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Tri-G, Inc. v. Burke

October 19, 2004

TRI-G, INC., PLAINTIFF-APPELLEE AND CROSS-APPELLANT,
v.
BURKE, BOSSELMAN AND WEAVER, DEFENDANT-APPELLANT AND CROSS-APPELLEE.



Appeal from the Circuit Court of McHenry County. No. 95-LA-369. Honorable Wallace B. Dunn, Judge, Presiding.

The opinion of the court was delivered by: Presiding Justice O'malley

PUBLISHED

PRESIDING JUSTICE O'MALLEY delivered the opinion of the court as to Parts I, II, III, and IV, in which JUSTICE BOWMAN and JUSTICE GILLERAN JOHNSON concur. JUSTICE BOWMAN delivered the opinion of the court as to Part V, in which PRESIDING JUSTICE O'MALLEY concurs. JUSTICE GILLERAN JOHNSON dissents from Part V.

I. BACKGROUND

In 1987, plaintiff, Tri-G, Inc. (Tri-G), retained defendant, Burke, Bosselman & Weaver (BBW), to prosecute a complaint against Elgin Federal Bank (Elgin Federal) that Tri-G had filed in 1981. On the day of trial on the 1981 complaint, the BBW attorney who was handling Tri-G's case claimed that he was not prepared to proceed. Accordingly, the trial court dismissed Tri-G's case with prejudice. In 1989, Tri-G filed a legal malpractice action against BBW and received a jury verdict in the amount of $2,337,550. The trial court denied BBW's posttrial motion, and this appeal ensued. Tri-G has also filed a cross-appeal. We affirm in part, reverse in part, and remand for further proceedings.

The trial of this matter consisted of a "trial within a trial," in which the parties presented evidence pertaining to both the underlying lawsuit between Tri-G and Elgin Federal and the malpractice suit between Tri-G and BBW. Much of the evidence at trial pertained to whether BBW's negligence caused the dismissal of Tri-G's suit against Elgin Federal, but BBW concedes for purposes of this appeal that its negligence caused the dismissal. The remaining issue is whether Tri-G would have prevailed in the underlying lawsuit but for BBW's negligence.

In 1981, Tri-G filed a 10-count lawsuit against Elgin Federal, asserting breach of contract, common-law fraud, and violations of the Consumer Fraud and Deceptive Business Practices Act (Consumer Fraud Act) (Ill. Rev. Stat. 1981, ch. 121 1/2, par. 261 et seq. (now 815 ILCS 505/1 et seq. (West 2002))).

Tri-G alleged that, in 1976, it was the general contractor for a residential real estate development in McHenry County known as the Huntington Point subdivision. First National Bank of Woodstock (First National) owned Huntington Point as the trustee of a land trust with Tri-G as beneficiary. Tri-G alleged that, in 1978, Elgin Federal made construction loans to Tri-G to build residential homes on lots 7, 16, 17, 24, 25, 26, 28, 30, 31, 32, 35, 36, and 37 of Huntington Point. Tri-G further alleged that it entered into a contract with Chain of Lakes Group (CLG) on August 10, 1978, in which CLG agreed to complete construction on lots 7, 24, 25, 30, 32, 35, 36, and 37.

Tri-G alleged that Elgin Federal breached its construction loan agreements with Tri-G by making payouts to CLG from the construction loans without the written authorization of Tri-G, and by allowing CLG to submit new contractor's affidavits that Elgin Federal used as a basis for additional payouts in excess of the amounts stated in the original contractor's affidavits submitted by Tri-G. Tri-G also alleged that Elgin Federal breached the land loan agreement by withholding payouts owed to Tri-G after it entered into the contract for CLG to complete construction on lots 7, 24, 25, 30, 32, 35, 36, and 37.

Tri-G alleged that Elgin Federal committed common-law fraud by: (1) making unauthorized payouts on the construction loans for lots 16, 17, 26, 28, and 31; (2) withholding money from Tri-G at the time of closing on lots 16, 26, 28, 30, and 37; (3) withholding from Tri-G the fact that Elgin Federal had made unauthorized disbursements to CLG; (4) allowing CLG to substitute new contractor's affidavits for the original contractor's affidavits with respect to the construction loans on lots 7, 16, 17, 24, 25, 26, 28, 30, 31, 32, 35, 36, and 37; and (5) misleading Tri-G into believing that an accounting would be done once all of the lots had been closed upon, at which time Tri-G would receive monies withheld by Elgin Federal. Tri-G's allegations under the Consumer Fraud Act essentially mirrored those of the common-law fraud count.

