{ "id": 249324, "name": "KAZIMIR IGNARSKI, Ex'r of the Estate of Charles N. Ignarski, Plaintiff-Appellant, v. ALEX S. NORBUT et al., Defendants-Appellees", "name_abbreviation": "Ignarski v. Norbut", "decision_date": "1995-03-17", "docket_number": "No. 1\u201493\u20143253", "first_page": "522", "last_page": "533", "citations": [ { "type": "official", "cite": "271 Ill. App. 3d 522" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "437 N.E.2d 774", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "107 Ill. App. 3d 373", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3023870 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/107/0373-01" ] }, { "cite": "586 N.E.2d 1211", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1982, "pin_cites": [ { "page": "1215-16" } ], "opinion_index": 0 }, { "cite": "146 Ill. 2d 263", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5597010 ], "weight": 2, "year": 1982, "pin_cites": [ { "page": "273" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/146/0263-01" ] }, { "cite": "608 N.E.2d 187", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "240 Ill. App. 3d 605", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5138677 ], "pin_cites": [ { "page": "618-19" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/240/0605-01" ] }, { "cite": "558 N.E.2d 239", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "200 Ill. 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App. 3d", "case_ids": [ 3472660 ], "weight": 2, "year": 1973, "pin_cites": [ { "page": "962" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/167/0952-01" ] }, { "cite": "440 N.E.2d 448", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "109 Ill. App. 3d 311", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5448324 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/109/0311-01" ] }, { "cite": "600 N.E.2d 1323", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1982, "opinion_index": 0 }, { "cite": "235 Ill. App. 3d 95", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5784392 ], "year": 1982, "opinion_index": 0, "case_paths": [ "/ill-app-3d/235/0095-01" ] }, { "cite": "515 N.E.2d 134", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "161 Ill. App. 3d 499", "category": "reporters:state", "reporter": "Ill. 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App. 3d", "case_ids": [ 8498575 ], "weight": 5, "year": 1986, "pin_cites": [ { "page": "257" }, { "page": "257" }, { "page": "258" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/218/0254-01" ] }, { "cite": "440 N.E.2d 96", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1991, "opinion_index": 0 }, { "cite": "92 Ill. 2d 13", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3096980 ], "year": 1991, "opinion_index": 0, "case_paths": [ "/ill-2d/92/0013-01" ] }, { "cite": "473 N.E.2d 444", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "129 Ill. App. 3d 1050", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3489769 ], "pin_cites": [ { "page": "1058" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/129/1050-01" ] }, { "cite": "257 N.E.2d 12", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1984, "opinion_index": 0 }, { "cite": "120 Ill. 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Ignarski, Plaintiff-Appellant, v. ALEX S. NORBUT et al., Defendants-Appellees." ], "opinions": [ { "text": "JUSTICE RAKOWSKI\ndelivered the opinion of the court:\nKazimir Ignarski (plaintiff), executor of the estate of Charles N. Ignarski (Charles), filed a single-count legal malpractice complaint against Alex S. Norbut and Norbut & Associates, Ltd. (defendants), alleging that Charles\u2019 personal injury action was dismissed because defendants failed to name the proper party within the applicable two-year limitations period. The trial court granted defendants\u2019 motion for summary judgment, holding that plaintiff s second amended complaint failed to allege that but for the attorney\u2019s negligence, plaintiff would have prevailed in the underlying action.\nOn appeal, the plaintiff raises the following issues: (1) whether the trial court erred in holding that the complaint failed to allege all the elements of the underlying personal injury action; (2) whether the defendants should be equitably estopped from denying that plaintiff could ever plead the underlying personal injury action because (a) Norbut had previously stated that plaintiff did have a meritorious cause of action, and (b) it was a result of Norbut\u2019s negligence that the underlying cause of action was dismissed; and (3) whether the trial court erred in denying plaintiffs motion to file a third amended complaint.\nWe affirm.