2022 IL App (2d) 210408-U Nos. 2-21-0408 & 3-22-0037 cons. Order filed May 24, 2023
NOTICE: This order was filed under Supreme Court Rule 23(b) and is not precedent except in the limited circumstances allowed under Rule 23(e)(l). ______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
______________________________________________________________________________
In re MARRIAGE of DIANE LANDGREN, ) Appeal from the Circuit Court ) of Du Page County. Petitioner-Appellant, ) ) and ) No. 15-D-623 ) ROY LANDGREN, ) Honorable ) Linda E. Davenport, Respondent-Appellee. ) Judge, Presiding. ______________________________________________________________________________
JUSTICE JORGENSEN delivered the judgment of the court. Presiding Justice McLaren and Justice Kennedy concurred in the judgment.
ORDER
¶1 Held: Trial court erred in dismissing motions seeking an accounting and distribution of marital assets where marital settlement agreement created express trust, naming respondent as trustee, and petitioner adequately pleaded breach of fiduciary duties; while petitioner’s claim of damages was speculative, it was not apparent that she could not prove a set of facts that would entitled her to prevail, rendering dismissal with prejudice inappropriate; petitioner’s argument that she should have been allowed to amend her complaint while this appeal was pending is moot.
¶2 I. INTRODUCTION
¶3 Before this court are two consolidated appeals. In the first (No. 2-21-0408), petitioner,
Diane Landgren, appeals an order of the circuit court of Du Page County dismissing two motions 2022 IL App (2d) 210408-U
she filed relating to the dissolution of her marriage to respondent, Roy Landgren. Respondent
moved to dismiss in accordance with section 2-619.1 of the Civil Practice Law (735 Ill. 2d 5/2-
619.1 (West 2020)). Regarding the first appeal, we reverse. In the second (No. 3-22-0037),
petitioner appeals the trial court’s denial of her motion to amend her complaint to add two
additional counts. We dismiss the second appeal as moot. We remand this cause for further
proceedings.
¶4 II. BACKGROUND
¶5 Petitioner filed a petition for dissolution of marriage on March 25, 2015. The parties
entered into a marital settlement agreement (MSA), and the trial court entered a final decree on
March 7, 2016. The decree incorporated the MSA by reference, but it was not made part of the
record due to the parties’ desire for confidentiality. The MSA contained, inter alia, the following
provisions:
“A. ROY shall hold DIANE’s beneficial interest in the Business Entity [Greenhouse
Group, LLC] as a constructive trustee for and on behalf of DIANE until such time as the
Business Entity, or portion thereof, is sold, transferred or terminated, or in any manner
effected such that ROY no longer has an ownership interest in the Business Entity and
DIANE has received any and all distributions, return of capital or other liquidation funds
in compliance with this Agreement.
***
With respect to any option given to a member under the Operating Agreement, ROY shall
follow DIANE’s direction regarding her 50% interest therein (i.e. purchase of another
member’s interest, sale of her interest, participation in a capital call or other options
presented), to the extent allowed by the Operating Agreement.
-2- 2022 IL App (2d) 210408-U
B. ROY shall provide DIANE, upon his receipt, and [sic] any and all documents received
in connection with Greenhouse Group, LLC or any successor business/entity, including but
not limited to statements, correspondence, evidence of transactions, distributions, income,
sale, transfer, liabilities and withdrawals.
In the event there are request [sic] or demands made upon ROY by the Greenhouse Group,
LLC or successor business/entity for a vote, decision, capital call, contribution or payment,
ROY shall immediately notify DIANE and provide her with all information and
documentation provided to ROY.”
It later reiterated:
“[C.](iii) ROY shall hold DIANE’s beneficial interest in the Business Entity as a
constructive trustee for and on behalf of DIANE until such time as the Business Entity, or
portion thereof, is sold, transferred or terminated, or in any manner effected such that ROY
no longer has an ownership interest in the Business Entity and DIANE has received any
and all distributions, return of capital or other liquidation funds in compliance with this
Agreement.
