Pearson v. Bank

Opinion

2026 IL App (1st) 251221-U Order filed: August 31, 2026

FIRST DISTRICT

THIRD DIVISION

Nos. 1-25-1221 and 1-25-2373 (cons.)

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 JUDICIAL DISTRICT

______________________________________________________________________________

CAMERON R. PEARSON, ) Appeal from the ) Circuit Court of

Plaintiff-Appellant, ) Cook County )

v. ) Nos. 2016 CH 09622 ) 2016 CH 08907 ) 2016 CH 08908 ) 2023 L 2991

)

DEVON BANK, ) Honorable ) Joel Chupack

Defendant-Appellee. ) Judge, presiding.

____________________________________________________________________________

JUSTICE ROCHFORD delivered the judgment of the court.

Justice Lampkin and Justice Reyes concurred in the judgment.

ORDER

¶1 Held: We reverse the order granting defendant’s motion for judgment on the pleadings on plaintiff’s third amended complaint based on res judicata and remand for further proceedings because there was not an identity of cause of action between the first and second suits. We affirm in part and reverse in part the order dismissing plaintiff’s fourth amended complaint “with prejudice.”

¶2 Plaintiff, Cameron R. Pearson, filed a third amended complaint against defendant, Devon Bank, alleging multiple claims of breach of fiduciary duty in connection with its administration of a trust of which plaintiff was a beneficiary. The circuit court granted judgment on the pleadings in favor of defendant on all but one claim of breach of fiduciary duty, finding that the claims alleged

2

mismanagement of the trust estate and were barred under the doctrine of res judicata because they asserted the same cause of action as in an earlier lawsuit against defendant which had been dismissed with prejudice in 2018. The one remaining claim for breach of fiduciary duty in the third amended complaint, which was not barred by res judicata, was dismissed without prejudice for failure to state a cause of action. Plaintiff filed an appeal pursuant to Illinois Supreme Court Rule 304(b)(1) (eff. Mar. 8, 2016) from the order granting defendant judgment on the pleadings.

¶3 While that appeal was pending, plaintiff filed a fourth amended complaint, in which he reasserted the claim of breach of fiduciary duty which had been dismissed without prejudice. Plaintiff also raised two new claims of fraudulent concealment and breach of fiduciary duty which had not been pleaded in the third amended complaint. The court dismissed the fourth amended complaint with prejudice.

¶4 Plaintiff now appeals the dismissal of his fourth amended complaint, which we consolidated with the appeal of the order entering judgment on the pleadings for defendant on the third amended complaint. For the reasons that follow, we reverse the judgment on the pleadings for defendant on the third amended complaint and remand for further proceedings. We affirm in part and reverse in part the dismissal order entered on the fourth amended complaint.

¶5 On June 5, 2017, plaintiff filed a verified second amended complaint against defendant in case number 16 CH 08907. Plaintiff alleged that he is the son of Fred Pearson, who died on September 16, 2015. Merry Ann Pearson is plaintiff’s stepmother, and Julia Pearson is plaintiff’s stepsister. In 1997, Fred established two trusts for the benefit of plaintiff and Julia: the Cameron R. Pearson Trust (Cameron trust) and the Julia M. Pearson Trust (Julia trust). Plaintiff was named the trustee of the Cameron trust. Julia was named the trustee of the Julia trust.

3

¶6 In 1998, Fred created Pearson Investments, a Delaware limited partnership. The initial general partners of Pearson Investments were Fred, Merry Ann, the Cameron trust, and the Julia trust. Fred was designated the managing general partner. Under Pearson Investments’ operating agreement, its purpose was to serve as a holding company for real estate and securities. One of the assets held by Pearson Investments was an approximately 40% interest in Cameron General, a Delaware corporation founded to conduct insurance business. In its federal tax return for 2014, Cameron General reported having $10,858,673 in assets.

¶7 In 2006, Fred established two additional trusts for the benefit of plaintiff and Julia: the Cameron R. Pearson Child’s Trust (Cameron child’s trust) and the Julia M. Pearson Child’s Trust (Julia child’s trust). Fred designated attorney Joel M. Friedman as the trustee of both trusts. However, a 2011 amendment gave Merry Ann the power to remove and replace the trustee upon Fred’s death. In May 2016, Merry Ann removed Friedman as trustee and appointed defendant as the successor trustee of both trusts.

¶8 At the same time that he created Pearson Investments in 1998, Fred had also established the Pearson Family Irrevocable Limited Investment Trust (Investment Trust). In 2006, the Investment Trust transferred all rights, title and interest in two Northwestern Mutual Life Insurance policies to Pearson Investments. The face value of the two life insurance policies was $2,204,750 payable upon Fred’s death.

¶9 On December 4, 2006, Fred and Merry Ann sold their partnership interests in Pearson Investments to the Cameron child’s trust and the Julia child’s trust. Plaintiff alleges that as of July 28, 2016, the general partners of Pearson Investments were the Cameron trust (25%), the Julia trust (12.5%), the Cameron child’s trust (36.25%), and the Julia child’s trust (26.25%). The limited

4

partners of Pearson Investments were the Cameron trust (2.255%), the Julia trust (6.875%), the Cameron child’s trust (63.1375%) and the Julia child’s trust (26.7375%).

¶ 10 After Fred’s death on September 16, 2015, Pearson Investments has ceased operations. Plaintiff pleaded that Merry Ann “continues to have signatory authority over the assets of Pearson Investments LP, even though she purportedly no longer has any ownership of, or interest in, that business.”