\nOn December 6, 1983, Charles was injured when two youths attacked him and took his wallet as he was leaving a Kentucky Fried Chicken restaurant. The following day Charles retained defendants. On the two-year anniversary date, in the belief that John Heublin owned the restaurant, defendants filed suit against Heublin and caused summons to issue. The summons was returned \"Not Found,\u201d and over a year later, on December 30, 1986, defendants withdrew as counsel and turned the file over to Charles. Subsequently, another law firm filed a first amended complaint naming \"KFC National Management Company\u201d (KFC). This action was later dismissed because it was not filed within the two-year limitations period. Charles died on January 29, 1988.\nThe instant legal malpractice action was filed on December 7, 1989. On March 13, 1990, defendants filed a motion to dismiss pursuant to section 2 \u2014 615 of the Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 2 \u2014 615 (now 735 ILCS 5/2 \u2014 615 (West 1992))) which stated the complaint did not state a cause of action for legal malpractice because it did not properly allege that but for the attorney\u2019s negligence, the plaintiff would have prevailed in the underlying action. According to defendants, the complaint did not state ultimate facts as to why KFC owed plaintiff a duty to protect him from the criminal acts of third parties. The trial court granted the motion, but allowed plaintiff leave to file a first amended complaint. This complaint was likewise stricken and again the trial court allowed plaintiff leave to amend.\nPlaintiff filed a second amended complaint on April 29, 1991. On November 18, 1992, defendants moved for summary judgment (Ill. Rev. Stat. 1991, ch. 110, par. 2 \u2014 1005 (now 735 ILCS 5/2 \u2014 1005 (West 1992))) based on plaintiffs inability to plead ultimate facts establishing why KFC had a duty to protect the plaintiff from criminal acts of third parties. The parties briefed the issue, and after oral argument the court granted defendants\u2019 motion and denied plaintiff\u2019s oral motion to file a third amended complaint.\nI\nSummary judgment should be granted if there exists no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. (Carruthers v. B.C. Christopher & Co. (1974), 57 Ill. 2d 376, 380, 313 N.E.2d 457.) It should never be granted unless the right of the movant is free from doubt. (Murphy v. Urso (1981), 88 Ill. 2d 444, 464, 430 N.E.2d 1079.) If the affidavits and other materials disclose a dispute as to any material issue of fact, summary judgment must be denied even if the court believes the movant will or should prevail at trial. Summary judgment procedure is not designed to try an issue of fact, but rather to determine if one exists. (Ray v. City of Chicago (1960), 19 Ill. 2d 593, 599, 169 N.E.2d 73.) In considering a motion for summary judgment, the court must strictly construe all things filed in support of the motion while liberally construing all things filed in opposition thereto. (Kolakowski v. Voris (1980), 83 Ill. 2d 388, 398, 415 N.E.2d 397.) If fair-minded persons could draw different inferences from the evidence, the issues should be submitted to a jury to determine what conclusion seems most reasonable. (Silberstein v. Peoria Town & Country Bowl, Inc. (1970), 120 Ill. App. 2d 290, 293-94, 257 N.E.2d 12.) Finally, although the plaintiff need not prove his case at the summary judgment stage, he may be required to present some evidence which demonstrates the existence of a triable and genuine issue of fact. Ralston v. Casanova (1984), 129 Ill. App. 3d 1050, 1058, 473 N.E.2d 444.\nThe elements of a legal malpractice claim are: (1) the existence of an attorney-client relationship which establishes a duty on the part of the attorney; (2) a negligent act or omission constituting a breach of that duty; (3) proximate cause establishing that \"but for\u201d the attorney\u2019s negligence, the plaintiff would have prevailed in the underlying action; and (4) damages. (Pelham v. Griesheimer (1982), 92 Ill. 2d 13, 440 N.E.2d 96; Sheppard v. Krol (1991), 218 Ill. App. 3d 254, 578 N.E.2d 212; Claire Associates v. Pontikes (1986), 151 Ill. App. 3d 116, 502 N.E.2d 1186.) Because legal malpractice claims must be predicated upon an unfavorable result in the underlying suit, no malpractice exists unless counsel\u2019s negligence has resulted in the loss of the underlying action. (Claire Associates, 151 Ill. App. 3d at 122.) Plaintiff is required to establish that but for the negligence of counsel, he would have successfully prosecuted or defended against the claim in the underlying suit. (Sheppard, 218 Ill. App. 3d at 257; Claire Associates, 151 Ill. App. 3d at 122.) Damages will not be presumed, and the client bears the burden of proving he suffered a loss as a result of the attorney\u2019s alleged negligence. Sheppard, 218 Ill. App. 3d at 257; Claire Associates, 151 Ill. App. 3d at 122.