In setting forth its damages, Tri-G itemized the damages incurred with respect to the construction loans on lots 7, 17, 24, 25, 26, 28, 30, 31, 36, and 37. Tri-G further alleged that it was damaged by unauthorized payouts from a land loan it secured from Elgin Federal in the amount of $30,000.

Trial on Tri-G's complaint was postponed for several years, during which time Tri-G was represented successively by several law firms. Finally, the trial court set May 11, 1987, as a date certain for trial. Tri-G retained BBW in January 1987. On May 11, 1987, the BBW partner assigned to Tri-G's case answered "not ready" when the case was called for trial. The trial court dismissed Tri-G's case with prejudice.

Tri-G filed a legal malpractice suit against BBW in 1989 and voluntarily dismissed it in 1994. Tri-G refiled the malpractice suit in 1995. In its original complaint, Tri-G alleged that BBW was negligent for (1) failing to file an appearance until May 4, 1987; (2) failing to advise Tri-G's witnesses and discuss their testimony in advance of depositions; (3) failing to attend certain depositions; (4) failing to properly prepare the case for trial; and (5) failing to seek a voluntary non-suit on the date of trial. One month before trial, Tri-G was allowed to amend its complaint to add a claim that BBW was negligent for failing to amend the original complaint against Elgin Federal. During the malpractice trial, Tri-G was allowed to introduce evidence of fraud and breach of contract relative to incidents not specified in the 1981 complaint, on the theory that these claims would have been brought had BBW properly amended the complaint.

The relevant trial testimony was as follows. Irene Geschke testified that, in June 1976, she and her husband Clarence (who died prior to trial) purchased a 16.5-acre tract of land with the intent of developing it as the Huntington Point subdivision. At the time, Irene was working as a real estate broker. Irene and Clarence obtained a land loan from First National to purchase the property and placed it in a land trust with First National as trustee and Irene and Clarence as beneficiaries. Irene and Clarence formed Tri-G as general contractor for the development of the property. Tri-G divided Huntington Point into 46 lots, 45 of which were for single-family homes. The remaining lot was for a duplex. Clarence was the sole shareholder of Tri-G and Irene was principally responsible for the operations of Tri-G.

Irene testified that, in 1977, she approached Dennis Neubert of Elgin Federal regarding financing for Tri-G. Subsequently, Tri-G obtained a land loan from Elgin Federal to pay off the loan from First National. The land loan was secured by 38 unsold Huntington Point lots. Irene also spoke with Neubert about the possibility of obtaining financing for the construction of homes on Huntington Point. Neubert told Irene that Elgin Federal would finance the construction but would not extend funds for more than four "spec" homes at any one time. Tri-G introduced into evidence a one-page document from Elgin Federal entitled "Construction Loan Procedure," which dealt with such matters as Elgin Federal's inspections of construction sites and its payouts of loan proceeds to subcontractors and suppliers of materials. Tri-G also introduced into evidence several loan commitment letters from Elgin Federal that set forth specific terms for each construction loan, such as the loan amount and the rate of interest. Irene testified that the documents, which purported to memorialize the loan agreements, actually included only some of the loan terms, the remainder having been agreed upon orally by Irene and Neubert. Irene testified to the following oral terms: (1) payouts from loans would be made only upon Tri-G's written request; (2) each loan was separate such that funds advanced on one loan could not be used for construction on a lot that was subject to a different loan; (3) although interest on a particular loan would begin accruing once funds were disbursed, principal and interest payments on that loan would not be due until all the funds on that loan had been paid out; and (4) the purchaser of a completed home would be given a loan with the same interest rate and terms (9% interest and no points) as the construction loan Tri-G had obtained for that house. Finally, Irene and Neubert agreed that if a subcontractor or seller of materials required more funds than were originally stated in Tri-G's affidavit itemizing the costs for constructing the home, Tri-G was required to submit an amended affidavit before the additional funds would be disbursed. Irene testified that the loan agreements contained no provision for when payouts could be terminated by Elgin Federal.

