                                       2019 IL App (1st) 180939


                                                                             FIRST DISTRICT
                                                                             FOURTH DIVISION
                                                                             July 26, 2019


No. 1-18-0939


                                                                  )   Appeal from the
ARLENE ATLAS, MARSHALL ATLAS, HBZ INC., and                       )   Circuit Court of
TAFH LLC,                                                         )   Cook County
                                                                  )
                  Plaintiffs-Appellants,                          )
                                                                  )
v.                                                                )
                                                                  )
MAYER HOFFMAN MCCANN, P.C., CBIZ, INC., CBIZ                      )   No. 13 L 7057
MHM, LLC, ROBERT WILNEFF, MARIA CRAWFORD,                         )
and JUSTIN BIAGI,                                                 )
                                                                  )
                  Defendants-Appellees,                           )
                                                                  )
(Judith Berger,                                                   )   Honorable
                                                                  )   Patrick J. Sherlock,
                  Defendant.)                                     )   Judge Presiding.


       JUSTICE REYES delivered the judgment of the court, with opinion.
       Justices Gordon and Burke concurred in the judgment and opinion.

                                             OPINION

¶1     Marshall Atlas (Marshall) and Arlene Atlas (Arlene), a married couple, were in the

business of purchasing delinquent real estate tax certificates from local governments. Judith

Berger (Berger) was their employee. Marshall and Arlene operated their business through three

companies: (1) HBZ Inc. (HBZ), which was partially owned by Arlene and Berger; (2) TAFH

LLC (TAFH), which was partially owned by Marshall, Arlene, and Berger; and (3) Salta Group,

Inc. (Salta), which was owned solely by Marshall.
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¶2     Berger allegedly embezzled funds from HBZ, TAFH, and Salta, which resulted in

significant legal and financial difficulties for Marshall, Arlene, and their companies, including

Salta’s bankruptcy. Marshall, Arlene, HBZ, and TAFH (collectively plaintiffs) filed an action in

the circuit court of Cook County, alleging their accountants should have discovered Berger’s

embezzlement. Salta was not named as a plaintiff due to its pending bankruptcy proceedings and

is not a party to this appeal. The defendants were (1) Berger, and (2) plaintiffs’ accountants, the

“Mayer defendants.” The Mayer defendants fall into three categories: (i) Mayer Hoffman

McCann, P.C. (Mayer), which is the firm that contracted to perform accounting services for

plaintiffs and which plaintiffs alleged is liable for its employees’ acts and omissions under the

theory of respondeat superior; (ii) CBIZ, Inc. (CBIZ) and CBIZ MHM, LLC (CBIZ MHM),

which are affiliates of Mayer and which plaintiffs alleged are liable for their employees’ and

Mayer’s acts and omissions under theories of respondeat superior and joint enterprise liability;

and (iii) Robert Wilneff (Wilneff), Maria Crawford (Crawford), and Justin Biagi (Biagi), who are

the individual accountants employed by Mayer, CBIZ, and/or CBIZ MHM, and who performed

the accounting services for plaintiffs.

¶3     Plaintiffs appeal the order of the circuit court of Cook County dismissing their accounting

malpractice claims asserted in their third amended complaint (amended complaint)—the

operative complaint in this matter—against the Mayer defendants pursuant to sections 2-

619(a)(5) and (9) of the Code of Civil Procedure (Code) (735 ILCS 5/2-619(a)(5), (9) (West

2014)). Plaintiffs had previously appealed the circuit court’s order granting the Mayer

defendants’ motion to dismiss the amended complaint in Atlas v. Mayer Hoffman McCann, P.C.,

2016 IL App (1st) 151472-U. This court dismissed the appeal for lack of appellate jurisdiction

because the circuit court had dismissed only the counts in the amended complaint against the



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Mayer defendants, and the two counts against Berger remained pending. Id. In addition, the

dismissal order did not contain language sufficient to confer appellate jurisdiction pursuant to

Rule 304(a). Id. Upon remand, plaintiffs filed a motion for leave to file a fourth amended

complaint against the Mayer defendants, which the circuit court denied. The Mayer defendants

then requested, and were granted, a Rule 304(a) finding as to the order dismissing the accounting

malpractice claims asserted in the amended complaint.

