FOURTH DIVISION September 21, 2006
No. 1-04-2950
WENDY WEISMAN, ) Appeal from the ) Circuit Court of Plaintiff-Appellant, ) Cook County. ) v. ) ) SCHILLER, DUCANTO AND FLECK, LTD., ) ) Honorable ) Allen S. Goldberg, Defendant-Appellee. ) Judge Presiding.
PRESIDING JUSTICE QUINN delivered the opinion of the court:
Plaintiff Wendy Weisman sued defendant Schiller, Ducanto, &
Fleck, Ltd. (SDF), for negligent representation of her interests
during divorce proceedings against her former husband, Larry
Weisman (Larry), where SDF allegedly failed to conduct adequate
discovery on the value of the marital estate and to present
expert witnesses. Following a jury trial, a verdict was entered
for SDF, and plaintiff appealed. On appeal, plaintiff contends
that the verdict was against the manifest weight of the evidence
and alleges that the trial court made several errors.
BACKGROUND
The record shows that plaintiff and Larry married in
February 1979. Thereafter, in the summer of 1980, Larry formed
the law firm Goldberg, Weisman & Fohrman with Michael Goldberg
and Donald Fohrman, which later became Goldberg, Weisman & Cairo No. 1-04-2950
(GWC) following Fohrman's departure.
In October 1986, Larry filed for divorce but quickly
dismissed that action. He then refiled for divorce in April
1992, at which time plaintiff retained the services of SDF. Upon
request, SDF received financial documents from Larry dating back
to 1987, including annuity contracts, investment statements, and
bank statements. Arnold Stein, an attorney at SDF, then deposed
Larry on August 25, 1992, and questioned him about his disclosed
financial documents. However, in the fall of 1993, Larry again
dismissed the divorce action after plaintiff received treatment
for her drug use at the Betty Ford Clinic.
In January 1994, plaintiff filed for divorce, and after a
failed attempt at reconciliation, she told SDF to proceed with
the marital dissolution action. Larry then filed a petition for
order of protection on April 26, 1994, which the circuit court
granted in an emergency order, and on April 27, 1994, he also
filed for divorce.
On May 5, 1994, SDF filed a notice to produce and a notice
of deposition on Larry. A limited discovery deposition of Larry
was conducted on May 12, 1994, which primarily concerned the
order of protection, child support, and attorney fees. Larry,
however, failed to fully comply with SDF's production request for
financial documents. As a result, SDF filed a motion to compel
on June 13, 1994. Larry never responded to that motion and no
hearing was ever held on it.
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On June 27, 1994, however, Larry sent SDF financial records
that which he claimed were for settlement purposes only. The
documents included a handwritten financial statement of assets
stating his net worth was $4,485,347, various promissory notes,
and a notice of his participation in a profit-sharing plan at GWC
for the 1993 year. Despite viewing the financial statement as
incomplete, SDF sent Larry a settlement proposal on August 2,
1994. SDF estimated Larry's net worth to be $6.5 million based
on his financial disclosures and the buy-sell agreement he had
with GWC, which asserted that he would receive $1.2 million upon
his departure. SDF requested $3.3 million in value of the
marital estate, but Larry rejected the proposal.
In September 1994, Larry filed a motion to close discovery,
and SDF filed a response that set forth in detail the documents
it received from Larry and the documents it still sought. SDF
noted in its response that Larry never fully complied with its
production requests. The trial court granted Larry's motion and
ordered all discovery to be closed on January 5, 1995, and set
the trial for February 27, 1995.
Three weeks after the trial court granted Larry's motion to
close discovery, SDF sent Larry another request for discovery and
disclosure of expert witnesses. In response, Larry sent SDF
another handwritten financial statement, dated November 18, 1994,
which again noted it was for settlement purposes only. The
statement showed he had a net worth of $4,312,567 but no value
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was listed for his interest in his law firm, GWC.
SDF asked the trial court for expert witness fees to hire an
expert to value Larry's law practice. Larry provided $5,000 for
a retainer for an expert and SDF hired Willamette Management
Associates (Willamette).
In November 1994, Willamette sent SDF a list of documents it
needed to formulate an opinion as to GWC's value. SDF forwarded
that list to Larry in December 1994, and asked him for still
outstanding discovery and expert witness disclosures. On
December 20, 1994, Larry's attorney sent SDF a letter which
disclosed expert witness Robert Robertson of Coopers & Lybrand,
Ltd., who had been retained to value Larry's interest in GWC.
The letter did not include a valuation of GWC even though
Robertson had previously valued each partner's interest in GWC
during the 1991 partnership dissolution case brought by former 1 partner Fohrman. SDF was aware of that previous valuation, but
1 Fohrman had sued the firm upon his departure, and the trial
court held that he was only entitled to the $1,200,000 provided
by the firm's buy-sell agreement. This court affirmed that
ruling on appeal. Forhman v. Goldberg, No. 1-93-1546 (1995)
(unpublished order under Supreme Court Rule 23). However,
Robertson's analysis, which is found in the record, concluded
that as of January 15, 1991, the fair market value of Fohrman's
alleged 32.4886% interest in GWC was $350,000. At the time,
Larry also had a 32.4886% interest, which increased after
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Willamette had not yet valued Larry's interest in GWC.
On December 28, 1994, plaintiff sent Stein a letter which
informed him that she was dismissing SDF as counsel. In that
letter, plaintiff informed Stein that he "had been great" but
that she felt a change was necessary. She then retained the
services of Kaufman, Litwin, & Feinstine (KLF) as counsel.
Prior to its January 13, 1995, withdrawal, SDF filed a
motion to extend discovery and to continue the trial on January
5, 1995. In that motion, SDF rejected Larry's contention that
his interest in GWC was of no value and asserted that Willamette
had not yet valued Larry's interest. Further, SDF noted that
Larry had not produced all requested financial documents. The
trial court denied SDF's motion. SDF also wrote to KLF on January 4, 1995, and January 11,
1995, asking them to retrieve plaintiff's file, which KLF did on
January 18, 1995. Those files included the parties' tax returns
from 1989 to 1993 as well as GWC's tax returns for those years.
