{ "id": 5261706, "name": "DOMINIC SENESE, Plaintiff-Appellant, v. CLIMATEMP, INC., et al., Defendants-Appellees", "name_abbreviation": "Senese v. Climatemp, Inc.", "decision_date": "1991-10-11", "docket_number": "No. 1\u201490\u20143253", "first_page": "302", "last_page": "322", "citations": [ { "type": "official", "cite": "222 Ill. App. 3d 302" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "397 N.E.2d 84", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "87" } ], "opinion_index": 0 }, { "cite": "78 Ill. App. 3d 575", "category": "reporters:state", "reporter": "Ill. 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App. 3d", "case_ids": [ 3582691 ], "pin_cites": [ { "page": "756" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/164/0749-01" ] } ], "analysis": { "cardinality": 1412, "char_count": 44086, "ocr_confidence": 0.769, "pagerank": { "raw": 2.2608338389805261e-07, "percentile": 0.7826162838065076 }, "sha256": "a6b9cd59a38798814696d62cbf9f093233f31f5daedd692f5030d4ea3768253d", "simhash": "1:36ba7ca1bee31dd7", "word_count": 7169 }, "last_updated": "2023-07-14T18:31:20.627609+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "DOMINIC SENESE, Plaintiff-Appellant, v. CLIMATEMP, INC., et al., Defendants-Appellees." ], "opinions": [ { "text": "JUSTICE LaPORTA\ndelivered the opinion of the court:\nPlaintiff filed suit against defendants alleging they violated the Business Corporation Act of 1983 (Ill. Rev. Stat. 1987, ch. 32, par. 1.01 et seq.) when they denied him his right as a shareholder to inspect corporate books and records. Plaintiff sought declaratory relief, a constructive trust and mandamus. Defendants moved to dismiss plaintiff\u2019s amended complaint, contending plaintiff failed to state a cause of action on each count and that plaintiff was not a shareholder of record and therefore had no right to inspect the books and records. The trial judge granted defendants\u2019 motion. Plaintiff appealed.\nPlaintiff alleges multiple errors on the part of the trial judge. Plaintiff alleges the trial court erred in determining issues of fact based upon its mistaken belief that questioned documents, attached as exhibits to the complaint, are always controlling over possible contrary allegations in the complaint. Plaintiff alleges the trial court erred in not striking defendants\u2019 \u201chybrid\u201d motion which challenged both the legal insufficiency of the complaint and asserted the affirmative matters of laches and standing. Plaintiff alleges the trial court erred in finding his complaint did not state a cause of action for declaratory judgment, constructive trust and mandamus; erred in dismissing the amended complaint based upon the doctrine of laches and standing; erred in barring plaintiff\u2019s discovery requests; and erred in denying plaintiff leave to file a second amended complaint.\nThe facts in the case are circuitous. In September of 1989 plaintiff filed a complaint for mandamus and other relief against Climatemp, Inc., John W. Comforte and Thomas E. Comforte in an effort to compel production of corporate minute books and shareholder record books. Plaintiff alleged he was a stockholder of Climatemp, Inc., and that the Business Corporation Act of 1983 (Ill. Rev. Stat. 1987, ch. 32, par. 7.75) gave him the right, upon written demand and for a proper purpose, to examine corporation books and records. Plaintiff sought review of the books as part of his estate planning. Plaintiff asked the court for a writ of mandamus, and an order on defendants to produce the corporate minute books and shareholder records for Climatemp, Inc., formerly Broadway Sheet Metal Works, Inc.\nDefendants filed a motion to dismiss pursuant to section 2\u2014 619(a)(2) of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2 \u2014 619(a)(2)), contending that plaintiff was not a \u201cholder of record of shares in a corporation\u201d as required by the Business Corporation Act of 1983 (Ill. Rev. Stat. 1987, ch. 32, par. 1.80(g)) and therefore he had no right to inspect the corporation\u2019s books and records. With the motion, defendants filed an affidavit by corporate treasurer Thomas E. Comforte denying plaintiff\u2019s stock ownership.\nPlaintiff filed a motion to strike Comforte\u2019s affidavit and filed a response in opposition to defendants\u2019 motion to dismiss. Plaintiff\u2019s response included a copy of the 1958 articles of incorporation for Broadway Sheet Metal Works, Inc., listing plaintiff as an incorporator and director, and a copy of the 1960 amendment to the articles, changing the name of the company to Climatemp, Inc.\nDefendants then filed a reply in support of their motion to dismiss which included several exhibits purporting to establish that plaintiff had indeed sold his stock. Defendants contended plaintiff had sold his 50 shares of Broadway Sheet Metal Works, Inc., stock to Expressway Terminals, Inc., on January 4, 1960. Defendants\u2019 exhibits included a purported transfer of stock letter of intent, plaintiff\u2019s cancelled stock certificates although no signature appeared on the back, corporate ledgers memorializing the stock transfer and minutes of a special shareholder meeting where plaintiff resigned as a director and officer of Broadway Sheet Metal Works, Inc. The minutes referred to \u201cL.A. Moody [an incorporator and original stockholder] and Expressway Terminals, Inc.,\u201d as \u201call of the shareholders.\u201d Plaintiff\u2019s signed resignation was also an exhibit.\nThe undated letter of intent to assign stock from plaintiff to Expressway Terminals, Inc., stated that \u201c[fjormal contract relating to this purchase, with arrangements for holding of shares of stock in escrow by Halfpenny & Hahn, shall be drawn up and executed not later than May 1, 1960.\u201d No evidence of the formal contract was included in any of the pleadings.