                           ILLINOIS OFFICIAL REPORTS
                                         Appellate Court




                  Rosen v. The Larkin Center, Inc., 2012 IL App (2d) 120589




Appellate Court            DONALD ROSEN, Plaintiff-Appellant, v. THE LARKIN CENTER,
Caption                    INC., and DENNIS GRAF, Defendants-Appellees.



District & No.             Second District
                           Docket No. 2-12-0589


Filed                      December 28, 2012


Held                       In an action arising from plaintiff’s termination from his position as chief
(Note: This syllabus       financial officer of defendant school, the trial court’s orders barring
constitutes no part of     plaintiff from testifying as a discovery sanction and ultimately denying
the opinion of the court   him leave to file an amended complaint and entering summary judgment
but has been prepared      for defendants were upheld, since plaintiff disregarded court rules, orders,
by the Reporter of         and deadlines and his proposed amendment was untimely and would have
Decisions for the          prejudiced defendants.
convenience of the
reader.)


Decision Under             Appeal from the Circuit Court of Kane County, No. 08-L-552; the Hon.
Review                     Kevin T. Busch and the Hon. James R. Murphy, Judges, presiding.



Judgment                   Affirmed.
Counsel on                 Donald P. Rosen, of Carpentersville, appellant pro se.
Appeal
                           Michael Resis and Ellen L. Green, both of SmithAmundsen LLC, of
                           Chicago, and Jeffrey A. Risch and Rebecca L. Dobbs, both of
                           SmithAmundsen LLC, of St. Charles, for appellees.


Panel                      JUSTICE SCHOSTOK delivered the judgment of the court, with opinion.
                           Justices Hutchinson and Birkett concurred in the judgment and opinion.




                                              OPINION

¶1          Plaintiff, Donald Rosen, appeals two trial court orders that contributed to the grant of
        summary judgment in favor of defendants, The Larkin Center, Inc., and Dennis Graf1; Larkin
        is an agency that provides special education and care to students through its therapeutic day
        school. Those orders that plaintiff appeals are: (1) the discovery sanction barring plaintiff
        from testifying; and (2) the denial of plaintiff’s motion for leave to file an amended
        complaint. We affirm.

¶2                                         I. BACKGROUND
¶3          The present litigation arose after defendant terminated plaintiff from his position as chief
        financial officer (CFO). One of the functions of the CFO was to negotiate funding rates on
        behalf of Larkin with various state agencies. On September 23, 2008, plaintiff filed a
        complaint against defendant, alleging the following facts. Graf, chief executive officer of
        Larkin, hired plaintiff in January 2001, to act as CFO for Larkin. In April 2003, plaintiff
        became a licensed attorney. According to the complaint, Graf orally retained plaintiff to
        provide legal services to Larkin, which plaintiff provided. Plaintiff sought payment for those
        legal services in the amount of $94,125. Count I of the complaint alleged breach of contract,
        claiming that defendant breached its oral contract with plaintiff by failing to pay him for his
        legal services. Count II of the complaint alleged quantum meruit, claiming that plaintiff spent
        significant time as an attorney working for defendant’s benefit. The complaint alleged that
        defendant enjoyed the benefits of plaintiff’s services by receiving state funds and that
        plaintiff was owed fair and reasonable value for his services. Plaintiff attached numerous
        invoices on letterhead for “The Law Office of Donald Rosen.”
¶4          On February 5, 2009, plaintiff moved for leave to file an amended complaint, requesting
        to add a third count, alleging a statutory claim for recovery from illegal gambling conducted


