## I L L I N O I S 

## O F F I C I A L 

## RE P O R T S Appellate Court

Freedberg v

. Ohio Nation al Insu rance Co. , 2012 IL App (1st) 110938

Appellate Court Caption HOWARD FREEDB ERG, Plaintiff-Appellant, v. OHI O NATI ONAL I NSURANCE COMPANY and DENNI S W. McCAB E, d/b/a D.W. McCabe a

nd Associcates, Def

endants-A

ppellees.

District & N o. First District, F ifth Division Docke t No. 1-11-0938

Rule 23 Order

filed Rule 23 Order withdrawn Opinion filed J une 22, 2012

J uly 24, 2012 August 3, 2012

Held (Note : Thi s syl lab us

con st it ute s no par t of the opi nio n of the cour t but has bee n pre

par ed by the Repo rt er of D e c i s i o n s f

o r t h e

c o n v e n i e n c e o

f t h e

rea der

. ) Plaintiff failed to prese nt a fac tual basis to preve nt the entry of summary judgme nt for defe ndants in his action seeking resc ission of his purcha se of a life insurance policy and alleg ing violations of the Consumer Fr aud Act, and he was prope rly

denied leave to f

ile an ame nded complaint for fra ud.

Dec ision Under Review Appea l from the Circuit Court of Cook County
, No. 07-CH-37687; the Hon. Kathlee n M. Pantle, J udg e, pre siding.

J udg ment Affir med.Counsel on

Appea l Robert J

. Slobig and J ames K. Gende n, both of Torshen, Slobig, Gende n, Dra g utinovich & Axel, L td., of Chicag o, for a ppellant.

Kevin M. O’Ha g an, Daniel J

. Nolan, and Edwar d C. Eberspa cher I V, all of O’H ag an Spence r L L C, of Chicag o, for a ppellees.

Panel PR ESI DI NG J USTI CE EPSTEI

N delivere d the judgme nt of the court, with opinion.
J ustices McB ride a

nd Howse c oncurr ed in the judg ment, and opinion.

OP INION

¶ 1 Plaintiff, Dr. Howar d Fr eedbe rg , purcha sed a life insurance policy from defe ndants, the Ohio Na t i o n al Insuranc e Company (Ohio National) and Dennis W. McCabe, d/b/a D.W. McCabe and Associates (McCabe ), in Dec ember 2004. Plaintiff filed the i n s t ant case on Dec ember 20, 2007, alleg ing that McCabe’ s misrepre sentations induced him to purcha se the policy

. Plaintiff now appea ls from: (1) the circ uit court’s November 24, 2010, order g ranting
summary judgme nt in favor of d efe ndants on both counts of plaintiff’s verifie d complaint (for resc ission and violations of the Consumer Fr aud and Dec eptive Business Practice s Act (815 I L CS 505/ 1 et seq. (West 2006))); a nd (2) the c ircuit court’ s Fe bruar y 17, 2011 order denying plaintiff’s motion to file a verifie d amende d complaint (for fra ud). For the following

rea sons, we af

firm.

¶ 2 BA CKGROUND ¶ 3 In the fa ll of 2004, plaintiff soug ht financia l advice f rom his sister, L ori Komisar, who has a business degree from the Unive rsity of I llinois and had worke d as a trade r for a larg e New York firm. Plaintiff was under a court order
, enter ed in his divorce case , to maintain a

cer tain level of insurance for his f ive children. He relied on his sist er be cause he had “ zero financ ial background.” ¶ 4 Komisar ref

err ed plaintiff to McCabe, an ag ent of Ohio National. Plaintiff first spoke to McCabe in t h e fa l l o f 2004. Plaintiff and McCabe also met sever al times and discussed plaintiff’s g oals. McCabe sold plaintiff the life insurance require d by the divorce settlement and order

. In additi o n t o protec ting his children, plaintiff also wanted to protec t his assets from potential cre ditors and to pay off the mortg ag e on his residenc e. Plaintiff reque sted that McCabe revie w plaintiff’s other life insurance policies that he owned at the time (with First Colony and Sun L ife). Plaintiff did not inform McCabe that, at the time, plaintiff had a pending lawsuit ag ainst him by a former business partne r. McCab e s u g g ested a whole li fe policy and showe d plaintiff other options.

-2-¶ 5 On Oc t o b er 1 1
, 2 0 0 4
, M cC abe sent plaintiff the term life insurance policy he had

purcha sed to satisfy the divorce settlement ag ree ment and order
, as well as an application for

a new policy based on his initi al revie w of plaintiff’s policies with the other companies. There afte r, Komisar a dvised McCabe that his banker ha d rec ommended plainti ff pur chase a $1 million annuity

. ¶ 6 On Novembe r 11, 2004, McCabe sent a letter to Komisar showing her two options for plaintiff with summaries of eac h. Opti o n I was life insurance with a discounted premium. Option I I was a single premium defe rre d annuity

. In his letter, McCabe explained that in both

case s they

wer e “not subjec t to creditors.” ¶ 7 On Dec ember 1, 2004, plaintiff met with McCabe in person for the first time. Mc Cabe’s aff idavit states that the meeting occur red at Fing erw eig hts Corporation in Wheeling and that Komisar was also prese nt. During hi s d ep osition, plaintiff testified that he had no independe nt rec ollection of how many meeting s he had with McCabe in 2004 and believed there wer e three or four meeting s. Plaintiff could not rec all t h e specific s of any of the meeting s. He could rec all that McCabe told him he could take money out of the policy to pay off his house and that there would be no problems, penalties or reperc u s s i o n s