\nPlaintiff moved for leave to file a supplemental response, indicating that he needed time for limited discovery to address defendants\u2019 allegation that plaintiff had transferred his stock. In addition, plaintiff moved to join Victor Comforte as an additional defendant; that motion was granted.\nOn March 14, 1990, the trial judge granted defendants\u2019 section 2 \u2014 619 motion to dismiss and granted plaintiff leave to file an amended complaint. The court explained that plaintiff had failed to satisfy the standing requirement and therefore had no right to discovery.\nThe court stated: \u201c[p]laintiff has failed to adequately demonstrate his standing to bring this action that is a prerequisite of what essentially is a discovery cause of action. There is no reason why plaintiff should need discovery limited or otherwise in order to reasonably set forth allegations as to why he believes he is at present a stockholder of Climatemp, Inc. In order to permit the plaintiff to set forth his version of events, demonstrate his continued status as a shareholder, if he is able to do so, this court will grant the motion to dismiss. The plaintiff will be given 28 days to file a complaint with specificity, setting forth your standing. You will have 28 days to answer or otherwise plead. Now, start with a clean slate and show me where you stand.\u201d\nPlaintiff\u2019s amended complaint for declaratory judgment, constructive trust and mandamus admitted plaintiff had signed a letter of intent to assign his stock to Expressway as part of a move to give the company more borrowing power. Plaintiff denied that a formal contract was ever drawn up or signed or that he was ever paid for his shares. Plaintiff sought a declaration by the court as to the effect of the letter of intent and plaintiff\u2019s ownership interest in Climatemp, Inc. Plaintiff also sought a constructive trust and mandamus to compel production of corporate records. Attached to Senese\u2019s first amended complaint as exhibits were copies of the articles of incorporation for Broadway Sheet Metal Works, Inc.; a 1959 annual report for Broadway Sheet Metal Works, Inc.; articles of amendment to the articles of incorporation of Broadway Sheet Metal Works, Inc., changing the company name to Climatemp, Inc.; a letter of intent to assign stock from Senese and Comforte to Expressway Terminals, Inc.; a 50-share stock certificate in Broadway Sheet Metal Works, Inc., with Senese\u2019s name on it and the word \u201ccancel\u201d written over the top; the back of the stock certificate; an undated assignment separate from the certificate which appears to bear plaintiff\u2019s signature; a 50-share stock certificate in Broadway Sheet Metal Works, Inc., with Expressway Terminals, Inc.\u2019s name on it and the word \u201ccancelled\u201d written over the top; a letter by Senese demanding that he be allowed to view corporate records; and a letter by the corporate attorney refusing that request.\nDefendants then filed a section 2 \u2014 615 motion to dismiss the amended complaint, alleging that (1) each count of the complaint failed to state a cause of action, (2) plaintiff had no standing to file the complaint because he was not a stockholder, and (3) plaintiff was barred by laches because he had not asserted a right of stock ownership in the 30 years prior to commencing the suit. Defendants\u2019 motion to stay discovery was granted on August 13, pending resolution of defendants\u2019 section 2 \u2014 615 motion.\nOn September 24, 1990, the trial judge granted defendants\u2019 section 2 \u2014 615 motion to dismiss. The court found: (a) the complaint was barred on its face by laches; (b) the complaint failed to adequately allege the plaintiff\u2019s standing; (c) count I failed to state a claim for declaratory judgment; (d) count II failed to state a claim for constructive trust; and (e) count III failed to state a claim for mandamus.\nInitially the September 24 order granted plaintiff leave to file a second amended complaint. The trial judge subsequently granted defendants\u2019 motion to reconsider that portion of the September 24, 1990, order and on October 16, 1990, the trial judge dismissed plaintiff\u2019s first amended complaint with prejudice. Plaintiff appealed the trial judge\u2019s orders entered in 1990 on March 14, August 13, September 24 and October 16.\nOn appeal we consider plaintiff\u2019s contention that the trial court erred in determining issues of fact based upon its mistaken belief that documents attached as exhibits are always controlling over contrary allegations in the complaint.\nPlaintiff argues that the trial judge erred when he accepted as true the letter of intent to assign his stock, which was attached to plaintiff\u2019s first amended complaint. Plaintiff contends that the trial court mistakenly relied on the truth of the exhibits attached to the complaint as though they were attached in support of and as the basis for plaintiff\u2019s claim as alleged in the complaint in compliance with section 2 \u2014 606 of the Illinois Code of Civil Procedure. Under section 2\u2014 606, \u201c[i]f a claim or defense is founded upon a written instrument, a copy thereof *** must be attached to the pleading as an exhibit or recited therein, unless the pleader attaches to his or her pleading an affidavit stating facts showing that the instrument is not accessible to him or her. In pleading any written instrument a copy thereof may be attached to the pleading as an exhibit. In either case the exhibit constitutes a part of the pleading for all purposes.\u201d Ill. Rev. Stat. 1987, ch. 110, par. 2 \u2014 606.