2026 IL App (2d) 250303 No. 2-25-0303 Order filed June 2, 2026
NOTICE: This order was filed under Illinois Supreme Court Rule 23(b) and is not precedential except in the limited circumstances allowed under Rule 23(e)(1).
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
HARRIS N.A., Plaintiff,
v.
CHICAGO TITLE LAND TRUST COMPANY, as successor trustee under trust agreement dated July 6, 2004, and known as Trust No. 133035, EXCLUSIVE LAND DEVELOPMENT, INC., CLASSIC HOME DESIGNS, INC., HONEYBEE LAND INVESTMENT, LLC, TALLGRASS SUBDIVISION HOMEOWNERS ASSOCIATION, MICHAEL J. GRAFT, JR., WILLIAM C. GRAFT, SR., UNKNOWN OWNERS, UNKNOWN TENANTS, and NON-RECORD CLAIMANTS, Defendants.
(William C. Graft, Sr., Cross-Plaintiff, Third-Party Plaintiff-Appellant v. Michael J. Graft, Jr., Cross-Defendant-Appellee).
Appeal from the Circuit Court of Lake County. Honorable Janelle K. Christensen, Judge, Presiding. No. 09-CH-4358
JUSTICE BIRKETT delivered the judgment of the court. Justices McLaren and Mullen concurred in the judgment.
ORDER
¶1 Held: Trial court’s finding that cross-defendant’s breach of fiduciary duty did not proximately cause cross-plaintiff’s damages was not against the manifest weight of the evidence, and cross-plaintiff forfeited any arguments that the trial court abused its discretion in denying him leave to file an amended complaint.
¶2 Cross-plaintiff and third-party plaintiff, William C. Graft, appeals the trial court’s judgment
finding that cross-defendant, Michael J. Graft, did not proximately cause him injury by breaching his fiduciary duties. Additionally, William argues that the trial court erred in denying him leave to
file a third amended complaint. We affirm.
¶3 I. BACKGROUND
¶4 Starting in 2001, brothers William and Michael sought to utilize their combined experience
as a real estate attorney and a home builder, respectively, to develop real estate parcels together. In
2004, William learned of an opportunity to develop 110 acres of farmland in Barrington and
contacted Michael concerning the same. They agreed to purchase and develop the property into a
gated development named Tallgrass. William began acquiring parcels of the land, and the two
incorporated companies to complete the project: Honeybee Land Investments, LLC (Honeybee),
and Exclusive Land Development for Tallgrass, LLC (Exclusive). The brothers, who co-owned
the companies, intended for Honeybee to finance and hold title to the Barrington property, while
Exclusive was intended to finance any required infrastructure.
¶5 On October 3, 2005, Harris Bank provided Michael’s own company, Michael J. Graft
Builder Inc. (Builder), with a $4 million loan (Builder loan) with a maturity date of October 3,
2006.
¶6 On June 15, 2006, Harris Bank provided Exclusive with an $8,030,000 loan (Exclusive
loan) to finance Tallgrass’s infrastructure. As part of the loan agreement, Exclusive was required
to pay down the principal balance with $4,500,000 of proceeds from the first 10 sold lots, meaning
$450,000 from each lot was required to go to Harris. Honeybee received a $7,730,000 loan
(Honeybee loan) from the bank as well. The Exclusive and Honeybee loans were both set to mature
on June 15, 2009.
¶7 Eventually, utilizing the Honeybee loan, the brothers purchased all 110 acres of the
property and obtained a plat of subdivision dividing it into 71 lots. William had earlier created a
-2- trust that now held title to the combined property. The brothers developed a marketing plan for the
individual lots while continuing to build the surrounding infrastructure using funds from the
Exclusive loan. In 2006, they began selling lots with prices ranging between $450,000 and
$630,000. The brothers directly applied all proceeds of the sales to the Exclusive loan’s principal
balance.
¶8 In September 2007, Michael phoned William, telling him that “he was in shock because he
had just gotten a call from his banker at Harris Bank,” who told him that Builder was “more or less
out of credit.” Michael had not previously informed him of any credit issues Builder was
experiencing.
