2026 IL App (1st) 232510-U No. 1-23-2510 Order filed January 16, 2026 Fifth 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 ______________________________________________________________________________ GERAGOS & GERAGOS, a professional corporation, ) Appeal from the and MARK J. GERAGOS, an individual, ) Circuit Court of ) Cook County. Plaintiffs-Appellants, ) ) No. 22 L 002626 v. ) ) Honorable ABIMBOLA OSUNDAIRO, an individual, OLABINJO ) Patrick J. Sherlock, OSUNDAIRO, an individual, GLORIA SCHMIDT ) Judge, Presiding. RODRIGUEZ, an individual, JORGE RODRIGUEZ, an ) individual, GREGORY KULIS, an individual, JAMES D. ) TUNICK, an individual, THE GLORIA LAW GROUP, a ) law corporation, GREGORY E. KULIS & ASSOCIATES, ) a law corporation, and LAW OFFICE OF JAMES D. ) TUNICK, a law corporation, ) ) Defendants-Appellees. )
JUSTICE ODEN JOHNSON delivered the judgment of the court. Justices Mikva and Tailor concurred in the judgment.
ORDER No. 1-23-2510
¶ 1 Held: We affirm the dismissal of plaintiffs’ first amended complaint where it failed to set forth the special injury/damages element of malicious prosecution. We also find that the circuit court did not abuse its discretion in denying plaintiffs’ motion to vacate/leave to file an amended complaint because it was not an abuse of discretion where plaintiffs’ failed to meet the standards for reconsideration, attempted to raise a new theory of the case, and plaintiffs failed to attach a proposed amended complaint for consideration.
¶ 2 Plaintiffs Geragos & Geragos, a professional corporation (Geragos Firm), and Mark Geragos,
an individual (Geragos) (collectively plaintiffs) appeal from an order of the circuit court of Cook
County dismissing their first amended complaint with prejudice. On appeal, plaintiffs contend that:
(1) its first amended complaint sufficiently alleged malice and special damages to support a claim
of malicious prosecution, and (2) the circuit court abused its discretion in denying plaintiffs’
motion to vacate the dismissal because the newly discovered evidence, which the court found was
obtained with due diligence, was additional, noncumulative support for plaintiffs’ allegations of
malice and special damages and would probably have changed the court’s ruling. For the following
reasons, we affirm.
¶3 I. BACKGROUND
¶4 A. Nature of the Case
¶ 5 The factual background of this case is taken from the circuit court’s June 20, 2023, written
order entered on defendants’ motions to dismiss.
¶ 6 On January 29, 2019, actor Jussie Smollett (Smollett) reported that unknown assailants
wearing ski masks attacked him outside of his Chicago apartment at approximately 2 a.m. On
February 13, 2019, the Chicago police arrested two brothers, Olabinjo and Abimbola Osundairo
(collectively the brothers), based on “overwhelming evidence” that the brothers attacked Smollett.
While the brothers initially denied involvement in the Smollett attack, after being in police custody
-2- No. 1-23-2510
for a while, they admitted their involvement but claimed that it was part of a hoax orchestrated by
Smollett. Based on those statements, the brothers were released without being charged. Smollett
was subsequently charged on February 20, 2019, with 16 counts of disorderly conduct in the circuit
court of Cook County for allegedly filing a false police report. Smollett hired plaintiffs to represent
him in the criminal case. On March 26, 2019, the circuit court dismissed all charges against
Smollett on motion by the Cook County State’s Attorney.
¶ 7 On April 23, 2019, the brothers, represented by defendants Gloria Schmidt Rodriguez and
Jorge Rodriguez of The Gloria Law Group (Rodriguez Firm), Gregory Kulis of Gregory E. Kulis
& Associates (Kulis Firm), and James D. Tunick of the Law Offices of James D. Tunick (Tunick
Firm), filed a federal lawsuit against plaintiffs. The federal suit alleged that Geragos made false
and defamatory statements about the brothers on an episode of his podcast, “Reasonable Doubt.”
Specific statements credited to Geragos in the complaint did not appear in the transcript of the
podcast. The same day as the filing of the federal defamation suit, the brothers’ attorneys held a
press conference where the allegations were repeated. The press conference had national media
coverage.