Meanwhile, KLF also filed a motion to extend the discovery
cutoff date and to continue the trial date, which the trial court
denied. However, the trial court entered an order by agreement
Fohrman's departure.
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that Larry would appear for a deposition by January 31, 1995.
On January 20, 1995, Larry's attorney responded to KLF's
notice of the deposition and the attached request for documents
spanning six years by informing KLF that all relevant documents
had already been produced. Subsequently, on January 26, 1995,
Larry appeared for a deposition and presented updated versions of
the documents he had previously provided SDF. During the
deposition, Larry testified as to his assets, which included
$2.62 million in a money market account with Mesirow Financial,
$80,000 deposited with Fidelity, $30,000 in a personal checking
account at Midcity Bank, two other accounts valued under $2,000,
and an individual retirement account (IRA) worth about $36,000.
Larry valued the couple's home at $580,000 and stated that it was
fully paid for. He also testified that he earned $1.265 million
in 1994 and provided details as to other business deals and
loans, including financial dealings with GWC.
KLF was aware of Larry's interest in GWC. KLF was also
aware that Fohrman received $1.2 million following his lawsuit
upon his departure from the firm. The record contains a letter
between partners of KLF, which suggests that the firm believed
that the $1.2 million in the buy-sell agreement represented the
value of Larry's interest in the firm for purposes of marital
property division and distribution.
On February 25, 1995, at the advice of KLF, plaintiff
settled her marital dissolution case with Larry out of court.
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Plaintiff received approximately $3,103,747 in the settlement,
which consisted of $2,070,000 in assets and $1,033,747 in non-
modifiable maintenance to be paid in varied sums over 10 years.
At the prove-up hearing, Larry stated that all of his assets were
set forth in the settlement agreement and acknowledged that he
had made over $1 million each of the previous three years.
Thereafter, SDF filed a fee petition for its services, and
the trial court ordered plaintiff to pay SDF $26,216.15 for the
dissolution proceedings and $28,659 for the order of protection
proceedings.
Plaintiff then filed a legal malpractice lawsuit against
defendant. The trial court, however, dismissed that action under
the doctrine of res judicata because plaintiff had raised the
issue of legal malpractice in response to plaintiff's fee
petition action. This court reversed that ruling on appeal
(Weisman v. Schiller, DuCanto, & Fleck, 314 Ill. App. 3d 577 (2000)) and remanded the case for trial.
During the subsequent jury trial, plaintiff testified first
and acknowledged that she took quaaludes during her marriage
because they helped her cope with her sense of loneliness. She
stated that she knew she had to quit using drugs in order to
"concentrate on her kids." Plaintiff received care at the Betty
Ford Clinic and worked with a therapist thereafter.
Plaintiff's testimony further related that she worked as a
paralegal at GWC prior to having her and Larry's two children.
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Plaintiff detailed her care of their household following the
birth of the children, including driving the children to school
and personal appointments and buying their clothes. She
concluded her direct testimony by presenting and describing
several family pictures.
On cross-examination, although the trial court disallowed
defense counsel from reading from the 1994 protective order
entered against plaintiff, it permitted questioning as to
plaintiff's drug use despite her counsel's objection. During a
side bar, the trial court informed counsel that it was permitting
such questioning because plaintiff placed her credibility in
question on direct examination by presenting a scenario of "a
mother who had idyllic relationships with her children."
Stephen Katz, a partner at SDF, also testified in
plaintiff's case-in-chief. He acknowledged that a full financial
deposition of Larry was not conducted during SDF's representation
and also confirmed that the expert disclosures in plaintiff's
underlying case were not filed 60 days before the February 27,
1995, trial date, which put SDF at risk for being barred from
offering expert testimony.
On cross-examination, Katz stated that he believed that a
full financial deposition of Larry was conducted by successor
counsel. He further stated that attorneys often agree to do
discovery after the discovery cutoff date, and that he felt that
the judge did not provide enough time to conclude discovery prior
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to the February 27, 1995, trial date.
Plaintiff then called Stein as an adverse witness pursuant
to section 2-1102 of the Illinois Code of Civil Procedure (735
ILCS 5/2-1102 (West 2004)). Stein testified as to his knowledge
of the law applicable to divorce proceedings and SDF's
representation of plaintiff.
In addition, plaintiff presented the testimony of successor
counsel Glen Kaufman, a partner at KLF, and Joseph Mirabella, an
experienced divorce lawyer. Kaufman asserted that SDF's
representation forced KLF to recommend that plaintiff settle her
divorce case for the stated amount. Mirabella in turn testified
that he believed that SDF deviated from the proper standard of
care in its representation of plaintiff. However, on cross-
examination, Mirabella admitted that he had not reviewed the
entire record of the underlying case.
Finally, plaintiff called Michael Goldman to testify as an
expert on firm valuation. Goldman intended to testify as to his
report on GWC's valuation, which he found to be $7,902,000 as of
December 31, 1994. Prior to trial, however, the trial court
granted SDF's motion in limine to bar much of that testimony and
limited his testimony as to his analysis of the 1991 Coopers &
Lybrand valuation report. The trial court reached that ruling
after finding that Goldman's report incorporated enterprise
goodwill, which was not recognized at the time of SDF's
representation. The trial court stated in pertinent part:
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"But it seems to me that before I allow that
to be done in this case, there ought to be
some law at the Supreme Court level, and
there ought to be law at the Supreme Court
level at about the time that the Schiller,
DuCanto & Fleck firm was being held to know
this law and to apply this law and to
advocate for Wendy Weisman the concept of
enterprise goodwill.
So for that in mind, I will bar Mr.