               1
                We refer to both defendants in the singular for purposes of this opinion.

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     by defendant. This motion was denied for reasons stated on the record.2 Meanwhile,
     defendant sought to quash a subpoena issued for a deposition of a Larkin employee and
     overly broad document requests. The court ordered the parties to move forward on the
     deposition, but it also ordered plaintiff to issue new document requests that were more
     specific. A flurry of discovery motions and alleged violations of discovery rules went back
     and forth for several months.
¶5        On January 14, 2010, the court ordered plaintiff to tender all outstanding discovery
     answers to defendant within 14 days, and it noted that it would consider sanctions if plaintiff
     failed to comply. On February 4, 2010, defendant filed a motion for sanctions pursuant to
     Illinois Supreme Court Rule 219(c) (eff. July 1, 2002) and for dismissal with prejudice for
     want of prosecution, alleging that plaintiff failed to answer interrogatories served upon him
     in September 2009. Defendant alleged in its motion that: the discovery was initially due on
     October 27, 2009; it made reasonable attempts by written correspondence to obtain answers
     from plaintiff; on November 16, 2009, and January 4, 2010, it sent plaintiff correspondence
     pursuant to Illinois Supreme Court Rule 201(k) (eff. July 1, 2002); the trial court entered the
     January 14 order advising plaintiff that discovery was due by January 28; and plaintiff had
     not yet tendered any responses.
¶6        On March 10, 2010, the court denied defendant’s motion to dismiss for want of
     prosecution; reserved the issues related to defendant’s motion for sanctions; and ordered both
     parties to file within 21 days any motion seeking to compel discovery or seeking rulings on
     any discovery matter. It further ordered that it would hear all motions regarding written
     discovery on April 28. Defendant filed a motion for sanctions by March 31. On April 6,
     plaintiff filed a motion to compel defendant to comply with his discovery request.
¶7        On May 26, 2010, after another flurry of discovery-related motions by both parties, the
     court entered an order stating that it would continue to reserve the issues related to
     defendant’s motion for sanctions. It further ordered plaintiff to tender answers to defendant’s
     interrogatories within 14 days and both parties to conduct an in-person Rule 201(k)
     conference within 30 days to address all outstanding discovery issues. The court continued
     the case to July 21. On that day, the court ordered defendant to produce documents related
     to plaintiff’s job description and his termination by July 28 and continued the matter.
¶8        On August 18, 2010, defendant again filed a motion to compel discovery and for
     sanctions. It alleged that, following the court-ordered Rule 201(k) conference, plaintiff
     agreed to produce certain documents and then failed to do so. Further, defendant argued that
     the documents that plaintiff tendered were incomplete. The parties continued to file
     additional motions to compel, resulting in a court order on October 6, 2010. On that date, the
     court ordered plaintiff to produce certain documents and denied plaintiff’s motion to compel
     certain documents pertaining to his termination, stating that the basis for producing those
     documents was not within the scope of the matters at issue in the complaint. However, the
     court ordered defendant to produce certain documents and information as requested by
     plaintiff.