¶ 11 Plaintiff pleaded that section 8.1(b) of the Pearson Investments operating agreement provided for its dissolution in the event of a “withdrawal” of a general partner. Fred and Merry Ann’s sale of their partnership interests in Pearson Investments constituted such a withdrawal of two general partners and should have resulted in its dissolution. Plaintiff further pleaded that under the dissolution provisions in Delaware law, any assets held by Pearson Investments “should have been distributed in a reasonably prompt manner to the general and limited partners, in accordance with the percentage partnership interest of each.” As of the date of the complaint, Pearson Investment’s assets were valued in excess of $12 million.

¶ 12 Plaintiff also pleaded that Cameron General (of which Pearson Investments had a 40% stake) has conducted no business within the last five years and should have been dissolved and its assets “should have been distributed in a reasonably prompt manner to the shareholders, in accordance with the percentage partnership interest of each.”

¶ 13 In count I of his second amended complaint, plaintiff alleged that as trustee of the Cameron child’s trust, defendant owes fiduciary duties to plaintiff as the beneficiary of the trust. Such fiduciary duties include “marshalling and safe-keeping assets to which the Trust is entitled.” Plaintiff further alleged that defendant has breached its fiduciary duties to plaintiff by failing to

5

dissolve Pearson Investments and Cameron General and distribute the proportionate amount of their assets to the Cameron child’s trust.

¶ 14 In count II, plaintiff sought removal of defendant as trustee of the Cameron child’s trust.

¶ 15 On April 5, 2018, the circuit court entered an order finding that defendant could not unilaterally dissolve either Pearson Investments or Cameron General and as such that defendant’s failure to dissolve those companies did not constitute a breach of any fiduciary duties. Accordingly, the court dismissed count I. The court further noted that count II is a claim for removal of defendant as trustee, and it is premised primarily on count I. Therefore, the court dismissed count II as well. On May 17, 2018, the court entered an order under Illinois Supreme Court Rule 304(a) (eff. Mar. 8, 2016) stating that there was no just reason to delay enforcement or appeal. Plaintiff did not appeal the dismissal of his second amended complaint.

¶ 16 Instead, on September 21, 2018, plaintiff filed a verified second amended petition in a separate case, number 16 CH 09622, seeking the dissolution of Pearson Investments in count I and an accounting of the assets and liabilities of both Pearson Investments and Cameron General in count II.

¶ 17 On March 7, 2019, the circuit court entered an order dismissing defendant’s second amended petition in case number 16 CH 09622 for lack of subject matter jurisdiction. The court found it lacked subject matter jurisdiction over count I because Delaware law vested its court of chancery with exclusive jurisdiction over the dissolution of limited partnerships. The court found it lacked subject matter jurisdiction over count II because Delaware law provided that any action by a partner to enforce its rights to review partnership records also must be brought in its court of chancery.

6

¶ 18 Plaintiff appealed only the dismissal of count II in case number 16 CH 09622. On March 5, 2020, we issued an opinion affirming the dismissal of plaintiff’s request for an accounting of Cameron General on the basis that the applicable Delaware law vests exclusive jurisdiction for the inspection of corporate books and records in its court of chancery. See Pearson as Trustee of the Cameron R. Pearson Trust Dated 7/1/97 v. Pearson, 2020 IL App (1st) 190717, ¶ 34. We reversed the dismissal of plaintiff’s request for an accounting of Pearson Investments because the applicable Delaware law did not deprive the circuit court of Cook County of jurisdiction over a general partner’s request to inspect the records of a Delaware limited liability company under the facts of this case. Id. ¶ 33.

¶ 19 After we issued our opinion in Pearson, plaintiff established the Cameron Pearson 2020 Irrevocable Trust (Cameron irrevocable trust) on April 23, 2020. Plaintiff’s son, Alyosha, was the beneficiary. On April 28, 2020, plaintiff directed defendant to transfer the assets of the Cameron child’s trust to the Cameron irrevocable trust. The direction was made pursuant to section 3.2 of the Cameron child’s trust, which states:

“[Plaintiff] shall have the right at any time and from time to time during his lifetime and upon his death, to appoint all or any part of the trust estate of such trust to or for the benefit of any one or more descendants of the Grantor (other than [plaintiff]).”

¶ 20 On June 23, 2020, defendant filed a cross-complaint for a declaratory judgment in case number 16 CH 08907 seeking a declaration as to the validity of plaintiff’s exercise of his power of appointment under section 3.2 of the Cameron child’s trust. The cross-complaint noted that section 3.2 gives plaintiff a limited power to appoint all or any part of the Cameron child’s trust to any one or more of Fred’s descendants, except for plaintiff himself. Plaintiff purports to exercise the power of appointment by directing defendant to transfer the assets of the Cameron child’s trust

7

to the Cameron irrevocable trust. However, the Cameron irrevocable trust grants the trustee the immediate authority to make discretionary distributions to plaintiff’s ancestors, such as his mother, who are not Fred’s descendants and it also gives Alyosha a power of appointment that can be exercised on persons other than Fred’s descendants. As such, defendant questioned whether plaintiff’s exercise of his power of appointment in favor of the Cameron irrevocable trust was valid and effective. Defendant further questioned whether plaintiff could legally exercise his limited power of appointment in favor of his minor son before he reached the age of majority. Defendant sought the court’s determination “as to whether [the Cameron child’s trust] establishes clear intent that any power of appointment granted under [the Cameron irrevocable trust] may only be in favor of Fred’s descendants.” Defendant also sought “an overall declaration as to the effectiveness of [plaintiff’s] Exercise of Power of Appointment.”

