                                 Illinois Official Reports

                                          Appellate Court



             Illinois Founders Insurance Co. v. Williams, 2015 IL App (1st) 122481



Appellate Court            ILLINOIS FOUNDERS INSURANCE COMPANY, Plaintiff and
Caption                    Counterdefendant-Appellee, v. DELOISE WILLIAMS, as
                           Administrator of the Estate of Felicia Williams, Deceased, and as
                           Guardian and Next Friend of Dellvonte Gibson, a Minor, Defendant
                           and Counterplaintiff-Appellant (Julius Moore, Defendant).


District & No.             First District, Fourth Division
                           Docket No. 1-12-2481


Filed                      April 16, 2015


Decision Under             Appeal from the Circuit Court of Cook County, No. 10-CH-37307; the
Review                     Hon. Leroy K. Martin, Jr., Judge, presiding.



Judgment                   Affirmed.



Counsel on                 A. Leo Wiggins, Jr., and Caren Schulman, both of Chicago, for
Appeal                     appellant.

                           Michael J. O’Halloran and Keely Hillison, both of Parrillo, Weiss &
                           O’Halloran, of Chicago, for appellee.



Panel                      JUSTICE ELLIS delivered the judgment of the court, with opinion.*
                           Justices Howse and Cobbs concurred in the judgment and opinion.



  *
   This case was recently reassigned to Justice Ellis.
                                             OPINION

¶1       This appeal addresses whether the trial court erred in granting summary judgment in favor
     of plaintiff-counterdefendant Illinois Founders Insurance Co. (Founders) on a counterclaim for
     attorney fees and costs pursuant to section 155 of the Illinois Insurance Code (215 ILCS 5/155
     (West 2010)). Defendant-counterplaintiff Deloise Williams (defendant), on behalf of the estate
     of a decedent in a car accident (Felicia Williams) and the decedent’s minor son (Dellvonte
     Gibson), contends that summary judgment was improper because genuine issues of material
     fact existed as to whether Founders acted vexatiously and unreasonably in settling her claims,
     which would justify fees and costs under section 155. Defendant also contends that the trial
     court abused its discretion in denying her leave to file a second amended counterclaim. We
     conclude that the trial court did not err in granting summary judgment because Founders had a
     bona fide dispute regarding its coverage of defendant’s hit-and-run claim and that defendant
     has provided an insufficient record to support her other contentions. We affirm the judgment of
     the trial court.

¶2                                        I. BACKGROUND
¶3       Given the issues presented by this appeal, a thorough development of the facts and
     procedural history of this case is necessary. On July 18, 1997, Felicia Williams and her son,
     Dellvonte Gibson, were involved in a car accident. Williams died. Gibson, who was 19 months
     old at the time of the accident, survived with injuries. Defendant, Gibson’s grandmother, was
     appointed as administrator of Williams’s estate and as Gibson’s guardian. The car that
     Williams was driving belonged to Julius Moore, who participated in the proceedings below but
     is not a party to this appeal. Williams used the car with Moore’s permission. Williams was
     uninsured.
¶4       The parties offered two possible scenarios that led to this accident and Williams’s death.
     One is that of a single-car accident, in which the car she was driving spiraled out of control,
     possibly due to a blown-out tire and/or faulty brakes. The second is a hit-and-run scenario, in
     which a second vehicle collided with Williams’s car, leading to the fatal crash.
¶5       Moore was the named insured under a liability insurance policy issued by Founders (the
     Policy). The Policy covered injuries caused by uninsured motorists (such as Williams), as well
     as injuries caused by hit-and-run drivers. Defendant’s initial claim to Founders was based on
     the latter–she claimed that the accident resulted from a hit-and-run involving a second,
     unidentified vehicle.
¶6       On August 19, 1999, Founders filed a complaint seeking a declaratory judgment that it had
     “no duties with respect to the accident of July 18, 1997.” Founders acknowledged that
     defendant and Moore had made claims under the hit-and-run provision of the Policy but
     alleged that neither defendant nor Moore had “produced *** competent evidence that there
     was physical contact between their vehicle and that of a hit-and-run vehicle” as defined by the
     Policy.
¶7       On September 11, 1999, defendant filed a demand for arbitration and, under the heading
     “Type of Claim,” checked the box labeled “Hit and Run.” On October 5, 1999, Founders
     moved to stay arbitration of the hit-and-run claim because it was contesting coverage under
     that provision. The trial court agreed and stayed the arbitration.