            2
             The record on appeal does not contain reports of proceedings.

                                              -3-
¶9          On November 23, 2010, after more motions were filed by both parties, the trial court
       ordered the parties to finalize written discovery and conduct party depositions. It set the
       matter for a status hearing on February 22, 2011. On March 16, 2011, defendant again moved
       for sanctions and dismissal. Defendant argued that plaintiff most recently violated discovery
       rules by failing to appear for his scheduled deposition. Plaintiff’s deposition was scheduled
       for February 16, 2011, and he was properly notified. Defendant never received any notice or
       communication from plaintiff regarding his failure to communicate, his absence from the
       scheduled deposition, or dates to reschedule. On April 7, 2011, the trial court entered an
       order that stated as follows: (1) defendant’s motion for sanctions and to dismiss for want of
       prosecution was granted in part and denied in part; (2) defendant’s request for dismissal was
       denied, but plaintiff was barred from testifying in the matter; (3) defendant was granted leave
       to file a petition for costs and attorney fees related to preparing for and attending plaintiff’s
       scheduled deposition on February 16, 2011, and related to the filing of defendant’s most
       recent motion for sanctions; and (4) the matter was continued to April 26, 2011. It does not
       appear from the record that plaintiff was present for the April 7 hearing.
¶ 10        On April 20, 2011, defendant filed its petition for costs and attorney fees, seeking
       $6,956.52 related to plaintiff’s refusal to cooperate and appear for his deposition. A group
       exhibit was filed to support the fees, but the exhibit was excluded from the public court file
       due to the confidential nature of the documents. As such, it is not contained in the record on
       appeal. On April 26, plaintiff filed a motion to vacate the April 7 order, arguing that his 80-
       year-old mother’s knee collapsed the week before the April 7 hearing. Plaintiff’s mother was
       scheduled for surgery on April 27, and plaintiff went to Arizona to care for her. Plaintiff
       attached his airline reservations, which showed that his flight left Chicago on April 2 but
       included no information related to when plaintiff returned.
¶ 11        On June 2, 2011, the court ordered that plaintiff would be permitted to testify upon
       payment of the fees and costs prayed for in defendant’s petition. The court stated that, if the
       fees and costs were not paid within 60 days, plaintiff’s motion to vacate the April 7 order
       would be denied. The matter was continued. Plaintiff appealed the April 7 order, but on
       August 15, 2011, this court granted defendant’s motion to dismiss the appeal. On October
       25, 2011, the trial court noted that this court dismissed plaintiff’s appeal and that plaintiff did
       not pay defendant’s fees and costs within 60 days and therefore plaintiff was barred from
       testifying.
¶ 12        On December 28, 2011, defendant moved for summary judgment, alleging the following.
       Plaintiff’s duties as CFO included negotiating funding rates with the Illinois Department of
       Children and Family Services and the Illinois State Board of Education. This duty was part
       of plaintiff’s employment before he became a licensed attorney. Defendant argued that
       plaintiff now sought compensation for legal services, above and beyond his annual salary,
       despite never having submitted an invoice for legal services. Plaintiff’s basis for recovery
       was an alleged oral contract, which defendant denied ever existed. Defendant argued that
       plaintiff had no evidence supporting his allegation and that the Larkin employee handbook
       refuted plaintiff’s claim because it stated that any employment agreement will not be
       enforceable unless the agreement is in writing and signed by the executive director.
       Defendant also submitted correspondence from plaintiff in which plaintiff stated that the

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       parties had agreed that, “in lieu of additional compensation for this legal representation,
       [plaintiff] would instead be allowed to take time as [plaintiff] needed, during the day, to
       solicit and service [his] legal clients to build up a private law practice.” Defendant argued
       that the undisputed evidence demonstrated that plaintiff agreed to perform some legal
       services for Larkin as part of his employment as CFO and that in exchange he was allowed
       to pursue his private practice during the day, as needed. Defendant argued that there was no
       evidence suggesting that Larkin would be invoiced separately. Further, past CFOs also
       negotiated funding rates with state agencies as part of their job duties. Therefore, defendant
       argued, the undisputed evidence established that plaintiff was fully compensated through his
       annual salary for all of the services that he rendered, including negotiating funding rates.
       Defendant attached supporting documents to its motion, including Graf’s deposition and
       affidavits from prior Larkin CFOs and Larkin’s human resources director.
¶ 13       On March 22, 2012, plaintiff filed a motion for leave to amend his complaint, pursuant
       to section 2-616(c) of the Code of Civil Procedure (Code) (735 ILCS 5/2-616(c) (West
       2010)), seeking to add count III, a claim for wrongful termination due to breach of contract,
       and count IV, a claim for promissory estoppel. According to the motion, the admissions
       included in defendant’s pending motion for summary judgment contained proof of his
       wrongful-termination claim. Plaintiff alleged that defendant acknowledged that there was a
       contract between the parties regarding plaintiff’s legal services to defendant in that defendant
       admitted that plaintiff was allowed to take time as needed to build up his private practice
       while still performing as Larkin’s CFO and receiving a full-time salary. Plaintiff
       acknowledged in his motion that, because the complaint did not allege wrongful termination,
       defendant refused to allow Graf to answer questions regarding plaintiff’s termination.
       Defendant opposed plaintiff’s motion, arguing that the proposed claims did not cure his
       pleadings and were merely a disingenuous attempt to delay the court’s ruling on the motion
       for summary judgment. Defendant argued that plaintiff failed to establish that there was any
       valid contract between the parties, and therefore a wrongful-termination claim was futile
       given the law of employment-at-will. Further, defendant argued that it would be prejudiced
       if plaintiff were now allowed to add the wrongful-termination claim, four years after the
       original complaint was filed and after years of virulent litigation. Plaintiff had prior notice
       that discovery was not being conducted for employment-related claims, but he had not
       previously chosen to add the claims. Plaintiff had numerous opportunities to amend his
       complaint and had attempted to amend it once already, and therefore his motion was
       untimely.
¶ 14       On April 26, 2012, the trial court granted defendant’s motion for summary judgment, “for
       the reasons stated in the record.” It also denied plaintiff’s motion for leave to amend the
       complaint, “for reasons stated in the record and in agreement with the reasons stated in
       defendant’s response brief.” Plaintiff timely appealed, arguing that the trial court erred in
       barring him from testifying where he missed one deposition appointment and in denying his
       motion for leave to amend his complaint.