Goldman from testifying to enterprise
goodwill, and I'll grant the motion in limine
regarding that."
The trial court upheld that ruling at trial after conducting
a voir dire of Goldman. In addition, the trial court barred
Goldman from testifying as to a new valuation he derived
following the voir dire since that valuation was not disclosed
prior to trial. The court stated, "I will allow him to testify
as originally planned, whatever you planned to testify on direct
limited to this Coopers & Lybrand report, let you cross-examine."
Subsequently, Goldman testified that in analyzing the 1991
Coopers & Lybrand report, he took the numbers therein, carried
them forward to December 31, 1994, and found the value of the
firm to equal $4,155,000. Goldman determined that Larry's 48%
share of the firm was worth roughly $2 million.
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SDF then presented its case-in-chief. SDF first called
Larry, plaintiff's ex-husband, who testified as to his marriage
with plaintiff. During his testimony, he alleged that plaintiff
contributed little to the marriage, which he attributed to her
drug use.
SDF also presented the testimony of Timothy Cummins, who
testified as to a report he prepared while he was a managing
director in the "Valuation and Litigation Advisory Services
Group" of Stout Risius Ross, Inc. The report concerned Larry's
48% interest in GWC, which Cummins determined to amount to $1.2
million pursuant to the buy-sell agreement between the partners.
SDF then sought to present the video evidence deposition of
James Feldman, a partner at Jenner and Block, who reviewed
Larry's financial information on behalf of defendant. Prior to
the jury viewing the video, however, plaintiff made several
objections as she argued that Feldman presented opinions during
his evidence deposition that he had not disclosed during his
discovery deposition or in his Rule 213 interrogatory answers
(Official Reports Advance Sheet No. 8 (April 17, 2002), R. 213,
eff. July 1, 2002). Following the court's rulings on those
objections, SDF played the video for the jury.
During his evidence deposition, Feldman noted that pursuant
to the supreme court's ruling in In re Marriage of Zells, 143 Ill. 2d 251, 256 (1991), which was the law at the time of the
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underlying divorce, it was "not appropriate for a number of
reasons to value professional goodwill, that is, to try to place
a number on what someone's earning potential is." He stated that
he had handled divorce cases involving attorneys but had never
hired an expert to value an attorney's goodwill. Feldman opined
that SDF did not breach its standard of care in not hiring an
expert to value GWC's goodwill or plaintiff's need for indefinite
or reviewable maintenance. He based his opinion on the facts
that Illinois law did not require the hiring of such an expert
and that several necessary factors for determining maintenance
had already been established during the order of protection
hearing, including plaintiff's drug use.
Finally, SDF re-called Stein to testify. During that
testimony, Stein stated, over plaintiff's objections, that he had
participated in previous cases that dealt with the valuation of a
law firm's goodwill. He specifically referenced a trial court's
ruling in a case in which he represented a partner in the law
firm McDermott, Will, and Emery that disallowed the valuation of
goodwill. However, the following day, the trial court informed
the parties that it had reconsidered Stein's testimony regarding
another trial court's treatment of goodwill valuation, and
subsequently ordered the jury to disregard it.
Stein also testified about plaintiff's drug use and the
order of protection entered against her. However, the trial
court sustained plaintiff's objection to a question as to the
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expiration of the order of protection. Further, the court
instructed the jury to disregard the contempt finding that had
been entered against plaintiff.
The court also allowed defense counsel to question Stein as
to SDF's theory that one reason it could not prepare for trial
and sought delays was to allow plaintiff time to clean up her
drug addiction. In doing so, the trial court denied plaintiff's
motion for mistrial as it determined that Stein had a right to
explain his decision-making.
Finally, the trial court permitted Stein to testify as to
what he and SDF would have done if they had continued to be
retained as plaintiff's counsel. That testimony supported an
affidavit he had earlier filed.
At the close of testimony, the trial court agreed to give
defendant's Illinois Pattern Jury Instruction, Civil, No. 12.04
(1995) hereinafter IPI Civil (1995)), which discussed the sole
proximate cause of a third party's act, and IPI Civil (1995) No.
15.01, which defined proximate cause. However, it denied
plaintiff's nonpattern instruction 9A in which she sought to
instruct the jury as to SDF's liability based on the viability of
her case following its representation.
The parties then presented closing arguments, during which
defense counsel stated:
"We decided not to value the firm. We
decided not to get an expert. They decided
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the same thing. I guess Mr. Stein must have
convinced them yesterday when -- remember
when we talked about it would be malpractice
to use that valuation?"
Plaintiff's objection to that statement was overruled.
Plaintiff also objected to defense counsel's argument that
the supreme court had held that contingent fee contracts and
goodwill were not subject to valuation. The trial court again
overruled her objection.
However, the trial court sustained plaintiff's objection to
defense counsel's assertion that Kaufman admitted the underlying
divorce case was a "slam-dunk prove-up." The trial court also
sustained plaintiff's objection to defense counsel's assertion
that "[plaintiff] has been after her husband now for ten years.
She's after her lawyers relating to her business with her
husband. She has gone after her husband 12 times for documents."
Following closing arguments, the jury deliberated and
returned a verdict for defendant. Subsequently, the trial court
denied plaintiff's motion for a new trial, and she appealed.
ANALYSIS
I. Sufficiency of the Evidence
On appeal, we first address plaintiff's contention that the
trial court erred in not granting her motion for a new trial
where she alleges that the jury's verdict was against the
manifest weight of the evidence. A verdict is against the
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manifest weight of the evidence where the opposite conclusion is
clearly evident from the evidence or where the jury's findings
are unreasonable or arbitrary and not based on the evidence.
