The opinion
Illinois Official Reports
Appellate Court
Brannen v. Seifert, 2013 IL App (1st) 122067
Appellate Court ADRIANA BRANNEN and STANDARD BANK AND TRUST,
Caption Under Trust No. 3265, Plaintiffs-Appellees, v. JOERG SEIFERT,
Individually, JOERG SEIFERT, LTD., P.C., and JOERG SEIFERT
LAW OFFICES, P.C., Defendants-Appellants.
District & No. First District, Second Division
Docket No. 1-12-2067
Filed November 19, 2013
Held On appeal from the judgment entered for plaintiffs in their legal
(Note: This syllabus malpractice action alleging that defendants failed to properly advise
constitutes no part of the them of their remedies in the event of a breach of an agreement for
opinion of the court but deed they entered into with a third party, the appellate court presumed
has been prepared by the that the trial court properly exercised its discretion in barring the
Reporter of Decisions affirmative defense of contributory negligence due to the
for the convenience of incompleteness of the record on appeal, and the reviewing court also
the reader.) found that the opinion of plaintiff’s legal expert that plaintiffs were not
limited to obtaining possession after the purchasers’ default, but could
have recovered both possession of the property and the arrearage due,
was properly admitted in evidence and the fact that plaintiffs
recovered the property did not preclude them from recovering money
damages; further, the judgment was reduced by $24.66 to the amount
of the damages plaintiffs sustained.
Decision Under Appeal from the Circuit Court of Cook County, No. 10-L-9276; the
Review Hon. James P. Flannery, Judge, presiding.
Judgment Affirmed as modified.
Counsel on Mulherin, Rehfeldt & Varchetto, P.C., of Wheaton (Patricia L.
Appeal Argentati and Shana A. O=Grady, of counsel), for appellants.
Robert A. Langendorf, P.C., of Chicago (Philip J. Berenz, of counsel),
for appellees.
Panel JUSTICE PIERCE delivered the judgment of the court, with opinion.
Presiding Justice Quinn and Justice Harris concurred in the judgment
and opinion.
OPINION
¶1 Plaintiffs, Adriana Brannen, the sole beneficiary of Standard Bank and Trust, trust No.
3265, and Standard Bank and Trust brought a legal malpractice action against the defendants,
Joerg Seifert, Brannen’s former attorney, and his law firms, Joerg Seifert, Ltd., P.C., and Joerg
Seifert Law Offices, P.C., alleging professional negligence in: (a) failing to advise Brannen as
to the ramifications of each available remedy under the articles of agreement for deed entered
into with a third party and (b) electing to forfeit the agreement without her consent. In March
2012, a jury found in favor of plaintiffs, awarding damages in the amount of $199,500.
Defendants raise numerous issues on appeal, including: (1) the trial court erred in (a) denying
defendants leave to file the affirmative defense of contributory negligence; (b) improperly
allowing plaintiffs’ legal expert to opine about an erroneous interpretation of Illinois law; (c)
denying defendants’ motion for a directed verdict as the third parties were insolvent and
plaintiffs had no entitlement to the damages; (d) improperly instructing the jury that plaintiffs
were entitled to a double recovery; (e) giving Illinois Pattern Jury Instructions, Civil, No. 60.01
(2006); (f) denying defendants’ special interrogatories; and (g) denying defendants’ motion for
setoff; and (2) the evidence did not support the verdict in favor of plaintiffs. For the following
reasons, we affirm as modified.
¶2 BACKGROUND
¶3 On June 30, 2005, plaintiffs entered into a contract entitled “Articles of Agreement for
Deed” (the agreement) with Mark and Theresa LeFevour (buyers), for residential property at
17390 Plainfield Road, LaGrange Highlands, Illinois (the property). The property is the corpus
of trust No. 3265, held by Standard Bank and Trust. The agreement stated that the LeFevours
agreed to buy the property for $625,000, payable in installments. The LeFevours were to pay
$102,750 of principle in installments, as follows: $12,500 at closing, $12,250 on or before
December 31, 2005, $27,000 on or before December 31, 2006; $33,000 on or before December
31, 2007, $18,000 on or before June 30, 2008 and the remaining principal balance on or before
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June 30, 2008. A similar schedule for the payment of interest at 4% was also set forth. In the
event of the buyers’ default, section 17(a) of the agreement provided the following remedies to
plaintiffs:
“A. If Buyer (1) defaults by failing to pay when due any single installment or
payment required to be made to Seller under the terms of this Agreement and such
default is not cured within ten (10) days of written notice to Buyer; or (2) defaults in the
performance of any other covenant or agreement hereof and such default is not cured
by Buyer within thirty (30) days after written notice to Buyer (unless the default
involves a dangerous condition which shall be cured forthwith); Seller may treat such a
default as a breach of this Agreement and Seller shall have any one or more of the
following remedies in addition to all other rights and remedies provided at law or in
equity: (i) maintain an action for any unpaid installments; (ii) declare the entire balance
due and maintain an action for such amount; (iii) forfeit the Buyer’s interest under this
Agreement and retain all sums paid as liquidated damages in full satisfaction of any
claim against the Buyer, and upon Buyer’s failure to surrender possession, maintain an
action for possession under the Forcible Entry and Detainer Act, subject to the rights of
the Buyer to reinstate as provided in that Act.
B. As additional security in the event of a default, Buyer assigns to Seller all unpaid
rents, and all rents which accrue thereafter, and in addition to the remedies provided
above and in conjunction with any one of them, Seller may collect any rent due and
owing and may seek the appointment of a receiver.”
Section 18 of the agreement, entitled “Default, Fees,” provided:
“B. (1) All rights and remedies given to Buyer or Seller shall be distinct, separate
and cumulative, and the use of one or more thereof shall not exclude or waive any other
right or remedy allowed by law, unless specifically waived in this Agreement; (2) no
waiver of any breach or default of either party hereunder shall be implied from any
omission by the other party to take any action or account of any similar or different
breach or default; the payment or acceptance of money after it falls due after
knowledge of any breach of this Agreement by Seller or Buyer, or after the termination
of Buyer’s right of possession hereunder, or after the service of any notice, or after
commencement of any suit, or after final judgment for possession of the premises shall
not reinstate, continue or extend this Agreement nor affect any such notice, demand or
suit or any right hereunder not herein expressly waived.”
¶4 Although the initial payment of $12,500 due at closing was paid, the LeFevours
immediately fell behind on their payments. In April 2007, roughly two years after the parties
entered into the agreement, plaintiffs retained defendants, Joerg Seifert, Joerg Seifert, Ltd.,
P.C., and Joerg Seifert Law Offices, P.C., to recover the arrearage from the LeFevours and to
regain possession of the property.
¶5 Defendants made unsuccessful attempts to collect what the LeFevours owed. The
LeFevours remained in possession and in default. Despite directives to collect past amounts
owed, plaintiffs alleged that defendants sent a letter to the LeFevours on July 18, 2007, that
declared a default and forfeiture of the agreement. Plaintiffs alleged that defendants chose the
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forfeiture remedy without consulting them or explaining the consequences of declaring a
forfeiture. The LeFevours moved out in November 2007.
¶6 Unaware that their right to collect the arrearage had been terminated when defendants
declared a forfeiture, plaintiffs retained the services of another law firm to sue the LeFevours
for breach of contract. The LeFevours moved to dismiss the breach of contract suit based on
the prior declaration of forfeiture. Despite defendants’ claim that they did not declare a
contract forfeiture, the court found a forfeiture had been declared and dismissed the breach of
contract action with prejudice.
¶7 After the breach of contract case was dismissed, plaintiffs filed the instant action against
defendants for professional negligence. Plaintiffs alleged defendants breached the standard of
care owed a legal client: (1) by declaring a forfeiture, such that the LeFevours did not have to
pay back rent and, by choosing this remedy, causing any subsequent actions for damages
against the LeFevours to be barred; (2) by failing to communicate their wrongdoings to their
client; (3) by breaching their fiduciary duties; and (4) by being otherwise careless and
negligent. The case proceeded to trial in March 2012.
¶8 At trial, Adriana Brannen testified that at the time of trial she was 85 years old and living
with her son John. She testified that she is the beneficiary of the trust at Standard Bank and
Trust containing the property. In 2005, when the agreement was signed, her son John was
helping her with the property. She never saw any checks or payments made by the LeFevours
because John handled all of the dealings with the property. The terms of the agreement were
that the LeFevours would pay the property taxes and insurance after they moved in. Adriana
testified that she ended up paying the taxes and insurance. After the LeFevours stopped paying
the installments, Adriana told John to call them because she wanted them out of the property
and wanted the money they owed. The LeFevours did not pay, so Adriana instructed John to
contact defendants.