¶4     On appeal, plaintiffs contend that the circuit court committed reversible error when it

dismissed their accounting malpractice claims against the Mayer defendants because they: (1) are

liable to plaintiffs pursuant to the Illinois Public Accounting Act (Act) (225 ILCS 450/30.1

(West 2014)); (2) failed to professionally provide all of their accounting services; and (3)

improperly refuted the allegations of the amended complaint based on the exhibits attached to the

motion to dismiss. Plaintiffs further argue the circuit court erred in denying them leave to file a

fourth amended complaint. For the reasons that follow, we affirm.

¶5                                      I. BACKGROUND

¶6     Marshall and Arlene were in the business of purchasing delinquent real estate tax

certificates, which created liens on a property, from local governments. They operated this

business through their companies, HBZ, TAFH, and Salta (a non-party) (the companies). Berger

was employed in an administrative capacity by the companies and did not participate in the

actual running of the business.

¶7     The companies financed the purchase of tax certificates with bank loans, which were

personally guaranteed by Marshall and Arlene. The companies would then post the tax

certificates as collateral. When the homeowners finally paid their past-due taxes, the companies

would redeem the tax certificates from the local governments, which would repay the companies



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their purchase price, plus interest and fees. The interest and fees were in excess of the amount of

interest the companies owed to the banks. The companies would then use the money to repay the

banks and keep the balance as profit. The business thus involved purchasing tax certificates and

pledging them as collateral for loans with which to purchase additional certificates.

¶8     The amended complaint set forth four counts against the Mayer defendants for:

(I) violation of the Act; (II) professional negligence; (III) willful and wanton professional

negligence; and (IV) breach of fiduciary duty. None of the claims asserted by plaintiffs against

the Mayer defendants sounded in breach of contract. The amended complaint further set forth

two counts against Berger for negligence and conversion (counts V and VI), however, these last

two counts are not relevant to this appeal. The amended complaint was premised on the

following allegations.

¶9     Since 1998, Mayer or its predecessor prepared quarterly audits for Salta and performed

additional accounting work for Salta, HBZ, and TAFH, including bookkeeping and preparing

financial statements, compilation reports, and tax returns. The Mayer defendants also prepared

the personal income tax returns for Marshall and Arlene. In the Salta audits, the Mayer

defendants consistently reported that the companies’ financial statements fairly represented their

financial position and were in conformity with generally accepted accounting principles

(GAAP). Marshall and Arlene relied on the Salta audits—along with the financial statements

and compilation reports prepared by the Mayer defendants for Salta, HBZ, and TAFH—and

continued to personally guarantee the banks’ loans. Unbeknownst to plaintiffs, however, for

numerous years Berger had been providing the banks with duplicate tax certificates that had

already been redeemed or had been used as collateral for other loans. Berger would then redeem

the original tax certificates and convert the funds for her own use. As a result, the companies’



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lenders called the loans and Marshall and Arlene’s guarantees, seized plaintiffs’ collateral, and

foreclosed on Marshall and Arlene’s home.

¶ 10   Plaintiffs alleged that through the Salta audits, the Mayer defendants should have

identified numerous misrepresentations which were contained in the financial statements of all

three companies. The amended complaint, however, did not allege that the Mayer defendants

provided auditing services to HBZ or TAFH. According to plaintiffs, the Mayer defendants

breached the following duties which plaintiffs characterized as “standard auditing procedures”:

(1) to compare the tax certificates to the banks’ records and identify any discrepancy in the

companies’ records; (2) to obtain and compare evidence from various government entities

regarding the tax certificates to the companies’ records; (3) to determine whether the tax

certificates had been redeemed or had expired; (4) to determine whether the companies returned

the proceeds from the redeemed tax certificates to the lending banks; (5) to uncover potential

mistakes in the companies’ books; and (6) to assess the susceptibility of the companies’ financial

statements to fraud. Plaintiffs alleged these duties extended to Marshall and Arlene because the

Mayer defendants knew the couple relied upon the financial statements and compilation reports

for the companies, as well as the Salta audits, in order to determine whether to guarantee the

loans. The amended complaint further alleged that the breach of these duties by the Mayer

defendants proximately caused plaintiffs’ damages.

