2016 IL App (1st) 141931

No. 1-14-1931 

Fifth Division

March 11, 2016 

______________________________________________________________________________ 

IN THE

APPELLATE COURT OF ILLINOIS

FIRST DISTRICT

______________________________________________________________________________ 

)

MARK J. SCHACHT, M.D., and PETER ) 

VASELOPULOS, M.D., ) 

 ) 

Plaintiffs-Appellants, ) 

 ) 

v. ) 

 ) 

LEON G. LOME, M.D., ) 

 ) 

Defendant-Appellee. ) 

)

Appeal from the Circuit Court 

of Cook County. 

No. 13 L 009061 

The Honorable 

James N. O’Hara, 

Judge Presiding. 

______________________________________________________________________________

 JUSTICE GORDON delivered the judgment of the court, with opinion. 

 Presiding Justice Reyes and Justice Lampkin concurred in the judgment and opinion.

OPINION

¶ 1 The instant appeal arises from a dispute between plaintiffs and defendant over the 

dissolution of a corporate medical physician practice. Plaintiffs, Mark Schacht, M.D., and 

Peter Vaselopulos, M.D., filed a complaint alleging fraud against defendant Leon Lome, 

M.D., alleging that defendant made fraudulent representations concerning the distribution of 

assets while they were winding up a dissolved corporation. The trial court dismissed their 

complaint pursuant to section 2-619(a)(3) of the Code of Civil Procedure (Code) (735 ILCS 

5/2-619(a)(3) (West 2012)), finding that there had been another pending action for the same 
No. 1-14-1931 

2 

cause between the parties. Plaintiffs appeal, arguing both: (1) that the trial court should have 

permitted them an extension of time to file a response to the motion to dismiss and (2) that 

the trial court should not have dismissed the complaint. For the reasons that follow, we 

affirm.

¶ 2 BACKGROUND

¶ 3 I. Dissolution and Windup 

¶ 4 Plaintiffs and defendant are all individuals who were shareholders in Leon G. Lome, 

M.D., S.C. (the corporation), a medical service corporation that provided medical care and 

treatment services pursuant to the Medical Corporation Act (805 ILCS 15/1 et seq. (West 

2012)). Defendant was the designated president of the corporation and plaintiff Schacht was 

the designated secretary of the corporation. 

¶ 5 Plaintiffs sought to dissolve the corporation and on July 7, 2010, defendant filed a 

complaint in the circuit court of Cook County in which he sought to “void Plaintiffs[’] 

actions in dissolving the Corporation and enjoin Plaintiffs from taking any further action ***

or conducting any further business in the name of the Corporation.” On July 9, 2010, the 

circuit court “denied Defendant’s request for injunctive relief,” a decision affirmed on 

appeal.1

 

¶ 6 On July 21, 2010, plaintiffs filed articles of dissolution for the corporation with the 

Illinois Secretary of State, which were signed by plaintiffs but did not include the signature 

of defendant. The articles of dissolution stated that the dissolution was authorized by a 

resolution adopted by two-thirds of the shareholders; attached to the articles of dissolution 

was a resolution, dated July 16, 2010, and signed by plaintiffs but not signed by defendant.

 1 Neither the complaint nor the appellate decision is included in the record on appeal. The descriptions of 

the documents are taken from plaintiffs’ complaint in the instant case, and defendant does not dispute their accuracy.
No. 1-14-1931 

3 

The resolution apparently ratified an earlier “resolution which passed unanimously on June 

24, 2010”; “confirmed” the removal of defendant as an officer and director of the corporation 

effective June 24, 2010; and “confirmed” the dissolution of the corporation effective June 24, 

2010. The resolution further provided that, effective July 21, 2010, the articles of dissolution 

for the corporation would be filed with the Secretary of State; defendant would be terminated 

as an officer and director of the corporation; and “the remaining Officers and Directors shall 

take all necessary steps to wind up the business of the corporation.” 

