2023 IL App (1st) 221110-U
THIRD DIVISION June 21, 2023
No. 1-22-1110
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
ALAN WU, ) Appeal from the Circuit Court of ) Cook County. Plaintiff-Appellant, ) ) v. ) No. 2020 L 3620 ) GAINES & PULJIC LTD.; JOHN M. GAINES, ) LTD.; JOHN J. GAINES, III; and THOMAS ) KALLIES; ) ) Honorable Daniel J. Kubasiak, Defendants-Appellees. ) Judge, presiding.
JUSTICE D.B. WALKER delivered the judgment of the court. Presiding Justice McBride and Justice Reyes concurred in the judgment.
ORDER
¶1 Held: The trial court did not err in granting defendant’s motion to dismiss due to the running of the statute of limitations and the statute of repose. Affirmed.
¶2 Plaintiff Alan Wu filed an amended complaint alleging legal malpractice against
defendants Gaines & Puljic Ltd.; John M. Gaines, Ltd.; John J. Gaines, III (collectively,
defendants); and Thomas Kallies. Defendants subsequently filed a motion to dismiss pursuant to
section 2-619.1 of the Code of Civil Procedure (Code) (735 ILCS 5/2-619.1 (West 2020)), arguing
that plaintiff’s complaint was untimely under the statute of limitations. The trial court agreed and No. 1-22-1110
granted the motion. Plaintiff appeals, contending that (1) the court erred in failing to find a genuine
issue of material fact, (2) the “discovery rule” should have tolled the statute of limitations, (3) the
doctrine of equitable tolling should have applied here, and (4) the court erred in denying plaintiff
leave to amend his complaint. We affirm.
¶3 BACKGROUND
¶4 On March 26, 2020, plaintiff filed a pro se complaint against Southern Cross Resources
Group, Inc. (Southern Cross), the defendants, the Law Offices of Ivan Puljic, Ltd., and Ivica Puljic.
This complaint alleged legal malpractice, common law fraud, and aiding and abetting. The
gravamen of plaintiff’s complaint was that defendants drafted various materials, including private
placement memoranda (PPMs) and a subsequent Rescission Offer Rejection Agreement (the
Rescission Offer Agreement), containing material misstatements of fact, which plaintiff relied
upon and later suffered damages of nearly $550,000. Plaintiff further alleged that he was “a known
third-party beneficiary” of defendants’ legal services The trial court dismissed this complaint for
want of prosecution on March 23, 2021. The court subsequently granted plaintiff’s motion to
vacate the dismissal, and the case was reinstated.
¶5 On August 13, 2021, plaintiff (now represented by counsel) filed an amended complaint
alleging legal malpractice (count I), common law fraud (count III), and aiding and abetting (count
IV) against defendants. 1 The following facts are taken from plaintiff’s amended complaint.
¶6 Michael A. Nasatir and Andrew L. Madenberg were the principals of Southern Cross, a
Nevada corporation. As noted above, defendants prepared “written offering materials” for
Southern Cross, including PPMs, that were provided to plaintiff between April 2012 and March
1 Plaintiff also alleged legal malpractice in a separate count (count II) against defendant Thomas Kallies, which plaintiff later voluntarily dismissed with prejudice. This claim is not before us.
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2014. The offering materials represented that Nasatir and Madenberg personally invested millions
of dollars of their own money and assets in Southern Cross, but in fact the principals invested
nothing of “substantial value.” The PPMs indicated that Southern Cross and its principals and
affiliates owned or controlled assets valued between $26 million and $310 million, but in fact those
valuations were “grossly misstated.” In particular, a PPM that plaintiff received in 2013 stated
that Southern Cross had coal reserves valued in excess of $20 million, but in fact their valuation
was “grossly misrepresented in a variety of ways.”
¶7 Plaintiff further alleged that defendants drafted the Rescission Offer Agreement and an
accompanying revised PPM to correct prior misstatements and to “roll[] [p]laintiff’s investment
into a new entity with the same name, while offering [p]laintiff his money back.” Plaintiff stated
that Southern Cross conducted its rescission offer from March 15, 2014, through April 15, 2014.
