inc. v. Ehlers, 394 Ill. App. 3d 421 (2009). The Sunbelt court decided that the supreme court
had abandoned the legitimate business interest test, because it had not mentioned the test in Mohanty
v. St. John Heart Clinic, 225 Ill. 2d 52 (2006). In Reliable Fire Equipment Co. v. Arredondo, 2011
IL 111871, ¶¶ 28-29, the supreme court determined to the contrary. The false logic that absence of
evidence is evidence of absence is again upon the stage, acting to thwart the best laid schemes of
mice and plaintiffs:
“But little Mouse, you are not alone,
In proving foresight may be vain:
The best laid schemes of mice and men
Go often awry,
And leave us nothing but grief and pain,
For promised joy!”
Wikipedia, To a Mouse, http://en.wikipedia.org/wiki/To_a_Mouse (quoting Robert Burns, To a
Mouse (standard English translation) (1785)) (last visited October 24, 2012).
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