¶9 Plaintiffs called Joerg Seifert as an adverse witness. Seifert testified that he was a licensed
attorney and the corporate representative of Joerg Seifert Limited, P.C., and Joerg Seifert Law
Offices, P.C. Seifert knew Adriana and knew that her son John was her representative. Seifert
was hired by John Brannen in this matter on April 17, 2007. John initially told Seifert that he
wanted the LeFevours to pay what they owed and would give them until the end of July to
purchase the house. If the LeFevours did not pay by the end of July, John wanted the contract
rescinded and the house placed back on the market. On April 25, 2007, Seifert sent a letter to
the LeFevours advising them of the $59,160 arrearage and demanding full payment by the end
of June 2007. Seifert sent them a follow-up letter on May 30, 2007, asking about their intention
to pay the monies owed. On June 29, 2007, Mark LeFevour responded with a proposed
payment schedule. John rejected the payment schedule. On July 3, 2007, Seifert sent a letter to
the LeFevours indicating that the new proposed payment schedule was unacceptable and
demanded payment of the full arrearage in timely monthly payments or they would be required
to buy the property. On July 18, 2007, Seifert sent a letter to the LeFevours informing them that
due to the $71,000 in arrearage, “the Seller hereby declares a default and forfeiture pursuant to
said agreement and demand is hereby made upon you to immediately vacate the premises but
in no event later than July 31, 2007.”
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¶ 10 The attorney Brannen hired to collect the arrearage sent Seifert an email on September 11,
2007, questioning Seifert’s understanding of the forfeiture remedy outlined in the agreement.
Seifert responded that he did “not think a forfeiture should be filed, but available to be filed if
that is the desired course.” Seifert also stated “[s]ince the Brannens’ primary objective was to
have Mr. Lefevour vacate the premises, I thought putting us into a position to declare forfeiture
was the best avenue and did not really think that it would get to a forfeiture and forcible.” He
went on to say, “[i]f the primary concern is to collect the moneys, then that course of action
should be taken.” Seifert explained his statement by indicating that although he had declared a
forfeiture, he had not recorded it.
¶ 11 From the time Seifert was retained until the LeFevours vacated the property, the LeFevours
did not make any payments to plaintiffs. Before he declared a forfeiture, Seifert said John
Brannen gave up getting the money owed and continued wanting to regain possession of the
property. Seifert testified that there were three options available in the event of a default and he
was “confident” that he and John discussed the options available under the agreement, as well
as the options available under the provision that allowed for “all other remedies at law and
equity.”
¶ 12 Seifert testified that he never discussed the ramifications of a forfeiture with Adriana. He
testified that “the declaration of forfeiture references the forcible entry and detainer act. And in
order to have a forcible entry and detainer action against the LeFevours, the declaration of
forfeiture would have to be filed.” Seifert testified that he never explained anything in writing
to Adriana or John about the consequences of choosing a forfeiture. Seifert testified that he
orally explained to John the consequences of a forfeiture. Seifert testified that the legal services
he provided plaintiffs satisfied the standard of care and that no negligent act or omission on his
part caused damage to plaintiffs.
¶ 13 Seifert testified that John Brannen attempted to sue the LeFevours for the arrearage after
plaintiffs had regained possession of the property. That suit was unsuccessful due to Seifert’s
declaration of forfeiture. Seifert testified that he believed, under these particular facts and
circumstances, that a declaration of forfeiture was the “only course of action” in order to get
the property back from the LeFevours without prolonged litigation.
¶ 14 Seifert then testified for the defense. After he was retained by John Brannen, Brannen told
him that the LeFevours had been living at his mother’s property for almost two years without
making payments. Seifert testified that he explained to John the default remedies available
under the agreement. He also explained the ramifications of declaring a forfeiture because “it’s
so unique.” Initially, John said his primary goal was to get the money owed under the
agreement. Later, John expressed his mother’s frustration with the matter and indicated that
she wanted the LeFevours out of the house and wanted the property back. Seifert testified that
plaintiffs wanted to put the house back on the market.
¶ 15 Mark LeFevour sent an email to Seifert and John Brannen requesting additional time to
secure financing and requesting that plaintiffs accept a lump sum to cover the arrearage and
allow them to stay until June 2008. John Brannen told Seifert that the only way his mother
would not rescind or forfeit the contract was if the LeFevours paid the total amount due. Seifert
communicated this information to Mark LeFevour.
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¶ 16 Seifert testified that he wrote a letter to Cornelius Brown, the attorney for the LeFevours,
on August 9, 2007. In this letter, Seifert explained the financial terms that would allow the
LeFevours to remain in the property. Seifert also indicated that if they did not pay, they would
have to vacate the premises immediately. Seifert testified that he generated the notice of
intention to declare forfeiture directed to the LeFevours. The copy contained in the record is
unsigned and undated and does not provide a date by which the default must be cured. The
actual declaration of forfeiture contained in the record is unsigned and dated August 20, 2007,
there is no indication it was recorded.
¶ 17 On cross-examination, Seifert testified that he received an email from John Brannen in
August 2007, requesting money from the LeFevours. Seifert took that to mean that plaintiffs
would not allow the LeFevours to remain in the property without paying the arrearage. Seifert
indicated that the notice of intent to declare forfeiture did not state that all arrearage is waived
once the contract is forfeited. Seifert testified that declaring a forfeiture is “unusual” and
agreed that it is “unusual” because the same thing can be accomplished under a forcible entry
action.
¶ 18 Attorney Jarret Raab testified that his firm filed suit on behalf of Adriana Brannen against
Mark LeFevour for breach of contract. In preparation for litigation, Raab spoke with Seifert in
early 2008, who advised him that he had threatened to forfeit the agreement but did not actually
declare a forfeiture.
¶ 19 Raab testified that the lawsuit against LeFevour had several different legal theories, but the
primary basis was a breach of contract. The breach of contract claim was dismissed when the
court ruled that the contract had been forfeited, making it no longer enforceable. Raab billed
Adriana $39,435.44 for his work on the lawsuit.
¶ 20 On cross-examination, Raab testified John acted as Adriana’s representative. Raab testified
that before he filed suit, he was not aware that there had been a declaration of forfeiture. Raab
was only aware of a document called a notice of intent to forfeit.
¶ 21 John Brannen testified that at the time of trial he was a real estate broker. After the
LeFevours expressed an interest in buying the house, Mark LeFevour drafted a contract for
purchase and presented it to John, who discussed its terms with his mother. John told Seifert
that he and his mother were interested in a contract for the sale of the house, not a lease. Seifert
redrafted the agreement, which was executed by the parties.
¶ 22 The LeFevours made a down payment of $12,500 and wrote two additional checks at the
end of the year, one for principle and one for interest. However, Mark asked John not to cash
the check for principle. The last payment received by the LeFevours was in December 2006.
The LeFevours left the property in November 2007. In total, the LeFevours paid $19,350 after
moving into the property and those payments were applied to the interest owed.
¶ 23 The total unpaid interest and principal owed by the LeFevours for the time they occupied
the residence was $144,103: $102,850 in principal and $73,203 in interest, minus the $19,350
in payments made. The LeFevours also owed $13,342.90 in property taxes and $2,594 in
insurance. John testified that he was unable to get a judgment for the balance owed because the
contract had been forfeited and they could not get any further payments from the LeFevours.
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John testified that he never instructed Seifert to forfeit the right to the principle, interest, taxes
or insurance due.
¶ 24 John contacted Seifert in April 2007 and hired him to collect the money due, instructing
Seifert to tell the LeFevours that if they were not going to pay they would be removed from the
property. John wrote to Seifert and indicated that his mother wanted to be fully paid, they
would be given 90 days to purchase the house otherwise his mother would rescind the contract.
John testified that he never told Seifert that he was giving up pursuing the amount owed or
instructed Seifert to stop seeking the monies owed. John testified that when Seifert sent a letter
to the LeFevours indicating that if they did not pay the $59,160 owed at that time, he would
take the steps necessary to declare a forfeiture. Seifert never explained that declaring a
forfeiture would result in the termination of the agreement, thereby precluding recovery of the
monies owed.