¶ 11   Regarding Berger, plaintiffs alleged that, without their knowledge or consent, she was

lining her own pockets at the expense of the plaintiffs and was “secretly acting adversely to

Plaintiffs and entirely for her own purposes.” As a result of her willful and malicious conversion

of the funds, plaintiffs suffered damages. Plaintiffs further alleged that Berger had a duty to act

reasonably in maintaining accurate records from the companies and that her failure to do so



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proximately caused them damages. No exhibits were attached to the amended complaint.

¶ 12   The Mayer defendants filed a motion to dismiss counts I-IV of the amended complaint

pursuant to section 2-619.1 of the Code (735 ILCS 5/2-619.1 (West 2014)). In addition to

arguing that plaintiffs’ allegations were insufficient and were an attempt to state a malpractice

action based on auditing services for Salta, the Mayer defendants asserted a myriad of grounds

for dismissal pursuant to section 2-619 of the Code. First, they contended that pursuant to

section 2-619(a)(9), their liability to plaintiffs was precluded under section 450/30.1 of the Act

(225 ILCS 450/30.1 (West 2014)), which provides that accountants are not liable to individuals

or entities not in privity of contract with them, unless the accountant was aware the client

intended for the services to benefit a third party; but if an accountant identifies any individuals

who are intended to rely on the services and notifies the client and the individuals in writing,

then the accountant is liable only to the client and the individuals identified. The Mayer

defendants specifically asserted that plaintiffs were not in privity of contract with them as to the

Salta audits, and they could not be held liable to plaintiffs for any breach of their duties related to

the Salta audits because they notified Salta in writing that only Salta could rely on the audits.

¶ 13   Second, the Mayer defendants contended that pursuant to section 2-619(a)(9) of the

Code, plaintiffs lacked standing to bring any claims that the Salta audits were negligently

performed because such claims belonged to Salta’s bankruptcy estate and plaintiffs failed to

obtain approval from the bankruptcy court to bring the present action. Third, they argue that

pursuant to section 2-619(a)(9), the allegations of the amended complaint were barred by the

doctrines of in pari delicto and imputation. Finally, the Mayer defendants contended that

pursuant to section 2-619(a)(5), plaintiffs’ claims were barred by the statute of limitations set

forth in the HBZ review contracts and the Salta auditing contracts, which stated that any claim



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based on the engagements must be filed within 36 months after performance of the service.

¶ 14   In support of its motion, the Mayer defendants attached numerous exhibits, including a

contract where Mayer was to provide a review of HBZ, an affidavit of Wilneff attesting to the

veracity of certain invoices, and a copy of a complaint filed by The People’s Bank of Arlington

Heights against Mayer which plaintiffs had referenced in their amended complaint.

¶ 15   Also attached as an exhibit to the motion to dismiss was the auditing contract between

Mayer and Salta, which explained what was covered by the audit. The Salta auditing contract

stated that the audit included: tests of accounting records; tests of documentary evidence

supporting the transactions recorded in the accounts; tests of the physical existence of

inventories; direct confirmation of certain assets and liabilities by correspondence with selected

customers, creditors, and financial institutions; and examinations and tests of evidence

supporting the amounts disclosed in the financial statements. The contract further provided that

the Mayer defendants would perform the audit to obtain reasonable assurance regarding whether

the financial statements were free of material misstatements, whether from errors, fraudulent

financial reporting, misappropriation of assets, or violations of laws or regulations that were

attributable to Salta, Salta’s management, or employees acting on behalf of Salta. The Salta

auditing contract additionally stated, “This engagement is being undertaken solely for the benefit

of the parties to this agreement.”

¶ 16   The HBZ review contract was more limited in scope and defined the extent of the Mayer

defendants’ review. According to the review contract, the review in question did not

contemplate: obtaining an understanding of the entity’s internal control; assessing fraud risk;

testing accounting records by obtaining sufficient appropriate audit evidence through inspection,

observation, confirmation, or the examination of source documents (for example, cancelled



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checks or bank images); and other procedures ordinarily performed in an audit. The review

contract specifically stated that (1) a review does not provide assurance that the reviewer would

become aware of all significant matters that would be disclosed in an audit, and (2) a review

therefore provides only limited assurance that there are no material modifications that should be

made to the financial statements. 1

¶ 17    In response, plaintiffs maintained the Mayer defendants improperly contested plaintiffs’

allegations by submitting evidentiary materials. They further argued section 450/30.1 of the Act

did not preclude liability because the Mayer defendants knew plaintiffs relied on the Salta audit

and other accounting work when they guaranteed the companies’ loans. Moreover, they

contended that the Mayer defendants need not identify them in writing in order for them to hold

the Mayer defendants liable pursuant to section 450/30.1 of the Act. Plaintiffs additionally

argued they had standing because they sustained economic injuries to a legally cognizable

interest. They further maintained their claims arose from the Mayer defendants’ negligent

performance of all of their accounting work for plaintiffs, not merely from the Salta audit.

