## I L L I N O I S 

## O F F I C I A L 

## RE P O R T S Appellate Court

Gaylor v. Campi on, Cu rran, R ausch, Gum m erson & Dun lop, P.C. ,

2012 IL App (2d) 110718

Appellate Court Caption RO B E RT W. GAYL OR, J OANN A. GAYL OR, ROBERT E. GAYL OR, and MORNA GAYL OR
, Plaintiffs-Appellants, v. CAMPI ON, CURRAN, RAUSCH, GUMMERSON AND DUNL OP, P.C., and L EE C. L OCKWOOD, Def

endants-A

ppellees.

District & N o. Second District
Docke t No. 2-11-0718

Filed November 15, 2012

Held (Note : Thi s syl lab us

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

par ed b y the Repo rt er o

f 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

. ) Plaintiffs waived any objection to the dismiss al of the fra ud count in their second a mended c omplaint ag ainst defe ndants which allege d one count

o f l ega l malprac tice and one count of fra ud based on a transac tio n i n which plaint i ff

s invested in a business venture to develop and sell elec troluminescent technology , since plaintiffs filed a one-c ount t h i rd amende d complaint alleg in g l egal malprac tice following the dismiss al and that count did not ref

er to or adopt the dismiss ed fra ud count, and the damag e aw ard f

or plaintiffs wa s not manifestly err oneous.

Dec ision Under Review Appea l from the Circuit Court of McHenry C o u n t y , No. 04-L A-82; t he Hon. Michae l T. Caldwell, J udg e, pre siding.

J udg ment Affir med.Counsel on

Appea l Peter M. Katsar os and L aura A. B alson, both of Golan & Christi e L L P, and Har ry C. L ee, of L aw Offic e o f Ha rr y C. L ee, both of Chicag o, for appellants.

Christopher J

. Gra

ham, Dawn C. Wrona-Eby
, and J oseph P. Kelly
, all of J ones L emon & Gra

ham L L P, of Gene va, for

appellee s.

Panel J USTI CE Z ENOF F de livered the judgme nt of the cour t, with opinion.
J ustice B irkett conc urre d in the judgme nt and opinion.
J ustice McL are n specia lly concur red, w ith opinion.

OP INION

¶ 1 Plaintiffs, Robert W. Gaylor (Robert), J oann A. Gay lor, Robert E. Gay

lor (B obby

), and Morna Gaylor, filed a two-count second amende d complaint ag ainst defe ndants, Campion, Curran, Rausch, Gummerson & Dunlop, P.C. (the Campion firm), and L ee C. L ockwood, an associate attorney of the Campion f irm, alleg ing leg al malprac tice and common-law fra ud. The trial court dismiss ed the fra ud count, and the matter proce eded to trial on plaintiffs’ onecount third amende d complaint alleg ing leg al malprac tice only

. The jury returne d a verdic t in favor of plaintiffs and awa rded them damag es of $182,625. Plaintiffs appea l, arguing (1) that the trial court err ed in dismiss ing their fra ud count and (2) that the jury ’s deter mination of damag es wa s m anifestly inadequate and ignor ed proven elements of damag es. For the following rea sons, we af

firm.

¶ 2 BA CKGROUND ¶ 3 The rele vant background beg ins with the filing of plaintiffs’ second amende d complaint alleg ing leg al malprac tice and fra ud. Plaintiffs alleg ed the same background fac ts in both
counts. Plaintiffs owned and operated an excavating business and had used the Campion firm for various leg al matters since 1998. I n J une 2002, Br ian Be ttis approa ched plaintiffs about the possib i l i t y o f p articipating in a business venture to develop, manufa cture , and sell elec troluminescent technolog y (EL technology ). Be ttis re prese nted to pla intiffs that he had obtained a number of patents for EL technolog y and that an I llinois corpor ation named I SD Tec hnologie s, L L C, in which Be ttis and other investors wer e involved, curr ently owned the intellectual prope rty

rig hts and patents assoc iated with EL technolog y

. ¶ 4 Plaintiffs decide d to participa te in the EL technolog y venture with Be ttis throug h a new company that would be called I ons, I nc. Plaintiffs and Be ttis planned to transfe r I SD Tec hnologie s’ purported assets, including all intellectual proper ty rig hts in EL technolog y ,

-2-into I ons. Be ttis repr esente d t o p l ai n t i ff s that all of the prese nt and future EL technolog y products would become the exclusive proper ty of I ons. The contemplated products included a helmet kit, a sa fety

vest, a ba ckpac k, a bicycle kit, and jew elry

. ¶ 5 I n their leg al malprac tice count, plaintiffs alleg ed that, beg inning in ear ly J uly 2002, they consulted with M ark Gummerson, a partne r in the Campion firm, and told him of their business plans with B ettis. Pl aintiffs soug ht Gummerson’s leg al advice in c onnection with the proposed transfe r of I SD Tec hnologie s’ purported assets t o I o n s

. Gu mmerson refer red plaintif fs t o L ockwood, telling plaintiffs that this ty pe of transac tion was L ockwood’ s expertise. Bobby asked Gummerson whether s ep ar ate counsel was nece ssary to repr esent plaintiffs and Be ttis in the transac tion, and Gummerson told plaintiffs that separ ate counsel

was unne cessa

ry

. ¶ 6 P l ai n t i ff

s al l eged that, leading up to the closing to finalize the transac tion, plaintiffs informed L ockwood that their intention was for all of the EL technology ever develope d by Be ttis to become the sole and exclusive proper ty of I ons. Plaintiffs also instructed L ockwood
to draf t an agree ment that would require Be t t i s to transfe r to I ons all intellectual proper ty rig hts in all EL technolog y he developed, for 1 0 y ear s from the date of the closi ng and for

an additional 10 y ear s pursuant to an automatic option to re n ew t he ag ree ment. Plaintiffs asked L ockwood numerous times whether he had in his possession the patents that Be ttis had obtained in the EL technolog y , and L ockwood repe atedly indicated that he had them in his office

. ¶ 7 Reg arding the closing
, which took place on October 10, 2002, plaintif fs al l ege d that L ockwood beg an by passing out the documents he had draf ted. The closing was attended by plaintiffs; Be ttis; Be ttis’s g irlfriend, Sharon Munn; Be ttis’s son, Rocky Be tt i s ; R ocky ’s girlfriend, Cathy ; Be ttis’s daug hter, Danielle; and Br uce Salk. Plaintiffs allege d
, o n information and belief, that Salk was an attorney repr esenting himself and other investors in I SD Tec hnologie s. Plaintiffs’ understanding was that L ockwood was repr esenting plaintiffs and B ettis. L ockwood a

nd Salk were the only

attorney s prese nt at the closing

. ¶ 8 As he had prior to the closing
, Bobby asked L ockwood if he had the patents that had bee n issued in Be ttis’s name. L ockwood could not find the patents. Someone tele phoned pate nt attorney Thomas Vig il, who faxed to the closing a memo stating that he was prepa ring patent applications on B ettis’s behalf but that he had not filed t hem. L ockwood, Bettis, Salk, and Munn all told plaintiffs that Be ttis had “pending patent applications” in EL technolog y , and that the applications were “ better le g al protec tion” than patents. ¶ 9 Plaintiffs w ent throug h with the closing

. Be ttis signe d a licensing ag ree ment; however
, the licensing ag ree ment did n o t t ra n sfer intellectual proper ty rig hts in EL technology as plaintiffs had desi re d

. I n s t ead, the licensing ag ree ment g ave I ons “an exclusive license to modify the EL products” and g rante d I ons “the exclusive rig ht to sell the modified EL product s to end users.” Throug h the preor g anization subscription ag ree ment signe d at the closing
, share s of stock in I ons were to be issued to plaintiffs, Be ttis, Munn, M ary Nelson, Rocky , and A& B Par

tnership. ¶ 10 P l ai ntiffs alleg ed that they had an attorney-client relationship with the Campion f i rm , Gummerson, and L ockwood. Plaintiffs further alleg ed that the Campion firm, Gummerson,

-3-and L ockwood committed leg al malprac tice by
, among other things, (1) failing to assig n the

matter to a qualified transac tional attorney with expertise in patent law and contra ct draf ting; (2) assuming multipl e repr esenta tions of clients with conflicting and ad v er s e i ntere sts, without ex plaining the risks of doing so or obtaining c onflict waive rs; (3) f ailing to f ollow plaintiffs’ instructions; and (4) failing to protec t their clients’ interests at the closing or in the ELtechnology . Plaintiffs alleg ed that they had incur red da mag es excee ding $400,000. ¶ 11 I n their fra

ud count, which plaintiffs pleade d in the alternative to their leg al malprac tice count, plainti ff

s b ega n by alleg ing that there was no attorney -client relationship betwee n plaintiffs and the Campion firm, Gummerson, or L ockwood. As they had in t h ei r l ega l malprac tice count, howeve r, plaintiffs alleg ed that, beg inning in ear l y J uly 2002, they consulted with Gummerson and told him of their business plans with Be ttis. Pla i ntiffs alleg ed that it was only Be ttis who soug ht leg al advice from the firm. Neve rtheless, Gummerson ref

err ed “plaintiffs and Be ttis” to L ockwood and told them that this ty pe of
transac tion was L ockwood’ s expertise. Bobby asked Gummerson whether separ ate counsel

was nece ssary to repr esent “plaintiffs and Be ttis” in the transac t i o n , an d Gum merson told plaintiffs that separ ate c ounsel was unne cessa ry

. ¶ 12 As they had in their leg al malprac tic e co u n t , p l ai n t i ff s al l ege d that they

informed L ockwood that their intention wa s for all of the EL technolog y ever develope d by Be ttis to become the sole and exclusive proper ty of I ons. I n addition, plaintiffs instructed L ockwood
to draf t an agree ment that would require Be ttis to transfe r to I ons all i n t el l ec tual proper ty ri gh ts in all EL technolog y he developed, for 10 y ear s from the date of the closi ng and f o r

an additional 10 y ear s pursuant t o an au tomatic option to rene w the ag ree ment. Howeve r, plaintiffs alleg ed that L ockwood never informed plaintiffs that h e an d the Campion firm “could n o t wo rk to rea liz e their intentions beca use they wer e not acting as plaintiffs’ attorney s.” ¶ 13 Reg arding the closing
, plaintiffs alleg ed that they “r el i ed ex cl u s i v el y on the fa ctual
repr esentations” made by L ockwood “to lead them succe ssful l y t h ro ug h this complicated maze of leg al documents.” Plaintiffs’ understanding at the closing was that L ockwood and the Campion firm wer e protec ting plaintiffs’ interests. P l ai ntiffs formed this belief based
upon Gummerson’s statement that separ ate counsel for plaintiffs was unnece ssary , but Gummerson’s state ment was fa lse. ¶ 14 Plaintiffs alleg ed that, in addition to misrepre senting that plaintiffs did not need separ ate counsel for th e t ra n s action, Gummerson, L ockwood, and the Campion firm made the following misrepre sentations or omissions of materia l fac t: (1) they failed to disclose that the Campion firm repr esente d Be ttis only ; (2) they misrepre sented that L ockwood was an expert in complex i n t ell ectua l proper ty transac tions; (3) they misrepre sented that Be ttis owned
p at en t s in EL technology ; (4) they misrepre sented that the patents wer e phy sically prese n t in the Campion firm’s offic e; and ( 5) they misrepre sented that pe nding pa tent applications offe red be tter l eg al protection than patents. Plaintiffs relied on these misrepre sentations or omissions in deciding to g o throug h with the closing

. Plaintiffs alleg ed that they had incurre d damag es exceeding $ 4 0 0,000, and they also soug ht damag es for emotional distress and punitive damag es.