\nPlaintiff contends that his lawsuit was not \u201cfounded upon\u201d the letter of intent to assign his stock or on any of the other exhibits attached to his complaint. He contends the exhibits were attached to show his intent, but not to show that the transaction had occurred. He argues that the exhibits were attached to the amended complaint only to satisfy the trial judge\u2019s directive, after the dismissal of his initial complaint. The first amended complaint makes that clear when it states on page 4: \u201c[t]he only information ever submitted to plaintiff by VICTOR COMFORTS relating to how DOMINIC SENESE purportedly lost his ownership interest in CLIMATEMP, INC. was set forth in the Reply Memorandum in Support of Motion to Dismiss With Prejudice and for Sanctions, together with exhibits. *** Such documents included *** the Letter of Intent Agreement, an assignment separate from stock certificate for 50 shares to Expressway Terminal, Inc. which was uncompleted, *** Copies of said documents are attached hereto, marked \u2018Group Exhibit D\u2019, and made a part hereof. Serious discrepancies in the records exist.\u201d\nPlaintiff contends that he attached the exhibits in an effort to fully explain why he signed the letter of intent but then \u201cnever followed through on it.\u201d Plaintiff argues that the trial court gave undue weight to the exhibits attached to his complaint. At the September 24 hearing on defendants\u2019 motion to dismiss, the trial court stated: \u201cCount 1, the plaintiff *** completely failed to respond [to] or to refute the fact that he has no standing to bring an action based upon the alleged shareholders rights. You have appended the assignment and you are bound by that exhibit.\u201d\nPlaintiff argues that exhibits attached to a complaint negate conflicting allegations in the complaint only if they are the instruments on which a claim is founded (Ill. Rev. Stat. 1987, ch. 110, par. 2 \u2014 606) but do not negate allegations if they are merely evidentiary in nature and not the instrument sued upon. (Coupon Redemption, Inc. v. Ramadan (1987), 164 Ill. App. 3d 749, 756, 518 N.E.2d 285.) To find otherwise, plaintiff argues, would prevent plaintiffs from attaching to a complaint any contested will, contract or deed that plaintiffs allege is false.\nIn McCormick v. McCormick (1983), 118 Ill. App. 3d 455, 460, 455 N.E.2d 103, the appellate court found the trial court erred when it relied on section 2 \u2014 606, then numbered section 36, to admit as true all exhibits attached to plaintiff\u2019s complaint. The appellate court found that the trial court had improperly relied on the truth of exhibits attached to plaintiff\u2019s complaint when in fact the exhibits were attached by way of examples in support of the allegations, but not as documents upon which the claim was founded. The court stated: \u201cThe trial court erred in determining the legal sufficiency of the complaint by comparing the factual allegations of the complaint with inferences the court made after reviewing the numerous exhibits.\u201d McCormick, 118 Ill. App. 3d at 461.\nDefendants argue that the trial court never directed plaintiff to attach to his complaint the letter of intent to assign stock. Defendants contend that section 2 \u2014 606 is controlling and that when plaintiff attached the letter of intent to assign stock it became part of the pleading and was to be taken as true on a section 2 \u2014 615 motion to dismiss. Defendants contend the letter of intent should be considered by the court as a legal instrument such as a trust document, affidavit or public file which would control over inconsistent allegations of facts. McCormick, 118 Ill. App. 3d at 459-60.\nDefendants argue that where the language of a pleading is at variance with the recitals of a document attached to or made a part of such pleadings the recitals in the documents prevail. (Jones v. McCollen (1967), 85 Ill. App. 2d 375, 380-81, 227 N.E.2d 788.) Defendants cite other cases for the proposition that exhibits control over allegations in the complaint. Friedman v. Gingiss (1989), 182 Ill. App. 3d 293, 296, 537 N.E.2d 1067 (condominium rules and declaration attached as exhibit control over conflicting allegations in the pleading); Ford v. University of Illinois Board of Trustees (1977), 55 Ill. App. 3d 744, 746-47, 371 N.E.2d 173 (exhibits detailing interim grievance policy as determined by the chancellor would control over allegations in complaint about express provisions in the policy); Wilbur Waggoner Equipment Rental & Excavating Co. v. Johnson (1975), 33 Ill. App. 3d 358, 361, 342 N.E.2d 266 (court looks to the document itself and not to the allegation in the complaint to determine the sufficiency of a notice of lien attached as an exhibit).\nPlaintiff\u2019s complaint alleged that: (1) plaintiff was an original and is a current shareholder of Climatemp, Inc., stock; (2) plaintiff signed a letter of intent agreement to sell his stock to Expressway Terminals, Inc., sometime prior to May 1, 1960; and (3) the letter of intent agreement was \u201cnever effectuated,\u201d no formal contract was signed, no stock was transferred and no money was paid for the shares.\nWe find that plaintiff\u2019s complaint is not \u201cfounded upon\u201d- the exhibits attached and consequently section 2 \u2014 606 does not apply. Plaintiff\u2019s complaint provides the explanation for why he attached the exhibits to his first amended complaint. Plaintiff\u2019s complaint alleges that on information and belief Comforte bases his opposition to plaintiff\u2019s claim on the documents attached to defendant\u2019s reply memorandum in support of his motion to dismiss with prejudice and that those attachments provided plaintiff with the only explanation ever provided for how he \u201cpurportedly lost his ownership interest in CLIMATEMP, INC.\u201d He does not adopt the exhibits as authentic nor does he agree with Comforte\u2019s contentions.