¶ 7 After the corporation was dissolved by the action of the Secretary of State, both 

defendant and plaintiffs formed new and separate medical service corporations.

¶ 8 During 2011, Schacht presented a number of checks to plaintiffs and defendant from the 

corporation’s operating account. Specifically, in January 2011, Schacht presented each a 

check for $25,000; in February 2011, Schacht presented each a check for $10,000; and in 

April 2011, Schacht presented each a check for $7,372.13. On May 29, 2011, defendant sent 

an e-mail to Schacht stating that “there is now $39,000 in the [corporation’s] account, I 

would agree to a total distribution of $30,000 at this time leaving $9000.00 in the account.”

On June 16, 2011, Schacht presented checks of $10,000 each to plaintiffs and defendant. 

¶ 9 On June 26, 2011, defendant sent an e-mail to Schacht asking whether Schacht and 

plaintiff Vaselopulos had “reviewed and signed the agreement for the distribution of the 

personal assets of [the corporation] that the three of us have all agreed to.” The agreement 

referenced by the e-mail was drafted by defendant’s attorney and was ultimately signed by all 

the parties on June 28, 2011. The agreement provided: 

“This agreement made this 28 day of June, 2011 by the former shareholders of 

Leon G. Lome M.D., S.C., namely, Leon G. Lome, Peter T. Vaselopulos, and Mark J. 
No. 1-14-1931 

4 

Schacht, for the sole purpose of distributing Leon G. Lome M.D., S.C.’s personal 

property pursuant to its windup. 

The parties agree that based upon their mutual promises, considerations and 

agreements, they shall divide the property of Leon G. Lome M.D., S.C. listed on 

Exhibit 1[2] which is attached hereto and made a part hereof in the manner showed 

thereon. The distribution of property shall occur on or before June 30, 2011, unless 

agreed in writing to any extension.” 

While the agreement stated that it was entered into “for the sole purpose of distributing [the 

corporation’s] personal property pursuant to its windup” and references the “former 

shareholders” of the corporation, neither the agreement nor the e-mail makes any express 

reference to the dissolution. 

¶ 10 II. Dissolution Case 

¶ 11 While the above distributions were ongoing, defendant’s complaint against plaintiffs, in 

which he sought to “void Plaintiffs[’] actions in dissolving the Corporation,” remained 

pending and the parties engaged in motion practice, including plaintiffs’ filing of a combined 

motion to dismiss pursuant to section 2-619.1 of the Code (735 ILCS 5/2-619.1 (West 

2010)), and defendant’s filing of a motion for summary judgment.

3 In plaintiffs’ motion to 

dismiss pursuant to section 2-619 of the Code, “[plaintiffs] argued *** that [defendant’s] 

 2 Exhibit 1 lists the medical equipment and office supplies of the corporation and shows what property went

to each of the parties. 3 As noted, the complaint in that case is not included in the record on appeal and our description of it is 

taken from plaintiffs’ complaint in the instant case. Several relevant motions in that case are, however, included in 

the record on appeal because they were attached to defendant’s motion to dismiss the instant case. Our discussion of 

the facts of the other case are taken either from the complaint and motion to dismiss in the instant case or from those 

motions attached to defendant’s motion to dismiss.
No. 1-14-1931 

5 

claims against them based on their alleged improper dissolution of the Corporation should be 

dismissed because [defendant] ratified the dissolution of the Corporation.”4

¶ 12 On April 3, 2013, plaintiffs filed a “motion to disqualify [defendant’s attorneys], to stay 

further proceedings pending resolution of the motion to disqualify, and for an extension of 

time to reply in support of motion to dismiss.” In that motion, plaintiff claimed that after the 

corporation was dissolved, defendant “negotiated for and received funds from the 

Corporation’s operating account and equipment owned by the Corporation.” However, 

defendant gave what plaintiffs claimed was perjured testimony when he testified in a 

deposition that “he never received any assets of the Corporation during its dissolution.” 