Maple v. Gustafson, 151 Ill. 2d 445, 454 (1992). We will not
disturb the trial court's ruling on a motion for new trial absent
an abuse of discretion. Maple, 151 Ill. 2d at 455. In
determining whether an abuse of discretion occurred, we consider
whether the evidence supported the jury's verdict and whether
defendant was denied a fair trial. Maple, 151 Ill. 2d at 455. We also note that in ruling on a motion for new trial, the trial
court had the benefit of observing the witnesses and the
circumstances determining their credibility. Maple, 151 Ill. 2d
at 456.
In this case, plaintiff alleged that SDF committed legal
malpractice by failing to conduct proper discovery and to obtain
expert witnesses to value the marital estate. To establish a
complaint of legal malpractice, plaintiff had to prove the
existence of an attorney-client relationship establishing a duty
on the part of the attorney, a negligent act or omission
constituting a breach of that duty, a proximate causal
relationship between the breach and the damages sustained, and
actual damages. Governmental Interinsurance Exchange v. Judge, 221 Ill. 2d 195, 199 (2006); Lopez v. Clifford Law Offices, P.C.,
362 Ill. App. 3d 969, 974-75 (2005). " 'Even if negligence on
the part of the attorney is established, no action will lie
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against the attorney unless that negligence proximately caused
damage to the client.' " Judge, 221 Ill. 2d at 199-200, quoting
Northern Illinois Emergency Physicians v. Landau, Omahana, &
Kopka, Ltd., 216 Ill. 2d 294, 306-07 (2005). The existence of
actual damages is essential to a viable cause of action for legal
malpractice. Tri-G, Inc. v. Burke, Bosselman, & Weaver, Nos.
99584, 99595 cons. slip op. at 2 (June 22, 2006), citing Northern
Illinois Emergency Physicians, 216 Ill. 2d at 306-07.
"Where the alleged legal malpractice involves
litigation, no actionable claim exists unless
the attorney's negligence resulted in the
loss of an underlying cause of action. If
the underlying action never reached trial
because of the attorney's negligence, the
plaintiff is required to prove that but for
the attorney's negligence, the plaintiff
would have been successful in that underlying
action. A legal malpractice plaintiff must
therefore litigate a 'case within a case.'"
Tri-G, Inc., Nos. 99584, 99595 cons. slip op. at 3.
The "case within a case" on which plaintiff's malpractice
claim is predicated was plaintiff's marital dissolution case
involving Larry. To prove her legal malpractice claim, plaintiff
had to establish that she would have received a larger share of
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the marital estate as a result of the divorce proceedings but for
SDF's malpractice. Judge, 221 Ill. 2d at 200.
Here, the record clearly establishes that an attorney-client
relationship existed between plaintiff and SDF, and that SDF had
a duty to represent plaintiff. The record, however, also shows
that plaintiff failed to establish that she suffered damages due
to SDF's representation. Plaintiff failed to present any
concrete evidence that demonstrated that she would have received
more than the $2,070,000 in assets and the $1,033,747 in non-
modifiable maintenance to which she agreed had she not settled
the case out of court. At trial, plaintiff testified and put
forth the testimony of her successor attorney Kaufman, her expert
Mirabella, whose testimony revealed that he had not reviewed much
of the record, and Goldman, who valued Larry's share of the firm.
SDF countered with the testimony of Larry, Cummins, and Stein.
On appeal, plaintiff essentially argues that her witnesses were
more credible than those of defendant.
Based on the evidence presented by plaintiff and SDF, we
cannot say that the jury's verdict was against the manifest
weight of the evidence. Consequently, we decline to disturb the
circuit court's denial of plaintiff's motion for a new trial.
II. Trial Court Errors
A. Evidentiary Rulings
We next address plaintiff's numerous allegations that the
trial court erred by admitting and excluding certain evidence.
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The admission of evidence during a trial is within the discretion
of the trial court and will not be disturbed absent an abuse of
discretion. Brax v. Kennedy, 363 Ill. App. 3d 343, 355 (2005).
An abuse of discretion occurs where no reasonable person would
agree with the disposition of the trial court. Brax, 363 Ill.
App. 3d at 355.
1. Testimony Concerning Plaintiff's Drug Use
Plaintiff first contends that the trial court erred when it
denied her pretrial motion in limine to bar evidence of her use
of quaaludes. In particular, she alleges that she suffered
prejudice when Larry testified that he saw plaintiff take drugs
in front of their children more than 100 times.
Plaintiff argues that marital property is to be divided
without regard to marital misconduct (750 ILCS 5/503(d) (West
2004)), as is maintenance (750 ILCS 5/504(a) (West 2004)), and
thus argues that such evidence of her drug use was irrelevant.
She further argues that even if such evidence was proper as the
trial court determined for the limited issues of dissipation and
to show that she was a candidate for permanent maintenance in the
underlying case, SDF failed to stay within those parameters.
Plaintiff's claim of legal malpractice hinged on her ability
to show that but for SDF's alleged errors she would have received
more than the combined $3,103,747 for which she settled. As
such, the evidence of her drug use was relevant in assessing the
effect such use had on her contributions as a homemaker and to
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the family unit (750 ILCS 5/503(d)(1) (West 2004)). Furthermore,
Larry's testimony that plaintiff used drugs in front of their
children was admissible rebuttal evidence in light of plaintiff's
testimony that she was a good mother. See Barth v. Massa, 201
Ill. App. 3d 19, 33 (1990) ("Rebuttal evidence is used to
answer, explain, repel, contradict or disprove evidence
introduced by the [the other party]. [Citations.] The admission
of rebuttal evidence is left to the discretion of the trial
court, and its decision will not be disturbed on review unless an
abuse of discretion is shown").
Moreover, the record shows that the trial court sustained
plaintiff's objections whenever SDF attempted to present evidence
of her drug use for reasons outside the trial court's parameters.
In addition, the trial court informed the jury prior to its
deliberations that it was to consider the evidence only for the
consideration of each spouse's contributions to the marital
assets and whether it affected plaintiff's eligibility for
permanent or reviewable maintenance, and the jury is presumed to
have followed that instruction (McDonnell v. McPartlin, 192 Ill. 2d 505, 535 (2000)).