\nWe find that the letter of intent agreement does not conflict with the pleadings in plaintiff\u2019s complaint. Plaintiff alleged he owned stock, agreed to sell his stock and that that agreement was never consummated. The attached exhibits show plaintiff as an original stockholder in the company and show plaintiff\u2019s signature on an agreement to sell his stock. A letter of intent demonstrates only that the signer intends to do something in the future. No exhibit establishes whether the parties complied with the conditions precedent to the sale, i.e., to pay $1,000 down payment and the balance over 10 years, to draw up a formal contract by May 1, 1960, or that Halfpenny & Hahn held the stock in escrow until the sale was completed. Defendants point to the assignment separate from certificate as proof of the sale; however, plaintiff has alleged that the assignment is incomplete, undated and not witnessed and that the transfer agreement was never consummated.\nWe find the trial judge erred in his reliance on the exhibits in plaintiff\u2019s complaint and found them dispositive on the question of plaintiff\u2019s contention that he is a current stockholder.\nNext we must determine whether the court properly entertained defendants\u2019 section 2 \u2014 615 motion to strike and dismiss plaintiff\u2019s complaint. After plaintiff filed his first amended complaint, defendants filed a section 2 \u2014 615 motion that contended plaintiff failed to state a cause of action on each of the three counts, had no standing to bring suit, and was barred by laches.\nPlaintiff contends on appeal that the trial court should have stricken the motion because it included affirmative defenses of standing and laches, properly addressed in a section 2 \u2014 619 motion. In the alternative, plaintiff argues that the trial court improperly considered standing and laches, as well as exhibits attached to defendants\u2019 initial response, when ruling on the section 2 \u2014 615 motion.\nA motion for dismissal of a complaint for failure to state a cause of action under section 2 \u2014 615 must specify where the pleading is legally insufficient. The motion admits all well-pleaded facts in the complaint. Factual defenses are not available under section 2 \u2014 615. The court may consider only the allegations in the complaint and may not consider supporting affidavits offered by the movant. MBL (USA) Corp. v. Diekman (1985), 137 Ill. App. 3d 238, 241, 484 N.E.2d 371.\nDefendants argue that their motion was properly brought under section 2 \u2014 615 and that a trial court can consider both affirmative defenses of standing and laches under section 2 \u2014 615. Defendants contend that, in any event, the mislabelling of a motion is not fatal to the motion. Illinois Housing Development Authority v. Sjostrom & Sons, Inc. (1982), 105 Ill. App. 3d 247, 253, 433 N.E.2d 1350, 1355.\nWe find the trial judge clearly articulated his intention to rule on defendants\u2019 section 2 \u2014 615 motion without consideration of affirmative defenses. He did so when he ruled that each of the three counts failed to state a cause of action.\nNext, plaintiff contends the trial court erred when it ruled he did not state a cause of action for declaratory judgment. The parameters for declaratory judgment are few. The court may, in cases of actual controversy, make binding declarations of rights having the force of final judgments under section 2 \u2014 701(a) of the Illinois Code of Civil Procedure. (Ill. Rev. Stat. 1989, ch. 110, par. 2 \u2014 701(a).) The court shall refuse to enter a declaratory judgment or order if it appears that the judgment or order would not terminate the controversy or some part thereof giving rise to the proceeding. Ill. Rev. Stat. 1989, ch. 110, par. 2 \u2014 701(a).\nA complaint states a cause of action for declaratory judgment if it recites in sufficient detail an actual and legal controversy between the parties and prays for a declaration of rights and, if desired, other legal relief. (Mid-Town Petroleum, Inc. v. Dine (1979), 72 Ill. App. 3d 296, 390 N.E.2d 428.) The actual controversy requirement is intended to distinguish present justiciable issues from abstract or hypothetical disputes where no present dispute is pending and requires resolution. (Alderman Drugs, Inc. v. Metropolitan Life Insurance Co. (1979), 79 Ill. App. 3d 799, 802, 398 N.E.2d 984.) The existence of another remedy does not preclude declaratory relief. Alderman, 79 Ill. App. 3d at 802.\nPlaintiff contends he alleged an actual controversy existed over whether the letter of intent to sell his stock was consummated, thereby extinguishing his stock ownership. Plaintiff contends that because he did not proceed to transfer his shares in accordance with the undated letter of intent, he retained his shareholder interest in Climatemp, Inc., successor to Broadway Sheet Metal Works, Inc., and that the purported transfer on the corporate books was improper. Plaintiff contends his amended complaint sufficiently alleged his ownership interest in Climatemp, Inc., the fraudulent misappropriation of his shares and the improper denial of his right to inspect the corporate books and records.\nDefendants contend plaintiff should have pursued a cause of action against Expressway Terminal, Inc., the company that allegedly was involved in the purchase of stock. Defendants contend plaintiff\u2019s cause of action cannot stand because plaintiff failed to include Expressway Terminals, Inc., as a necessary party defendant to the action. Further, defendants contend they are not a necessary party to the declaratory judgment action. A director or officer of a corporation may be a trustee for stockholders for certain purposes, but not for all purposes and not to the extent of protecting stockholders in their dealings with third persons. Anchor Realty & Investment Co. v. Rafferty (1941), 308 Ill. App. 484, 498-99, 32 N.E.2d 394.