Gomberg Sharfman P.C. v. Kuznar

2023 IL App (1st) 221165-U

• Court: Appellate Court of Illinois
• Decided: November 16, 2023
• Docket: 1-22-1165
• Status: Unpublished

Opinion

No. 1-22-1165 2023 IL App (1st) 221165-U Fourth Division Filed November 16, 2023

NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).

IN THE APPELLATE COURT OF ILLINOIS FIRST DISTRICT

GOMBERG SHARFMAN P.C., Appeal from the Plaintiff and Counterdefendant-Appellee, Circuit Court of Cook County

v. No. 19 L 2297

THOMAS KUZNAR, The Honorable Jerry A. Esrig, Defendant and Counterplaintiff-Appellant. Judge, presiding.

JUSTICE OCASIO III delivered the judgment of the court. Presiding Justice Rochford and Justice Hoffman concurred in the judgment.

ORDER

¶1 Held: (1) The record was not adequate to review the trial court’s alleged error in granting Gomberg Sharfman P.C. leave to file a belated reply to affirmative defenses and answer to counterclaims. (2) There was no genuine issue of material fact as to the existence of a conflict of interest that would impair Gomberg Sharfman’s representation of defendant Thomas Kuznar. (3) Gomberg Sharfman failed to carry its initial burden of production when it moved for summary judgment on counterclaim related to Westlaw costs. (4) The trial court’s calculation of damages was against the manifest weight of the evidence to the extent its finding as to fees billed by Gomberg Sharfman exceeded the amounts stated in the firm’s invoices.

¶2 Plaintiff-counterdefendant Gomberg Sharfman P.C. (Gomberg Sharfman) sued defendant-

counterplaintiff Thomas Kuznar over unpaid legal fees. 1 Mr. Kuznar, acting pro se, responded by

1 According to the Secretary of State’s Office, Gomberg Sharfman P.C. was voluntarily dissolved on September 6, 2022. Under the Business Corporation Act of 1983, that dissolution does not abate or suspend this appeal, which Gomberg Sharfman may continue to defend under its corporate name. See 805 ILCS 5/12.30(c)(5), 12.80 (West 2022). Gomberg Sharfman P.C. v. Kuznar 2023 IL App (1st) 221165-U No. 1-22-1165

raising a variety of affirmative defenses and counterclaims, including claims that Gomberg

Sharfman represented him despite having an undisclosed conflict of interest and that it breached

its fiduciary duty by engaging in fraudulent billing practices. Gomberg Sharfman moved for

summary judgment on its breach-of-contract claims and on Mr. Kuznar’s affirmative defenses and

counterclaims. The trial court denied the motion as to Gomberg Sharfman’s complaint, but it

entered summary judgment against Mr. Kuznar on his affirmative defenses and counterclaims.

After a bench trial, it entered judgment in favor of Gomberg Sharfman on its breach-of-contract

claims for unpaid legal fees in the amount of $28,026.60.

¶3 On appeal, Mr. Kuznar argues that the trial court erred by granting Gomberg Sharfman

leave to file a belated reply to his affirmative defenses and answer to his counterclaims, granting

summary judgment against him on his conflict-of-interest and fraudulent-billing counterclaims,

and in calculating the unpaid attorney fees he owed to Gomberg Sharfman. We find no error in

granting Gomberg Sharfman leave to file its belated reply and answer, and we find that the trial

court properly entered summary judgment against Mr. Kuznar on the conflict-of-interest

counterclaim. We agree, however, that summary judgment should not have been entered on Mr.

Kuznar’s fraudulent-billing counterclaim and that the trial court’s damages calculation was not

supported by the evidence. Accordingly, we modify the damages award, and we reverse the entry

of summary judgment on the fraudulent-billing counterclaim and remand for further proceedings on that claim. We otherwise affirm the judgment of the trial court.

¶4 BACKGROUND

¶5 In 2015, after nearly two decades of litigation, Mr. Kuznar, as the representative of his

mother Emilia’s estate, obtained a judgment against Anna Kuznar, whom his father (and Emilia’s

husband) Mitchell had purportedly married in the United States after emigrating from Poland, for

the proceeds of a pension fund that Anna had collected after Mitchell’s death. He retained Lavelle

Law (Lavelle) to collect the judgment, but Lavelle withdrew in early 2016 and then filed suit

against Mr. Kuznar for unpaid fees.

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¶6 In September 2016, while Lavelle’s suit against him was still pending, Mr. Kuznar retained

Gomberg Sharfman to enforce his judgment against Anna by levying on real estate she owned in

Mount Prospect (the levy matter). 2 In May 2017, the firm also began representing him in a

foreclosure action involving the same property (the foreclosure matter). Per the terms of the

retainer agreement signed by the parties, Mr. Kuznar agreed to pay fees at the hourly rate billed by

the firm’s attorneys. He also agreed to reimburse the firm for out-of-pocket costs, referred to in the

agreement as disbursements, including the firm’s “actual third-party costs” for computerized legal-

research services. Both matters were handled almost entirely by Raymond Ostler, who was of

counsel to the firm, and Jennifer Hughes, an associate.

¶7 Over the next two years, Gomberg Sharfman sent Mr. Kuznar monthly invoices detailing

the work its attorneys had done and the reimbursable costs it had incurred, including charges for

the costs of performing legal research on Westlaw. At some point, though, Mr. Kuznar fell behind

on paying his monthly invoices. The parties initially worked out a payment plan, but Mr. Kuznar

stopped making payments altogether in January 2018. After the levy matter concluded in May

2018 with the approval of the levy sale, the parties were unable to come to a mutually acceptable

arrangement for Mr. Kuznar to make payments going forward. In August 2018, Gomberg

Sharfman withdrew from representing Mr. Kuznar in the ongoing foreclosure case and demanded

that he pay all outstanding fees and costs it had charged him in both matters.

¶8 When payment was not forthcoming, in March 2019, Gomberg Sharfman filed a four-count

complaint against Mr. Kuznar over the unpaid bills. The complaint alleged that, in the levy matter,

the firm had billed Mr. Kuznar for $15,417.35 in fees and disbursements and that he had made

payments totaling $4827.20, making it entitled to judgment for unpaid balance of $10,590.15. The

complaint further alleged that, in the foreclosure matter, the firm had billed Mr. Kuznar for

2 At the time Mr. Kuznar retained Gomberg Sharfman, it was known as Gomberg, Sharfman, Gold & Ostler, P.C., but the firm had already adopted the name Gomberg Sharfman P.C. by the time it sent its first invoice to Mr. Kuznar in December 2016.

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$33,620.96 in fees and disbursements, that he had made payments totaling $3910.75, and that the

firm had “credited” him $3397.55 for Westlaw charges, making it entitled to judgment for the

unpaid balance of $26,312.66. 3 Counts I and II sought damages for breach of contract in

connection with the levy matter and the foreclosure matter, respectively. Counts III and IV, which

were pleaded in the alternative, sought relief under theories of quantum meruit and account stated,

respectively. The complaint was verified “upon information and belief” by a Gomberg Sharfman

partner, Kimberly A. Padjen.

¶9 Mr. Kuznar filed his answer on November 18, 2019. He denied the complaint’s allegations

that he had been sent invoices totaling $15,417.35 in the levy matter and $33,620.96 in the

foreclosure matter. He admitted that he made an initial payment of $2500 in the levy matter.

Otherwise, he denied making payments totaling $4827.20 (including the initial payment) in the

levy matter and $3910.75 in the foreclosure matter. He denied that Gomberg Sharfman had credited

him $3397.55 for Westlaw costs. And he denied that Gomberg Sharfman was entitled to judgment

against him in the amounts stated in the complaint.

¶ 10 The answer raised the following seven affirmative defenses: (1) the fees and expenses

claimed by Gomberg Sharfman were unreasonable under the circumstances; (2) a claim for

account stated does not apply to legal fees; (3) Gomberg Sharfman violated the Consumer Fraud

and Deceptive Business Practices Act (815 ILCS 505/1 et seq. (West 2016)) by using unfair and

deceptive practices, including concealing and denying a conflict of interest, violating written

agreements, violating oral agreements, preparing or filing wasteful and counterproductive

pleadings, refusing to provide filings and documents, and engaging in courtroom misconduct;

(4) Gomberg Sharfman had unclean hands by virtue of presenting fraudulent and exaggerated bills;

(5) Gomberg Sharfman’s claims were barred by equitable estoppel and promissory estoppel in that

3 In an apparent typographical error, the prayer for relief for the breach-of-contract claim related to the foreclosure matter stated that it was seeking judgment “in the amount of $31,676.12 plus interest and costs.”