                                                -2-
¶8          On November 1, 1999, defendant moved to dismiss Founders’ declaratory judgment
       complaint, arguing that she was entitled to coverage even if there was no second vehicle
       involved. Even if no hit-and-run accident occurred, she argued, she could bring an
       uninsured-motorist claim, alleging that Williams was a negligent, uninsured driver. In
       response, Founders emphasized that its declaratory judgment complaint was directed at
       defendant’s “hit-and-run claims, not uninsured-motorist claims,” and that to date, defendant
       had “not presented an uninsured-motorist claim” alleging that Williams was a negligent driver
       in a single-car accident. (Emphases in original.)
¶9          After continuing the case numerous times, the trial court denied defendant’s motion to
       dismiss on January 30, 2001. The record contains no transcripts of the proceedings related to
       defendant’s motion to dismiss. The two-page written order reflecting the trial court’s judgment
       simply states that defendant’s motion “is hereby DENIED.”
¶ 10        Founders’ declaratory judgment action first went to trial on June 4, 2004. During the trial,
       the trial court awarded judgment to Founders on a technical default–defendant had never
       answered Founders’ complaint for declaratory judgment. Defendant appealed that order, and
       this court reversed and remanded. We held that the trial court erred in concluding that it was
       compelled to enter judgment in Founders’ favor on the technical default and remanded for the
       trial court to exercise its discretion on the matter. The mandate from our decision issued to the
       circuit court on October 19, 2006.
¶ 11        From October 19, 2006 until April 29, 2009, no party took action regarding Founders’
       declaratory judgment suit. On April 29, 2009, defendant moved to dismiss the suit for want of
       prosecution and moved for leave to file a counterclaim.
¶ 12        The circuit court denied defendant’s motion to dismiss Founders’ claim for want of
       prosecution. The record does not contain a transcript of the hearing on defendant’s motion to
       dismiss for want of prosecution or the trial court’s ruling on that motion. Rather than filing an
       answer, defendant again moved to dismiss Founders’ complaint, alleging that the complaint
       was time-barred. The circuit court denied this motion to dismiss, finding that defendant, not
       Founders, was obligated to reinstate the case after she had prevailed on appeal.
¶ 13        The court did, however, grant defendant leave to file a counterclaim seeking attorney fees
       and costs under section 155 for handling defendant’s insurance claim in a vexatious and
       unreasonable manner. Founders moved for summary judgment on defendant’s section 155
       counterclaim on November 22, 2010. During the pendency of that motion, that counterclaim
       was amended, and Founders renewed its motion for summary judgment as to the amended
       complaint.
¶ 14        In count I of her amended counterclaim–the only count at issue on appeal and thus the only
       one we will discuss–defendant alleged that Founders acted vexatiously and unreasonably in
       settling her insurance claim, first, by initiating litigation on the coverage question and
       disputing that the accident was the result of a hit-and-run by a second driver, which defendant
       alleged was a delay tactic; second, by failing to negotiate the claims; and third, by refusing to
       arbitrate the claims. Count I did not differentiate with any specificity between defendant’s two
       possible claims for coverage, the uninsured-motorist claim versus the hit-and-run claim.
¶ 15        In its motion for summary judgment, Founders argued that, as a matter of law, it had not
       acted vexatiously and unreasonably as to defendant’s hit-and-run claim because the evidence
       Founders had received as a result of its investigation created a bona fide dispute as to whether
       the accident was a single-car collision, as opposed to a hit-and-run accident involving a second