\nDeclaratory judgment is appropriate to determine existing rights (Gagne v. LaGrange (1976), 36 Ill. App. 3d 864, 868, 345 N.E.2d 108), but such an action may be dismissed where a party seeks to enforce his rights after the fact. Goldberg v. Valve Corp. of America (1967), 89 Ill. App. 2d 383, 392, 233 N.E.2d 85.\nWe believe the trial court properly dismissed plaintiff\u2019s complaint for declaratory judgment. Plaintiff\u2019s complaint and attached exhibits challenge a stock transaction between plaintiff and Expressway Terminals, Inc., that allegedly occurred 30 years ago. The central purpose of the declaratory judgment procedure is to allow the court to address a controversy one step sooner than normal after the dispute has arisen but before steps are taken which would give rise to a claim for damages or other relief. (Tait v. County of Sangamon (1985), 138 Ill. App. 3d 169, 170, 485 N.E.2d 558.) In addition, Expressway Terminals, Inc., clearly is a necessary party to any action invalidating its alleged stock purchase.\nPlaintiff next alleges the court erred when it dismissed his constructive trust claim. A constructive trust can be imposed where there is a breach of a fiduciary duty or when fraud is proven. (Sadacca v. Monhart (1984), 128 Ill. App. 3d 250, 255, 470 N.E.2d 589.) Where no fraud exists, the court can still impose a constructive trust when equity and good conscience dictate it is appropriate (Selmaville Community Consolidated School District No. 10 v. Salem Elementary School District No. 111 (1981), 96 Ill. App. 3d 1062, 1066, 421 N.E.2d 1087), as in the case of duress, coercion or mistake. Suttles v. Vogel (1988), 126 Ill. 2d 186, 533 N.E.2d 901.\nPlaintiff contends he adequately pleaded fraud when he alleged that the \u201cde facto chief executive officer\u201d of Climatemp, Victor Corn-forte, asserted in his affidavit that plaintiff had no ownership interest in Climatemp. Plaintiff contends his first amended complaint included allegations of fraud concerning the handling by Climatemp and its officers of plaintiff\u2019s stock certificates, the corporate stock ledger sheet and the lack of documents that would verify plaintiff had transferred his stock to another. Plaintiff alleged that these and other \u201chighly suspect discrepancies\u201d are evidence of Comforte\u2019s acts of misappropriation done with the \u201cintent to defraud.\u201d\nPlaintiff argues that fraud may be inferred from the nature of the acts complained of (Majewski v. Gallina (1959), 17 Ill. 2d 92, 100, 160 N.E.2d 783) and that all evidence need not be proven at this stage. Plaintiff contends he has alleged the fraud in that he was a holder of company stock and Victor Comforte is contending plaintiff is not now a holder of company stock. Plaintiff cites Holmes v. Birtman Electric Co. (1960), 18 Ill. 2d 554, 165 N.E.2d 261, where the court stated: \u201cGenerally speaking, the officers of a corporation may rightfully refuse, for the time being, a requested registry of stock when notified to do so by a third person, who claims some interest in the stock, which might be lost or injuriously affected by the transfer ***.\u201d (Holmes, 18 Ill. 2d at 560.) Plaintiff contends individuals in control of a corporation owe a fiduciary duty to the corporation and to its shareholders. Coduti v. Hellwig (1984), 127 Ill. App. 3d 279, 292, 469 N.E.2d 220.\nDefendants contend plaintiff\u2019s complaint is nothing more than conclusory statements alleging no acts of fraud on the part of any defendants. In addition, defendants contend plaintiff has failed to allege any facts to indicate a breach of fiduciary duty by any defendants. In an action for a constructive trust, the complaint must allege a fiduciary relationship existed and must allege facts charging actual or constructive fraud. Perry v. Wyeth (1962), 25 Ill. 2d 250, 253, 184 N.E.2d 861.\nWe believe the trial court properly dismissed plaintiff\u2019s action alleging constructive trust but that plaintiff should be allowed an opportunity to amend following limited discovery. The alleged stock transfer between plaintiff and Expressway Terminals, Inc., was documented on the books of the corporation. Plaintiff has alleged a fraud occurred in which defendants participated, and has alleged that the corporate officers and directors breached their fiduciary duty and participated in a fraud perpetrated on plaintiff. While defendants as directors and officers and the corporation itself are not obligated to oversee and protect shareholders from outside stock deals, they are obligated to require conclusive documentation that the parties have concluded the sale and that the purchaser is entitled to stock ownership.\nPlaintiff cites Holmes in opposition to the motion. In Holmes, the court found the directors and officers acted inappropriately after an allegedly fraudulent stock sale was brought to their attention before a stock transfer took place on the corporate ledger. Here plaintiff has not alleged he notified the corporation directors and officers at any time to put them on notice that Expressway Terminals, Inc., was improperly claiming shareholder rights nor has he alleged any facts to support his allegation that corporate officers and directors somehow participated in his lack of stockholder status. Plaintiff contends he must be allowed limited discovery to elicit facts necessary to support such allegations.\nPlaintiff has alleged only conclusory statements about Victor Comforte\u2019s alleged fraudulent activities. Plaintiff alleged merely that he owned stock and Victor Comforte now contends he does not. Fraud must be proven; it cannot be presumed. (Majewski v. Gallina (1959), 17 Ill. 2d 92, 99, 160 N.E.2d 783, 788.) Plaintiff has not alleged sufficient facts in support of a fraud which would merit imposition of a constructive trust but should be permitted discovery and the opportunity then to amend his complaint to correct its deficiencies.