¶9 Later, on January 1, 2008, the brothers each executed individual “Contribution of
Membership Interest Agreement[s]” in which they attested that, “due to the current economic
environment, the net value of Honeybee’s underlying asset is zero.” At this time, Honeybee’s only
asset was a beneficial interest in the Tallgrass property. Due to the housing market crash, the
brothers faced continued difficulties in selling lots. By October 1, 2009, they had only sold 7 of
the 71 lots.
¶ 10 In February 2008, while the brothers continued marketing the Tallgrass lots, Michael
informed William that “his [Builder loan was] assigned to a workout group with Harris Bank.” On
October 31, 2008, Harris informed Michael that the Builder loan was in default. Michael did not
include William in any of the ensuing conversations that he had with Stephen Somner, a Harris
Bank loan officer, concerning the matter. In December 2008, Harris began partially denying
requests by Michael to draw from Builder’s credit.
-3- ¶ 11 On March 4, 2009, Halquist Stone Company, Inc., a Wisconsin corporation on which
William is a board member, offered to purchase the Honeybee, Exclusive, and Builder loans for
$6,450,000.
¶ 12 By June 15, 2009, the Honeybee and Exclusive loans matured with an outstanding debt of
$13,551,532.04. On June 30, 2009, William reached out to Somner to ensure that Builder’s
finances would not impact the Tallgrass project, informing him that the interest reserves for the
Tallgrass loans would compensate Harris for any low sales. He also suggested that Halquist
remained interested in purchasing the brothers’ loans otherwise. On October 1, 2009, Harris filed
a foreclosure action against Michael and William for the balance of the loans under case No. 09-
CH-4358. While pursuing certain counterclaims against Harris, William continued his efforts to
resolve their loans through alternative financing.
¶ 13 On June 10, 2011, William filed his first cross-complaint against Michael, alleging various
breaches of fiduciary duty. On January 19, 2012, Michael—through another of his companies,
MJG Construction LLC, filed a complaint for legal malpractice against William and his law firm
in Cook County under case No. 12-L-693.
¶ 14 On September 14, 2012, Michael entered into a confidential agreement with Harris Bank,
requiring him to “use all reasonable efforts” to convince William to enter a consent foreclosure
over the Tallgrass property. In exchange, Harris would obtain a foreclosure judgment against
Michael and Builder while forgiving $6,900,000 of Michael’s own debt. On January 15, 2014,
William became aware of Michael’s agreement with Harris Bank.
¶ 15 Eventually, on August 24, 2014, the foreclosure court granted summary judgment in favor
of Harris, noting that Michael, who was a guarantor on Exclusive’s promissory note with Harris,
-4- was in default for Builder’s loan agreement, thereby triggering various cross-default provisions in
the brothers’ remaining loan agreements.
¶ 16 On August 19, 2014, William filed a two-count complaint against Michael in Lake County,
raising additional claims of breaches of fiduciary duty.
¶ 17 On February 27, 2015, the foreclosure court entered its judgment of foreclosure and
possession by consent. The case, however, remained active.
¶ 18 On March 23, 2015, William filed his second amended complaint in his remaining Lake
County case, alleging that Michael breached certain fiduciary duties owed to him pertaining to the
Tallgrass project and an unrelated Florida project. On April 23, 2015, Michael filed a motion to
dismiss the second amended complaint, arguing that the parties were required to litigate the dispute
in Cook County or through arbitration. Additionally, he contended that William failed to show the
existence of any fiduciary relationship. On December 9, 2015, the matter was transferred to Cook
County, where it would be consolidated with Michael’s 2012 malpractice case under case No. 15-
CH-18486. On July 12, 2016, the Cook County court granted Michael’s motion to dismiss without
prejudice, giving William leave to file a third amended complaint by August 9, 2016. Two years
later, on August 9, 2018, William filed his motion for leave to file a third amended complaint. On
January 10, 2019, the court denied his motion.