Plaintiff added that the revised PPM claimed that Southern Cross, Nasatir, and a company wholly
owned by Nasatir collectively had over $200 million in assets, but in fact this claim was false.
Plaintiff said that he relied upon this false information in deciding not to request his money back.
¶8 Based upon the PPMs that defendants drafted, plaintiff invested and loaned Southern Cross
$546,177.26. Plaintiff stated that his investments amounted to $50,000 on June 6, 2013, $22,500
on January 2, 2014, and $304,947.66 on February 14, 2014. Plaintiff further stated that he loaned
Southern Cross $150,000 on August 7, 2014 (excluding unpaid interest totaling $18,729.60), due
to the misrepresentations in the revised PPM and Rescission Offer Agreement.
¶9 Plaintiff also alleged in count III (common law fraud) that defendants continued to conceal
the fraud by misrepresenting the value of Southern Cross’s assets “which prevented [p]laintiff
from discovering the acts until the SEC [the United States Securities and Exchange Commission]
filed [its] complaint on December 21, 2015.”
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¶ 10 On September 20, 2021, defendants filed a motion to dismiss plaintiff’s amended
complaint pursuant to section 2-619.1 of the Code (735 ILCS 5/2-619.1 (West 2020)). Defendants
argued that, pursuant to section 13-214.3(b) of the Code (735 ILCS 5/13-214.3(b) (West 2020)),
plaintiff’s March 26, 2020, complaint was time-barred because plaintiff “conceded [in his
complaint] that he knew, or should have known, of his harm when the SEC indicted Nasatir and
Madenberg on December 21, 2015.” Defendants concluded that dismissal on these grounds was
warranted under section 2-619(a)(5) of the Code (735 ILCS 5/2-619(a)(5) (West 2020)).
Defendants further argued that the five-year statute of limitations for fraud claims under section
13-205 of the Code (735 ILCS 5/13-205 (West 2020)) would also render counts III and IV time-
barred. Defendants added that dismissal was warranted because plaintiff failed to exercise
reasonable diligence in serving defendants in violation of Supreme Court Rule 103(b) (Ill. S. Ct.
R. 103(b) (eff. July 1, 2007)). Finally, defendants contended that plaintiff’s claim of successor
liability against defendant John J. Gaines, Ltd., must be dismissed because plaintiff failed to
support his claim with facts, warranting dismissal under section 2-615 of the Code (735 ILCS 5/2-
615 (West 2020)).
¶ 11 Defendants attached as an exhibit to their motion a complaint filed by the SEC in the federal
district court on December 21, 2015 (the SEC complaint). The SEC complaint alleged that Nasatir
and Madenberg, both on behalf of Southern Cross, conducted a “fraudulent offering of securities.”
The SEC complaint further alleged that Southern Cross spent all of the money it raised from
investors and that it had only a few assets available for liquidation. The SEC complaint further
stated, “Southern Cross’ investors are likely to suffer a significant loss on their investments in the
company.”
¶ 12 In response, plaintiff disputed defendants’ arguments in favor of dismissal except those
pertaining to John J. Gaines, Ltd. With respect to that defendant, plaintiff stated that (1) he does
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not contest the dismissal of that defendant, (2) defendants’ arguments were well-taken, and
(3) John J. Gaines, Ltd., “should be dismissed with no prejudice to [p]laintiff’s remaining claims.”
As to defendants’ argument that the statute of repose further bars plaintiff’s complaint, plaintiff
stated that its “theory” was focused on the drafting of the Rescission Offer Agreement and revised
PPM. In addition, plaintiff attached an affidavit to his response in which he stated, “[o]n March
27, 2014, I completed the Rescission Offer.” He further stated that he became aware of the SEC
complaint “a couple weeks after” it was made public, but he did not initially believe in its merits
because he was “still stricken with disbelief that [I was] completely defrauded.”
¶ 13 On May 6, 2022, the trial court issued an order stating that the matter was set for a status
hearing on May 23, 2022, via the Zoom videoconferencing software platform. There is no report
of proceedings for that hearing in the record on appeal.
¶ 14 On June 30, 2022, the trial court issued a written opinion on defendants’ motion to dismiss.