. Plaintiff signe d an application for the whole li fe insurance policy that he eventu al l y purcha sed (the Policy). Plaintiff did not choose either of the two options that had been prese nted but, instead, chose a whole life p o l i cy that had the same $4.5 milli on death benef it but had a lower premium than the $256,000 annual premium illust rate d wi t h Op tion I

. Plaintiff’s monthly pay ments were $18,000 for a n annual pr emium of $216,000. ¶ 8 In a letter dated Dec ember 2, 2004, McCabe documented plaintif f’ s decision and also advised plaintiff that, based on the $18,000 mo n t h l y premium, the cash value at ag e 65 would be over $1.2 milli on (plaintiff was 49 at the time). Acc ording to the aff idavit of Ray Spears, the second vice president of u n derwriting at Ohio National, he rec eived plaintiff’s application on De cembe r 2, 2004. ¶ 9 In De ce m b er 2 0 0 4
, p l ai n tiff discussed his purcha se of the policy with his financial advisor, J arvis Fr iduss, a cer tified public acc ountant. Fr iduss was not familiar with Ohio National and ref

err ed plaintiff to Steve Br aun, an ag ent for Nor t h we s tern Mutual L ife Insuranc e Company . On Dec ember 8, 2004, Br aun fax ed plaintiff: (1) information on how cash value is exempt from cre ditors in I llinois ; (2) a company compar ison of Northwe stern Mutual and Ohio National; and (3) an illust ration showing premiums of $18,000 per month for 4 y ear s. Br aun also told plaintif f that he “would be curious to see an illust ration from Ohio National.” Plaintiff ultimately did not purchase a policy from Nor thwestern Mutua l. ¶ 10 Meanwhile, Ohio National proce ssed plaintiff’s application. As part of the proce ss, Ohio National created a policy delivery rec eipt on or about Dec ember 8, 2004. On December 8, 2004, Ohio National sent, via Fe deral Ex press, the orig inal policy and a policy acknow ledg ment rec eipt to Dennis McCabe. Acc ording to Spears’ s aff idavit, McCabe

rec eived the orig inal policy and the policy acknow ledg ment rec eipt on Dec ember 9, 2004. The Policy

was issued by

Ohio National with a f

ace amount of $4,500,000. ¶ 11 In his deposition, McCabe testified that he met with plaintiff, plaintiff’s estate-planning attorney J ohn Worthen, and Komisar on Fe bruar y 10, 2005, in plaintiff’s office

. He testified

-3-that he revie wed the Policy with plaintiff and Komisar befor e J ohn Worthen arr ived. He also

testified that he provided the Policy t o p l aint iff along with the delivery rec eipt. Plaintiff signe d the delivery rec eipt and the body of the doc ument ref

ers to the Policy . The de livery

rec eipt is dated F ebrua

ry 10, 2005. ¶ 12 In late 2005, the lawsuit filed ag ainst plaintiff by his former business partne r went to trial. On J anuar

y 27, 2006, judgme nt w as enter ed ag ainst plaintiff in the amount of $422,400. In J anuar y 2006, plaintiff had a meeting with Fr iduss and the two discussed the Policy

. Plaintiff testified in his deposition that he “proba bly went home and tried to fi nd the policy for [Friduss] and could not find the pol icy .” P laintiff al s o t es t i fied that Fr iduss “proba bly had asked [ him] at that point to obtain a copy of the poli cy .” P laintiff conceded that he did not “re call i f h e ex p l i citly had asked [hi m] and that he did not have “100 percent independent

rec ollection to those fac ts.” In his deposition, Fr iduss acknow ledg ed that he s p oke to McCabe in January

2006, but had “no indepe ndent memory ” of the conver sation. ¶ 13 On Fe bruar

y 22, 2006, plaintiff, Fr iduss, McCabe, and Worthen met in Fr iduss’s office

. During the meeting
, McCabe first lear ned of the lawsuit and the judgme nt ag ainst plaintiff. McCabe testified in his deposition that it was his understanding that the purpose of the meeting was to revie w plaintiff’s estate plan and that there wer e questions reg arding whether plaintiff could aff

or d h is insurance premiums. McCabe also stated that there was a discussion
reg arding taking the cash value out o f t h e P olicy and the interest rate

. McCabe stated that plaintiff was upset and stated it was the first time he had hear d of loan interest on the Policy

. ¶ 14 Fr iduss testified in his deposition that he had no independe nt rec ollection of ever seeing the Policy , but if he did it would probably have be en in Februa

ry 2006 at the mee ting with McCabe. In his deposition, plaintiff wa s asked if he “re viewed the policy with [Friduss] sometime in Marc h 2006,” and plaintiff responde d, “[a]t some point I did, y es.” I n his verifie d complaint, plaintiff states “[i] n about Marc h 2006, [pl aintiff] finally obtained a copy of the [P olicy