                                                 -5-
¶ 15                                       II. ANALYSIS
¶ 16        We first address plaintiff’s argument that the trial court abused its discretion in
       sanctioning him pursuant to Rule 219(c) by barring his testimony. Rule 219(c) provides that,
       if any party unreasonably fails to comply with discovery rules, the court, upon motion, may
       enter remedial orders, including barring a witness from testifying. Ill. S. Ct. R. 219(c) (eff.
       July 1, 2002). Additionally, the court may order the offending party to pay the other party
       reasonable expenses incurred as a result of the misconduct, including a reasonable attorney
       fee. Id. Rule 219(c) provides that the trial court shall set forth with specificity the reasons and
       basis for any sanction either in the judgment order itself or in a separate written order. Id.3
       The decision to impose a particular sanction is within the discretion of the trial court, and
       therefore only a clear abuse of discretion will justify a reversal. Shimanovsky v. General
       Motors Corp., 181 Ill. 2d 112, 120 (1998).
¶ 17        The purpose in imposing sanctions is to coerce compliance with discovery rules and
       orders, not to punish the offending party. Id. at 123. A sanction ordering dismissal or that
       results in a default judgment is a drastic one to be invoked only in those cases where the
       party’s actions “show a deliberate, contumacious or unwarranted disregard of the court’s
       authority.” Id. In determining whether a trial court abused its discretion in imposing a
       particular sanction, this court must look to the criteria upon which the trial court relied in
       making its determination of an appropriate sanction. Id. The factors a trial court is to use in
       determining a sanction include: “(1) the surprise to the adverse party; (2) the prejudicial
       effect of the proffered testimony or evidence; (3) the nature of the testimony or evidence; (4)
       the diligence of the adverse party in seeking discovery; (5) the timeliness of the adverse
       party’s objection to the testimony or evidence; and (6) the good faith of the party offering the
       testimony or evidence.” Id. at 124. No single factor in this list is determinative. Id.
¶ 18        Barring a witness from testifying is a drastic sanction, especially when that witness is the
       party’s only witness, and such a sanction should be imposed sparingly. Palmer v. Minor, 211
       Ill. App. 3d 1083, 1086 (1991). However, such a sanction has been upheld where the party’s
       conduct has been contumacious. Id. at 1087. In Palmer, the plaintiff failed to disclose a
       witness until the day of an auto negligence trial, after the trial court had barred testimony
       from two other witnesses for various reasons. Id. at 1084. The witness was the plaintiff’s
       live-in girlfriend whom he knew had witnessed the accident. Id. at 1084-85. The defense
       moved to bar the witness from testifying pursuant to Rule 219(c) and argued that the