\n\u20222, 3 As a result of the foregoing, the plaintiff at bar was required to plead a case within a case. In particular, he was required to plead ultimate facts establishing why KFC had a duty to protect him from the criminal acts of third parties. The sole allegation in the second amended complaint concerning this duty reads as follows:\n\"5. That on the day of the occurrence and for a long time prior thereto, National knew by reason of prior incidents occurring on said premises that its business invitees were subject to attacks by third persons frequenting the said premises.\u201d\nIllinois law regarding a landowner\u2019s or occupier\u2019s liability for criminal acts of third parties is consistent and well established. In Rodgers v. Hook-SuperX, Inc. (1990), 204 Ill. App. 3d 861, 863, 562 N.E.2d 358, the court stated:\n\"There can be no liability in court for negligence unless the defendant has breached a duty owed to the plaintiff. [Citation.] Generally there is no duty to protect another against the criminal attacks of third persons. However, an owner or occupier of land in Illinois owes a duty to invitees on his premises to reasonably guard against acts of third parties when such attacks are reasonably foreseeable. [Citation.]\u201d (Emphasis in original.)\nGenerally, foreseeability is established through prior criminal attacks on the premises. Although other avenues exist, such as where the owner or occupier allows a condition to exist which facilitates the crime (Rowe v. State Bank (1988), 125 Ill. 2d 203, 531 N.E.2d 1358; Cross v. Wells Fargo Alarm Services (1980), 82 Ill. 2d 313, 412 N.E.2d 472; Duncavage v. Allen (1986), 147 Ill. App. 3d 88, 497 N.E.2d 433) or where the landlord has voluntarily undertaken to provide security measures but performs the undertaking negligently (Phillips v. Chicago Housing Authority (1982), 89 Ill. 2d 122, 431 N.E.2d 1038; Pippin v. Chicago Housing Authority (1979), 78 Ill. 2d 204, 399 N.E.2d 596), the plaintiff does not attempt to impose liability under either of those theories. Therefore, in order to state a cause of action, it was incumbent upon the plaintiff to plead ultimate facts which would establish that either prior incidents similar to the one complained of were known by the landlord to have occurred or some other reason why criminal acts on the premises were reasonably foreseeable.\nIn Rodgers, the court affirmed the trial court\u2019s decision granting summary judgment to the defendant store. The court found the store did not owe a duty to the plaintiff who was mugged in the store\u2019s parking lot. The court concluded that the allegations regarding a previous purse snatching and the actions of the two attackers while they were inside the store just prior to the attack were insufficient to make the attack upon the plaintiff reasonably foreseeable. (See also Mealey v. Pittman (1990), 202 Ill. App. 3d 771, 559 N.E.2d 1173 (insufficient evidence to show the tavern owner / defendant had notice the plaintiff was at risk of being criminally attacked in the parking lot as a result of the illegal consumption of alcoholic beverages by minors; no duty, therefore, summary judgment properly granted).) The question of the existence of a legal duty is a question of law. Mealey, 202 Ill. App. 3d at 777.\nIn addition to the injury being reasonably foreseeable, it must have resulted from the same risk as was present in the prior incidents of criminal activity. (Petrauskas v. Wexenthaller Realty Management, Inc. (1989), 186 Ill. App. 3d 820, 827, 542 N.E.2d 902; Duncavage, 147 App. 3d at 97-98.) In the instant case, plaintiff\u2019s second amended complaint completely fails to comply with the aforementioned authority. The complaint does not allege any prior criminal activity at all, let alone similar criminal activity. Indeed, the only explanation given in the complaint as to why attacks were reasonably foreseeable is that: \"National knew by reason of prior incidents occurring on the premises.\u201d Nowhere in the complaint is there a clue as to what the \"prior incidents\u201d were or when they occurred. Nor is there any reason to believe that the \"prior incidents\u201d involved criminal conduct. In no stretch of the imagination can the second amended complaint be said to set forth ultimate facts which establish a duty to protect invitees from criminal acts of third parties.\nBecause the duty allegation of the second amended complaint is conclusory and does not allege ultimate facts, plaintiff\u2019s reliance on Schnering v. Midlothian Park District (1991), 219 Ill. App. 3d 664, 579 N.E.2d 909, is without merit. Although Schnering stands for the proposition that when a motion for summary judgment is filed without evidentiary material, the plaintiff may rely on the allegations contained in the complaint to defeat the motion, the court specifically stated that the allegations must be \"nonconclusory.\u201d Schnering, 219 Ill. App. 3d at 671.