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the “facts as set forth by [Gomberg Sharfman] were misrepresented and concealed,” its billing

practices showed that it acted with fraudulent intent, and there was “evident” injury to Mr. Kuznar;

(6) the fees charged by Gomberg Sharfman grossly exceeded the estimate that had been provided

and were therefore not recoverable; and (7) Gomberg Sharfman failed to timely file briefs, leading

to adverse results.

¶ 11 Mr. Kuznar’s answer also raised two counterclaims, which he designated as “cause[s] of

action” for “conflict of interest” and “breach of fiduciary duties and unfair business practices.”

¶ 12 In the conflict-of-interest claim, Mr. Kuznar alleged that Gomberg Sharfman “owed a duty

of care *** to represent him *** in accordance with relevant legal standards of care within the

practice of law.” He alleged that Gomberg Sharfman breached those duties by failing to disclose

and then affirmatively denying that it had a conflict of interest arising from its close professional

relationship with Lavelle, which was suing Mr. Kuznar for unpaid fees at the time he retained

Gomberg Sharfman. He further alleged that the conflict ultimately led to Gomberg Sharfman

“ambush[ing]” him with financial demands, concealing and then withholding evidence obtained

in discovery, and ultimately making “a hasty withdrawal” from the foreclosure matter. He sought

$11,237.95 in damages in connection with this claim: $8737.95 for payments he had made to

Gomberg Sharfman and $2500 for the retainer he paid to another firm to take over the foreclosure

case. ¶ 13 The breach-of-fiduciary-duty claim alleged that Gomberg Sharfman had breached its

fiduciary duty to Mr. Kuznar in six distinct ways and, in doing so, had acted oppressively,

fraudulently, or maliciously. As relevant to this appeal, Mr. Kuznar alleged that Gomberg Sharfman

breached its fiduciary duty by fraudulently inflating its actual costs when it billed him $3397.55

for “Westlaw Research” costs incurred on November 1, 2017, for research performed during the

previous month. He did not allege that he had submitted payment for that charge and, unlike the

five other sets of allegations Mr. Kuznar pleaded under his breach-of-fiduciary-duty claim, he did

not seek compensatory damages in connection with the allegedly fraudulent Westlaw charges.

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Instead, he only asked for $6000 in punitive damages on the theory that Gomberg Sharfman had

intentionally violated the federal mail-fraud statute by sending the invoice containing the

fraudulent charge through the mail. See 18 U.S.C. § 1341 (West 2018). In addition, Mr. Kuznar

alleged that Gomberg Sharfman had also breached its fiduciary duty by: (1) overbilling him by

exaggerating its billing entries, spending too much time on various tasks, double-billing certain

work, and sending bills to him for the levy matter that were triple the original estimate it had

provided; (2) violating previous oral and written arrangements it had made with him for paying

his bills in set installments by demanding the immediate payment of all outstanding amounts;

(3) refusing to turn over materials that had been obtained in discovery after withdrawing in the

foreclosure matter; (4) failing to file a reply brief in connection with its motion to dismiss the

complaint in the foreclosure matter; and (5) engaging in unprofessional and verbally abusive

conduct inside and outside of the courtroom before, during, and after a hearing on a petition filed

by Mr. Kuznar to require Gomberg Sharfman to turn over the materials in its possession after it

withdrew in the foreclosure matter.

¶ 14 After Mr. Kuznar filed his answer, the trial court extended the time for Gomberg Sharfman

to file a response to his affirmative defenses and counterclaims to December 30, 2019. On that

date, Gomberg Sharfman filed a combined motion to dismiss Mr. Kuznar’s affirmative defenses

and his counterclaims. At the next court date, on January 15, 2020, the court struck the motion to dismiss but granted Gomberg Sharfman until January 29 to file another “responsive pleading” and

specified that “any motion must provide [the] pleading being attacked.” At the next court date,

which was on February 26, the court entered an order giving Gomberg Sharfman until March 11

to file what the order termed a “responsive pleading (motion for summary judgment).” The record

does not indicate that Mr. Kuznar objected to these extensions.

¶ 15 On March 11, 2020, Gomberg Sharfman filed a motion for summary judgment on its

breach-of-contract claims and on Mr. Kuznar’s affirmative defenses and counterclaims. As a

general matter, it asserted that its original complaint and an affidavit from Jennifer Hughes, the

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associate who was assigned to Mr. Kuznar’s matters, satisfied its initial burden of production as to

the breach-of-contract claims, the affirmative defenses, and the counterclaims.

¶ 16 With respect to its breach-of-contract claims, Gomberg Sharfman relied on Ms. Hughes’s

affidavit and the exhibits submitted in support of the original complaint, which were the retainer

agreement and the monthly invoices in the two matters. It argued that the retainer agreement

established that there was a valid, enforceable contract and that the invoices contained a “detailed

breakdown of the work performed,” which established the amounts Mr. Kuznar owed under the

retainer agreement. Although not specifically referenced in the motion, Ms. Hughes’s affidavit

averred that Mr. Kuznar stopped making payments, even under a plan negotiated with the firm, in

January 2018 and then indicated in a July 2018 email that he would not make payments to the firm

until he had paid a $15,000 homestead exemption on the property he had acquired (on behalf of

his mother’s estate) through the levy matter.

¶ 17 With respect to Mr. Kuznar’s affirmative defenses, Gomberg Sharfman did not identify any

evidence defeating the defenses. Instead, it argued that Mr. Kuznar had failed to adequately plead

any of his affirmative defenses by not alleging necessary elements or by alleging conclusions

instead of facts.

¶ 18 With respect to the conflict-of-interest counterclaim, Gomberg Sharfman acknowledged

that it was ethically prohibited from taking on a client if the representation “would be limited by the attorney’s responsibilities to another client or third party,” but it argued that no conflict existed

because its relationship with Lavelle did not adversely impact its representation of Mr. Kuznar. It

identified three exhibits attached to the motion in support of that argument. First, it relied on Ms.

Hughes’s affidavit, which averred that she was the primary attorney assigned to Mr. Kuznar’s

matters and that she had “never discussed” either matter with attorneys from Lavelle and that any

relationship between the two firms or their attorneys “had no impact on” Gomberg Sharfman’s

representation of Mr. Kuznar. Second, it relied on a February 13, 2018 order in the levy matter

approving the levy sale, awarding Mr. Kuznar possession of the property at issue, and ordering the

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sheriff to issue a deed to Mr. Kuznar upon payment of a homestead exemption. Although not

specifically cited in the motion for summary judgment, a May 15, 2018 order denying the opposing

party’s motion to reconsider was also attached. Third, it relied a motion filed by Mr. Kuznar in the

foreclosure case seeking to postpone a hearing on Gomberg Sharfman’s request to withdraw;

among other things, the motion indicated that Mr. Kuznar intended to file a response explaining

why allowing Gomberg Sharfman to withdraw “would seriously prejudice and injure his case.”

Again, although not specifically relied on in the motion, Gomberg Sharfman also attached what

appears to be a motion prepared by Mr. Kuznar asking for leave to file that anticipated response. 4

¶ 19 With respect to the fraudulent-billing component of Mr. Kuznar’s breach-of-fiduciary-duty

counterclaim, Gomberg Sharfman did not attach any exhibits. Instead, it simply argued that Mr.

Kuznar’s allegations failed to show that the November 2017 Westlaw charge was, in fact,

fraudulent:

“In support of his contention that Plaintiff fraudulently billed Defendant, Defendant alleges that ‘the issues which Gomberg worked at the time required very little research, if any’, and that ‘According to Thompson Reuter’s Westlaw website’, users can expect to pay $107 per month or $99 per search. Defendant’s opinion as to the amount of research to properly represent his interests is neither relevant nor does it constitute a fact to support a claim for fraud. Defendant is also not privy to the terms of Plaintiff’s contract with Westlaw. Defendant’s bare allegations fall far short of the heightened pleading standard required to allege a cause of action for fraud. Moreover, Plaintiff credited Defendant $3,397.55 in costs associated with Westlaw Research. See Plaintiff’s Complaint, page 4, ¶ 20. Plaintiff did not offer Defendant a credit for these charges because they were fraudulent but rather as part of Plaintiff’s efforts to resolve Defendant’s unpaid invoices. Plaintiff’s concession does not amount to common law fraud.”