¶ 19 On April 5, 2019, William filed his combined second amended crossclaim and third-party
complaint with the foreclosure court. Count I of the second amended crossclaim was a derivative
action alleging that Michael had breached certain fiduciary duties owed to Exclusive and
Honeybee by concealing Builder’s default, entering into the secret Harris agreement, and violating
a provision of Exclusive’s loan agreement pertaining to the sales of individual lots. Count II alleged
that Michael’s breaches also caused injury to William individually. On May 7, 2019, Michael
-5- moved to dismiss count II of the second amended crossclaim for failure to state a claim. On August
13, 2019, the court granted the motion as to count II.
¶ 20 On November 2, 2021, case No. 15-CH-18486 was transferred back to Lake County and
consolidated with case No. 12-L-693 under what would become case No. 22-CH-64. On February
24, 2022, the Lake County court entered an order consolidating case No. 22-CH-64 with the initial
foreclosure action, effectively consolidating all the parties’ ongoing litigation under case No. 09-
CH-4358. On October 21, 2024, the court held trial on the surviving count of William’s second
amended crossclaim. During opening arguments, William asserted that, had Michael not breached
his fiduciary duties by entering into the secret Harris agreement, the brothers could have refinanced
their loans or obtained a bridge lender in September 2012 to salvage their project.
¶ 21 Michael MaRous, a real estate appraiser and consultant, testified that he visited the
Tallgrass site several times to retroactively appraise the unsold lots and determine their values as
of September 30, 2012, assuming they were conveyed in fee simple. According to MaRous, the
overall value of the remaining 62 lots for that time was $28,950,000. To reach this amount,
MaRous multiplied the value of each of the unsold lots according to their originally assigned value,
then deducted $500,000 to cover remaining infrastructure costs. He also evaluated “existing sales
in the subject development” alongside other “individual lot sales in the area.” Of the 11 other sales,
however, 10 were located in Cook County, while the Tallgrass development is located in Lake
County. Still, MaRous opined that, if the lots were sold as part of a bulk sale, they could have
reasonably been expected to fetch $20,000,000.
¶ 22 On cross-examination, MaRous acknowledged that he had not performed any title searches
for any lots prior to valuing them. He recognized that, as a result of the earlier foreclosure
proceedings, Harris had an “encumbrance on all of [the lots]” which would have “generally”
-6- affected their marketability. Nonetheless, for purposes of his appraisal, he assumed the lots would
be sold in “fee simple free[,] of encumbrances.”
¶ 23 Steven Holowicki, an equity and debt consultant for commercial real estate, testified that
he sources loans to clients seeking commercial real estate financing. Assuming that a bridge lender
would help salvage the Tallgrass loans before the remaining lots were sold for the values described
in MaRous’ appraisal, Holowicki projected that the brothers would have realized $5,822,083 in
profits from the project. To reach this number, Holowicki assumed that the brothers would sell
approximately 16 lots each year. On cross-examination, however, Holowicki acknowledged that,
despite MaRous’ estimate, the brothers sold only nine lots by September 30, 2012. Further, he
recognized that the brothers never sold more than one home in any given month.
¶ 24 Because, in his experience, lenders were eager to accept discounted payoffs to eliminate
“bad loans” from their books, Holowicki also prepared a second projection that assumed a 40%
loan discount. Under this second projection, the brothers would have profited $13,872,435 from
the Tallgrass project. Neither of Holowicki’s projections factored in the foreclosure proceedings
ensnaring the development as of September 30, 2012.
¶ 25 George Gelis testified that he was the principal of Surge Financial Group, an entity that
restructures real estate debt. Following the 2008 market collapse, banks sought Gelis’ assistance
to consolidate or refinance underwater loans. At the time, banks commonly bundled and sold such
loans at a “deep discount” to hard money bridge lenders, who were eager to purchase any loans
involving “risk-averse projects.” These lower risk projects often involved properties that had
already been developed and only needed to be marketed and sold.
¶ 26 Relying on the MaRous report and Holowicki’s projections, Gelis opined that a hard money
lender would “definitely” have refinanced the Tallgrass loan as of September 30, 2012, if given
-7- the opportunity. He noted that the project was “risk[-]averse,” the market was recovering, and the
brothers had already sold some lots, proving the project’s viability. Further, the brothers had
already spent two years building up the surrounding infrastructure and had begun marketing the
project, which had been made “a victim to *** the collapse of the real estate market in [2008].”