¶ 8 Plaintiffs filed a motion in the federal defamation case to dismiss and for Rule 11 sanctions.
On March 17, 2020, the federal court dismissed all claims against plaintiffs finding that Geragos
made no statements during the podcast that could reasonably be interpreted as being implicated by
the allegations in the complaint. The defamation and false light claims against Geragos were
dismissed as was the unrecognized claim against the Geragos Firm for respondeat superior.
Claims pending against another party, Tina Glandian, were not dismissed and that case remained
pending.
-3- No. 1-23-2510
¶ 9 Plaintiffs alleged that after being dismissed from the case, Schmidt Rodriguis continued to
assert that Geragos was not dismissed entirely from the case through social media posts and press
statements. Plaintiffs contended that the lawsuit and continued efforts to mislead the public were
to capitalize on the notoriety of the incident, monetize opportunities for the brothers through media
attention, and to draw media attention to the defendant lawyers and their firms.
¶ 10 Plaintiffs also alleged that they were damaged; specifically, plaintiffs alleged that the
negative publicity surrounding the federal suit caused them reputational harm. Additionally,
plaintiffs alleged special injuries that through the lawsuit, defendants silenced Geragos from
speaking about the Smollett case on his podcast. Further, plaintiffs alleged that due to the lawsuit,
they did not represent Smollett in the subsequent criminal proceedings and civil proceedings
pursuant to Illinois Supreme Court Rule 707 (eff. Feb. 1, 2018) 1 which resulted in a loss of
revenue.
¶ 11 B. Procedural History
¶ 12 Plaintiffs filed their initial single-count complaint for malicious prosecution on March 17,
2022. On October 17, 2022, Tunick and the Tunick Firm filed a section 2-615 (735 ILCS 5/2-615
(West 2022)) motion to dismiss the case with prejudice. The remaining defendants filed similar
motions on October 18 and 19, 2022. The circuit court partially granted the motions and dismissed
plaintiffs’ complaint without prejudice and granted them leave to replead.
¶ 13 On March 9, 2023, plaintiffs filed their first amended complaint in which they extensively
supplemented their allegations of malice and special damages. Defendants subsequently filed
1 Supreme Court Rule 707 grants permission for an out-of-state attorney to provide legal services in proceedings in Illinois.
-4- No. 1-23-2510
section 2-615 motions to dismiss with prejudice on March 30, 31 and April 11, 2023. Plaintiffs
filed responses to the defendants’ motions to dismiss and also filed a motion to strike the factual
allegations and exhibits of the brothers’ motion; a motion to strike portions of Tunick’s motion
and to dismiss Kulis’ untimely motion in its entirety.
¶ 14 On May 18, 2023, the circuit court partially denied plaintiffs’ motion to strike the Kulis
motion and continued the hearings on plaintiffs’ remaining motions to strike until the hearing on
the motions to dismiss that was set for June 14, 2023. Following oral arguments, the circuit court
issued its written order on June 20, 2023.
¶ 15 The circuit court noted that the threshold in sustaining a malicious prosecution case is high
and that such cases are disfavored. The court focused its analysis on the malice and special
injury/damage requirements of a malicious prosecution case.
¶ 16 With respect to special injury/damages, the court noted that the first amended complaint
alleged that (1) plaintiffs suffered reputational damages as a result of the lawsuit and related press
conferences addressing the lawsuit; (2) the lawsuit had a chilling effect on Geragos’ right of free
speech and kept him from freely engaging in the business of disseminating information regarding
high-profile lawsuits; and (3) defendants’ lawsuit interfered with plaintiffs’ ability to represent
Smollett in subsequent civil and criminal proceedings in Chicago area courts and Geragos’
colleague, Glandian, stepped aside as lead counsel and did not charge a fee for certain aspects of
her representation of Smollett. The court found that none of the claimed injuries constituted the
type of special injury sufficient to warrant proceeding to trial on the claim for malicious
prosecution because, citing Doyle v. Shlensky, 120 Ill. App. 3d 807, 817 (1983), special injury is
injury “beyond the anxiety, loss of time, attorney fees, and necessity for defending one’s
-5- No. 1-23-2510
reputation, which are an unfortunate incident of many (if not most) lawsuits.” The court noted that
both reputational damages and chilling effect damages were not special damages under Illinois
law. Regarding the loss of Smollett reputation, the circuit court found that deciding not to represent
Smollett as lead counsel in his subsequent cases was a business decision that did not constitute
special injury. The court pointed out that Geragos did not allege that Smollett would have hired
him but for the filing of the federal defamation lawsuit, nor could he because his firm, through
Glandian, continued to represent Smollett throughout his criminal prosecution. Thus, the court
concluded that plaintiffs failed to satisfy the special injury/damage requirement.