4 We note that the docket in the foreclosure matter (Katherine Smolak v. Anna Kuznar et al., No. 2017 CH 06179 (Cook County Cir. Ct.)) does not reflect that Mr. Kuznar filed a response to Gomberg Sharfman’s motion to withdraw beyond his motion to postpone the withdrawal hearing. See Deephaven Mortgage LLC v. Jones, 2020 IL App (1st) 191468, ¶ 43 (“[W]e can take judicial notice of our circuit court dockets.”).

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¶ 20 Finally, with respect to the remaining allegations supporting the breach-of-fiduciary-duty

counterclaim, Gomberg Sharfman’s motion for summary judgment argued as follows. First,

relying on Ms. Hughes’s affidavit and court orders in the levy matter, the motion argued that the

matter had required significantly more work than an ordinary case and that Mr. Kuznar had run up

the bill further by placing unnecessary demands on his attorneys’ time. It also noted that the

“estimate” Mr. Kuznar had attached to his answer in support of this counterclaim was for costs

only, not attorney fees. Second, relying on Ms. Hughes’s affidavit, the motion argued that Mr.

Kuznar, not Gomberg Sharfman, had breached the parties’ contract by refusing to continue making

payments. Third, relying on the retainer agreement, the motion argued that the parties’ contract

permitted it to retain Mr. Kuznar’s case materials until he paid his bills in full. Fourth, it argued

that there was no evidence supporting Mr. Kuznar’s claim that his motion to dismiss in the

foreclosure matter would have been granted if Gomberg Sharfman had not failed to file a reply.

Fifth, relying on Ms. Hughes’s affidavit, it argued that Mr. Kuznar had behaved inappropriately at

the hearing on the motion to withdraw in the foreclosure matter, not Ms. Hughes.

¶ 21 After Gomberg Sharfman filed its motion for summary judgment, the case ground to a halt

for more than a year, first due to pandemic-related closures and then for an unsuccessful referral

to arbitration. With the summary-judgment motion still pending in the spring of 2021, the court set

a schedule for Mr. Kuznar to file his response and Gomberg Sharfman to file its reply. ¶ 22 Mr. Kuznar filed a timely response to the summary-judgment motion in June 2021.

Alongside that motion, he also filed a “motion to deem facts admitted” arguing that, because

Gomberg Sharfman had filed a motion for summary judgment but not a “reply” to his affirmative

defenses and counterclaims, it had admitted the allegations in those pleadings. In line with that

motion, Mr. Kuznar’s summary-judgment response argued that, in view of Gomberg Sharfman’s

admission of the facts underlying his affirmative defenses and counterclaims, summary judgment

should not be entered on the affirmative defenses and counterclaims.

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¶ 23 With respect to his conflict-of-interest counterclaim, Mr. Kuznar argued that Gomberg

Sharfman’s representation of him was in violation of Illinois Rules of Professional Conduct (2010)

Rule 1.9(b) (eff. Jan. 1, 2010). He contended, essentially, that there was a genuine issue of material

fact as to whether Gomberg Sharfman was aware of the conflict, arguing that the deposition

testimony of Raymond Ostler that he did not learn about Mr. Kuznar’s dispute with Lavelle until

after Gomberg Sharfman had stopped representing him was contradicted by a handwritten notes

taken by Ms. Hughes on the day of Mr. Kuznar’s first meeting with Gomberg Sharfman’s lawyers

on September 9, 2016. The notes, which were attached as an exhibit to the response, recorded that

there was a “[c]onflict w[ith] Lavelle,” Mr. Kuznar’s “previous attorneys,” who had made “one

mistake after another” before they had “parted ways” with Mr. Kuznar in April 2016. Although not

specifically referenced, Mr. Kuznar also attached his own affidavit to the response. Among other

things, his affidavit averred that he told Gomberg Sharfman attorneys during his first visit to the

firm that he was “in a lawsuit with Lavelle.”

¶ 24 The response also argued that Gomberg Sharfman was trying to stonewall Mr. Kuznar’s

efforts to ascertain the nature of its relationship with Lavelle. In support, Mr. Kuznar attached three

discovery responses he had received from Gomberg Sharfman. In the first, which was a response

to Mr. Kuznar’s request for admissions, Gomberg Sharfman denied the allegation that “[a]t the

time of hire [it] was asked about, and denied any current or ongoing professional relationship with Lavelle Law, Ltd.,” and it denied the allegation that, “[i]n January 2018 [Mr. Kuznar’s] Gomberg

attorney admitted to [Mr. Kuznar] that he was working on a case with Lavelle Law, Ltd.” The

second response, which included answers to a series of interrogatories seeking to obtain specific

information about Gomberg Sharfman’s relationship with Lavelle between 2016 and 2018,

declined to “[d]escribe the business relationships” that existed between the firms, “[i]dentify all

legal work common to” the firms, “[s]tate the date and subject matter of any and all

communications (oral or written) between or among” the firms, “[i]dentify or produce all

documents reflecting or relating to” those communications, “[p]rovide an accounting of all

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compensation, consideration, and/or value” exchanged “in connection with any transactions”

between the firms, and identify all personnel at both firms that had been involved in

communications between the two firms; Gomberg Sharfman objected to each of these requests on

the basis that they were “not reasonably calculated to lead to the discovery of relevant evidence.”

The third response, which was also an answer to interrogatories, declined on the same ground to

“[i]dentify and produce all documents and communications” between Gomberg Sharfman and any

“person employed by, or otherwise associated with,” Lavelle since the start of 2016.

¶ 25 In his summary-judgment response, Mr. Kuznar did not squarely address his counterclaim

that Gomberg Sharfman breached its fiduciary duty by billing him fraudulent Westlaw charges as

such, but it discussed the matter at length and referenced the counterclaim in the portion of the

response opposing the entry of summary judgment on Gomberg Sharfman’s breach-of-contract

claims. The response argued in detail that the amounts billed by Gomberg Sharfman for Westlaw

costs did not, in fact, represent the firm’s “actual third party costs,” as called for by the retainer

agreement. That argument was supported by several documents attached to the response as exhibits

showing that, rather than incurring costs on a transaction-by-transaction basis, Gomberg Sharfman

paid a flat monthly fee to Westlaw in exchange for unlimited access to the materials included in

their plan. Every month, Gomberg Sharfman would recoup that fixed subscription fee by charging

each of its clients a portion of the fee that corresponded to the share of the firm’s usage for the month that was attributable to that client, which it calculated based on what the “standard

charge[s]” would have been in the absence of its subscription plan. In some months, this practice

meant the amount billed to the firm’s clients exceeded those hypothetical standard charges. As

relevant to this appeal, the exhibits attached to the response show that the research performed in

connection with Mr. Kuznar’s foreclosure matter during October 2017 would have incurred only

$864 in standard charges, but that research accounted for 64% of the firm’s overall usage for the

month, which was unusually low. Consequently, when it sent an invoice that included a November

1, 2017 charge for “Westlaw Research” during the preceding month, the firm billed Mr. Kuznar

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not $941.76 (the standard charges plus a 9% tax) but $3397.55, which represented 64% of the

firm’s monthly subscription fee. Mr. Kuznar argued that these documents showed that the amounts

billed to Gomberg Sharfman’s clients as costs were “manufactured to meet the fixed monthly

Westlaw charge.”

¶ 26 The section of Mr. Kuznar’s response addressing the breach-of-contract counterclaims also

discussed two other components of his breach-of-fiduciary-duty counterclaim: his allegation that

Gomberg Sharfman overbilled him in the levy matter and his allegation that it failed to file a reply

brief in the foreclosure matter. In support of his overbilling claim, he attached not only the cost

estimates that attorney Raymond Ostler had provided for the levy matter but also a later fee

estimate. He also attached a portion of the transcript of Mr. Ostler’s deposition where he reaffirmed

that those estimates would have been “probably appropriate” for an uncontested case. In support

of the claim related to the unfiled reply brief, Mr. Kuznar attached a copy of the order denying the

motion to dismiss, which noted that he had “elected to not file a Reply.” He also argued that the

invoices attached to Gomberg Sharfman’s complaint, which showed that the firm had billed him

for a substantial amount of work on the unfiled reply, rebutted Mr. Ostler’s deposition testimony

opining that there was no need to file a reply.