¶ 25 John received a copy of a letter sent by Seifert to the LeFevours on July 18, 2007. That
letter stated:
“Please be further advised that your continued failure to make the required payments
pursuant to the Articles of Agreement for Deed entered into by and between you and
my client has resulted in an arrearage in excess of $71,000.
As a result of the same, the seller hereby declares a default and forfeiture pursuant
to said agreement and demand is hereby made upon you to immediately vacate the
premises but in no event later than July 31, 2007. Please be further advised that in the
event the property is not vacated, my client shall take such steps necessary to seek legal
and equitable resolution and restitution as a result of your breach.”
Seifert told John the letter meant “it was an intent to forfeit, almost like a threat for them to
pay.”
¶ 26 Subsequently, John hired Raab to collect what was owed by the LeFevours. Had he known
that their rights and remedies had been lost by the forfeiture he “probably” would not have
filed suit to collect the money owed. When John inquired about the forfeiture after the lawsuit,
Seifert stated that he did not believe there was a forfeiture. After the forfeiture had been
declared, Seifert sent an email to Cornelius Brown, the LeFevours’ attorney, dated August 30,
2007, stating the “discussion on waiving the over $70,000 in deficiencies shall not be
entertained.”
¶ 27 Plaintiffs’ expert, Brendan Appel, testified that defendants breached the standard of care:
(1) because defendants failed to fully advise their clients as to the available remedies and as to
the ramifications of each remedy and allowed the clients to select which course of action to
take by not properly informing his clients; and (2) choosing an incorrect remedy without the
consent of his client especially when John Brannen expressed his mother’s intention on several
occasions to collect what was owed through the point when the LeFevours vacated the
premises. Further, he opined that the agreement and Illinois law, specifically the Forcible
Detainer and Entry Act (735 ILCS 5/9-102(a)(5) (West 2006)), provided the option for
plaintiffs to regain possession of the property without terminating their right to file a breach of
contract action to recover the arrearage.
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¶ 28 Cornelius Brown testified for the defense. When he was retained by the LeFevours in 2007,
they still lived in the property but owed arrearage under the agreement. During his negotiations
with Seifert he conveyed his clients’ desire to remain in the house and rework the payment
schedule because of their financial situation. The LeFevours had discussed the possibility of
bankruptcy with Brown.
¶ 29 Brown explained his concept of forfeiture. Brown asserted a forfeiture under a sales
contract is where the buyer forfeits the payments made toward the purchase of the property and
those payments become rent. The buyer then becomes a tenant. Under the terms of this
agreement, the sellers had three remedies in the event of the LeFevour’s default: sue for money
damages, specific performance and forfeiture.
¶ 30 Brown testified that in his opinion, Seifert’s declaration of forfeiture was the appropriate
course of action. Brown explained that pursuing the LeFevours for money damages would
have been futile because they had no money to pay the payments due. He further opined that
joint actions, actions for possession and money damages, are almost never filed. Theoretically,
plaintiffs had other rights and remedies provided at law or in equity.
¶ 31 With respect to Mark LeFevour’s solvency, Brown testified that he was aware that Mark
earned a six-figure salary and had recently paid all of his tax liens. Brown testified that he was
not aware that Mark recently paid off a $100,000 line of credit, that he has somewhere between
50 and 100 contingency fee cases pending or that he had just bought a 2012 Ford. Brown
testified that he based his decision that the LeFevours were having financial difficulty on their
debts and income. Brown testified that he used the threat of bankruptcy as leverage. He also
testified that the forcible entry and detainer statute would be applicable to the agreement.
¶ 32 Joseph Fortunato testified as a legal expert for the defense. He agreed that the agreement
provided three separate remedies in the event of the LeFevours’ default. Fortunato testified
that when a contract contains specific remedies for a breach, those contract remedies supercede
general remedies. Fortunato testified that because the LeFevours moved out after receiving the
notice of intent to declare a forfeiture, no further action was necessary. Fortunato opined that,
because the contract specified that payments made through the date of forfeiture were
considered liquidated damages, plaintiffs could not regain possession and recover the
arrearage because that would amount to a double recovery. Fortunato testified that in Illinois,
where a contract provides for different remedies, a plaintiff may select only one remedy.
¶ 33 In his opinion, Seifert’s election of the forfeiture remedy satisfied the duties and standards
of care owed to plaintiffs. Fortunato explained that selecting the forfeiture remedy was the
“most prudent” course of action because the goal was to get the property back on the market.
Therefore, defendants did not cause any damage to plaintiffs.
¶ 34 Fortunato testified as to Mark LeFevour’s solvency. Fortunato read the materials relevant
to this case and found emails from Mark indicating that he did not have the ability to make the
contractual payments. Fortunato did not see anything that indicated Mark’s representations
were false or that he had the ability to pay and was choosing not to. An attorney, when making
a decision as to what course of action to take, has to consider the opposing party’s ability to
pay. Otherwise, the plaintiff will end up with an unenforceable judgment. Fortunato opined
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that, under the facts of this case, a reasonable attorney would have elected to declare a
forfeiture and not pursue money damages from the LeFevours based on their inability to pay.
¶ 35 Fortunato stated that he did not believe that the forfeiture declaration was recorded in the
recorder’s office. He stated that once the notice of intention to declare a forfeiture was sent to
the LeFevours, they moved out and that precluded the necessity to take further action.
Fortunato testified that a suit under the Forcible Entry and Detainer Act would not be
appropriate in this case because a declaration of forfeiture and a notice of forfeiture are
required, which would have terminated plaintiffs’ rights to seek money damages under the
contract. Fortunato testified that because defendants elected forfeiture under the terms of the
agreement, which provided for liquidated damages, plaintiffs would be precluded from
seeking any other damages. Fortunato further testified that even though the agreement allows
for plaintiffs to seek other remedies in law and equity, one cannot seek damages in addition to
liquidated damage under the terms of the agreement.
¶ 36 At the conclusion of the trial, a unanimous jury returned a verdict in favor of plaintiffs
finding defendants liable for legal malpractice. The jury awarded “total damages sought” in the
amount of $199,500. Defendants posttrial motions seeking reversal or a new trial were denied.
Defendants filed a timely appeal.
¶ 37 ANALYSIS
¶ 38 Defendants raise numerous issues on appeal. We address each issue in turn.
¶ 39 Affirmative Defense
¶ 40 Defendants first argue that the trial court erred in denying their motion for leave to file an
affirmative defense of contributory negligence. Defendants acknowledge that they sought
leave to file this affirmative defense on the first day of trial, but argue that their late filing was
due to plaintiffs’ recent acknowledgment that John Brannen acted as a representative of
plaintiffs for the purposes of establishing agency.
¶ 41 Defendants sought leave to file their affirmative defense, alleging John Brannen’s
contributory negligence insofar as he failed to comply with his duty to exercise ordinary and
reasonable care in that he specifically instructed defendants to declare a forfeiture of the
installment contract, rejected any further discussion by defendants regarding the remedies
available under the contract, negligently misrepresented to defendants familiarity with the
terms and conditions of the land contract, and/or negligently misrepresented to defendants
familiarity with rescission and/or forfeiture of the land contract. Defendants alleged that any
and all of these negligent acts were a proximate cause of plaintiffs’ alleged injuries and that
those acts constituted in excess of 50% of the proximate cause of the alleged injuries.
¶ 42 The trial court’s decision to allow an amendment to the pleadings lies within the discretion
of the trial court and the decision will not be overturned absent an abuse of discretion. 1515
North Wells, L.P. v. 1513 North Wells, L.L.C., 392 Ill. App. 3d 863, 870 (2009). As plaintiffs
point out, defendants do not identify the basis of the trial court’s decision to deny their motion
for leave to file the affirmative defense of contributory negligence. Our review of the record
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shows that there is no order denying defendant’s request for leave to file an amendment; the
record only contains an order granting the plaintiff’s motion to bar the use of the affirmative
defense of contributory negligence. As a result, we do not have a sufficient basis to review the
propriety of the trial court’s ruling to determine whether it appropriately exercised its
discretion in this regard. As the movants, defendants have the burden to present a sufficiently
complete record to support a claim of error, and in the absence of such a record on appeal, it
will be presumed that the order entered by the trial court was in conformity with the law and
had a sufficient factual basis. Foutch v. O’Bryant, 99 Ill. 2d 389, 391-92 (1984). Any doubts
that may arise from the incompleteness of the record will be resolved against the appellant.