Finally, plaintiffs argued the contractual limitations period did not apply because their claims

sounded in tort, not breach of contract. Plaintiffs requested that the circuit court deny the motion

to dismiss or, in the alternative, grant them leave to file a fourth amended complaint. No

proposed fourth amended complaint was appended to plaintiffs’ response.

¶ 18    After the matter was fully briefed and argued, the circuit court entered a written order

addressing the merits of the arguments raised in the Mayer defendants’ section 2-619 motion.

The circuit court found the amended complaint alleged the Mayer defendants only breached the


        1
           On appeal, plaintiffs argue a review is “only one step below an audit” in terms of providing assurance
“about whether the financial statements are in accordance with the financial reporting framework.” Plaintiffs’
definition of a review is consistent with the language in the HBZ review contract. Plaintiffs further acknowledge
that compilations, financial statements, and bookkeeping services provide even less assurance than a review.

                                                         8
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duties owed by an auditor, and because HBZ and TAFH were not audited and had no interest in

Salta, they lacked standing to bring the instant claims. The circuit court determined Marshall

and Arlene had standing pursuant to section 450/30.1 of the Act as the amended complaint

alleged the Mayer defendants knew Marshall and Arlene relied on the Salta audits. The circuit

court however concluded that Marshall and Arlene’s claims were barred by the contractual

statute of limitations, as the original complaint was filed more than 36 months after the Mayer

defendants completed the Salta audit. The circuit court, however, determined that the Wilneff

affidavit failed to authenticate any of the exhibits. Accordingly, the circuit court entered and

continued the motion to dismiss for the Mayer defendants to file a revised affidavit.

¶ 19   The Mayer defendants thereafter filed a new affidavit from Wilneff. In a subsequent

written order, the circuit court found the new affidavit complied with Illinois Supreme Court

Rules 191(a) and 236, and dismissed counts I-IV of the amended complaint with prejudice. The

circuit court did not rule on plaintiffs’ request for leave to file a fourth amended complaint.

Plaintiffs appealed, and this court found it lacked jurisdiction because the circuit court had

dismissed only four of the six counts in plaintiffs’ amended complaint, i.e., only the counts

against the Mayer defendants, and not the counts against Berger. Atlas v. Mayer Hoffman

McCann, P.C., 2016 IL App (1st) 151472-U. Moreover, the dismissal order did not contain

language sufficient to confer appellate jurisdiction pursuant to Rule 304(a). Id.

¶ 20   On remand, plaintiffs filed a motion in the circuit court for leave to file a fourth amended

complaint against the Mayer defendants and Berger. In the proposed fourth amended complaint,

plaintiffs alleged the Mayer defendants knew that all of the plaintiffs, not just Marshall and

Arlene, relied on the accounting work and defined the duties owed to them as standard

“verification,” “compilation,” or “accounting” procedures. Plaintiffs had characterized these



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same duties in the amended complaint as “standard auditing procedures.”

¶ 21   After the matter was fully briefed, the circuit court denied plaintiffs’ motion, holding that

plaintiffs failed to satisfy the factors courts consider in determining whether leave should be

granted as set forth in Loyola Academy v. S & S Roof Maintenance, Inc., 146 Ill. 2d 263, 273

(1998). Several months later, the Mayer defendants filed a motion for a Rule 304(a) finding as

to the circuit court’s dismissal order entered nearly three years prior, which the circuit court

granted. This appeal timely followed.

¶ 22                                       II. ANALYSIS

¶ 23   On appeal, plaintiffs argue the circuit court erred in granting the section 2-619.1 motion

to dismiss filed by the Mayer defendants and in denying their motion for leave to file a fourth

amended complaint. We address plaintiffs’ contentions in turn below.

