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Appellate Court Date: 2018.08.15
13:57:54 -05'00'
Tebbens v. Levin & Conde, 2018 IL App (1st) 170777
Appellate Court ROBERT TEBBENS, Plaintiff-Appellant, v. LEVIN & CONDE,
Caption JOEL L. LEVIN, JEAN CONDE, and KATHLEEN N. GRIFFIN,
Defendants-Appellees.
District & No. First District, Third Division
Docket No. 1-17-0777
Rule 23 order filed March 21, 2018
Motion to publish
allowed April 10, 2018
Opinion filed April 25, 2018
Decision Under Appeal from the Circuit Court of Cook County, No. 2014-L-11339;
Review the Hon. John Ehrlich, Judge, presiding.
Judgment Affirmed.
Counsel on Michael G. DiDomenico, of Lake Toback DiDomenico, of Chicago,
Appeal for appellant.
Rebecca M. Rothmann and Brian C. Padove, of Wilson Elser
Moskowitz Edelman & Dicker LLP, of Chicago, for appellees Levin
& Conde and Joel L. Levin.
Newton C. Marshall, Edward F. Dunne, and Michelle M. Blum, of
Karbal, Cohen, Economou, Silk & Dunne, LLC, of Chicago, for other
appellees.
Panel JUSTICE FITZGERALD SMITH delivered the judgment of the court,
with opinion.
Presiding Justice Cobbs and Justice Howse concurred in the judgment
and opinion.
OPINION
¶1 Plaintiff-appellant Robert Tebbens appeals from the grant of defendants-appellees Levin &
Conde, Joel L. Levin, Jean Conde, and Kathleen N. Griffin’s motion to dismiss pursuant to
sections 2-615 and 2-619 of the Code of Civil Procedure (Code) (735 ILCS 5/2-615, 2-619
(West 2014)), dismissing with prejudice Robert’s lawsuit alleging legal malpractice against
defendants, who served as his legal counsel during the dissolution of his marriage against Julie
Tebbens. In that malpractice action, Robert claimed that his former counsel failed to submit to
the trial court a marital settlement agreement (MSA) that accurately reflected the parties’ intent
regarding the division of Robert’s pension plan between himself and Julie. On appeal, Robert
contends that the trial court erred in finding his claims were barred by the doctrine of
res judicata. For the following reasons, we affirm.
¶2 I. BACKGROUND
¶3 Robert filed his complaint against defendants in October 2014. By this complaint, Robert
asserted claims for legal malpractice and breach of contract against all defendants (the
malpractice case). Thereafter, the malpractice case was stayed due to Robert’s pending appeal
in his underlying dissolution of marriage proceeding (the divorce case).
¶4 Meanwhile, the underlying divorce case was appealed to this court. In re Marriage of
Tebbens, 2015 IL App (1st) 140566-U. Our decision in that cause fully lays out the facts,
which we recite here in relevant part. Robert and Julie were married in 1995 and filed for
dissolution of marriage in 2009. Both parties were represented by counsel during dissolution
proceedings.
¶5 In brief, the trial court entered a judgment for dissolution of marriage in October 2012,
incorporating a MSA into the judgment for dissolution. In part, the MSA divided the parties’
retirement accounts and pension plans. Thereafter, the pension administrator requested an
order that reflected a specific dollar amount for Julie’s distribution, rather than the percentage
formula that was set out in the MSA. By this time, Robert was represented by new counsel.
Eventually, the trial court modified the MSA over Robert’s objection. Robert appealed this
modification, and on appeal, this court enforced the MSA language upon which the parties had
originally agreed, holding that Robert was entitled to the entry of an order clarifying the dollar
value of Julie’s share of the pension as Robert had originally requested.
¶6 In more detail, specific to the divorce appeal, Robert challenged the trial court’s entry of a
Qualified Illinois Domestic Relations Order (QILDRO) by the circuit court, which apparently
divided the pension percentage-wise in such a way that Julie took more than the parties had
agreed upon. In April 2015, we reversed in part, vacated in part, and remanded with directions.