\nPlaintiff contends next that the trial court improperly dismissed his complaint for failure to state a cause of action for mandamus under section 7.75(b) of the Business Corporation Act of 1983. The Act provides that any shareholder may examine corporate books and records upon written demand if made for a proper purpose. (Ill. Rev. Stat. 1989, ch. 32, par. 7.75(b).) Plaintiff argues that his complaint identifies him as a shareholder, shows he made a demand and explains that the \u201cproper purpose\u201d was for estate planning.\nDefendants argue that plaintiff has failed to establish that he is a shareholder of record and therefore the trial court properly denied his request. On a motion to dismiss, plaintiff need not prove his case, but rather must only establish a prima facie case, where all well-pleaded facts are taken as true. Mid-town Petroleum, 72 Ill. App. 3d at 298-99.\nPlaintiff alleged that he purchased stock at the time of the company\u2019s incorporation and that he \u201cnever transferred his shares.\u201d Plaintiff explained his purpose in seeking the records and attached to the complaint a copy of his demand made to the corporation. On its face, plaintiff has pleaded a cause of action for mandamus in his amended complaint.\nPlaintiff alleges next that the trial court erred when it ruled he had no standing because the issue of standing was not properly before the court on defendants\u2019 section 2 \u2014 615 motion. Plaintiff contends the trial court could not have decided the issue of his lack of standing to sue unless it first made the factual determination that plaintiff had indeed sold his stock, contrary to the allegations in his complaint. Determining the factual merits of a pleading instead of its legal sufficiency on a section 2 \u2014 615 motion to dismiss is error. First Security Bank v. Bachleda (1987), 165 Ill. App. 3d 725, 729, 520 N.E.2d 660.\nDefendants argue that plaintiff failed to allege adequately his standing as a stockholder of Climatemp, Inc., to refute the letter of intent attached to his complaint as an exhibit. Defendants argue that the Business Corporation Act of 1983 permits review of corporate books and records by \u201cshareholders of record\u201d (Ill. Rev. Stat. 1989, ch. 32, par. 7.75) and that plaintiff has not established he is a shareholder of record.\nDefendants contend standing can properly be brought in a section 2 \u2014 615 motion. (Sjostrom, 105 Ill. App. 3d at 253, 433 N.E.2d at 1355.) The court in Sjostrom considered whether standing was proper for a section 45 (now section 2 \u2014 615) motion. The court noted that when a defendant brings affirmative matters in his motion to dismiss, the motion is properly brought under section 48 (now section 2 \u2014 619). The court stated that such affirmative matters would be inappropriate for a section 45 motion; however, where a defendant pleads that the plaintiff has failed to establish all the essential elements for a cause of action, use of section 45 is appropriate. The court found the defendant\u2019s challenge to plaintiff\u2019s standing to be based on the fact of the complaint itself and therefore \u201cthe motions would have been proper if brought pursuant to section 45 of the Civil Practice Act.\u201d Sjostrom, 105 Ill. App. 3d at 253, 433 N.E.2d at 1355.\nWe find the Illinois Supreme Court\u2019s decision in Greer v. Illinois Housing Development Authority (1988), 122 Ill. 2d 462, 524 N.E.2d 561, to be more persuasive. The court in Greer stated that lack of standing is an affirmative defense and initially the plaintiff has no burden to plead and prove standing. Rather the defendant must plead and prove lack of standing as a defense to the claim. (Greer, 122 Ill. 2d at 494.) We believe plaintiff had no obligation to plead his standing at this juncture in the litigation and he need not allege facts to establish standing until lack of standing is properly raised as a defense. We conclude that raising the affirmative defense of lack of standing in a section 2 \u2014 615 motion was improper.\nPlaintiff next argues that laches does not apply to bar his complaint (1) because defendants have failed to show they were prejudiced by the delay, and (2) because laches is an affirmative defense not properly raised in a section 2 \u2014 615 motion.\n16 The defense of laches can be raised by a motion to dismiss if (1) an unreasonable delay appears on the face of the pleading, (2) no sufficient excuse for the delay appears or is pleaded, and (3) the motion specifically points out the defect. If these three elements are present, then the trial court may properly strike plaintiff\u2019s complaint. (Hartsman v. Abboreno (1960), 18 Ill. 2d 467, 165 N.E.2d 338.) But a lapse in time, no matter how great, will not bar a suit on the ground of laches where an excuse is given for the delay which would make it inequitable to bar the cause of action. (Mitchell v. Simms (1979), 79 Ill. App. 3d 215, 219, 398 N.E.2d 211.) As a general rule, to charge a party with laches, it is essential that the party have knowledge of the facts upon which his claim is based yet fail to proceed in a timely manner. (Zegers v. Zegers, Inc. (1976), 38 Ill. App. 3d 546, 348 N.E.2d 210.) Without knowledge of the relevant facts, delay will not bar relief unless occasioned by a lack of diligence. Goin v. Eater (1982), 107 Ill. App. 3d 887, 891, 438 N.E.2d 234.\nPlaintiff contends defendants must plead and prove not only unreasonable delay, but must also prove prejudice resulting therefrom. (Nancy\u2019s Home of the Stuffed Pizza, Inc. v. Cirrincione (1986), 144 Ill. App. 3d 934, 941, 494 N.E.2d 795.) Though plaintiff cites Mogul v. Tucker (1987), 152 Ill. App. 3d 610, 504 N.E.2d 872, for the same proposition, we note that the court in Mogul found plaintiff had alleged a reasonable explanation for not filing his suit earlier.