2015 IL App (1st) 122481 

 FOURTH DIVISION

April 16, 2015 

No. 1-12-2481 

ILLINOIS FOUNDERS INSURANCE COMPANY, ) 

 ) 

 Plaintiff and Counterdefendant-Appellee, ) Appeal from the 

 ) Circuit Court of 

v. ) Cook County. 

 ) 

DELOISE WILLIAMS, as Administrator of the Estate of ) No. 10 CH 37307 

Felicia Williams, Deceased, and as Guardian and Next ) 

Friend of Dellvonte Gibson, a Minor, ) Honorable 

 ) Leroy K. Martin, Jr., 

Defendant and Counterplaintiff-Appellant, ) Judge Presiding. 

 ) 

(Julius Moore, Defendant.) ) 

JUSTICE ELLIS delivered the judgment of the court, with opinion.*

Justices Howse and Cobbs concurred in the judgment and opinion. 

OPINION

¶ 1 This appeal addresses whether the trial court erred in granting summary judgment in 

favor of plaintiff-counterdefendant Illinois Founders Insurance Co. (Founders) on a counterclaim 

for attorney fees and costs pursuant to section 155 of the Illinois Insurance Code (215 ILCS 

5/155 (West 2010)). Defendant-counterplaintiff Deloise Williams (defendant), on behalf of the 

estate of a decedent in a car accident (Felicia Williams) and the decedent's minor son (Dellvonte 

Gibson), contends that summary judgment was improper because genuine issues of material fact 

existed as to whether Founders acted vexatiously and unreasonably in settling her claims, which 

would justify fees and costs under section 155. Defendant also contends that the trial court 

abused its discretion in denying her leave to file a second amended counterclaim. We conclude 

that the trial court did not err in granting summary judgment because Founders had a bona fide 

 * This case was recently reassigned to Justice Ellis.
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dispute regarding its coverage of defendant's hit-and-run claim and that defendant has provided 

an insufficient record to support her other contentions. We affirm the judgment of the trial court.

¶ 2 I. BACKGROUND

¶ 3 Given the issues presented by this appeal, a thorough development of the facts and 

procedural history of this case is necessary. On July 18, 1997, Felicia Williams and her son, 

Dellvonte Gibson, were involved in a car accident. Williams died. Gibson, who was 19 months 

old at the time of the accident, survived with injuries. Defendant, Gibson's grandmother, was 

appointed as administrator of Williams's estate and as Gibson's guardian. The car that Williams 

was driving belonged to Julius Moore, who participated in the proceedings below but is not a 

party to this appeal. Williams used the car with Moore's permission. Williams was uninsured.

¶ 4 The parties offered two possible scenarios that led to this accident and Williams's death. 

One is that of a single-car accident, in which the car she was driving spiraled out of control, 

possibly due to a blown-out tire and/or faulty brakes. The second is a hit-and-run scenario, in 

which a second vehicle collided with Williams's car, leading to the fatal crash.

¶ 5 Moore was the named insured under a liability insurance policy issued by Founders (the 

Policy). The Policy covered injuries caused by uninsured motorists (such as Williams) as well as 

injuries caused by hit-and-run drivers. Defendant's initial claim to Founders was based on the 

latter—she claimed that the accident resulted from a hit-and-run involving a second, unidentified 

vehicle. 

¶ 6 On August 19, 1999, Founders filed a complaint seeking a declaratory judgment that it 

had "no duties with respect to the accident of July 18, 1997." Founders acknowledged that 

defendant and Moore had made claims under the hit-and-run provision of the Policy but alleged 
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that neither defendant nor Moore had "produced *** competent evidence that there was physical 

contact between their vehicle and that of a hit-and-run vehicle" as defined by the Policy. 

¶ 7 On September 11, 1999, defendant filed a demand for arbitration and, under the heading 

"Type of Claim," checked the box labeled "Hit and Run." On October 5, 1999, Founders moved 

to stay arbitration of the hit-and-run claim because it was contesting coverage under that 

provision. The trial court agreed and stayed the arbitration.