In that cause, we recited the following facts, which are pertinent to the present appeal:
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“In December 2009, Robert initiated the instant dissolution proceedings. The trial
court entered a judgment for dissolution of marriage on October 31, 2012. Both parties
were represented by counsel during dissolution proceedings. A marital settlement
agreement (MSA) was incorporated into the judgment for dissolution. Amongst other
things, the MSA divided the parties’ retirement accounts and pension plans:
***
Regarding Robert’s pension from the Chicago Fire Department, the MSA provides:
‘7.5 ROBERT’s interest in the Fireman’s Annuity Fund shall be allocated
between the parties as follows:
a. To JULIE, a sum equal to fifty percent (50%) of the marital value of
ROBERT’s vested accrued benefit under the Fireman’s Annuity Fund.
b. To ROBERT, the remaining balance of his vested accrued benefit under
the Fireman’s Annuity Fund including all sums not otherwise allocated to the
Wife, and all contributions on or after November 1, 2012.
The foregoing allocations to JULIE shall be implemented pursuant to the terms of a
Qualified Illinois Domestic Relations Order (QILDRO).’
Other retirement accounts were also divided:
***
In November 2012, Robert filed a ‘motion to amend, or in the alternative, to vacate
judgment for dissolution of marriage.’ Through this motion, Robert argued, in
pertinent part, that paragraph 7.5 should be amended, as it did not conform to the
parties’ true agreement. Specifically, Robert alleged the paragraph as submitted during
negotiations read:
‘[Draft] 7.5 ROBERT’s interest in the Fireman’s Annuity Fund shall be
allocated between the parties as follows:
a. To JULIE, a sum equal to fifty percent (50%) of the marital value of
ROBERT’s vested accrued benefit under the Fireman’s Annuity Fund, valued
as of __________, 2012.
b. To ROBERT, the remaining balance of his vested accrued benefit under
the Fireman’s Annuity Fund including all sums not otherwise allocated to the
Wife, and all contributions and accruals to his vested accrued benefit on or after
_________, ____.’
The court entered a ruling on the motion on December 21, 2012, stating, in relevant
part:
‘Over Robert’s objection, Paragraph 7.5a of the Marital Settlement Agreement
shall be modified to:
“2. To JULIE, a sum equal to fifty percent (50%) of the marital value (8-26-95
to 10-31-12) of ROBERT’s vested accrued benefit under the Fireman’s Annuity
Fund, and all accruals to her portion after November 1, 2012.” ’
3. By Agreement, Paragraph 7.5b of the Marital Settlement Agreement shall be
modified to:
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“To ROBERT, the remaining balance of his vested accrued benefit under the
Fireman’s Annuity Fund including all sums not otherwise allocated to the wife,
and all contributions and accruals to his portion after November 1, 2012.” ’
On January 18, 2013, Robert filed a motion to clarify both the October 31, 2012
judgment, and the December 21, 2012 order, asking the court to clarify these ‘to
conform same to the parties’ agreement.’ In support, Robert recounted that while
Paragraph 7.5 of the MSA awarded Julie 50% of the marital portion of his vested,
accrued benefit under the Fireman’s Annuity Fund, and awarded Robert all remaining
benefits and interest, that paragraph stated a percentage amount rather than a dollar
amount for Julie. According to Robert, this percentage amount was insufficient for the
Firemen’s Annuity Fund and Benefit Fund of Chicago to divide the asset as agreed
upon by the parties. In support, Robert relied on a letter dated November 30, 2012,
from the Fireman’s Annuity Fund. That letter states:
‘In response to your recent request, we quote the following figures:
Based on our accountants review of your pension records we estimate that as of
November 1, 2012 you would be entitled to a monthly annuity in the amount of
$1,201.21 payable at age 50 with monthly annuity payments continuing for your
lifetime.