               3
                While the written order in the common-law record does not set forth the court’s specific
       reasons for sanctioning plaintiff, reviewing courts have relaxed that requirement in cases where
       sanctions were entered pursuant to written motions, because it is assumed that the reasons for the
       sanction were those set out in the motions. See Illinois Emcasco Insurance Co. v. Nationwide Mutual
       Insurance Co., 393 Ill. App. 3d 782, 790 (2009). Here, defendant filed a written motion. Further,
       neither party raises this issue, which results in forfeiture. Vancura v. Katris, 238 Ill. 2d 352, 369-70
       (2010). Additionally, plaintiff has failed to submit reports of proceedings, which might have
       contained the court’s reasoning, and any doubts arising from the incompleteness of the record are
       construed against him. See Law Offices of Nye & Associates, Ltd. v. Boado, 2012 IL App (2d)
       110804, ¶ 23 (citing Foutch v. O’Bryant, 99 Ill. 2d 389, 391-92 (1984)).

                                                     -6-
       plaintiff’s conduct was a gross violation of supreme court rules because he never disclosed
       the witness and did not even mention the witness during his deposition. Id. at 1085. The trial
       court agreed and imposed the sanction on the plaintiff, barring the witness’s testimony. Id.
       The appellate court affirmed, stating that the plaintiff lived with the witness, the witness was
       the mother of his child, and he knew that she witnessed the auto accident, yet the plaintiff
       never disclosed the witness’s name in an interrogatory or in his deposition. Id. at 1086. The
       plaintiff explained only that the witness was a “ ‘spare.’ ” Id. at 1086-87. The appellate court
       acknowledged that barring the plaintiff’s only witness was a drastic sanction but determined
       that it was an appropriate one where the plaintiff’s conduct grossly violated the rules. Id. at
       1087.
¶ 19       Similarly, in Dolan v. O’Callaghan, 2012 IL App (1st) 111505, ¶ 1, the defendant
       refused to answer certain questions at his deposition and the trial court sanctioned him by
       requiring him to pay the attorney fees incurred in connection with preparing the motion for
       sanctions. The plaintiff alleged that she worked for the defendant as an associate attorney and
       that the plaintiff agreed to accept a percentage of all fees in lieu of a salary. Id. ¶ 5. The
       plaintiff alleged that the defendant ultimately breached that agreement. Id. After months of
       antagonistic discovery, the defendant was ordered to resume and complete his deposition so
       he could be questioned about several topics. Id. ¶ 10. Eventually, the plaintiff moved for
       sanctions after the defendant refused to answer certain questions. Id. ¶ 13. The trial court
       ordered that the defendant resume the deposition and answer the questions and that, if he
       refused to cooperate, he would be barred from testifying in the case. Id. ¶ 16. It further stated
       that the defendant would be ordered to pay the attorney fees associated with pursuing the
       sanction motions. Id. The appellate court affirmed, stating that the trial court’s sanction was
       intended to encourage the defendant to cooperate with discovery and answer the questions
       at his deposition. Id. ¶ 57. The trial court had noted that the defendant would be barred from
       testifying if he did not answer the questions at his deposition. Id. The trial court, in delaying
       the further sanction of barring the defendant as a witness, demonstrated that it was attempting
       to ensure a trial on the merits. Id. The appellate court held that, for this reason, the trial
       court’s order was a “ ‘just order’ ” because it was intended to combat an abuse of the
       discovery process and to ensure discovery and a trial on the merits. Id.
¶ 20       Palmer and Dolan are instructive to the case at bar. Like in Palmer, plaintiff here knew
       that his case rested on his testimony alone, as his complaint was based upon an oral contract
       between himself and defendant. He was provided notice of his deposition scheduled for
       February 16, 2011, and the record shows that he received such notice on January 10, 2011.
       Between January 10 and February 16, plaintiff failed to call, e-mail, fax, send a letter, or
       otherwise attempt to notify defendant of his need to reschedule the deposition. Further,
       plaintiff did not leave town to assist his mother in Arizona until April 2. Instead of
       attempting to change the hearing date on defendant’s motion, plaintiff chose to simply fail
       to appear in court on April 7 and skip an opportunity to explain his failure to appear for his
       deposition. Even when plaintiff filed a motion to vacate the April 7 order, which he did not
       do until nearly three weeks after that order was entered and over a month after the scheduled
       deposition date, he failed to explain why he failed to appear at the deposition. Like in
       Palmer, this information was well within plaintiff’s control, and he chose not to share it with