                                                   -3-
       car. In support of its motion, Founders put forth several pieces of evidence that indicated that,
       contrary to defendant’s claim of a hit-and-run collision, the accident resulted from Williams
       losing control of the car.
¶ 16        First, Founders attached an affidavit from one of its claims adjusters, which said that
       Moore had told Founders that his car had brake problems that had previously caused him to
       lose control of it. It further said that “[t]he only explanation for the cause of the accident given
       by Julius Moore to Founders was that a tire had blown[,] causing the accident.” Second,
       Founders attached police reports recounting the accident, which stated that Williams “lost
       control of [the] vehicle and hit [a] utility pole head on” and likewise recounting that Williams
       had “experienced a blow out, causing [the] vehicle to go out of control.” These reports only
       documented damage to the front of the car.
¶ 17        Third, Founders attached the deposition of Officer Cheryl Williams of the Chicago police
       department, who stated that, when responding to the scene of the accident, she did not see paint
       from another car left on Moore’s car. She also stated that the damage was isolated to the front
       of the car, where it appeared to have struck the utility pole. Fourth, Founders attached the
       deposition transcript of Officer Joseph De Leo, who said that one of the car’s tires “appeared to
       be blown-out.”
¶ 18        The fifth piece of information submitted by Founders was the only evidence Founders
       claimed to have gathered that did not suggest a single-car collision but, rather, pointed to a
       hit-and-run scenario. This evidence came in the form of a deposition, taken October 1, 2003,
       from James Harris, who said that he came upon the scene of the accident shortly after it
       occurred. Harris said that he spoke to the driver, Ms. Williams, before she died. According to
       Harris, Williams told him that “somebody ran her off the road.”
¶ 19        The record does not contain a copy of defendant’s response to Founders’ motion for
       summary judgment.
¶ 20        On March 18, 2011, the trial court granted Founders summary judgment as to count I of
       defendant’s amended counterclaim. The trial court’s written order indicated that it found that
       Founders “had a bona fide case to contest the ‘hit and run’ claim.”
¶ 21        On August 24, 2010, defendant made a second demand for arbitration. On the demand
       form, under “Type of Claim,” defendant again checked the box labeled “Hit and Run,” but this
       time also checked the box labeled “Uninsured Motorist.” On March 25, 2011, Founders moved
       to stay arbitration as to the hit-and-run claim, because Founders was only disputing coverage
       as to that claim, not the uninsured-motorist claim. The circuit court granted the motion, making
       it clear that its stay was limited to the hit-and-run claim only. Defendant moved to reconsider
       the stay order, at which time Founders’ counsel once again emphasized that the declaratory
       judgment action only sought to determine coverage for the hit-and-run claim, not the
       uninsured-motorist claim:
                    “Under the uninsured-motorist coverage of the policy there is [sic] two kinds of
                claims, a hit and run claim; and we contest that. And the other one is a claim that the
                claimant was hurt because of negligence by an uninsured motorist. And I told Your
                Honor and counsel until I’m blue in the face, no, we don’t contest his right to arbitrate
                whether the minor was injured by an uninsured motorist.”
¶ 22        To resolve any possible remaining confusion, the trial court clarified that the summary
       judgment it entered as to count I of defendant’s amended counterclaim related only to the


                                                    -4-
       hit-and-run claim, not to the uninsured-motorist claim. The court further stated, “[A]ny
       declaration the Court would make at this juncture deals only with the hit[-]and[-]run and not
       the [uninsured-motorist claim].”
¶ 23        Between April 10, 2012 and April 12, 2012, the trial court conducted a three-day bench
       trial on Founders’ declaratory judgment action. On June 1, 2012, the trial court entered
       judgment in favor of defendant with respect to Founders’ underlying declaratory judgment
       suit. The trial court’s written order stated, “Judgment is entered in favor of defendants and
       against Founders on Founders[’] complaint. Stay of arbitration is vacated. This case is
       dismissed.” The record does not contain a transcript of the trial or of the judge’s ruling.
¶ 24        On July 2, 2012–one month after final judgment was entered following the bench
       trial–defendant filed a motion asking the trial court to reconsider its March 18, 2011 order,
       granting Founders summary judgment as to count I of defendant’s amended counterclaim. The
       motion also sought leave to file a second amended counterclaim. In count I of the proposed
       second amended counterclaim, defendant again alleged that Founders acted vexatiously and
       unreasonably in delaying settlement of the uninsured-motorist claim by seeking a declaratory
       judgment that it was not obligated to cover the uninsured-motorist claim and seeking to stay
       arbitration of the uninsured-motorist claim. Count II of the proposed second amended
       counterclaim alleged that, based upon the trial evidence, Founders vexatiously and
       unreasonably denied coverage of the hit-and-run claim. Defendant alleged that, at trial, one of
       the witnesses “disclosed that Founders was aware of unexplained left rear damage to the
       insured vehicle shortly after the occurrence.”
¶ 25        On August 9, 2012, the trial court denied defendant’s motion to reconsider the grant of
       summary judgment as to count I of the amended counterclaim and denied defendant leave to
       file a second amended counterclaim. The record does not contain a transcript of the
       proceedings related to the August 9, 2012 judgment. The only record of the trial court’s
       decision to deny defendant leave to file her second amended counterclaim is the following
       sentence, included in a short written order: “The motion to *** file a[ ] *** second amended
       [counterclaim] is DENIED.” Defendant filed this appeal.