Plaintiffs claimed that because defendant’s law firm assisted defendant in his negotiations, 

his attorneys would likely be called as witnesses against him and therefore must be 

disqualified. 

¶ 13 In support of their motion, plaintiffs pointed to deposition testimony given by defendant 

on November 28, 2012, in which defendant testified that “ ‘I did not receive any money or 

check[s] from the corporation.’ ” Plaintiffs also noted that in his response to their motion to 

dismiss, defendant “argue[d] that he did not receive any benefits from the dissolution of the 

Corporation” and that in his motion for summary judgment, defendant “argue[d] that the 

corporation was never properly dissolved.” Plaintiffs claimed that “[c]ontrary to 

[defendant’s] assertion that he never took any assets of the corporation while it was being 

dissolved, *** [defendant] negotiated for and accepted $43,372.00 in addition to medical 

equipment as his share of the Corporation’s assets,” and pointed to the e-mails, checks, and 

agreement described above as evidence in support. 

 4 This description of the motion to dismiss comes from plaintiffs’ motion to compel, which is later 

described. 
No. 1-14-1931 

6 

¶ 14 On June 12, 2013, the trial court denied plaintiffs’ motion to disqualify defendant’s 

lawyers. 

¶ 15 On July 19, 2013, plaintiffs filed a motion to compel, in which plaintiffs sought to 

compel defendant to testify about conversations he had with his attorney. In their motion, 

plaintiffs claimed that defendant “negotiated for and received $46,372.00 from the 

Corporation’s operating account and equipment owned by the Corporation.” Plaintiffs 

claimed that defendant “perjured himself during his first deposition when he stated under 

oath that he never received any checks from the Corporation after its dissolution” but 

admitted to receiving the money during his second deposition. However, plaintiffs claimed 

that despite the language of the June 2011 agreement providing that the agreement was made 

“ ‘for the sole purpose of distributing Leon G. Lome M.D., S.C.’s personal property pursuant 

to its windup’ ” (emphasis omitted), “[defendant] now disputes why he received the checks 

and other assets of the Corporation and has gone so far as to argue in his pleadings before 

this Court that he received no benefit from the dissolution and that it would be ludicrous to 

suggest otherwise.” Plaintiffs argued that defendant should be compelled to testify about the 

conversations he had with his attorneys concerning the checks and equipment he received.

¶ 16 On August 12, 2013, plaintiffs filed a complaint in the instant case, which will be 

discussed below, and, on October 8, 2013, the trial court denied plaintiffs’ motion to compel. 

¶ 17 On October 28, 2013, plaintiffs filed their reply in support of their combined motion to 

dismiss defendant’s complaint. One of plaintiffs’ arguments was that the complaint should be 

dismissed because defendant ratified the dissolution of the corporation by knowingly 

accepting the benefits of the dissolution. Plaintiffs argued that “[defendant] contend[s] that 

[plaintiffs] improperly dissolved the Corporation and distributed its assets without 
No. 1-14-1931 

7 

[defendant’s] authorization. However, the evidence before this Court establishes that 

[defendant] negotiated for and accepted a share of the Corporation’s assets as part [of] the 

winding up process of the dissolved Corporation. Specifically, the evidence before this Court 

establishes that after the Corporation was dissolved, [defendant] negotiated for and received 

$46,372.00 from the Corporation’s operating account and equipment owned by the 

Corporation. Now after accepting the benefits of the dissolution of the Corporation 

[defendant] request[s] that the dissolution be declared null and void. *** [B]y knowingly 

accepting the benefits of [plaintiffs’] unauthorized dissolution [defendant] ratified *** the 

Corporation’s dissolution and cannot attempt to unwind it now.” In support, plaintiffs pointed 

to the checks, the e-mails, and the agreement set forth above. 