Foutch, 99 Ill. 2d at 392. Accordingly, we construe the record in this case against defendants
and assume the order was proper.
¶ 43 Expert Testimony
¶ 44 Defendants next argue the trial court improperly allowed plaintiffs’ legal expert to testify
regarding opinions that were contrary to Illinois law and lacked a proper foundation because
the opinion was not based on the law.
¶ 45 The failure to present expert testimony in a legal malpractice action is usually fatal to the
claims. Barth v. Reagan, 139 Ill. 2d 399, 408 (1990). Expert testimony is admissible if the
expert is qualified by knowledge, skill, experience, training, or education, and the testimony
would assist the jury in understanding the evidence. Snelson v. Kamm, 204 Ill. 2d 1, 24 (2003).
A witness may be qualified as an expert once it is shown that he or she possesses special
knowledge beyond that of an average person on a factual matter relevant to the litigation.
National Surety Corp. v. Fast Motor Service, Inc., 213 Ill. App. 3d 500, 508 (1991). Though
the trier of fact bears the responsibility of assessing the credibility of expert witnesses when
they offer different opinions, there is an expectation that the conflict will be resolved by
evaluating the relative merits of the experts and their opinions. LaSalle Bank, N.A. v. C/HCA
Development Corp., 384 Ill. App. 3d 806, 828 (2008) (citing Bergman v. Kelsey, 375 Ill. App.
3d 612, 626-27 (2007)). The decision of whether to admit expert testimony is within the trial
court’s sound discretion. Thompson v. Gordon, 221 Ill. 2d 414, 428 (2006).
¶ 46 Prior to trial, the trial court denied defendants motion in limine to bar the testimony of
plaintiffs’ expert, Brendan Appel. At trial, Appel testified about his background and his
familiarity with the facts and the articles of agreement at issue. Appel testified that there are
situations when forfeiture is the appropriate remedy. In this case, because the LeFevours
almost immediately defaulted, forfeiture was not the appropriate remedy. Rather, the plaintiffs
should have declared a breach of contract without declaring a forfeiture. This would have
allowed them to recover the unpaid installments from the LeFevours. Appel explained that the
contract provides, in addition to listing specific remedies, that the parties may seek remedies
“in addition to all other rights and remedies provided at law or in equity.” Because of this
clause, plaintiffs could have had both the right to possession and all amounts past due under the
contract. This contractual language, Appel testified, would allow for plaintiffs to bring a
breach of contract action seeking the amount due under the agreement without declaring a
forfeiture of the contract. After filing such an action, plaintiffs should then have filed a
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“Forcible Entry and Detainer” suit under the Illinois Forcible Entry and Detainer Act (the Act)
(735 ILCS 5/9-102(a)(5) (West 2006)). 1Appel testified that to regain possession of the property
and preserve the right to the arrearage, defendants should have:
“declare[d] a breach, do your ten-day notice. If no payment was received within ten
days, declare the buyers to be in breach of the contract. If they refused to voluntarily
vacate the property, file a forcible entry and detainer action, include a claim for
damages or reserve it for later, and recover possession of the property and sue for the
available damages to you.”
¶ 47 Defendants contend that Appel’s interpretation of the applicable law in this case was
faulty, both because Illinois law holds that a forfeiture is required to regain title on a land
contract subsequent to a breach and because double recoveries are impermissible in Illinois.
Defendants argue that Illinois law prohibits a land contract vendor from recovering both the
property and all past due amounts under the contract. Thus, the crux of defendants’ position is
that because plaintiffs regained possession of the property and retained the payments the
LeFevours made as liquidated damages, they were not also entitled to damages for the unpaid
amount due under the contract because that would amount to a double recovery for plaintiffs.
¶ 48 A plain reading of the Act shows that defendants’ contention is incorrect. Section
9-102(a)(5) of the Act provides that where the vendee is in default, the vendor may regain
possession of the property if the vendee has not yet paid the equivalent of 20% of the total
purchase price and the installment obligation does not exceed a 5-year period. 735 ILCS
5/9-102(a)(5) (West 2006). The statute’s requirements were clearly met in this case. At the
time of the LeFevours’ breach, they had paid less than 20% of the purchase price and the
contract called for installment payments for less than 5 years. Contrary to defendants’ position,
1
Section 9-102(a)(5) reads that an action may be maintained when:
“(a) The person entitled to the possession of lands or tenements may be restored
thereto under any of the following circumstances:
***
(5) When a vendee having obtained possession under a written or verbal
agreement to purchase lands or tenements, and having failed to comply with the
agreement, withholds possession thereof, after demand in writing by the person
entitled to such possession; provided, however, that any such agreement for
residential real estate as defined in the Illinois Mortgage Foreclosure Law entered
into on or after July 1, 1987 where the purchase price is to be paid in installments
over a period in excess of 5 years and the amount unpaid under the terms of the
contract at the time of the filing of a foreclosure complaint under Article XV,
including principal and due and unpaid interest, is less than 80% of the original
purchase price shall be foreclosed under the Illinois Mortgage Foreclosure Law.
This amendatory Act of 1993 is declarative of existing law.” 735 ILCS
5/9-102(a)(5) (West 2006).
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there is nothing in section 9-102(a)(5) that requires a vendor to forfeit a contract before
electing to proceed in regaining possession. In addition, there is nothing in section 9-102(a)(5)
that prohibits a vendor from first seeking past-due amounts in a breach of contract action or
seeking past due amounts and possession in a multicount action. In fact, defendants’ witness
Cornelius Brown testified to the same effect stating that actions for money and possession
were possible, just not done frequently.
¶ 49 The purpose of the Act is to provide a prompt recovery of possession where a contract
purchaser is in default yet remains in possession of the property. Campana Redevelopment,
LLC v. Ashland Group, LLC, 2013 IL App (2d) 120988, ¶ 13. Although it deals with a separate
section of the Act, we recently noted in Campana that section 9-209 allows for a landlord to
pursue both a claim for possession and a claim for unpaid rent. Id. ¶ 14; 735 ILCS 5/9-209
(West 2010). 2 The same relief is available to contract vendors. 735 ILCS 5/9-106 (West 2006)
(“a claim for rent may be joined in the complaint, and judgment may be entered for the amount
of rent found due”). Therefore, Appel did not render an opinion that was a misstatement of the
law and the trial court did not err in allowing his testimony.
¶ 50 Defendants further argue Appel’s opinion was a misstatement of the law because his
opinion informed the jury that plaintiffs were entitled to a double recovery, possession and
money damages, due to the LeFevours’ breach. Defendants argue that when the forfeiture was
declared and plaintiffs regained possession, they were then barred from suing for contract
damages. Citing Hepperly v. Bosch, 172 Ill. App. 3d 1017, 1022 (1988), defendants argue that
the seller under a real estate installment contract cannot both forfeit the contract, regain the real
estate, and sue under the contract for actual damages.
¶ 51 Defendants are correct in this limited statement of contract forfeiture law, but are incorrect
as to its applicability to this factual situation. The gist of plaintiffs’ legal malpractice claim was
that after default, plaintiffs wanted and were entitled to both possession under the Act and
money damages in a breach of contract action and, as a result of defendants’ negligence in
declaring a contract forfeiture, they were precluded from obtaining full relief. Plaintiffs sought
contract damages and were denied this relief when a separate court ruled defendants had
previously declared a forfeiture of their contract. It was this judicial finding that deprived
plaintiffs of their right to recover contract damages.
¶ 52 Plaintiffs’ breach of contract action against the LeFevours was dismissed in the circuit
court due to the defendants’ declaration of forfeiture. See Benedetti & Sons, Inc. v. O’Malley,
124 Ill. App. 3d 500 (1984). However, that is not the issue in this case. The issue here is
whether defendants were professionally negligent in declaring a forfeiture of the contract
foreclosing the recovery of contract damages, when an alternate remedy would have allowed
plaintiffs to regain possession of the property and seek recovery of the unpaid installments.
2
Section 9-209 states in relevant part that “[a] claim for rent may be joined in the complaint, and a
judgment obtained for the amount of rent found due, in any action or proceeding brought, in an action
of forcible entry and detainer for the possession of the leased premises, under this section.” 735 ILCS
5/9-209 (West 2010).