¶ 24                                    A. Motion to Dismiss

¶ 25   A motion under section 2-619.1 allows a party to combine a section 2-615 motion to

dismiss based on insufficient pleadings with a section 2-619 motion to dismiss based on certain

defects or defenses. Schloss v. Jumper, 2014 IL App (4th) 121086, ¶ 15. Here, the Mayer

defendants’ motion was granted pursuant to section 2-619 of the Code. 735 ILCS 5/2-619 (West

2014). A section 2-619 motion to dismiss “ ‘admits the legal sufficiency of the complaint and

raises defects, defenses or other affirmative matters, such as the untimeliness of the complaint,

which appear on the face of the complaint or are established by external submissions which act

to defeat the plaintiff’s claim, thus enabling the court to dismiss the complaint after considering

issues of law or easily proved issues of fact.’ ” MC Baldwin Financial Co. v. DiMiaggio,

Rosario & Veraja, LLC, 364 Ill. App. 3d 6, 22 (2006) (quoting Lipinski v. Martin J. Kelly

Oldsmobile, Inc., 325 Ill. App. 3d 1139, 1144 (2001)).



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¶ 26     When ruling on a section 2-619 motion to dismiss, the court interprets all pleadings and

supporting documents in the light most favorable to the nonmoving party. Khan v. Deutsche

Bank AG, 2012 IL 112219, ¶ 18. We review the circuit court’s ruling on a section 2-619.1

motion to dismiss de novo. Schloss, 2014 IL App (4th) 121086, ¶ 15. De novo consideration

means we perform the same analysis that the circuit court would perform. Khan v. BDO

Seidman, LLP, 408 Ill. App. 3d 564, 578 (2011). We may affirm the judgment on any grounds

found in the record, regardless of the circuit court’s reasoning. Prospect Funding Holdings, LLC

v. Saulter, 2018 IL App (1st) 171277, ¶ 23.

¶ 27     On appeal, plaintiffs contend the Mayer defendants are liable to them pursuant to section

450/30.1 of the Act because the amended complaint alleged the Mayer defendants knew that one

of the primary intents of their Salta audit and their accounting work for all of the companies was

to benefit plaintiffs. Plaintiffs further argue the contractual statute of limitations period does not

apply because all of the plaintiffs were not parties to all of the contracts, and Marshall and

Arlene were not a party to any contract. Plaintiffs additionally maintain the statutory limitations

period began to run when they knew or should have known of the Mayer defendants’ negligence,

and they “sued as soon as they suspected Mayer negligently failed in its duties.” 2

¶ 28     In response, the Mayer defendants maintain the circuit court correctly dismissed the

matter pursuant to section 2-619(a)(9) of the Code as their liability to plaintiffs is precluded

under section 450/30.1 of the Act. Specifically, the Mayer defendants contend they cannot be

liable to plaintiffs as their auditing contract with Salta stated the engagement was being

undertaken solely for the benefit of the parties to the agreement. Because we agree with the

Mayer defendants that section 450/30.1 of the Act precludes their liability, we need not address

         2
         Plaintiffs further argue on appeal that “for the guarantees, [Marshall and Arlene’s] statute of limitations
began when the Companies defaulted and they become [sic] obligated to pay off the loans.” Plaintiffs and the
Mayer defendants, however, fail to provide any relevant dates regarding the statutory limitations period.

                                                          11
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plaintiffs’ assertions regarding the statute of limitations. See Prospect Funding Holdings, LLC,

2018 IL App (1st) 171277, ¶ 23 (we may affirm the circuit court’s judgment on any basis found

in the record).

¶ 29   Section 450/30.1 of the Act controls the liability of accountants to third parties not in

privity of contract with them. Freeman, Freeman and Salzman, P.C. v. Lipper, 349 Ill. App. 3d

677, 679 (2004). The Act provides:

       “No person, partnership, corporation, or other entity licensed or authorized to practice

       under this Act or any of its employees, partners, members, officers or shareholders shall

       be liable to persons not in privity of contract with such person, partnership, corporation,

       or other entity for civil damages resulting from acts, omissions, decisions or other

       conduct in connection with professional services performed by such person, partnership,

       corporation, or other entity, except for:

                  (1) such acts, omissions, decisions or conduct that constitute fraud or intentional

       misrepresentations, or

                  (2) such other acts, omissions, decisions or conduct, if such person, partnership or

       corporation was aware that a primary intent of the client was for the professional services

       to benefit or influence the particular person bringing the action; provided, however, for

       the purposes of this subparagraph (2), if such person, partnership, corporation, or other

       entity (i) identifies in writing to the client those persons who are intended to rely on the

       services, and (ii) sends a copy of such writing or similar statement to those persons

       identified in the writing or statement, then such person, partnership, corporation, or other

       entity or any of its employees, partners, members, officers or shareholders may be held

       liable only to such persons intended to so rely, in addition to those persons in privity of



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       contract with such person, partnership, corporation, or other entity.” 225 ILCS 450/30.1

       (West 2014).