Gelis was unaware whether anyone had contacted any hard money lenders to restructure the
Tallgrass project’s outstanding debts.
¶ 27 On June 18, 2025, the court issued its judgment, finding that Michael breached fiduciary
duties owed to Honeybee and Exclusive by failing to notify William of Builder’s default, entering
into the secret agreement with Harris Bank, and selling an individual lot for less than the brothers’
agreed-upon price point. However, the court found that MaRous’ appraisal of the property as it
existed in 2012—which formed the cornerstone of Holowicki’s and Gelis’ opinions—was not
supported by the evidence. For instance, his appraisal assumed that the individual lots’ values, as
assigned by the brothers in 2006, when the market was at its height, would remain constant through
2012. Further, when pressed about the presence of any comparable properties supporting his
valuation, MaRous failed to identify any sales in Lake County, where Tallgrass was located, and
he failed to appreciate the negative effects the parties’ ongoing litigation had on the property, which
was reflected by the brothers’ low sales.
¶ 28 Given the fact that Holowicki’s and Gelis’ testimonies relied upon the figures provided by
MaRous, the court also reasoned that their opinions as to lost profits lacked weight. Moreover,
while Holowicki and Gelis had credibly testified about banks’ general inclinations to jettison
defaulted loans at discounted rates, neither expert had offered any specific evidence that Harris
Bank was willing to negotiate its lien or entertain a short sale. In fact, the record revealed that
Harris Bank conversely had declined the Halquist offer on two separate occasions without
-8- negotiation, and its secret agreement with Michael to broker a consent foreclosure evinced an
unwillingness to compromise. For these reasons, the court found that Michael’s breaches were not
the proximate cause of Honeybee’s or Exclusive’s injuries, which the entities had failed to establish
with a fair degree of certainty.
¶ 29 William timely appeals.
¶ 30 II. ANALYSIS
¶ 31 On appeal, William argues that the trial court’s findings concerning the proximate cause
and reasonable certainty of the Tallgrass entities’ injuries are against the manifest weight of the
evidence, and that the Cook County court erred in denying William leave to file his third amended
complaint.
¶ 32 A. Proximate Cause
¶ 33 First, because the record contains no evidence of a potential deal with any hard money
lender, the trial court’s determination that Michael did not proximately cause his injuries was not
against the manifest weight of the evidence. To sustain a claim for breach of fiduciary duty, a party
must prove: (1) a fiduciary duty; (2) a breach of that duty; and (3) damages proximately caused
thereby. D’Attomo v. Baumbeck, 2015 IL App (2d) 140865, ¶ 64.
“The term ‘proximate cause’ describes two distinct requirements: cause in fact and legal
cause, which is a policy decision that limits how far a defendant's legal responsibility
should be extended for conduct that, in fact, caused the harm. [Citation.] Cause in fact can
only be established when there is a reasonable certainty that a defendant's acts caused the
injury or damage. [Citation.] Using the substantial factor test, a defendant's conduct is a
factual cause of the plaintiff's injury if the conduct was a material element and a substantial
factor in bringing about the injury. [Citation.] A defendant's acts are a legal cause only if
-9- they are so closely tied to the plaintiff's injury that [the defendant] should be held legally
responsible for it. [Citation.] Legal cause 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
[person] would see as a likely result of [their] conduct.” In re Commonwealth Edison
Company Illinois Consumer Fraud Litigation, 2023 IL App (1st) 220105, ¶ 23.
“Questions regarding breach of a duty and proximate cause of the injury are issues of fact, reserved
for the trier of fact to decide.” Cooke v. Maxum Sports Bar & Grill, Ltd. 2018 IL App (2d) 170249,
¶ 53 (citing Krywin v. Chicago Transit Authority, 238 Ill. 2d 215, 226 (2010)). We will not reverse
the trial court’s factual findings unless they are against the manifest weight of the evidence. Id.