¶ 17 Turning to the malice element, the circuit court found that plaintiffs alleged no facts to
support malice against Tunick or Kulis or their law firms, and that plaintiffs’ first amended
complaint asked the court to draw unreasonable inferences to support their claim against Tunick
and Kulis, which it declined to do. The circuit court therefore granted the motions to dismiss.
¶ 18 Plaintiffs filed a motion to vacate judgment on July 20, 2023, and sought leave to file a
second amended complaint. In support of their motion, plaintiffs alleged that on June 16, 2023,
just days before the circuit court granted the motions to dismiss, they received a “voluminous”
production of documents that would support additional allegations of malice and special damages
in the malicious prosecution case. Noting that the court had originally intended to issue its ruling
on June 28, 2023, plaintiffs stated that they intended to file a motion to continue on that date in
order to prepare and file a second amended complaint. However, because the court issued its ruling
earlier, plaintiffs were unable to present the newly discovered documents to the court prior to
issuance of that order. Specifically, plaintiffs asserted that the documents, produced by defendants’
public relations firm, provided additional support for allegations that the federal defamation
-6- No. 1-23-2510
lawsuit filed against plaintiffs was intended as a vehicle for generating media attention, which
would support plaintiffs’ claim of special damages.
¶ 19 On November 30, 2023, the circuit court issued a written order in response to plaintiffs’
motion to vacate. After reviewing the additional documents, the circuit court concluded that they
were insufficient to support a malicious prosecution claim because they did not conclusively
demonstrate actual malice by Tunick or Kulis. Further, even assuming arguendo that malice could
be inferred as to those defendants, the court would still find that the newly offered evidence did
not support any allegation of special injury/damages such that the result would be different. The
court further noted that plaintiffs failed to attach a proposed second amended complaint to their
motion, which presented it with a further basis to deny the motion. The court, citing Tomm’s
Redemption, Inc. v. Hamer, 2014 IL App (1st) 131005, ¶ 14, noted that a plaintiff has no statutory
right to amend a complaint after final judgment and a court does not commit error by denying such
motion for leave to amend. The circuit court denied plaintiff’s motion to vacate and plaintiffs filed
their notice of appeal on December 29, 2023.
¶ 20 ANALYSIS
¶ 21 On appeal, plaintiffs contend that: (1) their first amended complaint sufficiently alleged
malice and special damages to support a claim of malicious prosecution, and (2) the circuit court
abused its discretion in denying plaintiffs’ motion to vacate the dismissal because the newly
discovered evidence, which the court found was obtained with due diligence, was additional,
noncumulative support for plaintiffs’ allegations of malice and special damages and would
probably have changed the court’s ruling.
¶ 22 A. Section 2-615 Dismissal
-7- No. 1-23-2510
¶ 23 1. Standard of Review
¶ 24 The circuit court’s decision to grant a section 2-615 (735 ILCS 5/2-615 (West 2022))
motion to dismiss is subject to de novo review. Vogt v. Round Robin Enterprises, Inc., 2020 IL
App (4th) 190294, ¶ 14. The question is whether the allegations in the complaint, when viewed in
the light most favorable to the plaintiff, are sufficient to state a cause of action upon which relief
can be granted. Id. The factually sufficient allegations contained in the plaintiff’s complaint must
be taken as true. Thomas v. Hileman, 333 Ill. App. 3d 132, 136 (2002). A section 2-615 motion to
dismiss challenges the legal sufficiency of the complaint by claiming defects exist on the face of
the complaint. Vogt, 2020 IL App (4th) 190294, ¶ 14. In considering a section 2-615 motion to
dismiss, the court may not consider affidavits, products of discovery, documentary evidence not
incorporated into the pleadings as exhibits, or other evidentiary materials. Id. This court will affirm
the dismissal based only on the pleadings where we find that no set of facts can be proven which
would entitle the plaintiff to the relief sought. Id. Additionally, we may affirm the judgment on
any basis supported by the record, regardless of the circuit court’s reasoning. Rosenbaum v.