-4-¶ 15 Def endants moved to dismiss plaintiffs’ second amende d complaint, pursuant to se ction 2-615 of the Code of Civil Procedur e (Code) (735 I L CS 5/2-615 (West 2006)). On April 25, 2008, the trial court struck sev er al para g raphs of plaintiffs’ leg al malprac tice count. I n addition, the court struck plaintiffs’ fra ud count in its entirety

. T h e co u rt found that leg al malprac tice was “the g rava men of both counts” and considere d the fra ud count to be “a back door wa y to try to tack punitive damag es onto a leg al malprac tice case .” The court g rante d plaintiffs leave to file an amende d complaint as to the leg al malprac tice count, but not as to the fra ud count. The court indicated that plaintiffs wer e fre e to file a motion for leave to file

an ame nded complaint as to the f raud c ount within 28 day s of entry of the orde r. ¶ 16 Plaintiffs timely filed a one-c o u n t t h ird amende d complaint alleg ing leg al malpra ctice only

. The complaint contained no ref ere nce to the previously dismiss ed fra ud count. On the

same d ay , plaintiffs also timely filed a motion for leave to file a two-count third amende d complaint alleg ing both leg al malprac tice and fra ud. Plaintiffs at t ached to their motion a proposed amende d complaint and stated in the motion that the proposed fra ud count was set forth “just as it was set forth in the Second Amended Complaint.” Plaintiffs contende d that the count “state[d] a meritorious claim fo r fraud, pled in the alternative to their claim for leg al malprac tice.” The trial court denied plaintiffs’ motion for leave to file the third amende d complaint containingthe fra ud count. ¶ 17 The matter proce eded to trial on plaintiff’s third amende d complaint containing the leg al malprac tice cou n t only

. Bobby testified that his friend Chuck Aug ust introduced him to Be ttis sometime in J une 2002 and that Bobby in v es t ed $20,003 in Be ttis’s EL technolog y venture in a “handsha

ke deal.” Bobby and Be ttis made p l ans to develop EL technolog y throug h a new ly

formed c orpora

tion named I ons. ¶ 18 The testimony conce rning plaintiffs’ initial meeting s with defe ndants was c o n fl i ct i n g. Bobby
, Robert, an d M o rn a testified to meeting with Gummerson at the Campion firm in either late J une or e arly

J uly 2002, and all thre e rec alled Gummerson say ing that he would be able to repr esent plaintiffs and Be ttis in the I ons transac tion. B obby
, Robert, and Morna also testified to a second meeting with Gummerson that took place sometime in July 2002,
at which Gummerson assig ned the matter to L ockwood, stating that this ty pe of transac tion

was L ockwood’ s expertise. Gummerson denied meeting with plaintiffs in either J une or J uly 2002. L ockwood admitted to meeting with Bobby
, Aug ust, and Be t t i s o n J uly 12, 2002; howeve r, he testified that Bobby was there only beca use he was a party to t h e I ons transac tion, not beca

use he was a client. L ockwood also testified to me eting with pla intiffs
on two occa sions in late J uly 2002. ¶ 19 Bobby testified t hat, prior to closing the I ons transac tion, plaintiffs invested additional
money with Be ttis. On J uly 25, 2002, pl ai n tiffs deposited $11,000 into a bank acc ount

cre ated for I ons, to be used toward pay ment of business expenses. Plaintiffs also g ave Be ttis $3,000 on October 3, 2002, for Be ttis’s persona l use b eca use “he was short of money and pretty hard up.” Copies of these c hecks w ere admitted into evidence

. ¶ 20 Bobby testified that, in ear ly October 2002, approximately one wee k prior to the closing
, he had a 31⁄2 hour meeting with Aug ust in t h e b as ement confe renc e room of the Campion firm. He testified that L ockwood was in and out of the meeting

. He further testified that he

-5-asked L ockwood to g et the patents and that, as befor e, L ockwood told Bobby that the patents

wer e “upstairs.” Aug ust testified that he rec alled the ear ly October 2002 meeting and that the “one key point” at the meeting was the patents. L o ck wood denied meeting with Bobby or Aug ust in ear ly October 2002. A fax from L ockwood to plaintiffs, dated October 10, 2002,

was admitted into evidenc e. The fax cover sheet contained the following messag e: “Enc los ed
y ou will find a Preorg anization Subscription Ag ree ment, a Buy -Sell Ag ree ment, a L icensing Ag ree ment, and a Put Option, which I presume to pr epar e on your beha lf.” ¶ 21 Reg arding the closing
, Bobby testified that i t l as t ed approximately 41⁄2 hours on the afte rnoon of October 10, 2002. He testified that L ockwood passed out the closing documents and beg an ex plaining them but that Bobby interrupted L ockwood to ask whe re the patents

wer e. Acc ording to Bobby
, L ockwood said that they wer e “upstairs” and that he would have

someone bring them down. Eventually
, L ockwood left the closing room to join in the sear ch. After 20 to 25 minutes, L ockwood returne d and said that he could not find the patents. Bobby testified that he said he would not close the deal unless he could see the patents with Be ttis’s name on them. ¶ 22 Bobby

testified that L ockwood then called Vigil, who faxed a docume nt to the closing that stated: “I have been reta ined by Mr. Br ian Bet t i s t o prepa re and file three patent applications identified below.” L ockwood then called Vig il on speake r phone in the closing room. Acc ording to Bobby , Vig il said that Bettis had patents pending , not patents. ¶ 23 Bobby

testified that either

Be ttis or Vigil stated that patents pendingcan be better tha n patents. Acc ording to Bobby
, L ockwood ag ree d with this statement. Bobb y t es t i fi ed that either Be ttis or Vig il expl ai n ed t hat patents pending wer e better beca use the patent applications wer e confide ntial, while the contents of the patent applications would become public afte r the patents wer e g rante d. Vig il testified that he explained during the confe renc e call that the patent applications wer e draf ts that had not y et been filed. Vig il also testified that he would not have said that patents pendingwer e better than patents. ¶ 24 Bobby

testified that he said to L ockwood, “As my attorney , are y ou telling me that this is what I need to close? ” Acc ording to Bobby
, L ockwood said, “Ye s, close the deal,” and Bobby relied on his advic e. L ockwood de nied say ing that a patent pendingwas be tter than

a patent. He also testified that Bobby never asked him, “As my lawy er, should I close? ” Acc ording to L ockwood, he told Bobby at the closing that he did not repr esent him and that he re prese nted B ettis only

. ¶ 25 At the closing
, plaintiffs paid $365,300 in chec ks, consisting of $150,000 paid to A&B Partnership, $91,850 paid to Mary Nelson, $41,750 paid to Munn, $35,000 paid to Corinne and J ordan Be ller, $30,000 paid to Be ttis, and $16,700 paid to Rocky

. Copies of all of these chec ks wer e admitt ed int o evidenc e. Al s o at the closi ng a li censing ag ree ment was signed by which B ettis gr anted to I ons “an e x clusive license to modify the EL Products” and “ the exclusive rig ht to sell the modified EL Products to end users.” The term of the licensing
ag ree ment was 10 y ear s, which would be followed by an additional 10-y ear term at Be ttis’s option. The rec itals section of the licensing ag ree ment stated that Be t t i s held “var ious patents” in EL

technolog y

. ¶ 26 Bobby
, Robert, and Morna testified reg arding their eff orts to de velop the I ons business

-6-following the closing
, which wer e hamper ed by Be ttis becoming “missing in action.” Bobby

testified that Vi gi l ca m e up with the idea of having Bobby and Robert sign the patent applications as co-inve ntors. Vig il testified that plaintiffs finally g ot in touch with Be ttis and that Be ttis signe d decla

ratio n p a g e s for the patent applications in Fe bruar y 2003. Vig il further testified that he filed the patent applications with Bobby ’s and R o b er t ’s signatures as coinventors on Fe bruar

y 24, 2003, and that Be ttis contac ted him soon afte rwa rd with conce rn

over the added signatures. Vig il testified that, ultimately
, he filed amende d applications on May 1, 2003, with Be ttis’s signa ture alone, but that no patents wer e ever i s s u ed for EL technolog y , beca

use Be ttis aba

ndoned the ref

iled applications. Bobby testified that he paid Vig il $16,000 for his work on the patent applications. Morna testified that plaintiffs also had d eposi ted a chec k for $10,000 into the I ons bank acc ount on October 31, 2002. C o p i es o f both chec ks wer e admitted into evidenc e. Bobby testified that plaintiffs decide d to end their involvement with I ons afte r rec eiving a letter in Marc h 2003 from an attorney in California whom Be ttis had retained. ¶ 27 Followingthe closing plaintiffs rec eived two letters from Gummerson on behalf of the Campion firm, both of which wer e admitted into evidenc e. The first letter, dated November 8, 2002, addre ssed sever al issues that Bobby had raised conce rning the closing
, then stated: “Althoug h our firm has repr esente d you in the past, and we hope to have a long, continuing relationship with y ou, for the transac tion that was just conclude d we wer e hired to repr esent Br ian Be ttis’ interests, and we clea rly communicated that to y ou on sever al occa sions, including the closing .” The second letter, dated April 24, 2003, stated: “As you are awa re, signific ant disag ree ments have arisen betwee n t h e d i rec tors and share holders of I ons, I nc. subsequent to t he transaction wherein y ou purcha sed st ock of I ons, Inc. fr om Bria n Be ttis. Duringthat transac tion, as y ou are also awa re, we re prese nted only

Br ian B ettis ***.” The letter conclude d: “B eca

use we consider Chuck Aug ust, Br ian Be ttis and you to be clients, we must reg retfully t er m i n at e o ur repr esentation of the corpor ation in this matter, due to the conflicts which ha

ve ar isen.” ¶ 28 The only expert witness to testify was p l ai n t i ffs’ reta ined expert witness, Dea n Small. Small testified that he was a patent attorney with s ev era l y ear s of experience overse eing complicated business transac tions involving intellectual proper ty

. Small testifi ed t o his opinion that defe ndants fell below the standard of car e for attorney s in their handling of the I ons transac tion. He testified that the standard of car e require d defe ndants to perf orm due diligenc e on Be ttis’s purported patents prior to rec ommending to plaintiffs that they proce ed with the closing

. S m al l t es t i fied that, without due diligenc e, a buy er would not have the information nece ssary t o deter mine an appropr iate price for the intellectual proper ty he
soug ht to buy

. Small further testified that defe ndants fell below the standar d o f care in identifying and informing plaintiffs of the nature and exis tence of the patents. Reg arding the licensing ag ree ment that defe ndants draf ted, Small testified that it was defe ctive for various

rea sons. Small testified that
, to acc omplish plaintiffs’ objectives, defe ndants should have used an asset purcha se ag ree ment, which should have contained repr esentations and

war ranties from the seller to the buy er. Finally
, Small testified that defe ndants fell below the standard of car e when they repr esente d multipl e parties at the closing without explaining the risks or obtaining waiver s. This was improper beca use Be ttis’s interests as a seller of

-7-intellectual prope rty wer e adve rse to plaintiffs’ inter ests as buy ers of that proper

ty

. ¶ 29 The jury returne d a verdic t for plaintiffs. T h e v er d i ct fo rm contained space s for f our cate g ories of da

mag es. The jur

y awa rded plaintiffs $182,625 in da mag es for out-of

-pocke t amounts plaintiffs p ai d at the closing

. The jury awa rded no damag es for out-of-poc ket
amounts plaintiffs paid as their opening investment in the EL technology , for cre dit car d
expenses Bobby and Morna incurre d to develop the I ons business afte r the closing
, or for fe es p l ai ntiffs paid to Vig il for leg al service s following the closing

. I n addition, the jury

answe red “Ye s” to a specia l interrogat o ry that asked whether plaintiffs had proven the exis tence of an att orney -client relationship betwee n plaintiffs and defe ndants for the I ons transac tion. After t h e t rial court denied plaintiffs’ motion for a new trial, plaintiffs timely
appea led.