¶ 27 The only other matter addressed in Mr. Kuznar’s response was an argument that Gomberg

Sharfman had prepared subpoenas to be served in Michigan in connection with the foreclosure matter but refused to send them. 5 In support, he attached admissions from Gomberg Sharfman that

5 It is not clear which issues in the case this argument pertained to. Although seemingly relevant to Mr. Kuznar’s counterclaim that Gomberg Sharfman breached its fiduciary duty by withholding materials obtained in discovery, the basis of the counterclaim was Gomberg Sharfman’s alleged refusal to turn over the documents it had received in discovery, not the materials it subsequently prepared in anticipation of conducting additional discovery. The argument that Gomberg Sharfman prepared, billed for, but never sent discovery requests would appear to be relevant to Mr. Kuznar first affirmative defense, which was the fees charged were unreasonable. This argument might also be relevant to his third affirmative defense, which alleged that Gomberg Sharfman breached the Illinois Consumer Fraud Act by, among other things, its “[r]efusal to provide filings and documents.”

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it prepared discovery materials and subpoenas in May 2018 but never “filed” them or took any

other action in the case after May 15, 2018. He also attached a June 5, 2018 email he sent to Mr.

Ostler about the subpoenas and the possibility of conducting depositions. He argued that, contrary

to Mr. Ostler’s deposition testimony, he did not raise any concerns about the cost of conducting

the discovery.

¶ 28 Gomberg Sharfman failed to file its summary-judgment reply by the deadline of July 9,

2021. Five days later, on July 14, it filed two motions. The first motion explained that an

“unexpected corporate matter” had required counsel’s “immediate attention” and asked for leave

to file the summary-judgment reply by July 16. The second motion, evidently made in response to

Mr. Kuznar’s motion to deem facts admitted, sought leave to file instanter a combined pleading

replying to Mr. Kuznar’s affirmative defenses and answering his counterclaims. In that latter

motion, Gomberg Sharfman took the position that, although the court had allowed its motion for

summary judgment to serve as its responsive pleading, a “formal” reply and answer was

appropriate “for the purposes of clarity in the record under the circumstances of this case with a

pro se defendant.” Gomberg Sharfman served the motion on Mr. Kuznar on July 14 alongside a

notice of motion indicating that it intended to present the motion to the trial court during Zoom

proceedings on July 16. On that date, the trial court granted both motions, allowing Gomberg

Sharfman to file a late summary-judgment reply and a combined reply and answer to Mr. Kuznar’s affirmative defenses and counterclaims. The record does not include a transcript of the July 16

hearing, nor does it indicate which of the parties were present. Mr. Kuznar does not appear to have

filed a written motion asking the court to reconsider its decision to grant Gomberg Sharfman leave

to file a late reply and answer.

¶ 29 The only exhibits attached to Gomberg Sharfman’s summary-judgment reply were a copy

of the response to affirmative defenses and answer to counterclaims that it had filed only hours

earlier and, despite being described as a “partial deposition transcript,” what appears to be a

complete transcript of Mr. Ostler’s deposition. As relevant to this appeal, the reply argued that

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(1) Mr. Kuznar’s contention that its failure to reply to his affirmative defenses and answer to his

counterclaims admitted those matters was mooted when it filed its reply and answer; (2) there was

no conflict of interest because Lavelle was never Gomberg Sharfman’s client; and (3) it was not

asking Mr. Kuznar to pay any Westlaw charges, which, in any event, were actual third-party costs

that he had agreed to pay.

¶ 30 A hearing was held on the motion for summary judgment on August 30, 2021. Again, the

record does not include a transcript. After that hearing, the trial court entered a written order

granting Gomberg Sharfman’s motion for summary judgment with respect to Mr. Kuznar’s

affirmative defenses and all of his counterclaims but denying summary judgment on Gomberg

Sharfman’s breach-of-contract claims. The court also ordered the parties to exchange letters

concerning Gomberg Sharfman’s claims for, and Mr. Kuznar’s payment of, any Westlaw charges:

“7. The Defendant shall provide evidence of payments made to Plaintiff for Westlaw charges or that the Plaintiff claims Westlaw charges by letter to the Plaintiff’s counsel on or before September 10, 2021.

8. Defendant [sic] may then submit contrary evidence to the Plaintiff [sic] fourteen days thereafter by September 24, 2021.”

If a dispute remained over Westlaw charges, the parties were ordered to submit letters to the court

on the issue before a hearing set for October 13. A later email sent by Mr. Kuznar seemingly indicates that Gomberg Sharfman sent him a “Westlaw letter” on September 29 that had some kind

of “statement” attached to it. The record does not reflect that any letters were filed with the court.

¶ 31 That hearing took place on October 13, 2021. Again, the record does not include a

transcript. After the hearing, the court entered an order stating that Gomberg Sharfman had given

it the following accounting of the amount of fees (excluding costs) it was claiming based on what

it had billed Mr. Kuznar and what he had already paid:

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Fees billed Amounts paid Balance owed Levy $13,980.25 $8,613.85 $5,366.40 Foreclosure $31,230.10 $3,910.15 $27,319.95 Totals $45,210.35 $12,524.60 6 $32,686.35

In accordance with this accounting, the court found that Mr. Kuznar was entitled to a credit of

$12,524.60 against the fees billed by Gomberg Sharfman. The court also ordered that Gomberg

Sharfman would be “barred from introducing evidence of and from claiming Westlaw costs and

expenses as part of its claim for amounts due.” The order did not specifically bar Gomberg

Sharfman from claiming disbursements that were not related to Westlaw, but the firm concedes in

its brief on appeal that it ultimately abandoned whatever right it had to recover costs under the

retainer agreement.

¶ 32 The case proceeded to a two-day bench trial in April 2022, where, according to the court,

the only remaining issue was the reasonableness of the attorney fees, a point which it reiterated at

times during trial. Because the issues on appeal do not relate to the reasonableness of the various

fees billed to Mr. Kuznar, we do not recount the trial testimony, which focused on that issue. As

relevant to the issues before us, the court reaffirmed its October 13, 2021 order at the start of trial.

When a Gomberg Sharfman attorney testified that the outstanding amount Mr. Kuznar owed was

reflected in the October 13, 2021 order, Mr. Kuznar objected on the basis that the amounts stated

in the order lacked adequate foundation. The trial court overruled the objection, explaining that it

“would not have entered the order if it were not satisfied with the computations” and clarifying that the order reflected its finding as to “the maximum amount that [Gomberg Sharfman] could

claim for fees.” Gomberg Sharfman’s invoices in the levy and foreclosure matters were introduced

into evidence as plaintiff’s exhibits 2 and 3, respectively.

¶ 33 After receiving written submissions in lieu of in-court closing arguments, on July 5, 2022,

the court entered judgment in favor of Gomberg Sharfman in the amount of $28,026.60. One week

6 This figure appears to be the result of a typographical error. The sum of $8613.85 and $3910.15 is $12,524.00. The additional 60-cent credit was not carried over to the total amount owed.

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later, it entered a supplemental order explaining how it had arrived at that figure. It first found that,

per the October 13, 2021 order, Gomberg Sharfman was seeking a total of $32,686.35 in unpaid

fees across both matters. The court stated that the amount sought by Gomberg Sharfman was based

on “[t]he detailed breakdown of the work performed *** provided in the individual invoices

introduced into evidence as plaintiff’s exhibits 2 and 3.” It found that the retainer agreement was

a valid and binding contract that was effective as of September 9, 2016. Because the contract was

valid, the court denied Gomberg Sharfman’s “claims in quantum meirut.” It then found that the

fees sought by Gomberg Sharfman were reasonable and necessary except for $525 in fees that

predated the start of the representation, $105 in fees that represented efforts to collect from Mr.

Kuznar as opposed to legal work on his behalf, and $4,029.75 in fees for preparing a reply brief

that was never filed.

¶ 34 Mr. Kuznar now appeals (1) the July 16, 2021 order granting Gomberg Sharfman leave to

file a reply to affirmative defenses and answer to counterclaims, (2) the August 30, 2021 order

entering summary judgment against him on his affirmative defenses and counterclaims, (3) the

October 13, 2021 order specifying the amounts claimed by Gomberg Sharfman, and (4) the final

judgment, including the July 5, 2022 judgment order and the July 12, 2022 supplement to that

order.

¶ 35 ANALYSIS

¶ 36 At the outset, we note that the record on appeal does not include materials that would be

relevant to the issues raised by Mr. Kuznar. As the appellant, Mr. Kuznar has a duty to “to present

a sufficiently complete record of the proceedings at trial to support a claim of error.” Foutch v.