Samler, 2025 IL App (1st) 240039, ¶ 30.
¶ 25 We further note that plaintiffs’ first amended complaint was dismissed with prejudice.
Section 2-612(a) of the Code of Civil Procedure (Code) authorizes the court to permit amendments
where the pleadings fail to sufficiently define the issues before the court. 735 ILCS 5/2-612(a)
(West 2022). That section further provides that no pleading is bad in substance which contains
such information as reasonably informs the opposite party of the nature of the claim or defense
which he or she is called upon to meet. 735 ILCS 5/2-612(b) (West 2022). In determining whether
it is appropriate to allow the plaintiff an opportunity to amend the complaint, the court must
-8- No. 1-23-2510
consider whether (1) the proposed amendment would cure the defective pleading, (2) the other
parties would be prejudiced or surprised by the proposed amended complaint, (3) the plaintiff had
previous opportunities to amend the complaint, and (4) the proposed amendment is timely. Loyola
Academy v. S & S Roof Maintenance, Inc., 146 Ill. 2d 263, 273 (1992). We review the circuit
court’s decision to dismiss a complaint with prejudice for an abuse of discretion. Crull v. Sriratana,
388 Ill. App. 3d 1036, 1046 (2009).
¶ 26 We now turn to the merits of plaintiffs’ appeal.
¶ 27 2. Malicious Prosecution
¶ 28 First, plaintiffs contend that the first amended complaint sufficiently established the
elements of malice and special injury/damages to sustain a malicious prosecution cause of action.
¶ 29 An action for malicious prosecution is disfavored in Illinois (Thomas v. Hileman, 333 Ill.
App. 3d 132, 136 (2002)) on the ground that courts should be open to litigants for resolution of
their rights without fear of prosecution for calling upon the courts to determine such rights
(Rosenbaum, 2025 IL App (1st) 240039, ¶ 66)). A malicious prosecution action is brought to
recover damages suffered by one against whom a suit has been filed maliciously and without
probable cause. Grundhoefer v. Sorin, 2018 IL App (1st) 171068, ¶ 13. To establish a claim for
malicious prosecution, a party must allege facts showing (1) the commencement or continuation
of an original civil or criminal proceeding, (2) termination of the proceeding in her favor, (3)
absence of probable cause for the proceeding, (4) presence of malice, and (5) damages resulting to
him or her. Id. All elements must be present. Rosenbaum, 2025 IL App (1st) 240039, ¶ 66.
¶ 30 In the present case, the circuit court found that plaintiffs failed to plead sufficient facts to
establish malice or a special injury/damage as a result of the federal defamation lawsuit. We agree
-9- No. 1-23-2510
with the circuit court that plaintiffs adequately alleged that defendants commenced the federal
defamation proceedings, that the proceedings were terminated in their favor, and that there was an
absence of probable cause for such proceedings. However, we find that, after reviewing the first
amended complaint, plaintiffs failed to adequately plead the facts necessary to establish the
presence special injury/damage. Accordingly, we need not address whether plaintiffs’ first
amended complaint sufficiently pleads malice because all elements of malicious prosecution must
be established in order for the suit to go forward.
¶ 31 Illinois jurisprudence has long required a “special injury” element to state a cause of action
for malicious prosecution. Thomas, 333 Ill. App. 3d at 136. “Special injury” has been defined as
“injury not necessarily resulting in any and all suits prosecuted to recover for like causes of action.”
[Citations.] Independence Plus, 2012 IL App (1st) 111877, ¶ 18. In nearly all cases where Illinois
courts have found a special injury to support a malicious prosecution suit, the nature of the
underlying suit caused plaintiff some quantifiable damage-causing characteristic. Thomas, 333 Ill.