¶ 21 While the declaratory judgment action was pending, defendant filed its accounting of the Cameron child’s trust in June 2020. According to plaintiff, the accounting revealed that the Cameron child’s trust had incurred debt exceeding $6.5 million bearing interest at 7.5% per year; the trust assets were invested in government bonds yielding approximately 1% per year; the spread between the debt costs and investment returns was systematically consuming the trust principal; and that defendant had used about $750,000 in trust funds to pay for its own legal fees.

¶ 22 On September 18, 2020, plaintiff filed a one-count, verified third amended complaint in case number 16 CH 08907 against defendant for breach of fiduciary duty. Plaintiff alleged that prior to the accounting in June 2020, defendant had never informed him about the amount of debt incurred by the Cameron child’s trust. Defendant had never taken any action to negotiate or refinance the debt but instead had continued to make payments on the debt “notwithstanding the

8

enormous gap between market rates of interest [on the trust’s low yield investments in government bonds] and the rate on the Debt.”

¶ 23 Plaintiff alleged that “[d]espite multiple requests,” defendant had never made a single distribution from the Cameron child’s trust to plaintiff or to his son. Instead, defendant has distributed “all of the interest and a substantial portion of the principal” of the Cameron child’s trust to the trust’s creditors, including Merry Ann. Defendant has charged and collected over $112,000 in fiduciary fees from the Cameron child’s trust and has charged and collected over $300,000 to pay its attorneys.

¶ 24 In subparagraphs 50(a) through 50(h) of his third amended complaint, plaintiff alleged that defendant breached its fiduciary duty to him by:

“(a) failing to renegotiate or refinance the Debt; (b) improperly investing the Cameron Child’s Trust assets; (c) continuing to pay the Debt despite knowing that the Cameron Child’s Trust would be exhausted; (d) elevating the rights of two creditors above the rights of the trust’s beneficiaries: [plaintiff] and his son; (e) failing to share information with [plaintiff] about the Cameron Child’s Trust necessary for them to be reasonably informed;

(f) failing to timely and properly account; (g) allowing the Debt to continue to accrue at above market rates for four years without seeking judicial instructions or taking other action to reduce the Debt; (h) spending a material portion of trust assets [on] itself and for defending its own wrongful conduct.”

¶ 25 Subparagraph 50(i) added the additional claim that defendant breached its fiduciary duty by failing to recognize plaintiff’s power of appointment under section 3.2 of the Cameron child’s trust to distribute the Cameron child’s trust assets to the Cameron irrevocable trust.

9

¶ 26 On November 1, 2021, defendant was removed as trustee of the Cameron child’s trust. Plaintiff was appointed as the successor trustee. On June 8, 2022, the circuit court ordered defendant to turn over all of the Cameron child’s trust assets to plaintiff as the new trustee.

¶ 27 On January 3, 2024, defendant filed a motion for judgment on the pleadings against plaintiff on his third amended complaint under the doctrine of res judicata because it involved the same parties and cause of action as the second amended complaint which had been dismissed with prejudice in April 2018.

¶ 28 On March 10, 2025, the circuit court entered an order finding that all the claims of breach of fiduciary duty pleaded in subparagraphs 50(a) through 50(h) of the third amended complaint involved some form of trust mismanagement and were essentially the same claims as those pleaded in the second amended complaint, which had been dismissed with prejudice in April 2018. Accordingly, the court found that subparagraphs 50(a) through 50(h) were barred by res judicata and it granted defendant’s motion for judgment on the pleadings.

¶ 29 The court found that subparagraph 50(i), which alleged a breach of fiduciary duty based on defendant’s refusal to recognize his power of appointment under section 3.2 of the Cameron child’s trust, failed to state a cause of action. The court dismissed subparagraph 50(i) without prejudice so as to give plaintiff the opportunity to replead that claim.

¶ 30 On April 1, 2025, plaintiff filed his verified fourth amended complaint under case number 16 CH 09622. Count I alleged a new claim for fraudulent concealment. Plaintiff claimed that as trustee of the Cameron child’s trust, defendant had the duty to make a financial accounting and disclose to plaintiff the trust’s assets and debts, as well as the assets and debts of Pearson Investments and Cameron General. Defendant’s failure to make the requisite accountings and

10

disclosures from 2016 to 2020 allowed it to fraudulently conceal its mismanagement of the trust during that time-period.

¶ 31 Count II realleged in subparagraphs 102(a) through 102(i) the same claims of breach of fiduciary duty as had been alleged in subparagraphs 50(a) through 50(i) of the third amended complaint. Plaintiff repleaded these claims to preserve them for appeal. Subparagraph 102(j) added a new claim that defendant breached its fiduciary duty following its removal as trustee when it delayed turning over the trust estate to plaintiff.

¶ 32 On June 24, 2025, even as the fourth amended complaint was pending in the circuit court, plaintiff filed an appeal from the March 10 order granting judgment on the pleadings on subparagraphs 50(a) through 50(h) of the third amended complaint.