Accordingly, we find no error with the trial court's
admission of evidence of plaintiff's drug use.
2. Michael Goldman's Testimony
Plaintiff also contends that the trial court erred in
limiting the testimony of her expert Goldman. Prior to trial,
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Goldman prepared a valuation report of GWC in which he found the
firm's value to equal approximately $7.9 million based on the
average of three different analyses. However, the trial court
ruled that Goldman could not testify as to that report since he
incorporated enterprise goodwill in his valuation. As a result,
it restricted his testimony to the 1991 Coopers & Lybrand report.
On appeal, plaintiff relies heavily on language from our
supreme court's holding in In re Marriage of Schneider, 214 Ill.
2d 152, 167-68 (2005):
"The goodwill in a professional practice is
generally personal in nature, while the
goodwill in a corporation might include both
personal and enterprise goodwill. [In re Marriage of Talty, 166 Ill. 2d 232, 239
(1995)]. As we recognized in Talty, the
duplication of the factors set forth in
section 503(d) of the Act is limited to
personal goodwill and does not extend to
enterprise goodwill. Talty, 166 Ill. 2d at 239-40."
In making its ruling in the instant case, the trial court
reviewed case law concerning the valuation of goodwill, including
the supreme court's decision in Schneider. The trial court then
noted that the governing law at the time of the underlying
divorce proceedings was the supreme court's holding in In re
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Marriage of Zells, 143 Ill. 2d at 256, which determined that
since goodwill was reflected in maintenance and support awards,
additional consideration of it as a divisible asset was
"duplicative and improper." That ruling, however, addressed only
personal goodwill, not enterprise goodwill.
As discussed in Schneider, the concept of enterprise
goodwill was first recognized in Talty, which was filed on June
22, 1995. In this case, plaintiff discharged SDF on December 28,
1994. KLF and plaintiff settled the dissolution action on
February 25, 1995. For plaintiff to prevail, she had to show
that SDF's negligent act or omission proximately caused damage to
her. As the concept of enterprise goodwill was not recognized
until Talty in June of 1995, SDF was not negligent in failing to value Larry's enterprise goodwill in his law firm when SDF
represented plaintiff in 1994. An inability to foretell the
future cannot provide a basis to find an attorney liable for
malpractice. Based on this same reasoning, the trial court
deemed it improper to consider enterprise goodwill and, thus,
barred Goldman from testifying as to much of his report which
relied heavily on enterprise goodwill in valuing GWC.
Plaintiff counters in this court that the $7.9 million
figure proposed by Goldman did not include goodwill value, and
thus, the trial court's ruling was erroneous. For support, she
cites Goldman's report, which states, "we have estimated the Fair
Market Value of 100% of Goldberg, Weisman, & Cairo as of December
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31, 1994 to be $7,902,000 before adjusting for different
components of Goodwill."
Plaintiff misreads Goldman's report. The next line of the
report reads, "As shown in the Capitalization of Excess Earnings
section, approximately 94% of the value of the Firm lies in
Goodwill." The report then indicates that the value of the firm
is $7,159,000 when personal goodwill is subtracted from the
overall value. Goldman's report further states that 94% of the
$7.9 million valuation consisted of goodwill and 90% of that
goodwill was enterprise goodwill. Since enterprise goodwill was
not a recognizable element of distribution at the time of the
underlying divorce (see In re Marriage of Head, 273 Ill. App. 3d 404, 409 (1995)), it was inappropriate to consider it in
determining the value of GWC for purposes of this legal
malpractice action. 2
For these reasons, we find that the trial court properly
limited Goldman's testimony.
2 We further note that Larry is a lawyer and both Schneider
and Talty recognized that "the goodwill in a professional
practice is generally personal in nature" as opposed to
enterprise goodwill. See Schneider, 214 Ill. 2d at 167; Talty,
166 Ill. 2d at 239. In spite of this, Goldman opined that
Larry's interest in GWC constituted enterprise goodwill rather
than personal goodwill.
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3. Arnold Stein's Testimony
Plaintiff also alleges that the trial court erred in its
rulings on Stein's testimony. Specifically, she challenges three
points of his testimony.
a. Testimony Regarding Unrelated Divorce Case
Plaintiff first contends that the trial court erred where
Stein testified as to a trial court's ruling on the valuation of
goodwill in an unrelated divorce case he had handled. Plaintiff
argues that not only was the testimony irrelevant and hearsay,
but that Stein testified falsely because records show that the
noted case occurred after plaintiff's case, and thus, he violated
the trial court's pretrial order barring testimony to events that
occurred after February 25, 1995.
We, however, find no error. The record shows that although
the trial court initially overruled plaintiff's objections to
that testimony, the trial court instructed the jury to disregard
that portion of Stein's testimony the following day, thereby
curing any defect. See Kass v. Resurrection Medical Center, 316 Ill. App. 3d 1108, 1114 (2000) ("we note that sustaining an
objection and ordering an improper comment stricken generally is
a prompt cure for any prejudicial impact that may have been
caused"). Further, unlike the cases plaintiff relies upon in her
brief, the record fails to show that Stein's testimony was an
attempt to defraud the court or that it was material to the case.
Nonetheless, even if the brief injection of that testimony
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was erroneous, it was harmless given plaintiff's failure to
establish damages resulting from SDF's representation.
b. Testimony of Plaintiff's Alleged Comparative Fault
Plaintiff also contends that the trial court erred by
denying her motion in limine to bar Stein from testifying that
plaintiff did not cooperate during trial preparations. She
argues that it was an inappropriate opinion as to comparative
fault that was not disclosed during discovery pursuant to Supreme
Court Rule 213 (Official Reports Advance Sheet No. 8 (April 17,
2002), R. 213, eff. July 1, 2002), and thus, its admission at
trial resulted in prejudice, particularly when Stein mentioned a
contempt order against her in the underlying action.