App. 3d at 138. In considering whether litigation is rendered ordinary or injuries are special, the
court’s focus must properly rest on the peculiar effect of the suit together with the remedy sought
and not upon the subjective effect that the suit may have had on the plaintiff. Id. Special damages
are those beyond the usual expenses, time or annoyance in defendant a lawsuit. Cult Awareness
Network v. Church of Scientology International, 177 Ill. 2d 267, 272 (1997). Special damages are
not implied but must be proved. Schwartz v. Schwartz, 366 Ill. 247, 252 (1937).
¶ 32 Illinois is a fact-pleading jurisdiction rather than a notice-pleading jurisdiction. Johnson v.
Matrix Financial Services Corp., 354 Ill. App. 3d 684, 696 (2004). Under Illinois’ standard, the
pleader is required to set out ultimate facts that support his or her cause of action; notice pleading,
- 10 - No. 1-23-2510
conclusions of law and conclusions of fact are insufficient. Id. While we construe the allegations
in the light most favorable to the plaintiff, we cannot rely on conclusions of law or factual
conclusions which are unsupported by allegations of specific facts to establish the elements of a
cause of action for malicious prosecution. Vincent v. Williams, 279 Ill. App. 3d 1, 5 (1996).
¶ 33 In the present case, plaintiffs made the following allegations of special injury/damages
from defendants’ federal defamation case in the first amended complaint:
(1) substantial expenses in defending themselves in this “frivolous out-of-state court
action” including meeting the deductible for their insurance policy and the matter was
reported on the “loss run,” which resulted in inflated malpractice premiums for the
firm;
(2) reputational damages as a direct result of defendants’ federal defamation case and
accompanying press conference and false statements;
(3) intentionally silencing Geragos from speaking out on his podcast about Smollett case
which had the effect of chilling Geragos’ free speech on the Smollett matter despite it
being a very high-profile legal case and none of his prior statements were defamatory;
this chilling effect had the practical effect of keeping Geragos from fully and freely
engaging in his business of disseminating information regarding high-profile lawsuits;
(4) interference and undermining of plaintiffs’ representation of Smollett because
plaintiffs forwent continued representation of Smollett at great financial cost to
plaintiffs;
(5) plaintiffs would have charged Smollett $1 million for representation as lead counsel,
and Smollett would have agreed; however, Geragos declined to serve as lead counsel
- 11 - No. 1-23-2510
of record as a direct result of the federal defamation lawsuit and did not serve as counsel
of record in the second criminal prosecution;
(6) Glandian, a member of the Geragos Firm, also took a lesser role in Smollett’s case and
because of that limited role, the Geragos Firm did not charge Smollett for Glandian’s
continued representation of him during the second criminal proceedings; and
(7) plaintiffs did not enter an appearance in the civil proceedings against Smollett due to
the federal defamation case and thereby forwent those additional fees for representation
of Smollett.
¶ 34 We have examined these allegations of special damages and find them insufficient to
support plaintiffs’ claim of malicious prosecution.
¶ 35 Plaintiffs’ first two allegations of special damages, related to substantial litigation expenses
for the out-of-state case, inflated malpractice premiums, and damage to their professional
reputation, are generally not considered to be special damages in Illinois. Plaintiffs did not allege
any facts regarding what extraordinary costs were related to defending the federal defamation suit
nor did plaintiffs allege how their malpractice insurance premiums were inflated, which amounts
to conclusory statements unsupported by factual allegations. These types of damages have been
found not to be special damages but rather are incidental to defamation suits and would not
represent damages suffered by these plaintiffs that would not also be a result of any litigation
prosecuted to recover for similar causes of action. See Balthazar v. Dowling, 65 Ill. App. 3d 824,
(1978).
¶ 36 When the underlying lawsuit in a malicious prosecution claim is a civil proceeding,
common law requires that the plaintiff plead and prove some special injury “beyond the anxiety,
- 12 - No. 1-23-2510
loss of time, attorney fees, and necessity for defending one’s reputation, which are an unfortunate
incident of many (if not most) lawsuits.” [Citation.] Grundhoefer, 2018 IL App (1st) 171068, ¶ 17.
As noted by the circuit court, this requirement is based on the premise that “the courts are open to
every citizen to claim what he deems to be his right without fear of being prosecuted for heavy
damages.” [Citations.] Id. However, the societal interest in permitting the honest assertion of rights
in our court rooms must be balanced against the societal interest in preventing harassment through
lawsuits. Independence Plus, Inc. v. Walter, 2012 IL App (1st) 111877, ¶ 19. The allegations
regarding litigation expenses and damage to professional reputation contained in plaintiffs’ first
amended complaint are insufficient to create a factual basis for the special injury/damages required
as an element of malicious prosecution.