(citing Eychaner v. Gross, 202 Ill. 2d 228, 251 (2002)). “A decision is against the manifest weight
of the evidence only when the opposite conclusion is apparent or when the findings appear to be
unreasonable, arbitrary, or not based on the evidence.” Id.
¶ 34 Here, William argues that the trial court misunderstood his theory of proximate cause when
it found that Michael’s agreement with Harris Bank did not cause the Tallgrass entities’ injuries—
namely, their inability to secure alternative financing and ultimately realize profits. According to
William, he never argued that the secret agreement precluded any attempts to refinance the loans.
Rather, his theory was that Michael’s betrayal undermined the brothers’ ability to obtain a bridge
loan to satisfy the loans in full, which, in light of the “unrebutted evidence” of banks’ eagerness to
dispose of hemorrhaging loans following the market collapse, would have otherwise been
available. Given this misunderstanding, William contends that the court improperly relied on the
Halquist rejections and the secret agreement as evidence of Harris’ unwillingness to refinance.
Instead, William concludes that the evidence showing banks’ general practice to sell troublesome
loans proved proximate cause. We disagree.
- 10 - ¶ 35 Even accepting William’s framing of his earlier argument, he overlooks the fact that
Holowicki’s and Gelis’ “unrebutted” testimonies concerning the availability of a prospective
bridge lender were based on the figures provided by MaRous, which, as the trial court noted, were
fraught with deficiencies. First, in determining the lots’ values, MaRous simply adopted the
brothers’ 2006 valuations—set at the market’s height—rather than deriving their September 2012
valuations by evaluating comparable properties. In fact, MaRous did not analyze any comparable
sales at all in compiling his estimates. Instead, he mainly referenced Cook County properties that
were seemingly unencumbered by foreclosure or other legal proceedings for comparison to the
Tallgrass development.
¶ 36 Portions of his analysis also relied on the brothers’ purported capabilities to sell lots at an
ahistorical rate, despite the fact that the brothers had only sold seven lots by the time their loans
matured, and they had never sold more than one lot in any given month. Thus, while Holowicki’s
and Gelis’ testimonies might suggest that a bridge lender would have been willing to finance
higher-selling Cook County developments held in fee simple, William presented no competent
evidence that lenders would have financed this project, which was located in a different county,
had weak historical sales, and was entangled in what can accurately be described as scorched-earth
litigation.
¶ 37 William tries to avoid the various pitfalls presented by MaRous’ testimony by reminding
us that the remaining experts relied not on his testimony, but on his report. While the report was
not admitted into evidence, William maintains that the applicable rules of evidence permitted
Holowicki and Gelis to rely upon it in forming their opinions. William conflates admissibility with
credibility. Here, the trial court did not find Gelis’ or Holowicki’s testimony to be inadmissible.
Rather, the court found that their credibility was undermined by their reliance on the MaRous
- 11 - report which, as shown by his testimony, was unreliable. For these reasons, the trial court’s findings
as to proximate cause were not against the manifest weight of the evidence. Furthermore, because
William has failed to establish proximate cause, an essential element of his claim, we need not
consider the ancillary issue of whether he proved his damages with reasonable certainty. See
D’Attomo, 2015 IL App (2d) 140865, ¶ 64.
¶ 38 B. Third Amended Complaint
¶ 39 We turn next to William’s arguments concerning the Cook County court’s denial of leave
to file his third amended complaint. As a preliminary question, however, we must briefly address
our jurisdiction over this final matter, which Michael calls into question. Appellate courts have an
independent duty to verify our jurisdiction and will dismiss an appeal where it is lacking. In re
Marriage of Knoerr, 377 Ill. App. 3d 1042, 1043 (2007).
¶ 40 Michael argues that we lack jurisdiction over the January 10, 2019, order denying William
leave because, on March 23, 2022, the parties agreed to voluntarily dismiss the matter as part of
case No. 22-CH-64’s consolidation with case No. 09-CH-4358. Thus, according to Michael,
because William did not appeal within 30 days of the March 23, 2022, voluntary dismissal, his
notice of appeal was untimely as to the matter.