The record, however, shows that the trial court did not
allow the evidence of plaintiff's conduct to show comparative
fault. Rather, the trial court permitted it for the limited
purpose of allowing SDF to explain its legal theory for filing a
motion to extend the trial date. Plaintiff fails to cite any
cases that assert SDF could not have presented evidence
explaining its reasoning for decisions made in the handling of
plaintiff's marital dissolution.
In addition, the trial court explicitly stated that evidence
of plaintiff's conduct did not constitute evidence of comparative
fault, and it did not provide the jury with an instruction that
comparative fault could be considered. The trial court also
informed the jury to disregard Stein's testimony regarding a
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contempt order against plaintiff in the marital dissolution
action. Thus, we find no error in the trial court's ruling.
c. Testimony as to Stein's Intentions
Plaintiff further contends that the trial court erred by
denying her motion in limine to bar Stein's intentions as to what
SDF would have done if plaintiff had not dismissed the firm as
counsel. She argues that such evidence, which SDF introduced
through an affidavit signed by Stein and Stein's testimony at
trial, was speculative and violated Supreme Court Rule 213
(Official Reports Advance Sheet No. 8 (April 17, 2002), R. 213,
eff. July 1, 2002) because it contained previously undisclosed
opinions. We disagree.
We first note that plaintiff contends that Stein's affidavit
and testimony were speculative. In making that argument, she
erroneously relies on Soto v. Gaytan, 313 Ill. App. 3d 137 (2000). In Soto, 313 Ill. App. 3d at 148, the appellate court
held that the trial court improperly allowed the opinion
testimony of a treating physician as to the permanency of the
plaintiff's injuries where a substantial time had passed between
the physician's last examination of plaintiff and the date of
trial. In the instant case, however, Stein's affidavit and
testimony did not provide an opinion. Rather, as SDF contends,
the evidence provided factual considerations of plaintiff's case
based on the existing law at the time of the marital dissolution.
As such, we determine that the evidence was not speculative.
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In so ruling, we also find that Stein's testimony as to
SDF's plan for handling plaintiff's case was similar to that of
an occurrence witness. See Hernandez v. Paschen Contractors,
Inc., 335 Ill. App. 3d 936, 945-946 (2002) (trial court did not
err in allowing witness to testify as to factual observations
where witness was disclosed as a factual witness but not deposed
prior to trial and court instructed him not to provide any
opinion during his testimony). As such, unlike Clayton v. County of Cook, 346 Ill. App. 3d 367 (2004), upon which plaintiff also
relies, Stein did not provide opinion testimony for which SDF had
to disclose the bases therefor in its answers to plaintiff's
interrogatories. Consequently, SDF did not violate Supreme Court
Rule 213 where the record shows that it did disclose that Stein
would testify as to SDF's representation of plaintiff in its
October 20, 2003, answer to plaintiff's interrogatories. See
Official Reports Advance Sheet No. 8 (April 17, 2002), R.
213(f)(1), eff. July 1, 2002.
Moreover, we agree with the trial court that Stein had a
right to testify as to what SDF planned to do if plaintiff had
not discharged the firm since plaintiff repeatedly alleged in her
complaint and in court that SDF's representation rendered her
claim no longer viable. Nonetheless, we again note that even if
any error had occurred, it was harmless where defendant failed to
establish that damages resulted from SDF's representation.
4. James Feldman's Opinion Testimony
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We next address plaintiff's contention that the trial court
should have excluded portions of Feldman's testimony, because
they contained opinions that were not disclosed during his
discovery deposition or in his answers to Supreme Court Rule 213
interrogatories. Plaintiff, however, makes little effort to
develop this argument. Rather, she merely makes numerous
citations to a portion of the record that spans well over 100
pages and then concludes that, pursuant to Clayton, 346 Ill. App.
3d at 367, the trial court should have sustained her objections.
We find that plaintiff's cursory argument does not meet the
standard of Supreme Court Rule 341(e)(7) (188 Ill. 2d R.
341(e)(7)), which requires plaintiff to put forth reasons for her
argument. We need not sift through the record to find support
for plaintiff's contention. See Mikrut v. First Bank of Oak Park, 359 Ill. App. 3d 37, 52 (2005). Thus, we conclude that the
lack of development of this issue results in its waiver. Tri-G, Inc. v. Burke, Bosselman, & Weaver, 353 Ill. App. 3d 197, 220
(2004), aff'd in part & rev'd in part, Nos. 99584, 99595 cons.
(June 22, 2006) (reversing the award of punitive damages and
entering a remittitur on the compensatory damage award).
Nonetheless, given the other evidence in this case, any
error in the admission of such evidence would have been harmless.
5. Evidence of Settlement
Plaintiff's final contention as to the admission of evidence
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concerns evidence of KLF settling her marital dissolution case.
She argues that such evidence should have been excluded because
her case was no longer viable when KLF took over for SDF.
We initially note that, in making her argument, plaintiff
again attacks Feldman's testimony. We have already dismissed
that argument above, and do so here.
Plaintiff relies on Mitchell v. Schain, Fursel & Burney,
Ltd., 332 Ill. App. 3d 618 (2002), to support her argument that
her case was no longer viable. In Mitchell, this court affirmed the trial court's summary judgment for the plaintiff's original
counsel in a legal malpractice action. That ruling stemmed from
this court's determination that the plaintiff's underlying cause
of action was still viable when plaintiff terminated his original
counsel's representation. This court noted that although the
original counsel may have provided subpar representation, the
statute of limitations on the plaintiff's claim had two years
before expiration prior to the plaintiff hiring successor
counsel. Thus, this court determined that the original counsel
was not the proximate cause of damages plaintiff suffered when
her underlying cause of action expired.