¶ 33 On October 21, 2025, the circuit court entered an order on the fourth amended complaint, dismissing with prejudice count I’s claim for fraudulent concealment. The court stated that in its March 10, 2025, order disposing of the third amended complaint, it had expressly allowed plaintiff to replead only the allegation that defendant breached its fiduciary duty by failing to recognize his power of appointment under section 3.2 of the Cameron child’s trust. The filing of the new claim for fraudulent concealment “was in derogation of the March 10th order” as it was filed “without leave of court and without filing a motion pursuant to Section 2-616 of the Code of Civil Procedure.”

¶ 34 The court also struck all the claims for breach of fiduciary duty in subparagraphs 102(a) through 102(h) of count II of the fourth amended complaint because they simply realleged subparagraphs 50(a) through 50(h) of the third amended complaint, and judgment on the pleadings previously had been entered against plaintiff on those claims. Plaintiff had filed an appeal from the judgment on the pleadings which had not yet been resolved. The circuit court found that “the

11

Appellate Court now has jurisdiction” over the claims that were the subject of the judgment on the pleadings.

¶ 35 The circuit court then considered subparagraph 102(i), which alleged that defendant breached its fiduciary duty by failing to recognize his power of appointment under section 3.2 of the Cameron child’s trust to transfer the assets from that trust to the Cameron irrevocable trust. The court found that subparagraph 102(i) still failed to state a cause of action and now dismissed it with prejudice. The court also dismissed with prejudice subparagraph 102(j), the allegation that defendant breached its fiduciary duty after its removal as trustee for failing to immediately turn over the trust assets to plaintiff. The court did not explicitly state its reason for its dismissal of subparagraph 102(j).

¶ 36 Plaintiff timely appealed the dismissal of his fourth amended complaint, which we consolidated with the appeal of the order granting defendant’s motion for judgment on the pleadings on the third amended complaint.

¶ 37 First, we address the order granting judgment on the pleadings for defendant on subparagraphs 50(a) through 50(h) of the third amended complaint on res judicata grounds. A motion for judgment on the pleadings is similar to a summary judgment motion but is limited to the pleadings and is properly granted when the pleadings disclose no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Allstate Property and Casualty Insurance Co. v. Trujillo, 2014 IL App (1st) 123419, ¶ 15. When ruling on the motion, the court takes as true all well-pleaded facts in the non-movant’s pleadings and any reasonable inferences therefrom. Id. ¶ 16. Our review is de novo. Id.

¶ 38 Under the doctrine of res judicata, “a final judgment on the merits rendered by a court of competent jurisdiction bars a subsequent action between the same parties or their privies involving

12

the same cause of action.” Richter v. Prairie Farms Dairy, Inc., 2016 IL 119518, ¶ 21. The bar extends not only to what was decided in the first action but also includes matters that could have been decided in the initial action. Ward v. Decatur Memorial Hospital, 2019 IL 123937, ¶ 44.

¶ 39 For res judicata to apply, the following three requirements must be met: “(1) a final judgment on the merits rendered by a court of competent jurisdiction; (2) identity of cause of action; and (3) identity of parties or their privies.” Wilson v. Edward Hospital, 2012 IL 112898,

¶ 9. The Illinois Supreme Court has adopted the transactional test for determining whether claims constitute the same cause of action for res judicata purposes. River Park, Inc. v. City of Highland Park, 184 Ill. 2d 290, 311 (1998). Under this test, “separate claims will be considered the same cause of action for purposes of res judicata if they arise from a single group of operative facts, regardless of whether they assert different theories of relief.” Id. Determining what factual grouping constitutes a transaction should be done pragmatically, giving weight to “ ‘whether the facts are related in time, space, origin, or motivation, whether they form a convenient trial unit, and whether their treatment as a unit conforms to the parties’ expectations or business understanding or usage.’ ” Id. at 312 (quoting Restatement (Second) of Judgments, § 24 at 196 (1982)). Whether an action is barred by res judicata is a question of law reviewed de novo. Ward, 2019 IL 123937, ¶ 44.

¶ 40 On appeal, plaintiff does not dispute that the second and third amended complaints involved the same parties, nor does he dispute that the dismissal order entered on the second amended complaint constituted a final judgment on the merits. Plaintiff’s argument is that the court erred by finding that the second amended complaint’s allegations of breach of fiduciary duty arose from the same group of operative facts as the allegations of breach of fiduciary duty in

13

subparagraphs 50(a) through 50(h) of the third amended complaint so as to constitute an identity of cause of action.

¶ 41 In determining whether the two causes of action arose from the same group of operative facts, we first consider whether the facts are related in time. River Park, 184 Ill. 2d at 312. The second amended complaint alleged that after its appointment as trustee of the Cameron child’s trust in May 2016, defendant breached its fiduciary duties by refusing plaintiff’s repeated requests to dissolve Pearson Investments and Cameron General and to make a proportionate distribution of their assets to the Cameron child’s trust. The timeframe for this alleged breach of fiduciary duties was roughly the 13-month period from when defendant was appointed trustee in May 2016 to the filing of the second amended complaint in June 2017.