. ]” Acc ording to plaintiff’s verifie d complaint, afte r he revie wed the Policy
, “[i] t beca me appar ent to [pl aintiff and Fr iduss]
, that the [P ]ol icy did not have any provision that would permit [pl aintiff] to withdraw cash va lue from the [P] olicy without penalties or char g es, and [ that plaintiff] had not been g iven any discount from the re g ular premium for such policies.” ¶ 15 During his de position, F riduss also discussed email communications betwee n McCabe and himself in M ar ch and April 2006 reg arding the purported 20% discount plaintiff had

rec eived whe n he obtained the Policy . Specifica lly , Fr iduss asked McCabe if that discount would be lost if the premium pay ments wer e reduc ed. Fr iduss noted that at no time did McCabe say that the 20% discount did not exis t and that, instead, McCabe responde d that he would call Ohio National to see how the reque st to reduc e premiums while maintaining the discount would be a ccomplished. ¶ 16 On Oc t o b er 2 5
, 2006, plaintiff, throug h his attorney s, sent a written demand to Oh i o National for resc ission of the Policy and demande d return of all premiums. At the same time that plaintiff sent the demand for resc ission to Ohio National, he was in the proce ss of taking steps to r eplac e the Policy with a simil ar policy from Northwe stern Mutual. By letter dated November 30, 2006, Ohio National ref used to resc ind the policy or return the premiums. I ts

-4-decision was based, in part, on plaintiff’s application for a repla ceme nt policy

. Ohio National

noted that the premium for this repla ceme nt policy was near the minimum premium require d
to support a $4.5 milli on death benef it and that the repla ceme nt policy provided littl e or no ability to g ener ate cash value, which was a stated g oal of plaintiff’s when he applied for the Policy on Dec ember 1, 2004. Ohio National also stated that it hoped to retain plaintiff a s a valued c ustomer. ¶ 17 The parties appar ently t ri ed t o resolve the situation. During this time, Ohio National continued to a

uto ma ti c a ll y w it h d r a w th e $ 1 8
, 0 0 0 premium from plaintiff’s chec king acc ount. Acc ording to an aff

idavit of Robert J

. Slobig, one of plaintiff’s attorney s, he sent a letter to Ohio National on September 12, 2007, advising it that plaintiff had taken steps to stop the automatic pay

ment beca

use it was inconsistent with his desire to obtai n re s ci s sion. Ohio National then beg an collecting the $18,000 monthly premium b y m ea n s of an “Automatic Premium L oan” a s allowed pe r the Policy

. ¶ 18 Acc ord i n g t o S l o b i g’s aff idavit, by letter dated November 21, 2007, Ohio National reje cted plaintiff’s demand f or re scission and a ref

und of hi s premiums. On December 20, 2007, plaintiff filed a two-count verifie d complaint for resc ission and violations of the Consumer Fr aud and Dec eptive Business Practice s Act (815 I L CS 505/2 et seq

. (West 2006)). ¶ 19 On or about Fe bruar y 1, 2008, plaintiff filed a motion for temporar y relief to prese rve the

s t at us quo, reque sting a temporar y order restra ining and enjoining Ohio National fr o m char g ing premiums, interest, loans or other amounts ag ainst the Policy
, but allowing him to maintain the Policy ’s benef its. On Fe bruar

y 4, 20 0 8
, t h e circuit court denied plaintiff’s motion. Plaintiff surre ndere d the policy on Fe bruar y 19, 2008. Plaintiff also applied for, and obtained, two ter

m life insuranc e policies. ¶ 20 On J une 16, 2010, defe ndants filed a motion for summary judgme nt. On November 12, 2010, befor e the trial court rule d o n d e f e ndants’ motion for summary judgme nt, plaintiff filed

a motion for leave to f

ile a verifie d amende d complaint. The propose d amende d complaint added c laims for common law f raud, ne g lige nce, a

nd neg lige nt misreprese ntation. ¶ 21 On November 24, 20 1 0
, t h e ci rc u i t co u rt gra n t ed summary judgme nt in favor of defe ndants on both counts of plaintiff’s verifie d complaint. On Fe bruar y 17, 2011, the circ uit court de nied plaintiff’s motion to file a ve rified amended complaint. Pl aintiff now a ppeals both orders.

¶ 22 ANALYSI S ¶ 23 Motion for Summary J udg ment ¶ 24 Plaintiff first arg ues that the trial court err ed in g ranting summary judgme nt. He contends that there wer e disputed issues of fac t as to both counts of his verifi ed complaint (for

resc ission and violations of the Consumer Fra ud and De ceptive B usiness Practice s Act). ¶ 25 We revie w the trial co u rt ’s d ec i s i o n to g rant summary judgme nt de novo

. Outboard Marine Corp. v. Liberty Mutual Insurance Co.
, 15 4 I l l

. 2 d 90, 102 (1992). “ ‘Summary judgme nt is a drastic measure and should only be g rante d if the movant’s rig ht to judgme nt

-5-is clea r and fre e from doubt.’ ” Village of Palatine v. Palatine Associates, LLC
, 2012 I L App (1st) 102707, ¶ 42 (quoting Outboard Marine Corp.
, 154 I ll. 2d at 102). Nonethele ss, mere speculation or conjec ture is insuff icient to a void summar

y judgme nt. Id. ; se e also Miller v. Hec ox , 2 0 12 I L App (2d) 110546, ¶ 42. A defe ndant moving for summary judgme nt may meet its initial burden of proof by aff irmatively showing that some element of the case must be resolved in his favor or by establishing that there is an absenc e of evidenc e to support the nonmoving pa

rty ’s ca se. Village of Palatine , 2012 I LApp (1st) 102707, ¶ 42. ¶ 26 “The purpose of su m m ar y j u d gm en t is not to try an issue of fac t but *** to determine whether a triable issue of fac t exis ts. [C itation.] To withstand a summary judgme nt motion, the nonmoving party need not prove his case at this preliminary stag e but must prese nt some fac tual basis that would support his claim. [C itation.] We may aff irm on any basis appea