This calculation is made pursuant to ILCS 5/6-126, and is based on your years
of pensionable service credit at 17.93 years from your date of hire on December 1,
1994 through November 1, 2012 and total contributions made to the Fund during
that period.’
Because Robert and Julie were married August 26, 1995, argued Robert, his
pre-marital service credits from December 1, 1994, through September 25, 1995, are
his non-marital property. Thus, Robert submitted, it was the intent of the MSA that
Julie should receive 50% of a monthly annuity of an amount less than the $1,201
amount, but rather should receive 50% $1,201 minus the credit for his premarital
service. However, because of the ‘mechanics’ of a QILDRO and because a percentage
order (rather than a dollar amount order) was entered, Julie ‘will not only receive the
monies stated above, but also [ ] any increases in the pension earned by Robert through
his post-divorce, non-marital efforts, including without limitation, promotions, salary
raises, and the like.’
The record on appeal also contains a document entitled ‘Firemen’s Annuity and
Benefit Fund of Chicago QILDRO Benefit Estimate Statement’ dated November 1,
2012, reflecting Robert’s ‘Monthly Retirement Benefit as of last available payroll’ as
$1,201.
In her response, Julie admitted that service credits earned by Robert prior to the
marriage would be considered Robert’s non-marital asset. Julie generally denied all
other allegations or alleged she had insufficient information to provide an answer. She
also stated:
‘JULIE further states that pursuant to the terms of the Judgment, the division of
ROBERT’s pension will be effectuated by entry of a QILDRO. JULIE stipulates
that any QILDRO entered in this matter with respect to ROBERT’s pension shall
be in conformity with the stated requirements of the Fireman’s Annuity Fund.’
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Julie then filed her ‘memorandum in support of response to motion to clarify’ in
which she argued that Robert’s motion to clarify was actually seeking a modification of
the judgment and was therefore barred by res judicata. In the alternative, Julie also
asked the court to apply the Hunt formula, as set forth in In re Marriage of Hunt, 78 Ill.
App. 3d 653 (1979), to the pension division.
Robert then filed his ‘motion to strike, or in the alternative, response to
memorandum in support of response to motion to clarify.’ The motion contained two
counts: Count I, a motion to strike; and Count II, a motion to clarify. By Count I,
Robert asked that Julie’s memorandum be stricken, alleging she filed it late and
without leave of court. Additionally, Robert argued that Julie could not now seek to
have the pension divided under the Hunt formula. By Count II, Robert argued that res
judicata did not bar his clarification motion because he was ‘not seek[ing] to amend,
modify, vacate or otherwise change the substance of the Judgment or December 21,
2012 order, but rather to clarify the orders for the purpose of the preparation and entry
of a [QILDRO].’ Additionally, he argued that ‘through no fault of the parties, the
Fireman’s Annuity Fund is unable to give effect to the intention of the parties with the
current [percentage] language of the Judgment, and therefore the Judgment must be
clarified to include a dollar amount.’ He specified:
‘Robert is not trying to amend or vacate the Judgment, but to clarify the
December 21, 2012 order. Robert does not dispute that Julie is entitled to 50% of
his pension plan as of October 31, 2012, and does not seek to change this fact.
However, in order for Julie to receive 50% of his pension plan as of October 31,
2012, that number must be reduced to a dollar amount. There exists no other way to
accomplish the mandate of the orders. Robert further does not dispute that Julie is
entitled to accruals to her portion of the plan, i.e. cost of living increases. However,
she is not entitled to accruals to Robert’s portion of the plan, as those accruals are
and will be due to Robert’s post-marital efforts. This is not an attempt at a second
bit [sic] of the apple, but an attempt to effectuate the language contained in the
December 21, 2012 order, and accordingly that order must be clarified to list a
specific dollar amount, which has already been calculated by Firemen’s Annuity
Fund.’