¶ 30 ANALYSI S ¶ 31 Plaintiffs argue on appea l (1) that the trial court err ed in dismiss ing their fra ud count and (2) that the jury ’s deter

mination of damag es was manifestly inadequate and ignor ed proven elements of da

mag es. We addre ss eac h arg ument in turn.

¶ 32 Dismissal of Fra ud Count ¶ 33 Plaintiffs argue that the trial court err ed in dismiss ing the fra ud count o f t h ei r s ec o nd

am en d ed complaint, beca use they wer e entitled, pursuant to section 2-613(b) of the Cod e (735 I L CS 5/2-613(b) (West 2006)), to plead leg al malprac tice and common-law fra ud in the alternative. ¶ 34 We must first addre ss defe ndants’ waiver argument. Def endants contend that plaintiffs 1 waived any objection to the dismiss al of the fra ud count in their second amende d complaint by filing their one-c ount third amende d complaint, which d i d n o t ref er to or adopt the previously dismiss ed fra

ud count. Plaintiffs contend that they prese rved their fra ud count for appellate revie w by filing a motion for leave to file a two-count third amende d complaint containing the identical fra ud count that the trial court ha d previously dismiss ed. Plaintiffs ask us to revie w de novo the dismiss al of the fra ud count. However, we agr ee with defe ndants that plaintiffs waive d any objection to the dismissal of the fra ud count.

Our sup re m e cou rt has emphasi zed tha t “wai ver,” whic h is the “i nte nti ona l re li nqui shment 1 of a known ri ght,” is not int er cha ngeabl e wit h “f orf ei tur e,” whic h is the “f

ai lur e to m ake the ti m el y

ass er ti on of the ri ght.” (I nte rna l quot at ion m arks om it te d.) Gall aghe r v. Lena rt , 226 I ll

. 2d 208, 229 (20 07)

. However, bec aus e our supr eme cou rt has use d the word “wai ver” in it s Foxc rof t (Foxc rof

t Townh ome Owner

s Ass ’n v. Hoff

man R o s ner Corp

. , 96 I ll

. 2d 150 (19 83) ) li ne of cas es, we wil l abi de b y its cho ic e. As J ust ic e W ar re n D. W olf son put it :

“ T h e ple adi ng- over cas es use the word ‘wa iver. ’ But wai ver is the ‘i nte nti ona l

re li nqui shment of a known r i gh t

. ’ [ C it at ion .] I t woul d be m ore acc ura te to use the word ‘f orf ei tur e’ si nce it is obviou s t hat no a ct ual wai ver was in te nde d by [ pla int if fs ]. W e wi ll
, however
, use the word ‘wa iver’ to be con si st ent wit h the la nguage in the dec is ion s.” Zawad zka v. Ca tho li c Bi sho

p , 337 I ll . App. 3d 6 6, 67 n.1 (20 03)

.
-8-¶ 35 “The rules g overning the prese rvati o n o f d i s missed claims for purposes of appe llate

revie w are clea

r and well settled

. ” B o n h o mme v. St. Jame s , 2012 I L 112393, ¶ 17. Our
supreme cour t h as held t hat, foll owing entry of an order dismiss ing a complaint, if a party files an amende d complaint that is complete in itself and does not ref er to or adopt the prior pleading
, the party h as wa i v ed any challeng e to the order dismiss ing the prior complaint. Foxc roft Townhome Owners Ass’n v. Hoffman Rosner Corp.
, 96 I ll. 2d 150, 154-55 (1983). The “ ‘e ar l i er pleading cea ses to be a part of the rec ord for most purposes, being in eff ect abandone d and withdrawn.’ ” Foxc roft
, 96 I ll. 2d at 154 (quoting Bowman v. County of Lake
, 29 I ll. 2d 268, 272 (1963))

. The Foxc roft rule promotes “ ‘t h e i n t ere st in the eff icient and order ly administration ofjustice’ ” ( Bonhomme
, 2012 I L 112393, ¶ 28 (quoting Foxc roft
, 96 I ll. 2d at 154)) by “ensur [i ng ] that the court and the defe ndant possess objective means of knowing with cer

tainty which cla ims the plaintiff is pur suing, *** [and by] ensur [i ng ] that

a cause proce eds to trial only on the claims contained i n t h e final amende d complaint.” Bonhomme , 2012 I L112393, ¶ 29. ¶ 36 A party

has three methods available to it for avoiding waiver and prese rving dismiss ed claims for appellate revie w. Vilardo v. Barrington Community School District 220
, 406 I ll. App. 3d 713, 719 (2010). First, a party can stand on the dismissed counts, take a voluntar y dismiss al of any rema ining counts, and argue the matter at the appellate level. Vilardo
, 406 I ll. App. 3d at 719. Second, a party can file an amende d pleading that rea lleg es, incorporates by ref ere nce, or ref ers to the dismiss ed counts. Vilardo , 406 I ll. App. 3d at 719. A “simple
para g raph or footnote” is sufficie nt for this purpose. Tabora v. Gottlieb Mem orial Hospital
, 27 9 I l l

. Ap p

. 3d 108, 114 (1996). Third, a party can perf ect an appea l from the dismiss al order prior to filing an amende d pleading that does not ref er to or adopt the dismiss ed counts. Vilardo , 406 I ll. App. 3d at 719. ¶ 37 The burden of prese rving dismiss ed claims fo r ap p el l at e re v i ew “is not onerous.” Bonhomme
, 2012 I L 112393, ¶ 26 n.1. There fore
, wher e a party has failed to employ one of the above methods for avoiding wa iver, “ ong oing obje ctions” to a dismissal order w ill not be sufficie nt t o p rese rve the issue for appea l. Bonhomme
, 2012 I L 112393, ¶¶ 20-22; Boatmen’s National Bank of Bellev ille v. Direct Lines, Inc.
, 167 I ll. 2d 88, 100 (1995). This is true even wher e a party raises objections to a dismiss al order in a motion to rec onsider, in

a motion for a new tri al
, or in motions in limine

. Bonhomme
, 2012 I L 112393, ¶¶ 20-23; Boatmen’s , 167 I ll. 2d at 100. ¶ 38 Plainti ff

s ’ o n e- co u nt third amende d complaint did not ref er to or adopt the pre viously dismiss ed fraud count in any way

. Plaintiffs also did not stand on their di smissed count or perf ect an appea l from the dismiss al order pri o r t o fi ling their one-c ount third amende d complaint. There fore
, under the Foxc roft rule, plaintiffs have waived any challeng e to the

o rd er dismiss ing their fra ud count. They have “in eff ect abandone d and withdrawn” th ei r fra ud claim. ¶ 39 Had plaintiffs done nothing more than file their one-c ount third amende d complaint, this

case would be identical proce durally to Foxc roft
, and our analy sis would end here

. Howeve r, this case contains a proce dural twist

. On t he same day that t h ey fi l ed their one-c ount third amende d complaint alleg ing leg al malprac tice, plaintiffs also filed a motion for leave to file

a two-count third amende d complaint alleg ing leg al malprac tice and fra ud. The fra

ud count

-9-in plaintiffs’ proposed two-count third amende d complaint was identical to the fra ud count that the trial court had previously dismi s s ed

. Plaintiffs contend that, by seeking leave essentially to ref

ile the previously dismiss ed fra ud count, they avoided the conseque nces of the Foxc roft

rule a nd prese rved the count for de novo appellate revie w. We disag ree

. ¶ 40 Plaintiffs’ actions wer e insufficient under exis ting case law to avoid waiver
, beca use our supreme court’s Foxc roft line of case s indicates that prese rvation results, not from the attempt to file an amende d complaint that incorpora tes or ref ere nces a previously dismiss ed count, but from actua lly filing such a complaint. See Bonhomme
, 2012 I L 112393, ¶ 26 (“[I ]f plaintiff wis hed to challeng e on appea l the t rial court’s dismiss al of he r emotional distress

an d defa mation claims, it was incumbent upon her to somehow ref ere nce or inco rp o ra t e those count s i n h er third amende d complaint [which was the final amende d complaint
actua lly filed in the trial court].”); Foxc roft
, 96 I ll. 2d at 155 (“F or the above- related rea sons

we adher e to this rule, and conclude that alleg ations in former complaints, not incorporated in the f inal amende d complaint
, are deeme d waived.” (Emphasis added.)). Here, pl aintiffs

never actua lly filed an amende d complaint that incorporated or ref ere nced the previously dismiss ed fr aud count. ¶ 41 The specia l concur renc e never

theless conclude s that plaintiffs prese rved the fra ud count for appellate revie w, rea soning that “the prese rvation of the cause of action comes from the attempt to f

ile the amende d complaint containing the [di smissed] cause of action, not from the trial court’s decision to g rant or deny leave to file it.” Infra ¶ 81. The specia l concur renc e

s u gges t s t h at, g iven what occur red here
, we should treat as intercha ng eable the filing of a motion for leave to f

ile an amende d pleading and the actua l filing of an amende d pleading

. We disag ree with this rea soning. Ag ain, our supreme court has indicated that pr eser vation results from incorpora

ting or ref ere ncing a previously dismiss ed count in the final amende d pleading actua lly filed in the trial court. See Bonhomme
, 2012 I L 112393, ¶ 23; Foxc roft
, 96 I ll. 2d at 154 (stating that the court “per ceive [s] no undue burden in requiring a party to incorpora te in its final pleading all alleg ations which it desires to prese rve for trial or revie w” (empha sis added) ). Neither Bonhomme nor Foxc roft said that prese rvation ca n result from including a

dismiss ed count in a proposed amende d complaint that is never f iled. ¶ 42 The specia l concur renc e conclude s that the trial court re fu s ed t o al l o w p l aint iffs to comply with Foxc roft and Bonhomme and that we should not fault plaintiffs for attempting, albeit unsucce ssfully
, to prese rve the fra ud count for appellate revie w. Infra ¶ 83. The specia l

concur renc e “find[s] it curious that abandonme n t o f t h e count at issue is deter mined by

unsucce s s fully trying not to abandon it.” (Emphasis i n orig inal.) Infra ¶ 83. I n Boatmen’s
, our supreme court expressly reje cted the specia l concur renc e’s rea soning. I n holding that the plaintiff’s continued objections to t he trial court’s dismiss al order wer e insufficient to prese rve the dismiss ed counts for appellate revie w, the court in Boatmen’s emphasized that it “has reje cted the notion that dismiss ed complaints may never theless be revie wed when a plaintiff does not manifest an intent to abandon the orig inal counts.” Boatmen’s
, 167 I ll. 2d
at 100. Rather than base deter minations of prese rvation and abandonme nt on a subjective analy sis of a plaintiff’s intent, our supreme court has instead opted for a clea r, objective
proce dure that leave s no question in the minds of trial courts or revie wing cour t s as to whether a count ha s been pr eser

ved.

