# Oral argument — Mazutis v. Karlin > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/argument%3A83349 ## Record - **Collection:** Oral argument - **Document type:** Oral argument - **Published:** October 26, 2022 ## Text Good afternoon, ladies and gentlemen. I am Justice Lillia Puchinsky and you're in the first division of the First District of the Illinois Appellate Court. Today we're hearing Appeal Number 1210942. And normally on these Zooms, try to give everybody 10 or 15 minutes. The appellate reserves a couple of minutes for rebuttal. We may ask you some questions during that. But I assure you that we have read the record. We have read the briefs. We're familiar with the arguments. So we suggest always that you start with your best argument first and then work your way down if you have time. So with that in mind, if you could introduce yourselves, please. Luke Kasson Good afternoon, Your Honor. Luke Kasson for the appellant, Adriana Mazzutis. Adriana Mazzutis Thank you. Victor Pioli Good afternoon, Your Honors. Victor Pioli, P-I-O-L-I, here on behalf of the appellees, Lawrence Karlin, Warren Ruppell, and the law firm of Ruppell Wineter. Adriana Mazzutis Okay, that's great. Mr. Kasson, please. Luke Kasson Thank you, Your Honor. And good afternoon. May it please the court. I'm Luke Kasson. I am counsel for the appellant, Adriana Mazzutis. And we're before the court today to discuss the dismissal of Ms. Mazzutis' first amended complaint in the trial court based on two principles, the section 603, for failure to concisely state a claim, and 615. What I want to focus on with Your Honors today are just a few matters. I believe that the matters have been fully briefed adequately and are before Your Honors. The first and foremost is the standard of review. The parties appear to be at odds as to what the appropriate standard of review is. I want to discuss that just briefly and why that's important in this case. We believe that the appropriate standard of review is de novo. As we explain in our brief in some detail, why this particular case, but this category of cases, generally should be I would concede with Your Honors that there are a number of cases that suggest that the appropriate 603 standard of review is an abuse of discretion. However, what those cases and other cases that address this issue clearly state is where the appellate court sits in as good a position as the trial court. There is no reason and no basis on which the appellate court or the reviewing court should cede its power of review to the statements or positions of the trial court. This is that case. Specifically, what this court has before it is a complaint in which it sits in equal position. There was no testimony. There was no factual development. There's no discovery in this case. What we have is simply the first amended complaint on which the court rendered its decision. Secondly, what this court has is the court's decision. The trial court issued a written ruling on both of these issues under 603 and under 615. There's no reasoned basis on which this court should defer to the trial court in determining the outcome of this case. Is there a case that has adopted your suggestion that we use the Benovo Review under 603? Yes, Your Honor. I've cited that case in my brief. The Schulte case addresses that specifically. Most of the cases go the other way. Most of the cases do. One of the interesting things about some of those cases, and I can't speak categorically to all of those cases, but one of the cases cited by the appellee in its brief is Cable America versus Pace. Now, that's a little confusing as far as the application of the appropriate standard. In that case, specifically, the parties agreed to what the standard of review was. The court didn't find that the standard of review should have or even analyze that it should be something else. But what Schulte does, and Schulte was decided after Cable America, in Schulte, those facts are much more on point to where we are today. Looking at those cases as a category, Your Honor, what we find is the simple principle of appellate review. If the court of review stands in the same position as the trial court, there is no reason to cede that authority to review. It is a fresh review based on what was before the trial court. Here, you have all of that there. There are other of those cases that find that the abuse of discretion standard, there were instances in those cases as a general category where the trial court was making a decision. The Schulte case lays this out very nicely. But beyond those two cases, the vast majority of cases through the decades say something different. You're asking us to follow the minority view, I guess. I would. And where would that stop? I mean, if that's the way we should do it, then I guess on everything that comes before us when we can make that kind of decision that we're in the same position to apply the law that whatever standard may have been before, it always should be de novo. It should be de novo. And that's precisely what we're asking. We're