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¶ 53 Citing Bales v. Nelson, 148 Ill. App. 3d 7 (1986), defendants claim that a seller cannot evict
a purchaser under a land contract without first declaring a forfeiture of the contract. Defendants
argue that the following language from Bales is dispositive of the issue before us: “It is our
opinion that a vendor is normally not entitled to possession until after the forfeiture has been
properly declared.” Id. at 10.
¶ 54 This language is not dispositive of the issues in this case. The issue in Bales was whether
the purchaser had abandoned the property and whether the purchaser’s right of possession was
terminated absent a forcible entry and detainer action, which is not the issue here. The Bales
holding affirmed only that abandonment of property may be deduced from the factual
circumstances presented and that a vendor may properly retake possession when the conduct of
the vendee evidences the abandonment not only of the property but the contract as well. Bales,
148 Ill. App. 3d at 10. Further, the Bales court made clear this statement was only an “opinion”
of the court, offering no supporting citation. Id. The statement defendants urge this court to
rely on is judicial dictum and has no bearing on the ultimate issues and holding of this case.
Cates v. Cates, 156 Ill. 2d 76, 80 (1993) (judicial dictum is a remark or opinion of a court that
is not essential to the disposition of the cause and is not binding as authority or precedent
within stare decisis).
¶ 55 The clear language of the agreement states that the “Seller shall have any one or more of
the following remedies in addition to all other rights and remedies provided at law or in
equity.” In addition, although not mentioned by the parties here, section 18 of the agreement
provides that “[a]ll rights and remedies given to Buyer or Seller shall be distinct, separate and
cumulative, and the use of one or more thereof shall not exclude or waive any other right or
remedy allowed by law, unless specifically waived in this Agreement.” When language of a
contract is plain and unambiguous the court must determine the intent of the parties solely from
the plain language of the contract. Premier Title Co. v. Donahue, 328 Ill. App. 3d 161, 164
(2002). Clearly, the plain language of the agreement, specifically sections 17 and 18, grant
plaintiffs any and all remedies allowed by Illinois law should the LeFevours default, including
regaining possession and recovery of any arrearage owed. Indeed, Illinois has no public policy
against cumulative remedies. Crown Life Insurance Co. v. American National Bank & Trust
Co. of Chicago, 35 F.3d 296, 299 (7th Cir. 1994). Because the forfeiture terminated the
contract, plaintiffs were precluded from seeking the arrearage. Plaintiffs were entitled under
sections 17 and 18 of the agreement, and the Act, to sue for breach of contract, i.e., the
arrearage owed, and to seek possession in separate or combined actions.
¶ 56 We therefore see no reason why plaintiffs could not have recovered both the arrearage and
possession of the property, either in separate, concurrent or consecutive actions, and we find no
bar to the approach suggested by Appel. The agreement expressly allowed plaintiffs to seek
whatever remedies were available, including cumulative remedies. Consequently, we cannot
say that the court erred in allowing Appel’s opinion.
¶ 57 Directed Verdict
¶ 58 Defendants argue that the trial court erred in denying their motion for a directed verdict
because plaintiffs failed to meet their burden to show that the LeFevours were solvent and that
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the damages plaintiffs sought, and were ultimately awarded by the jury, equate to a double
recovery for which plaintiffs are not entitled.
¶ 59 Directed verdicts are to be entered only when the evidence viewed in the light most
favorable to the nonmovant is so overwhelmingly favorable to the movant that no contrary
verdict could have been reached. Pedrick v. Peoria & Eastern R.R. Co., 37 Ill. 2d 494, 510
(1967). When reviewing the denial of a directed verdict, a reviewing court will not substitute
its own judgment for that of the jury’s or attempt to reweigh the evidence or credibility of the
witnesses. Donaldson v. Central Illinois Public Service Co., 199 Ill. 2d 63, 89 (2002). A trial
court’s denial of a directed verdict as well as its denial of a motion for judgment
notwithstanding the verdict is reviewed de novo. Buckholtz v. MacNeal Hospital, 337 Ill. App.
3d 163, 167 (2003).
¶ 60 Defendants contend that a verdict should have been directed in their favor because the
evidence does not support every element of a legal malpractice cause of action. Specifically,
defendants argue that plaintiffs failed to establish at trial that the LeFevours were solvent.
¶ 61 In order to sustain an action of legal malpractice, a plaintiff must establish facts supporting
three elements: (1) the attorney owed the plaintiff a duty arising from the attorney client
relationship; (2) the attorney breached that duty; and (3) the attorney’s breach proximately
caused the plaintiff to sustain actual damages. Fox v. Seiden, 382 Ill. App. 3d 288, 294 (2008).
As to the third element, defendants contend that a plaintiff has the burden to prove that, but for
the legal malpractice, the plaintiff would have won a judgment against a solvent defendant
citing Sheppard v. Krol, 218 Ill. App. 3d 254, 259 (1991).
¶ 62 In Sheppard, plaintiff claimed the defendant attorney negligently failed to obtain a
judgment against an unknown manufacturer in a product liability action. In addition to other
pleading deficiencies, the plaintiff could not identify the manufacturer and therefore could not
prove that he would have recovered damages. Recognizing the requirement of proving a “case
within [a] case,” the court found any recovery in the underlying case would have been based on
speculation. Id. at 260. The Sheppard court did state that the plaintiff must plead and prove the
existence of a solvent defendant in the underlying claim, citing Goldzier v. Poole, 82 Ill. App.
469, 471 (1899) (see also Kohler v. Woollen, Brown & Hawkins, 15 Ill. App. 3d 455, 458
(1973)). In Goldzier, plaintiff’s underlying case was dismissed and at the time of re-filing the
underlying defendant was insolvent. The court held that damages beyond nominal damages
require the plaintiff to establish the validity of his claim and “the fact that it could in part or in
whole have been realized had the attorney not been negligent.” Goldzier, 82 Ill. App. at 472.
¶ 63 In this case, the jury was instructed that to find for plaintiff, the jury also had to find that the
LeFevours were solvent: “plaintiff would have been able to collect a judgment against the
LeFevours either in whole or in part.” Bloome v. Wiseman, Shaikewitz, McGivern, Wahl,
Flavin & Hesi, P.C., 279 Ill. App. 3d 469, 478 (1996). “The proof necessary to satisfy the
solvency requirement is distinctly different from the proof required to establish a prima facie
case. The exact nature of the proof will be dictated by the nature of the underlying case.” Id.
Proof of solvency of the underlining defendant in a specific dollar amount is not required and
the negligent attorney should bear the risk of uncertainty of proof concerning collectability.
Visvardis v. Ferleger, 375 Ill. App. 3d 719, 726 (2007).
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¶ 64 Visvardis was critical of the holding in Goldzier because of the unfairness of imposing the
burden of proving solvency on the plaintiff and its lack of precedential value. Id. We agree
with the criticism but find it unnecessary to comment further because the evidence here was
such that the jury had ample basis to find in favor of plaintiffs on the issue of solvency.
Defendants argue that the evidence shows that the LeFevours were insolvent and would have
filed for bankruptcy if the plaintiff had secured a judgment against them. Defendants rely on
the deposition testimony of Mark LeFevour who stated he was unable to make payments to
plaintiffs on the installment contract because of his financial difficulties and, if forced to make
back payments, he would have had to file bankruptcy. Defendants also point to testimony of
the LeFevours’ attorney, Cornelius Brown, who stated that he discussed bankruptcy with the
LeFevours and that due to their financial condition, bankruptcy was a serious course of action
being considered.
¶ 65 However, despite Mark LeFevour’s self-serving statements, the record shows that there
was sufficient evidence from which the jury reasonably could have concluded that the
LeFevours were solvent. Mark LeFevour was a partner in a law firm with numerous unsettled
contingent fee cases. He sold his prior home for a profit. Appel, plaintiffs’ expert witness,
testified that the fact that Mr. LeFevour had tax liens against him, which had been paid in full,
indicates that he had a high income and earning potential. Furthermore, despite the testimony
that the LeFevours were considering filing for bankruptcy, they never did file for bankruptcy
protection.
¶ 66 When evidence is presented that would allow the jury to reasonably resolve a question of
fact, a reviewing court will not substitute its judgment of that fact for the jury. Donaldson, 199
Ill. 2d at 89. Taken in the light most favorable to the plaintiffs, the record supports the jury’s
finding of fact that the plaintiffs would have realized damages from the LeFevours, in whole or
in part, but for defendants’ negligence, thereby satisfying the solvency component of the
damage element in a legal malpractice action.