O’Bryant, 99 Ill. 2d 389, 391 (1984). A complete record includes not only the common-law record

but also the report of proceedings. Ill. S. Ct. R. 321 (eff. Oct. 1, 2021). While the report of

proceedings submitted by Mr. Kuznar includes a transcript of the bench trial in this case, it does

not contain transcripts from any other hearings, including pretrial hearings that are relevant to the

issues he raises on appeal. It also does not contain any adequate substitutes for transcripts, such as

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bystander’s reports or agreed statements of facts. See Ill. S. Ct. R. 323(c), (d) (eff. July 1, 2017).

Without transcripts or appropriate substitutes, we do not know what evidence or arguments the

parties put forward, and we are without the benefit of any oral explanations the trial court may

have given for its decisions. See Ill. S. Ct. R. 323(a) (describing contents of report of proceedings).

Consequently, to the extent that Mr. Kuznar has failed to provide a report of any particular

proceeding, we must presume that the trial court’s orders were “in conformity with law” and rested

on “a sufficient factual basis.” Foutch, 99 Ill. 2d at 392. Similarly, any doubts arising from the

incomplete record must be resolved against him. Id. The effect of the incomplete record as to the

specific issues raised by Mr. Kuznar will be discussed in our analysis of each of those issues.

¶ 37 I. Leave to File Reply to Affirmative Defenses and Answer to Counterclaims

¶ 38 Mr. Kuznar first contends that the trial court erred by granting Gomberg Sharfman leave to

file a late reply to his affirmative defenses and answer to his counterclaims. He primarily argues

that the combination of Gomberg Sharfman’s “undue delay” in filing its reply and answer and his

inability to oppose its request for leave to file on short notice prejudiced him.

¶ 39 Illinois Supreme Court Rule 183 (eff. Feb. 16, 2011) permits the trial court to extend the

time for filing a pleading “for good cause shown on motion after notice to the opposite party.” The

rule gives the court “broad discretion” to set and extend deadlines. Miller v. Consolidated R. Corp., 173 Ill. 2d 252, 260 (1996). Whether there is good cause for extending a deadline or permitting a

late filing “is fact-dependent and rests within the sound discretion of the circuit court.” Vision Point

of Sale, Inc. v. Haas, 226 Ill. 2d 334, 353 (2007). We therefore review a decision to extend the time

for filing a pleading for an abuse of discretion. Id. at 354. A trial court does not abuse its discretion

unless its action is “arbitrary, fanciful, or unreasonable” or adopts a view that “no reasonable

person would take.” Seymour v. Collins, 2015 IL 118432, ¶ 41.

¶ 40 Here, we are unable to conduct that review because Mr. Kuznar has not provided us with a

sufficiently complete record. The common-law record indicates that the trial court ruled on

Gomberg Sharfman’s motion for leave to file a belated reply and answer on July 16, 2021, but the

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record on appeal contains neither a transcript of that proceeding nor an adequate substitute. As a

result, we must presume that the trial court’s order conformed with the law and rested on a

sufficient factual basis. Foutch, 99 Ill. 2d at 392. We are therefore compelled to find that the trial

court did not abuse its discretion. See Gilmore v. City of Zion, 237 Ill. App. 3d 744, 754 (1992)

(presuming, in the absence of a transcript of the hearing, that the trial court did not abuse its

discretion).

¶ 41 Mr. Kuznar also asserts in his brief on appeal that he did not receive notice of the hearing

before it took place and that he would not have been able to attend due to being out of the country.

We observe that the record appears to contradict Mr. Kuznar’s claim that he was not provided with

notice of the hearing on the motion. Although drafted somewhat ambiguously, the certificate of

service states that service of the notice and the motion was accomplished via email for “all parties

with email addresses listed below,” and Mr. Kuznar was the only person on the service list with an

email address. Furthermore, the trial court’s July 16, 2021 order granting Gomberg Sharfman’s

motion states that “due notice ha[d] been served.” The absence of a transcript of the hearing means

that any lingering doubts about whether Mr. Kuznar was given proper notice must be resolved

against him. Foutch, 99 Ill. 2d at 392.

¶ 42 Because we cannot find an abuse of discretion or that no notice was given, we reject Mr.

Kuznar’s argument that the trial court erred by granting Gomberg Sharfman leave to file a belated reply to affirmative defenses and answer to counterclaims.

¶ 43 II. Summary Judgment on Mr. Kuznar’s Counterclaims

¶ 44 Mr. Kuznar next contends that the trial court erred by entering summary judgment against

him on his conflict-of-interest counterclaim and the component of his breach-of-fiduciary-duty

counterclaim premised on an allegedly fraudulent Westlaw charge billed to him as a cost. He argues

that there were genuine issues of material fact as to the existence of a conflict and the fraudulent

nature of the Westlaw charge. He does not challenge the trial court’s entry of summary judgment

on the remaining allegations supporting his breach-of-fiduciary-duty counterclaim or on his

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affirmative defenses, forfeiting any challenge to the propriety of entering summary judgment on

those claims and the affirmative defenses. See Ill. S. Ct. R. 341(h)(7) (eff. Oct. 1, 2020).

¶ 45 “The purpose of summary judgment is not to try a question of fact, but to determine

whether a genuine issue of material fact exists.” Northern Illinois Emergency Physicians v.

Landau, Omahana & Kopka, Ltd., 216 Ill. 2d 294, 305 (2005). Summary judgment is appropriate

if “the pleadings, depositions, admissions, and affidavits on file, when viewed in the light most

favorable to the nonmoving party, show that there is no genuine issue of material fact and that the

moving party is entitled to judgment as a matter of law.” Thounsavath v. State Farm Mutual

Automobile Insurance Co., 2018 IL 122558, ¶ 15. “Because summary judgment is a drastic means

of disposing of litigation, a court must exercise extraordinary diligence in reviewing the record so

as not to preempt a party's right to fully present the factual basis for its claim.” Northern Illinois

Emergency Physicians, 216 Ill. 2d at 305. At this stage, plaintiffs need not prove their cases, and

summary judgment should be granted only if “the right of the moving party is clear and free from

doubt.” Id.

¶ 46 On a motion for summary judgment, the movant has an initial burden of production.

Stearns v. Ridge Ambulance Service, Inc., 2015 IL App (2d) 140908, ¶ 20. As to claims being

asserted against it, the movant can meet that initial burden by either affirmatively putting forward

evidence that would entitle it to judgment as a matter of law if not controverted or by establishing that the other party does not have evidence sufficient to prove an essential element of the claim.

Id. Once the movant satisfies its initial burden, the onus shifts to the opposing party to “present a

factual basis that would arguably entitle the party to a judgment.” Robidoux v. Oliphant, 201 Ill.

2d 324, 335 (2002).

¶ 47 A trial court’s ruling on a motion for summary judgment is reviewed de novo. Thounsavath,

2018 IL 122558, ¶ 16.

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¶ 48 A. Conflict of Interest

¶ 49 Mr. Kuznar argues that the trial court erred by entering summary judgment on his conflict-

of-interest counterclaim because the evidence raised a question of fact as to the existence of a

conflict of interest arising from Gomberg Sharfman’s relationship with Lavelle.

¶ 50 We note that the legal basis for this counterclaim is ill-defined. Although the parties frame

the issue on appeal in terms of the conflict-of-interest provisions of the Illinois Rules of

Professional Conduct (2010), a violation of those rules “does not, in and of itself, give rise to a

cause of action for damages.” Owens v. McDermott, Will & Emery, 316 Ill. App. 3d 340, 353 (1st

Dist. 2000); see Ill. R. Prof’l Conduct (2010) Preamble, ¶ 20 (“Violation of a Rule should not itself

give rise to a cause of action against a lawyer nor should it create any presumption in such a case

that a legal duty has been breached.”). Still, the existence of an undisclosed conflict of interest

might support a claim for legal malpractice. See Barth v. Reagan, 139 Ill. 2d 399, 410 (1990)

(recognizing that a conflict of interest can be relevant to the standard of care in a legal-malpractice

action); Nagy v. Beckley, 218 Ill. App. 3d 875, 881 (1991) (recognizing that “rules of legal ethics

may be relevant to the standard of care in a legal malpractice suit”); Wissore v. Alvey, 204 Ill. App.