Irene testified that, although she and Neubert agreed that interest payments on any particular loan would not be due until the proceeds had been entirely paid out, Elgin Federal initially billed her for interest, and she paid the bills. However, Irene stopped paying interest in March 1978. Irene testified that Tri-G's dealings with Elgin Federal initially went smoothly. When Tri-G needed a payout from one of its loans, Elgin Federal would issue the payout within three days after Tri-G had submitted a payout authorization. Tri-G built and sold homes on eight of the Huntington Point lots. In each case, in accord with the construction loan agreements, the buyer of the home received a loan from Elgin Federal with the same interest rate and terms as Tri-G's construction loan. Irene testified that Neubert left Elgin Federal in late 1977 and Edward Swartz assumed responsibility for the Huntington Point loans. Irene testified that Tri-G began having difficulties with Elgin Federal about the time that Swartz took over. For instance, Elgin Federal's response to payout requests slowed down in early 1978. Irene testified that the slowdown caused one of Tri-G's suppliers, Hines Lumber, to file a lien in February 1978. Irene testified that she complained to Swartz about the slowdown in payouts, and Swartz responded that the delay was due to his having just taken over the construction loans from Neubert.

Irene testified that on April 17, 1978, Swartz sent Tri-G several letters demanding regular monthly payments of principal and interest under three of the construction loans, even though the proceeds had not been paid out entirely on any of these loans. Irene testified that, without warning from Elgin Federal and without her independent knowledge, payouts stopped altogether on May 26, 1978, during Tri-G's construction of homes on lots 7, 16, 17, 22, 24, 26, 28, 30, 31, 32, 35, 36, 37, and 38. The total amount of the loans on these 14 projects was $795,797. As of May 1978, $548,626 in loan proceeds had been paid out and $247,171 remained unpaid. Irene testified that, contrary to Elgin Federal's position, no interest was due on any of the open loans in May 1978 because the proceeds had not been paid out entirely on any of the loans.

Irene testified that she received another letter from Swartz on June 16, 1978. In this letter, Swartz stated that there was a total of $21,688 in delinquent interest on the open construction loans and the land loan. Swartz demanded that the delinquent interest be paid within 45 days. Swartz also stated that Tri-G would have to complete construction of four of the homes on which Tri-G had open loans before Elgin Federal would open any further loans. Swartz demanded that Tri-G begin advertising its unsold spec homes at "realistic prices." Swartz also stated that purchasers of Huntington Point houses would receive mortgages at 9.25% and one point. Swartz threatened that if Tri-G did not comply with the terms of the letter, Elgin Federal would take legal action effective August 1, 1978.

Irene testified that at no time before the June 16, 1978, letter did Elgin Federal suggest that Tri-G's homes were overpriced. She also testified that the letter gave no indication that Elgin Federal had decided to terminate payouts, though in fact payouts had ceased several weeks before, unbeknownst to her. Irene noted that, although Elgin Federal required Tri-G to complete four homes before it could obtain any more loans, Elgin Federal continued to refuse to make payouts, which were necessary for construction. Irene testified that, had Elgin Federal continued the payouts and allowed construction to finish, Tri-G could have paid the allegedly delinquent interest with proceeds from sales of the homes. Irene also noted that the terms of the mortgages offered to potential buyers in the June 16, 1978, letter were less favorable than the terms that she and Neubert had agreed upon.

Irene testified that, on June 20, 1978, Elgin Federal sent her bills for interest relative to the loans on lots 16, 26, 30, 31, 35, 36, and 37. Irene testified that she did not believe that she was obligated to pay any interest because the entire proceeds had not been paid out on any of the loans.

Irene testified that Swartz sent Tri-G another letter on July 3, 1978, demanding payment of delinquent interest. Swartz stated that "[p]rior to refinancing any of the existing construction loans to secure additional funds for construction, the delinquency covering April, May and June must be brought current." Swartz required Tri-G to cure the delinquency on the land loan interest before Elgin Federal would release its interest in any lots that Tri-G might wish to sell to a third party. Swartz also stated that the terms of the mortgages offered to potential buyers in the letter of June 16, 1978, would be valid only until October 1, 1978, after which current market rates and fees would apply. Swartz further wrote:

"Also be advised that if no action is taken to complete the homes now financed by our association and an advertising program instituted to sell the homes at a realistic price and a letter of intent received by our office on or before July 11th, we will have no alternative other than to start legal action. We wish to cooperate with you but no action has been taken for the past six months, therefore, our board feels that it is important to complete this project at an early date or we will ask for a deed in lieu of foreclosure or foreclosure proceedings will commence."