-10-¶ 43 As to the specia l concur renc e’s position that the trial court ref used to permit plaintiffs to comply with Foxc roft
, the rec ord shows otherwise. At the conclusion of the hear ing during which the court dismiss ed the fra ud count contained in plaintiffs’ second amende d complaint, the following exchang e occ urre d:
“MR. KATSAROS [pl aintiffs’ attorney]: J ust for the rec ord, I want to point out that in Count I I [ t h e fra

ud count] we have pled that the Defenda nts wer e not the P laintiffs’ lawy ers. Count I Iis clear ly

– THE C OURT: I t’s not sufficie ntly pled. I t re l i es fo r its basis on the attorney /client relationship.
You ca n’t do both.
I f y ou want to pick it, y ou want to pick a theory y ou can proce ed on, y ou can do one or the other . You ca

n’t do both.
MR. KATSAROS: W e ca n plead f raud a nd abandon le g al malpra ctice?
THE COURT: You may

. I t depends on how y ou plead it. You may be fac ed with an elec tion of remedie s. You may also be makinga fatal mistake. Idon’t know. MR. KATSAROS: You could just–I ’m just try ing to unde rstand your ruling

. THE COURT: Under stand this. I ’m striking Count I I

. I ’m not g oing to explain to y ou how to reple ad it.
MR. KATSAROS: Can I have 28 day s to tender a re p l ead–acc ording to the instructions of the Court?
THE C OURT: I ’m not go i n g to g ive y ou blanket leave to reple ad thi s complaint. I want you to make the motion. You ca n do that whene ver you want.”
As the transcr ipt indicates, there was no discussion reg arding a desire by plaintiffs to comply with Foxc roft or to prese rve their fra ud count for appellate re v i ew. Rather, the trial court indicated that, if plaintiffs wer e to decide to continue to pur sue their fra ud count, it wa

nted the opportunity to revie w an amende d count befor e g ranting plaintiffs l ea v e t o file it. The trial court was expecting an amendment and g ave n o i n d i cation that it would prohibit compliance with Foxc roft if plaintiffs chose not to amend the fra ud count. In plaintiffs’ subsequent motion for leave to file the two-count third amende d complaint, plaintiffs did not indicate that they wished to file the complaint for purposes of prese rving the fra ud count for
ap p ell ate revie w. Rather, as if they wer e asking the trial court to rec onsider its ea rl i er dismiss al order
, plaintiffs argued in the motion that the dismiss ed coun t “s t at e[ d] a meritorious claim for fra

ud” and that they should be able to plead leg al malprac tice and fra ud in the alternative because “their choice between two contra dictory leg al t heor i es * ** need
not be m ad e at t h e pleading stag e, but rathe r at trial.” I n short, plaintiffs did not seek to comply with Foxc roft and Bonhomme and the trial co u rt d i d n o t prohibit plaintiffs from doing so. ¶ 44 Plaintiffs contend that “they simply followed an order of the court” when they filed their

o n e- co u n t third amende d complaint and their motion for leave to file a two-count th i rd amended complaint. This is another argument that our supreme court has reje cted. Bonhomme , 2012 I L 112393, ¶¶ 24-26; Boatmen’s
, 167 I ll. 2d at 99-100. Even if plaintiffs

-11-wer e following the trial court’s instruction, “plaintiff[s] could not treat that instruction as a

license to ignor e Foxc roft .” Bonhomme
, 2012 I L 112393, ¶ 26 (“[E]ven had the trial court instructed plaintiff to a

ppeal the dismiss al of her defa mation a nd emotional distress counts

o n l y afte r filing her third amende d complaint, her argument would rema in unavail i n g. ” (Emphasis omitted.)). I n Boatmen’s
, the trial court expli citly told the plaintiff that its actions

wer e sufficie nt to prese rve an objection to a dismiss al order for appellate revie w. Boatmen’s
, 167 I ll. 2d at 100. The supreme court held that even this expli cit instruction did not “pre clude

a finding of waiver .” Boatmen’ s , 1 6 7 I l l. 2d at 100. The court stated that the “[p] laintiffs should not be excused from following rules intended to prese rve issues for revie w by relying

on a trial judge ’s erro n eo u s belief that an issue was proper ly prese rved for revie w.” Boatmen’s
, 167 I ll. 2d at 100. I f a plaintiff cannot rely on a trial court’s expli cit but err oneous

assura nce that an is sue was prese rved for re v i ew , then pl aintiffs i n this case should not be able to rely on the ac t i o n s o f a trial court that made no statement whatsoeve r reg arding
p re s ervation of an issue for revie w. As discussed above, the rec ord indicates that the trial
court was expecting an actua l amendment when it indicated that it would enter tain a motion for leave to file an am en d ed fra ud count, not that the t rial court was giving instructions or

assura nces conce rning the prese rvation of an issue for appea l. Once plaintiffs knew that they would not be amending their fra ud count, it was incumbent on them–not on the trial court–to

ensure that they followed appropr iate proce dures to prese rve the previously dismiss ed count for revie w by
, for example, inc luding in the one-c ount third amende d complaint a footnote or some other

ref ere nce to the dismissed fr aud count. ¶ 45 We also decline to rec og nize plaintiffs’ actions as a new method for prese rving dismiss ed
counts for appellate revie w, beca use, as we alluded to a

bove, it would be inconsistent with

our supreme court’s Foxc roft line of case s and it would lead to confusion in trial courts rathe r than promote the eff

icient and order ly administration of justice. Throug h its “nea

rly 50 y ear s of unbroken jurisprudenc e” on this issue ( Bonhomme
, 2012 I L 112393, ¶ 31), our supreme court has endorse d a simple method for prese rving dismiss ed counts for appellate revie w: “[U]nl ess the amende d pleading somehow incorporates or ref ere nces the pleadings in the former complaint, ‘a party who files an amende d pleading waives any objection to the trial court’s ruling on the former complaints.’ ” Bonhomme
, 2012 I L 1 1 2 3 9 3
, ¶ 23 (quoting Boatmen’s
, 167 I ll. 2d at 99). The court has stated that it “pe rc eive[ s] no undue burden in requiring a party to incorpora te in its final pleading al l al l ega t ions which it desires to prese rve for trial or revi ew

. ” F oxcroft
, 96 I ll. 2d at 154. The payoff for adher ing to this simple proce dure is promotion of “ ‘the int ere st in the efficient and or derly administration of justice.’ ” Bonhomme
, 2012 I L 112393, ¶ 28 (quoting Foxc rof t , 9 6 I l l

. 2 d at 154). As discussed above, ref

ere nce t o a dismiss ed claim in a plaintiff’s final amende d complaint (ac tually filed i n the trial cour t) g ives “the c ourt and the de fenda nt *** objective mea

ns of knowing with cer

tainty which claims the pl ain t i ff i s pursuing ” and “ensur e[s] that a cause proce eds to trial only on the claims contained in the final amende d complaint.” Bonhomme
, 2012 I L112393, ¶ 29. ¶ 46 Her e, plaintiffs simult aneously filed a one-c ount third amende d complaint alleg ing le g al malprac tice only and a motion for leave to file a two-count third amende d complaint alleg ing leg al malprac tice and fra ud. Once the trial court denied plaintiffs’ moti o n , p l aintiffs

-12-p ro cee ded to trial on their one-c ount final amende d complaint. Plaintiffs did not fi l e an

amende d complaint that, for examp l e, co ntained a footnote ref ere ncing the previously dismiss ed fra

ud count. Plaintiffs’ actions g ave no objective indication of their intentions, to defe ndants or to the trial court. At best, plaintiffs’ belief that they had prese rved their fra ud
count was based upon their subjective interpre tation of their actions. Were we to rec og nize plaintiffs’ actions as a new method f or avoidingwaiver , we would g ener ate c onfusion and complexit y wher e the supreme court has endorse d clar ity and simpli city

. Given our supreme court’s recognition of a clea r, si mple, and effec tive proce dure for avoiding waiver, we see

no rea son to rec og nize plaintiffs’ actions as a new method for prese rving dismiss ed counts for a ppellate r eview. ¶ 47 Although w e ca n revie w for a

n abuse of discretion the tria l court’s de nial of plaintiffs’ motion for l ea v e to file the two-count third amende d complaint containing the previously dismiss ed fra

ud count, we conclude that this does not save plaintiffs from the eff ects of their waiver under the Foxc r o f t ru l e. Ordinar ily
, the denial of a motion for leave to file an amende d complaint is revie wed for an abuse of discretion. Century-National Insurance Co.

v. Tracy
, 316 I ll. App. 3d 639, 646 (2000). Her e, as we hav e discussed, plaintiffs did not amend their previously dismiss ed fra ud count in any manner

. Rather, plaintiffs soug ht leave
to ref ile the very fra

ud count that the trial court had p re v i o u sly dismiss ed as leg ally insufficient. Be cause it had alre ady deter mined that plaintiffs’ fra

ud count was defe ctive, the trial court was justified in denying plaintiffs’ motion on the basis that the “new ” fra ud count

was unamende d. I f plaintiffs had soug ht le ave to f ile a fra ud count that was not identical to the pre v i o u s ly dismiss ed count, but was actually amende d, we would revie w t he merits of the amende d fra

ud count. I n this case , howeve r, beca use plaintiffs did not seek leave to file

an amende d fra

ud count, there was no amendment for the trial co u rt , or for this court, to revie w. ¶ 48 Plaintiffs further contend that they prese rved the fra ud count for appellate revie w bot h by stating in their response to defe ndant’s motion for summary judgme nt that they intended
to prese rve the fra

ud count for a

ppeal a nd by objectingto the dismiss al i n their m otion for

a new trial. Howe v er , h av i ng failed to employ one of the three rec og nized methods for avoiding waiver under Foxc roft
, plaintiffs could not prese rve their fra ud count by making
ong oing objection s to the dismiss al order

. See Bonhomme
, 2012 I L 112393, ¶¶ 20-23; Boatmen’s , 167 I ll. 2d at 100. ¶ 49 Our conclusion is supported by the consideration that plaintiffs’ motion for leave to file

an ame nded complaint conta ining the f raud c ount was i n substance a m otion to reconsider the dismiss al order

. “A motion is define d by its substance rathe r than its heading .” Langone

v. Schad, Diamond & Shedden, P.C.
, 406 I ll. App. 3d 820, 829 (2010). As mentioned above, plaintiffs asser

ted in their motion for leave to file the third amende d complaint that the fra ud
count in the attache d proposed complaint was set fo rt h “j u st as it was set forth” in the previously dismiss ed second amende d complaint. Thus, plaintiffs’ fra ud count was not “ame nded.” I nstead, plaintiffs simply offe red additional argument for why the court should
not have dismiss ed the count. Ag ain, our supreme court has held that a motion to rec onsider

a dismiss al order is not sufficie nt to avoid waiver under Foxc roft

. Bonhomme
, 2012 I L 112393, ¶¶ 20- 23; Boatmen’s , 167 I ll. 2d at 100.