                                                 -7-
       the trial court or defendant in a timely fashion. Upon plaintiff’s motion to vacate, the trial
       court, like the trial court in Dolan, attempted to ensure a trial on the merits when it
       refashioned its sanction order, stating that plaintiff could avoid being barred as a witness by
       complying with the court’s order to pay within 60 days defense fees associated with the
       missed deposition. Plaintiff chose not to comply with this court order and thereby incurred
       the drastic sanction. Like the Palmer and Dolan trial courts, the trial court in this case acted
       within its discretion by barring plaintiff as a witness where he willfully violated deadlines
       and discovery rules imposed both by the court and by supreme court rules and did so over
       the course of four years.
¶ 21       Plaintiff relies on two cases for his position that the trial court abused its discretion in
       barring him from testifying, but we find both cases distinguishable. First, the trial court in
       King v. Clay, 335 Ill. App. 3d 923 (2002), abused its discretion in barring the plaintiff from
       testifying, because the plaintiff’s failure to appear for a deposition was not willful but rather
       was the result of the defendant’s failure to proceed to schedule it. Id. at 926. Further, the
       plaintiff had already appeared and testified at an arbitration hearing, and thus the defendant
       would not have been prejudiced by the failure to depose the plaintiff in discovery if she were
       allowed to testify at the trial. Id. at 927-28. Second, in Danzot v. Zabilka, 342 Ill. App. 3d
       493, 497-98 (2003), the plaintiff did not breach any court rule or court order and fully
       complied with discovery orders and rules during an arbitration hearing. The trial court’s basis
       for barring witnesses from testifying was that the plaintiff had chosen not to call the
       witnesses during the arbitration hearing. Id. at 498. The appellate court found an abuse of
       discretion because the plaintiff was not obligated to call the witnesses during the arbitration
       hearing, as she was entitled to make strategic decisions, and the defendant could have
       subpoenaed the witnesses if she wanted them to testify. Id.
¶ 22       Here, unlike in King, defendant pursued the discovery deposition and did not have the
       benefit of plaintiff’s testimony at an arbitration hearing. Further, unlike in Danzot, plaintiff
       here failed to appear for his deposition, failed to attempt to reschedule, failed to comply with
       other discovery orders, failed to pay defendant’s fees and costs as ordered, and failed to
       explain why his conduct was anything other than willful, deliberate, contumacious, or an
       unwarranted disregard for the court’s authority. Plaintiff, as demonstrated by the record,
       showed a consistent pattern of disregarding court rules, orders, and deadlines throughout the
       course of this litigation. Such conduct is just the type to lead to a dismissal or a barring of
       witnesses. See also Chabowski v. Vacation Village Ass’n, 291 Ill. App. 3d 525, 528-29
       (1997) (upholding dismissal of the plaintiff’s case where the plaintiff’s counsel showed a
       disregard for the court’s authority throughout the lawsuit, including failing to show up for
       hearings and failing to show up for the plaintiff’s deposition without notifying the defendant
       or court or providing any reason). We therefore do not find King or Danzot binding on the
       facts of this case.
¶ 23       Regarding plaintiff’s suggestion that the court failed to determine the reasonableness of
       defendant’s attorney fees associated with the missed deposition and pursuit of Rule 219
       sanctions, plaintiff failed to include reports of proceedings in the record. Thus, we construe
       any doubts against plaintiff and presume that the trial court properly considered the
       reasonableness of defendant’s attorney fees. We therefore reject plaintiff’s contention that