¶ 26                                          II. ANALYSIS
¶ 27                      A. Summary Judgment on the Hit-and-Run Dispute
¶ 28       Defendant alleges that the trial court erred in granting Founders summary judgment as to
       count I of her amended counterclaim, asserting that genuine issues of material fact existed as to
       whether Founders acted vexatiously and unreasonably in settling her claims. Founders
       responds that there is no issue of material fact as to whether it had a bona fide dispute over
       defendant’s claim for coverage under the hit-and-run provision, thus precluding an award of
       attorney fees under section 155 as a matter of law.
¶ 29       Generally, we apply an abuse of discretion standard when reviewing a circuit court’s
       decision regarding attorney fees and costs under section 155 of the Illinois Insurance Code.
       Employers Insurance of Wausau v. Ehlco Liquidating Trust, 186 Ill. 2d 127, 160 (1999).
       Where the circuit court denies section 155 relief via a dispositive motion, however, we “apply
       the standard of review that is appropriate” for that motion. Id. Here, the circuit court granted
       Founders’ motion for summary judgment relating to defendant’s amended section 155
       counterclaim. We thus apply the standards applicable to summary judgment to the circuit
       court’s judgment in this case.

                                                   -5-
¶ 30        “Summary judgment is proper where, when viewed in the light most favorable to the
       nonmoving party, the pleadings, depositions, admissions, and affidavits on file reveal that
       there is no genuine issue as to any material fact and that the moving party is entitled to
       judgment as a matter of law.” Hall v. Henn, 208 Ill. 2d 325, 328 (2003). “The standard of
       review for the entry of summary judgment is de novo.” Id.
¶ 31        Section 155 of the Illinois Insurance Code provides “ ‘an extracontractual remedy to
       policyholders.’ ” Employers Insurance of Wausau, 186 Ill. 2d at 159 (quoting Cramer v.
       Insurance Exchange Agency, 174 Ill. 2d 513, 520 (1996)). That section provides that an
       insured may collect attorney fees and costs where an insurer creates a “vexatious and
       unreasonable” delay in settling a claim. 215 ILCS 5/155(1) (West 2010). “A court should
       consider the totality of the circumstances when deciding whether an insurer’s conduct is
       vexatious and unreasonable, including the insurer’s attitude, whether the insured was forced to
       sue to recover, and whether the insured was deprived of the use of his property.” Statewide
       Insurance Co. v. Houston General Insurance Co., 397 Ill. App. 3d 410, 426 (2009).
¶ 32        “[W]here a bona fide dispute concerning coverage exists, costs and sanctions [pursuant to
       section 155] are inappropriate.” State Farm Mutual Automobile Insurance Co. v. Smith, 197
       Ill. 2d 369, 380 (2001). A bona fide dispute is one that is “ ‘[r]eal, actual, genuine, and not
       feigned.’ ” McGee v. State Farm Fire & Casualty Co., 315 Ill. App. 3d 673, 683 (2000)
       (quoting Black’s Law Dictionary 177 (6th ed. 1990)). Where an insurer “reasonably relie[s]
       upon evidence sufficient to form a bona fide dispute,” that insurer has not acted unreasonably
       or vexatiously under section 155. Morris v. Auto-Owners Insurance Co., 239 Ill. App. 3d 500,
       506 (1993).
¶ 33        We first address an anomaly arising from the procedural posture of this case and the legal
       issue before us. When conducting a de novo review of a grant of summary judgment, we would
       reverse if we were to find the presence of a genuine issue of material fact on the question at
       issue. Hall, 208 Ill. 2d at 328. If some competent evidence contradicted the evidence put
       forward by the movant and created a genuine issue of material fact, summary judgment would
       be inappropriate. Id. But the legal question here, under section 155, is whether Founders was
       itself confronted with legitimate questions of fact as to whether this accident resulted from a
       hit-and-run or from Williams losing control of the car–and if so, Founders is entitled to
       judgment. As we have just discussed, to prevail on a section 155 claim, Founders is only
       required to show a bona fide dispute, that it had a “[r]eal, actual, genuine” belief (internal
       quotation marks omitted) (McGee, 315 Ill. App. 3d at 683) and “reasonably relied upon
       evidence” that the accident may have happened differently than defendant’s claim of a
       hit-and-run scenario (Morris, 239 Ill. App. 3d at 506).
¶ 34        In other words, Founders is not required to show that every scintilla of evidence pointed
       against a hit-and-run scenario, or that the evidence it compiled was overwhelming or
       conclusive. See, e.g., Morris, 239 Ill. App. 3d at 506 (insurer had bona fide dispute regarding
       whether fire was arson, even though some of its evidence “was successfully rebutted”); Wahls
       v. Aetna Life Insurance Co., 122 Ill. App. 3d 309, 312 (1983) (finding section 155 relief
       inappropriate where “the evidence raised a genuine issue *** as to whether decedent’s death
       was accidental within the scope of the policy’s coverage”). Rather, the question here, at the
       summary judgment stage, is not whether Founders may have been presented with some
       evidence of a hit-and-run accident, but whether Founders had a real, genuine basis for
       disputing the hit-and-run scenario. Thus, the fact that defendant may have proffered some