¶ 8 On November 1, 1999, defendant moved to dismiss Founders' declaratory judgment 

complaint, arguing that she was entitled to coverage even if there was no second vehicle 

involved. Even if no hit-and-run accident occurred, she argued, she could bring an "uninsured 

motorist" claim, alleging that Williams was a negligent, uninsured driver. In response, Founders 

emphasized that its declaratory judgment complaint was directed at defendant's "hit-and-run

claims, not uninsured motorist claims," and that to date, defendant had "not presented an 

uninsured motorist claim" alleging that Williams was a negligent driver in a single-car accident. 

(Emphases in original.) 

¶ 9 After continuing the case numerous times, the trial court denied defendant's motion to 

dismiss on January 30, 2001. The record contains no transcripts of the proceedings related to 

defendant's motion to dismiss. The two-page written order reflecting the trial court's judgment 

simply states that defendant's motion "is hereby DENIED." 

¶ 10 Founders' declaratory judgment action first went to trial on June 4, 2004. During the trial, 

the trial court awarded judgment to Founders on a technical default—defendant had never 

answered Founders' complaint for declaratory judgment. Defendant appealed that order, and this 

court reversed and remanded. We held that the trial court erred in concluding that it was 

compelled to enter judgment in Founders' favor on the technical default and remanded for the 
No. 1-12-2481 

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trial court to exercise its discretion on the matter. The mandate from our decision issued to the 

circuit court on October 19, 2006. 

¶ 11 From October 19, 2006 until April 29, 2009, no party took action regarding Founders' 

declaratory judgment suit. On April 29, 2009, defendant moved to dismiss the suit for want of 

prosecution and moved for leave to file a counterclaim. 

¶ 12 The circuit court denied defendant's motion to dismiss Founders' claim for want of 

prosecution. The record does not contain a transcript of the hearing on defendant's motion to 

dismiss for want of prosecution or the trial court's ruling on that motion. Rather than filing an 

answer, defendant again moved to dismiss Founders' complaint, alleging that the complaint was 

time-barred. The circuit court denied this motion to dismiss, finding that defendant, not 

Founders, was obligated to reinstate the case after she had prevailed on appeal. 

¶ 13 The court did, however, grant defendant leave to file a counterclaim seeking attorney fees 

and costs under section 155 for handling defendant's insurance claim in a vexatious and 

unreasonable manner. Founders moved for summary judgment on defendant's section 155 

counterclaim on November 22, 2010. During the pendency of that motion, that counterclaim was 

amended, and Founders renewed its motion for summary judgment as to the amended complaint. 

¶ 14 In count I of her amended counterclaim—the only count at issue on appeal and thus the 

only one we will discuss—defendant alleged that Founders acted vexatiously and unreasonably 

in settling her insurance claim, first, by initiating litigation on the coverage question and

disputing that the accident was the result of a hit-and-run by a second driver, which defendant 

alleged was a delay tactic; second, by failing to negotiate the claims; and third, by refusing to 

arbitrate the claims. Count I did not differentiate with any specificity between defendant's two 

possible claims for coverage, the uninsured-motorist claim versus the hit-and-run claim.
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¶ 15 In its motion for summary judgment, Founders argued that, as a matter of law, it had not 

acted vexatiously and unreasonably as to defendant's hit-and-run claim because the evidence 

Founders had received as a result of its investigation created a bona fide dispute as to whether 

the accident was a single-car collision, as opposed to a hit-and-run accident involving a second 

car. In support of its motion, Founders put forth several pieces of evidence that indicated that, 

contrary to defendant's claim of a hit-and-run collision, the accident resulted from Williams

losing control of the car.

¶ 16 First, Founders attached an affidavit from one of its claims adjusters, which said that 

Moore had told Founders that his car had brake problems that had previously caused him to lose 

control of it. It further said that "[t]he only explanation for the cause of the accident given by 

Julius Moore to Founders was that a tire had blown[,] causing the accident." Second, Founders 

attached police reports recounting the accident, which stated that Williams "lost control of [the] 

vehicle and hit [a] utility pole head on" and likewise recounting that Williams had "experienced a 

blow out, causing [the] vehicle to go out of control." These reports only documented damage to 

the front of the car. 