The court indicated that it “reviewed the pleadings and the arguments made by all parties.” The
court found that the two-year statute of limitations (735 ILCS 5/13-214.3 (West 2022)) barred all
of plaintiff’s claims, and it noted that plaintiff conceded that defendant John J. Gaines, Ltd., should
be dismissed. The court then dismissed plaintiff’s complaint with prejudice on counts I, III, and
IV, and it further dismissed John J. Gaines, Ltd., as a defendant with prejudice. On July 26, 2022,
the court issued an order noting that, pursuant to its order dismissing counts I, III, and IV with
prejudice, and its order dismissing defendant Kallies (which comprised count II) with prejudice,
all claims in this matter had been dismissed. The court then ordered all future court dates stricken.
This timely appeal follows.
¶ 15 ANALYSIS
¶ 16 On appeal, plaintiff first contends that the trial court erroneously granted defendants’
motion to dismiss. Specifically, plaintiff argues that his complaint was not time-barred under the
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statute of limitations or the statute of repose. Plaintiff further argues that the doctrine of equitable
tolling should apply to the statute of limitations regarding his claims.
¶ 17 Section 2-619.1 of the Code permits a party to combine a section 2-615 motion to dismiss
based upon a plaintiff's substantially insufficient pleadings with a section 2-619 motion to dismiss
based upon certain defects or defenses. 735 ILCS 5/2-619.1 (West 2020); Coghlan v. Beck, 2013
IL App (1st) 120891, ¶ 24. Here, plaintiff challenges the trial court’s dismissal actions pursuant
to the statute of limitations, which is an affirmative matter permitting dismissal under section 2-
619(a)(5). See 735 ILCS 5/2-619(a)(5) (West 2020) (permitting dismissal of a cause of action if
it was not “commenced within the time limited by law”). “The ‘affirmative matter’ asserted by
the defendant must be apparent on the face of the complaint or supported by affidavits or certain
other evidentiary materials.” Epstein v. Chicago Board of Education, 178 Ill. 2d 370, 383 (1997)
(citing Kedzie & 103rd Currency Exchange, Inc. v. Hodge, 156 Ill. 2d 112, 116 (1993)).
¶ 18 “A motion for involuntary dismissal under section 2-619 admits all well-pleaded facts and
reasonable inferences therefrom.” Snyder v. Heidelberger, 2011 IL 111052, ¶ 8. The motion
should be granted only if the plaintiff can prove no set of facts that would support a cause of action.
Id. When ruling on a section 2-619 motion to dismiss, a court must interpret all pleadings and
supporting documents in the light most favorable to the nonmoving party. Id. Finally, this court
reviews the judgment, not the reasoning, of the trial court, and we may affirm on any grounds in
the record, regardless of whether the trial court relied on those grounds or whether the trial court’s
reasoning was correct. Vulpitta v. Walsh Construction Co., 2016 IL App (1st) 152203, ¶ 22 (citing
Leonardi v. Loyola University of Chicago, 168 Ill. 2d 83, 97 (1995)). We review de novo the
dismissal of a cause of action under section 2-619. Id.
¶ 19 Section 13-214.3(b) of the Code sets forth the statute of limitations for legal malpractice
actions. That section states in part as follows:
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“An action for damages based on tort, contract, or otherwise
*** against an attorney arising out of an act or omission in the
performance of professional services *** must be commenced
within 2 years from the time the person bringing the action knew or
reasonably should have known of the injury.” 735 ILCS 5/13-
214.3(b) (West 2020).
In addition, with certain exceptions not relevant here, section 13-214.3(c) sets forth the period of
repose for legal malpractice actions and provides in relevant part that “an action described in
subsection (b) may not be commenced in any event more than 6 years after the date on which the
act or omission occurred.” 735 ILCS 5/13-214.3(c) (West 2020).