In addition, Robert argued that the application of the Hunt formula for the first time
in postjudgment motions was inappropriate, as, in a motion to clarify, the application of
a new division formula would not possibly effectuate the intent of the parties.
The court heard arguments from the parties, and took the matter under advisement.
In July 2013, the trial court entered a memorandum opinion in which it denied the
motion to clarify, finding that it ‘function[ed] effectively as a motion to reconsider’ and
was, therefore, barred by the doctrine of res judicata. Specifically, regarding the
motion to clarify versus the motion to reconsider, the court found:
‘Because the language of the agreement was modified in a prior Order, this
Court finds the proposed clarification to be previously decided on the merits in the
December 21, 2012 Order. Additionally, ROBERT’s motion changes the
distribution of the pension in question [by adding a specific dollar amount], altering
the substantive nature of the Judgment. Because a motion to clarify cannot enlarge
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the judgment, ROBERT’s Motion to Clarify functions effectively as a motion to
reconsider.’
The court also determined that the Firemen’s Annuity letter on which Robert relied
was not new evidence and ‘does not purport to necessitate a dollar amount, but rather
details the current value of the pension fund benefits as they stand.’ The court
determined that the Hunt formula already applied to the pension division where ‘the
plain language of ¶ 7.5 of [the MSA] uses Hunt as written.’
Thereafter, Julie filed a motion for entry of a QILDRO in which she asked the court
to enter a QILDRO consistent with the July order, that is, consistent with the Hunt
formula for division of the pension.
Robert also filed a motion for entry of a QILDRO in which he urged ‘[t]he plain
language of the MSA and the December 21, 2012 order provides that only Robert’s
vested accrued benefit as of November 1, 2012 is to be divided, and that Robert is to
receive all contributions after November 1, 2012.’ Specifically, it stated, ‘[a]s Robert’s
future employment is not “fully and unconditionally guaranteed,” any increase in his
pension as a result of his continued employment and/or continued monetary
contributions to the pension were not part of the “vested accrued benefit” as of
November 1, 2012. Therefore, the plain language of the December 21, 2012 order (and
the MSA) provide that Julie is not entitled to any portion of the pension that was not a
vested accrued benefit as of the date of entry of Judgment. *** Further, while Julie is
awarded “all accruals to her portion” after November 1, 2012, the term “accrual”
implies increases in value intrinsic to the asset, i.e. interest or dividend reinvestments,
or in this case costs of living allowances.’ Robert proffered a draft dollar-amount
QILDRO, which he submitted was consistent with the Firemen’s Annuity and Benefit
Fund’s calculation of Robert’s vested benefits as of October 31, 2012. Robert also
submitted an alternative draft percentage-division QILDRO in which Julie is awarded
one-half the marital portion of Robert’s vested accrued benefit as of October 31, 2012,
while still providing Julie with accruals to her portion after November 1, 2012.
After briefing and short arguments from the parties on January 17, 2014, the court
‘declin[ed] to conduct an evidentiary hearing as to the parties’ intent,’ entered Julie’s
proposed QILDRO instanter; denied Robert’s motion for entry of QILDRO; and
ordered that the ‘QILDRO calculation order to be entered in accordance with FABF
policies and Robert’s motion to enter QILDRO calculation order is denied, without
prejudice, based upon time not being right.’ ” In re Marriage of Tebbens, 2015 IL App
(1st) 140566-U, ¶¶ 4-21.
¶7 Robert and Julie each initialed every page of the MSA containing the paragraph 7.5
language prior to tendering the proposed MSA to the court for entry.