                                                  -6-
       evidence of the hit-and-run scenario–which might, at first blush, indicate that summary
       judgment was improper–would not militate against a grant of summary judgment as long as the
       evidence before Founders, in total, created a reasonable, genuine basis for dispute.
¶ 35       With these principles in mind, we find that the trial court properly entered summary
       judgment in favor of Founders, because Founders had sufficient evidence on which it could
       reasonably dispute defendant’s hit-and-run theory. We detailed that evidence above: (1) the
       statement of the car’s owner that the car had brake problems that previously caused him to lose
       control of the car, as well as a claims adjuster’s own conclusion that a blown-out tire appeared
       to be the cause of the accident; (2) police reports concluding that Williams lost control of the
       vehicle after a blow-out of the tire; (3) deposition testimony from one responding police officer
       that she saw no paint from another car on the damaged vehicle, nor any damage to the car other
       than the point of collision with the utility pole; and (4) deposition testimony of another
       responding policeman indicating a blown-out tire.
¶ 36       Defendant has not produced any reason for the trial court, or this court, to disregard this
       evidence. Though the movant bears the initial burden of production on a motion for summary
       judgment, once Founders carried that burden by presenting this evidence to the court, the
       burden shifted to defendant to present some factual or legal basis on which the court should
       have disregarded that evidence or otherwise found that defendant was entitled to trial on this
       issue. Bourgonje v. Machev, 362 Ill. App. 3d 984, 994-95 (2005); Willett v. Cessna Aircraft
       Co., 366 Ill. App. 3d 360, 369 (2006). Defendant has presented no basis for this court to find
       that the evidence put forth by Founders was incredible or lacking in substance.
¶ 37       The fact that Founders had uncovered additional evidence supporting defendant’s
       hit-and-run theory–Harris’s statement that Williams, before dying, said that another car hit her
       vehicle–does not alter our conclusion. This evidence is not so overwhelming or conclusive as
       to negate the evidence outlined above, which supported a contrary theory of a single-car
       accident. It does not change the fact that Founders had a reasonable, genuine, bona fide dispute
       as to the hit-and-run claim as a matter of law.
¶ 38       Defendant finally argues that new evidence arose at trial that bolstered his claim that
       Founders should have covered the hit-and-run claim. At trial, defendant claims, evidence was
       presented showing “that Founders was aware of fresh left rear-end damage on the insured
       vehicle within weeks of the occurrence.” Defendant contends that this evidence showed that
       Founders’ coverage dispute was not bona fide.
¶ 39       But defendant has failed to provide this court with any transcripts from the trial to support
       that claim. Illinois Supreme Court Rule 323 requires an appellant to prepare and file a
       transcript or bystander’s report of the proceedings in the trial court. Ill. S. Ct. R. 323(a), (c)
       (eff. Dec. 13, 2005). Where an appellant fails to furnish a complete record of proceedings on
       appeal, “it will be presumed that the order entered by the trial court was in conformity with law
       and had a sufficient factual basis.” Foutch v. O’Bryant, 99 Ill. 2d 389, 392 (1984). “Any doubts
       which may arise from the incompleteness of the record will be resolved against the appellant.”
       Id. We must construe defendant’s failure to provide transcripts of the trial against her.
¶ 40       In any event, even if we were to accept this evidence solely on defendant’s
       characterization, our holding would remain the same. This evidence would have been just one
       more fact in a series of facts that did not conclusively tell one story or another. There was
       competent evidence of a single-car collision as well as evidence of a hit-and-run scenario.
       Founders had a reasonable, genuine basis to dispute defendant’s claim.