It further stated:
“ROY and DIANE acknowledge and warrant that they have disclosed to one
another all property in which they have an interest, individually or jointly, present or
contingent, and any property held by another that could be considered non-marital, marital
or divisible under the terms of the PNA and the [Illinois Marriage and Dissolution of
Marriage Act] for their benefit in connection with the negotiation of this Agreement. If,
after entry of the Judgment for Dissolution of Marriage, it is discovered that additional
-3- 2022 IL App (2d) 210408-U
property that would otherwise be considered marital under the PNA that is not set forth in
this Agreement was owned by ROY or DIANE, whether individually, jointly with another,
in trust for his or her benefit, or held by another for his or her benefit at the time of the
Triggering Date, or that the values stated for any asset is below that actual value of the
asset at the time of entry of the Triggering Date, one-half (1/2) of the value of such
additional property at the time of the Triggering Date or such difference between the stated
and actual values at the time of the Triggering Date shall become immediately payable (or
transferable) from the nondisclosing party to the other party. However, no such division
shall take place unless the undisclosed asset exceeded $10,000 in value at the time of entry
of Judgment for Dissolution of Marriage. This paragraph shall not apply to the value of
the parties’ respective personal property and furniture/furnishings.”
Finally, the MSA stated:
“Diane represents and warrants * * * that she has been fully advised of her rights in this
case pending between the parties; and she is conversant with all of Roy’s wealth, property,
estate, liabilities, and income, and the value thereof. Whereas the parties acknowledge that
any lack of discovery was at their specific instruction and that they were fully informed of
the fact they had the right to such information and that legal means are available to secure
any and all information that may be necessary to determine facts relating to any matter of
concern in the dissolution of the parties’ marriage. The parties have knowingly waived
their right to formal discovery including but not limited to interrogatories, depositions,
forensic accounting and the like.”
¶6 Petitioner alleges that respondent acquired an interest in Greenhouse Group, LLC
(Greenhouse) during the marriage. Greenhouse invested in three medical cannabis dispensaries in
-4- 2022 IL App (2d) 210408-U
Illinois. Respondent disclosed that they held a 9.7% interest in Greenhouse. During the marriage,
respondent invested $300,200 into Greenhouse, and subsequently both parties invested an
additional $213,000 each. Greenhouse went through several name changes and mergers, resulting
in it having several subsidiaries in various states. Greenhouse eventually became a subsidiary of
GR Companies, Inc. (GR). Petitioner asked that her interest in GR be transferred directly to her;
however, this could not be accomplished until “after a rollup set to occur by February 2019.”
Petitioner received 60.91914 shares of GR on July 26, 2019. She was given no documentation
regarding how that amount was determined.
¶7 In July 2020, Curaleaf Holdings, Inc., acquired Greenhouse for $830 million. It issued
new stock to the parties. Petitioner alleges that original Greenhouse owners received additional
cash distributions and bonuses. Respondent was listed as an original owner. The parties’
accountants requested documents from respondent to conduct a financial analysis. These
documents indicated that respondent’s interest in Greenhouse had been 19.4% rather than the 9.7%
disclosed in the MSA. Additional documents indicated that respondent held a 19.4% interest in
three limited liability companies that operated Greenhouse’s individual dispensaries.
¶8 Petitioner filed two motions on October 13, 2020. The first was titled “Motion For An
Accounting And To Compel Disclosure Pursuant To The Judgment For Dissolution Of Marriage”
(motion for an accounting). In it, petitioner alleged that respondent was the trustee of a
constructive trust, of which petitioner was the beneficiary. The res was the parties’ shares of
Greenhouse. She also alleged that respondent failed to fully disclose his interest in Greenhouse.
Also, respondent failed to provide petitioner with adequate documentation and information
regarding Greenhouse’s business, as required by the MSA. This motion sought an accounting of
all cannabis-related investments and the turnover of documentation regarding Greenhouse and
-5- 2022 IL App (2d) 210408-U
related entities. The second motion was dubbed a “Motion to Distribute, to Allocate Undisclosed
or Hidden Assets and for Other Relief” (motion to distribute). The latter requested that respondent
disgorge half of all Greenhouse-related investments, half of all undisclosed or misrepresented
marital assets, and half of all assets that were not divided equally pursuant to the MSA.