¶ 20 Plaintiff’s complaint alleged, in essence, tortious conduct on the part of defendants
regarding their provision of legal services and that he was a “known” (i.e., intended) third-party
beneficiary of those services. Section 13-214.3 of the Code thus applies. See 735 ILCS 5/13-
214.3(b) (West 2020) (providing that actions against attorneys arising out of an act or omission in
the performance of “professional services” must be commenced within two years from the time
the plaintiff knew or reasonably should have known of the injury); see also 800 South Wells
Commercial, LLC v. Horwood Marcus & Berk Chartered, 2013 IL App (1st) 123660, ¶ 13
(holding that section 13-214.3(b) applies to “all claims against an attorney arising out of acts or
omissions in the performance of professional services, and not just legal malpractice claims or
claims brought against an attorney by a client”). The statute of limitations described in section
13-214.3(b) incorporates the “discovery rule,” which “serves to toll the limitations period to the
time when the plaintiff knows or reasonably should know of his or her injury.” Snyder, 2011 IL
111052, ¶ 10.
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¶ 21 The statute of limitations begins to run when a plaintiff “ ‘knows or reasonably should
know of his injury and also knows or reasonably should know that it was wrongfully caused.’ ”
Morris v. Margulis, 197 Ill. 2d 28, 36 (2001) (quoting Witherell v. Weimer, 85 Ill. 2d 146, 156
(1981)). Actual knowledge of the alleged malpractice, however, is not a necessary condition to
trigger the running of the statute of limitations; instead, the statute begins to run when the allegedly
injured party has only a “ ‘reasonable belief that the injury was caused by wrongful conduct,’ ”
which then obliges the injured party to inquire further on that issue. Carlson v. Fish, 2015 IL App
(1st) 140526, ¶ 23 (quoting Dancor International, Ltd. v. Friedman, Goldberg & Mintz, 288 Ill.
App. 3d 666, 673 (1997)). In addition, knowledge that an injury has been wrongfully caused does
not mean knowledge of a specific defendant’s negligent conduct or even knowledge of the
existence of a cause of action. Id. A person knows or reasonably should know an injury is
wrongfully caused when he possesses “sufficient information concerning an injury and its cause
to put a reasonable person on inquiry to determine whether actionable conduct is involved.” Id.
At that point, the burden is then upon the injured party to inquire further to determine whether
there is a cause of action. Id.
¶ 22 By contrast, a statute of repose, such as in section 13-214.3(c), gives effect to a policy
different from that advanced by a period of limitations: it is intended to “terminate the possibility
of liability after a defined period of time, regardless of a potential plaintiff’s lack of knowledge of
his cause of action.” Maniscalco v. Porte Brown, LLC, 2018 IL App (1st) 180716, ¶ 18 (quoting
Mega v. Holy Cross Hospital, 111 Ill. 2d 416, 422 (1986)). The purpose of a statute of repose,
therefore, curtails the potential “ ‘long tail’ ” of liability that could result from the discovery rule.
Snyder, 2011 IL 111052, ¶ 10. A statute of repose is not tied to the existence of any injury; rather,
it simply extinguishes liability after a fixed period of time. Id. In essence, the statute of repose
begins running when a specific event occurs, “regardless of whether an action has accrued.” Id.
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(citing Ferguson v. McKenzie, 202 Ill. 2d 304, 311 (2001)). The period of repose in a legal
malpractice case begins to run “on the last date on which the attorney performs the work involved
in the alleged negligence.” Id. ¶ 18.
¶ 23 In this case, plaintiff filed his pro se complaint on March 26, 2020, but this complaint (as
well as the amended complaint) alleged tortious actions on the part of defendants—namely, the
preparation of multiple PPMs and the Rescission Offer Agreement containing numerous material
misstatements of fact—that took place from around April 2012 (when Nasatir obtained control of
Southern Cross) until March 15, 2014 (when Southern Cross first extended its rescission offer).
In addition, plaintiff alleged that he became aware of defendants’ alleged wrongful acts when the
SEC filed its complaint against Southern Cross, Nasatir, and Madenberg on December 21, 2015.