Under subsections 450/30.1(2)(i)-(ii) of the Act, if a licensed accountant “identifies in writing to

the client those persons who are intended to rely on the services,” and “sends a copy of such

writing or similar statement to those persons identified in the writing or statement,” then the

accountant “may be held liable only to such persons intended to so rely, in addition to those

persons in privity of contract.” Id.

¶ 30   We find the Salta auditing contract precludes liability as the Mayer defendants satisfied

the writing requirement of subsections 450/30.1(2)(i) and (ii) of the Act. See id. Specifically,

the executed Salta auditing contract stated, “This engagement is being undertaken solely for the

benefit of the parties to this agreement.” Because the Mayer defendants (1) indicated in writing

to Salta that only Salta was intended to benefit from the audit, and (2) delivered a copy of the

writing to Salta, the Mayer defendants may be held liable only to Salta regarding the Salta audit

pursuant to subsections 450/30.1(2)(i) and (ii) of the Act. See id. Accordingly, plaintiffs’ claims

against the Mayer defendants were properly dismissed. See id; Saulter, 2018 IL App (1st)

171277, ¶ 23.

¶ 31   In reaching this conclusion, we acknowledge plaintiffs’ contention that section 450/30.1

of the Act only applies to individuals or entities that are licensed to practice under the Act, and

Mayer, CBIZ, and CBIZ MHM were not so licensed, therefore, they cannot rely on the Act to

shield themselves from liability. See 225 ILCS 450/30.1 (West 2014). According to plaintiffs,

only Wilneff, Crawford, and Biagi (who plaintiffs alleged were employees of Mayer, CBIZ, and

CBIZ MHM), are licensed to practice under the Act.

¶ 32   Plaintiffs’ contention, however, seems to ignore the fact that the amended complaint



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alleged Mayer, CBIZ, and CBIZ MHM were liable for the acts of their employees under the

doctrine of respondeat superior. A claim under respondeat superior requires “legal liability on

the part of the employee, which is then imputed to the employer.” National Railroad Passenger

Corp. v. Terracon Consultants, Inc., 2014 IL App (5th) 130257, ¶ 15. As we have already

determined that none of the Mayer defendants are liable to plaintiffs, no liability is imputed to

Mayer, CBIZ, and CBIZ MHM. See id. Accordingly, plaintiffs’ claims against Mayer, CBIZ,

and CBIZ MHM were properly dismissed. See id; Saulter, 2018 IL App (1st) 171277, ¶ 23.

¶ 33   Plaintiffs further maintain that “the Third Amended Complaint and proposed Fourth

Amended Complaint alleged Mayer failed to professionally provide all its accounting services

(audit, review, compilation, financial statement preparation and bookkeeping) for all the

Companies, not just negligent auditing for Salta.” Plaintiffs’ fleeting, one-sentence argument is

wholly deficient and violates Rule 341(h)(7) (eff. May 25, 2018). Rule 341(h)(7) requires that

an argument “contain the contentions of the appellant and the reasons therefor, with citation of

the authorities and the pages of the record relied on.” Id. “A reviewing court is entitled to have

the issues clearly defined and supported by pertinent authority and cohesive arguments; it is not

merely a repository into which an appellant may ‘dump the burden of argument and research,’

nor is it the obligation of this court to act as an advocate.” U.S. Bank v. Lindsey, 397 Ill. App. 3d

437, 459 (2009) (quoting Obert v. Saville, 253 Ill. App. 3d 677, 682 (1993)). An issue not

clearly defined and sufficiently presented fails to satisfy the requirements of Rule 341(h)(7) and

is, therefore, forfeited. In re Estate of Doyle, 362 Ill. App. 3d 293, 301 (2005). Where, as here,

the issue is “merely listed or included in a vague allegation of error [it] is not ‘argued’ and will

not satisfy the requirements of the rule.” Vancura v. Katris, 238 Ill. 2d 352, 370 (2010).