¶ 18 Plaintiffs claimed that “[e]ssentially, [defendant’s] position is that although [defendant] 

admit[s] that the Settlement Agreement was entered into ‘solely’ for the purpose of 

distributing the Corporation’s property pursuant to its ‘windup’, [defendant] believe[s] that 

[he] did not ratify the dissolution of the Corporation because there is no language in the 

Agreement which ‘releases or waives’ [defendant’s] claims against [plaintiffs] and 

[defendant] has not received all of his share of the Corporation’s assets.” However, plaintiffs 

argued that the question of whether defendant received everything he wanted was irrelevant, 

because defendant accepted some benefits of the dissolution and thereby ratified the 

dissolution. 

¶ 19 No further documents concerning the dissolution case appear in the record on appeal, and 

it remains pending. 
No. 1-14-1931 

8 

¶ 20 III. Instant Case

¶ 21 On August 12, 2013, plaintiffs filed a one-count complaint5 against defendant alleging

fraud. After reciting the facts concerning the checks, e-mails, and the June 2011 agreement to 

distribute assets, the complaint alleges that prior to entering into the agreement, defendant 

made misrepresentations to plaintiffs to induce them to sign the agreement and distribute 

money and assets to defendant. Specifically, the complaint alleges that defendant 

“specifically represented to Plaintiffs *** that the sole purpose of the Property Agreement 

was to distribute the personal property of the Corporation pursuant to its wind down and 

dissolution” and that such distributions were being made as a result of the corporation’s 

dissolution and for the purpose of “winding down the Corporation’s business affairs after its 

dissolution.”6 The complaint alleges that, had plaintiffs known that defendant was still 

intending to contest the dissolution of the corporation, they would not have entered into the 

agreement or agreed to a distribution of the corporation’s assets. 

¶ 22 The complaint alleges that as a result of defendant’s fraudulent conduct, plaintiffs were 

entitled to recover “the damages they sustained through the substantial and unnecessary 

expenditure of legal fees they have expended while defending themselves against Defendant 

Lome’s allegations that the Corporation should be reinstated and the dissolution unwound.” 

Plaintiffs additionally sought punitive damages and attorney fees. 

¶ 23 On December 3, 2013, defendant filed a motion to dismiss the complaint pursuant to 

section 2-619(a)(3) of the Code, and filed a “corrected” motion on December 10, 2013. 

 5 Plaintiffs filed an “ex parte motion to file [an] amended complaint” on September 12, 2013, that added a 

second count, but the record does not indicate that leave was granted to file the amended complaint and the 

dismissal at issue in the instant appeal is based on the original complaint. 6 We again note that the language of the agreement does not contain any express reference to the 

dissolution and does not state that the agreement would result in the termination of any claims concerning the 

propriety of the dissolution.
No. 1-14-1931 

9 

Defendant claimed that plaintiffs’ allegations were identical to arguments that they made in 

the earlier lawsuit filed by defendant and referenced in plaintiffs’ complaint, which was 

pending in the circuit court. Specifically, defendant claimed that plaintiffs made the same 

arguments (1) in support of their motion to disqualify defendant’s law firm; (2) in support of 

a motion to compel; and (3) in a reply brief in support of a motion to dismiss.7

 Accordingly, 

since there was another action pending between the same parties for the same cause, 

defendant argued that the complaint should be dismissed. 

¶ 24 On January 24, 2014, the trial court entered an order setting a briefing schedule on 

defendant’s motion to dismiss. The briefing schedule provided that plaintiffs’ response to the 

motion was due by February 21, 2014. On February 21, 2014, plaintiffs filed a motion for 

extension of time, which they set for hearing on March 4, 2014; the same day, they filed an 

amended notice of motion, setting the motion for hearing on March 6, 2014. The motion 

requested an additional 14 days to respond to the motion to dismiss, claiming that “additional 

time to conduct further investigation and research regarding the legal and factual basis of 

Defendant’s Motion” was necessary and that plaintiffs’ counsel had been involved with 

several other matters over the past 30 days that had required his attention. On March 4, 2014, 

the trial court entered a case management order striking the case from the motion call. On 

March 6, 2014, the trial court entered another case management order again striking the case 

from the motion call. On March 13, 2014, plaintiffs filed another amended notice of motion, 

setting the previously served motion for extension of time for hearing on March 20, 2014. On 

March 20, 2014, the trial court entered a case management order stating that ruling on 

defendant’s motion to dismiss would be issued on May 19, 2014. 