asking this court to not necessarily take it. I understand what you're asking. If we don't agree with you, do you lose? I don't think we necessarily lose, but certainly... That's a question. Let's say you lose on that argument. All right, now where are you? That's my question. Well, if we lose on that argument, then that makes the 603 analysis much different. Because you are deferring to the trial court without the opportunity to analyze whether the trial court was correct in its decision. Okay, I understand. I mean, you're arguing the point. I'm just saying, let's assume. I'm not saying we decided. I don't know what my colleagues may say. And I'm not saying that I decided. But I'm trying to find out the other side of the coin. That is, use it in your first argument. And that's the procedure. Give us one of your best arguments. And so it's very important to you that we use a de novo review on the 603, which is a major portion of the appeal. Okay, I understand it. Okay. But what would happen if we don't do that? How does that affect you going forward on this case? That doesn't leave you much room, I assume. That's what you're saying. That's precisely what I'm saying. And I think the example would be the lower court, the trial court, made a determination that there are four claims made in count one, or two claims made in count two, or two other claims in count two. It seems overly deferential to say this court can't look at that and say, the trial court was wrong. Okay, so let me accept what you said. Let's look de novo at count, let's say two. Now, I look at the title of count two. And I've read your series of complaints, but this is the one that's happening. It says legal malpractice regarding breach of fiduciary duties for conflicts of interest. Now, what does this count? Is it a legal malpractice count? Or is it a breach of fiduciary? Well, excellent question, Your Honor. It is a legal malpractice count. And it very much so is everything legal malpractice and breach of fiduciary duty. And you know that they're they're very different claims. And if you look back at that case law, you can't make those claims together. I mean, that's what the cases say. That's what the cases say. Yes, so you agree. So I mean, if it's a breach of fiduciary duty, that's a breach of fiduciary duty. You know, yeah. I mean, if it's a legal malpractice, it's a legal malpractice. And you're you're kind of in the in two and three, you're mushing them together. And, and then, you know, that's just the start. And I'm trying to figure out what you say is regarding breach of fiduciary duties. Well, you don't need a legal malpractice. If it's a fiduciary duty, it's a separate, it could be separate. But it's all one in the same. So you're saying here is one in the same. And I'm not quite sure what you're saying. And why you said it this way. I mean, you end request entry of an order that is a defendant's negligence or malpractice is the sole and proximate cause of damage or suffering. So that means your, your claim is legal malpractice. You're not talking, you're not talking about, but you're talking about fiduciary duty. I don't understand why Okay, so let me address that why why it's a single count in a single theory of recovery. The and that we believe that the test is not the use of the words, but the the claims made, I want to address one point that you just made your honor. The fiduciary breach of fiduciary duty count a claim, a theory on which recovery can be sought is different than a legal malpractice. Now where a legal malpractice claim and a breach of fiduciary duty claim are based on the same operative set of facts, they merge. That much is clear in the law. It's one has to when can be dismissed outright, usually the the breach of fiduciary duty claim. What's important in saying that alone, the breach of fiduciary duty, those acts that support a breach of fiduciary duty claim, which cannot exist in the in the environment of of both a breach of fiduciary duty and a legal malpractice claim can be the predicate acts for the legal malpractice. In fact, both whole and rice, they elucidate this quite well, is that there are where there are multiple acts of of malpractice, those can form the the a single theory of legal malpractice. Now, when speaking of a breach of fiduciary duty or a fiduciary duty period, the court has said a breach of fiduciary duty is in a in a in and of itself, an act of malpractice. Specifically, metric suggests that all breaches of fiduciary duty is malpractice. So they're not exclusive of one another. And the the appellees and quite frankly, the trial court simply adopted this without analysis about what those breaches or what those claims were and what the theory of liability was. Now, there is a theory of liability for each of count one, two, and three, all coming under a claim of meta of legal malpractice. They generate from different series of acts, but the series of acts do not for foreclose a plaintiff from bringing that claim. So that much is absolutely clear in the jurisprudence in this area. So