3d 931, 940 (1990) (holding that allegations “rais[ing] a question as to whether a conflict of interest

existed” were sufficient to state a claim for legal malpractice). In pleading the counterclaim, Mr.

Kuznar alleged that Gomberg Sharfman owed him “a duty of care” that required it to conduct the representation “in accordance with relevant legal standards of care within the practice of law,” and

he alleged that the nondisclosure of the relationship with Lavelle was a breach of that duty. An

attorney’s breach of a duty of care is an essential element of a claim for legal malpractice. See

Hermansen v. Riebandt, 2020 IL App (1st) 191735, ¶ 79 (reciting elements). Our analysis proceeds,

then, on the assumption that the conflict-of-interest counterclaim was ultimately a claim for legal

malpractice. 7

7 In pleading his conflict-of-interest counterclaim, Mr. Kuznar incorporated paragraph C-1 of his affirmative defenses, which alleged that “[c]oncealing and denying conflict of interest” was among the practices used by Gomberg Sharfman in violation of the Consumer Fraud and

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¶ 51 The first question in our analysis is whether Gomberg Sharfman satisfied its initial burden

of production when it moved for summary judgment on this counterclaim. When he pleaded the

conflict-of-interest counterclaim, Mr. Kuznar described the factual basis for the alleged conflict—

the purportedly close relationship between Gomberg Sharfman and Lavelle—but he did not specify

which rule or rules the conflict arose under. Under the rules, a “concurrent conflict of interest” can

arise from one of two situations:

“A concurrent conflict of interest exists if:

(1) the representation of one client will be directly adverse to another client; or

(2) there is a significant risk that the representation of one or more clients will be materially limited by the lawyer's responsibilities to another client, a former client or a third person or by a personal interest of the lawyer.” Ill. R. Prof’l Conduct (2010) R. 1.7(a) (eff. Jan. 1, 2010).

The conflict alleged by Mr. Kuznar did not involve any obligations Gomberg Sharfman had to any

current or former clients. Hence, if there was a conflict of interest, it could only be because

Gomberg Sharfman (or one of its attorneys) either had some kind of responsibility to Lavelle or a

personal interest involving Lavelle that risked affecting the firm’s representation of Mr. Kuznar.

Gomberg Sharfman apparently operated on this assumption when it filed its motion for summary

judgment, which cited case law standing for essentially the same proposition. See In re Winthrop, 219 Ill. 2d 526, 550 (2006) (citing the former version of Rule 1.7(a)).

¶ 52 When it moved for summary judgment on this claim, Gomberg Sharfman argued that its

relationship with Lavelle, whatever its nature, played no role in how it represented Mr. Kuznar.

That argument was supported by the exhibits attached to the motion. The affidavit sworn by

Deceptive Business Practices Act (815 ILCS 505/1 et seq. (West 2016)). This might support a reading of the conflict-of-interest counterclaim as an attempt to plead a claim under that Act, but the absence of any further reference to it, especially in light of the allegations concerning Gomberg Sharfman’s duty of care, convince us that the claim is better understood as alleging legal malpractice.

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Jennifer Hughes, the associate assigned to Mr. Kuznar’s matters, averred that she had not spoken

to anyone at Lavelle about those cases and that any relationship between the two firms had no

impact on how Gomberg Sharfman represented Mr. Kuznar. In addition, the order from the levy

matter established that, notwithstanding its relationship with Lavelle, Gomberg Sharfman obtained

exactly what Mr. Kuznar had asked it to. Similarly, Mr. Kuznar’s motion to postpone the

withdrawal hearing in the foreclosure matter showed that, whatever concerns he may have had, he

still trusted Gomberg Sharfman to act in his legal interest as long as the representation continued.

We believe that, if not controverted, this evidence—in particular Ms. Hughes’s averment that

Gomberg Sharfman’s relationship with Lavelle had no effect on the representation of Mr.

Kuznar—would have entitled Gomberg Sharfman to judgment as a matter of law. Thus, Gomberg

Sharfman met its initial burden of production. See Stearns, 2015 IL App (2d) 140908, ¶ 20. At that

point, the burden shifted to Mr. Kuznar “to present some factual basis that would arguably entitle

[him] to judgment under the applicable law.” (Internal quotation marks omitted.) Id. (quoting

Williams v. Covenant Medical Center, 316 Ill. App. 3d 682, 688-89 (2000)).

¶ 53 The question becomes whether Mr. Kuznar satisfied that burden. In his response, Mr.

Kuznar made four fundamental points. First, he identified the alleged conflict as being a violation

of Rule 1.9(b). See Ill. R. Prof’l Conduct (2010) R. 1.9(b) (eff. Jan. 1, 2010). Second, he argued

that Gomberg Sharfman’s motion for summary judgment admitted that there was some kind of relationship between lawyers at the two firms. Third, he argued that Raymond Ostler’s deposition

testimony that he was not aware that Lavelle had sued Mr. Kuznar was contradicted by a

handwritten memorandum prepared by Jennifer Hughes. Fourth, he complained that Gomberg

Sharfman had refused discovery requests aimed at obtaining evidence about its relationship with

Lavelle.

¶ 54 First, Mr. Kuznar’s reliance on Rule 1.9, which he renews on appeal, is misplaced. Rule

1.9(b) governs how to assess whether a conflict that would have been imputed to an attorney at a

law firm follows that attorney even after he or she leaves the firm. The rule provides as follows:

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“A lawyer shall not knowingly represent a person in the same or a substantially related matter in which a firm with which the lawyer formerly was associated had previously represented a client

(1) whose interests are materially adverse to that person; and

(2) about whom the lawyer had acquired information protected by Rules 1.6 and 1.9(c) that is material to the matter; unless the former client gives informed consent.” Id.

By its plain terms, a conflict of interest cannot arise under this rule unless the lawyer was formerly

associated with a different firm and that the former firm had, at some point, represented another

client with materially adverse interests. Simply put, it is not applicable to the alleged conflict

arising from the relationship between Gomberg Sharfman and Lavelle, and Mr. Kuznar did not put

forward any evidence that it was.

¶ 55 Second, Mr. Kuznar correctly noted in his response that Gomberg Sharfman’s summary-

judgment motion conceded “that some of [Gomberg Sharfman’s] and Lavelle’s attorneys have or

had personal and professional relationships with one another.” That admission was buttressed by

Mr. Ostler’s deposition testimony that those relationships went back “[p]robably 25 years.” Ms.

Hughes’s affidavit and remarks attributed to Mr. Ostler in Mr. Kuznar’s affidavit also established

that Lavelle had leased office space from Gomberg Sharfman as recently as 2013, although Lavelle

had vacated the premises at least a year before Mr. Kuznar retained Gomberg Sharfman.

Furthermore, according to Mr. Kuznar’s affidavit, Mr. Ostler told him in 2018 that he was working

on a case with Jennifer Burt, the Lavelle attorney who had represented Kuznar in early 2016. To

establish a conflict, however, it is not enough to show that a relationship existed. A conflict would

arise only if, as the result of some responsibility or personal interest arising out of the relationship,

the lawyer’s ability to represent the client would be “materially limited.” Ill. R. Prof’l Conduct

(2010) R. 1.7(a)(2) (eff. Jan. 1, 2010). Examples of personal interests that might materially limit

the lawyer’s ability to represent a client include interviewing for employment with the client’s

opponent or opposing counsel and referring clients to businesses in which the lawyer has a stake.

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Ill. R. Prof’l Conduct (2010) R. 1.7 cmt. 10 (eff. Jan. 1, 2010). Likewise, a lawyer who happens

to serve as “as a trustee, executor or corporate director” assumes fiduciary responsibilities to third

parties that might materially limit the representation of a client. Ill. R. Prof’l Conduct (2010) R.

1.7 cmt. 9 (eff. Jan. 1, 2010). And those kinds of interests and responsibilities do not ordinarily

accompany personal or professional relationships, not even ones that stretch back a quarter of a

century. At the summary-judgment stage, Mr. Kuznar did not have to prove that Gomberg

Sharfman’s relationship with Lavelle risked impairing its representation of him. But he did have

to provide some kind of evidence that could conceivably support such a finding. In view of Ms.

Hughes’s averment that any relationship with Lavelle had no impact on Gomberg Sharfman’s

representation of Mr. Kuznar, evidence that there was merely some kind of relationship between

the firms and their attorneys, without more, did not raise a genuine issue of material fact as to the

existence of a conflict of interest.