Irene testified that Swartz was incorrect in stating that Tri-G had not worked on the Huntington Point homes for the past six months.

Irene testified that she subsequently received a telephone call from Swartz advising her that Elgin Federal had found a buyer, CLG, for the 23 lots in Huntington Point that were still vacant. CLG proposed to pay $15,000 for each of the vacant lots. Based on her experience in the real estate market, Irene testified that the fair market value of the lots at that time was $25,000 each. Irene testified that she had found another party who wanted to buy the lots at a higher price, but Elgin Federal refused to release its mortgages on the lots unless the delinquencies in interest were paid. Irene testified that Elgin Federal subsequently presented her and Clarence with a contract for the sale to CLG of the 23 vacant lots at the price of $15,000 per lot. The contract also provided that $9,300 of the purchase price for each lot would be paid to Elgin Federal for the release of the lot under the land loan agreement. The contract provided not only that CLG would buy the 23 vacant lots but also that CLG would act as general contractor on 8 of the 14 lots where construction was partially completed. Specifically, CLG would finish construction on lots 7, 24, 25, 30, 32, 35, 36, and 37, and Tri-G would finish construction on the remaining lots. Tri-G would remain responsible for the loans on all 14 lots. The contract required CLG to place $2,500 in escrow for each of the eight lots on which CLG agreed to complete construction (totaling $20,000). Irene testified that the escrow was created to compensate for any shortfall should CLG fail to complete construction of the homes within 90 days of the signing of the contract. The contract also required Tri-G to pay Elgin Federal $51,300 to cover any deficiency in the open construction loans. The contract further provided:

"2. Pay out under the construction loans currently in effect on the partially completed real estate which will be completed by CHAIN OF LAKES GROUPS, INC. will be handled exclusively by CHAIN OF LAKES GROUPS, INC. CLARENCE O. GESCHKE, IRENE M. GESCHKE and THE FIRST NATIONAL BANK OF WOODSTOCK, as Trustee, will execute whatever documents are necessary to allow CHAIN OF LAKES GROUP, INC. to handle all construction pay outs."

Irene testified that her attorney, Michael Poper, suggested changes to the contract, but Elgin Federal rejected them and essentially gave Tri-G the choice of signing the contract or facing foreclosure on the open loans. Irene and Clarence agreed to the terms. The contract was executed on August 17, 1978. The parties to the contract were First National, as trustee of the land trust; Irene and Clarence, as sole owners of the entire beneficial interest in the land trust; and CLG.

Irene testified that, after the contract with CLG was signed, Elgin Federal refused to make payouts on the six lots on which Tri-G was to complete construction. Irene also discovered that Elgin Federal was permitting CLG to use payouts for purposes other than construction on the eight lots on which CLG was general contractor. Irene considered this practice to be a violation of the oral construction loan agreements, which did not allow payouts from a particular loan to be applied to a purpose other than construction on the lot for which that particular loan was obtained. Irene testified that she reviewed Elgin Federal's ledger and determined the amounts of funds that CLG used improperly. The amounts were as follows: lot 24, $3,925; lot 25, $9,949; lot 30, $17,917; lot 32, $12,774; lot 36, $12,685; lot 37, $17,537. The total was $75,787. Irene testified that she complained to Swartz about Elgin Federal's refusal to make payouts on the lots on which Tri-G was to complete construction and about the inappropriate payouts to CLG. Swartz told her that the contract between CLG and the Geschkes made CLG the agent of First National and deprived Tri-G of any control over the Huntington Point development.

Irene also testified that Elgin Federal made payouts from the land loan without Tri-G's authorization, contrary to the terms of the land loan. Tri-G admitted into evidence portions of Elgin Federal's ledger reflecting payouts to subcontractors during the years 1977 through 1979. Irene identified $21,725 in payouts that she did not authorize.