Plaintiff argues that unlike the plaintiff's case in
Mitchell, her case was no longer viable after she dismissed SDF. We disagree.
Plaintiff dismissed SDF on December 28, 1994. KLF and
plaintiff then settled the marital dissolution case on February
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25, 1995. The record shows that the statute of limitations had
not expired prior to KLF's representation and that nothing
prohibited plaintiff from pursuing further litigation. KLF
possessed detailed information of Larry's financial worth to
proceed with the divorce action. Although, as plaintiff notes,
Larry had disclosed financial documents for settlement purposes
only, the documents informed KLF that he had substantial assets
worth over $4 million. In addition, KLF deposed Larry as to his
financial holdings after SDF's dismissal and KLF knew of GWC's
buy-sell agreement, which set the valuation of Larry's share in
GWC at $1.2 million. Viewing that evidence, combined with
plaintiff's testimony, we conclude that KLF had sufficient
evidence to proceed in the marital dissolution action against
Larry if plaintiff had wanted to do so. As such, the underlying
cause of action was still viable upon SDF's dismissal.
In reaching that conclusion, we note that a settlement by
successor counsel does not necessarily bar a malpractice action
against prior counsel. McCarthy v. Pedersen & Houpt, 250 Ill. App. 3d 166, 172 (1993). An attorney malpractice action should
be allowed where the plaintiff can show that she settled for a
lesser amount than she could reasonably expect absent the
malpractice. Webb v. Damisch, 362 Ill. App. 3d 1032, 1042
(2005).
Having concluded that this case was still viable after SDF's
dismissal, and considering the holdings in McCarthy and Webb, we
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find that the trial court did not err by permitting evidence of
KLF's settlement. This evidence countered plaintiff's contention
that SDF's representation was the proximate cause of her not
receiving a greater share of the marital estate. Further, the
jury would have needed to consider the amount of the settlement
in order to determine whether plaintiff settled for a lesser
amount than she reasonably could have expected absent SDF's
alleged malpractice.
III. Trial Court's Jury Instructions
We next address plaintiff's contention that the trial court
erred in ruling on jury instructions where it provided
defendant's long form of IPI Civil (1995) No. 12.04 but refused
to give plaintiff's nonpattern instruction on the issue of
viability. The decision as to which jury instructions to use
falls within the discretion of the trial court, which a reviewing
court will not disturb absent an abuse of that discretion. Stift v. Lizzardo, 362 Ill. App. 3d 1019, 1025-1026 (2005). Generally,
the standard for determining the adequacy of jury instructions is
whether they were sufficiently clear so as not to mislead the
jury, while simultaneously stating the law fairly and correctly.
Baier v. Bostitch, 243 Ill. App. 3d 195, 207 (1993). A new
trial will only be granted where the instructions were faulty and
misled the jury so as to result in prejudice to appellant.
Bostitch, 243 Ill. App. 3d at 207.
A. Issue of Foreseeability
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Plaintiff first contends that the trial court erred by
giving defendant's long form instruction on sole proximate cause,
IPI Civil (1995) No. 12.04. That instruction stated:
"More than one person may be to blame for causing an
injury. If you decide that the defendant was negligent and
that their negligence was a proximate cause of injury to the
plaintiff, it is not a defense that some third person who is not
a party to the suit may also have been to blame.
However, if you decide that the sole proximate cause
of injury to the plaintiff was the conduct of some person other
than the defendant, then your verdict should be for the
defendant." IPI Civil (1995) No. 12.04.
On appeal, plaintiff relies on Dugan v. Sears, Roebuck & Co., 113 Ill. App. 3d 740 (1983), to argue that the instruction
as given was erroneous because it did not include the concept of
foreseeability. In Dugan, this court held that a jury verdict for the defendant on a strict liability claim was not against the
manifest weight of the evidence where it found that the
intervention of a third party was the sole proximate cause of the
injury. In so ruling, this court determined that the jury could
have reasonably determined that the third party's behavior was
not so foreseeable that the defendant could have taken action to
prevent the superceding cause. Dugan, 113 Ill. App. 3d at 744.
We find, however, that Dugan provides little support for
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plaintiff's argument in this case. Although Dugan examined the
concept of foreseeability in determining whether a third party's
superceding actions constituted proximate cause, it did not do so
within the context of jury instructions. As such, we reject
plaintiff's invitation to extend the holding in Dugan so as to
require reversal in this case where the trial court provided the
jury with IPI Civil (1995) No. 12.04 without incorporating the
concept of foreseeability.
Moreover, IPI Civil (1995) No. 15.01, which the trial court
also gave the jury, provided:
"When I use the expression 'proximate cause,'
I mean any cause which, in natural or
probable sequence, produced the injury
complained of. It need not be the only
cause, nor the last or nearest cause. It is
sufficient if it concurs with some other
cause acting at the same time, which in
combination with it, causes the injury." IPI
Civil (1995) No. 15.01.
Where that instruction spoke of a cause that is "in natural or
probable sequence," it incorporated the concept of
foreseeability. Pursuant to IPI Civil (1995) No. 15.01, the jury
could have found that SDF's actions or inactions were a proximate
cause of any damages plaintiff sustained. The fact that the jury
found for SDF does not mean that the instructions were erroneous.
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As such, we find that the trial court provided the jury with
instructions that fairly and accurately stated the law and, thus,
find no reversible error.
B. Instruction on Issue of Viability
Plaintiff's second jury instruction contention is that the
trial court erred in refusing to give her nonpattern instruction
on the issue of viability. In her brief, she contends that the
instruction was "designed to instruct the jury along the lines of
the case of [Mitchell] where the issue was whether the settlement reached by the second law firm broke the chain causation as to
the alleged negligence of the first law firm." In her reply
brief, plaintiff further asserts that this court's recent ruling
in Lopez v. Clifford Law Offices, P.C., 362 Ill. App. 3d 969
(2005), which affirmed the use of the viability standard,
increases the significance of her argument.