ring in the rec ord, whether or not the trial court relied on that basis or its rea soning was corr ect.” (Interna l quotation marks omitted.) Id. ¶ 43. ¶ 27 “Rescission is the canc elling of a contra ct so as to restore the parties to their initial status. [C itation.] ” (I nterna l quotation marks omi tted.) Illin o i s S t a t e Bar Ass’n Mutual Insurance Co. v. Coregis Insurance Co.
, 355 I ll. App. 3d 156, 165 (2004). “ One se ekingto rescind a
transac tion on the gr o u n d o f fr aud or misrepre sentation must elec t to do so promptly afte r lear ning of the fraud or misrepre sentati o n , m u s t announce hi s purpose and must adher e to it.” Mollihan v. Stephany
, 35 I ll. App. 3d 101, 103 (1975). “An unrea sonable delay in taking the nece ssary steps to set aside a fra udulent contra ct will have the eff ec t o f af fi rm ing it.” Illinois Stat e Bar Ass’n M utual Insurance Co.
, 355 I ll. App. 3d at 165. ¶ 28 In the instant case , the trial court conclude d that plaintiff’s unrea sonable delay on seeking

resc ission resulted in ratification of the Policy . We ag ree

. ¶ 29 Although not controlli n g, we fi n d i n s tructive the case of McNaught v. Equitable Lif e Assurance Society of the United States
, 121 N.Y.S

. 447 (N.Y. App. Div. 1910), cited by d ef endants and the trial court. McNaught also involved plaintiffs seeking to resc ind a li fe insurance policy and alleg ing he was fra udulently induced into purcha sing it. After bring ing suit, the plaintiffs continued to pay premiums and rec eive the policy ’s benef its and cover ag e. The McNaught court acknow ledg ed that one who discovers he has been induced to enter into

a contra ct by fra

ud may resc ind the contra ct. McNaught
, 121 N.Y.S. at 449. The court further noted, howeve r, that resc ission would not be available “if, afte r knowledg e of the fra ud, he affirms the contract by acc epting a benefit under it .” (Empha sis added.) Id. In denying the plaintiffs’ claim for resc ission and concluding that the plaintiffs had ratified the policy
, the McNaught court noted that the plaintiffs conce ded that “if the insured should die during the pendenc y of this action, an d wh i l e t he curr ent premiums wer e being paid, the defe ndant would continue [t o be] liable to the benef iciary of the policy for the full amount of insurance
, notwithstanding the plaintiffs’ elec tion to rescind.” Id. at 451. The court further noted that “[i ] n t h e same breath,” the plaintiffs acknow ledg ed that if a judgme nt for resc ission was obtained befor e the death of the insured, they would be entitled to rec over all of the premiums paid both befor e and a fter br inging suit. Id. As the cour

t expl ained:
“I f this can be so, then a novel situation, indeed, exis ts, and one which is unsupported either by prec edent or rea son. The equitable action for a resc ission cannot be considere d

-6-as a speculation. And if it c ould be
, it should not be assimilated to the tossing of a coin on the principle of

: ‘Hea ds, Iwin; tails, y ou lose.’ ” Id. The trial court here conclude d that plaintiff display ed the same ty pe of “hea ds I win, tails y ou lose” attitude which is inconsistent with a sincere desire to r escind the Policy

. ¶ 30 Plaintiff did not promptly demand resc ission nor did he adher e to his purpose. Reg arding plaintiff’s delay in seeking resc ission, plaintiff claims he did not rec eive a copy of the policy in Fe bruar

y 2005. He asser

ts that “[on] some date, which [pl aintiff] does not know, McCabe induced him to sign a delivery rec eipt for the Ohio National policy

. The handwr itten date on the form is not [pl aintiff’s] handwr iting, althoug h the signature is.” Although plaintiff claims he did not rec eive the Policy in Fe bruar y 2005, which was the date listed next to his signature

on the delivery rec eipt, he prese nted no evidenc e as to when he did sign the delivery rec eipt. In any event, in his verifie d complaint, plaintiff alleg ed that he had discussions about t h e policy with his acc ountant in J anuar y 2006. His acc ountant asked him various questions and, since plaintiff did not have a copy of the Policy
, he reque sted a copy from McCabe. Plaintiff
states that “[i] n about Marc h 2006, [pl aintiff] finally obtained a copy of the [P olicy ].” He also states that he beca

me awa re of the alleg ed misrepre sentations “upon revie w of the actua l [P olicy ] in 2006.” When asked in his deposition whe t h er he revie wed the policy with his

acc ountant in Marc h 2006, plaintiff responde d, “At some point, I did.” He now contends that this statement does not unequivoca lly mean that he revie wed the policy in Marc h 2006, but
prese nts no fac ts a s to when he did revie w the policy or lear n of the alleg ed fra

ud. Plaintiff also now claims that he did not rec eive a copy of the Policy until afte r September 2006, when he rec eived a duplicate copy from Ohio National. This w as the only duplicate copy sent by Ohio National. Thus, Ohio National notes that “the only policy that plaintiff could have
p ossessed at any time prior to September 6, 2006 was the orig inal policy ” that it sen t t o McCabe in Dec ember 2004. Nonethele ss, plaintiff asser ts that his written dem an d for

resc ission, on October 25, 2006, wa s prompt. ¶ 31 The trial court noted corr ectly t h at p l aintiff made judicial admissions which cannot be
contra dicted. As the I llinois Supreme Court has e x plained:
“Judi cial admis s i o n s ar e define d as deliberate, clea r, unequivoca l statements by a party about a concr ete fac t within that party ’s knowl ed g e. [C itation.] Where made, a judicial admission may not be contra dicted in a motion for summary judgme nt [citation]

or at trial [citation]