 7 All of these documents are described in detail in the previous section of our background.
No. 1-14-1931 

10 

¶ 25 On May 19, 2014, the trial court granted defendant’s motion and dismissed the complaint 

“due to a prior pending action between the parties in chancery.” This appeal follows. 

¶ 26 ANALYSIS

¶ 27 On appeal, plaintiffs argue both: (1) that the trial court should have permitted them an 

extension of time to file a response to the motion to dismiss and (2) that the trial court should 

not have dismissed the complaint. We consider each argument in turn. 

¶ 28 I. Extension of Time 

¶ 29 Plaintiffs first argue that the trial court should have granted their motion for extension of 

time to file their response to defendant’s motion to dismiss. Illinois Supreme Court Rule 183 

(eff. Feb. 16, 2011) provides that “[t]he court, for good cause shown on motion after notice to 

the opposite party, may extend the time for filing any pleading or the doing of any act which 

is required by the rules to be done within a limited period, either before or after the expiration 

of the time.” The determination of what constitutes “good cause” under Rule 183 is factdependent and rests within the sound discretion of the trial court. Vision Point of Sale, Inc. v. 

Haas, 226 Ill. 2d 334, 353 (2007). “Absent an abuse of discretion, the decision of the circuit 

court on this issue will not be disturbed.” Vision Point of Sale, 226 Ill. 2d at 354. A trial court 

abuses its discretion “when no reasonable person would take the view adopted by the court.” 

Armagan v. Pesha, 2014 IL App (1st) 121840, ¶ 24 (citing In re Marriage of Carpenter, 286 

Ill. App. 3d 969, 974 (1997)). 

¶ 30 As noted, in the case at bar, on January 24, 2014, the trial court entered an order setting a 

briefing schedule on defendant’s motion to dismiss, which provided that plaintiffs’ response 

to the motion was due by February 21, 2014. On February 21, 2014, plaintiffs filed a motion 

for extension of time, which they set for hearing on March 4, 2014; the same day, they filed 
No. 1-14-1931 

11 

an amended notice of motion, setting the motion for hearing on March 6, 2014. The motion 

requested an additional 14 days to respond to the motion to dismiss, claiming that “additional 

time to conduct further investigation and research regarding the legal and factual basis of 

Defendant’s Motion” was necessary and that plaintiffs’ counsel had been involved with 

several other matters over the past 30 days that had required his attention. On March 4, 2014, 

the trial court entered a case management order striking the case from the motion call. On

March 6, 2014, the trial court entered another case management order again striking the case 

from the motion call.8 On March 13, 2014, plaintiffs filed another amended notice of motion, 

setting the previously served motion for extension of time for hearing on March 20, 2014. On 

March 20, 2014, the trial court entered a case management order stating that ruling on 

defendant’s motion to dismiss would be issued on May 19, 2014. We cannot find that the 

trial court abused its discretion in choosing to do so. 

¶ 31 Plaintiffs argue that a trial court should not refuse a continuance when the ends of justice 

clearly require it, and point out that defendant’s motion to dismiss was over 200 pages in 

length when the exhibits were included and plaintiffs had not sought any previous extensions 

of time and there was no showing that defendant would be prejudiced by an extension. 