\nPlaintiff also relies upon Marshall v. David\u2019s Food Store (1987), 161 Ill. App. 3d 499, 515 N.E.2d 134. In Marshall, the complaint listed 14 instances of reported criminal activity which had occurred within two blocks of the store within the five months before the plaintiff was attacked. The court held that because the complaint alleged the defendant knew or should have known of these instances, coupled with the fact the defendant employed a security service, it could be inferred the defendant had notice of potential danger in the store\u2019s parking lot. (Marshall, 161 Ill. App. 3d at 500-01.) We do not agree with the reasoning employed nor the holding in Marshall. More importantly, however, unlike the second amended complaint sub judice, the Marshall complaint listed 14 specific instances of reported criminal activity. The issue in Marshall was not that the complaint failed to allege ultimate facts, but rather whether the ultimate facts alleged (criminal activity occurring within two blocks of the store) were sufficient to create a duty to protect on premises invitees from the criminal acts of third parties. Accordingly, the plaintiff\u2019s reliance on Marshall is misplaced.\nFor all of these reasons, it was not error to enter summary judgment. As the trial court appropriately pointed out, not only did the plaintiff fail to come forward with any evidence to support his claim, he could not, after three attempts, plead a cause of action.\nII\nNext, plaintiff makes the alternative argument that the defendants should be equitably estopped from denying that the underlying complaint states a meritorious cause of action by virtue of Alex Nor-but\u2019s conduct. Plaintiff\u2019s position is twofold. First, plaintiff points out that it was because of the defendants\u2019 negligence (failure to investigate and failure to timely name proper defendants) that the underlying action was never allowed past the pleading stage. Plaintiff argues in essence that Norbut is using his own negligence as a shield from liability. Second, plaintiff notes that at defendant Norbut\u2019s deposition, the following took place:\n\"Q. [MR. WEAVER, plaintiff\u2019s attorney]: As a result of that research, you elected to go ahead and file suit, is that correct?\nA. Yes.\nQ. That\u2019s why you filed the lawsuit, because as a result of your research, you thought it was a meritorious claim, and you thought it was worth filing or pursuing, correct?\nA. Yes.\u201d\nFrom this, the plaintiff reasons that the defendants should not now be allowed to deny what Norbut had previously admitted. For the following reasons, we conclude that both arguments are without merit.\nAs previously stated, the plaintiff failed to plead a case within a case. In particular, because the second amended complaint did not contain ultimate facts as to why KFC owed plaintiff a duty of protection, it did not satisfy the proximate cause requirement (i.e., but for the attorney\u2019s negligence, plaintiff would have prevailed in the underlying action). Plaintiff, however, essentially seeks to dispose of the proximate cause requirement. In attempting to do so, plaintiff ignores Illinois case law which has repeatedly rejected this position. In Sheppard (218 Ill. App. 3d 254, 578 N.E.2d 212), the defendant was injured at work by an unidentified and allegedly defective forklift. The defendant attorney was retained to investigate and file a product liability action against the manufacturer of the forklift. The complaint alleged that the attorney never investigated the facts, never identified the manufacturer, and failed to institute legal proceedings. Subsequently, plaintiff\u2019s employer disposed of the forklift, making it impossible to prosecute the claim. The trial court dismissed plaintiff\u2019s complaint because it did not plead, and plaintiff could not prove, that he would have prevailed in the product liability suit \"but for the defendant\u2019s negligence.\u201d In affirming the trial court\u2019s dismissal, this court rejected the plaintiff\u2019s argument that defendant\u2019s negligence should absolve the plaintiff of his responsibility to identify the forklift manufacturer. Sheppard, 218 Ill. App. 3d at 258; see also Beastall v. Madson (1992), 235 Ill. App. 3d 95, 600 N.E.2d 1323; Cook v. Gould (1982), 109 Ill. App. 3d 311, 440 N.E.2d 448.\nNor does Dunavan v. Calandrino (1988), 167 Ill. App. 3d 952, 522 N.E.2d 347, or Kohler v. Woollen, Brown & Hawkins (1973), 15 Ill. App. 3d 455, 304 N.E.2d 677, upon which plaintiff heavily relies, obtain a different result. In Kohler, following a hearing, an arbitrator made an award which was subsequently vacated in the circuit court upon the sole ground that the demands for arbitration were not filed within the proper limitations period. The trial court decision was affirmed on appeal and a petition for leave to appeal in the supreme court was denied. Subsequently, a legal malpractice complaint against the defendant attorneys was filed alleging the attorneys negligently and carelessly failed to file demands for arbitration within the applicable limitation