-13-¶ 50 We n o t e t h at , even if we wer e to conclude that plaintiffs succe ssfully avoided wa iver

under the Foxc roft rule, we would still reje ct plaintiffs’ argument that the trial court err ed in dismiss ing the fra

ud count

. Pl a in

ti f f s c o n te n d th a t th e y succe ssfully pleade d leg al malprac tice and fra ud in the alternative, beca

use they pleade d leg al malprac tice based upon the exis tence of an attorney-client relationship and fra ud based upon the nonexis tence of an attorney -client relationship. We disag ree

. Plaintiffs pleade d essentially the same fac t s in both counts, but simply aff

ix ed differ ent labels to them. T his was not an appropr iate use of alterna tive pleading

. Nettleton v. Stogs dill
, 387 I ll. App. 3d 743, 760 (2008); Majumdar v. Lur ie
, 274 I ll. App. 3d 267, 273-74 (1995); see also Nea de v. P o r t es , 193 I ll. 2d 433, 445 (2000) (“While pleading in the alternative is g ener ally permitted [citation]
, duplicate claims are not permitted in the same c omplaint.”). ¶ 51 Even t h o ug h plaintiffs beg an their fra ud count by alleg ing that there was no attorney

client relationship betwee n plaintiffs and the Campion firm, Gummerson, or L ockwood, which was a conclu s o r

y a lleg ation, they went on to alleg e fac ts establishing an attorney -client relationship. For example, as they had in their leg al malprac tice count, plaintiffs alleg ed that, beg inning in ear ly J uly 2002, they consulted with Gummerson and told him of their business plans with Be ttis. Plaintiffs alleg ed that Gummerson ref err ed “plaintiffs an d Be t tis” to L ockwood. Plaintiffs further alleg ed that, when Bobby asked Gummerson whether separ ate counsel was nece ssary to r e p r esent “plaintiffs and Be ttis” in the transac tion, Gummerson told plaintiffs that separ ate counsel was unnece ssary

. These wer e essentially the same fac ts that plaintiffs alleg ed in their leg al malprac tice count to establish an attorney-client relationship. Mere ly by conclusorily stating that defe ndants wer e not actua lly their attorney s, plaintiffs did not plead an a lternative se t of fac ts.

¶ 52 Damag es ¶ 53 Plaintiffs’ second argument on appea l i s t hat the jury ’s deter mination of damag es wa s manifestly inadequate and ignor ed proven elements of damag es. P laintiffs further contend that they are entitled to a new tri al on damag es only

. Def endants argue in response that plaintiffs have forf

eited the issue on appea l and, alterna tively
, that the jury ’s damag es awa rd

was we ll within t he ra

ng e supported by

the evidenc e. ¶ 54 Once ag ain, we first addre ss defe ndants’ forfeitur e argument. Def endants contend that plaintiffs forf

eited any objection to the jury ’s damag es awa rd by failing to raise the issue in their motion for a new trial. Plaintiffs maintain that they sufficie ntly raised the issue in their posttrial motion. Plaintiffs point out that, even though their p o s t t ri al motion “did not specific ally reque st a new trial for damag es on g rounds of inadequa cy ,” it did contain three
para g raphs di scussing the “conc lusive” evidenc e of damag es and state that, “despite the undisputed evidenc e of damag es ***, the jury awa rded [p] laintiffs only $182,650.” Plaintiffs further point out that the trial court char acte rized these statements as argument when it said
at the hear ing on their motion, “[Y]ou didn’t rea lly mention it in y our oral argument, but y ou did raise the issue in the post-trial motion that the damag es wer e inadequate.” Plaintiffs also point out that the trial court conclude d t h at d am age s wer e “pure ly a jury call,” befor e it denied plaintiffs’ motion.

-14-¶ 55 I llinoi s Supreme Court Rule 366(b)( 2)(iii) (ef f. Fe b. 1, 1994) provides that “[a] party may not ur g e as err or on revie w of the ruling on the party ’s post-trial motion any point, gr ound,

or relief not specifie d in the motion.” Section 2-1202(b) of the Code (735 I L CS 5/2-1202(b) (West 2010)) further dictates that a p o s t t ri al motion “must contain the points relied upon, particula rly specify

ing the g rounds in support there of, and must state the relief desired.” Our
supreme court has descr ibed the “thre efold” purpose underly ing Rule 366(b)( 2)(iii). Brown

v. Dec atur Mem orial Hospital
, 83 I ll. 2d 344, 349 (1980). First, the rule allows the trial court to revie w ear lier decisions without the pressure of an ong oing trial. Brown
, 83 I ll. 2d at 349. Second, the rule all o ws the revie wing court to asce rtain from the rec ord whether the trial
court was aff

orded an opportunity to corr ect an alleg ed err or. Brown
, 83 I ll. 2d at 349. Third, the rule preve nts litigants from stating mere gener al objections and then raising on appea l
arguments that the trial judge was not g iven an adequate opportunity to consider. Brown
, 83 I ll

. 2 d at 3 4 9 -50. A litigant can satisfy the rule’s specific ity require ment by including in a posttrial motion “a simple, succinc t statement of the fac tual o r l ega l basis” for the party ’s contention of err or. Brown
, 83 I ll. 2d at 350. “A party seeking to prese rve an issue for revie w must raise t h e issue with enoug h specific ity and clar ity to serve the purposes of Rule 366(b)( 2)(iii).” Ryan v . Katz , 234 I ll. App. 3d 536, 542 (1992). ¶ 56 We ag ree with plaintiffs that they did not forf eit the issue of the sufficie ncy of the jury ’s damag es awa

rd, beca use the purposes underly

ing Rule 3 6 6 ( b ) ( 2 ) ( ii i) w ere adequately serve d. As plaintiffs point out, even though t h e ar gu m en t section of their posttrial motion did not include a discussi o n co n ce rning damag es, the trial court char acte rized their discussion of damag es as argument and addres s ed t h e i s sue at the hear ing on the motion. Moreove r, althoug h plaintiffs did not cite authority to support their asser tions that dam age s wer e inadequate, their discussion of d am age s did contain specific contentions reg arding the i n adequacy of the damag es awa rd. Plaintiffs discussed the “uncontr adicted testimon y ”
reg arding their expenditures in connec tion wi t h the I ons closing and asser ted that “the evidenc e conclusively proved” damag es totaling $422,490.38. Plaintiffs then asser ted that, “despite the undisputed evidenc e of damag es ***, the jury awa rded [p] lain t i ffs only $182,650.” Although it did so only minimally
, plaintiffs’ posttrial motion raised more than

a g ener al objection to the damag es aw ar d
, an d it aff orded the trial court an opportunity to deter mine whether an error had occ urre d. The trial court addressed the issue and found no

er ro r, concluding that damag es wer e “pure ly a jury call.” Given these considerations
, we conclude that plaintiffs did not forfe it the issue for appe al. ¶ 57 We never

theless reje ct plaintiffs’ argument that the jury ’s damag es awa rd w a s ma nifestly inadequate and ignor ed proven elements of damag es. As mentioned above, plaintiffs argue that, beca use t he jury found t hat defend ants wer e neglig ent, t he jury “had no choice but to

awa rd $422,490.38,” which is the total amount of damag es that “proximately flowed” from defe ndants’ neg lige nce. Plai n t i ffs further argue that littl e defe renc e is owed to the jury ’s deter mi n a ti o n of damag es, beca

use plaintiffs’ damag es wer e “fixed and liquidated” as shown by the undisputed che cks introduce d into evidence at trial. ¶ 58 Def

endants argue in response that the jury ’s damag es awa rd was well within the flexible
rang e s u p p orted by the evidenc e. I n particula r, defe ndants argue that the jury could have conclude d that the $34,003 that plaintiffs invested in Be ttis and I ons prior to the closing was

-15-n ot proxi mately cause d by defe ndants’ neg lige nce, beca use plaintiffs did not rely o n defe ndants’ advice in making these pay ment s

. R egarding the $365,300 that plaintiffs paid
at t he closing, defendants arg ue that the jury could have conclude d that plaintiffs wer e not entitled to rec over this entire amount, beca use there was evidenc e that plaintiffs did not walk

awa y from the closing empty -hande d. Def endants furth er ar g ue that subsequent events, wh i ch we re not rea sonably fore seea ble by defe ndants at the time of the closing
, wer e ult i m ately what cause d plaintiffs to lose their entire investment. Finally
, defe ndants argue that the jury could have conclude d that defe ndants owed plaintiffs no duty in connec tion with the postclosing e x penditures totaling$23,187.38. ¶ 59 Whil e the amount of a damag es awa rd is g ener ally within the discretion of the jury
, a new trial may be war

rante d (1) “if the damag es are manifestly inadequate,” (2) “if it is clea r that proved elements of damag es h av e b een ignor ed,” or (3) “if the amount awa rded bear s no

rea sonable relationship to the loss suffe red by the plaintiff.” Merrill v. Hill
, 335 I ll. App. 3d 1001, 1006 (2002) (ci t i ng Hollis v. R. Latori a Construction, Inc.
, 108 I ll. 2d 401, 407 (1985))

. “L ess defe renc e is owed to the jury ’s awa rd when damag es in a fix ed and liquidated

am ount are involved, in contra st, for example, to traditional persona l injury damage s

. ” Merrill
, 3 3 5 I l l. App. 3d at 1006. A reviewing court “ ‘will not substitut e it s judgme nt for that of the jury

*** unless there is a lack of a re asonable basis for the verdic t shown in the

rec o rd .’ ” Glassman v. St. Joseph Hospital
, 259 I ll. App. 3d 730, 766 (1994) (quoting Hernande z v. Lukas , 104 I ll. App. 3d 692, 694 (1982)). ¶ 60 I f a c ourt deter mines that a damag es awa rd was inadequate, it may order a new trial on all issues or, if cer

tain criter ia are met, a new trial on damag es only

. Hollis
, 108 I ll. 2d at 408. A new trial on the issue of damag es alone is war rante d if (1) “the jury ’s verdic t on the question of liability is amply supported by the evidenc e,” (2) “the questions of damag es and liability are so separ ate and distinct that a trial limit ed to the question of damag es is not unfair to the defe ndant,” and (3) “t h e record sug g ests neither that the jury rea ched a compromise verdic t, nor that, in some other identifiable manner , the err or which resulted in the jury ’s awa

rding inadequate damag es also aff ecte d its verdic t on the question of liability .” (Interna l quotation marks omitted.) Hollis , 108 I ll. 2d at 408. ¶ 61 “A successful lega l malprac tice claim place s the pl aintiff in the s ame position that she would have occupie d but for the attorney ’s neg lige nce.” Nettleton , 387 I ll. App. 3d at 749. This comports with the “ ‘g ener al rule of [t ort] damag es,’ ” which is that “ ‘the wr ong doer is liable for all injuries resulting direc tly from the wrong ful acts ***, provided the particula r damag es are the leg al and natura l conseque nces of the wrong ful act imputed to the defe ndant, and are such as might rea sonably have been anticipated.’ ” (Interna l quotation marks omitted.) Nettleton
, 387 I ll. App. 3d at 749 (quoting Haudrich v. Howmedica, Inc.
, 169 I ll. 2d 525, 543 (1996))