                                                   -7-
¶ 41        As a matter of law, Founders did not act vexatiously or unreasonably in contesting the
       hit-and-run claim. Founders’ actions related to the hit-and-run claim, including obtaining a
       judgment in its favor at the 2004 trial via a default judgment, were grounded in its litigation of
       that bona fide claim. The fact that the trial court ultimately found that Founders was required to
       cover the accident does not render Founders’ declaratory judgment suit vexatious or
       unreasonable. See West Bend Mutual Insurance v. Norton, 406 Ill. App. 3d 741, 745 (2010)
       (“An insurance company does not violate section 155 merely by unsuccessfully challenging a
       claim.”).
¶ 42        Nor did Founders engage in vexatious or unreasonable conduct by seeking to stay
       arbitration of defendant’s hit-and-run claim. Where an insurer files a declaratory judgment
       action disputing coverage of a hit-and-run accident, the circuit court is “required to stay the
       arbitration until the resolution of the coverage dispute.” (Emphasis added.) Estate of Price v.
       Universal Casualty Co., 322 Ill. App. 3d 514, 520 (2001) (citing State Farm Fire & Casualty
       Co. v. Yapejian, 152 Ill. 2d 533, 542-44 (1992)). Founders simply followed the law, as did the
       trial court.
¶ 43        We also affirm the trial court’s grant of summary judgment on defendant’s claim that
       Founders was vexatious and unreasonable because it took no action on its declaratory
       judgment suit after this court remanded the case in 2006. Defendant notes that Founders
       permitted the suit to lie dormant following the remand until 2009, when defendant moved to
       dismiss the complaint for want of prosecution. We are unable to properly review this issue,
       however, once again due to the lack of a record below, which defendant, as the appellant, was
       obliged to provide us. Foutch, 99 Ill. 2d at 392. We do not know what arguments defendant
       made in response to the motion for summary judgment brought by Founders because we are
       unable to locate her response, if any, in the record, nor do we have any transcripts of oral
       argument, if any, that would explain the court’s reasoning.
¶ 44        We do know this much from the limited record: The trial court denied defendant’s motion
       to dismiss the case for want of prosecution following this gap in time–a denial that defendant
       does not challenge on appeal. Again, we do not know why the trial court denied that ruling, nor
       do we have any written response, if any was filed, from Founders. It is possible that Founders
       merely orally argued the motion, but we lack any transcript of any such hearing.
¶ 45        In support of the trial court’s grant of summary judgment on this claim, Founders argues
       that it was defendant’s duty to reinstate the case following the reversal and remand of this case
       to the trial court, pursuant to Illinois Supreme Court Rule 369(c) (eff. July 1, 1982). Founders
       is correct that, as the prevailing party on appeal, it was defendant’s obligation to take action to
       re-docket the case following remand and issuance of this court’s mandate. People v. NL
       Industries, Inc., 284 Ill. App. 3d 1025, 1028 (1996). We can advance this point one step
       further. The appellate court, in reversing and remanding in 2006, held that the trial court was
       not compelled to default defendant, but rather that the trial court should exercise its discretion
       in deciding whether defendant should be permitted to file a late answer during the first trial. It
       was thus incumbent on defendant, not Founders, to seek leave to file a late answer pursuant to
       the appellate court’s mandate.
¶ 46        In the absence of an even minimally sufficient record, we are hard-pressed to automatically
       assign blame to Founders, and Founders alone, for this delay. The trial court obviously did not
       deem this delay sufficient to warrant a dismissal for want of prosecution, and we find nothing
       in the record that permits us to disturb the court’s ruling on this issue on summary judgment,