Finally, plaintiff’s affidavit in his response to defendants’ motion to dismiss freely admits that he
became aware of the SEC complaint “a couple weeks after” it was made public but that he was
“stricken with disbelief” that he had been “completely defrauded.” On these facts, the filing date
of plaintiff’s complaint (March 26, 2020) was well beyond the two-year statute of limitations
prescribed in section 13-214.3(b). This is true even if we assume that plaintiff became aware of a
potential cause of action around January 4, 2016, or “a couple weeks after” the SEC filed its
complaint on December 21, 2015.
¶ 24 Although plaintiff argues that his complaint is not time-barred because he did not discover
that he had a potential claim against defendants until he conferred with counsel in February 2020,
that is not the standard. When a plaintiff knows or reasonably should know of a wrongfully caused
injury, the statute of limitations begins to run. See Morris, 197 Ill. 2d at 36. A plaintiff need not
have knowledge of a specific defendant’s negligent conduct or even the existence of a cause of
action. Id. The facts here indicate that plaintiff had sufficient information concerning an injury
and its cause to put a reasonable person on inquiry to determine whether actionable conduct was
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involved. See id. Plaintiff then had the burden to inquire further to determine whether there was
a viable claim (see id.), but he did not do so until several years had passed, rendering any potential
claim time-barred. The trial court therefore properly dismissed this claim.
¶ 25 In addition, plaintiff’s claims are time-barred under the statute of repose. Plaintiff’s
complaint alleges that defendants drafted various documents, including a revised PPM and
Rescission Offer Agreement, and plaintiff alleged the rescission offer took place from March 15,
2014 through April 15, 2014. Impliedly, defendants would have provided those documents at the
very latest when the rescission offer began, so the statute of repose would therefore have begun on
March 15, 2014, the latest date that defendants would have issued those documents. See Trogi v.
Diabri & Vicari, P.C., 362 Ill. App. 3d 93, 96-97 (2005) (holding that the period of repose began
to run from the date when the defendant “last performed the work involved in the alleged
negligence and sent the final work product,” an improperly recorded deed, to the plaintiff) (citing
Fricka v. Bauer, 309 Ill. App. 3d 82, 86-87 (1999)). Plaintiff’s complaint, however, was filed on
March 26, 2020, which was after the six-year statute of repose had run.
¶ 26 Plaintiff’s assertion that he “completed” the rescission offer on March 27, 2014, is
immaterial because, again, March 15, 2014, was the last date on which defendants performed the
work involved in the alleged negligence. See Snyder, 2011 IL 111052, ¶ 18; Trogi, 362 Ill. App.
3d at 96-97. On this additional basis, we can affirm the trial court’s granting of defendants’ motion
to dismiss. Although this was not the basis of the trial court’s granting of defendants’ motion, we
may nonetheless affirm the judgment of the trial court on any grounds in the record, regardless of
whether the court relied on those grounds or whether its reasoning was correct. See Vulpitta, 2016
IL App (1st) 152203, ¶ 22 (citing Leonardi, 168 Ill. 2d at 97).
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¶ 27 Nonetheless, plaintiff cites multiple cases in support of his contention that the statute of
limitations should have been tolled despite his concession that he became aware of a potential
claim no later than January 4, 2016. Plaintiff’s reliance upon those cases, however, is misplaced.
¶ 28 In Mitsias v. I-Flow Corp., 2011 IL App (1st) 101126, the plaintiff was aware that her
injury might have been wrongfully caused by one source but was “unaware that it could have been
caused by another source and, in fact, could not be aware of that source because the causal link
was as yet unknown to science.” (Emphasis added.) Id. ¶ 19. The trial court granted the
defendants’ motions to dismiss the plaintiff’s complaint as untimely, and we reversed. Id. ¶¶ 14,
57-58. We held that there was “no question that [the] plaintiff could not have known of any
potential *** cause of action against the pain pump manufacturers while the causal link between
her injury and the pain pump used upon her was not scientifically discoverable.” Id. ¶ 29.