Plaintiffs are correct that our courts of review have stated that a trial court must exercise its 

discretion judiciously and “the court should not refuse a continuance when the ends of justice 

clearly require it.” Olympic Federal v. Witney Development Co., 113 Ill. App. 3d 981, 988 

(1983). However, we cannot find that this is a case where the ends of justice clearly required 

a continuance. While the motion to dismiss with exhibits was over 200 pages, the motion

portion itself was only slightly over two pages and the exhibits included were all the 

 8 In his appellate brief, defendant claims that plaintiffs did not appear in court on either of these two days, 

resulting in the motion being stricken from the call. In their reply brief, plaintiffs state that defendant’s claim is 

untrue. The record does not indicate the parties present on either of these two dates.
No. 1-14-1931 

12 

documents that had previously been filed by plaintiffs themselves in the other litigation 

concerning the dissolution of the corporation. Specifically, the exhibits consisted of: (1) 

plaintiffs’ complaint in the instant case; (2) plaintiffs’ motion to disqualify defendant’s 

attorney in the other litigation and the trial court order denying it; (3) plaintiffs’ motion to 

compel defendant to testify as to his conversations with his attorney in the other litigation

and the trial court order denying it; and (4) plaintiffs’ reply in support of their motion to 

strike and dismiss defendant’s complaint in the other litigation. We also note that plaintiffs 

did not cite the length of the motion as a basis for finding good cause to grant their extension 

of time to the trial court. Furthermore, it is plaintiffs’ burden as the party seeking the 

extension of time to establish good cause under Rule 183 (Vision Point of Sale, 226 Ill. 2d at 

353), and the absence of prejudice to the opposing party is irrelevant to that determination

(Vision Point of Sale, 226 Ill. 2d at 344 (“the ‘mere absence of inconvenience or prejudice to 

the opposing party is not sufficient to establish good cause under Rule 183’ ” (quoting Bright 

v. Dicke, 166 Ill. 2d 204, 209 (1995))). Plaintiffs also fail to explain what they were going to 

include in their response that could have made a difference in the trial court’s ruling.

Accordingly, we cannot find that the trial court abused its discretion in considering 

defendant’s motion to dismiss without granting plaintiffs’ motion for extension of time to file 

a response. 

¶ 32 II. Motion to Dismiss

¶ 33 Plaintiffs also argue that the trial court erred in dismissing their complaint pursuant to 

section 2-619(a)(3) of the Code, which provides for dismissal of a complaint where “there is 

another action pending between the same parties for the same cause.” 735 ILCS 5/2-

619(a)(3) (West 2012). As an initial matter, we must discuss the applicable standard of 
No. 1-14-1931 

13 

review. Plaintiffs claim that we should review the trial court’s decision de novo, while 

defendant asks us to review it for an abuse of discretion. Generally, section 2-619 motions 

present a question of law, which we review de novo. DeLuna v. Burciaga, 223 Ill. 2d 49, 59 

(2006); Solaia Technology, LLC v. Specialty Publishing Co., 221 Ill. 2d 558, 579 (2006); 

Morr-Fitz, Inc. v. Blagojevich, 231 Ill. 2d 474, 488 (2008). De novo consideration means we 

perform the same analysis that a trial court would perform. Khan v. BDO Seidman, LLP, 408 

Ill. App. 3d 564, 578 (2011). Since the motion does not require the trial court to weigh facts 

or determine credibility, de novo review is appropriate. Hapag-Lloyd (America), Inc. v. 

Home Insurance Co., 312 Ill. App. 3d 1087, 1090 (2000); Miller v. Thomas, 275 Ill. App. 3d 

779, 786 (1995). 