¶ 17 Third, Founders attached the deposition of Officer Cheryl Williams of the Chicago police 

department, who stated that, when responding to the scene of the accident, she did not see paint 

from another car left on Moore's car. She also stated that the damage was isolated to the front of 

the car, where it appeared to have struck the utility pole. Fourth, Founders attached the 

deposition transcript of Officer Joseph De Leo, who said that one of the car's tires "appeared to 

be blown-out." 

¶ 18 The fifth piece of information submitted by Founders was the only evidence Founders 

claimed to have gathered that did not suggest a single-car collision but, rather, pointed to a hit-
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and-run scenario. This evidence came in the form of a deposition, taken October 1, 2003, from 

James Harris, who said that he came upon the scene of the accident shortly after it occurred. 

Harris said that he spoke to the driver, Ms. Williams, before she died. According to Harris, 

Williams told him that "somebody ran her off the road." 

¶ 19 The record does not contain a copy of defendant's response to Founders' motion for 

summary judgment.

¶ 20 On March 18, 2011, the trial court granted Founders summary judgment as to count I of 

defendant's amended counterclaim. The trial court's written order indicated that it found that 

Founders "had a bona fide case to contest the 'hit and run' claim." 

¶ 21 On August 24, 2010, defendant made a second demand for arbitration. On the demand 

form, under "Type of Claim," defendant again checked the box labeled "Hit and Run," but this 

time also checked the box labeled "Uninsured Motorist." On March 25, 2011, Founders moved 

to stay arbitration as to the hit-and-run claim, because Founders was only disputing coverage as 

to that claim, not the uninsured-motorist claim. The circuit court granted the motion, making it 

clear that its stay was limited to the hit-and-run claim only. Defendant moved to reconsider the 

stay order, at which time Founders' counsel once again emphasized that the declaratory judgment 

action only sought to determine coverage for the hit-and-run claim, not the uninsured-motorist 

claim:

"Under the uninsured motorist coverage of the policy there is [sic] two kinds of 

claims, a hit and run claim; and we contest that. And the other one is a claim that the 

claimant was hurt because of negligence by an uninsured motorist. And I told [Y]our 

Honor and counsel until I'm blue in the face, no, we don't contest his right to arbitrate 

whether the minor was injured by an uninsured motorist." 
No. 1-12-2481 

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¶ 22 To resolve any possible remaining confusion, the trial court clarified that the summary 

judgment it entered as to count I of defendant's amended counterclaim related only to the hitand-run claim, not to the uninsured-motorist claim. The court further stated, "[A]ny declaration 

the Court would make at this juncture deals only with the hit[-]and[-]run and not the [uninsuredmotorist claim]." 

¶ 23 Between April 10, 2012 and April 12, 2012, the trial court conducted a three-day bench 

trial on Founders' declaratory judgment action. On June 1, 2012, the trial court entered judgment 

in favor of defendant with respect to Founders' underlying declaratory judgment suit. The trial 

court's written order stated, "Judgment is entered in favor of defendants and against Founders on 

Founders['] complaint. Stay of arbitration is vacated. This case is dismissed." The record does 

not contain a transcript of the trial or of the judge's ruling. 

¶ 24 On July 2, 2012—one month after final judgment was entered following the bench trial—

defendant filed a motion asking the trial court to reconsider its March 18, 2011 order, granting 

Founders summary judgment as to count I of defendant's amended counterclaim. The motion 

also sought leave to file a second amended counterclaim. In count I of the proposed second 

amended counterclaim, defendant again alleged that Founders acted vexatiously and 

unreasonably in delaying settlement of the uninsured-motorist claim by seeking a declaratory 

judgment that it was not obligated to cover the uninsured-motorist claim and seeking to stay 

arbitration of the uninsured-motorist claim. Count II of the proposed second amended 

counterclaim alleged that, based upon the trial evidence, Founders vexatiously and unreasonably 

denied coverage of the hit-and-run claim. Defendant alleged that, at trial, one of the witnesses 

"disclosed that Founders was aware of unexplained left rear damage to the insured vehicle 

shortly after the occurrence."
No. 1-12-2481 

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¶ 25 On August 9, 2012, the trial court denied defendant's motion to reconsider the grant of 

summary judgment as to count I of the amended counterclaim and denied defendant leave to file 

a second amended counterclaim. The record does not contain a transcript of the proceedings 

related to the August 9, 2012 judgment. The only record of the trial court's decision to deny 

defendant leave to file her second amended counterclaim is the following sentence, included in a 

short written order: "The motion to *** file a[ ] *** second amended [counterclaim] is 

DENIED." Defendant filed this appeal.