                                                 -8-
       “imposing those exorbitant fees in lieu of the penalty of debarment from testifying was not
       a mitigation of the debarment sanction.”
¶ 24        Next, plaintiff argues that the trial court erred in denying his motion for leave to file an
       amended complaint, which would have added claims of wrongful termination and
       promissory estoppel. The decision to grant leave to amend a complaint rests within the sound
       discretion of the trial court, and we will not reverse such a decision absent an abuse of that
       discretion. I.C.S. Illinois, Inc. v. Waste Management of Illinois, Inc., 403 Ill. App. 3d 211,
       219 (2010). The right to amend is neither absolute nor unlimited. Id. In determining whether
       a trial court has abused its discretion in granting or denying such leave, this court must
       consider the following factors: (1) whether the proposed amendment would cure the
       defective pleading; (2) whether other parties would sustain prejudice or surprise by virtue of
       the proposed amendment; (3) whether the proposed amendment was timely; and (4) whether
       previous opportunities to amend the pleading could be identified. Id. at 220. The plaintiff
       must meet all four factors, and if the proposed amendment does not state a cognizable claim,
       thus failing the first factor, the reviewing court need not proceed with further analysis. Id.
¶ 25        Plaintiff argues that adding his wrongful-termination and promissory-estoppel claims
       would have cured his defective pleading because it would have incorporated facts
       acknowledged by defendant and would have allowed him to request additional discovery
       regarding the reason for his termination. Plaintiff argues that defendant would not have been
       surprised or prejudiced by the additional claims. He also claims that his proposed amendment
       was timely because he could not have filed it before he had evidence, obtained through
       discovery, that acknowledged the revised terms of his employment contract. We disagree
       with plaintiff’s arguments.
¶ 26        As defendant argues, a trial court may consider whether a proposed amendment concerns
       matters known to the plaintiff when the original pleading was filed and whether the plaintiff
       provides good reason for not filing at that time. Johnson v. Abbott Laboratories, Inc., 238
       Ill. App. 3d 898, 904 (1992). In its motion to dismiss, dated October 30, 2008, defendant
       included correspondence from plaintiff in which it admitted that plaintiff would be allowed
       time during the day to pursue private legal work in lieu of additional compensation for any
       legal work performed for defendant’s benefit. This is the “admission” by defendant that
       plaintiff claims as the basis for his additional claims. However, plaintiff provides no reason
       for not filing these claims in his original complaint when they are based upon the alleged oral
       contract to which he was obviously a party. The alleged facts underlying the claims were
       entirely within plaintiff’s knowledge when he filed his original complaint. Even if the facts
       were not within his knowledge at the time of the original complaint, plaintiff made no
       attempt to amend his complaint in a timely fashion after defendant’s motion to dismiss
       (October 30, 2008) or after the court limited discovery to exclude the reasons for plaintiff’s
       termination (October 6, 2010). Plaintiff also fails to explain why defendant would not have
       been prejudiced by these entirely new claims, which possibly would have required a different
       defense strategy, four years after it commenced defending this litigation. Under these facts,
       which demonstrate that plaintiff’s amendment was untimely and would have prejudiced
       defendant, we cannot say that the trial court abused its discretion in denying plaintiff’s
       motion seeking leave to file an amended complaint.

                                                 -9-
¶ 27                                III. CONCLUSION
¶ 28      Based on the foregoing reasons, we affirm the judgment of the circuit court of Kane
       County.

¶ 29      Affirmed.




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