I just just make sure I understand. Those claims, then are all legal malpractice claims. They are underlying facts, like in count to have to do with conflicts of interest. Correct. Okay, so let's but okay, so the next problem would be, where are the facts that set forth the legal malpractice claim here? It seems that you have a lot of conclusions. But where are the facts and particularly considering that you've already had discovery in my summer judgment in the earlier case? So it it's very, I'm trying to figure out what what I mean, explain count to tell me in simply tell me what this claim is about. How to is is will relates to a a legal malpractice by the defendants, the appellees, wherein they they took actions outside of the the conduct of litigation that damaged the the plaintiff. That's as distinctly as I can. Okay, so actions. All right. Now, let's then what actions did they take? Specifically, because when I read this again, here, I'm just picking a paragraph 76. In January 2011, the plaintiff informed offended Carlin that Mr. Michael was not to receive any information about the poll cats litigation. There is no informed how how he was informed. When I mean, it's January, it's a long time. Was it orally in writing? What was it receive any information? You know, what is any information about? I don't know what that means? What is what I trying to figure out what this is all about? Well, that is what it's all about. They received information provided by the defendants that they were not they were specifically told not to provide. Okay, what information is that? information relating to the the litigation specifically, relating to her taxes, her financial condition, which is all that's all laid out. Is that the poll poll cats litigation? Is that that's the poll cats litigation? And the Michaels were not involved in the poll cats litigation. The the Michaels were not parties to the litigation. I can't say that they weren't involved. Because that's the cynic one on of our discussion here today is why they were so involved. And why Mr. Carl and Mr. lupel brought them in in the manner in which they did without being parties. So how they were paid by, by them, and how they were served. How they were served? What do you mean by that? Well, Mr. It's our theory, as laid out in a complaint that Robert Michael and George Michael, specifically George Michael, his interests were the ones that were being served, not Miss mizutis is that they set up a, this is outside of the litigation had nothing to do with the litigation. They set up a a corporation, they set up a liquor license application. When you say they you're talking about the defense talking about the defense. Okay, now, where does it say here that they set up, you know, this, this liquor license and this corporation, where is that in the cap? My apologies, your honor, that's in count one. So in count two related to the fiduciary duties and conflict of interest, your, your question is specific to count two. Yes. All right. So the, the conflicts of interest, you're saying, you know, so and you don't, you don't incorporate one into two. So just the first 17 paragraphs. So count two has nothing to do with what you just read. That's, that's count one. My apologies, count two is specifically about his representation of Mr. Moosey and Mr. Mr. Michael, in litigation against my client, against Miss Miss Miss mizutis. Where am I supposed to figure that out? Who in litigation? What litigation is that? Is that the paragraph 68? pull cats litigation? No, that's not pull cats litigation. That was that was a claim that he brought Mr. Carlin specifically for Mr. On behalf of Mr. Michael brought as a first he tried to intervene on his behalf. And then there was a subsequent filing that ultimately ended up with Judge Novak, but was a separate case. Mr. Michael was suing Miss mizutis. Wait, you're telling you're telling us? She what the date she fired them was what date? That was February, I believe it was February 4 of 2011. February 4 of 2011. And they represented her before that. And you're saying here in paragraph 68 that after that, the same lawyers sued their immediately former client representing the nine says alleged identical claims as the plaintiff claims against the club. Except that Michael was asserting that he had a right to control and ownership of the club and that Michael had obtained the plaintiff's rights during the defense representation of the plaintiff. All right. So are you saying this is a violation? He can't represent the Michaels against them hurt? Is that part of this claim? That is. Okay, that's what you're trying to say here. All right. Because your comment about I'm sorry, just Simon, no, go ahead. You had mentioned a liquor, liquor license, fact. And I'm sorry, I can't find that. Where is that in this complaint? Bear with me one moment, Your Honor. I thought you said it was in count one, but you could just direct my attention to it. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/argument%3A83349. Public record. Not legal advice.