¶ 37 Next, plaintiffs’ third, fifth and seventh allegations of special injury/damages were
conclusory allegations without factual support. Plaintiffs’ third allegation stated that the federal
defamation suit had the chilling effect of silencing him, limited his free speech and kept from fully
and freely engaging in his podcast business. We disagree.
¶ 38 Although plaintiffs alleged loss of free speech and that their first amendment rights were
chilled, they raised no factual allegation that defendants sought any type of injunction that barred
Geragos from speaking on his podcast such that plaintiffs’ right to free speech was denied. See
Thomas, 333 Ill. App. 3d at 139 (citing Levin v. King, 271 Ill. App. 3d 728, 733-34 (1995)).
Plaintiffs’ allegations related to the loss of speculative future attorney fees from Smollett are
conclusory at best; as the circuit court noted, plaintiffs made no factual allegations that Smollett
was going to engage the firm for future cases but was put off by the federal defamation case or
that Smollett had previously agreed to such future fees. Rather, plaintiffs state, in a very conclusory
- 13 - No. 1-23-2510
fashion that it would have charged fees and Smollett would have paid them. A plaintiff in a
malicious prosecution case may not rely on conclusions of law or fact unsupported by specific
factual allegations. Rosenbaum, 2025 IL App (1st) 240039, ¶ 67 (citing Poo-Bah Enterprises, Inc.
v. County of Cook, 232 Ill. 2d 463, 473 (2009)). We conclude that those allegations are insufficient
to establish special injury/damages sufficient to survive a section 2-615 motion.
¶ 39 Plaintiffs’ fourth and sixth allegations of special damages are related to the perceived
economic damages resulting from no longer representing Smollett as lead counsel in the various
Illinois proceedings. As the circuit court noted, there were no factual allegations that plaintiffs
were prevented from representing Smollett; rather, it was a voluntary and personal business
decision by plaintiffs to step aside as lead counsel and to not charge Smollett attorney fees for their
actual representation of him. To satisfy the special injury requirement, one must allege more than
a voluntary decision not to act as a result of the allegedly wrongfully brought civil suit. See
Thomas, 333 Ill. App. 3d at 139 (citing Levin, 271 Ill. App. 3d at 737)).
¶ 40 Here, there was no allegation that Smollett decided that plaintiffs would not continue to
represent him because of the defamation lawsuit that was filed by the Osundairo brothers against
them in federal court. Rather, plaintiffs specifically allege that Geragos decided not to represent
Smollett, and further that he decided to temper what he said on his podcast because of the
defamation lawsuit. Those admissions are dispositive because they show that it was Geragos’
subjective determination not to proceed with Smollett’s representation, which the court in Levin
held could not support special damages. The circumstances that were present in Levin to support
special damages were simply not present here. Geragos could have continued to represent Smollett
and say what he wanted on his podcast regarding his client’s innocence. No one moved to
- 14 - No. 1-23-2510
disqualify him. Geragos’ remedy here was to seek sanctions in federal court, not bring a malicious
prosecution suit. See Levin, 271 Ill. App. 3d at 737. Therefore, the special-injury element has not
been satisfied.
¶ 41 We conclude that plaintiffs’ first amended complaint was properly dismissed under section
2-615 where it failed to fully satisfy all elements to raise a cause of action for malicious
prosecution.
¶ 42 B. Motion to Vacate
¶ 43 Next, plaintiffs contend that the circuit court abused its discretion in denying their motion
to vacate the section 2-615 (735 ILCS 5/2-615 (West 2022)) dismissal because the newly
discovered evidence, which the court found was obtained with diligence, was additional, non-
cumulative support for plaintiffs’ allegations of malice and special damages and would probably
have changed the judgment. Plaintiffs maintain that the denial of their motion to vacate prevented
them from obtaining any justice, let alone substantial justice, and it barred a trial on the merits.