                                                    -8-
       either. We presume that the trial court’s decision was supported by fact and law. Foutch, 99 Ill.
       2d at 392.

¶ 47                                 B. The Uninsured-Motorist Claim
¶ 48        Defendant also asserts that Founders vexatiously and unreasonably delayed resolution of
       her uninsured-motorist claim on Gibson’s behalf, which was distinct from the hit-and-run
       claim. Like other issues in this case, unfortunately, this question presents something of a
       mystery. Simply put, we do not know what became of this claim in the lower court. We know
       that the uninsured-motorist claim was part of count I of the amended counterclaim, and we
       know that the trial court granted summary judgment for Founders on count I only as to the
       hit-and-run claim.
¶ 49        We also know that, following the bench trial on the declaratory judgment complaint and
       defendant’s amended counterclaim, the trial court entered judgment for defendant on the
       complaint and judgment for Founders on count II of the amended counterclaim. Beyond that,
       the trial court’s written order “dismissed” the action. What happened to the remaining portion
       of count I of the amended counterclaim–related to the alleged vexatious and unreasonable
       conduct of Founders in handling the uninsured-motorist claim–is unknown. Perhaps defendant
       abandoned the claim and put on no evidence at trial. Perhaps the trial court disposed of it in
       some dispositive order not included in the record. Not knowing the procedural posture of this
       claim, we are unable to apply a standard of review to the decision–if there was a decision.
       Compare Hall, 208 Ill. 2d at 328 (summary judgment is reviewed de novo), with Klaskin v.
       Klepak, 126 Ill. 2d 376, 389 (1989) (a trial court’s judgment after a bench trial is reviewed
       under a manifest weight of the evidence standard). We construe the record’s silence against
       defendant (Foutch, 99 Ill. 2d at 392) and find that the absence of any relevant transcripts
       precludes us from reviewing defendant’s argument that Founders was vexatious and
       unreasonable in delaying settlement of the uninsured-motorist claim. See Heavey v. Ehret, 166
       Ill. App. 3d 347, 349 (1988) (declining to review “a nonexistent judgment”).
¶ 50        We add that Founders repeatedly stated in open court and in written filings that it was not
       contesting defendant’s right to arbitrate the uninsured-motorist claim, and the trial court
       repeatedly made that clear to defendant. Since January 2000, Founders emphasized that it was
       only contesting hit-and-run coverage, not coverage under an uninsured-motorist claim, and
       that it would agree to arbitrate an uninsured-motorist claim. But defendant did not file an
       uninsured-motorist claim until 2010. As Founders later wrote, “It took [defense counsel] 10
       years to digest that message.” Even then, when defendant filed a claim for uninsured-motorist
       coverage, she also claimed hit-and-run coverage. Counsel for Founders again repeated in open
       court that Founders was not seeking to stay arbitration on the uninsured-motorist claim but
       only on the hit-and-run claim that was the subject of the declaratory judgment complaint: “I
       told Your Honor and counsel until I’m blue in the face, no, we don’t contest his right to
       arbitrate whether the minor was injured by an uninsured motorist.”
¶ 51        Based on the limited record, defendant would have an uphill climb, to say the least, to
       prevail on a claim that Founders acted vexatiously and unreasonably regarding the
       uninsured-motorist claim. Regardless, we are unable to review this portion of count I because
       we have no way of knowing how it was disposed and could not apply an appropriate standard
       of review. We reject defendant’s claim that Founders acted vexatiously or unreasonably with


                                                   -9-
       respect to the uninsured-motorist claim.