¶ 67 Defendants also contend that the trial court erred in denying their motion for a directed
verdict because plaintiffs were not entitled to any additional damages, where plaintiffs had
already recovered the property from the LeFevours.
¶ 68 As we have discussed at length, under the facts and law applicable to this case, there is no
legal impediment to plaintiffs’ recovery of possession and damages proximately caused by the
default in the underlying contract case or in the instant legal malpractice case. The Act does not
specifically prohibit a return of property in addition to the recovery of an arrearage owed. The
agreement expressly provided for the plaintiffs to be able to seek out whatever remedies were
available. Consequently, as plaintiffs were entitled to the damages sought, the trial court did
not err in denying defendants’ motion for a directed verdict on this issue.
¶ 69 Jury Instructions
¶ 70 Defendants argue, in a nonspecific fashion, that “the jury instructions improperly and
inaccurately instructed the jury that the plaintiff [sic] was entitled to both a return of the
property and recovery of money damages, amounting to a double recovery.” Defendants repeat
the argument that under Illinois law the only way the plaintiffs could have recovered the
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property, was to have forfeited the contract with the LeFevours. We have discussed this
contention previously and a review of the record shows the jury was not instructed in this
manner and, therefore, this argument is without merit.
¶ 71 Before we address the merits of defendants’ argument, we note that defendants argue
generally that the “jury instructions” improperly and inaccurately instructed the jury.
However, defendants do not identify which specific jury instructions they are complaining of
and provide no citations to the record. The failure to substantiate factual assertions with
appropriate citation to the record warrants the dismissal of an appeal because it makes it “next
to impossible for this court to assess whether the facts as presented *** are an accurate and fair
portrayal of the events in this case.” Collier v. Avis Rent A Car System, Inc., 248 Ill. App. 3d
1088, 1095 (1993). Consequently, to the extent defendants generally complain of the
inadequacies of the jury instructions by making nonspecific and sweeping conclusions, we
decline to address the merits of defendants’ argument.
¶ 72 Defendants do specifically argue that the trial court erred in instructing the jury using
Illinois Pattern Jury Instructions, Civil, No. 60.01 (2006) (hereinafter IPI Civil (2006) No.
60.01) because there had been no testimony or evidence as to any violation of any rule, or
guidance to the jury on how the relevant rules applied. Further, defendants contend that
because the attorney disciplinary rules do not have the force of law these instructions were
improper.
¶ 73 The trial court allowed, over the defendants’ objection, two of plaintiffs’ instructions based
on IPI Civil (2006) No. 60.01, citing the Illinois Rules of Professional Conduct. The following
instructions were read to the jury:
“There was in force in the State of Illinois at the time of the occurrence in question
a certain Supreme Court Rule of Professional Conduct which provided that, a lawyer
shall abide by a client’s decisions concerning the objectives of representation and shall
consult with the client as to the means by which they are to be pursued.
If you decide that the defendants violated the Supreme Court Rule of Professional
Conduct on the occasion in question, you may consider that fact together with all of the
other facts to what extent, if any, defendants were professionally negligent before and
at the time of the occurrence.
There was in force in the State of Illinois at the time of the occurrence in question a
certain Supreme Court Rule of Professional Conduct which provided that, a lawyer
shall explain a matter to the extent reasonably necessary to permit the client to make
informed decisions regarding the representation.
If you decide that the defendants violated the Supreme Court Rule of Professional
Conduct on the occasion in question, you may consider that fact together with all of the
other facts to what extent, if any, defendants were professionally negligent before and
at the time of the occurrence.”
¶ 74 The decision to provide a particular jury instruction is within the sound discretion of the
trial court and will not be reversed absent a clear abuse of discretion. Matarese v. Buka, 386 Ill.
App. 3d 176, 178 (2008). The standard for deciding whether a trial court has abused its
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discretion allowing a jury instruction is whether the instruction, taken as a whole, fairly, fully,
and comprehensively apprised the jury of the relevant legal principles and is an accurate
statement of the law. Id.
¶ 75 It is well established that jury instructions may quote portions of statutes and ordinances
when the jury has heard evidence that the quoted portions of the statute or ordinance have been
violated and the party tendering the instruction alleges the violation breached the duty owed to
him by defendant. Mayol v. Summers, Watson & Kimpel, 223 Ill. App. 3d 794, 810 (1992).
Because legal malpractice actions involve conduct failing to adhere to certain minimum
standards, ethical standards are relevant considerations. Rogers v. Robson, Masters, Ryan,
Brumund & Belom, 74 Ill. App. 3d 467, 472-73 (1979); Nagy v. Beckley, 218 Ill. App. 3d 875,
879 (1991). Like most statutes and ordinances, attorney disciplinary rules establish minimum
standards of conduct and are intended to protect the general public. Mayol, 223 Ill. App. 3d at
810. Thus, in a legal malpractice action, juries may properly consider standards of professional
ethics pertaining to attorneys because such suits involve allegations of conduct that does not
conform to minimum professional standards. Id.
¶ 76 In this case, plaintiffs clearly complained of attorney negligence that caused them damages
by not being able to recover contract damages due to defendants declaring a contract forfeiture.
Clearly, plaintiffs advanced an action sounding in tort and they alleged and proved more than
the failure to adhere to the rules of professional conduct.
¶ 77 Appel testified as to the standard of care defendants owed plaintiffs and that such standard
of care was breached. He did not cite specifically to the particular section of the Illinois Rules
of Professional Conduct but his testimony fairly summarized the rules that were contained in
the court’s instructions. Instructions concerning violations of statutes may be given when
evidence is adequate to support a finding that a violation occurred. Harris v. Day, 115 Ill. App.
3d 762, 773 (1983); Mayol, 223 Ill. App. 3d at 810. Here, we find that there was more than
ample support in the record to give the jury these instructions regarding the standards of
professional conduct. These instructions did not misinform the jury. The instructions did not
unduly emphasize the rules because the jury was instructed that if they found defendants did
not adhere to a rule it was permissive to consider that finding along with all the other evidence
in determining whether, if at all, defendants were professionally negligent. These instructions
did not prejudice defendants or prevent them from receiving a fair trial.
¶ 78 Special Interrogatory
¶ 79 Next, defendants contend that after permitting IPI Civil (2006) No. 60.01, the trial court
should have allowed defendants’ special interrogatory to the jury regarding the Rules of
Professional Conduct. They contend the court committed reversible error in refusing the
proposed special interrogatory.
¶ 80 Section 2-1108 of the Illinois Code of Civil Procedure provides that special interrogatories
are “required on request of any party, to find specially upon any material question or questions
of fact submitted to the jury in writing.” 735 ILCS 5/2-1108 (West 2006). We review the
submitting or refusing of a special interrogatory de novo. Id.
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¶ 81 The purpose of a special interrogatory is not to instruct the jury, but to serve as a check on
the jury’s deliberation and to enable the jury to determine one or more specific issues of
ultimate fact. Simmons v. Garces, 198 Ill. 2d 541, 555 (2002). A trial court has discretion to
refuse to submit a special interrogatory to the jury that is not in proper form. Curatola v.
Village of Niles, 324 Ill. App. 3d 954, 960 (2001); Thomas v. Johnson Controls, Inc., 344 Ill.
App. 3d 1026, 1033 (2003). To be in proper form, a special interrogatory should consist of a
single, direct question, should not be repetitive, misleading, confusing or ambiguous and
should use the same language contained in the jury instruction. Id. In addition, it should relate
to an ultimate question of fact upon which the rights of the parties depend, and an answer
responsive to it must be inconsistent with a general verdict. Id. A special interrogatory’s
response is inconsistent with a general verdict only where it is “clearly and absolutely
irreconcilable with the general verdict.” (Internal quotation marks omitted.) Simmons, 198 Ill.
2d at 555-56. A trial court has no discretion to reject a special interrogatory that is submitted in
proper form, but may reject those they find to be improper. McGovern v. Kaneshiro, 337 Ill.
App. 3d 24, 30 (2003). Refusal to submit a proper special interrogatory to the jury is reversible
error, so long as such an error is not harmless. Van Hattem v. K mart Corp., 308 Ill. App. 3d
121, 132 (1999).
¶ 82 The special interrogatory submitted by defendants, and refused by the trial court, reads as
follows: “If you find in favor of the Plaintiff, and against the Defendant, was it based solely on
the Rules of Professional Conduct.”