¶ 44 Plaintiffs’ post-judgment motion to vacate was filed pursuant to section 2-1203 of the Code
(735 ILCS 5/2-1203 (West 2022)). Section 2-1203 provides, “[i]n all cases tried without a jury,
any party may, within 30 days after the entry of the judgment or within any further time the court
may allow within the 30 days or any extensions thereof, file a motion for a rehearing, or a retrial,
or modification of the judgment or to vacate the judgment or for other relief.” 735 ILCS 5/2-1203
(West 2022).
¶ 45 A section 2-1203 motion applies to “final orders” as well as to judgments. Cable America,
Inc. v. Pace Electronics, Inc., 396 Ill. App. 3d 15, 24 (2009). The decision to grant or deny a
section 2-1203 motion is within the sound discretion of the circuit court. Id. The intended purpose
- 15 - No. 1-23-2510
of a motion to reconsider is to bring to the court’s attention newly discovered evidence, changes
in the law, or errors in the court’s previous application of existing law. Id.
¶ 46 However, when reviewing a motion brought pursuant to section 2-1203, the reviewing
court must examine not merely whether the court’s order represented an abuse of discretion but
rather, whether regarding that order, substantial justice is being done between the parties. Bank of
America, N.A. v. Luca, 2013 IL App (3d) 120601, ¶ 14.
¶ 47 The record reveals that in denying plaintiffs’ section 2-1203 motion, the circuit court
reviewed the “newly discovered evidence” that plaintiffs assert would support the elements of
malice and special injury/damages and found that the evidence fell short of providing a factual or
legal basis for malice and special injury. While it is true that the proffered evidence was new and
provided additional information, it does not necessarily follow that it was sufficient to defeat a
section 2-615 motion to dismiss. The issue is compounded by the fact that plaintiffs did not include
a proposed second amended complaint with their motion when that motion essentially sought leave
to file a second amended complaint based on what they considered to be newly discovered
evidence that would provide additional support for their claim of malicious prosecution. Plaintiffs,
however, contend the circuit court erred in finding that they were required to provide a proposed
second amended complaint in support of their post-judgment motion to amend based on newly
discovered evidence. We disagree.
¶ 48 Whether to allow an amendment of a complaint is a matter within the discretion of a trial
court, and we review a court’s denial of leave to amend under the abuse of discretion standard.
Hachem v. Chicago Title Insurance Co., 2015 IL App (1st) 143188, ¶ 16. In determining whether
a trial court abused its discretion by denying leave to amend, Illinois courts must determine “(1)
- 16 - No. 1-23-2510
whether the proposed amendment would cure the defective pleading; (2) whether other parties
would sustain prejudice or surprise by virtue of the proposed amendment; (3) whether the proposed
amendment is timely; and (4) whether previous opportunities to amend the pleading could be
identified.” Loyola Academy v. S & S Roof Maintenance, Inc., 146 Ill. 2d 263, 273 (1992).
¶ 49 Here, as noted above, plaintiffs did not file a proposed amendment with their post-judgment
motion as required for consideration of the Loyola factors. Rather, plaintiffs attached the
information they received in discovery to support its motion.
¶ 50 Contrary to plaintiffs’ assertion, filing the proposed amendment is necessary for the
determination of whether such amendment should be allowed based on the application of the
Loyola factors. There is no presumption in the law that a proposed amendment will be a proper
one, and it is not error to refuse leave to file an amendment which is not presented to the circuit
court and where there are no means of determining whether the proposed amendment will be a
proper and sufficient one. People ex rel. Scott v. Cardet Intern., Inc., 24 Ill. App. 3d 740, 748
(1974). As plaintiffs did not file a proposed amendment with their motion, there was nothing for
the circuit court to review in deciding whether the proposed amendment would cure the defects of
the first amended complaint. The same result applies here. Due to plaintiffs’ failure to include a
proposed second amended complaint, we are also unable to apply the Loyola factors to determine
whether the proposed amendment would have cured the defects of the first amended complaint.
As such, we must conclude that the circuit court did not abuse its discretion in denying plaintiffs’
section 2-1203 motion and leave to file a second amended complaint.
¶ 51 CONCLUSION
¶ 52 For the foregoing reasons, the judgment of the circuit court of Cook County is affirmed.
- 17 - No. 1-23-2510
¶ 53 Affirmed.
- 18 -