¶ 41 We disagree. Where separate actions are consolidated into a single suit, “each case loses
its individual identity, and, absent a Rule 304(a) finding, the final judgments of dismissal are not
appealable until all issues have been resolved in the consolidated case.” 540 North Lake Shore
Drive Condominium Association v. MCZ Development Corporation, 2025 IL App (1st) 230733,
¶ 34. Because all the issues in this contested matter were not resolved until June 18, 2025,
William’s July 17, 2025, timely notice of appeal preserved our review of the pertinent January
2019 order.
- 12 - ¶ 42 Nonetheless, William has forfeited any argument that the Cook County court abused its
discretion when denying him leave to file the third amended complaint. Section 2-616(a) of the
Code of Civil Procedure (735 ILCS 5/2-616(a) (West 2018)) permits parties to liberally amend
their pleadings, but that right is not unlimited. Walker v. Shults Auto Sales, Inc., 2025 IL App (2d)
240459, ¶ 39. In Loyola Academy v. S&S Roof Maintenance, Inc., 146 Ill. 2d 263, 273 (1992), our
supreme court articulated four factors courts must consider when ruling on motions to amend: (1)
whether the amendment cures a defect in the pleading; (2) any resulting undue prejudice or
surprise; (3) the moving party’s timeliness; and (4) whether the moving party could have
previously amended the pleading. We will not reverse a trial court’s decision denying a motion to
amend absent an abuse of discretion. Insurance Benefit Group, Inc. v. Guarantee Trust Life
Insurance Co., 2017 IL App (1st) 162808, ¶ 50. “An abuse of discretion occurs only when no
reasonable person would take the view that the trial court adopted.” Walker, 2025 IL App (2d)
240459, ¶ 41 (citing Lacey v. Perrin, 2015 IL App (2d) 141114, ¶ 76).
¶ 43 Pursuant to Illinois Supreme Court Rule 341(h)(7) (eff. Oct. 1, 2020), any argument
appearing in an appellant’s brief must “contain the contentions of the appellant and the reasons
therefor, with citation of the authorities and the pages of the record relied on.”
“An issue that is merely listed or included in a vague allegation of error is not ‘argued’ and
will not satisfy the requirements of the rule. [Citations.] Moreover, an argument that is
developed beyond mere list or vague allegation may be insufficient if it does not include
citations to authority.” Vancura v. Katris, 238 Ill. 2d 352, 369-70 (2010).
¶ 44 Here, William argues that an application of the Loyola factors “clear[ly]” reveals that the
Cook County court abused its discretion in denying him leave to file a third amended complaint in
case No. 22-CH-64. Concerning the first factor, William contends that his proposed amendment
- 13 - “cured a deficiency in the [s]econd [a]mended [c]omplaint by removing MJG and Builder as
defendants relating to the Florida property.” As to the second factor, William asserts that his
proposed amendment would “not surprise any party,” as it included arguments initially iterated in
a prior version of the complaint. Turning to the third factor, William argues that his amendment
was timely “because [it] was sought while the case was still in the pleading stage.” William claims
that the final Loyola factor “is met as there is significant evidence that William attempted, although
unsuccessfully, to amend the complaint to ‘sustain the claim for which it was intended to be
brought.’ ” (quoting 735 ILCS 5/2-616(a)).
¶ 45 Because William has failed to adequately develop his arguments, they are forfeited. While
he argues that the proposed third amended complaint would have cured a defect in the earlier
complaint relating to “the Florida property,” his brief contains only a passing reference to that
property without identifying any flaw in the second amended complaint. William’s contentions as
to the timeliness factor are similarly underdeveloped, as he offers no explanation for the 700-day
delay in filing his third amended complaint. William’s argument as to the fourth factor is largely
unintelligible, and, in any event, he does not discuss the “significant evidence” he references in
support of the amendment. For these reasons, William has failed to develop his arguments that the
Cook County court abused its discretion by denying him leave to file the third amended complaint,
and his contentions are forfeited.
¶ 46 III. CONCLUSION
¶ 47 For the reasons stated, we affirm the judgment of the circuit court of Lake County.
¶ 48 Affirmed.
- 14 -