. The purpose of the rule is to remo v e t h e temptation to commit perjury . [C itation.] ” In re Estate of Re nnick, 181 I ll. 2d 395, 406-07 (1998).
“A f actua l admission in a verified pleading c onstitut es a judicia l admission, which has the eff ect of withdrawinga fa ct from issue a nd makes it unnece ssary

for the opposingparty

to introduce evidenc e in support there of. [C itation.] ” L.D.S., LLC v. Southern Cross Food, Ltd.
, 2011 I LApp (1st) 102379, ¶ 35. “ A sworn statement of fac t in a ver ified plea ding r emains binding on the party even afte r an amendment, and the party cannot subsequently contra dict the fac tual alleg ation.” Id. Moreove r, even pleading s that are not verifie d m ay be used as evidentiar y admissions. National Surety Corp. v

. Swissl er Plumbing, Inc. , 167 I ll. App. 3d 608, 616 (1988). ¶ 32 The trial co u rt ac k n o wl edg ed that plaintiff contende d that the rea son for the delay in

-7-filing suit was that he was attempting to settle the matter with Ohio National. Howeve r, as

the trial court noted, t h es e settlement neg otiations did not commence until May 11, 2007, when plaintiff’s attorney contac ted Ohio National and threatened to f ile suit, which was 14 months afte r Marc h 2006, the date plaintiff lear ned of the alleg ed fra

ud, and 6 months afte r Ohio National denied his demand for resc ission. Ohio National denied his dem an d for

resc ission on November 30, 2006, y et plaintiff did not file this action seeking resc ission until Dec ember

20, 2007. ¶ 33 Thus, there was a delay of seven months betwee n the time plaintiff admitted he re ceive d

a copy of the Policy and his initial demand for resc ission. Plaintiff then delayed 14 months befor e filing his court action for resc ission. He continued to make pre m i u m p aym ents of $18,000 per month until September 2007 when he canc elled the automati c p aym en t instruction which allowed Ohio National to wit h d raw the premiums from his chec king

acc ount. These delay s and premium pay ments, while rec eiving the benef its of t h e Policy
, constitute a ratification of the Policy

. ¶ 34 Moreove r, plaintiff did not adher e to his purpose. Even afte r he filed this action, plaintiff filed the petition for a temporar y restra inin g order in Fe bruar y 2008 seeking an order that woul d al l o w him to maintain the policy benef its without having to pay the premiums throug hout the course of the litigation. The trial court conclude d that plaintiff’s “hea ds I win, tails y ou lose” attitude continued from the time he first lear ned of the alleg ed fra

ud in Marc h 2006, throug hout the neg otiations with Ohio National, until the court denied his petition for a tempora ry restra ining or der in 2008. ¶ 35 Although plaintiff’s ratifica tion of the policy rende rs moot his claims of fra ud, we note that the rec ord is reple te with response s from plaintiff as to his “belief s” and his lack of

rec ollection as to numerous statements, transac tions, or events. Also, as the trial court noted, plaintiff’s alleg ation of fra ud reg arding delivery of the Policy was pure conjec ture. W h en asked in a supplementary interrog atory to identify documents which he signe d in the course of his dealing s with McCabe and to explain the circ umstances surrounding the signing of the documents, plaintiff answe red that he “ believe s he signe d his name t o a re ce i p t for the delivery of the subject Ohio National insurance policy
, No. 1544255, wit h o u t h aving

rec eived the policy
, and without being advised what he was signing
, at a m ee t i n g wi t h Dennis McCabe.” (Emphasis added.) Moreove r, althoug h the claims of fra ud are moot, we note that, with the exception of plaintiff’s claims that he did not rec eive the discount on his premium that he was told he would rec eive, the rema ining alleg ations of fra ud ( i.e.
, that he could withdraw fu nds from the Policy ’s cash value without paying “intere st” and that McCabe told plaintiff the Policy would acc umulate at least $1 milli on in c ash value within five y ear s) wer e based on surmise and conjec ture and plaintiff failed to prese nt any evidenc e sufficie nt to withst and summary judgme nt. ¶ 36 T o p re vail on a claim of fra udulent misrepre sentation, a plaintiff must establi s h t h e following elements: (1) a false statement of materia l fac t; (2) known or believed to be false by the person making it; (3) an intent to induce the plaintiff to act; (4) action by the plaintiff in justifiable relianc e on the truth of the statement; and (5) damag e to the plaintiff resulting from such relianc e. Doe v. Dilling
, 228 I ll. 2d 324, 342-43 (2008). “The elements of a claim under the Consumer Fr aud Act are : ‘(1) a dece ptive act or prac tice by the defe ndant; (2) the

-8-defe ndant’s intent that the plaintiff rely on the dece ption; and (3 ) t h e o ccur renc e of the dece ption during a course of conduct involving trade or commerc e.’ [C itation.] ” Sheffler v. Commonwealth Edison Co. , 2011 I L110166, ¶ 62. ¶ 37 As the trial court n o t ed
, wh en p l ai n tiff was asked at his deposition about the alleg ed misrepre sentations made by McCabe, pla intiff testified as follows: “[DEFEN DANTS’ ATTORNEY]: I f y ou would turn to para g raph nine of y our complaint. The second sentenc e say s, ‘Mr. McCabe further repr esente d to Dr. Fr eedbe rg that Dr. Fr eedbe rg would then be able to withdraw this cash value enoug h to pay off Dr. Fr eedbe rg ’s home mortg ag e from the proposed Ohio National polic y wi thout penalty
, interest, or othe r cha

rg es, and use it to pay

off the mor

tga g e.’
I s it fair to say

that that is not word for wor d what Mr. Mc Cabe said to you? [P LAI NTI FF ]: I don’t rec all exactly word for word, but I think it does–it’s acc urate in reg ards to what was told to m e. The re w as [ sic ] no penalties. And I was able to take it out. Iwas not borr owingit out. Icould take it out. [DEFENDA