Irene also testified that, without Tri-G's approval, CLG submitted its own contractor's affidavits on the eight lots on which it had agreed to finish construction. Irene considered this a violation of the terms of the construction loan agreements on those lots. Irene testified that the costs specified in CLG's affidavits exceeded the costs specified in Tri-G's original affidavits, thus reducing Tri-G's equity in the eight homes.

Irene testified that Elgin Federal eventually foreclosed on the 14 open construction loans. Irene testified that, although CLG did not fulfill its contractual promise to complete construction on the eight lots, Elgin Federal returned the $20,000 in escrow funds to CLG without Irene's knowledge or approval.

Irene testified that she never would have entered into loan agreements with Elgin Federal had she known it did not intend to honor its oral agreements. She also testified that she would not have entered into the contract with CLG had Elgin Federal not threatened foreclosure and disallowed her from selling the lots to any party other than CLG.

Michael Poper testified that he was the Geschkes' attorney during their dealings with Elgin Federal. Poper testified that, without notice, Elgin Federal stopped making payouts on May 26, 1978. Poper noted that, even in June 1978, Elgin Federal still had not formally announced that it had stopped payouts. When Irene complained about the cessation of payouts, Elgin Federal told her that it would make no more payouts until interest was brought current. Poper testified that, in his opinion, Elgin Federal's demand for interest was premature under the construction loan agreements. Poper testified that, if Elgin Federal had continued making payouts, enabling Tri-G to finish constructing the homes, Tri-G could have used the proceeds from the sales of the homes to pay whatever interest was then due. However, by withholding payouts and thus halting construction, Elgin Federal effectively precluded payment of the interest it demanded. Over BBW's objection, Poper also testified that he had represented other developers whom Elgin Federal had placed in the same kind of predicament.

John Brittain testified that he was a member of Elgin Federal's board of directors when Elgin Federal extended the land and construction loans to Tri-G in 1977. At that time, Elgin Federal's standard policy was to require monthly interest payments on construction loans. Elgin Federal threatened foreclosure in June 1978 because Tri-G had fallen behind in interest payments. Brittain acknowledged that Irene had complained to him that Elgin Federal had paid proceeds from certain of Tri-G's construction loans toward deficiencies on other construction loans. Brittain testified that Elgin Federal commingled funds in this fashion to avoid placing Tri-G in default. Brittain admitted, however, that such commingling was contrary to Elgin Federal's policies.

Tri-G rested its case, and BBW called Brent Sherman, who testified that he was the founder and sole shareholder of CLG. Sherman testified to the events surrounding CLG's contract with the Geschkes whereby CLG agreed to purchase 23 vacant lots and to finish construction on several of the remaining lots. Sherman testified that the contract gave him full authority to request payouts from Elgin Federal on the homes he was completing, yet he nonetheless obtained Irene's approval for all payouts he requested. Sherman also testified that, because he did not complete construction of the homes within the agreed time, he disbursed to Tri-G $10,000 of the $20,000 CLG had placed in escrow to guarantee completion of the homes. Sherman admitted, however, that he had no documentation reflecting that payment. Sherman denied that he ever conspired with Elgin Federal to deprive Tri-G of control over the Huntington Point development.

Sherman also testified that he had anticipated receiving a profit of $20,000 on each of the 23 lots once construction was complete.

Edward Swartz testified that he assumed responsibility for Tri-G's loans after Dennis Neubert left Elgin Federal in late 1977. Swartz testified that, under Elgin Federal's policies, borrowers were responsible for monthly interest payments on their construction loans once funds were disbursed. Swartz testified that Tri-G initially paid interest on the construction loans without protest but stopped paying in early 1978, giving rise to Elgin Federal's delinquency notices and threats of foreclosure. Swartz testified that, contrary to Irene's interpretation, the contract between CLG and Tri-G made CLG responsible for interest and principal on the loans relating to the construction it had agreed to finish. Swartz denied that funds from Tri-G's loans were ever commingled with funds from the loans CLG took over.

On cross-examination, Swartz conceded that the written construction loan agreements between Elgin Federal and Tri-G did not specify when interest was to be paid. Swartz admitted that Elgin Federal's procedures were "informal" and that not all policies were in writing. Swartz acknowledged that the total amount of delinquent interest reflected in his June 16, 1978, letter included interest for June 1978, which in fact was not due until after the date of the letter. Swartz testified that the characterization of the June interest as delinquent was an innocent error. Swartz categorically denied that Elgin Federal had ever stopped payouts on any of Tri-G's loans. Shown documents from Elgin Federal reflecting that the bank had made virtually no payouts between May 26 and September 19, 1978, Swartz speculated that no payouts were made because Tri-G had not requested them.