. I n a traditional leg al malprac tice case in which the plaintiff alleg es that the defe ndant’s malprac tice cause d the plaintif f t o l o s e a cause of action, “an awa rd of damag es equa l to the amount she did not rece ive as a result of the defenda

nt’s malprac tice is nece ssary to place the plaintiff in the same position that she would have occupie d had the defe ndant not been neg lige nt.” Nettleton
, 387 I ll. App. 3d at 752. By contra st, wher e a leg al malprac tice plaintiff alleg es that the de fenda nt attorney ’s advice fell below the standard of

rea sonable leg al service s, “any damag es which proxi mately flow from th e c li e nt’ s a c c e p ta nce

-16-of that advice are rec overa ble in a neg lige nce action ag ainst the attorney .” Metrick v. Chatz
, 266 I ll. App. 3d 649, 655 (1994). Howeve r, “ ‘I llinois has long rec og nized the applicability
, in questions of damag es, of the doctrine of avoidable conseque nces, which preve nts a party from rec overing damag es for conseque nces which that p ar t y could rea sonably have avoided.’ ” Union Planters Bank, N.A. v. Thompson Coburn LLP
, 402 I ll. App. 3d 317, 356 (2010) ( quoting Maerev. Churchill , 116 I ll. App. 3d 939, 946 (1983)). ¶ 62 Proof of proxi mate cause require s proof of both “ca use in fac t” and “leg al cause .” Union Planters
, 402 I ll. App. 3d at 343. Courts employ either of two tests to deter

mine “ca use i n fac t.” Union Planters
, 402 I ll. App. 3d at 3 43. Under the traditional “but for” test, “ ‘a defe ndant’s conduct is not a cause of an event if the event would have occur red without it.’ ” Union Planters
, 402 I ll. App. 3d at 343 (quoting Thacker v. UNR Industries, Inc.
, 151 I ll. 2d 343, 354 (1992))

. Under the “substantial fac tor” test, “ ‘the defe ndant’s conduct is said to be

a cause of an event if it was a materia l element and a substantial fac tor in bring ing the event about.’ ” Union Planters
, 402 I ll. App. 3d at 343 (quoting Thacker
, 151 I ll. 2d at 354-55). L eg al cause , on the other hand, “ ‘is essentially a question of fore seea bility : a neg lige nt act is a proxi mate cause of an injury if the injury is of a ty pe which a rea sonable man would see

as a likely result of his conduct.’ ” (Interna l quotation marks omitted.) Union Planters
, 402 I ll. App. 3d at 343 (quoting Lee v. Chicago Transit Authority
, 152 I ll. 2d 432, 456 (1992))

. “ ‘[A] n injury will be found not to be within the scope of the def endant’ s duty if it a

ppear s “hig hly extraordinary” that the brea ch of the duty should have cause d the particula r injury .’ ” Union Planters , 402 I ll. App. 3d at 343 (quoting Lee , 152 I ll. 2d at 456). ¶ 63 We ag ree with defe ndants that the jury ’s damag es awa rd fell within the rang e supported by the evidenc e. Reg arding the $34,003 in pa y ments that plaintiffs made to Be ttis and I ons prior to the closing
, we ag ree with defe ndants that the jury rea sonably could have conclude d that defe ndants’ neg ligen ce d i d n ot proxi mately cause plaintiffs to incur these expenses. Bobby testified t h at h e gav e Be ttis $20,003 in a “handsha ke deal” prior to seeking leg al advice from def

endants. B obby

further testified that, on J uly

25, 2002, plaintiffs deposited $11,000 into a bank acco u n t created for I ons. Although plaintiffs had soug ht leg al advice from defe ndants by this point, plaintiffs prese nted no evidenc e sug g esting that they relied on defe ndants’ advice in making the deposit. Finally
, Bobby testified that he g ave Be ttis $3,000

on October 3, 2002, for his persona l use beca use Be ttis “wa s short of money and pretty hard up.” Ag ain, plaintiffs prese nted no evidenc e that they relied on defe ndants’ advice in g iving Be ttis this mone y

. There fore
, it was not a g ainst the manifest weig ht of the evidenc e for the jury not to awar d plaintiffs any portion of their pre closing investments as damag es. ¶ 64 Reg arding the $365,300 that plaintiffs paid at closing
, we also ag ree with defe ndants that the j ury rea sonably could have conclude d that defe ndants’ neglig ence did no t proxi mately

cause damag es in this full amount

. T h e ev i dence supported a rang e of smaller damag es

awa rds. Although plaintiffs contend that their pay ment of the entire $365,300 “proximately flowed” from their relianc e on defe ndants’ advice
, proxi mate causation, as discussed above, require s proof of “c ause in fa ct” a nd “leg al ca

use.” Reg ardingthe “c ause in f act” aspec t of proxi mate cause , defe ndants point out that plaintiffs prese nted no evidenc e that they would
not have g one throug h with the closing had defe ndants g iven them adequate leg al advice

. Although Bobby testified that he relied on L ockwood’ s advice that plaintiffs g o throug h with

-17-the closing
, this testimony was not uncontrove rt ed
, as L ockwood denied that Bobby ever

requ ested his advice reg arding whether to close. Moreover, although Small testified t o his opinion that the s tandar d of care require d defe ndants to advise plaintiffs not to g o throug h with the closing
, Small also testified that due diligenc e under the standard of car e would have provided plaintiffs with the information nece ssary to deter mine an appropr iate price for the intellectual proper

ty they soug ht to buy . Thus, while the jury could have deter

mined based on the evidenc e pre sented that plaintiffs would not ha ve g one throug h with the closing but for defe ndants’ neg lige nce, this was only o ne of sever al conclusions supported by the evidenc e. The jury rea sonably could have conclude d that, had plaintiffs rec eived competent advice
, they still would have g one throug h with the transac tion but they would have paid less for what they

rec eived. ¶ 65 Simi larly
, while plaintiffs maintain in their brief that they left the closing as shar eholder s in a company with no value, plaintiffs offe red no expert testimony to support this asser tion. Plaintiffs offe red no expert testimony that the pending patent applications wer e completely devoid of value. Additionally
, plaintiffs’ testimony that, as late as Fe bruar y 2003, they wer e still actively pursuing the I ons business sug g ests that the company had value. The j u ry

rea sonably could have conclude d that defe ndants’ neg lige nce was not the “ca use in fac t” of damag es in the amount of $365,300. ¶ 66 The jury also rea sonably could have conclude d that defe ndants’ neg lige nce was not the “leg al cause ” of damag es in the full amount of $365,300. Ag ain, leg al cause is a question of the rea sonable fore seea

bility of the injury when the neg lige nt act occur s. Union Planters
, 402 I ll. App. 3d at 343. Def

endants elicited testimony sug g esting that the I ons business ultimately failed afte r Bobby and Robert signe d the patent applications as co-inve ntors and plaintiffs’ relationship with Be ttis deter io ra t ed. I n addition, Vig il testified that the rea son no patents

wer e ever issued for EL technolog y was that Be ttis abandone d the ref iled applications. Thus,

even if the jury had deter mined that defe ndants’ neg ligen ce wa s the cause in fac t of plaintiffs’ expenditure of the full $365,300, the jury still could have conclude d that plaintiffs’ ultimate loss of that en t i re i n v es tment was not rea sonably fore seea ble at the time of the closing and, there fore
, that defe ndants’ neg lige nce was not the proxi mate cause of damag es totaling $365,300. The jury could have conclude d that it was not rea sonably fore seea ble that Be ttis would become “missing in action,” that Bobby and Robert would resor t to signing the patent applications as co-inventors, or that Be ttis would abandon the applications. ¶ 67 We further determ i n e t h at t he jury rea sonably could have conclude d that defe ndants’
neg lige nce was not the proxi mate cause of plaintiffs’ postclosing expenditures relating to the I ons business. Reg arding the $16,000 paid to Vig il f or his w ork on the patent applications,
p la in ti f f s a g a in c o n

te n d th a t th is p a y me nt “proximately flowed” from defe ndants’ neg lige nce

. Howeve r, given the testimony at t rial, t he jury need not have decided that plaintiffs would
not have had to incur these attorney fee s but for defe ndants’ neg lige nce. See Nettleton
, 387 I ll. App. 3d at 752 (“[W] here a leg al malprac tice plaintiff alleg es that the defe ndant’s malprac tice ca

used her to incur attorne y

fee s, an aw ard of

damag es equa l to the amount of attorney fee s she would not have had to spend but for the defe ndant’s neg lige nce is nece ssary to put the plaintiff in the same position she would have occupie d had the defe ndant not been
neg lige nt.”). Vig il testified that he had not y et filed the patent applications at the time of the

-18-closing

. Thus, even if defe ndant s had given plaintiffs adequate l eg al advice at the closi ng ,

defe ndants still would have had to pa y Vig il to finaliz e and f

ile the patent a

pplications. As discussed above, the jury n ee d n o t have deter mined that plaintiffs would not have g one throug h with the closing but f or defe ndants’ neg lige nce; instead, the jury rea sonably

could have conclude d that p l ai n t i ffs still would have g one throug h with the closing but perha ps paid a lower price

. There fore
, the j u ry ’s d ec ision not to awa rd $16,000 in damag es for plaintiffs’ pay

ment to Vigil wa s supported by the evidenc e. ¶ 68 Reg arding the rema ining postclosing expenditures, totaling $7,187.38 and related to the 2 development of the I ons business, it was also rea sonable for the jur y to conclude that defe ndants’ neg lige nce was not the proxi mate cause of these expenditures. Pl aint iffs
prese nted no evidenc e that, but for defe ndants’ neg lige nce, they would not have had to spend these funds t o d ev elop the I ons business. Even had defe ndants g iven plaintiffs competent leg al advice
, plaintiffs still may have g one throug h with the closing and incurre d these expenses developingthe business. ¶ 69 Ba sed on the fore g oing, we conclude that the jury ’s damag es awa rd was supported by

the evidenc e, that it was not manifestly inadequate, and that the jury d i d n ot ignor e proven ele m en t s of damag es. Given our deter mination that damag es wer e adequa te, we need not addre ss plaintiffs’ ar g ument that they are entitled to a new tr ial on damag es only

.

¶ 70 CONCL USI ON ¶ 71 For the above rea sons, we aff irm the judgme nt of the circ uit court of McHe nry County

.

¶ 72 Affir

med.