¶ 26 II. ANALYSIS

¶ 27 A. Summary Judgment on the Hit-and-Run Dispute 

¶ 28 Defendant alleges that the trial court erred in granting Founders summary judgment as to 

count I of her amended counterclaim, asserting that genuine issues of material fact existed as to 

whether Founders acted vexatiously and unreasonably in settling her claims. Founders responds 

that there is no issue of material fact as to whether it had a bona fide dispute over defendant's 

claim for coverage under the hit-and-run provision, thus precluding an award of attorney fees 

under section 155 as a matter of law.

¶ 29 Generally, we apply an abuse of discretion standard when reviewing a circuit court's 

decision regarding attorney fees and costs under section 155 of the Illinois Insurance Code.

Employers Insurance of Wausau v. Ehlco Liquidating Trust, 186 Ill. 2d 127, 160 (1999). Where 

the circuit court denies section 155 relief via a dispositive motion, however, we "apply the 

standard of review that is appropriate" for that motion. Id. Here, the circuit court granted

Founders' motion for summary judgment relating to defendant's amended section 155 

counterclaim. We thus apply the standards applicable to summary judgment to the circuit court's 

judgment in this case. 
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¶ 30 "Summary judgment is proper where, when viewed in the light most favorable to the 

nonmoving party, the pleadings, depositions, admissions, and affidavits on file reveal that there 

is no genuine issue as to any material fact and that the moving party is entitled to judgment as a 

matter of law." Hall v. Henn, 208 Ill. 2d 325, 328 (2003). "The standard of review for the entry 

of summary judgment is de novo." Id.

¶ 31 Section 155 of the Illinois Insurance Code provides " 'an extracontractual remedy to 

policyholders.' " Employers Insurance of Wausau, 186 Ill. 2d at 159 (quoting Cramer v . 

Insurance Exchange Agency, 174 Ill. 2d 513, 520 (1996)). That section provides that an insured 

may collect attorney fees and costs where an insurer creates a "vexatious and unreasonable" 

delay in settling a claim. 215 ILCS 5/155(1) (West 2010). "A court should consider the totality 

of the circumstances when deciding whether an insurer's conduct is vexatious and unreasonable, 

including the insurer's attitude, whether the insured was forced to sue to recover, and whether the 

insured was deprived of the use of his property." Statewide Insurance Co. v. Houston General 

Insurance Co., 397 Ill. App. 3d 410, 426 (2009). 

¶ 32 "[W]here a bona fide dispute concerning coverage exists, costs and sanctions [pursuant to 

section 155] are inappropriate." State Farm Mutual Automobile Insurance Co. v. Smith, 197 Ill. 

2d 369, 380 (2001). A bona fide dispute is one that is " '[r]eal, actual, genuine, and not feigned.' " 

McGee v. State Farm Fire & Casualty Co., 315 Ill. App. 3d 673, 683 (2000) (quoting Black's 

Law Dictionary 177 (6th ed. 1990)). Where an insurer "reasonably relie[s] upon evidence 

sufficient to form a bona fide dispute," that insurer has not acted unreasonably or vexatiously 

under section 155. Morris v. Auto-Owners Insurance Co., 239 Ill. App. 3d 500, 506 (1993). 