¶8 On November 27, 2012, around the time Robert filed the motion to amend, defendants
sought leave to withdraw as counsel for Robert, alleging a “breakdown in the attorney-client
relationship.” The court granted the motion to withdraw on December 21, 2012. The same day,
the circuit court entered the order described above regarding the motion to amend, stating in
relevant part:
“THIS CAUSE coming on to be heard this 21st day of December, 2012, before this
Honorable Court for hearing on Robert’s Motion to Amend, or in the Alternative, to
Vacate Judgment for Dissolution of Marriage, counsel for Robert’s Motion to
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Withdraw, and Julie’s Petition for Rule to Show Cause, and the court being fully
advised in the premises:
IT IS HEREBY ORDERED:
***
2. Over Robert’s objection, Paragraph 7.5a of the Marital Settlement Agreement
shall be modified to:
‘2. To JULIE, a sum equal to fifty percent (50%) of the marital value (8-26-95
to 10-31-12) of ROBERT’s vested accrued benefit under the Fireman’s Annuity
Fund, and all accrued benefit under the Fireman’s Annuity Fund, and all accruals to
her portion after November 1, 2012.’
3. By Agreement, Paragraph 7.5b of the Marital Settlement Agreement shall be
modified to:
‘To ROBERT, the remaining balance of his vested accrued benefit under
the Fireman’s Annuity Fund including all sums not otherwise allocated to the
wife, and all contributions and accruals to his portion after November 1,
2012.’ ”
¶9 Robert obtained new counsel, who filed an appearance with the court on January 18, 2013.
This counsel filed the motion to clarify after the Firemen’s Annuity Fund administer requested
a specific dollar amount for each party’s share of the pension rather than the percentage
formula set forth in the MSA. The circuit court, however, did not grant Robert the clarification
he requested through his subsequent counsel but instead modified the MSA in a manner
unfavorable to Robert, entering a July 17, 2013, order that improperly applied, contrary to the
parties’ agreement regarding the division of the pension, the reserved-jurisdiction method, also
known as the Hunt formula, for the first time. See In re Marriage of Hunt, 78 Ill. App. 3d 653
(1979).
¶ 10 On appeal, we noted that “[t]here is no dispute here that the parties agreed to the division of
Robert’s pension benefits in the MSA. Therefore, the terms of the MSA are binding on the
parties and on the court.” In re Marriage of Tebbens, 2015 IL App (1st) 140566-U, ¶ 25. We
also found that Robert’s motion to clarify should not have been recharacterized as a motion to
reconsider, noting:
“through that motion, Robert was merely requesting clarification of a vague term in the
judgment of dissolution, that is, the specific dollar amount of the 50% division. We
think this motion was not an attack on the correctness of the judgment, but rather was a
request for a clarification of the trial court’s findings.” In re Marriage of Tebbens, 2015
IL App (1st) 140566-U, ¶ 26.
We further found that the circuit court’s application of the Hunt formula was in error. We said:
“We are cognizant here that ‘the terms of the marital settlement agreement are
binding on the parties and the court.’ See Blum, 235 Ill. 2d at 32; see also 750 ILCS
5/502(b) (West 2012) (‘The terms of the agreement *** are binding upon the court
unless it finds, after considering the economic circumstances of the parties and any
other relevant evidence produced by the parties, on their own motion or on request of
the court, that the agreement is unconscionable’). Additionally, the terms of a marital
settlement agreement are interpreted in the same manner as a contract, that is, the court
must ascertain the parties’ intentions from the language of the contract. Blum, 235 Ill.
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2d at 32. Here, it is evident from the plain language of the MSA that the parties’ intent
was for Julie to receive one-half of the marital portion of Robert’s vested accrued
benefit as of October 31, 2012, and Robert to retain the other one-half of the marital
portion of the vested accrued benefit as of October 31, 2012, plus all contributions after
October 31, 2012. The marital portion of the vested accrued benefit, as detailed in the
December 21, 2012, order, is from August 26, 1995, through October 31, 2012.