\nIn addition, plaintiff contends laches is purely an affirmative defense which cannot therefore be raised in a section 2 \u2014 615 motion. Plaintiff cites to section 2 \u2014 613(d) of the Code of Civil Procedure, which identifies and enumerates affirmative defenses: \u201csuch as payment, release, satisfaction, discharge, license, fraud, duress, estoppel, laches.\u201d (Ill. Rev. Stat. 1989, ch. 110, par. 2 \u2014 613(d).) Plaintiff also cites to Mogul and Cundiff v. Unsicker (1983), 118 Ill. App. 3d 268, 454 N.E.2d 1089, which refer to laches as an affirmative defense.\nDefendants argue that plaintiff has given no reasonable excuse in his complaint for his delay and that therefore the trial court was correct when it found the complaint was barred by laches. Defendants contend also that if plaintiff were permitted to pursue his claim now, they would be prejudiced because they would have to defend a charge of fraud on actions that allegedly occurred 30 years ago. Defendants contend they also would be prejudiced because plaintiff is now claiming 50% ownership in a business they have worked to build and which has produced income for the past 30 years.\nOur analysis here must focus on whether the 30-year passage of time itself triggers the defense of laches. The appropriate question for review is whether the doctrine of laches can apply based on the allegations in the complaint itself, thereby making it a proper subject for a section 2 \u2014 615 motion. Many cases refer to laches as an affirmative defense under section 2 \u2014 619. As to raising laches as a basis in a section 2 \u2014 615 motion, we believe the answer is found in People ex rel. Casey v. Health & Hospitals Governing Comm\u2019n (1977), 69 Ill. 2d 108, 370 N.E.2d 499. In Casey, the court considered the application of laches under both sections 43 and 45, the predecessors to sections 2\u2014 615 and 2-619.\nThe Casey court stated that where an unreasonable delay appears on the face of the complaint, plaintiff has an affirmative duty to set forth a valid excuse to explain the delay. The court stated: \u201c[A]ccording to section 43(4) of the Civil Practice Act [citation], affirmative defenses, such as laches, \u2018must be plainly set forth in the answer or reply.\u2019 *** Where laches is apparent on the face of a complaint and plaintiff has allegedly failed to set forth a reasonable excuse for the delay, \u2018there appears to be no reason why the defect cannot be raised by motion so long as the motion specifically points out the defect complained of\u2019 [Citation.] *** [U]nder section 45(1) of the Civil Practice Act [citation], a party may, by motion, object to pleadings; but it is incumbent upon the moving party to \u2018point out specifically the defects complained of\u2019 in order to give plaintiffs the opportunity to file amended complaints to correct any deficiencies.\u201d (Emphasis in original.) Casey, 69 Ill. 2d at 113-14, 370 N.E.2d at 501.\nCasey clearly states that plaintiff has an affirmative duty to set forth a valid excuse for a 30-year delay. Whtere plaintiff failed to do so, as is the case here, defendant is entitled to raise the issue of laches in a section 2 \u2014 615 motion to strike and dismiss as long as he specifically points out the defect. The plaintiff must then be allowed to amend his complaint to correct the deficiency.\nHere defendants had the right to raise the laches defense in the section 2 \u2014 615 motion, and the trial court properly reviewed plaintiff\u2019s complaint in light of the laches doctrine. Plaintiff failed to set forth a reasonable excuse for his 30-year delay, and defendants properly argued laches and the prejudice they would suffer if plaintiff were allowed to pursue his complaint. The trial court stated on the record that \u201cthe complaint was barred by laches due to the plaintiff\u2019s failure to allege any explanation for his 30-year delay in filing an action based upon alleged shareholder\u2019s rights.\u201d We find the trial court was correct when it found plaintiff\u2019s complaint barred by laches but that plaintiff should be permitted to amend to allege facts which would explain the delay.\nPlaintiff next contends the trial court erred when it barred plaintiff from engaging in any discovery, especially discovery concerning the questioned documents upon which the trial court relied in making its factual determination.\nSupreme Court Rule 201(b) states, in pertinent part, \u201ca party may obtain by discovery full disclosure regarding any matter relevant to the subject matter involved in the pending action, whether it relates to the claim or the defense of the party seeking disclosure or any other party\u201d (134 Ill. 2d R. 201(b)) but \u201c[t]he court may *** make a protective order as justice requires, denying, limiting, conditioning, or regulating discovery to prevent unreasonable annoyance, expense, embarrassment, disadvantage or oppression.\u201d 134 Ill. 2d R. 201(c).\nDiscovery procedures were designed to be flexible and adaptable to the infinite variety of cases and circumstances appearing in the trial court. (Monier v. Chamberlain (1966), 35 Ill. 2d 351, 355, 221 N.E.2d 410.) A discovery request may properly be quashed where the trial court has before it sufficient information upon which to decide the defendant\u2019s motion to dismiss. (Continental Grain Co. v. FMC Corp. (1975), 27 Ill. App. 3d 819, 327 N.E.2d 371.) A trial court\u2019s broad discretionary power to restrict pretrial discovery will not be disturbed absent a manifest abuse of discretion. United Nuclear Corp. v. Energy Conversion Devices, Inc. (1982), 110 Ill. App. 3d 88, 104, 441 N.E.2d 1163.