¶ 56 Third, it is true that Mr. Kuznar showed that there was a factual dispute about when,

precisely, Gomberg Sharfman learned that Mr. Kuznar had an adversarial relationship of some kind

with Lavelle. At his deposition, Mr. Ostler testified that he did not learn about Mr. Kuznar’s dispute

with Lavelle until after Gomberg Sharfman had ended its representation of him. That was

contradicted by Ms. Hughes’s handwritten notes from a September 9, 2016 meeting with Mr.

Kuznar, which reflected that he told them during the meeting about his “conflict w[ith] Lavelle,” which had made “one mistake after another” before it “parted ways” with him in April 2016. Mr.

Kuznar’s own affidavit also stated that, when he met with Mr. Ostler in September 2016, he

disclosed that Lavelle had sued him. Nevertheless, the timing of Gomberg Sharfman’s learning

about Mr. Kuznar’s dispute with Lavelle makes no difference unless, in light of the relationship

between the two firms, it gave rise to a conflict of interest. Ms. Hughes averred that any such

relationship did not affect Gomberg Sharfman’s representation of Mr. Kuznar, and nothing in her

meeting notes or Mr. Ostler’s deposition contradicted that.

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¶ 57 Fourth, we understand Mr. Kuznar’s frustration at Gomberg Sharfman’s objections to

discovery requests directed at uncovering information about the nature of the firm’s relationship

with Lavelle on the basis that they were “not reasonably calculated to lead to the discovery of

relevant evidence.” Specific information about the relationship between the firms and their

respective attorneys was plainly relevant to whether there was a conflict of interest. Whether Mr.

Kuznar’s requests might have been objectionable for some other reason, they were certainly not

irrelevant. But the way to resolve Gomberg Sharfman’s apparently frivolous objections to those

relevant discovery requests would have been to file a motion to compel under Illinois Supreme

Court Rule 219(a) (eff. July 1, 2022), and the record does not show that Mr. Kuznar did so. He

also did not submit an affidavit indicating that he was unable to obtain material facts from

Gomberg Sharfman or some other person or entity “by reason of hostility or otherwise,” which

could have prompted the court to postpone ruling on the summary-judgment motion pending

further discovery. See Ill. S. Ct. R. 191(b) (eff. Jan. 4, 2013). We note that, on April 8, 2021, the

trial court entered an order quashing Mr. Kuznar’s discovery requests involving communications

between Gomberg Sharfman and Lavelle attorney Jennifer Burt, but it did so without prejudice,

and it invited Mr. Kuznar to “address the relevancy of that requested discovery *** in his

response.” Mr. Kuznar did not take the opportunity to do so, nor did he file a motion to compel or

request further discovery under Rule 191(b). Accordingly, Gomberg Sharfman’s refusal to provide potentially relevant information in discovery is not a valid reason for reversing the trial court’s

entry of summary judgment on the conflict-of-interest claim. Cf. Intercontinental Parts, Inc. v.

Caterpillar, Inc., 260 Ill. App. 3d 1085, 1090-91 (1994) (rejecting plaintiff’s argument that

summary judgment should not have been entered due to inadequate discovery because plaintiff

failed to file a motion to compel or a Rule 191(b) affidavit).

¶ 58 Finally, we note that, on appeal, Mr. Kuznar also relies on materials that were not before

the trial court when it entered summary judgment. He argues that Mr. Ostler’s and Ms. Hughes’s

trial testimony shows a genuine factual dispute over when Gomberg Sharfman became aware of

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his dispute with Lavelle. He further argues that the relationship between Gomberg Sharfman and

Lavelle is shown by two news articles. The first, an article from Crain’s Chicago Business that he

submitted to the trial court with his closing argument, discloses that the attorney who had handled

his case at Lavelle in early 2016 had “clerked” at Gomberg Sharfman’s predecessor as a law

student before graduating in 2007. The second article, which was published in the Daily Herald

while this appeal was pending in August 2022, shows that four Gomberg Sharfman attorneys,

including Mr. Ostler, were joining Lavelle. 8 It also quotes Lavelle founding partner Kerry Lavelle’s

description of a “strong working relationship with Gomberg Sharfman” that went back “several

decades.” “Our review of summary judgment orders is typically limited to the materials of record

that were before the circuit court at the time summary judgment was entered.” Chernyakova v.

Puppala, 2019 IL App (1st) 173066, ¶ 2. Because this evidence was not before the trial court when

it entered summary judgment, we do not consider it.

¶ 59 In sum, Ms. Hughes averred that Gomberg Sharfman’s relationship with Lavelle did not

affect its representation of Mr. Kuznar, and Mr. Kuznar failed to identify evidence arguably

showing otherwise. Accordingly, there was no genuine issue of material fact as to the existence of

a conflict, and the trial court correctly entered summary judgment in favor of Gomberg Sharfman

on Mr. Kuznar’s conflict-of-interest counterclaim.

¶ 60 B. Breach of Fiduciary Duty Involving Westlaw Charge

¶ 61 Mr. Kuznar argues that the trial court should not have granted summary judgment on his

claim that Gomberg Sharfman breached its fiduciary duty to him by billing him for fraudulent

legal-research costs. A claim for breach of fiduciary duty has three elements: (1) the existence of

a fiduciary duty, (2) a breach of that duty, and (3) an injury proximately caused by that breach.

8 The other three attorneys who joined Lavelle were all partners: Robert Gomberg, Kimberly Padjen (who handled communications with Mr. Kuznar related to billing and payment before and after the firm terminated the representation), and John Lydon (Gomberg Sharfman’s counsel of record at trial and on appeal in this case).

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Indeck Energy Services, Inc. v. DePodesta, 2021 IL 125773, ¶ 47. The parties obviously do not

dispute that, as Mr. Kuznar’s attorney, Gomberg Sharfman owed him a fiduciary duty. See Horwitz

v. Holabird & Root, 212 Ill. 2d 1, 9 (2004) (“[T]he attorney-client relationship is a fiduciary

relationship.”) Mr. Kuznar argues on appeal that there was a genuine issue of material fact as to

whether the November 2017 Westlaw charge was fraudulent. Because a fraudulent charge would

be contrary to a fiduciary’s duty of honesty (Metrick v. Chatz, 266 Ill. App. 3d 649, 656 (1994)),

this argument is directed to the element of breach.

¶ 62 On appeal, Gomberg Sharfman does not dispute Mr. Kuznar’s argument that there was a

genuine issue of material fact as to whether the November 2017 Westlaw charge was a breach of

its fiduciary duty. The bulk of its argument in response to this claim of error addresses whether the

trial court properly entered summary judgment on Mr. Kuznar’s affirmative defenses—rulings that

he does not challenge on appeal. As relevant to this counterclaim, Gomberg Sharfman argues only

that Mr. Kuznar failed to demonstrate that he was damaged by the Westlaw charge.

¶ 63 Initially, we decline to consider Gomberg Sharfman’s damages argument because it did not

move for summary judgment on the basis that there was no genuine issue of material fact with

respect to damages or injury. Its argument with respect to this claim was instead directed to the

propriety of the charge, which, as noted above, goes to the element of breach. 9 While the motion

argued that Gomberg Sharfman had “credited [Mr. Kuznar] $3,397.55 in costs associated with

Westlaw Research,” it did so only to argue that the credit did not amount to a concession that the

charge itself was fraudulent. A motion for summary judgment should not be granted on a basis not

raised by one of the parties because doing so deprives the nonmoving party of the opportunity to

produce evidence showing that a genuine issue of material fact exists. See Miwel, Inc. v. Kanzler,

2019 IL App (2d) 180931, ¶¶ 9-14. An appellee may raise an issue for the first time on appeal in

9 We observe that the motion for summary judgment misconstrued Mr. Kuznar’s claim as being for common–law fraud, not the breach of fiduciary duty. Nevertheless, its arguments would have been equally applicable to the breach element of Mr. Kuznar’s claim.

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order to sustain the trial court’s judgment, but only if “the factual basis for the issue was before

the trial court.” DOD Technologies v. Mesirow Insurance Services, Inc., 381 Ill. App. 3d 1042,

1050 (2008). And here, Gomberg Sharfman’s failure to move for summary judgment on the ground

that no genuine issue of fact existed as to damages means that Mr. Kuznar had no opportunity to

develop the factual basis for that claim in the trial court.

