GBP Stockholder Group, LLC v. Partnership Capital Growth Investors III, L.P.

2022 IL App (1st) 211351-UNo. 1-21-1351
Order filed September 19, 2022.
First Division
NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the
limited circumstances allowed under Rule 23(e)(1).
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
GPB STOCKHOLDER GROUP, LLC, ) Appeal from the
and JULIA STAMBERGER, ) Circuit Court of
) Cook County.
Plaintiffs-Appellants, )
)
v. ) No. 2019 CH 5418
)
PARTNERSHIP CAPITAL GROWTH )
INVESTORS III, L.P., CLIF WHITE ROAD )
INVESTMENTS, LLC, JANICA LANE, GREGG )
BAGNI and BRENT KNUDSEN, ) The Honorable
) Michael T. Mullen,
Defendants-Appellees. ) Judge Presiding.
PRESIDING JUSTICE LAVIN delivered the judgment of the court.
Justices Hyman and Coghlan concurred in the judgment.
ORDER
¶1 Held: Plaintiffs failed to demonstrate that the circuit court erroneously dismissed their
complaint where their opening brief addressed only one of many potential bases for dismissal.
¶2 This appeal arises from a dispute between various individuals and entities related to
GoPicnic Brands, Inc. (GoPicnic). Specifically, plaintiffs GPB Stockholder Group, LLC (GPB),
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and Julia Stamberger filed an amended complaint against defendants Partnership Capital Growth
Investors III, L.P.(PCGI), Clif White Road Investments, LLC (White Road), Janica Lane, Gregg
Bagni and Brent Knudsen. Plaintiffs asserted claims of breach of fiduciary duty, aiding and
abetting breach of fiduciary duty and civil conspiracy to breach fiduciary duty. Ultimately, the
circuit court granted defendants’ combined motions to dismiss the amended complaint (735
ILCS 5/2-619.1 (West 2020)).
¶3 While defendants’ motions identified several bases for dismissal, plaintiffs’ opening brief
on appeal addresses just one. Plaintiffs contend that the circuit court erroneously dismissed their
complaint on the basis that GoPicnic’s 2012 amended certificate of incorporation required this
action to be brought in Delaware. Plaintiffs also assert that the court erroneously struck content
from affidavits supporting their response to the motions to dismiss. We affirm the court’s
judgment.
¶4 I. Background
¶5 GoPicnic was a Delaware corporation headquartered in Illinois. At its founding,
Stamberger served as its president and CEO as well as a director. She was also the company’s
largest investor. In 2012, PCGI and White Road purchased a minority stake in GoPicnic through
Series B preferred stock and entered into several related agreements (Series B Agreements).
PCGI and White Road also appointed Lane, Bagni and eventually Knudsen to GoPicnic’s board.
¶6 In 2014, GoPicnic terminated Stamberger for cause, although Stamberger maintains that
no cause existed. GoPicnic filed for bankruptcy the same year. The parties dispute whether
Stamberger’s prior actions or defendants’ actions caused the company’s financial difficulties. In
any event, Stamberger and others formed GPB, which purchased GoPicnic’s remnant assets
through an asset purchase agreement with the bankruptcy trustee in 2018. After the United States
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Bankruptcy Court for the Northern District of Illinois approved the remnant sale, plaintiffs
commenced this action.
¶7 Defendants ultimately filed combined motions to dismiss the amended complaint,
identifying several independent bases for dismissal. The motions asserted, among other things,
that (1) GoPicnic’s 2012 amended certificate of incorporation required this dispute to be resolved
in Delaware: (2) the Series B Agreements required this dispute to be resolved in Delaware; (3)
plaintiffs’ claims were time-barred under Delaware law; and (4) Stamberger executed a
settlement agreement with the bankruptcy trustee releasing all claims against GoPicnic’s
directors.
¶8 Following a hearing on September 22, 2021, the circuit court entered a written order
granting the motions to dismiss the amended complaint with prejudice. Citing the amended
certificate of incorporation, the court found that the complaint needed to have been filed in
Delaware, not Illinois. Plaintiffs now appeal.
¶9 II. Analysis
¶ 10 Section 2-619.1 permits a defendant to file a combined motion to dismiss under sections
2-615 and 2-619. Kucinsky v. Pfister, 2020 IL App (3d) 170719, ¶ 33. While a section 2-615
motion challenges the sufficiency of the complaint, a section 2-619 motion asserts that an
affirmative matter outside the complaint defeats the causes of action raised therein. Masters v.
Murphy, 2020 IL App (1st) 190908, ¶ 9. We review the dismissal of a combined motion to
dismiss de novo. Kucinsky, 2020 IL App (3d) 170719, ¶ 34. Accordingly, we may affirm on any
basis in the record, regardless of the circuit court's reasoning. Grassroots Collaborative v. City of
Chicago, 2020 IL App (1st) 192099, ¶ 21.
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No. 1-21-1351
¶ 11 Here, defendants’ motions raised numerous bases for dismissing the amended complaint.
The circuit court granted the motions on the basis that the amended certificate of incorporation
required plaintiffs’ claims to have been brought in Delaware. Plaintiffs now argue that this
reasoning was erroneous.
¶ 12 Even assuming plaintiffs are correct, however, they are not entitled to reversal if even one
of defendants’ alternative bases for dismissal is valid. Under our de novo review, it is irrelevant
that the circuit court did not address those alternative bases. See Grassroots Collaborative, 2020
IL App (1st) 192099, ¶ 21. Yet, plaintiffs’ opening appellate brief did not address defendants’
other grounds for dismissal. Their opening brief ignored defendants’ assertion that regardless of
what the amended certificate of incorporation requires, the Series B Agreements independently
require this lawsuit to be maintained in Delaware.
¶ 13 The reviewing court is not a repository into which the parties may dump the burden of
argument or research. In re Marriage of Reicher, 2021 IL App (2d) 200454, ¶ 33. In addition, the
reviewing court is not required to act as an advocate. Benton v. Little League Baseball,
Incorporated, 2020 IL App (1st) 190549, ¶ 39. We are entitled to clearly defined issues
supported by pertinent authority and cohesive arguments. Id. Moreover, “[p]oints not argued are
forfeited and shall not be raised in the reply brief, in oral argument, or on petition for rehearing.”
Ill. S. Ct. R. 341(h)(7) (Oct. 1, 2020).
¶ 14 Because plaintiffs’ opening brief did not develop an argument to the contrary, we
presume that the circuit court properly dismissed the complaint because the Series B Agreements
required this action to be brought in Delaware, regardless of what the amended certificate of
incorporation may have required in this instance. To the extent that plaintiffs’ reply brief
addressed the Series B Agreements, we find plaintiffs’ arguments in that regard had already been
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No. 1-21-1351
forfeited. Accordingly, we affirm the circuit court's dismissal of the amended complaint. In light
of our determination, we need not consider plaintiffs’ challenge to the court’s order striking
content from their affidavits.
¶ 15 For the foregoing reasons, we affirm the circuit court’s judgment.
¶ 16 Affirmed.
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