¶ 52                     C. Denial of Leave to File Second Amended Counterclaim
¶ 53        Defendant also contends that the trial court abused its discretion in denying her leave to file
       a second amended counterclaim. Defendant proposed the second amended counterclaim after
       final judgment was entered following the three-day bench trial. This proposed second amended
       counterclaim would have repleaded the two bases for section 155 relief she included in count I
       of her original counterclaim–that Founders vexatiously and unreasonably delayed settlement
       of the hit-and-run claim and the uninsured-motorist claim. As we noted above, defendant
       claims that the bench trial uncovered new evidence “that Founders was aware of fresh left
       rear-end damage on the insured vehicle within weeks of the occurrence,” thus giving her fresh
       ammunition to argue that Founders’ coverage dispute was not bona fide.
¶ 54        Section 2-616 of the Code of Civil Procedure (735 ILCS 5/2-616 (West 2012)) governs
       amendments to pleadings. The decision whether to allow an amendment under section 2-616
       rests within the sound discretion of the trial court, and that decision will not be disturbed absent
       an abuse of discretion. Indiana Insurance Co. v. Hydra Corp., 245 Ill. App. 3d 926, 932
       (1993).
¶ 55        We find that the court did not abuse its discretion in denying defendant leave to file this
       second amended counterclaim after trial and final judgment. We base our holding on several
       factors.
¶ 56        First, defendant has once again failed to provide this court with a report of proceedings or
       bystander’s report of the trial court’s hearing on her motion for leave to file a second amended
       counterclaim. The trial court’s written order denying defendant leave provides no insight into
       the trial court’s rationale. It simply states, “The motion to *** file a[ ] *** second amended
       [counterclaim] is DENIED.” We cannot divine the trial court’s reasoning in denying
       defendant’s motion and cannot determine whether that decision constituted an abuse of
       discretion. In light of defendant’s failure to provide an adequate record, we presume the trial
       court’s order had a sufficient legal and factual basis. Foutch, 99 Ill. 2d at 392.
¶ 57        Second, this proposed second amended counterclaim came after the trial court entered final
       judgment in this case. However liberally courts grant leave to amend pleadings, that liberal
       rule applies to pleadings amended “before final judgment.” (Emphasis added.) 735 ILCS
       5/2-616(a) (West 2012); Basden v. Finck, 106 Ill. App. 3d 108, 110 (1982) (“A motion for
       leave to amend a pleading is not a proper post-judgment motion.”). As we have explained
       above, we do not know precisely what transpired with the portion of count I of the amended
       counterclaim relating to the uninsured-motorist claim–it was not specifically included in the
       trial court’s final judgment. Regardless, the trial court’s final order, after ruling on the merits of
       Founder’s complaint and count II of defendant’s amended counterclaim, dismissed the case in
       its entirety. If the uninsured-motorist claim was left unresolved, it was thus dismissed along
       with any other remaining issues. Whatever became of that claim, by the time defendant sought
       leave to file a second amended complaint, it was beyond final judgment and improper.
¶ 58        Likewise, defendant could not reassert the portion of count I of the amended counterclaim
       relating to the hit-and-run claim after the court had entered final judgment following the bench
       trial. Even if defendant had sought to amend that claim prior to the case’s completion,
       defendant still could not do so, because a party may not amend a cause of action on which
       summary judgment was granted unless “depositions and affidavits indicate that the [party] can

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       replead the claim under another theory.” (Emphasis added.) Cook v. AAA Life Insurance Co.,
       2014 IL App (1st) 123700, ¶ 40. Defendant did not allege a new theory in her proposed second
       amended counterclaim. Defendant alleged, at most, that a new piece of evidence supported the
       same legal theory on which summary judgment was previously granted. Her attempt to
       relitigate the issue was thus improper. Moreover, even if defendant were not barred from
       relitigating the same theory after summary judgment, we still would find no abuse of discretion
       in the trial court’s denial of leave to amend. We have already concluded that this new piece of
       evidence, even accepted as viable, would not upset the trial court’s grant of summary judgment
       on the section 155 hit-and-run claim. We find no error in the trial court’s ruling.

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

¶ 61      Affirmed.




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