period. The trial court did not address the validity of the award. Rather, the trial was conducted upon the theory that if the claims for arbitration had been filed in time, the arbitrator\u2019s awards would be in effect and that such awards were lost by reason of the alleged negligence of the defendants. The trial court subsequently found for the plaintiffs and entered judgment against the defendants. In response to the defendant\u2019s contention that the plaintiff did not prove a \"case within a case,\u201d i.e., the validity of the underlying award, the Kohler court stated:\n\"Defendants, having prosecuted the claims for arbitration and procured the awards, come within the rule that they are estopped to deny a state of fact procured through their own conduct and acts. [Citation.] It appears that the defendants continued to assert the validity of the awards throughout the proceedings before the arbitrator, in the circuit court and in the Appellate Court and until the denial of leave to appeal by the Supreme Court. Estoppel is defined as a bar or impediment raised by the law precluding a party from alleging or denying a state of facts as a consequence of his previous allegations or conduct. (Black\u2019s Law Dictionary.) It was not error to admit the arbitrator\u2019s awards into evidence.\u201d (15 Ill. App. 3d at 458.)\nUnlike Kohler, the underlying personal injury action in the instant case was dismissed in its initial pleading stages without an evidentiary hearing. As a result, we fail to see how Kohler is analogous.\nIn Dunavan, the plaintiff contended that he should be excused from pleading and proving the validity of the underlying personal injury claim because the defendants had represented to him that he had a valid cause of action. Plaintiff further claimed that defendants tried to string him along in order to limit their liability. Relying on Kohler, the Dunavan plaintiff argued that the defendants should be estopped from denying the validity of plaintiff\u2019s underlying personal injury claim. Although the Dunavan court ultimately concluded that the plaintiff\u2019s underlying complaint did state a cause of action, it rejected the plaintiff\u2019s estoppel argument by stating:\n\"In the case before us, it appears that the defendants did little more than file a complaint on behalf of the plaintiff. Although the case eventually came before this court on the issue of whether defendants had named the proper party [citation], argument was not had on the merits of the claim. This distinguishes the instant case from Kohler.\u201d (Dunavan, 167 Ill. App. 3d at 962.)\nRather than supporting the plaintiff\u2019s argument, Dunavan completely supports a refusal to apply an estoppel to the instant case. Although Norbut gave an affirmative answer when questioned whether the lawsuit was meritorious and worth pursuing, we find it difficult to understand how or why he would have responded in any other fashion. More importantly, however, Norbut\u2019s response was his subjective opinion. Such a general conclusion should not be considered so all conclusive. (See Molden v. Reid (1990), 200 Ill. App. 3d 495, 558 N.E.2d 239 (bare conclusions of law and general denial did not amount to a meritorious defense in a petition for post-judgment relief).) Because Norbut\u2019s statement was not factual, it did not amount to a judicial admission. Plaintiff offers no authority whatsoever as to why the doctrine of equitable estoppel should apply to Nor-but\u2019s deposition testimony. Therefore, we conclude that the doctrine of equitable estoppel was in no way a bar to the court\u2019s entry of summary judgment in favor of defendant.\nIII\nPlaintiffs final contention is that the trial court abused its discretion in denying plaintiff leave to file a third amended complaint. The oral request to file a third amended complaint was made immediately after the trial court entered summary judgment. While the record does not contain a written motion or a proffered third amended complaint, the following colloquy occurred:\n\"THE COURT: This malpractice case has been pending for nearly four years and you\u2019re telling me that in four years you haven\u2019t had sufficient time to investigate the proper allegations of prior incidents? You\u2019re telling me the police department doesn\u2019t have records of prior incidents with regard to this?\n[Plaintiffs counsel]: *** I subpoenaed the police department. *** They said all records, at the time [the] subpoena went out, they said all records prior to [1983 and 1984] have been destroyed under their document destruction program, okay. So, I can not get any records from the police department.\nTHE COURT: Let me ask you this. The case law says that amendments should be allowed if there\u2019s a possibility that the amendment will cure the defects.\nNow, you\u2019re telling me that there is no way that you are capable of acquiring the factual information which is going to lead to ultimate proof.