¶9 Respondent moved to dismiss both motions pursuant to section 2-619.1 of the Civil
Practice Law (735 Ill. 2d 5/2-619.1 (West 2020)). Regarding the motion for an accounting, as
affirmative matter (see 735 Ill. 2d 5/2-619 (West 2020)), respondent asserted that petitioner’s
motion for an accounting was an attempt to reopen discovery which was both untimely and waived
in the MSA. Respondent also asserted that petitioner failed to plead a fiduciary duty on his behalf
(see 735 Ill. 2d 5/2-615 (West 2020)). As for the motion to distribute, respondent asserted that he
held no fiduciary duty to petitioner and that the parties’ waiver of discovery and attestation of
knowledge defeated any claim concerning purportedly undiscovered assets. Respondent also
argued that petitioner failed to allege any damages.
¶ 10 The trial court first stated that petitioner had failed to state a cause of action. It then
explained that petitioner’s attempt to seek discovery predating the dissolution of marriage was akin
to a section 2-1401 petition for relief from judgment (735 ILCS 5/2-1401 (West 2020)). Petitioner
moved to reconsider. In denying this motion, the trial court stated that petitioner could have
conducted discovery prior to entry of the judgment of dissolution. It noted that petitioner never
contacted Greenhouse to ascertain the nature of her interest and that she did not do anything until
well after she received a check for $2500 in 2019. The trial court added,
“Now if there’s a basis that he didn’t turn over documents, that is a petition for rule to show
cause. And if there’s an enforcement issue of the underlying judgement, that is something
-6- 2022 IL App (2d) 210408-U
that can actually be going forward. But in terms of opening up anything, no. I've said
before that I didn’t think it met the criteria under 1401.”
Petitioner appealed.
¶ 11 Following the denial of her motion to reconsider, petitioner moved to amend her complaint
to add two counts. One new count sought to plead a claim for “a statutory accounting under the
Illinois Trust Code” (see 760 ILCS 3/401 (West 2016)). The second requested a rule to show
cause based on respondent’s purported noncompliance with the MSA. The motion to amend was
filed July 16, 2021. On July 28, 2021, petitioner filed her notice of appeal initiating her first appeal
in this case. The trial court ruled on petitioner’s motion to amend on January 4, 2022. In its ruling,
the trial court determined that it could not proceed on the motion to amend while petitioner’s initial
appeal was pending.
¶ 12 Petitioner appealed this ruling as well. Petitioner’s second appeal was filed in Du Page
County after it became a part of the third appellate district. The supreme court, in an exercise of
its supervisory authority, ordered the second appeal to be transferred to this court and consolidated
with petitioner’s initial appeal.
¶ 13 III. ANALYSIS
¶ 14 Before this court are three issues. First, we must determine whether the trial court properly
dismissed petitioner’s request for an accounting. Second, we must assess the propriety of the trial
court’s dismissal of petitioner’s motion to distribute. Third, we must also address the trial court’s
denial of petitioner’s motion to amend her complaint. As these issues come to us following
successful motions to dismiss, our review is de novo. Zahl v. Krupa, 365 Ill. App. 3d 653, 658
(2006).
¶ 15 A. Motion For An Accounting
-7- 2022 IL App (2d) 210408-U
¶ 16 Petitioner first contends that the trial court erred in dismissing her motion for an
accounting. In addition to requesting an accounting, this motion also requested respondent turn
over various documents related to the parties’ investments in Greenhouse.
¶ 17 As a preliminary matter, we agree with petitioner that the MSA creates an express trust,
even though it erroneously labels it a constructive trust. At the time the parties entered into the
MSA, creation of an express trust required the following:
“(1) intent of the parties to create a trust, which may be shown by a declaration of trust by
the settlor or by circumstances which show that the settlor intended to create a trust; (2) a
definite subject matter or trust property; (3) ascertainable beneficiaries; (4) a trustee;
(5) specifications of a trust purpose and how the trust is to be performed; and (6) delivery
of the trust property to the trustee.” Eyechaner v. Gross, 202 Ill. 2d 228, 253 (2002).