Furthermore, in making their conclusory argument, plaintiffs fail to point to any specific



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allegations in the amended complaint, and we can find none, regarding the Mayer defendants’

negligent performance of its bookkeeping or preparation of financial statements, compilations, or

reviews for any of the plaintiffs. Accordingly, plaintiffs have forfeited their claim that the

amended complaint contained sufficient allegations regarding the Mayer defendants’ accounting

work for plaintiffs. Ill. S. Ct. R. 341(h)(7) (eff. May 25, 2018); Vancura, 238 Ill. 2d at 370;

Estate of Doyle, 362 Ill. App. 3d at 301.

¶ 34    Similarly, plaintiffs contend the Mayer defendants owed them a duty to exercise

professional due care while performing all of their accounting services in addition to the specific

duties set forth in the parties’ contracts. Yet, as discussed above, plaintiffs failed to point to any

specific allegations in the amended complaint regarding the Mayer defendants’ negligent

bookkeeping or preparation of financial statements, compilations, and reviews. Plaintiffs’

assertion that the Mayer defendants owed them a duty in performing all of their accounting

services is therefore irrelevant.

¶ 35    Plaintiffs make several additional arguments assigning error to the circuit court’s

dismissal order. Plaintiffs contend the circuit court erred by (1) finding the Mayer defendants’

duty and the scope of that duty was a matter of law, (2) finding the amended complaint attempted

to impose an auditor’s duties on a non-auditor, and (3) accepting as true Wilneff’s

“contradictory” affidavit and the allegations in a complaint filed by The People’s Bank of

Arlington Heights when ruling on the Mayer defendants’ motion. Because we review the

propriety Mayer defendants’ motion to dismiss de novo by performing the same analysis the

circuit court would perform, the circuit court’s alleged errors are irrelevant to our analysis. See

Khan, 408 Ill. App. 3d at 578.

¶ 36    Plaintiffs also contend the Mayer defendants’ section 2-619 motion to dismiss and the



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attached exhibits improperly refuted the allegations in the amended complaint. Plaintiffs fail to

specify any allegations that the Mayer defendants purportedly refuted. Plaintiffs’ generalized

contention is severely underdeveloped in violation of Rule 341(h)(7) (eff. May 25, 2018). As we

discussed above, “A reviewing court is entitled to have the issues clearly defined and supported

by pertinent authority and cohesive arguments; it is not merely a repository into which an

appellant may ‘dump the burden of argument and research,’ nor is it the obligation of this court

to act as an advocate.” Lindsey, 397 Ill. App. 3d at 459 (quoting Obert, 253 Ill. App. 3d at 682).

An issue that is merely listed in a vague allegation of error is not argued, fails to satisfy Rule

341(h)(7), and is, therefore, forfeited. Vancura, 238 Ill. 2d at 370; Estate of Doyle, 362 Ill. App.

3d at 301. Accordingly, because plaintiffs fail to provide any argument indicating how the

Mayer defendants’ motion to dismiss refuted the allegations in the amended complaint, they have

forfeited the claim on appeal. See Ill. S. Ct. R. 341(h)(7) (eff. May 25, 2018); Vancura, 238 Ill.

2d at 370. In sum, plaintiffs’ claims against the Mayer defendants were properly dismissed

because liability was precluded pursuant to section 450/30.1 of the Act. See 225 ILCS 450/30.1

(West 2014); Saulter, 2018 IL App (1st) 171277, ¶ 23. We therefore affirm the circuit court’s

order granting defendants’ motion to dismiss. See id.

¶ 37            B. Plaintiffs’ Motion for Leave to File a Fourth Amended Complaint

¶ 38   Plaintiffs also maintain that the circuit court abused its discretion when it denied them

leave to file a fourth amended complaint on remand. Plaintiffs state in a conclusory fashion that

the proposed fourth amended complaint was timely, cured any defects, and would not prejudice

or surprise the Mayer defendants.

¶ 39   Generally, amendments should be granted liberally. Goldberg v. Brooks, 409 Ill. App. 3d

106, 113 (2011). A party’s right to amend, however, is not absolute or unlimited. Id. The



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decision whether to grant leave to amend a complaint rests within the sound discretion of the

circuit court, and its decision will not be reversed absent an abuse of that discretion. Wilk v.