While the Hunt formula on which the trial court relied in its July 2013
memorandum opinion is a recognized method of dividing a pension upon dissolution of
marriage, it is but one method of doing so. The parties herein, however, bargained for
and chose another approach, that is, one in which Julie was awarded ‘all accruals to her
portion’ of Robert’s pension after November 1, 2012, including increases in the value
intrinsic to her portion such as interest, dividend reinvestments, or costs of living
allowances, but not any portion of the pension that was not a vested accrued benefit as
of the date of the entry of judgment. When the court applied the Hunt formula, it
changed the calculations in such a way that the division no longer reflects the parties’
bargained-for intent.” In re Marriage of Tebbens, 2015 IL App (1st) 140566-U,
¶¶ 35-36.
¶ 11 We remanded with instructions that the circuit court grant Robert the clarification he
requested (entry of an order with a dollar amount for Julie’s share of the pension) so that the
Fireman’s Annuity Fund could put the intended original terms of the MSA into effect. In re
Marriage of Tebbens, 2015 IL App (1st) 140566-U, ¶ 37.
¶ 12 On November 30, 2012, while all of the above was transpiring, defendant Conde filed a
petition for setting final fees and costs. By that petition, Conde alleged Robert had made
payments totaling $6000, but still owed $42,345 in legal fees as of November 29, 2012. Robert
objected to the fee petition, arguing in part that defendants should not be awarded the full
amount of their fees because the motion to amend that they filed was unsuccessful, Robert had
to hire new counsel due to defendants’ failure to obtain a satisfactory outcome, and new
counsel had to incur the expense of a separate motion for clarification. After a hearing on the
petition, the court granted the fee petition, entering the following written order:
“This matter coming before this court for hearing on the Petition for Setting Final
fees and Costs, Jean Conde and counsel for Robert appearing and the court conducting
a hearing and being fully advised in the premises:
The Court hereby finds that the fees charged were fair and reasonable and
necessary.
That Robert Tebbens acknowledged receipt of the Clients Rights and
Responsibilities and executed a written engagement letter. Robert Tebbens received
concurrent monthly billing statements and made no objections to the fees charged.
It is hereby ordered: 1. Judgment is entered in favor of Jean Conde against Robert
Tebbens in the amount of $42,345.25 (forty two thousand three hundred forty five and
25/100).”
Robert did not appeal this August 2, 2013, ruling.
¶ 13 Following the resolution of the divorce case, the trial court removed the malpractice case
from the stay calendar. Robert maintains this malpractice suit against defendants, seeking as
damages the attorney fees he incurred during a portion of the divorce proceedings, attorney
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fees incurred in the prior appeal, and attorney fees incurred in this malpractice action.1 By his
complaint, Robert alleged, in relevant part:
“6. Tebbens retained Levin & Conde in March of 2012, pursuant to a written
agreement ***, to represent him in a Dissolution of Marriage action he previously had
filed concerning his marriage to Julie Tebbens (hereafter ‘Julie’).
***
11. The gravamen of this Complaint is the failure of the Defendants to protect
Robert’s interest in his pension benefits in accordance with the agreement Robert had
with his counsel.
12. The proposed MSA contained a Paragraph 7.5 which addressed the allocation
of Robert’s pension benefits between Robert and Julie. Specifically, the proposed MSA
provided that Julie was to receive fifty percent (50%) of the accrued value of Robert’s
City of Chicago Fireman’s Annuity and Benefit Fund as of the day of the Dissolution
decree subject to a modest reduction based upon Robert’s employment by the City of
Chicago for several months prior to his marriage to Julie. ***
13. However, the version of the MSA tendered to the Court by Defendants on
October 31, 2012, as an agreed MSA erroneously omitted the agreed upon valuation
date. ***
14. Thus, rather than Julie receiving the intended and agreed to Fifty Percent of the
accrued value of Robert’s pension benefits as of the day of the Dissolution decree, the
MSA presented to the Court as agreed resulted in an Order which provided that Julie’s
interest in Robert’s pension benefit would be ‘50% of the martial value of Robert’s
vested accrued benefit under the Fireman’s Annuity Fund (sic)’. The difference in
value between these two versions was calculated at approximately $368,820. ***
15. In an attempt to correct this error, the Defendants filed, on November 30, 2012,
a ‘Motion to Amend or Vacate’ the October 31, 2012, judgment order in an effort to
restore the agreed upon language from the draft used during hallway negotiations
(using defendant counsel’s terms). ***
16. In support of this motion, Defendants stated at Paragraph 14 that ‘The language
of Paragraph 7.5 of the entered Marital Settlement Agreement entered on October 31,
2012 does not reflect the agreement of the parties.’