“A trust ‘is a fiduciary relationship with respect to property, subjecting the person by whom the
title to the property is held to equitable duties to deal with the property for the benefit of another
person, which arises as a result of a manifestation of an intention to create it.’ ” Id. (Emphasis
omitted.) (quoting Restatement (Second) of Trusts § 2 (1959)). Here, all the necessary elements
of a trust appear in the record. “A trustee owes a fiduciary duty to the beneficiaries of a trust and
must carry out the trust according to its terms and to act with the highest degree of fidelity and
good faith.” Kagan v. Waldheim Cemetery Co., 2016 IL App (1st) 131274, ¶ 31.
¶ 18 First, the parties’ intent to create a trust may be shown by a declaration of the settlor
manifesting that intent. Eyechaner, 202 Ill. 2d at 253. The MSA states, “ROY shall hold DIANE’s
beneficial interest in the Business Entity as a constructive trustee for and on behalf of DIANE.”
Such a plain statement is a more than adequate manifestation of the parties’ intent to create a trust.
Second, “a definite subject matter or trust property” must exist. Id. The parties’ interest in
-8- 2022 IL App (2d) 210408-U
Greenhouse Group is identified as the subject matter of the trust. Third, a trust requires
“ascertainable beneficiaries.” Id. Diane is identified as such. Fourth, there must be a trustee (Id.),
which is set forth as Roy. Fifth, there must be “specifications of a trust purpose and how the trust
is to be performed.” Id. The MSA specifies that Roy must follow Diane’s directions regarding
her 50% interest and that he must consult her and provide her with certain documents and
information. Sixth, the property must be delivered to the trustee. Id. By signing the MSA, Roy
effectively took delivery of the trust corpus and changed his relationship to that portion of
Greenhouse Group held for Diane’s benefit. See Shakman v. Department of Revenue, 2019 IL
App (1st) 182197, ¶ 34; First National Bank of Joliet v. Hampson, 88 Ill. App. 3d 1057, 1061
(1980). Accordingly, all elements exist for the creation of an express trust.
¶ 19 We find it of no moment that the MSA erroneously refers to a constructive trust. As
respondent correctly points out, a constructive trust is not something one contracts for, it is a
judicial remedy. Swanson v. Randall, 30 Ill. 2d 194, 199 (1964) (“An express trust is based upon
the intention of the parties, while a constructive trust is a distinctly different concept. It arises, not
out of an agreement or intention, but by operation of law to prevent unjust enrichment.”).
However, we will only decline to give effect to a provision in a contract if we are unable to
ascertain the relevant intention of the parties. See Academy Chicago Publishers v. Cheever, 144
Ill. 2d 24, 30-31 (1991). Here, it would be difficult to conclude that the MSA was actually
ambiguous, despite the reference to a constructive trust. Since a constructive trust is a judicial
remedy, neither party could have understood the MSA as creating a constructive trust. Moreover,
the MSA goes through the steps of creating an express trust, naming a trustee, beneficiary, and
res, imposing duties on the trustee, and manifesting an intent to create a trust. An ambiguity exists
only where a contract is susceptible to different interpretations. Epstein v. Yoder, 72 Ill. App. 3d
-9- 2022 IL App (2d) 210408-U
966, 973 (1979). We simply cannot conclude that one party understood the MSA to create an
express trust while the other party believed it to create a judicially imposed remedy, that is, a
constructive trust. The only reasonable interpretation is that the MSA created an express trust.