¶ 33 We first address an anomaly arising from the procedural posture of this case and the legal 

issue before us. When conducting a de novo review of a grant of summary judgment, we would 
No. 1-12-2481 

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reverse if we were to find the presence of a genuine issue of material fact on the question at 

issue. Hall, 208 Ill. 2d at 328. If some competent evidence contradicted the evidence put forward 

by the movant, and created a genuine issue of material fact, summary judgment would be 

inappropriate. Id. But the legal question here, under section 155, is whether Founders was itself 

confronted with legitimate questions of fact as to whether this accident resulted from a hit-andrun or from Williams losing control of the car—and if so, Founders is entitled to judgment. As 

we have just discussed, to prevail on a section 155 claim, Founders is only required to show a 

bona fide dispute, that it had a "real, actual, genuine" belief (internal quotation marks omitted.) 

(McGee, 315 Ill. App. 3d at 683) and "reasonably relied upon evidence" that the accident may 

have happened differently than defendant's claim of a hit-and-run scenario (Morris, 239 Ill. App. 

3d at 506). 

¶ 34 In other words, Founders is not required to show that every scintilla of evidence pointed 

against a hit-and-run scenario, or that the evidence it compiled was overwhelming or conclusive.

See, e.g., Morris, 239 Ill. App. 3d at 506 (insurer had bona fide dispute regarding whether fire 

was arson, even though some of its evidence "was successfully rebutted"); Wahls v. Aetna Life 

Insurance Co., 122 Ill. App. 3d 309, 312 (1983) (finding section 155 relief inappropriate where 

"the evidence raised a genuine issue *** as to whether decedent's death was accidental within the 

scope of the policy's coverage"). Rather, the question here, at the summary judgment stage, is not 

whether Founders may have been presented with some evidence of a hit-and-run accident, but 

whether Founders had a real, genuine basis for disputing the hit-and-run scenario. Thus, the fact 

that defendant may have proffered some evidence of the hit-and-run scenario—which might, at 

first blush, indicate that summary judgment was improper—would not militate against a grant of 
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summary judgment as long as the evidence before Founders, in total, created a reasonable, 

genuine basis for dispute. 

¶ 35 With these principles in mind, we find that the trial court properly entered summary 

judgment in favor of Founders, because Founders had sufficient evidence on which it could 

reasonably dispute defendant's hit-and-run theory. We detailed that evidence above: (1) the 

statement of the car's owner that the car had brake problems that previously caused him to lose 

control of the car, as well as a claims adjuster's own conclusion that a blown-out tire appeared to 

be the cause of the accident; (2) police reports concluding that Williams lost control of the 

vehicle after a blow-out of the tire; (3) deposition testimony from one responding police officer 

that she saw no paint from another car on the damaged vehicle, nor any damage to the car other 

than the point of collision with the utility pole; and (4) deposition testimony of another 

responding policeman indicating a blown-out tire.

¶ 36 Defendant has not produced any reason for the trial court, or this court, to disregard this 

evidence. Though the movant bears the initial burden of production on a motion for summary 

judgment, once Founders carried that burden by presenting this evidence to the court, the burden 

shifted to defendant to present some factual or legal basis on which the court should have 

disregarded that evidence or otherwise found that defendant was entitled to trial on this issue. 

Bourgonje v. Machev, 362 Ill. App. 3d 984, 994-95 (2005); Willett v. Cessna Aircraft Co., 366 

Ill. App. 3d 360, 369 (2006). Defendant has presented no basis for this court to find that the 

evidence put forth by Founders was incredible or lacking in substance. 

¶ 37 The fact that Founders had uncovered additional evidence supporting defendant's hit-andrun theory—Harris's statement that Williams, before dying, said that another car hit her 

vehicle—does not alter our conclusion. This evidence is not so overwhelming or conclusive as to 
No. 1-12-2481 

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negate the evidence outlined above, which supported a contrary theory of a single-car accident. It 

does not change the fact that Founders had a reasonable, genuine, bona fide dispute as to the hitand-run claim as a matter of law.

¶ 38 Defendant finally argues that new evidence arose at trial that bolstered his claim that 

Founders should have covered the hit-and-run claim. At trial, defendant claims, evidence was 

presented showing "that Founders was aware of fresh left rear-end damage on the insured vehicle 

within weeks of the occurrence." Defendant contends that this evidence showed that Founders' 

coverage dispute was not bona fide. 