¶ 83 With respect to the Rules of Professional Conduct, the jury was instructed as follows:
“There was in force in the State of Illinois at the time of the occurrence in question
a certain Supreme Court Rule of Professional Conduct which provided that, a lawyer
shall abide by a client’s decisions concerning the objectives of representation and shall
consult with the client as to the means by which they are to be pursued.
If you decide that the defendants violated the Supreme Court Rule of Professional
Conduct on the occasion in question, you may consider that fact together with all of the
other facts to what extent, if any, defendants were professionally negligent before and
at the time of the occurrence.
There was in force in the State of Illinois at the time of the occurrence in question a
certain Supreme Court Rule of Professional Conduct which provided that, a lawyer
shall explain a matter to the extent reasonably necessary to permit the client to make
informed decisions regarding the representation.
If you decide that the defendants violated the Supreme Court Rule of Professional
Conduct on the occasion in question, you may consider that fact together with all of the
other facts to what extent, if any, defendants were professionally negligent before and
at the time of the occurrence.”
After deliberating, the jury returned general verdict form A, which states: “We, the jury, find
for Adriana Brannen, and Standard Bank and Trust, under Trust No. 3265, and against Joerg
Seifert, Joerg Seifert Ltd. P.C., and Joerg Seifert Law Officers, P.C.”
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¶ 84 We do not discern the ultimate issue of fact to which this question relates. This is a
professional negligence case, not a proceeding to determine “solely” whether defendants
violated a rule of professional conduct. As such, the jury was instructed that, in order to find in
favor of plaintiffs, it must find by a preponderance of the evidence that defendants owed
plaintiffs a duty, breached that duty, the breach of duty proximately caused plaintiffs injury,
plaintiffs incurred damages and, finally, it had to find the LeFevours were solvent. Thus, the
special interrogatory was not in proper form because an affirmative or negative answer to this
special interrogatory would not test the general verdict. According to the expert testimony, a
breach of either rule, or both, would be a breach of the standard of care sufficient to satisfy the
proof necessary to find in favor of plaintiffs on that element of claim and, therefore, the special
interrogatory would be consistent with the general verdict. Thomas v. Johnson Controls, Inc.,
344 Ill. App. 3d 1026, 1033 (2003).
¶ 85 The proposed interrogatory is not dispositive of an ultimate issue of fact such that it would
independently control the verdict. See Snyder v. Curran Township, 281 Ill. App. 3d 56, 59-61
(1996). Whether defendants violated the Rules of Professional Conduct was not an ultimate
issue in this case. The ultimate issues in this case involved the elements of duty, breach of duty,
proximately caused damages and solvency. Proximate cause, damages and solvency are
questions of fact that are not contemplated by the special interrogatory. While an affirmative
answer to the special interrogatory may be helpful to understand the reasoning behind the
jury’s verdict, it would not be inconsistent with this verdict. Instead, the special interrogatory
would only serve to bolster defendants failed theory that a violation of professional rules
cannot form the basis of an independent cause of action, a theory that is not applicable in this
professional negligence case. The trial court correctly denied the special interrogatory and
defendants’ attempt to reframe the nature of this case.
¶ 86 A special interrogatory is proper when it consists of a single, direct question that is
dispositive of an issue in the case such that it would, independently, control the verdict.
Northern Trust Co. v. University of Chicago Hospitals & Clinics, 355 Ill. App. 3d 230, 251
(2004). A special interrogatory may focus on only one element of a claim, but only if that
element is dispositive of the claim at issue. Where there are two alternate theories of
negligence and the special interrogatory does not differentiate between the two, the special
interrogatory is not in proper form. Id.
¶ 87 Here, there was testimony concerning other acts and omissions of defendants that could
support a finding of professional negligence, for example, selection of the wrong remedy,
which was outside the scope of the special interrogatory, making it not in proper form. In
addition, the facts surrounding the conduct of the parties in the course of defendants’
representation were disputed and the jury was instructed to consider all the evidence, including
expert testimony dealing with the standard of care. The proposed interrogatory did not
delineate between the two distinct rules and therefore an answer to this interrogatory would not
have been irreconcilable with the general verdict.
¶ 88 After a review of all the instructions in the context of the facts and issues presented to the
jury, we find the proposed special interrogatory was not in proper form and would not have
challenged the general verdict in favor of the plaintiffs. Plaintiffs pursued a proper, viable legal
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negligence lawsuit not dependent solely on a breach of professional rules. Accordingly, we
find the trial court correctly refused the special interrogatory.
¶ 89 Setoff
¶ 90 Defendants contend that the trial court erred in denying their posttrial motion for a setoff of
the jury award based on repairs to the property made by the LeFevours, totaling $15,000 to
$20,000, and other itemized payments made to plaintiffs by the LeFevours.
¶ 91 Plaintiffs argue that defendants have waived this issue and should be barred from raising a
setoff claim because defendants failed to preserve the issue with an objection at trial.
¶ 92 The Illinois Supreme Court has established two distinct meanings for the term “setoff.”
Thornton v. Garcini, 237 Ill. 2d 100, 113 (2009). First, a setoff may refer to a situation when a
defendant has a distinct cause of action against the same plaintiff who filed suit against him,
which must be raised in the pleadings. Id. Second, a setoff may refer to a defendant’s request
for a reduction of the damage award because a third party has already compensated the plaintiff
for the same loss. Id.
¶ 93 In this case, defendants are referring to the second category of setoff. A defendant’s request
for setoff to reflect amounts paid by a third party seeks not to modify, but rather to satisfy the
judgment entered by the trial court. Star Charters v. Figueroa, 192 Ill. 2d 47, 48 (2000). Such
a request does not arise as a result of trial, but is instead in the nature of a supplementary or
enforcement proceeding and is not a motion directed against the judgment. Id. Therefore, it is
an issue that need not be raised at trial or in a posttrial motion. Id. Consequently, the fact that
defendants did not object at trial does not prevent us from addressing the issue here.
¶ 94 Defendants seek a setoff of the jury award for two separate categories of payments made by
the LeFevours: (1) the amount the LeFevours paid to improve and/or repair the property,
estimated to be between $15,000 and $20,000; and (2) the $34,096 actually paid by the
LeFevours pursuant to the contract. Plaintiffs disagree and contend that defendants’ setoff
claims are too speculative and are merely attempts to chip away at a unanimous jury award.
¶ 95 The right to a setoff is derived from either a contractual right or equity. Fisher v. State Bank
of Annawan, 163 Ill. 2d 177, 181 (1994). Without having a contractual right, there is no
inherent right to setoff in equity; rather, equitable setoff was conceived as a limited remedy.
Bank of Chicago-Garfield Ridge v. Park National Bank, 237 Ill. App. 3d 1085, 1091 (1992).
To give rise to a right of setoff in equity, the indebtedness must be certain and already reduced
to a precise figure without a need for the intervention of a court or jury to estimate it. Faber,
Coe & Gregg, Inc. v. First National Bank of Chicago, 107 Ill. App. 2d 204, 209 (1969).
¶ 96 We find that the defendants are not entitled to a setoff of the jury award in the amount of
the expenditures made by the LeFevours in improving and/or repairing the property because
the amount claimed is an estimate and not a precise figure. Even if the amount expended by the
LeFevours were a precise amount, such an amount would be an improper setoff against this
judgment absent contractual language allowing otherwise. The correct manner of ascertaining
the benefit of these alleged improvements is not by a calculation of the amount spent by the
LeFevours, but the amount these improvements increased the value of the property, if any. No
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such evidence has been submitted and due to the passage of time since the transfer of
possession of the property, any attempt to calculate an increase in value of the property, if any,
would be speculative. Further, the claimed damages were for specific contractual damages that
did not relate to property improvements: principal and interest installment payments,
insurance, real estate taxes and attorney fees. Furthermore, defendants’ expert testified that
plaintiffs were entitled to keep the improvements made by the LeFevours. Therefore, because
these expenditures do not relate to the same loss claimed by the plaintiffs, we find there is no
basis to apply a setoff to the jury award for improvements made. Thornton v. Garcini, 237 Ill.
2d 100, 113 (2010).
¶ 97 We similarly reject defendants’ contention that the $34,096 the LeFevours actually paid
pursuant to the agreement entitles them to have such amount set off from the damage award
because a review of the record reasonably shows these payments were essentially accounted
for in plaintiffs’ requested damages.