¶ 42 In contrast to the second amended complaint, subparagraphs 50(a) through 50(h) of the third amended complaint did not repeat the allegations regarding defendant’s failure to dissolve Pearson Investments and Cameron General and distribute their assets. Instead, subparagraphs 50(a) through 50(h) alleged that defendant breached its fiduciary duty by engaging in various other forms of mismanagement and faulty accounting of the Cameron child’s trust’s assets and debts. The timeframe for these alleged breaches of fiduciary duty was roughly the four-year period from May 2016 to the filing of the third amended complaint in September 2020. Although the respective breaches of fiduciary duty pleaded in the second and third amended complaints overlapped from May 2016 to June 2017, the breaches pleaded in the third amended complaint continued on after the dismissal of the second amended complaint in April 2018 and for an additional two years until September 2020 and thus are not so related in time as to support a dismissal on res judicata grounds. See D’Last Corp. v. Ugent, 288 Ill. App. 3d 216, 222 (1997) (holding that “[t]he doctrine

14

of res judicata does not bar claims for continuing conduct complained of in the second lawsuit that occur after judgment has been entered in the first lawsuit”).

¶ 43 Defendant argues, though, that all of plaintiff’s claims of breach of fiduciary duty as pleaded in the third amended complaint actually predate the dismissal of the second amended complaint and thus do not constitute new or continuing conduct falling outside of the doctrine of res judicata. Careful review of the third amended complaint indicates otherwise, as plaintiff pleaded therein that even after the dismissal of the second amended complaint, defendant continued to not take any action to negotiate or refinance the trust’s debt. Defendant also continued to make payments on the debt “notwithstanding the enormous gap between the market rates of interest and the rate on the Debt.” Taking plaintiff’s allegations as true for purposes of the motion for judgment on the pleadings (Trujillo, 2014 IL App (1st) 123419, ¶ 16), defendant’s ongoing mismanagement of the trust’s debt, which continued on even after the dismissal of the second amended complaint, effectively constitutes a new cause of action that is not barred by res judicata. D’Last Corp., 288 Ill. App. 3d at 222.

¶ 44 Further, plaintiff pleaded that from 2018 to September 2020, defendant continued to provide “untimely, incomplete or inadequate” accounting of the Cameron child’s trust even after the dismissal of the second amended complaint. Defendant’s continued failure to provide complete accountings from 2018 to 2019 constituted an ongoing violation of former section 11 of the Illinois Trust Code (Code) (760 ILCS 5/11 (West 2018) (repealed by P.A. 101-48, § 1505 (eff. Jan. 1, 2020))), which provided that a trustee shall send at least annually a trust accounting to all current beneficiaries. From 2020 forward, defendant’s continued failure to provide complete accountings constituted an ongoing violation of current section 813.2(b) of the Code (760 ILCS 3/813.2(b) (West 2024)), which also imposes a duty on the trustee to send an annual accounting to all

15

beneficiaries. As discussed, the doctrine of res judicata does not bar claims for such ongoing misconduct complained of in a second lawsuit which continues after judgment was entered on an earlier complaint. D’Last Corp., 288 Ill. App. 3d at 222.

¶ 45 Next, we consider whether the facts pleaded in the two causes of action are related in space and origin. River Park, 184 Ill. 2d at 312. The origin of the second amended complaint stems from defendant’s failure from 2016 to 2017 to dissolve Pearson Investments and Cameron General and distribute a proportionate share of their assets to the Cameron child’s trust so as to ensure that the trust was “fully funded.” The origin of the third amended complaint stems not from defendant’s discrete failure to dissolve Pearson Investments and Cameron General in 2016 and 2017 and distribute their assets to the trust. Rather, the origin of the third amended complaint arises out of defendant’s ongoing mismanagement of the trust from 2016 to 2020 when it failed to renegotiate or refinance the trust’s debt; improperly invested trust assets; continued to pay the debt without seeking other ways to reduce it; elevated the rights of other creditors above the trust’s beneficiaries; failed to disclose relevant information about the trust to plaintiff; failed to make a timely financial accounting of the trust; and spent trust assets on itself and then defended its own wrongful conduct. The second and third amended complaints are not so related in space and origin as to support a dismissal on res judicata grounds, where they originated from completely separate behaviors on the part of defendant and seek recompense for different breaches of fiduciary duty.

¶ 46 Finally, we consider whether the second and third amended complaints would have formed a convenient trial unit and whether the parties would have expected them to be treated as a unit. Id. As we have discussed earlier in this order, the second amended complaint alleges that defendant breached its fiduciary duty by failing to dissolve Pearson Investments and Cameron General in 2016 and 2017 and then redistribute a proportionate share of their assets to the Cameron child’s

16

trust. The third amended complaint alleges that, separate and apart from the failure to dissolve Pearson Investments and Cameron General, defendant breached its fiduciary duty by making a series of poor investment decisions, engaging in improper debt management, and violating accounting protocols from 2016 to 2020.

¶ 47 Defendant argues that the various allegations of breach of fiduciary duty alleged in the second and third amended complaints could have been tried together to form a convenient trial unit. However, plaintiff alleges that defendant secreted its misconduct underlying the third amended complaint for four years from 2016 to 2020, until we issued our opinion in Pearson, 2020 IL App (1st) 190717, which required defendant to make a financial accounting. For purposes of the motion for judgment on the pleadings, we accept as true plaintiff’s well-pleaded allegations regarding defendant’s secreting its financial mismanagement of the Cameron child’s trust. Trujillo, 2014 IL App (1st) 123419, ¶ 16. Defendant performed its accounting of the trust in June 2020, which was more than two years after the dismissal of the second amended complaint, disclosing for the first time the various financial improprieties which later became the subject of the third amended complaint. As the financial improprieties underlying the claims for breach of fiduciary duty asserted in the third amended complaint were unknown to plaintiff at the time of the filing of the second amended complaint, the two causes of action could not possibly have been tried together as a unit and neither party would have expected as such.