\nWe find the trial judge committed such an error here. Plaintiff alleged he was a stockholder and defendants denied the stock ownership. Exhibits attached to both plaintiff\u2019s amended complaint and defendants\u2019 answer included altered stock certificates, changed corporate records, strike marks over several official documents and other inconsistencies which beg for a clearer explanation. The purpose of discovery is to enable counsel to better prepare and evaluate their case. (United Nuclear, 110 Ill. App. 3d at 104.) We believe limited discovery will cast light on unclear portions of the complaint and on the circumstances surrounding the creation of the challenged exhibits. For these reasons, we find the trial court abused its discretion in denying plaintiff\u2019s discovery request.\nFinally, plaintiff contends the trial court, after initially granting plaintiff leave to file a second amended complaint, erred in reversing its order thereby denying plaintiff leave to file a second amended complaint.\nUnder section 2 \u2014 616 of the Code of Civil Procedure, a trial court can permit a litigant to amend a pleading at any time prior to final judgment. (Ill. Rev. Stat. 1989, ch. 110, par. 2 \u2014 616.) A trial court\u2019s power to allow amendment should be fully exercised in order that a litigant can completely present his cause of action. (Giannini v. First National Bank (1985), 136 Ill. App. 3d 971, 988, 483 N.E.2d 924.) The decision to deny a request to amend is a matter within the sound discretion of the trial court. Pratt v. Sears Roebuck & Co. (1979), 71 Ill. App. 3d 825, 831, 390 N.E.2d 471, 476.\nBefore a trial judge can be found to have abused his discretion in denying a party leave to amend, it must be clear from the record that sufficient reasons or facts were presented to the trial judge and that his exercise of discretion is clearly contrary to the facts. Tishman Midwest Management Corp. v. Wayne Jarvis, Ltd. (1986), 146 Ill. App. 3d 684, 692, 500 N.E.2d 431; see also Intini v. Schwartz (1979), 78 Ill. App. 3d 575, 579, 397 N.E.2d 84, 87.\nPlaintiff contends he was wrongly denied an opportunity to amend his complaint in light of the fact that his amended complaint was stricken based on arguments not previously raised. Plaintiff argues that under the rules articulated in Casey a plaintiff whose case is barred by laches should have an opportunity to amend to explain the apparent delay in bringing his claim.\nDefendants argue that the trial court granted plaintiff an earlier opportunity to amend his complaint and on his second attempt he still could not state a cause of action. Defendants argue that plaintiff failed to preserve for review the denial of his motion for leave to amend.\nThe record establishes that on September 24, 1990, the trial court dismissed plaintiff\u2019s amended complaint. Plaintiff sought and was granted leave to amend, citing Casey and noting that the laches argument was raised for the first time with respect to the amended complaint. On October 16, 1990, the trial court, ruling on defendants\u2019 motion to reconsider, ruled that the September 24 dismissal was with prejudice. The court found that plaintiff had had two opportunities to plead standing and had failed twice. The court found that dismissal was warranted \u201cseparate and apart from the laches issue.\u201d\nWe have previously concluded that the trial court erred in its premature ruling on plaintiff\u2019s standing. Under the law enunciated in Casey, plaintiff\u2019s complaint should not be dismissed with prejudice because barred by laches. We believe plaintiff persuasively argued for an amendment in that laches was raised for the first time when defendants moved to dismiss the first amended complaint. We believe plaintiff should have been given an opportunity to file a second amended pleading with regard to the mandamus action.\nWe find that the trial court: (1) improperly relied on exhibits attached to plaintiff\u2019s complaint to determine material facts at issue; (2) did not err in refusing to strike defendants\u2019 section 2 \u2014 615 motion for failure to state a cause of action for declaratory judgment and constructive trust; (3) erred in dismissing plaintiff's complaint for failure to state a cause of action for mandamus; (4) ruled prematurely on the issue of plaintiff\u2019s standing; (5) properly found plaintiff\u2019s complaint was barred by laches on its face; and (6) improperly denied plaintiff\u2019s motion to file a second amended complaint.\nFor the foregoing reasons we affirm in part, reverse in part and remand the case to the trial court to permit limited discovery as to the challenged exhibits, provide plaintiff an opportunity to further amend his complaint based on facts discovered and for further proceedings consistent with this opinion.\nAffirmed in part, reversed in part and remanded.\nRAKOWSKI, P.J., and McNAMARA, J., concur.", "type": "majority", "author": "JUSTICE LaPORTA" } ], "attorneys": [ "Murphy & Boyle, Chartered, of Chicago (Robert D. Boyle, Mark R. Valley, and James P. Boyle, of counsel), for appellant.", "Lillig & Thorsness, Ltd., of Oak Brook (Richard J. Nogal and Amy Remington Jennings, of counsel), for appellees." ], "corrections": "", "head_matter": "DOMINIC SENESE, Plaintiff-Appellant, v. CLIMATEMP, INC., et al., Defendants-Appellees.\nFirst District (6th Division)\nNo. 1\u201490\u20143253\nOpinion filed October 11,1991.\nMurphy & Boyle, Chartered, of Chicago (Robert D. Boyle, Mark R. Valley, and James P. Boyle, of counsel), for appellant.\nLillig & Thorsness, Ltd., of Oak Brook (Richard J. Nogal and Amy Remington Jennings, of counsel), for appellees." }, "file_name": "0302-01", "first_page_order": 322, "last_page_order": 342 }