¶ 39 But defendant has failed to provide this court with any transcripts from the trial to 

support that claim. Illinois Supreme Court Rule 323 requires an appellant to prepare and file a 

transcript or bystander's report of the proceedings in the trial court. Ill. S. Ct. R. 323(a), (c) (eff. 

Dec. 13, 2005). Where an appellant fails to furnish a complete record of proceedings 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." Foutch v. O'Bryant, 99 Ill. 2d 389, 392 (1984). "Any doubts which 

may arise from the incompleteness of the record will be resolved against the appellant." Id. We 

must construe defendant's failure to provide transcripts of the trial against her. 

¶ 40 In any event, even if we were to accept this evidence solely on defendant's 

characterization, our holding would remain the same. This evidence would have been just one 

more fact in a series of facts that did not conclusively tell one story or another. There was 

competent evidence of a single-car collision as well as evidence of a hit-and-run scenario. 

Founders had a reasonable, genuine basis to dispute defendant's claim. 

¶ 41 As a matter of law, Founders did not act vexatiously or unreasonably in contesting the 

hit-and-run claim. Founders' actions related to the hit-and-run claim, including obtaining a 
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judgment in its favor at the 2004 trial via a default judgment, were grounded in its litigation of 

that bona fide claim. The fact that the trial court ultimately found that Founders was required to 

cover the accident does not render Founders' declaratory judgment suit vexatious or 

unreasonable. See West Bend Mutual Insurance v. Norton, 406 Ill. App. 3d 741, 745 (2010) ("An 

insurance company does not violate section 155 merely by unsuccessfully challenging a claim."). 

¶ 42 Nor did Founders engage in vexatious or unreasonable conduct by seeking to stay 

arbitration of defendant's hit-and-run claim. Where an insurer files a declaratory judgment action 

disputing coverage of a hit-and-run accident, the circuit court is "required to stay the arbitration 

until the resolution of the coverage dispute." (Emphasis added.) Estate of Price v. Universal 

Casualty Co., 322 Ill. App. 3d 514, 520 (2001) (citing State Farm Fire & Casualty Co. v. 

Yapejian, 152 Ill. 2d 533, 542-44 (1992)). Founders simply followed the law, as did the trial 

court. 

¶ 43 We also affirm the trial court's grant of summary judgment on defendant's claim that 

Founders was vexatious and unreasonable because it took no action on its declaratory judgment 

suit after this court remanded the case in 2006. Defendant notes that Founders permitted the suit 

to lie dormant following the remand until 2009, when defendant moved to dismiss the complaint 

for want of prosecution. We are unable to properly review this issue, however, once again due to 

the lack of a record below, which defendant, as the appellant, was obliged to provide us. Foutch, 

99 Ill. 2d at 392. We do not know what arguments defendant made in response to the motion for 

summary judgment brought by Founders because we are unable to locate her response, if any, in 

the record, nor do we have any transcripts of oral argument, if any, that would explain the court's 

reasoning. 
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¶ 44 We do know this much from the limited record: The trial court denied defendant's motion 

to dismiss the case for want of prosecution following this gap in time—a denial that defendant 

does not challenge on appeal. Again, we do not know why the trial court denied that ruling, nor 

do we have any written response, if any was filed, from Founders. It is possible that Founders 

merely orally argued the motion, but we lack any transcript of any such hearing. 

¶ 45 In support of the trial court's grant of summary judgment on this claim, Founders argues 

that it was defendant's duty to reinstate the case following the reversal and remand of this case to 

the trial court, pursuant to Illinois Supreme Court Rule 369(c) (eff. July 1, 1982). Founders is 

correct that, as the prevailing party on appeal, it was defendant's obligation to take action to redocket the case following remand and issuance of this court's mandate. People v. NL Industries, 

Inc., 284 Ill. App. 3d 1025, 1028 (1996). We can advance this point one step further. The 

appellate court, in reversing and remanding in 2006, held that the trial court was not compelled 

to default defendant, but rather that the trial court should exercise its discretion in deciding 

whether defendant should be permitted to file a late answer during the first trial. It was thus 

incumbent on defendant, not Founders, to seek leave to file a late answer pursuant to the 

appellate court's mandate. 