¶ 48 Defendant argues that Mular v. Ingram, 2016 IL App (1st) 152750, compels us to affirm judgment on the pleadings in its favor. In Mular, the plaintiff filed a complaint in case No. 12-L- 7928 (Mular I) alleging that she sustained injuries when she fell in the backyard pool area of the defendant’s home during a social gathering on July 18, 2010. Id. ¶¶ 2-3. The plaintiff alleged that as the homeowner, the defendant owed her a duty to maintain the property in a safe condition,

17

which the defendant breached by failing to provide a safe means of ingress and egress to the area; failing to keep the area free of tripping hazards; allowing the area to become unsafe due to uneven surfaces and poorly maintained concrete and concrete expansion joints; failing to inspect the area for hazardous conditions; and failing to warn others of such conditions. Id. ¶ 3. The circuit court dismissed the complaint in Mular I pursuant to Illinois Supreme Court Rule 103(b) (eff. July 1, 2007) because the plaintiff failed to act with reasonable diligence in serving the defendant. Mular, 2016 IL App (1st) 152750, ¶¶ 4-5.

¶ 49 In July 2014, the plaintiff filed a complaint in a separate case (Mular II) alleging construction negligence and seeking damages for injuries arising out of the same occurrence. Id. ¶ 8. The complaint alleged that the defendant owed a duty to exercise ordinary care for the safety of persons who entered the property and that she violated that duty by negligently allowing the area around the pool to be unsafe due to uneven surface levels and poorly maintained concrete. Id. The complaint also alleged that the defendant owed a duty to exercise ordinary care when designing and constructing improvements to the property and that she breached this duty by failing to design and construct a safe means of ingress and egress to the property; failing to design and construct the pool area to be free from tripping hazards; and constructing the pool area so as to leave it with uneven surface levels and poorly maintained concrete and concrete expansion gaps. Id.

¶ 50 The circuit court dismissed the complaint in Mular II on res judicata grounds, finding that it arose out of the same operative facts as those alleged in Mular I. Id. ¶ 13. On appeal, the plaintiff argued that Mular II was not barred by res judicata because it “clarified and expanded upon the allegations of the first complaint.” Id. ¶ 20. We affirmed the dismissal, holding that even if the complaint in Mular II expanded on the allegations of Mular I, both complaints still originated out

18

of the plaintiff’s fall in the defendant’s pool area and thus constituted an identity of cause of action. Id. ¶ 21.

¶ 51 In the instant case, defendant argues that, similar to Mular, even if plaintiff’s allegations in his third amended complaint expand upon the allegations in the second amended complaint, all the allegations in both complaints still originate from defendant’s “mismanagement” of the Cameron child’s trust and thus constitute the same cause of action for purposes of res judicata. We disagree. The second amended complaint originated from defendant’s specific failure in 2016 and 2017 to dissolve Pearson Investments and Cameron General and distribute a proportionate share of their assets to the Cameron child’s trust. By contrast, the third amended complaint did not originate from, or otherwise have anything to do with, defendant’s failure to dissolve those companies and distribute their assets. Instead, the third amended complaint arose out of defendant’s completely separate actions from 2016 to 2020, when it allegedly made a series of poor investments, engaged in improper debt management, violated accounting protocols, and profited at plaintiff’s expense. None of the factual allegations in the third amended complaint were in any way at issue or encompassed in the second amended complaint, nor were they even known to plaintiff at the time of the filing of the second amended complaint. Unlike in Mular, here the facts underlying the breach of fiduciary duty pleaded in the second amended complaint were entirely unrelated in time, space, and origin to the facts underlying the breach pleaded in the third amended complaint, would not have formed a convenient trial unit, and do not support application of res judicata.

¶ 52 Therefore, we reverse the order granting judgment on the pleadings for defendant on subparagraphs 50(a) through 50(h) of the third amended complaint and remand for further proceedings.

19

¶ 53 Next, we address the disposition of the fourth amended complaint. Initially, we note that the circuit court determined that subparagraphs 102(a) through 102(h) of count II of the fourth amended complaint merely repleaded the same claims of breach of fiduciary duty contained in subparagraphs 50(a) through 50(h) of the third amended complaint. The court reasoned that since it previously had entered judgment on the pleadings for defendant on the claims asserted in subparagraphs 50(a) through 50(h) of the third amended complaint and an appeal had been taken, jurisdiction over those claims was now vested in the appellate court. The circuit court ordered that subparagraphs 102(a) through 102(h) be “stricken from the Fourth Amended Complaint” as they realleged the same claims over which the appellate court had exclusive jurisdiction. In the instant appeal, plaintiff cursorily contends that the court erred by striking subparagraphs 102(a) through 102(h), but he offers no argument or citation of authority in support thereof and therefore has forfeited review. Illinois Supreme Court Rule 341(h)(7) (eff. Oct. 1, 2020).