¶ 29 In Young v. McKiegue, 303 Ill. App. 3d 380 (1999), plaintiff filed a complaint for wrongful
death against various defendants alleging malpractice in failing to diagnose and properly treat the
decedent’s cardiac condition. Id. at 385. On appeal from the trial court’s granting of the
defendants’ motions to dismiss, we held that the statute of limitations is not triggered “during that
period in which the party is attempting to discover whether her injury is wrongfully caused.” Id.
at 390. The Young court further held that the statute of limitations was tolled until the plaintiff
received the first of two expert reports, which stated that the physicians caring for the decedent
deviated from the standard of care. Id. at 389. At that point, she “knew or reasonably should have
known *** that her husband’s death was wrongfully caused” and was obligated to “investigate
further to determine whether actionable conduct was involved.” Id.
¶ 30 Here, plaintiff’s injury was not scientifically undiscoverable. In addition, plaintiff freely
conceded that he was no longer attempting to discover whether his injury was wrongfully caused:
he knew of his injury when the SEC filed its complaint in December 2015 (or at the latest, a “couple
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[of] weeks” thereafter). Mitsias and Young are therefore distinguishable. Plaintiff’s admission in
his affidavits further distinguishes Jackson Jordan, Inc. v. Leydig, Voit & Mayer, 158 Ill. 2d 240
(1994), and Racquet v. Grant, 318 Ill. App. 3d 831, 836 (2000). See Jackson Jordan, 158 Ill. 2d
at 250 (noting that there were “several points in time” when the plaintiff may have had sufficient
information to conclude that its attorneys were negligent); Racquet, 318 Ill. App. 3d at 836
(holding that there was a factual issue precluding summary judgment as to when the plaintiffs
“actually knew facts that would put them on notice that they were injured and that the injury was
wrongfully caused”).
¶ 31 Plaintiff further argues that equitable estoppel should have tolled the running of the statute
of limitations. Defendants respond that this issue is forfeited.
¶ 32 To preserve an issue for review, “[b]oth a trial objection and a written post-trial motion
raising the issue are required for alleged errors that could have been raised during trial.”
(Alteration and emphases in the original.) Batson v. Oak Tree, Ltd., 2013 IL App (1st)
123071, ¶ 42 (quoting People v. Enoch, 122 Ill. 2d 176, 186 (1988)). “A trial judge should have
an opportunity to appraise the errors which are asserted to have taken place. It is unfair to charge
him with errors in a reviewing court without having brought them to his attention so that a new
trial could have been granted if he found it advisable.” Perez v. Baltimore & Ohio R.R. Co., 24
Ill.App.2d 204, 210 (1960). Here, however, the trial court was denied any opportunity to consider
plaintiff’s contention that he should be allowed the opportunity to amend his complaint to avoid
dismissal under the statutes of limitation or repose. Accordingly, we reject plaintiff’s claim of
error on this point, because he failed to preserve this issue for review.
¶ 33 Moreover, forfeiture aside, plaintiff’s claim is meritless. Equitable tolling of a statute of
limitations “may” be appropriate if (1) the defendant has actively misled the plaintiff, (2) the
plaintiff has been prevented from asserting his rights in some extraordinary way (i.e., due to
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extraordinary barriers), or (3) the plaintiff has mistakenly asserted his or her rights in the wrong
forum. Clay v. Kuhl, 189 Ill. 2d 603, 614 (2000). Extraordinary barriers include the following: a
legal disability, an irredeemable lack of information, or “situations where the plaintiff could not
learn the identity of proper defendants through the exercise of due diligence.” Thede v. Kapsas,
386 Ill. App. 3d 396, 403 (2008). Plaintiff here argues he was prevented from asserting his rights
because he could not learn the identity of proper defendants through the exercise of due diligence.
We disagree. Plaintiff admitted that he knew of the SEC’s complaint in December 2015 (or at the
latest, a “couple weeks” thereafter), but he nonetheless made no effort to investigate his claim until
well after the statute of limitations had run, perhaps because he was “stricken with disbelief” that
he had been “completely” defrauded. Although that reaction is understandable, it is not a basis for
applying a doctrine that is “rarely” applied. See American Family Mutual Insurance Co. v.
Plunkett, 2014 IL App (1st) 131631, ¶ 33.
¶ 34 Finally, plaintiff contends that the trial court erred in denying him the opportunity to further
amend his complaint pursuant to section 2-616 of the Code (735 ILCS 5/2-616 (West 2020)).