¶ 64 The dispositive question, then, is whether there was a genuine issue of material fact as to

whether Gomberg Sharfman breached its fiduciary duty to Mr. Kuznar. As noted in our discussion

of the facts, the motion for summary judgment argued, in essence, that the November 2017

Westlaw charge was not fraudulent. But Gomberg Sharfman did not attach any evidence

supporting that argument, nor did it explain why it believed that Mr. Kuznar would not be able to

show that billing that charge constituted a breach of its fiduciary duty, so it did not carry its initial

burden of production. See Stearns, 2015 IL App (2d) 140908, ¶ 20. Accordingly, summary

judgment should not have been entered on this claim.

¶ 65 Even if Gomberg Sharfman had met its initial burden of production, we would still find

that summary judgment should not have been entered because Mr. Kuznar’s response showed that

there was a genuine issue of material fact. Per the retainer agreement, Mr. Kuznar was required to

reimburse Gomberg Sharfman for any “actual third-party costs” incurred for performing

computerized legal research. But evidence attached to Mr. Kuznar’s response to the motion for summary judgment makes it apparent that the November 2017 Westlaw charge did not represent

any “actual *** costs” incurred in connection with Mr. Kuznar’s cases. Instead of paying for

research à la carte, Gomberg Sharfman paid a fixed monthly subscription fee to Westlaw that was

not affected by its actual usage. The charge billed to Mr. Kuznar represented a pro-rated share of

that flat fee. By sending him an invoice for a Westlaw charge that was not an “actual *** cost[],”

Gomberg Sharfman might have knowingly misrepresented the nature of the charge, which would

constitute a breach of its fiduciary duty to him. See Metrick, 266 Ill. App. 3d at 656 (“The fiduciary

duty owed by an attorney to a client encompasses the obligations of fidelity, honesty, and good

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faith.”). Hence, there was a genuine issue of fact as to whether Gomberg Sharfman breached its

fiduciary duty.

¶ 66 Because Gomberg Sharfman did not carry its initial burden of production and because the

materials identified in Mr. Kuznar’s response show that there is genuine issue of material fact as

to whether the Westlaw charge amounted to a breach of Gomberg Sharfman’s fiduciary duty, we

find that the trial court erred by entering summary judgment on Mr. Kuznar’s breach-of-fiduciary-

duty claim as it pertained to the Westlaw charges. We therefore reverse the trial court’s judgment

as to that claim and remand for further proceedings.

¶ 67 III. Damages Calculation

¶ 68 In his final argument on appeal, Mr. Kuznar attacks the trial court’s October 13, 2021 order

stating the amount of attorney fees claimed by Gomberg Sharfman and the amount credited against

those fees based on his previous payments, which the court later used as a baseline for its final

damages calculation. He argues that the amounts stated in the order were not backed up by

evidence, an objection that he also made at trial. We note that Mr. Kuznar’s briefs do not cite any

legal authority in support of this claim, as required by the rules. See Ill. S. Ct. R. 341(h)(7). His

argument, however, is easily understood as an attack on the weight of the evidence to support the

damages award. In fact, that is how Gomberg Sharfman construes the argument in its brief. We agree with this understanding, so we exercise our discretion to reach the merits despite Mr.

Kuznar’s deficient brief. See Zadrozny v. City Colleges of Chicago, 220 Ill. App. 3d 290, 293

(1991) (noting that this court may consider an issue not adequately briefed when the appellee files

a brief that “is sufficient to apprise us of [the appellant’s] arguments”).

¶ 69 When a trial court sits as trier of fact, we defer to its factual findings unless they are against

the manifest weight of the evidence. Wade v. Stewart Title Guaranty Co., 2017 IL App (1st)

161765, ¶ 59. A finding is against the manifest weight of the evidence “only when an opposite

conclusion is apparent or when the findings appear to be unreasonable, arbitrary, or not based on

the evidence.” Eychaner v. Gross, 202 Ill. 2d 228, 252 (2002).

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¶ 70 We note that the record does not include a transcript of the hearing that preceded the

October 13, 2021 order. Normally, the absence of that transcript would leave us unable to evaluate

how the trial court calculated the amounts stated in the order. In its supplement to the final

judgment order, however, the trial court explained that the amounts stated in the October 13, 2021

order were based on “the individual invoices introduced into evidence as plaintiff’s exhibits 2

and 3.” Those invoices, which were attached to Gomberg Sharfman’s complaint, are part of the

record, so we are able to ascertain the evidentiary basis for the trial court’s damages calculation.

¶ 71 Per our review of the invoices, Gomberg Sharfman billed Mr. Kuznar the following

amounts, broken down into fees and disbursements, in each respective matter (amounts stated in

dollars):

Levy Matter Invoice Date Fees Disbursements Total Charges Dec. 31, 2016 3681.50 105.15 3786.65 Mar. 3, 2017 663.75 458.00 1121.75 May 8, 2017 609.00 630.00 1239.00 June 7, 2017 377.00 0.20 377.20 July 13, 2017 1395.00 71.40 1466.40 Jan. 12, 2018 1704.00 152.80 1856.80 Feb. 6, 2018 731.25 11.20 742.45 Mar. 8, 2018 750.00 0.00 750.00 Apr. 5, 2018 3005.25 8.35 3013.60 June 5, 2018 1063.50 0.00 1063.50 All Months 13,980.25 1437.10 15,417.35

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Foreclosure Matter Invoice Date Fees Disbursements Total Charges July 13, 2017 1,569.00 0.00 1569.00 Aug. 8, 2017 5,356.00 368.00 5724.00 Sept. 7, 2017 2,407.00 497.21 2904.21 Oct. 9, 2017 2,211.50 0.00 2211.50 Nov. 7, 2017 4,195.60 0.00 4195.60 Dec. 20, 2017 3,563.75 3397.55 6961.30 Jan. 10, 2018 408.00 0.00 408.00 Feb. 6, 2018 605.00 0.00 605.00 Mar. 8, 2018 3,395.50 3.95 3399.45 Apr. 9, 2018 551.00 7.90 558.90 May 15, 2018 2,795.50 0.00 2795.50 June 6, 2018 2,288.50 0.00 2288.50 All Months 29,346.35 4274.61 33,620.96

The total amounts precisely match the amounts stated in the complaint, which alleged that

Gomberg Sharfman billed $15,417.35 in connection with the levy matter and $33,620.96 in

connection with the foreclosure matter. Excluding costs (disbursements), these invoices would

support a finding that Gomberg Sharfman billed Mr. Kuznar a total of $43,326.60 in attorney fees:

$13,980.25 in the levy matter, and $29.346.35 in the foreclosure matter.

¶ 72 The October 13, 2021 order stated that Mr. Kuznar was billed $13,980.25 in fees for the

levy matter and $31,230.10 in fees for the foreclosure matter, and the trial court relied on those

findings when it entered judgment. The calculation of fees for the levy matter was fully supported

by the invoices. The calculation of the fees for the foreclosure matter, however, was not. As

indicated above, Gomberg Sharfman’s own invoices show that it billed Mr. Kuznar only

$29,346.35 in fees, an amount $1883.75 lower than what was stated in the October 13, 2021 order.

To the extent that the trial court found that Gomberg Sharfman billed more than $29,346.35 in fees

in connection with the foreclosure matter, that finding was not supported by evidence, which

means it was against the manifest weight of the evidence.

¶ 73 The parties do not challenge the trial court’s finding that $4659.75 of the fees billed were

not necessary and reasonable or its finding that Mr. Kuznar had already paid Gomberg Sharfman

a total of $12,524.60. Subtracting those two amounts from the total amount of fees billed

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($43,326.60) leaves a balance of $26,142.25 still owed to Gomberg Sharfman. We therefore

modify the trial court’s judgment by reducing the damages awarded to $26,142.25. See Ill. S. Ct.

R. 366(a)(5) (eff. Feb. 1, 1994); Roach v. Union Pacific R.R., 2014 IL App (1st) 132015, ¶ 70.

¶ 74 CONCLUSION

¶ 75 Because a genuine issue of material fact existed as to whether the November 2017 Westlaw

charge amounted to a breach of Gomberg Sharfman’s fiduciary duty, we reverse the entry of

summary judgment on that claim and remand for further proceedings. We modify the judgment as

to Gomberg Sharfman’s breach-of-contract claims by reducing damages to the amount supported

by the evidence, which is $26,142.25. In all other respects, we affirm the trial court’s judgment.

¶ 76 Affirmed in part as modified and reversed in part.

¶ 77 Cause remanded.

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