¶ 54 Next, we address plaintiff’s argument that the circuit court erred by dismissing count I of the fourth amended complaint, which asserted a new cause of action for fraudulent concealment. Section 2-616(a) of the Code of Civil Procedure (735 ILCS 5/2-616(a) (West 2024)) states that “[a]t any time before final judgment amendments may be allowed on just and reasonable terms.” However, to file an amended complaint, the plaintiff first must seek and obtain the circuit court’s permission. Fox River Gardens, LLC v. Illinois Department of Financial and Professional Regulation, 2023 IL App (1st) 221081-U, ¶ 51 (cited for its persuasive purposes under Illinois Supreme Court Rule 23(e)(1) (eff. June 3, 2025)); Kerbes v. Raceway Associates, LLC, 2011 IL App (1st) 110318, ¶ 14.

¶ 55 Plaintiff contends that the circuit court’s March 10, 2025, order dismissing the third amended complaint also gave him permission to amend count I and assert a new cause of action

20

for fraudulent concealment in his fourth amended complaint. In support, plaintiff points to the language in the March 10, 2025, order stating, “Plaintiff shall have to April 1, 2025, to file a fourth and final amended complaint.” However, careful review of the entirety of the court’s March 10 dismissal order shows that after granting judgment on the pleadings on subparagraphs 50(a) through 50(h) based on res judicata, the court then considered subparagraph 50(i). Subparagraph 50(i) asserted that defendant breached its fiduciary duty by denying plaintiff’s right to exercise his power of appointment and transfer assets from the Cameron child’s trust to the Cameron irrevocable trust. The court stated that subparagraph 50(i)’s “lack of detail *** renders the claim substantially insufficient in law. The Court will give [plaintiff] a final opportunity to amend its complaint accordingly.” (Emphasis added.) Thus, the court was clearly giving plaintiff permission to amend the complaint to replead subparagraph 50(i), not to file an amended pleading containing a completely new cause of action such as the one pleaded in count I of the fourth amended complaint for fraudulent concealment.

¶ 56 The court stated as such again in the October 21, 2025, order dismissing the fourth amended complaint:

“On April 1, 2025, [plaintiff] filed the Fourth Amended Complaint. This filing was in derogation of the March 10th Order as it added a new claim without leave of court and without filing a motion pursuant to Section 2-616 of the Code of Civil Procedure (the ‘Code’). 735 ILCS 5/2-616. [Plaintiff] was only allowed to replead the substantially insufficient claim concerning [defendant’s] failure to recognize [plaintiff’s] power of appointment. Instead, the Fourth Amended Complaint asserts a new claim—[defendant’s]

alleged fraudulent concealment of material information (Count I). [Plaintiff’s] assertion that the March 10th Order did not contain any limiting language of what claims could be

21

alleged in the fourth and final amended complaint is disingenuous. The March 10th Order did not state that [plaintiff] could plead new causes of action. Section 2-616 of the Code remains operative. [Plaintiff] would have needed to bring a motion [to] add a new cause of action. *** In short, Count I of the Fourth Amended Complaint is dismissed as violative of the March 10th Order and Section 2-616 of the Code.”

¶ 57 The decision whether to allow a plaintiff to file an amended complaint rests within the sound discretion of the circuit court and will not be disturbed absent an abuse of that discretion. Fox River Gardens, 2023 IL App (1st) 221081-U, ¶ 50. The court committed no abuse of discretion in dismissing count I of plaintiff’s fourth amended complaint for fraudulent concealment where plaintiff never sought the court’s permission to file such an amended pleading and permission was never granted. Id. ¶ 51 (“the circuit court could not have abused its discretion by not granting a request to amend that was never made”).

¶ 58 Plaintiff also argues that the circuit court erred by dismissing subparagraph 102(j) of count II of the fourth amended complaint, which asserted a new cause of action for breach of fiduciary duty based on defendant’s failure to immediately turn over the trust assets to plaintiff after its removal as trustee. Similar to count I, plaintiff never sought permission to file amended subparagraph 102(j) and permission never was granted. In the absence of such permission, the dismissal of subparagraph 102(j) did not constitute an abuse of discretion. Id. Even though the circuit court did not state its reasoning for the dismissal of subparagraph 102(j), we may affirm the circuit court’s dismissal on any basis in the record. Muhammad v. Riverside Healthcare, 2026 IL App (3d) 240274, ¶ 35. Plaintiff’s failure to seek and obtain permission to file subparagraph 102(j) provides a basis for its dismissal.

22

¶ 59 However, our analysis continues because the circuit court dismissed count I and subparagraph 102(j) with prejudice. The question of whether that dismissal should have been “with prejudice” is a matter committed to the sound discretion of the circuit court and is reviewed for an abuse of discretion. Fabian v. BGC Holdings, LP, 2014 IL App (1st) 141576, ¶ 22. A claim should be dismissed with prejudice only when no set of facts can be proved that would entitle plaintiff to relief. Cowper v. Nyberg, 2015 IL 117811, ¶ 22. The circuit court here never expressly considered whether there were any set of facts entitling plaintiff to relief under count I and under subparagraph 102(j) of count II of the fourth amended complaint and therefore its dismissal of those claims “with prejudice” was premature. We reverse the “with prejudice” dismissal of count I and subparagraph 102(j) of count II and remand for the circuit court to consider whether any set of facts can be proved that would entitle plaintiff to relief on those claims.

