Brannen v. Seifert

2013 IL App (1st) 122067

SECOND DIVISION
November 19, 2013

No. 1-12-2067

ADRIANA BRANNEN and STANDARD BANK AND ) Appeal from the Circuit Court
TRUST, Under Trust No. 3265, ) of Cook County
)
Plaintiff-Appellees, )
)
v. ) No. 10 L 9276
)
JOERG SEIFERT, Individually, JOERG SEIFERT, LTD., )
P.C., and JOERG SEIFERT LAW OFFICES, P.C., ) Honorable
) James P. Flannery,
Defendants-Appellants. ) Judge Presiding.

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
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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 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

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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,

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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 forfeiture remedy without consulting them or explaining the consequences of declaring a

forfeiture. The LeFevours moved out in November 2007.

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¶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) failing to communicate their wrongdoings to

their client; (3) breaching their fiduciary duties; and (4) 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

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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."

¶ 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

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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

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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 theses 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.

¶ 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

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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.

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¶ 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. 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,

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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

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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, 207, 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.

¶ 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

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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

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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 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

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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

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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 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

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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,

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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 "Forcible Entry and Detainer" suit under the Illinois Forcible Entry and

Detainer Act (the Act). 735 ILCS 5/9-102(a)(5) (West 2006).1 Appel testified that to regain

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 restto erd to
hre e

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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

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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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, 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

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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

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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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.

¶ 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

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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

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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 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

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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, plaintiffs 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

25
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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. at 478. 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).

¶ 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

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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

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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 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.

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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.

29
1-12-2067

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 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

30
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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

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¶ 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.

¶ 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

32
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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. Kmart 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.

33
1-12-2067

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."

¶ 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 Synder v. Curran Township, 281 Ill. App. 3d

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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 form. In

addition, the facts surrounding the conduct of the parties in the course of defendants'

35
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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 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 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

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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 post-trial 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 $34,096.00 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

37
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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 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 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

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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 $1,2723, 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.

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 the 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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¶ 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 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

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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:

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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)

¶ 106 The jury award to the plaintiffs was $199,475.34 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.

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¶ 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

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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.

¶ 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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