¶ 20 Respondent contends that petitioner forfeited this issue by arguing that the MSA created
an express trust for the first time on appeal. See Village of Lake Villa v. Stokovich, 211 Ill. 2d 106,
121 (2004). We disagree. Though petitioner used the term “constructive trust” during proceedings
in the trial court, it is clear that she was referring to an express trust at the time. For example, in
her motion for an accounting, petitioner alleged that the MSA provided that her interest was “held
in constructive trust by ROY.” Thus, she was arguing that the trust was created by the MSA, that
is, that it was an express trust. Similarly, in response to respondent’s motion to dismiss, petitioner
asserted that the MSA created a fiduciary relationship between her and respondent when “Roy was
assigned ‘to hold Diane’s beneficial interest in the Business Entity as constructive trustee.’ ”
Hence, the issue was raised in the trial court.
¶ 21 Having voluntarily acceded to his role as trustee in the MSA, respondent would now render
his obligations meaningless by depriving petitioner of any remedy for a breach of his fiduciary
duties. If we were to allow petitioner’s waiver of discovery to stand in the way of an accounting,
petitioner would have no remedy for a breach of those duties. To the extent the discovery waiver
would bar an action on the MSA, petitioner is left with no adequate remedy at law. See Horwitz
v. Sonnenschein Nath & Rosenthal, 2018 IL App (1st) 161909, ¶ 44 (“[A] legal remedy is adequate
if it makes the plaintiff whole for the breach of contract—if it awards the plaintiff the difference
between what he deserved under the contract and what he received under the contract.”). The lack
of an adequate remedy at law is normally a prerequisite to maintaining an action for an accounting.
People ex rel. Neil F. Hartigan v. Candy Club, 149 Ill. App. 3d 498, 500-01 (1986). However, an
-10- 2022 IL App (2d) 210408-U
adequate remedy at law does not necessarily prohibit a request for an accounting; “[c]ourts of
equity have jurisdiction to compel an accounting, although the complainant has an adequate
remedy at law, where fiduciary relations exist ***.” (Internal quotation marks omitted.)
(Emphasis added.) Martin v. Heinold Commodities, Inc., 163 Ill. 2d 33, 78-79 (1994). The claim
that there is an adequate remedy at law that does not require an accounting fails to recognize the
inherent rights of beneficiaries in trust proceedings. See Bennett v. Weber, 323 Ill. 283, 296, (1926)
(“The beneficiaries of a trust have a right to demand an accounting from the trustee, and the
enforcement of that right is a proper subject of equity jurisdiction, People v. Bordeaux, 242 Ill.
327 [1909].”). See also Bordeaux, 242 Ill. at 334:
“The trust and fiduciary relation existed, and, so far as Bordeaux was concerned, the
inhabitants of the village had a right to demand an account, and the enforcement of that
right was an ordinary and proper subject of equity jurisdiction. Where such a relation exists
between the parties and the duty rests upon defendant to render an account, a suit in equity
for accounting is proper.” *** Where a trust is involved a court of equity is not necessarily
deprived of jurisdiction by the existence of a remedy at law.”
¶ 22 In addition, petitioner was required to plead at least one of the following: “(1) a breach of
a fiduciary relationship between the parties; (2) a need for discovery; (3) fraud; or (4) the existence
of mutual accounts which are of a complex nature.” Id. Here, petitioner has pleaded facts
sufficient to satisfy two of these elements. First, as above, she had pleaded a fiduciary relationship
between the parties. Further, petitioner pleaded that despite having disclosed holding a 9.7%
interest in Greenhouse, subsequent documentation show he actually holds a 19.4% interest.
According to the MSA, as trustee, respondent must provide to petitioner “all documents received
in connection with Greenhouse Group, LLC or any successor business/entity.” Despite this
-11- 2022 IL App (2d) 210408-U
obligation, respondent has not—according to the complaint—provided any documentation that
explains this discrepancy. Thus, petitioner has pleaded a breach of respondent’s fiduciary duties.
Moreover, petitioner has pleaded facts that indicate a discrepancy in the parties’ interest in
Greenhouse, as represented to her, and the interest held by respondent. Petitioner suggests that
this difference may have resulted from opportunities that had been denied to her due to
respondent’s management of the trust. Second, given respondent’s failure to provide adequate
documentation for petitioner to understand the nature of the parties’ investment and in light of the
discovery waiver and respondent’s alleged breach of warranty regarding same, a need for
discovery is obvious.
