Orzel v. Szewczyk

908 N.E.2d 569, 391 Ill. App. 3d 283
CourtAppellate Court of Illinois
DecidedMay 11, 2009
Docket1-08-2240
StatusPublished
Cited by31 cases

This text of 908 N.E.2d 569 (Orzel v. Szewczyk) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Orzel v. Szewczyk, 908 N.E.2d 569, 391 Ill. App. 3d 283 (Ill. Ct. App. 2009).

Opinion

JUSTICE WOLFSON

delivered the opinion of the court:

In order to decide this legal malpractice case the jury first had to decide another case. That other case is referred to as a “case within a case.” Plaintiff Krystyna Orzel sued defendants Conrad Szewczyk, James Kash, and Kash & Szewczyk, P.C., alleging legal malpractice in an underlying slip and fall negligence case. The jury found in defendants’ favor.

On appeal, plaintiff contends: (1) she was entitled to a judgment notwithstanding the verdict; (2) she was entitled to a new trial because the verdict was against the manifest weight of the evidence; (3) the jury was improperly instructed to consider contributory negligence; (4) the trial court erred in admitting testimony and evidence regarding other injuries plaintiff suffered that were unrelated to her claimed injury; and (5) the trial court improperly admitted a surveillance video of the plaintiff. We affirm the jury’s verdict.

FACTS

On January 8, 1996, plaintiff was injured when she slipped and fell on an allegedly unnatural accumulation of ice hidden by snow on a sidewalk outside of her apartment building. Plaintiff retained Conrad Szewczyk and the law firm of Kash & Szewczyk, P.C., to represent her in a slip and fall personal injury lawsuit against her landlord, Danny O’Leary. Plaintiff’s underlying negligence complaint was dismissed with prejudice after defendants failed to properly name the landlord as a party within the applicable statute of limitations period.

Plaintiff filed a second amended complaint against the defendants on February 7, 2008, alleging professional negligence, fraud, and estoppel as to defendants’ use of the statute of repose. Defendants filed an answer to the second amended complaint and seven affirmative defenses, including the affirmative defense of contributory negligence. Although defendants admitted to a breach of duty by failing to timely file a proper complaint in the underlying negligence lawsuit, they denied plaintiff would have prevailed against the defendant-landlord if the case had proceeded to trial.

Plaintiff filed a motion to strike each of defendants’ affirmative defenses. The trial court granted plaintiffs motion to strike, except as to the “1st affirmative defense” of contributory negligence. The court granted defendants’ oral motion to amend their third and fourth affirmative defenses, which related to the statute of limitations and the statute of repose. The written court order, which was prepared by plaintiffs attorney, directed defendants to designate the repled third and fourth amended defenses as the first and second affirmative defenses in the revised affirmative defenses pleading. Defendants did not replead contributory negligence in the revised pleading. No order striking the affirmative defense of contributory negligence was entered.

Following a trial, the jury found in favor of the defendants. The trial court denied plaintiffs posttrial motion for judgment notwithstanding the verdict or a new trial. Plaintiff appeals.

DECISION

I. Contributory Negligence

Plaintiff contends the jury was improperly instructed to consider her contributory negligence. Specifically, plaintiff contends defendants should be estopped from asserting a contributory negligence defense in the malpractice action because defendants admitted that in the underlying negligence case they signed an amended complaint and filed a response denying O’Leary’s affirmative defense of contributory negligence. Plaintiff contends that by filing the pleadings in the underlying personal injury case, defendants certified they believed her case had merit and plaintiff was not contributorily negligent when she fell. In support of her contention, plaintiff notes defendant Szewczyk admitted at trial that he believed plaintiff had a meritorious case while he was representing her.

Initially, we note plaintiff forfeited any estoppel objection to the contributory negligence instruction.

Plaintiff objected to the admission of a contributory negligence instruction during the jury instruction conference, arguing “there is no contributory negligence petition currently pending.” The trial court admitted the instruction, finding:

“That was one of the affirmative defenses that was raised by the Defendant as part of this lawsuit. We have proof on the record that the jury could decide based upon that proof that the Plaintiff was 50 percent or more responsible, or 50 percent or less responsible. As far as I’m concerned, it’s up to the jury to decide how to assess the fault of Mr. O’Leary and Ms. Orzel in rendering any decision in this case.”

Although plaintiff raised estoppel in her posttrial motion, she forfeited the issue by never objecting at trial to the contributory negligence instruction on estoppel grounds. See Jones v. Rallos, 384 Ill. App. 3d 73, 83, 890 N.E.2d 1190 (2008) (“when an objection is made, specific grounds must be stated and other grounds not stated are waived on review”). Both an objection at trial and a written post-trial motion raising the issue are necessary to preserve an error for appellate review. Kel-Keef Enterprises, Inc. v. Quality Components Corp., 316 Ill. App. 3d 998, 1021, 738 N.E.2d 524 (2000), citing People v. Enoch, 122 Ill. 2d 176, 186, 522 N.E.2d 1124 (1988).

Moreover, plaintiff cites no legal authority in support of her estoppel contention in her opening brief. Under Supreme Court Rule 341(e)(7), an appellate brief “shall contain the contentions of the appellant and the reasons therefor, with citation of the authorities and the pages of the record relied on.” 188 Ill. 2d R. 341(e)(7). A party’s failure to cite supporting authority is a violation of Rule 341(e)(7), and we may consider those issues forfeited. American Service Insurance Co. v. Pasalka, 363 Ill. App. 3d 385, 394-95, 842 N.E.2d 1219 (2006).

Forfeiture or not, defendants were not estopped from raising a contributory negligence affirmative defense in the legal malpractice action based on their conduct in the underlying negligence litigation.

In Ignarski v. Norbut, 271 Ill. App. 3d 522, 529-30, 648 N.E.2d 285 (1995), this court considered whether the defendant-attorneys in a legal malpractice lawsuit were equitably estopped from denying the underlying complaint stated a meritorious action by virtue of defendant Alex Norbut’s conduct in the underlying litigation. Norbut filed a complaint on the plaintiffs behalf in the underlying lawsuit. During his deposition for the legal malpractice action, Norbut admitted he filed the lawsuit on plaintiffs behalf because, as a result of his research, he felt plaintiff had a meritorious claim worth pursuing.

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Bluebook (online)
908 N.E.2d 569, 391 Ill. App. 3d 283, Counsel Stack Legal Research, https://law.counselstack.com/opinion/orzel-v-szewczyk-illappct-2009.