¶ 46 In the absence of an even minimally sufficient record, we are hard-pressed to 

automatically assign blame to Founders, and Founders alone, for this delay. The trial court 

obviously did not deem this delay sufficient to warrant a dismissal for want of prosecution, and 

we find nothing in the record that permits us to disturb the court's ruling on this issue on 

summary judgment, either. We presume that the trial court's decision was supported by fact and 

law. Foutch, 99 Ill. 2d at 392. 

¶ 47 B. The Uninsured-Motorist Claim
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¶ 48 Defendant also asserts that Founders vexatiously and unreasonably delayed resolution of 

her uninsured-motorist claim on Gibson's behalf, which was distinct from the hit-and-run claim. 

Like other issues in this case, unfortunately, this question presents something of a mystery. 

Simply put, we do not know what became of this claim in the lower court. We know that the 

uninsured-motorist claim was part of count I of the amended counterclaim, and we know that the 

trial court granted summary judgment for Founders on count I only as to the hit-and-run claim.

¶ 49 We also know that, following the bench trial on the declaratory judgment complaint and 

defendant's amended counterclaim, the trial court entered judgment for defendant on the 

complaint and judgment for Founders on count II of the amended counterclaim. Beyond that, the 

trial court's written order "dismissed" the action. What happened to the remaining portion of 

count I of the amended counterclaim—related to the alleged vexatious and unreasonable conduct 

of Founders in handling the uninsured-motorist claim—is unknown. Perhaps defendant 

abandoned the claim and put on no evidence at trial. Perhaps the trial court disposed of it in some 

dispositive order not included in the record. Not knowing the procedural posture of this claim, 

we are unable to apply a standard of review to the decision—if there was a decision. Compare 

Hall, 208 Ill. 2d at 328 (summary judgment is reviewed de novo), with Klaskin v. Klepak, 126 

Ill. 2d 376, 389 (1989) (a trial court's judgment after a bench trial is reviewed under a manifest 

weight of the evidence standard). We construe the record's silence against defendant (Foutch, 99 

Ill. 2d at 392) and find that the absence of any relevant transcripts precludes us from reviewing 

defendant's argument that Founders was vexatious and unreasonable in delaying settlement of 

the uninsured-motorist claim. See Heavey v. Ehret, 166 Ill. App. 3d 347, 349 (1988) (declining 

to review "a nonexistent judgment"). 
No. 1-12-2481 

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¶ 50 We add that Founders repeatedly stated in open court and in written filings that it was not

contesting defendant's right to arbitrate the uninsured-motorist claim, and the trial court 

repeatedly made that clear to defendant. Since January 2000, Founders emphasized that it was 

only contesting hit-and-run coverage, not coverage under an uninsured-motorist claim, and that it 

would agree to arbitrate an uninsured-motorist claim. But defendant did not file an uninsuredmotorist claim until 2010. As Founders later wrote, "It took [defense counsel] 10 years to digest 

that message." Even then, when defendant filed a claim for uninsured-motorist coverage, she 

also claimed hit-and-run coverage. Counsel for Founders again repeated in open court that 

Founders was not seeking to stay arbitration on the uninsured-motorist claim but only on the hitand-run claim that was the subject of the declaratory judgment complaint: "I told your Honor and 

counsel until I'm blue in the face, no, we don't contest his right to arbitrate whether the minor 

was injured by an uninsured motorist." 

¶ 51 Based on the limited record, defendant would have an uphill climb, to say the least, to 

prevail on a claim that Founders acted vexatiously and unreasonably regarding the uninsuredmotorist claim. Regardless, we are unable to review this portion of count I because we have no 

way of knowing how it was disposed and could not apply an appropriate standard of review. We 

reject defendant’s claim that Founders acted vexatiously or unreasonably with respect to the 

uninsured-motorist claim. 