We first note that we agree with plaintiff that the
viability standard that this court applied in Mitchell and
Clifford remains applicable in assessing an original attorney's liability in a legal malpractice case. However, those rulings
provide no support for plaintiff's argument that the trial court
erred in not giving the jury a nonpattern instruction on
viability.
A trial court is required to use pattern instructions when
applicable in a civil case after considering the facts and
prevailing law. Schultz v. Northeast Illinois Regional Commuter
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R.R. Corp., 201 Ill. 2d 260, 273 (2002). However, if a pattern
instruction does not accurately state the law, the court may
instruct the jury pursuant to a non-IPI instruction. Schultz,
201 Ill. 2d at 273.
Here, plaintiff's nonpattern instruction provided:
"There are circumstances in which the first
attorney, Defendant Schiller, Ducanto and
Fleck, could be held to be a proximate cause
of plaintiff's damages even though a
successor counsel took over the case after
the first attorney's discharge. Those
circumstances in where [sic] the defendant's
acts or omissions leave doubt about the
subsequent viability of plaintiff's claim
after the representation of the first
Fleck, Limited, ended. It is for the jury to
determine whether the defendant[']s acts or
omissions left doubt about the subsequent
viability of plaintiff's claims in the
Weisman 1994 Lake County divorce case at the
time of defendant's discharge."
We find that this instruction in large part repeated the pattern
instructions as to proximate cause, which were given, but with
the intermixing of facts from this case. Thus, the nonpattern
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instruction was unnecessary.
Further, the "left doubt" standard utilized in plaintiff's
proffered instruction was erroneous. In Mitchell, 332 Ill. App.
3d at 621, this court explained:
"We recognize that there may be circumstances
where the first attorney could be held to be
a proximate cause of plaintiff's damages
where his acts or omissions leave doubt about
the subsequent viability of plaintiff's claim
after his representation ends, such as when a
statute of limitations expires one day after
an attorney ceases representation and a new
attorney could not reasonably recognize that
problem in the time allowed."
This court then affirmed the circuit court's entry of summary
judgment for the defendant law firm utilizing the "leave doubt"
standard. See Purtill v. Hess, 111 Ill. 2d 229, 240 (1986) (summary judgment should be allowed "when the right of the moving
party is clear and free from doubt"). The instant case, however,
did not involve a summary judgment, and thus, the "leave doubt"
standard did not apply. As such, we find that the proffered
nonpattern instruction was erroneous.
For these reasons, we find no error in the trial court's
ruling.
IV. Defense Counsel's Closing Argument
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Finally, plaintiff argues that defense counsel's closing
argument denied her a fair trial. Specifically, plaintiff
references her objections to four of defense counsel's comments
during closing argument as grounds for a new trial.
In making closing arguments, attorneys are generally given
broad latitude. Lewis v. Cotton Belt Route-St. Louis
Southwestern Ry. Co., 217 Ill. App. 3d 94, 111 (1991). The trial
court has discretion in the scope of a closing argument and its
judgment as to the propriety of comments therein will not be
reversed unless they were of such character that they prevented
the opposing party from receiving a fair trial. Lewis, 217 Ill. App. 3d at 111. A reviewing court gives great deference to the
trial court due to its superior position to assess the accuracy
and effect of counsel's statements. Lauman v. Vandalia Bus
Lines, Inc., 288 Ill. App. 3d 1063, 1071 (1997).
Plaintiff first argues that defense counsel's statement as
to plaintiff's decision to present an expert witness on the
valuation of Larry's firm was erroneous because it allegedly
constituted improper commentary on Stein's credibility where
defense counsel alleged that plaintiff's decision was because
"Mr. Stein must have convinced them yesterday." Plaintiff
further argues that the statement constituted an opinion not
disclosed pursuant to Supreme Court Rule 213, and that it
misstated the evidence. As defendant argues, however, defense
counsel's statement was not made to bolster Stein's credibility
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but, rather, served as conjecture as to plaintiff's trial
decisions. Further, no violation of Rule 213 occurred as the
comment clearly was not an improper assertion of undisclosed
opinion testimony. Finally, although the record shows that
plaintiff had Goldman testify as an expert at trial, her counsel
did not even comment on his testimony in her closing argument.
Thus, we find that no prejudice resulted from defense counsel's
comment regarding plaintiff's use of an expert.
Plaintiff also argues that defense counsel misstated the law
when he stated that, pursuant to the supreme court's ruling in In re Marriage of Zells, contingent fees and goodwill are not
marital assets subject to distribution and division. However,
the holding in In re Marriage of Zells, which was the law at the
time of the underlying case, was just as defense counsel stated,
and thus, we find no error.
Plaintiff further argues that defense counsel misstated the
testimony of Kaufman by claiming that he acknowledged that the
underlying case was a "slam-dunk prove-up." We find, however,
that any error resulting from that remark was cured when the
trial court sustained plaintiff's objection and counsel admitted
his error in open court. Kass, 316 Ill. App. 3d at 1114. Plaintiff's final argument regarding closing argument was
that defense counsel "made up facts that were not in evidence"
where he argued, "[Plaintiff] has been after her husband now for
ten years. She's after her lawyers relating to her business with
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her husband. She has gone after her husband 12 times for
documents." The record, however, shows defense counsel's
statement did not "make up facts" where nearly 10 years had
passed since the original settlement, plaintiff had sued her
former counsel, and through SDF and KLF, plaintiff had requested
documents from Larry multiple times during the years of
litigation. Morever, the trial court sustained plaintiff's
objection, thereby curing any defect.
For these reasons, we find that defense counsel's closing
argument did not deprive plaintiff of a fair trial.
CONCLUSION
Accordingly, we affirm the judgment of the circuit court of
Cook County.
Affirmed.
GREIMAN and MURPHY, JJ., concur.
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