NTS’ ATTORNEY]: As cl o s e t o word for word, what did Dennis McCabe te ll y ou relating to takingmoney out of the policy ? [P LAI NTI FF ]: Over four y ear s later, I can’ t gi v e y ou word for word. I can tell y ou that I can take the mo n ey o u t

. I rec all those words. W as [ sic ] there any problems? No. Was [ sic ] t here any

penalties? No. [DEFENDA

NTS’ ATTO R

NEY] : Did Mr. McCabe tell y ou that y ou could take
money out that y ou didn’t have to pa y back? [P LAI NTI FF ]: I don’t–I rec all that there was [ sic ] no repe rcussions for doing that. That’s why

Idid this pol icy

. [DEFENDA

NTS’ ATTORNEY]: What did Mr. McCabe specific ally state that leads
y ou to believe that he said there wer e no re perc ussions? [P LAI NTI FF ]: Iasked him seve ral times. [DEFENDA

NTS’ ATTORNEY ]: What did y ou ask him? [P LAI NTI FF ]: I said, I can just take the money out and pay off my house and nothing else needs to be done? No. There ’s [ sic ] no repe rcus s i o n s ? No. There is [ sic ] no penalties. No. [DEFENDA

NTS’ ATTORNEY]: Mr. McCabe said, There is [ sic ] no repe rcussions? [P LAI NTI FF ]: Well, I can’ t reme mber the exact verbia g e. I ’m telling y ou what I

reme mber a s the–not the exact words, but what was said, the c ontext of it. [DEFENDA

NTS’ ATTORNEY]: Did y ou ask Mr. M cCabe if the m oney y ou took out would be a loan? [P LAI NTI FF ]: I didn’t ask if it was a loan. I just asked if I could take it out and there is [ sic ] no problems. No problems. [DEFENDA

NTS’ ATTORNEY]: Did Mr. McCabe tell y ou that afte r five y ear s y ou could withdraw$1 milli on tax free? [P LAI NTI FF ]: Yes. Well, I ’m–I don’t reme mber, y ou know, the words tax fre e. But

-9-it was my money paid in. So I could take it out. I don’t reme mber any thing being told if there wer e any

tax consequence s of it either.” ¶ 38 Contrary to plaintiff’s asser tions, the trial court did not “we igh” the witnesses’ c redibility but instead deter

mined that plaintiff “has not produce d any evidenc e to support his alleg ation that McCabe misreprese nted any materia l fac ts to Fr eedbe rg , or that F ree dberg rea sonably relied on any misrepre sentation, materia l or otherwise, or that McCabe intended Fr eedbe rg to rely on any misrepre sentation that he made.” As noted ear lier, at the summary judgme nt stag e, a plaintiff must prese nt some fac tual basis that would support his claim

. Village of Palatine v. Palatine Associates, LLC
, 2012 I L App (1st) 102707, ¶ 43. We conclude that the trial court c orre ctly

g rante d summary

judgme nt to defenda

nts.

¶ 39 Motion to Amend ¶ 40 Plaintiff ne x t a rgues that the trial court should have g rante d him leave to file a verifie d amende d complaint. We revie w t he trial court’s decision t o deny leave to file an amende d complaint under a

n abuse of

discretion standa

rd. Cimco Communications, Inc. v . National Fire InsuranceCo. of Hartford , 407 I ll. App. 3d 32, 38 (2011). ¶ 41 Plainti f

f corr ectly notes that amendments may be allowed “on just and rea sonable ter ms.” Notwithstanding the g ener al rule that amendments should be g rante d liberally
, a party ’s rig ht
to amend is n o t absolute and unlimit ed. Goldberg v. Brooks
, 409 I ll. App. 3d 106, 113 (2011). As this cour

t has explained:
“The decision wh ether to allow a party to amend its pleading s is within the sound discretion of the trial court; such a decision will not be disturbed without a showing of

an abuse of that discretion. [C itation.] The rig ht to amend pleading s is not absolute, and the time l i n es s o f such a reque st may be considere d by the court in its discretion. [C itation.] The court should exercise its power to permit amendment with a view toward allowing a party to prese nt fully his cause s of action. [C itation.] Ordinar ily
, amendment should not be allowed wher e the matters asser ted wer e known by the moving party at the time the orig inal pleading was draf ted and for which no excuse is offe red in explanation of t h e i n i tial failure

. [C itation.] The test to be applied in deter mining whether the trial court’s discreti o n wa s proper ly exercised is whether allowanc e of the amendment further s the ends of justice. [C itation.] ” Trans W orld Airlines, Inc. v. Martin Automatic, Inc. , 215 I ll. App. 3d 622, 627-28 (1991). ¶ 42 Section 2-616(a ) of the Code of Civil P roce dure state s:

“Amendme nts. (a) At any time befor e final ju d gm en t amendments may be allowed on just and rea sonable terms, intro du ci ng any party who oug ht to have been joined as plaintiff or de fenda

nt, dismi ssing a

ny party , chang ing the cause of ac tion or defe nse or adding new cause s of action or defe nses, and in any matter, either of form or substance, in any proce ss, pleading
, bill of particula rs or proce eding s, which may enable the plaintiff to sustain the claim for whic h it was intended to be broug ht or the defe ndant to make a defe nse or a ssert a c ross claim.” 735 I L CS 5/ 2-616(a ) (West 2008).
Plaintiff now asser

ts that the trial co urt abused its discretion in not allowing him to add additional counts based on the same fa cts.