¶ 52 C. Denial of Leave to File Second Amended Counterclaim

¶ 53 Defendant also contends that the trial court abused its discretion in denying her leave to 

file a second amended counterclaim. Defendant proposed the second amended counterclaim after 

final judgment was entered following the three-day bench trial. This proposed second amended 

counterclaim would have repleaded the two bases for section 155 relief she included in count I of 
No. 1-12-2481 

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her original counterclaim—that Founders vexatiously and unreasonably delayed settlement of the 

hit-and-run claim and the uninsured-motorist claim. As we noted above, defendant claims that 

the bench trial uncovered new evidence "that Founders was aware of fresh left rear-end damage 

on the insured vehicle within weeks of the occurrence," thus giving her fresh ammunition to 

argue that Founders' coverage dispute was not bona fide. 

¶ 54 Section 2-616 of the Code of Civil Procedure (735 ILCS 5/2-616 (West 2012)) governs 

amendments to pleadings. The decision whether to allow an amendment under section 2-616 

rests within the sound discretion of the trial court, and that decision will not be disturbed absent a 

an abuse of discretion. Indiana Insurance Co. v. Hydra Corp., 245 Ill. App. 3d 926, 932 (1993). 

¶ 55 We find that the court did not abuse its discretion in denying defendant leave to file this 

second amended counterclaim after trial and final judgment. We base our holding on several 

factors. 

¶ 56 First, defendant has once again failed to provide this court with a report of proceedings or 

bystander's report of the trial court's hearing on her motion for leave to file a second amended 

counterclaim. The trial court's written order denying defendant leave provides no insight into the 

trial court's rationale. It simply states, "The motion to *** file a[ ] *** second amended 

[counterclaim] is DENIED." We cannot divine the trial court's reasoning in denying defendant's 

motion and cannot determine whether that decision constituted an abuse of discretion. In light of 

defendant's failure to provide an adequate record, we presume the trial court's order had a 

sufficient legal and factual basis. Foutch, 99 Ill. 2d at 392. 

¶ 57 Second, this proposed second amended counterclaim came after the trial court entered 

final judgment in this case. However liberally courts grant leave to amend pleadings, that liberal 

rule applies to pleadings amended "before final judgment." (Emphasis added.) 735 ILCS 5/2-
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616(a) (West 2012); Basden v. Finck, 106 Ill. App. 3d 108, 110 (1982) ("A motion for leave to 

amend a pleading is not a proper post-judgment motion."). As we have explained above, we do 

not know precisely what transpired with the portion of count I of the amended counterclaim 

relating to the uninsured-motorist claim—it was not specifically included in the trial court's final 

judgment. Regardless, the trial court's final order, after ruling on the merits of Founder's 

complaint and count II of defendant's amended counterclaim, dismissed the case in its entirety. If 

the uninsured-motorist claim was left unresolved, it was thus dismissed along with any other 

remaining issues. Whatever became of that claim, by the time defendant sought leave to file a 

second amended complaint, it was beyond final judgment and improper. 

¶ 58 Likewise, defendant could not reassert the portion of count I of the amended 

counterclaim relating to the hit-and-run claim after the court had entered final judgment 

following the bench trial. Even if defendant had sought to amend that claim prior to the case's 

completion, defendant still could not do so, because a party may not amend a cause of action on 

which summary judgment was granted unless "depositions and affidavits indicate that the [party] 

can replead the claim under another theory." (Emphasis added.) Cook v. AAA Life Insurance Co., 

2014 IL App (1st) 123700, ¶ 40. Defendant did not allege a new theory in her proposed second 

amended counterclaim. Defendant alleged, at most, that a new piece of evidence supported the 

same legal theory on which summary judgment was previously granted. Her attempt to relitigate 

the issue was thus improper. Moreover, even if defendant were not barred from relitigating the 

same theory after summary judgment, we still would find no abuse of discretion in the trial 

court's denial of leave to amend. We have already concluded that this new piece of evidence, 

even accepted as viable, would not upset the trial court's grant of summary judgment on the 

section 155 hit-and-run claim. We find no error in the trial court's ruling. 
No. 1-12-2481 

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¶ 59 III. CONCLUSION

¶ 60 For the reasons stated, we affirm the judgment of the circuit court.

¶ 61 Affirmed.