¶ 34 However, section 2-619(a)(3) “is a procedural device designed to avoid duplicative 

litigation.” Whittmanhart, Inc. v. CA, Inc., 402 Ill. App. 3d 848, 852 (2010). Accordingly, 

“even when the threshold requirements—‘same parties’ and ‘same cause’—are met, section 

2-619(a)(3) relief is not mandatory.” Crain v. Lucent Technologies, Inc., 317 Ill. App. 3d 

486, 495 (2000). Instead, the trial court has the discretion to determine whether both actions 

should proceed through the weighing of several factors. Zurich Insurance Co. v. Baxter 

International, Inc., 173 Ill. 2d 235, 243-44 (1996). Thus, due to this weighing of factors, a 

trial court’s decision to dismiss pursuant to section 2-619(a)(3) will not be overturned absent 

an abuse of that discretion. Hapag-Lloyd (America), 312 Ill. App. 3d at 1091; Continental 

Casualty Co. v. Radio Materials Corp., 366 Ill. App. 3d 345, 347 (2006). See also Kellerman 

v. MCI Telecommunications Corp., 112 Ill. 2d 428, 447 (1986) (“[E]ven when the ‘same 

cause’ and ‘same parties’ requirements are met, section 2-619(a)(3) does not mandate 

automatic dismissal. Rather, the decision to grant or deny defendant’s section 2-619(a)(3) 
No. 1-14-1931 

14 

motion is discretionary with the trial court.”). An abuse of discretion occurs when the ruling 

is “arbitrary, fanciful, or unreasonable, or when no reasonable person would take the same 

view.” Favia v. Ford Motor Co., 381 Ill. App. 3d 809, 815 (2008). 

¶ 35 In the case at bar, the parties do not discuss the factors a trial court should consider in 

determining whether dismissal is appropriate under section 2-619(3) or the trial court’s 

application of these factors. Instead, their arguments solely focus on whether one of the 

threshold requirements has been satisfied. As noted, section 2-619(a)(3) provides for 

dismissal of a complaint where “there is another action pending between the same parties for 

the same cause.” 735 ILCS 5/2-619(a)(3) (West 2012). The parties do not dispute that there 

is another lawsuit pending between the same parties, namely, the other lawsuit concerning 

the dissolution of the corporation. The only dispute is whether the other action is “for the 

same cause” as required for dismissal under section 2-619(a)(3). Thus, if we determine that 

the trial court properly found that there are two actions pending for the same cause, we will 

affirm the trial court’s dismissal of plaintiffs’ complaint. We note that the record on appeal 

does not provide any insight into the trial court’s reasoning behind its dismissal. However, as 

the appellants, plaintiffs bear the burden of providing this court with a complete record on 

appeal and in the absence of evidence in the record showing otherwise, we presume that the 

trial court acted in conformity with the law. Foutch v. O’Bryant, 99 Ill. 2d 389, 391-92 

(1984) (“[A]n appellant has the burden to present a sufficiently complete record of the 

proceedings at trial to support a claim of error, and in the absence of such a record on appeal, 

it will be presumed that the order entered by the trial court was in conformity with law and 

had a sufficient factual basis.”).
No. 1-14-1931 

15 

¶ 36 Lawsuits present the same cause when “the relief requested is based on substantially the 

same set of facts.” Whittmanhart, Inc. v. CA, Inc., 402 Ill. App. 3d 848, 853 (2010). The 

actions need not be identical; “the crucial inquiry is whether both arise out of the same 

transaction or occurrence, not whether the legal theory, issues, burden of proof, or relief 

sought materially differs between the two actions.” Jackson v. Callan Publishing, Inc., 356 

Ill. App. 3d 326, 337 (2005). “In other words, the focus of the inquiry is on whether the relief 

requested relies on substantially the same facts.” Jackson, 356 Ill. App. 3d at 337. 