-10-¶ 43 Since the issue of whether a trial court may deny a plaintiff leave to amend his ple ading s

is one which is proper ly addre ssed to the sound discretion of the trial court, “a revie wing
court may intervene only wher e the trial court acte d arbitra rily or, in l i gh t o f all the circ umstances prese nted, exceede d the bounds of rea son and ignor ed rec og nized principles of law so that substantial injusti ce resulted [citation] ; or wher e the judgme nt of the trial court is found to be palpably err oneous, contra ry to the manifest we i gh t o f the evidenc e or manifestly unjust [citation] ; or wher e no rea sonable person could take the view adopted by the trial court.” Nicholson v. Chicago Bar Ass’n
, 233 I ll. App. 3d 1040, 1044-45 (1992). In denying plaintiff leave to amend his complaint, the trial court noted that the motion was very brief and did not provide the court with aff irmative rea sons for allowing the amendment. As the t rial court also stated, it had “the discretion to dictate and enfor ce what i t believe[d] to be just and rea sonable terms.” Citi ng Nicholson
, the trial court noted that the phrase “just and

rea sonable terms” implies the exis tence of a “time limitation within which the amendment must be filed.” ¶ 44 The trial court’s decision denying plaintiff leave to amend his complaint must be viewed in the context of the prese nt case

. Plaintiff argues that the trial court’s decision was, to a g reat extent, pre mised on the fac t that it had g rante d defe ndants’ motion for summary judgme nt. Whil e that may be true, as defe ndants note, a motion to amend that is nothing more than an attempt to evade an unfavor able summary judgment outcome should not be g rante d. See,
e.g. , Kleinhans v. Lisl e Savings Profit Sharing Trust
, 810 F.2d 618, 625-26 (7th Cir. 1987) (district court did not abuse its discretion in denying leave to amen d wh ere proposed amendment came afte r the close of discovery and defe ndants moved for summary judgme nt, beca use pl aintiff’s moti on “re p re s en t s an appar ent attempt to avoid t he effec t of sum mary judgme nt” (interna l quotation marks omitted)); cf. United Air Lines, In c. v. Conductron Co r p

. , 69 I ll. App. 3d 847, 858 (1979) (trial court did not abuse its discretion i n d en y i n g defe ndants leave to amend their answe r to pl ea d s t at u te of limit ations wher e motion was made afte r plaintiff’s motion for summary judgme nt was prese nted and hear d, and trial court stated that summary judgme nt would be enter ed for plaintiff and defe ndants g ave no rea son for the f ailure to plea d the af

firmative de fense at an e arlier time). ¶ 45 In deter

mining whether to allow an amendment to the pleading s, the trial court c onsiders the following fac tors: (1) whether the proposed amendment wo u l d cu re a defe ct in the pleading s; (2) whether the proposed a mendment would pre

judice or surprise ot her parties; (3) whether the proposed amendment is timely ; and (4) whether there wer e p revious opportunities to amend the pleading

. See, e.g. , Krum v. Chicago National League Ball Club, In c

. , 3 6 5 I ll. App. 3d 785, 790 (2006). The trial court here considere d eac h fac tor and deter mined that none of the m weig hed in favor of plaintiff. ¶ 46 As to the first fac tor, citing Tri-G, Inc. v. Burke, Bosselman, & W eave r , 353 I ll. App. 3d 197, 215 (2004), plaintiff now argues that this fa ctor was irrele vant beca use he was adding

new cause s of action. As defe ndants note, the I llinois Supreme Court reve rsed Tri-G without revi ew i n g i ts “one- line ‘fa ilure to cure ’ ” analy sis. Tri-G, Inc. v. Burke, Bosselman & W eave r , 222 I ll. 2d 218 (2006). Even assuming this fac tor was irrel ev an t , t h e trial court found the other

three fac tors also weig hed ag ainst plaintiff. ¶ 47 As t o t h e s econd fac tor, plaintiff arg ues t hat t he trial court stated only that there was a

-11-“possibility ” of prejudice and failed to explain why this was so. Plaintiff provides no support

for his asse rtion that the trial cour t was re quired to explain the prejudice that would result. We also find defe ndants’ citations to case s wher e a motion to amend was proposed “on the eve of trial” or “af

ter trial has begun” inapposite. Nonethele ss, in considering the pos s i b l e prejudice to defe ndants, the trial court no t ed that the new claims car ried substantially differ ent eleme nts and theories of law. ¶ 48 Reg arding the third fac tor, the trial court found that plaintiff’s motion to amend was not timely

. We note that plaintiff has contende d on appea l that the time l i ness fac tor has no rele vance beca

use summary judgme nt was er ro n eously g rante d. On this point, plaintiff is clea rly wrong