¶ 23 We also note respondent’s argument that petitioner’s request for an accounting is an
attempt to avoid her waiver of discovery. We note that an accounting is a remedy rather than a
discovery device. Kerasotes v. Estate of Kerasotes, 238 Ill. App. 3d 1020, 1030 (1992). Thus, we
cannot construe the parties’ waiver of discovery as foreclosing the remedy of an accounting (We
are cognizant that the parties’ waiver also encompassed a “forensic accounting”; “forensic” simply
means “[u]sed in or suitable to courts of law or public debate” (Black’s Law Dictionary 660 (7th
ed. 1999)); thus, the parties were not referring to the specific equitable remedy of accounting when
they included the term “forensic accounting” in the waiver.). Moreover, while it is true that the
parties waived their respective rights to discovery, they both warranted full disclosure, and they
agreed to the creation of a trust. An accounting is a typical remedy for the breach of a fiduciary
duty. See Martin v. Heinold Commodities, Inc., 163 Ill. 2d 33, 78-79 (1994); Kurtz v. Solomon,
275 Ill. App. 3d 643, 653 (1995); Cook County v. Barrett, 36 Ill. App. 3d 623, 634 (1975). Hence,
by agreeing to the formation of a trust, thereby placing fiduciary duties upon respondent, the parties
made applicable the remedy of accounting. In construing a contract, more specific provisions
-12- 2022 IL App (2d) 210408-U
control over more general provisions. R.W. Dunteman Co. v. Village of Lombard, 281 Ill. App.
3d 929, 936 (1996). The MSA is a contract. In re Marriage of Hendry, 409 Ill. App. 3d 1012,
1017 (2011). Here, the more specific provisions establishing respondent’s role as a trustee control
over the parties’ more general waiver of discovery, assuming, arguendo, it is relevant as to time.
¶ 24 Finally, we find unpersuasive respondent’s efforts to characterize petitioner’s motion for
an accounting as an attempt to reopen discovery. While an accounting will surely involve
identifying certain documents, it is consistent with the enforcement of respondent’s duties as
trustee. When the parties entered into an agreement that created an express trust, the enforcement
of these duties was within their contemplation. Parties, of course, may contract for a particular
remedy. Geist v. Lehmann, 19 Ill. App. 3d 557, 564 (1974). It would defy logic to hold that the
parties created an express trust but intended no remedy.
¶ 25 Further, respondent’s interpretation of the MSA provision regarding the waiver of
discovery fails to comprehend the difference between a waiver of discovery up to the time of the
adoption of the MSA and a waiver of discovery in futuro and in perpetuity. Much of the
documentation that petitioner sought involved the period after the dissolution of the marriage.
Were we to preclude all future discovery, we would emasculate equitable principles in general
and, specifically, the ability to remedy breaches of fiduciary duties. Such a preclusion would be
inconsistent with the basic concept of equitable jurisdiction intervening to prevent such injustices.
¶ 26 In addition, we cannot condone and encourage the use of such a waiver as both a sword
and a shield. Paragraph 9.14 of the MSA stated in part:
“ROY and DIANE acknowledge and warrant that they have disclosed to one another all
property in which they have an interest, individually or jointly, present or contingent, and
any property held by another that could be considered non-marital, marital or divisible
-13- 2022 IL App (2d) 210408-U
under the terms of the PNA and the IMDMA for their benefit in connection with the
negotiation of this Agreement.” (Emphasis added.)
Petitioner has alleged that respondent has committed a fraud in both his acknowledgement and
warranty that he had disclosed all of his interests and his continued actions after the dissolution
judgment. Respondent is attempting an inequitable use of the waiver of discovery to prevent
investigation of his allegedly fraudulent acknowledgement and warranty as well as his alleged
continued postjudgment fraudulent activity. In the context of a section 2-1401 petition (735 ILCS
5/2-1401(c) (West 2018)), this court has held that a petitioner’s decision to forgo formal discovery
in a dissolution case was not a per se lack of diligence. See IRMO Brubaker, 2022 IL App (2d)
200160, ¶ 33. Similarly, we will not say here that petitioner’s waiver of full discovery can be a
per se bar to thwart investigation of respondent’s alleged fraudulent activities.