¶ 73 J USTI CE McL AREN, spec ially concur ring

. ¶ 74 I specia lly concur beca use, althoug h I ag ree as to the result reg arding the dismiss al of the fra ud count, I disag ree with the analy sis. I n order to understand the context of the proce dural posture of the case , Iwish to restate the following proce dural fa cts: “The court g rante d plaintiffs leave to fi l e an am en ded complaint as to the leg al malprac tice count, but not as to the fra ud count. The court indicated that plaintiffs wer e fre e to file a motion for leave to file an amende d complaint as to the fra ud count within 28 day s of entry

of the orde r. Plaintiffs timely fil e d a o n e

- c o u nt th ird a me n d ed complaint alleg ing leg al malprac tice only

. The complaint contained no ref ere nce to the previously dismiss ed fra ud count. On the same day
, plaintiffs also timely filed a motion for leave to file a two-count third amende d complaint alleg ing both leg al malprac tice and fra ud. Plaintiffs attache d a proposed amende d complaint to their motion, and stated in the motion that the proposed

T his amount con si st ed of $2,6 34.4 6 in cr edi t car d exp ens es and oth er exp end it ure s tot al ing 2 $4,5 52.9 2 (pl ai nti ff

s dep osi te d $10, 000 in the I ons ban k acc ount on Oct obe r 31, 2002
, but wit hdr ew the re m ai nin g $5,447. 08 whe n event ual ly the y clos ed t he b ank acc ount ).

-19-fra ud count was set forth ‘just as it was set fo rt h i n t h e Second Amended Complaint.’ Plaintiffs conte n d ed that the count ‘state[d] a meritorious claim for fra ud, pled in the alternative to their claim for leg al malprac tice.’ The trial court denied plaintiffs’ motion for leave to f

ile the third amende d complaint containing the fra ud count.” Supra ¶¶ 15- 16. ¶ 75 Ibelieve that the motion for leave to file the two-count third ame nded complaint, filed contempora

neously with or subsequent to the single -count third amende d complaint that was fi led in confor

mity with the trial court’s order
, was a valid attempt to preserv e t h e fr au d
count. Or more prec isely
, the motion for leave to file is the antithesis of proof of an abandonme nt of the claim. The attempt to f ile the two-count amende d complaint, in which the fra ud count was not amende d in any way , indicated that plaintiffs wer e attempting to keep intact the claim of err or reg arding the dismiss al of the fra ud count. Put another way , the pleading was unchang ed beca use plaintiffs believed that there was no defe ct to cure and that the “ame nded” complaint stated a cause of action. See Childs v. Pinnacle Health Care, LLC
, 399 I ll. App. 3d 167, 178 (2010) (whe rein simil ar attempts wer e not deeme d abandonme nts under Foxc roft ). The majority deter mines that there is no abuse of discretion in denying leave
to file when there has been no chang e in the plea d i n g. Al t h o u gh it cites to no authority to support its conclusion that “[b] eca use it had alre ady deter

mined that plaintiffs’ fra

ud count

was defe ctive, the trial court was justified in denying plaintiffs’ motion on the basis that the ‘new ’ fra ud count was unamende d” (supra ¶ 47), the majority appar ently bases this conclusion on the “abuse of discretion” analy sis as set out in Haye s Mec hanical, Inc. v. First Industrial, L.P.
, 351 I ll. App. 3d 1, 7 (2004), specific ally
, whether the new pleading “cur es the def ect.” ¶ 76 The majority ’s conc lusion that there wa s no abuse of discretion in de nying the filing is based upon the fac t that, be cause the fra ud count had not c hang ed, the proposed two-count third amende d complaint could not possibly cure the defe ct. See supra ¶ 41. The majority is presuming that the previously dismiss ed fra ud count was defe ctive and, thus, without chang es, it must be def

ec t ive in the proposed pleading as well. The majority ’s a fortiori analy sis presumes that the previously dismiss ed fra ud count failed to state a cause of action in order to logic ally conclude that there was no cure if there was no chang e. The majority
, by only looking at the amende d pleading and deter mining that the fra

ud count was identical and, there fore
, defe ctive, is making
, not an analy sis, but a conclusion based upon a presumption. Ag ain, the majority relates, “B eca use it had alre ady deter

mined that plaintiffs’ fra ud count was de fec tive, the trial court was just ified i n denying plaintiffs’ motion on the b as i s that the ‘new’ fraud count was unamended.” Supra ¶ 47. The majority is concluding that a deter

mination by a trial court can supplant a deter mination by a court of revie w as to the merits of a pleading

. I t is either ex p eriencing a new form of denial as to a revie wing court’s ability to consider the merits of a trial court’s j u dg ment, or i t is basing its decision

on the presumption that the trial court’s judgme nt was corr ect in dismiss ing the initial fra ud
count. The majority then decide s that, since the proposed fra ud count was identical, it must be defe ctive as well. I sug g est that the majority ’s attempt to ra t i o n alize its presumptive

co n clusion is a circumlocution. I submit that, wer e the opposite presumption applied (that the previously dismiss ed fra ud count was not defe ctive), then the proper conclusion would

-20-be that, if the f raud c ount was not

chang ed, it would be an a buse of discr etion not

to allow the filing of the plea ding. ¶ 77 I believe that the prope r an al y sis should not be based upon either presumption. That would require this court to first deter mine, de novo , whether the previously dismiss ed fra ud
count was defe ctive. I f it we re, a revie w of the ne w pleadingwould be base d, not on either presumption, but on the merits of the fra ud count in the proposed third amende d complaint. The m aj o ri t y renounc es this analy sis, claiming that it would compromise or subvert the holding in Foxc roft and be contra ry to the holding in Boatmen’s

. Howeve r, as will be 3 explained below, the failure to g rant leave to file did not preve nt appellate re v i ew, as the
g rant or de nial of leave would have no eff ect on our authority to reviewthe merits. ¶ 78 The majority claims that a portion of the transcr ipt establishes that the trial court did not ref use to allow plaintiffs to perf ect revie w of the fra

ud count. I f that wer e the case , then I do
not see why the trial court would have “indicate d that, if plaintiffs wer e to decide to continue
to pursue their fra

ud count, it wanted the opportunity to revie w an amende d count befor e g ranting plaintiffs leave to file it.” S u p r a ¶ 4 3

. Thus, if plaintiffs wanted to stand on the count, what wer e they supposed t o d o ? Chang e it in order to comply with the trial court’s
statement or let it stand and have its filing denied? The trial court told plaintiffs that they had
to seek leave to reple ad, and now the majority is faulting them for doing so. Contrary to the

ma jo rit y ’s conclusion that plaintiffs did not comply with Bonhomme or Foxc roft
, neithe r c a s e contained suc h a fa ctual pre requisite as w as plac ed upon plaintiffs by the trial cour

t in this

ca s e, and the majority has place d these plaintiffs in an impossibl e position by requiri n g compliance with the two case s while ref using to acknow ledg e the “proc edura l twist,” as the majority has called it, which was neither ref lected nor discussed in the two case s. Supra ¶ 39. Considering the totality of the rec ord, it is patently clea r that plaintiffs wer e att empting to comply with Foxc roft
, Bonhomme
, and the trial court’s “sug g estion” that leave be soug ht to file an amende d fra

ud count. I f the trial co u rt wa s awa re of the “twist” it place d upon the
proce dural posture of the case , it should have g rante d leave to file the two-count complaint, in order to pe rfe ct re view, and the n dismiss ed the f raud c ount as redunda

nt. ¶ 79 After revie wing the previously dismiss ed fra ud count, I deter

mine (rather than pre sume,

as the majority does) that it was defe ctive. Howeve r, I would deter mine that it is immaterial whether the trial court abused its discretion in denyi n g l ea v e t o file, beca use it would not aff ect our revie w of the merits of the first, second, or third amende d complaint based upon the ca ses re fer ence d in para g raph 81 be low. ¶ 80 T h e m ajority is conce rned that, in some manner or form, plaintiffs are flan k i n g an d flouting the Foxc roft holding. I disag ree . Our supre me cour t rec ently stated in Bonhomme : “We repe at, unless the amende d p l ea ding somehow incorporates or ref ere nces the pleading s in the former complaint, ‘a party who fil es an a mended plea ding w aives any objection to the t rial court’s ruling on the forme r complaints.’ [Cit ation.]” Bonhomme
, 2012 I L112393, ¶ 23.

T he m aj ori ty la te r acknowl edges suc h an ana lysis
, tho ugh onl y as an “even if ” al te rna ti ve 3
to it s “ pre sumpti on” ana lysis . See sup ra ¶¶ 50- 51. I ag re e wi th the ana lysis con ta ine d t her ei n.

-21-¶ 81 I n this case , unlike in Bonhomme
, plaintiffs attem p t ed t o fi l e an am ended ple ading

prese rving the dismissed cause of action. As the m ajority noted, a plaintiff m ay prese rve a dism i s s ed ca use of action by filing an amende d pleading that rea lleg es, incorporates by ref ere nce, or ref

ers to the dismiss ed count in as littl e as a para g raph or even a footnote. Supra ¶ 36. Her e, plaintiffs did not mere ly ref er t o t h e dismiss ed fra

ud count in a footnote; they included the entire count, using the exact same lang uag e as they had befor e. Whil e the trial
court denied plaintiffs leave to file an amende d pleading that contained the exact same count that was contained i n t h e former complaint, the prese rvation of the cause of action comes from the attempt to file the amende d complaint containing the cause of action, not from the trial court’s decision to g rant or de ny leave to file it. This case is more in line with sever al

case s wher ein the plaintiff attempted to file an amende d pleading but was denied leave to do

so. I n these case s, the appellate court deter mined that the denial of lea v e t o fi le did not prec lude appellate revie w, and there was no sug g estion that the failure to obtain leave to file constituted an abandonme nt. Silver Fox Limousine v. City of Chicago
, 306 I ll. App. 3d 103, 105-06 (1999) (“B ut the loss of the rig ht of revie w of an ear lier complaint is trig g ere d by the filing of an amende d complaint. Her e, plainti ff was denied leave to file a second amended complaint. Under these circ umstances, both complaints are proper ly befor e us. The question in this case is aca demic. The second amende d complaint incorporates all the issues raised in the first. Only issues not preser ved ar e dee med aba

ndoned. Boatmen’s National B ank
, 167 I ll. 2d at 99.” (E m p h as i s i n orig inal.)); Russ v. Pension Consultant s Co.
, 182 I ll. App. 3d 769, 774 (1989) (“[S] ince the court did not g rant leave to file the second amende d complaint, the plaintiff may proper ly seek revie w of the order dismiss ing the amende d complaint as well as the orde r deny

ing him leave to file t he second amende d complaint; and the ade quacy of both complaints is proper ly befor e this court.” ) Thus, I would revie w the merits of the fra ud
count de novo , not for an a buse of discr etion (as the majority does), and deter mine that the fra ud count did not state a cause of action. See Silver Fox Limousine
, 306 I ll. App. 3d 103; Russ
, 182 I ll. App. 3d 769; see also People ex rel. Madigan v. T ang , 346 I ll. App. 3d 277, 282-83 (2004) (“Reg ardle ss, the claims dismiss ed in the first amende d complaint would be subject to dismiss al for the same rea sons as the claims in the second amende d complaint as discussed below. Thus, even if the claims wer e not waived, we wo u l d hold that they wer e proper ly dismiss ed.”)