. In any event, we have now aff i rmed the trial court’s decision g ranting
summary judgme nt. ¶ 49 Plaintiff has failed to adequately addre ss the timeliness fac tor, other than to ref er to it a s

a fac tor that courts “sometimes” consider and imply that it is an irrele vant fac tor wher e the trial court f

ailed to “e x plain” how a dding the se newtheories would ha ve bee n prejudicia l. ¶ 50 Plaintiff filed his orig inal complaint on Dec ember 20, 2007; he filed his motion to a mend

o n No vember 12, 2010 (which was the eve of the trial court’s schedule d ruli n g o n defe ndants’ motion for summary judgme nt). As the trial court noted, plaintiff had over 21⁄2
y ear s from the time he filed his orig inal complaint befor e the motion for summary judgme nt

was hear d. As defe ndants note, it was near ly three y ea rs later. The court also noted that plaintiff did not alleg e that he discovere d new information during this period of time which require d him to seek leave to amend his orig inal complaint. Instead, plaintiff’s decision was based on a desire to “introduce additional theories of relief ” in order to incre ase his chanc es of rec overy by cre ating “var ious a vailable routes to the same g oal.” The trial c ourt was not persua ded that this was a va lid reason. ¶ 51 Additi o n al l y , h oweve r, the trial court explained that plaintiff’s motion was untimely beca use, although sum mary judgme nt had not y et bee n enter ed at the time plaintiff s oug ht leave to file an amende d co m p l ai n t , the motion for summary judgme nt had been filed,
argument had been hear d, and the court’s ruling was schedule d. Although plaintiff’s motion
to amend his complaint was technica lly filed befor e the entry of summary judgme nt, plaintiff did not provide any explanation for filing the motion at such a late stag e in the proce eding s. The trial court considere d that plaintiff was awa re of the possibili ty that summary judgme nt could be enter ed, thus ending the case , while the motion to amend was pending

. Relying on Marti n v. Y

ellow Cab Co.
, 208 I ll. App. 3d 572, 577 (1990), the trial court noted that this
court has held that leave to amend a complaint is proper ly denied in circ umstances wher e a plaintiff had ample time to discover any independe nt cause s of ac tion, where the proposed additional counts are based on fac ts available to the plaintiff when the orig inal complaint was filed, and the motion to amend was filed 20 months afte r the complaint was filed, and more than 3 y ear s afte r t he accident in question, and defenda nt’s motion for summ ary judgme nt

was pending

. The trial court ultimat e ly d e c id ed that plaintiff’s motion to amend was untimely beca use he wa i t ed n ear ly three y ear s to file it, had no explanation for the time delay
, and there was a

ruling pendingon the motion for summary judgme nt. ¶ 52 As t o t h e fo u rth fac tor, it was undisputed that plaintiff had previous opportunities to

-12-amend. As the t rial court noted, he waited nea rly three y ear s to file his motion for leave to file his verifie d amende d complaint, he admitted that the fac t s h ad not chang ed, and he admitted that the rea son for the amendment was “to cr eate multipl e avenue s” by which the trial court might rea ch an outcome in his favor

. Plaintiff’s argument that the trial court abused its discre tion in denying him leave to amend his c omplaint fails. ¶ 53 We note that there are additional rea sons why the trial court corr ectly denied the motion
to amend with respe ct to the propose d co u n t s for common law fra ud and neg lige nt misrepre sentation. In opposing plaintiff’s m o tion for leave to file an amende d complaint, defe ndants argued that “collate ral estoppel bars plaintiff from re li ti g ating the alre ady decide d issues.” T h e t ri al court acknow ledg ed this argument but based its decision on the fac tors listed above. None theless, we f ind defe ndants’ ar g ument well taken. ¶ 54 T h e d o ct ri ne of collater al estoppel applies when (1) an issue decid ed i n t h e p ri o r adjudication is identi cal with the one prese nted in the curr ent suit; (2) the prior suit was terminated with a final judgme nt on the merits; and (3) the party ag ainst whom the estoppel is a sserted was a

party or in privity

with a par

ty in the prior suit. Du Page Fork lift Serv ice, Inc. v. Material Handling Servic es, Inc.
, 195 I ll. 2d 71, 77 (2001). Her e, a judgme nt on the merits was enter ed by the court on November 24, 2010. See id. at 84 (“Summary judgme nt is the proce dural equivalent of a trial and is an adjudication on the merits.”). Wit h respe ct to the proposed counts for c ommon law fra ud and neg lige nt misreprese ntation, the trial court alre ady addre ssed the issue of misrepre sentation raised by tho s e cl aim s. As the trial court conclude d:
“F ree dberg has not produce d any ev i d en ce to support his alleg ation that McCabe misrepre sented any materia l fa ct s to Fr eedbe rg , or t hat Free dberg rea sonably relied on
any misrepre sentation, materia l or otherwise, or that McCabe intended Fr eedbe rg to rely
on any misrepre sentation he made .” ¶ 55 The t ri al co u rt d i d n o t abuse its discretion in denying plaintiff leave to amend his complaint to add new cause s of action for common law fra ud, neg lige nt misrepre sentation, and n egl ige nce. We aff

irm the trial court’s decision denying plaintiff leave to file an amende d complaint.

¶ 56 CONCL USI ON ¶ 57 In acc ordanc e with the fore g oing, we: (1) aff irm the decision of the circ uit court of Cook County g ranting summary judgme nt to defe ndants on counts Iand I I of pl aintiff’s verified complaint; and (2) aff

irm the court’s decision denying plaintiff’s motion for leave to file an amende d verifie d complaint adding counts for common law fra ud, neg lige nt misrepre sentation, and ne g lige nce.

¶ 58 Affir

med.

-13-