¶ 27 In conclusion, petitioner has pleaded facts sufficient to support an action for an accounting,
and the trial court erred in dismissing petitioner’s motion seeking one. We note that petitioner
sought the turnover of various documents in her motion for an accounting. We express no opinion
regarding the propriety of any specific request, and we leave it to the trial court to address the
propriety of any such particular requests as they relate to the accounting.
¶ 28 B. Motion To Distribute
¶ 29 We now turn to the trial court’s dismissal of petitioner’s motion to distribute. Petitioner
points out that one of the statutory remedies for “breach of trust” is to “compel the trustee to redress
a breach of trust by paying money, restoring property, or other means.” 760 ILCS 3/1001(b)(3)
(West 2020). In his motion to dismiss, respondent asserted that he held no fiduciary duty to
petitioner and that the parties’ waiver of discovery and attestation of knowledge defeated any claim
-14- 2022 IL App (2d) 210408-U
concerning purportedly undiscovered assets. We have addressed and rejected these two arguments
above. Respondent also argued that petitioner failed to allege any damages.
¶ 30 Generally, to state a claim for breach of fiduciary duties, a plaintiff must plead facts that
satisfy the following elements: “(1) a fiduciary duty on the part of the defendant, (2) a breach of
that duty, (3) an injury, and (4) a proximate cause between the breach and the injury.” Janowiak
v. Tiesi, 402 Ill. App. 3d 997, 1010 (2010). Petitioner’s claims of an injury are conclusory.
Essentially, petitioner claims that she was deprived of 50% of some unknown, undisclosed asset.
Conclusory pleading is insufficient. Alpha School Bus Co., Inc. v. Wagner, 391 Ill. App. 3d 722,
735 (2009).
¶ 31 However, a motion to dismiss based on the failure to plead an element of a cause of action
falls under section 2-615 of the Civil Practice Law (735 ILCS 5/2-615 (West 2020)). Pursuant to
that section, a motion to dismiss should be granted “with prejudice only if it is apparent that the
plaintiff can prove no set of facts that will entitled him or her to recover.” Bruss v. Przybylo, 385
Ill. App. 3d 399, 405 (2008). Under the present circumstances, we cannot say this is the case, as
the accounting may lead petitioner to other facts that would allow her to prevail here. The same
can be said of respondent’s complaint that petitioner did not identify what business opportunities
she may have missed due to respondent’s mismanagement of the trust.
¶ 32 Accordingly, we reverse the trial court’s dismissal of the motion to distribute as well.
¶ 33 C. Motion To Amend
¶ 34 In her second appeal, petitioner contests the trial court’s refusal to allow her to amend her
complaint to add two counts. The trial court held that petitioner could not proceed with her
amendment while petitioner’s first appeal was pending. We have now resolved petitioner’s first
appeal. An issue is moot when no actual controversy remains and resolution of the issue would
-15- 2022 IL App (2d) 210408-U
have no practical effect on the proceedings. ChiCorp, Inc. v. Bower, 336 Ill. App. 3d 132, 137
(2002)). Having resolved petitioner’s first appeal, it will no longer serve as a bar to petitioner
amending her complaint on remand. Accordingly, petitioner’s second appeal is moot. People v.
McNulty, 383 Ill. App. 3d 553, 558 (2008) (“When the issues involved in the trial court no longer
exist due to intervening events that have rendered it impossible for the appellate court to grant
effectual relief to defendant, the case is moot.”).
¶ 35 IV. CONCLUSION
¶ 36 In light of the foregoing, the judgment of the circuit court of Du Page County at issue in
petitioner’s first appeal (No. 2-21-0408) is reversed. Petitioner’s second appeal (No. 3-22-0037)
is dismissed. We remand this cause for further proceedings.
¶ 37 No. 2-21-0408, Reversed and remanded.
¶ 38 No. 3-22-0037, Dismissed and remanded.
-16-