¶ 37 In the case at bar, the instant case and the other lawsuit are inextricably intertwined. We 

note that the complaint in the other lawsuit is not contained in the record on appeal. Instead, 

the record only contains the description of that complaint as alleged in plaintiffs’ complaint 

in the instant lawsuit, as well as the motions in that case that were attached to defendant’s 

motion to dismiss in the instant case. However, defendant does not dispute the accuracy of 

plaintiffs’ description of the complaint and from that description, as well as documents 

included in the record on appeal, it is apparent that the two lawsuits arise from defendant’s 

challenge to the dissolution of the corporation.9 According to plaintiffs, in the other lawsuit, 

defendant sought to “void Plaintiffs[’] actions in dissolving the Corporation and enjoin 

Plaintiffs from taking any further action for or conducting any further business in the name of 

the Corporation.” In response to defendant’s complaint in that lawsuit, plaintiffs filed, inter 

alia, a motion to disqualify defendant’s law firm, a motion to compel defendant to testify 

about the content of conversations with his attorney, and a motion to dismiss, all of which 

focused on defendant’s actions in accepting money and assets from the corporation after its 

 9 To the extent that any incompleteness of the record affects our analysis, any doubts will be resolved 

against plaintiffs who, as the appellants, had the burden of providing a sufficient record to support their claims. 

Foutch, 99 Ill. 2d at 392 (“Any doubts which may arise from the incompleteness of the record will be resolved 

against the appellant.”). 
No. 1-14-1931 

16 

dissolution. Similarly, in the case at bar, the complaint focuses on defendant’s conduct in 

agreeing to distribute the corporation’s assets and in accepting money from the corporation 

after its dissolution, alleging that defendant knew that he would be challenging the 

dissolution at the time of his actions. Moreover, the primary relief sought by plaintiffs in the 

instant case is recovery of “the damages they sustained through the substantial and 

unnecessary expenditure of legal fees they have expended while defending themselves 

against Defendant Lome’s allegations that the Corporation should be reinstated and the 

dissolution unwound,” further linking the two cases. We cannot find that the trial court erred 

in finding that the two actions were “for the same cause” for the purposes of section 2-

619(a)(3).

¶ 38 Plaintiffs argue that the two lawsuits “did not concern the identical facts,” and further 

argue that “[t]he only time the allegations in Plaintiffs[’] Complaint were brought before a 

court prior to the filing of this lawsuit was in motion practice.” We do not find these 

arguments persuasive. First, as noted, “the purpose of the two actions need not be identical; 

rather, there need only be a substantial similarity of issues between them.” Overnite 

Transportation Co. v. International Brotherhood of Teamsters, Chauffeurs, Warehousemen 

& Helpers of America, 332 Ill. App. 3d 69, 76 (2002). Although plaintiffs attempt to distance 

the cases from each other by arguing that “[t]he only similarity in the two actions was that 

they both involved disputes regarding the dissolution of a corporation that the parties were 

formerly involved with as members,” this similarity is quite substantial. The two cases 

involve the same action of dissolving the corporation, the same action by defendant of 

entering into an agreement with plaintiffs to distribute the corporation’s assets and accepting 

checks, and the same arguments by plaintiffs as to the impropriety of defendant’s doing so. 
No. 1-14-1931 

17 

¶ 39 Furthermore, the fact that plaintiffs’ arguments were “only *** brought *** in motion 

practice” does not change this result. One of those motions was a motion to dismiss 

defendant’s complaint and one of the primary bases for seeking dismissal was the argument 

that defendant ratified the dissolution by accepting the benefits of the dissolution. The facts 

underlying the two actions are identical. As noted, “the crucial inquiry is whether both

[actions] arise out of the same transaction or occurrence, not whether the legal theory, issues, 

burden of proof, or relief sought materially differs between the two actions.” Jackson, 356 Ill.

App. 3d at 337. Here, we can find no error in the trial court’s conclusion and, accordingly, 

affirm the dismissal of plaintiffs’ complaint.

¶ 40 CONCLUSION

¶ 41 For the reasons set forth above, the trial court did not err in dismissing plaintiffs’ 

complaint pursuant to section 2-619(a)(3) of the Code where there was another action 

between the same parties for the same cause pending in another court.

¶ 42 Affirmed.