¶ 98 Defendants argue, and the record shows, evidence of the specific payments made to
plaintiffs by the LeFevours amounting to $34,196. Our review of the record shows these
payments were credited against the amount due under the contract. Pursuant to the agreement,
the total principal payment the LeFevours were obligated to pay was $102,750. John Brannen
testified that he received an initial payment of $12,500. This would reduce the principal
balance due to $90,250. Brannen testified that the total interest due was $73,203 and he
credited the LeFevours with paying $19,350. This would reduce the interest balance due to
$53,853. Therefore, after these credits, the principle and interest due was $144,103, the same
amount requested of the jury by plaintiff in closing argument.
¶ 99 Further, Brannen credited the property tax amount due by $2,333.17 paid by the
LeFevours, leaving a balance of $13,342.90. He further reduced the amount due for
homeowners’ insurance by $1,272, 3 leaving an unpaid balance of $2,594. Brannen’s testimony
clearly showed he credited the LeFevours with making total payments in the amount of
$35,455.17, or $1,359.17 more than the $34,096 defendants claim as a setoff. Defendants have
not shown they are entitled to a setoff.
¶ 100 Accordingly, we affirm the trial court’s denial of defendants’ posttrial motion seeking a
setoff of the jury award based on value of the repairs made by the LeFevours or for actual
payments made to plaintiffs by the LeFevours.
¶ 101 Judgment Notwithstanding the Verdict
¶ 102 Defendants’ last argument is that the trial court erred in denying their motion for judgment
notwithstanding the verdict because the evidence did not support the verdict. Specifically, the
defendants contend that the trial court should have entered judgment in favor of the defendants
3
The record shows a payment of $1,272 made to plaintiffs on June 6, 2006. According to Brannen,
all payments made were applied to reduce the total interest owed. However, we note that payment was
the same amount that Brannen testified the LeFevours paid toward their homeowners’ insurance
premium. Nevertheless, the payment of $1,272 was clearly included in calculating the total payments,
$19,350, made by the LeFevours during the time they occupied the residence.
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because the jury did not itemize any of the individual costs and/or damages awarded, but
simply returned a lump sum award of $199,500. Second, the defendants again argue the
sufficiency of the evidence relating to the solvency of the LeFevours.
¶ 103 A motion for judgment notwithstanding the verdict raises a question of law and asserts that
even when all of the evidence is considered in the light most favorable to the party opposing
the motion, there is a total failure or lack of evidence to prove a necessary element of the
opposing party’s case. In determining whether defendants are entitled to judgment
notwithstanding the verdict, the question is whether all of the evidence, when viewed most
favorably to plaintiffs, so overwhelmingly favors the movant that a contrary verdict could
never stand. Santos v. Chicago Transit Authority, 198 Ill. App. 3d 866, 868 (1990). When a
jury returns a verdict that is not supported by the evidence, it is the duty of the trial court and
appellate court to act as a check on the jury and reject the verdict. Joseph v. Schwartz, 96 Ill.
App. 3d 749, 755 (1981). However, a court is to substitute its judgment for that of the jury only
in cases where failure to do so would result in great injustice. Tozzi v. Testa, 97 Ill. App. 3d
832, 835 (1981). A trial court’s ruling on a motion for judgment notwithstanding the verdict is
subject to a de novo standard of review on appeal. Lawlor v. North American Corp. of Illinois,
2012 IL 112530, ¶ 37.
¶ 104 Defendants take issue with the verdict form filled out by the jury because the jury did not
itemize the individual damages. The jury was clear on the verdict form that it was awarding
plaintiffs the total damages sought. While a verdict is ordinarily final so far as the jury which
rendered it is concerned, it may be modified by a judge through remittiturs or additurs. In re
Marriage of Davies, 95 Ill. 2d 474, 479 (1983).
¶ 105 Here, the jury was instructed that if it found in favor of the plaintiffs it was to complete jury
verdict form A for the purpose of calculating the damages awarded. Verdict form A provided
four subcategories to itemize the damages awarded by the jury: (1) unpaid installments and
interest on the installment sales contract; (2) insurance costs incurred; (3) taxes incurred; and
(4) legal and court expenses incurred and paid to Shaw & Guissis, Attorney Raab’s law firm.
Defendants’ issue is that instead of itemizing the damages on verdict form A, the jury only
filled out the sum of total damages section of the form by inserting a numerical amount of
$199,500. Though the jury did not itemize each category of the award, it is clear from the form
that the jury was awarding plaintiffs the total amount sought on each category. The jury twice
wrote in parentheses next to the $199,500 award the statement “total damages sought” by the
plaintiffs. In plaintiffs’ closing argument, counsel requested total damages of $199,500 and
itemized them as follows:
Unpaid installments and interest
Owed on the Installment Sales Contract: $144,103
Insurance costs Incurred: $2,594
Taxes Incurred: $13,342.90
Legal and Court expenses Incurred: $39,435.44
$199,475.34 (total amount)
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¶ 106 The jury award to the plaintiffs was $199,500 or $24.66 in excess of the itemized actual
damages. Therefore, we exercise our authority under Illinois Supreme Court Rule 366(a)(5)
(eff. Feb. 1, 1994) and reduce the damages awarded to plaintiffs by $24.66, in order to equal
the “total damages sought” and the actual damages lost by plaintiffs, as intended by the jury.
¶ 107 Next, the defendants reassert that, as a matter of law, the plaintiffs failed to prove all the
elements of a legal malpractice cause of action by failing to plead and prove that the LeFevours
would have been solvent defendants in the underlying claim. Sheppard v. Krol, 218 Ill. App.
3d 254, 259 (1991). A posttrial motion for judgment notwithstanding the verdict is appropriate
to challenge the plaintiffs’ failure to prove an element of his case. Kennan v. Checker Taxi Co.,
250 Ill. App. 3d 155, 160 (1993). As they did in their directed verdict argument, defendants are
again contending that the record fails to establish the solvency of the underlying defendant
because the LeFevours were seriously considering filing bankruptcy had a judgment for the
arrearage been entered against them. Sheppard, 218 Ill. App. 3d at 259.
¶ 108 As previously discussed, we find that there is sufficient evidence in the record to support
the jury finding that the LeFevours were solvent because a judgment against them could have
been collected either in whole or in part, but for defendant’s legal malpractice. In this case, the
testimony concerning the financial condition of Mr. LeFevour was thoroughly discussed and
the jury had more than sufficient evidence to make a determination of solvency such that the
jury verdict will not be set aside.
¶ 109 The question of the LeFevours’ solvency was a question of fact, which the jury was asked
to resolve. We note that defendants state in a footnote that they objected to the court’s
instruction defining solvency but do not further argue the point or present authority on the
issue. Therefore, they have forfeited their argument.
¶ 110 Evidence was introduced at trial by both parties on this issue. The record shows evidence to
support the LeFevours’ solvency through: (1) the plaintiffs’ expert witness’s testimony about
Mr. LeFevour’s high earning potential as a lawyer; (2) Mr. LeFevour’s testimony of being able
to satisfy his significant tax debts with a payment plan; and (3) the fact that the LeFevours did
not resort to filing for bankruptcy protection. We reject the defendants’ contention that because
the record shows testimony by Mr. LeFevour and his attorney that bankruptcy was being
“strongly considered” if a judgment was entered against him, the jury improperly resolved this
issue of fact in favor of the plaintiffs, as a matter of law. The fact that bankruptcy may have
been a real possibility for the LeFevours is not, alone, enough to nullify this verdict.
Bankruptcy is a possibility for many people facing an adverse judgment but it does not follow
conclusively that it will occur. It is relatively easy to state, in hindsight, that one would not or
could not pay all or part of a judgment. That is pure conjecture. It is quite different to make a
determination, based on sworn testimony concerning the facts existing at the time in question,
that the underlying defendant could withstand all or part of a judgment. This is a classic
function of a jury to weigh the evidence and judge the credibility of the witnesses on the issue
of solvency. We cannot say this jury unreasonably concluded plaintiffs proved each element of
a legal negligence claim. Based on the record, the jury reasonably could have determined that
the LeFevours were solvent at the relevant time.
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¶ 111 Therefore, we find that the trial court properly denied defendants posttrial motion for
judgment notwithstanding the verdict, but reduce the award by $24.66 to represent the actual
amount of damages sustained by the plaintiffs.
¶ 112 CONCLUSION
¶ 113 Based on the foregoing, the judgment of the circuit court is affirmed as modified.
¶ 114 Affirmed as modified.
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