Plaintiff argues that, had the court allowed him leave to amend, he would have provided a second
amended complaint that “would have more readily articulated why the statute of limitations did
not begin to run *** until February 2020.” No copy of the proposed second amended complaint
is in the record. Defendants respond that this claim is also forfeited for failure to raise it before
the trial court, plaintiff’s argument is undeveloped, and it does not cite relevant authority. In reply,
plaintiff does not directly address defendants’ claim that he did not seek leave to amend below.
¶ 35 Besides the fact that the record on appeal contains no copy of a motion for leave to amend
(including a proposed second amended complaint), plaintiff has failed to provide either a report of
proceedings or an acceptable substitute for the hearing on defendants’ combined motion. Supreme
Court Rules 321 and 324 require an appellant to provide a complete record on appeal, including a
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certified copy of the report of proceedings. See Ill. S. Ct. R. 321 (eff. Feb. 1, 1994); Ill. S. Ct. R.
324 (eff. July 1, 2017). If a verbatim transcript is unavailable, the appellant may file an acceptable
substitute, such as a bystander’s report or an agreed statement of facts, as provided in Rule 323.
See Ill. S. Ct. R. 323 (eff. July 1, 2017). The burden of providing a sufficient record on appeal
rests with the appellant (here, plaintiff). Foutch v. O’Bryant, 99 Ill. 2d 389, 391-92 (1984). In the
absence of such a record, we must presume the trial court acted in conformity with the law and
with a sufficient factual basis for its findings. Id. at 392. Furthermore, any doubts arising from
an incomplete record will be resolved against the appellant. Id.
¶ 36 Here, there is nothing in the common law record (nor even in the statement of facts in
plaintiff’s brief) to indicate plaintiff filed a motion to reconsider addressing leave to amend or that
such a motion had been ruled upon. In addition, there is no transcript of the hearing on defendants’
motion to dismiss. Without this record, plaintiff’s claim that the court improperly denied him the
opportunity to further amend his complaint—and what precisely his proposed second amended
complaint would contain—is merely speculative. In the absence of a transcript of the hearing and
a proposed second amended complaint, we cannot determine whether the trial court erred. We
must therefore presume the court acted in conformity with the law and with a sufficient factual
basis for its findings. See id.; Illinois Founders Insurance Co. v. Williams, 2015 IL App (1st)
122481, ¶ 56 (“We cannot divine the trial court’s reasoning in denying defendant’s motion and
cannot determine whether that decision constituted an abuse of discretion.”); see also People v.
Majer, 131 Ill. App. 3d 80, 84 (1985) (holding that, when the record is incomplete, a reviewing
court must indulge “every reasonable presumption” in favor of the judgment that is appealed,
“including that the trial court ruled or acted correctly”). On this basis alone, we may affirm the
judgment of the trial court.
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¶ 37 Moreover, as with his equitable tolling argument, his claim fails notwithstanding forfeiture.
Among the factors a trial court should consider in determining whether to allow an amendment to
the pleadings pursuant to section 2-616(a) of the Code (735 ILCS 5/2-616(a) (West 2020)) is
whether “the proposed amendment would cure the defective pleading.” Loyola Academy v. S & S
Roof Maintenance, Inc., 146 Ill. 2d 263, 273 (1992). As discussed, plaintiff clearly admitted in
his pleadings that he was aware of defendants’ alleged wrongful acts when the SEC filed its
complaint on December 21, 2015, and even taking as true that plaintiff actually became aware of
the SEC complaint “a couple weeks after” it was made public (sometime around January 4, 2015),
his pro se complaint was filed on March 26, 2020, which was far outside of the two-year statute
of limitations. In addition, defendants’ work product was provided at the latest on March 15, 2014,
which would then additionally bar his complaint under the statute of repose. Plaintiff has not
indicated how an amendment could avoid those facts, both of which fatally undermine his
arguments. Plaintiff’s final claim of error is therefore without merit.
¶ 38 CONCLUSION
¶ 39 The trial court did not err in granting defendant’s motion to dismiss due to the running of
the statute of limitations. Accordingly, we affirm the judgment of the circuit court.
¶ 40 Affirmed.