1951 W. Dickens, Ltd., 297 Ill. App. 3d 258, 265 (1998). “[The circuit] court abuses its

discretion if allowing the amendment furthers the ends of justice.” W.E. Erickson Construction,

Inc. v. Chicago Title Insurance Co., 266 Ill. App. 3d 905, 911 (1994).

¶ 40    In determining whether the circuit court abused its discretion, we consider four factors:

“(1) whether the proposed amendment would cure the defective pleading; (2) whether the other

parties would sustain prejudice or surprise by virtue of the proposed amendment; (3) whether the

proposed amendment is timely; and (4) whether previous opportunities to amend the pleading

could be identified.” Loyola Academy, 146 Ill. 2d at 273.

¶ 41     On appeal, plaintiffs fail to set forth any arguments as to how the circuit court abused its

discretion in reaching its conclusions regarding any of the Loyola Academy factors in violation of

Rule 341(h)(7). Ill. S. Ct. R. 341(h)(7) (eff. May 25, 2018); Vancura, 238 Ill. 2d at 370; Estate

of Doyle, 362 Ill. App. 3d at 301. Nevertheless, we cannot say the circuit court abused its

discretion when it denied plaintiffs leave to file the fourth amended complaint. The proposed

amendment was filed seven months after this court remanded the initial appeal and issued its

mandate, and after the parties had already been litigating the matter for four years. Plaintiffs

sought to allege the Mayer defendants owed them additional duties and knew all of the plaintiffs

relied on their accounting work, yet they offered no explanation for why they were adding these

allegations so late in the process, especially since the facts underlying the causes of action

against the Mayer defendants were known to them from the inception of the lawsuit. See

Insurance Benefit Group, Inc. v. Guarantee Trust Life Insurance Co., 2017 IL App (1st) 162808,

¶ 53.



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¶ 42   Importantly, plaintiffs’ proposed fourth amended complaint fails to cure the defects in the

third amended complaint. The proposed fourth amended complaint attempts to impose an

auditor’s duties on the Mayer defendants simply by characterizing “standard auditing

procedures” as standard “verification,” “compilation,” and “accounting” procedures which

plaintiffs allege the Mayer defendants should have followed during the course of their

bookkeeping and preparation of financial statements and compilation reports for HBZ and

TAFH. Yet the Salta auditing contract makes clear that the procedures described in the third and

fourth amended complaints were, in fact, intended to be performed during the Salta audit.

Further, the HBZ review contract expressly states that the review does not contemplate

performing the procedures that are ordinarily completed during an audit. As the Mayer

defendants did not audit any of the plaintiffs, we find plaintiffs’ attempt to impose an auditor’s

duties on the Mayer defendants for their other accounting work unavailing.

¶ 43   In addition, the proposed amendments, including the allegation that the Mayer defendants

knew all of the plaintiffs relied on their accounting work, fail to overcome the bar to liability set

forth in section 450/30.1 of the Act, and therefore fail to cure the defective pleading. See Loyola

Academy, 146 Ill. 2d at 273. Accordingly, we cannot find the denial of leave to amend

constituted an abuse of discretion. See Loyola Academy, 146 Ill. 2d at 273; Wilk, 297 Ill. App.

3d at 265; W.E. Erickson Construction, Inc., 266 Ill. App. 3d at 911.

¶ 44                                    III. CONCLUSION

¶ 45   For the reasons stated above, we affirm the circuit court’s orders dismissing plaintiffs’

claims against the Mayer defendants and denying plaintiffs leave to file a fourth amended

complaint.

¶ 46   Affirmed.



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1-18-0939



                                  No. 1-18-0939


Cite as:                 Arlene Atlas, et al. v. Mayer Hoffman McCann, P.C., et al., 2019
                         IL App (1st) 180939


Decision Under Review:   Appeal from the Circuit Court of Cook County, No. 13 L 7057;
                         the Hon. Patrick J. Sherlock, Judge presiding.


Attorneys                John S. Xydakis, of the Law Offices of John S. Xydakis, of
for                      Chicago, for appellants.
Appellants:


Attorneys                Kimberly E. Blair, Joseph J. Stafford, and Adam T. Ernette, of
for                      Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, of Chicago,
Appellees:               for appellees.




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