¶ 60 Finally, plaintiff argues that the circuit court erred by granting defendant’s section 2-615 motion to dismiss with prejudice subparagraph 102(i) of count II of the fourth amended complaint, which alleged that defendant breached its fiduciary duty to him by denying his right, under section 3.2 of the Cameron child’s trust, to “appoint all or any part of the trust estate of such trust to or for the benefit of any one or more descendants of the Grantor (other than [plaintiff]).” Pursuant to section 3.2, plaintiff attempted to exercise his power of appointment by directing defendant to transfer assets from the Cameron child’s trust to the Cameron irrevocable trust. Plaintiff alleges that defendant essentially ignored him and refused to make the transfer, thereby breaching its common law duty as a fiduciary to carry out the terms of the trust and to act with the highest degrees of fidelity and good faith. Janowiak v. Tiesi, 402 Ill. App. 3d 997, 1009 (2010). Plaintiff alleges that defendant similarly violated its statutory duty under section 801 of the Code to

23

“administer the trust in good faith, in accordance with its purposes and the terms of the trust.” 760 ILCS 3/801 (West 2024).

¶ 61 For the reasons that follow, the circuit court did not err by granting the section 2-615 motion to dismiss subparagraph 102(i) with prejudice. A motion to dismiss under section 2-615 tests the legal sufficiency of the complaint based on defects apparent on its face. K. Miller Construction Co., Inc. v. McGinnis, 238 Ill. 2d 284, 291 (2010). “The proper inquiry is whether the well-pleaded facts of the complaint, taken as true and construed in a light most favorable to the plaintiff, are sufficient to state a cause of action upon which relief may be granted.” Loman v. Freeman, 229 Ill. 2d 104, 109 (2008). In ruling on a section 2-615 motion, the court considers the facts apparent from the face of the pleadings, matters of which the court can take judicial notice, and judicial admissions in the record. K. Miller Construction, 238 Ill. 2d at 291; Reynolds v. Jimmy John’s Enterprises, LLC, 2013 IL App (4th) 120139, ¶ 25. Review is de novo. Reynolds, 2013 IL App (4th) 120139, ¶ 25.

¶ 62 In analyzing the section 2-615 dismissal order, we may take judicial notice of the prior pleadings in this litigation because they are public records. See Phusion Projects, Inc. v. Selective Insurance Co. of South Carolina, 2015 IL App (1st) 150172, ¶9, n. 2; O’Callaghan v. Satherlie, 2015 IL App (1st) 142152, ¶ 20. The prior pleadings demonstrate defendant did not simply ignore plaintiff’s direction to transfer assets from the Cameron child’s trust to the Cameron irrevocable trust. Instead, as discussed earlier in this order, defendant filed a cross-claim in the circuit court less than two months after plaintiff directed it to make the transfer. In the cross-claim, defendant sought a declaratory judgment from the circuit court as to whether such a transfer would violate certain provisions of the Cameron child’s trust.

24

¶ 63 Plaintiff has pleaded no facts showing that defendant committed any breach of fiduciary duty by filing the declaratory judgment action and delaying making the requested transfer during the pendency of the proceedings, as it is well-established that a trustee is entitled to seek judicial clarification of its duties and obligations under the trust prior to making any payments to the beneficiaries. See e.g., Northern Trust Co. v. Heuer, 202 Ill. App. 3d 1066, 1070-71 (1990) (“When there are conflicting claims to trust funds, a trustee is not required to make a determination as to the rights of the prospective claimants but should file an interpleader action to avoid acting at its own peril”); BMO Harris Bank N.A. v. Towers, 2015 IL App (1st) 133351, ¶ 38 (quoting Warner v. Mettler, 260 Ill. 416, 421-22 (1913)) (“A trustee may, whenever a situation arises that justifies proceedings, ‘ask the court for instructions as to their duties under the circumstances under which they or the trust funds are placed’ ”); Bohren v. Karazeris as Trustee of Michael P. Karazeris Trust Dated March 1, 1995, 2022 IL App (1st) 211249-U, ¶ 22 (cited for its persuasive authority under Illinois Supreme Court Rule 23(e)(1) (eff. June 3, 2025)) (“it is prudent and wise for a trustee to seek instruction when faced with genuine uncertainty because a trustee may be held personally liable for breaches of the trust agreement or of his or her fiduciary duties”).

¶ 64 In the instant case, defendant’s cross-claim shows that it was faced with uncertainty regarding whether plaintiff’s exercise of his power of appointment complied with the terms of the Cameron child’s trust and whether defendant should accede to his request to transfer the assets of the Cameron child’s trust to the Cameron irrevocable trust. Therefore, defendant filed a declaratory judgment action seeking judicial instruction as to how to proceed. In the face of such uncertainty regarding its duty as trustee, defendant acted in accordance with well-established case law by seeking judicial instruction and committed no breach of fiduciary duty in so doing. Id. Therefore, as plaintiff failed to state a cause of action for breach of fiduciary duty, we affirm the dismissal of

25

subparagraph 102(i) of count II of the fourth amended complaint. We also affirm the “with prejudice” designation in the dismissal order because the circuit court gave plaintiff multiple opportunities to plead his cause of action and correctly found there were no set of facts that could be proved which would entitle plaintiff to relief.

¶ 65 For all the foregoing reasons, we reverse the order granting judgment on the pleadings for defendant on the third amended complaint and remand for further proceedings. We affirm the striking of subparagraphs 102(a) through 102(h) and the dismissal with prejudice of subparagraph 102(i) of count II of the fourth amended complaint. We reverse the dismissal “with prejudice” of count I and subparagraph 102(j) of count II of the fourth amended complaint and remand for further proceedings.

¶ 66 Affirmed in part, reversed in part, and remanded.