Swartz further admitted on cross-examination that, after the contract between CLG and Tri-G was signed, Irene told him several times that she did not want CLG authorizing payouts on the homes CLG agreed to finish and that she was revoking CLG's authority under the contract to make such authorizations. In response, Swartz told Irene that she would have to cancel the contract in writing if she wanted to stop CLG from authorizing payouts.

Swartz also admitted on cross-examination that he could point to no document memorializing CLG's assumption of responsibility for interest and principal on the loans relating to the construction projects CLG agreed to complete. Swartz acknowledged that the fact that foreclosure proceedings were brought against Tri-G when these projects failed indicated that Tri-G remained responsible for the loans despite the contract with CLG. Swartz also admitted that Elgin Federal commingled funds on Tri-G's loans and that Irene protested the practice on numerous occasions.

In its closing argument, Tri-G sought damages in the following amounts: (1) $75,787 for breach of the construction loan agreements; (2) $21,675 for breach of the land loan agreement; (3) $10,000 for breach of the escrow agreement; (4) $361,000 for fraud that resulted in loss of profits on the 23 vacant lots; and (5) $280,000 for fraud that resulted in loss of profits on the 14 partially completed lots. The jury returned a verdict finding that BBW was negligent in handling the lawsuit against Elgin Federal and that, but for BBW's negligence, Tri-G would have recovered a verdict against Elgin Federal for $1,168,775 in compensatory damages and $1,168,775 in punitive damages. The trial court denied BBW's posttrial motion, and this appeal followed.

II. LIABILITY ISSUES IN BBW'S APPEAL

A. The Scope of the Malpractice Claim

BBW raises numerous issues on appeal pertaining to both liability and damages. Addressing liability first, we note that, in order to prevail in an action for legal malpractice, the plaintiff must plead and prove the following elements: (1) an attorney-client relationship that 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" the attorney's malpractice, the plaintiff would have prevailed in the underlying action; and (4) actual damages. Mitchell v. Schain, Fursel, & Burney, Ltd., 332 Ill. App. 3d 618, 620 (2002).

BBW's first argument pertains to the scope of the underlying action for purposes of its liability for legal malpractice. BBW argues that the trial court improperly enlarged the scope of the underlying action by allowing Tri-G to present allegations of misconduct by Elgin Federal that were not contained in the 1981 complaint. Tri-G's 1981 complaint alleged breach of contract and fraud in connection with 13 of the 14 lots that were partially completed when Tri-G contracted with CLG. Tri-G sought damages in the amount of improper payouts to CLG. However, at trial, Tri-G was permitted to present evidence of misconduct by Elgin Federal relating to all 14 partially completed lots as well as the 23 vacant lots sold to CLG. Tri-G was permitted to seek damages in the amount of improper payouts and lost profits on the sale of the 23 vacant lots and the 14 partially completed lots. Tri-G argues that the expanded allegations were properly presented at trial on the theory that BBW failed to amend the 1981 complaint to include the additional allegations. BBW argues that the trial court erred in allowing Tri-G to amend its malpractice complaint to include the allegation that BBW failed to amend the 1981 complaint.

In January 2002, the trial court allowed Tri-G to amend its malpractice complaint to include an allegation that BBW was negligent for failing to review and amend Tri-G's 1981 complaint against Elgin Federal. In February 2002, Tri-G was allowed to file another amendment alleging that BBW was negligent for "failing to review and amend the original complaint, as necessary, to conform the Complaint to Plaintiff's expected proofs at trial."

Pursuant to section 2--616(c) of the Code of Civil Procedure (735 ILCS 5/2--616(c) (West 2002)), an amendment may be allowed at any time before final judgment, on just and reasonable terms. The trial court should exercise its discretion liberally in favor of allowing amendments if doing so will further the ends of justice, and it should resolve any doubts in favor of allowing amendments. Cantrell v. Wendling, 249 Ill. App. 3d 1093, 1095-96 (1993). The four factors applicable to motions to amend are: (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) ...


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