\n[Counsel]: All I said, I cannot get the records from the police department because under their document destruction policy they don\u2019t keep those records.\u201d\nThe trial court then inquired as to what facts the third amended complaint would contain regarding prior criminal acts occurring on the premises. Counsel responded:\n\"I think I can obtain affidavits, affidavits of the police commander who\u2019s in charge of that district at the time who will establish so forth and so on.\n***\nI can probably secure the deposition, if I can find him after this length of time, of the managers of the restaurant or the kids who worked in the restaurant, so forth and so on. All I\u2019m asking the Court is to give me thirty days or forty-five days for leave to file an amended complaint.\u201d\nIn Mendelson v. Ben A. Borenstein & Co. (1992), 240 Ill. App. 3d 605, 618-19, 608 N.E.2d 187, a case also involving an oral motion to file a third amended complaint, the court stated:\n\"Regardless of whether we treat plaintiffs attempt to amend as brought pursuant to section 2 \u2014 616(a) of the Code of Civil Procedure, which permits amendments '[a]t any time before final judgment *** on just and reasonable terms\u2019 (Ill. Rev. Stat. 1989, ch. 110, par. 2 \u2014 616(a)), or under section 2 \u2014 1005(g), which permits amendments '[bjefore or after the entry of a summary judgment *** upon just and reasonable terms\u2019 (Ill. Rev. Stat. 1989, ch. 110, par. 2 \u2014 1005(g)), our inquiry is the same: whether the circuit court abused its discretion in denying leave to amend. (Loyola Academy v. S&S Roof Maintenance, Inc. (1992), 146 Ill. 2d 263, 586 N.E.2d 1211.) This determination requires us to evaluate the following four factors established to address this issue in Kupianen v. Graham (1982), 107 Ill. App. 3d 373, 437 N.E.2d 774, and adopted by our supreme court (see Loyola Academy, 146 Ill. 2d at 273, 586 N.E.2d at 1215-16): (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 is timely; and (4) whether previous opportunities to amend the pleading could be identified.\nUnder the first element, plaintiffs failure to tender his third-amended complaint or include it in the appellate record significantly diminishes our ability to determine whether the proposed amendment would provide plaintiff with a viable theory against defendant. Indeed, as defendant argues, plaintiffs omissions constitute a waiver in this court of plaintiffs right to have the denial of leave to amend reviewed. [Citation.]\u201d\nLike Mendelson, the plaintiff sub judice failed to tender a proposed third amended complaint. More importantly, however, he did not even attempt to articulate facts to be included in the third amended complaint. Rather, without complying with Supreme Court Rule 191(b) (134 Ill. 2d R. 191(b)), he requested additional discovery.\nImplicit in elements two (whether parties would be prejudiced by the amendment) and three (whether the proposed amendment is timely) is that there be a proposed amendment. When all that has been requested is additional discovery and leave to file a complaint containing facts not yet known, further inquiry into these elements is all but impossible.\nRegarding the fourth factor (previous opportunities to amend), we note that we are not dealing with newly discovered evidence or a change in legal theory. The request was for leave to engage in further discovery and to file an amended complaint based upon facts that may or may not be obtained.\nThe underlying criminal assault took place in 1983. Nine years later and four years after filing the malpractice action, the plaintiff has yet to ascertain facts to support his claim. When faced with summary judgment, instead of filing a Rule 191(b) affidavit, plaintiff chose to proceed to brief and argue the motion. After summary judgment was entered and the oral motion to amend was denied, plaintiff chose to appeal rather than attempt to proffer a third amended complaint. We cannot, under these circumstances, find the court\u2019s denial of leave to amend was an abuse of discretion.\nFor all of the aforementioned reasons, the judgment of the trial court is affirmed.\nAffirmed.\nMcNAMARA, P.J., and ZWICK, J., concur.", "type": "majority", "author": "JUSTICE RAKOWSKI" } ], "attorneys": [ "A. Denison Weaver and Thomas J. Gorman, both of Chicago, for appellant.", "Alex S. Norbut, of Chicago, for appellees." ], "corrections": "", "head_matter": "KAZIMIR IGNARSKI, Ex\u2019r of the Estate of Charles N. Ignarski, Plaintiff-Appellant, v. ALEX S. NORBUT et al., Defendants-Appellees.\nFirst District (6th Division)\nNo. 1\u201493\u20143253\nOpinion filed March 17, 1995.\nA. Denison Weaver and Thomas J. Gorman, both of Chicago, for appellant.\nAlex S. Norbut, of Chicago, for appellees." }, "file_name": "0522-01", "first_page_order": 542, "last_page_order": 553 }