. I n my view, it is immaterial, for purpos es of prese rving the fra ud count for a

ppellate revie w, whether the trial cour t abused its discretion in deny ing le ave to file. Alt houg h the court should have allowed the filing of th e p l eading and then di smissed the fra ud count with prejudice t o p erf ect the issue for appellate revie w, we still have the

au t hority to revie w the merits of the proposed third amende d complaint, reg ardle ss of the denial. See Silver Fo x , 3 0 6 I l l

. Ap p. 3d 103; Russ
, 182 I ll. App. 3d 769. I f the trial court committed err or, it was in requiring leave to file an amende d complaint and then not g ranting leave to prese rve the err or acc ording to the majority ’s n ar ro w i nterpre tation that abandonme nt is the onl y result o f a denial of leave to file. I f pl aintiffs had there afte r filed, or attempted to file, a new pleading that did not contain the def ective f raud c ount, then the fa ct u al s cena

rios in Foxc roft
, Bonhomme
, and thi s case would be subst antially the s ame

. I submit that abandonme nt would be patent and based upon plaintiffs’ volitional actio n or inaction. But the case s are substantially differ ent, and, unfortunate ly
, the majority fails to

-22-rec og nize the differ ence

.

¶ 82 The majority deter mines that Foxc roft has been violated beca use the fra

ud count was not included in the pleadingthat went to trial. The r eason that it was not included was not that plaintiffs failed to include it, but that the trial court ref used their reque st to allow them to do

so. The conce pt of proce eding to trial “only o n the claims contained in the final amende d complaint” (interna l quotation marks omitted) ( supra ¶ 45) makes sense only if the plaintiff
proce eded to trial on what he wanted to include in the pleading

. Since plain t i ff s we re not allowed to f

ile the proposed complaint that contained the dismiss ed fra ud count, they wer e not allowed to proce ed to trial on what they tried to prese rve for appea l. “Proce eding to trial” is a collater al fa ct of no c onsequenc e, unless the plaintiff has not done any thing to attempt
to prese rve an issue by including that which the plaintiff desires to a djudicate at trial. I f the plaintiff attempts to do so, and he s ub m i t s a pleading that includes a dismiss ed count, as i n s t ructed by the trial court, the trial court’s ref usal to allow prese rvation should not b e deeme d an aba

ndonment under this conc ept as we ll. ¶ 83 Foxc roft held that abandonme nt was dete rmined by what a pla intiff fails to do, such as failing to include a dismissed count in his most rec ent timely filing. N ow, the majority has deter mined that, if one is denied leave to f ile a timely

amende d pleadingthat ref ere nces or includes the dismiss ed count, the dismiss ed count will be deeme d abandone d. I fi n d it curious that abandonme nt of the count at issue is deter mined by unsucce ssfully trying not to abandon it. More curious is that the sine qua non , the count at i s sue, was not mere ly mentioned in the proposed amende d pleading
, it was included virtually verbatim, in full compliance with Foxc roft

. Acc ording to the majority
, the only way to deter mine if a plaintiff has attempted to pr eser

ve an issue would be via an act of the trial court and not ina ction on the part of the plaintiff. Her e, o n l y i f t h e t ri al court had g rante d leave to file would the majority deter

mine that plaintiffs had not abandone d t h e count at issue. Foxc roft and Bonhomme said that failure to include or ref ere nce the count was aban d onment. Her e, the
count was included in the proposed amende d pleading

. Foxc roft and Bonhomme did not say that the trial court’s denial of leave to fi l e a pleading that satisfied the require ments of Foxc roft and Bonhomme was an abandonme nt by the plaintiff. The majority has eff ectively deter mined that, if y ou file an amende d pleading without including or ref ere ncing a dismiss ed count, the trial court may preve nt y ou from proper ly filing an amende d complaint that follows the supreme court’s strictures for p rese rving the dismiss ed cause of action,
contra ry to Childs
, Silver Fox
, and Russ
, supra

. Taking the majority ’s holding to its logic al extreme, what would happen if the plaintiff in a differ ent case filed a new inclusive amende d complaint without leave of court? Would the amende d complaint, which included the count at issue, be subjec t to a motion to s trike? I f it were
, would the issue in the dismiss ed count be prese rved? I submit that the majority would deter mine that there must be an abandonme nt beca use the proc ess in Foxc roft was not followed. ¶ 84 Th e p ri o r s u p re m e co urt case s deter mined abandonme nt based upon the failure to somehow apprise the trial court that the plaintiff wished to prese rve the dismiss ed count for revie w. The majority here has deter mined that, if a plaintiff fails to do exactly what the prior

case s said would be evidenc e of an intent n o t t o ab an don, then the trial court’s ref usal to allow the plaintiff to attempt to prese rve the issue by inclusion woul d co n s t i t ute proof of

-23-abandonme nt. The majority deter mines that Foxc roft and Bonhomme are binding prec edent

even though they are fac tually distinguished on at least one major point: t h e p laintiffs in Foxc roft and Bonhomme did not to seek leave to i n cl u d e t h e counts at issue in amende d complaints. Neither Foxc roft nor Bonhomme considere d the ef fec t of a g rant or a

denial of leave to file an amen ded complaint containing the counts at issue. Thus, the majority has
engra fted an additional “proc edura l twist” or convoluted conundrum to deter mini n g abandonment: a trial court’s ref usal to allow prese rvation of an issue constitutes abandonme nt. I n Foxc roft and Bonhomme
, the s u p r e me c o u r t d e te r mi n e d a b a n d o nme nt based
upon what the plaintiff did or did not do. The majority has now enlar g ed th e h o l d i ng s to include what the trial court does or does not do as well. Whether the trial court does or does
not g rant leave i s i m m at er i al to ascr ibing actions to the plaintiff. There is nothing in 4 Foxc roft or Bonhomme that say s that this mode or manner i s t he only way to prese rve an issue, nor do they consider and discuss: (1) a fac tual situation wher e the plaintiff was denied leave of court to f

ile that which those case s said was sufficie nt; or (2) whe ther the f iling of the proposed pleading without lea ve of court would qualify as non-aba ndonment. I believe that it is rea sonable to conclude that plaintiffs “somehow” incorporated the former pleading in the proposed new amende d pleadingthat the trial cour t did not allow to be filed. Henc e, I do not believe that the trial court or defe ndants wer e lulled into a belief that plaintiffs wer e abandoning the fra

ud claim. Fur

ther, I do not believe that Bonhomm e wo u l d criticize the analy sis that Ihave sug g ested. ¶ 85 T h e majority sug g ests that my analy sis is neither contained in nor app ro v ed o f b y Bonhomme and, thus, the only way that plaintiffs could have prese rved the issue for appea l

was to include the fra

ud count or some ref

ere nce to it in the new pleading filed. I submit that
t h i s beg s the question. I submit that the rea son that my analy sis is not contained i n Bonhomme is that Ms. Bonhomme did not attempt to fi l e an amende d complaint with the
counts at issue included. Unless the supreme court is presc ient, it would not have anticipated the sce nario he re, a

nd, even if

it did, it s comments reg ardinga nonexistent scenar io would have been dicta

. Fur

thermore
, if Ms. Bonhomme or plaintiffs here in had soug ht leave to file

an amende d pleading with the counts at issue included, and the trial court wer e to c ontinue to strike the proposed plea ding be cause it contained the lang uag e deeme d nece ssary by the majority
, and continued to do so ad infinit um , the “fina l plead ing” would never be filed. I suspect that punishment for contempt of court, based upo n p l ai ntiffs’ repeated attempts at filing, might g ive this court jurisdiction over the contemp t , b u t jurisdiction to hold what? Plaintiffs should not be punished for attempting to some h o w incorporate or ref ere nce the pleading s from the former complaint by including the fra ud count in their proposed complaint. I t would appea r that the majority has held that, wher e the trial court told plaintiffs
not to file a fra

ud count ag ain, and plaintiffs incorporated the fra ud co u n t i n the proposed amende d pleading
, plaintiffs have nowher e to g o. Acc ording to the majority
, plaintiffs wer e at the merc y of a trial court that ref used to allo w any pleading to be filed that had any

Appl ying thi s same logic
, it woul d app ear tha t a tr ia l cou rt ’s re fus al t o a l l o w an off er of 4
pro of woul d no lon ger be er ror but woul d const it ute aba ndon m ent on the par t of the pro ff er er . See Peop le ex rel

. Depar tme nt of Tran spo rt ati on v. Kota ra, L.L.C.
, 379 I ll

. App. 3d 276, 284-85 (20 08)

.
-24-ref ere nce to the dismiss ed fra ud count. The absurdity of such a rationale flies in the fac e of Bonhomme ’s dictate that a plaintiff must “somehow” incorporate or ref ere nce the pleading s from the former complaint

. Appar ently
, the majority believes that “somehow” means this
way , and this wa

y only
, even if the trial court has decla red that plaintiffs are not to proce ed this way

. ¶ 86 The rea son that plaintiffs failed to “somehow” prese rve the issue was not that they failed
to try to do so, it was that the trial court ref used their reque st to allow t h em t o d o s o

. Previously
, abandonme nt was g leane d from what someone failed to do, or failed to try to do
, such as failing to include a dismiss ed co unt in his most rec ent timely filing. Now, the majority has deter

mined that, even if one tries to file a timely amende d pleading that includes

or ref ere nces a dismiss ed count, and the trial court does not allow him to do so, the dismiss ed
count will be deeme d abandone d. Abandonment is deter mined by doing what? When one is
preve nted from filing a pleading in compliance with the stricture s of the supreme court in Boatmen’s, Fox croft, and Bonhommein order not to aba ndon it. 5

I bel ie ve t h a t t h e m aj ori ty has comm it te d the same m is ta ke of logic as ar ose in Sunb el t 5 Rent als

, Inc

. v. Ehl ers , 394 I ll

. App. 3d 421 (20 09)

. T he Sunb el t cou rt dec ide d tha t the sup re m e cou rt had aba ndon ed the le giti m at e bus ine ss int er est te st , bec aus e it had not m ent ion ed the te st in Mo hant y

v. St. Joh n Hear t Cli nic
, 225 I ll

. 2d 52 (20 06)

. I n Rel iab le Fir e Equip ment Co. v. Arr edo ndo
, 2011 I L 1118 71, ¶¶ 28- 29, the sup re m e cour t det er m ine d to the cont ra ry. T he fal se logic tha t abs enc e of evide n c e i s e vi d e n c e of abs enc e is again upon the st age, act ing to thwa rt the bes t la id sch emes of

m ic e a nd p la int if

fs : “But li tt le Mo use , you ar e no t a lon e, I n pr oving for esi ght m ay be vain : T he b est la id sch emes of

m ic e a nd men Go of te n awr y, And l eave us not hin g but gri ef and pai n, Forpr om is ed j oy! ” Wi kipedi a, To a Mo use , htt p:/ /e n.wi kipedi a. org/wi ki/T o_a_M ous e (qu oti ng Robe rt Burn s, T o a Mo use (s ta nda rd Englis h t ra nsl at ion ) ( 1785 )) (l ast visi te d Oct obe r 2 4, 20 12)

.
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