17. Further, at Paragraph 16 of their Motion to Vacate, Defendants stated:
‘Paragraph 7.5 of the Marital Settlement Agreement that was entered on October 31,
2012 is erroneous and should be amended to reflect the parties’ agreement…’ ***
18. The omitted portion of the parties’ agreement required a specific valuation date,
the absence of which created the possibility that Julie’s portion of Robert’s pension
benefit would be over $368,000 more than had been agreed to. ***
[19]. That Defendants did not proof read [sic] the MSA they erroneously submitted
to the trial court is made abundantly clear by the fact that the Motion to Vacate [ ]
identified a second remarkable error.[2]
1
Robert was given leave to file a series of amended complaints. The final complaint of which we
are concerned here is his third amended complaint. For the reader’s ease, we refer to this third amended
complaint simply as “the complaint.”
-9-
***
22. The result of the Motion to Amend was an order entered December 21, 2012,
which provided, in pertinent part, that Julie was to receive (a) ‘…fifty percent (50%) of
the marital value of ROBERT’S vested accrued benefit under the Fireman’s Annuity
Fund and all accruals to her portion after November 1, 2012.’ ***
23. Defendants in their Motion to Amend made a judicial admission to the trial
Court that the erroneous term contained in the MSA which allocated a larger share of
Robert’s pension benefits to Julie was made possible because Tebbens’ attorneys did
not review the complete final version of the MSA tendered to the Court by Julie’s
counsel.
***
27. Simply put, had the tendered MSA truly been one which was agreed to by the
parties, there would have been no occasion to file a Motion to Amend and no necessity
for an appeal.
28. In trying to place responsibility of their error on the trial court judge who was
misinformed by the Defendants about the actual terms of the MSA, they are causing
Tebbens additional financial harm.” (Emphasis added.)
The complaint includes, as an exhibit, the client engagement agreement between Robert and
defendants.
¶ 14 The defendants filed a motion to dismiss the malpractice action,3 which was fully briefed.
Specifically, defendants argued in part that the cause should be dismissed pursuant to section
2-615 because (1) the trial court’s error in rewriting the MSA rather than simply clarifying the
parties’ intent was an intervening cause of any injury sustained by plaintiff; (2) the malpractice
claim cannot stand where the plaintiff ultimately prevails on appeal, e.g., Robert’s position
remained viable through his success on appeal, and thus he cannot now claim that defendants
proximately caused any harm; and (3) Robert failed to allege that defendants breached the
standard of care. Defendants also argued that the cause should be dismissed pursuant to section
2-619 because (1) the claims are barred by the principles of res judicata, where the same core
facts alleged in Robert’s complaint had previously been addressed and rejected by the court in
resolving the fee petition and (2) Robert fails to allege a breach of contract claim. The trial
court dismissed the malpractice action in its entirety based on the doctrine of res judicata in
October 2016, noting: “Defendants’ Motion to Dismiss Plaintiffs third amended complaint is
granted for reasons stated in open court (due to the elements of res judicata having been met).”
¶ 15 Robert filed a motion to reconsider, which the trial court denied in February 2017,
specifically noting that: “Plaintiff’s Motion to Reconsider is denied for the reasons stated in
open court, based on the requirements of res judicata being met.”
¶ 16 Robert appeals.
2
The error referenced in paragraph 18 was a scrivener’s error regarding the valuation of the marital
residence. This error was remedied by the trial court.
3
Defendants Conde and Griffin filed the initial motion to dismiss, and defendants Levin and Levin
& Conde joined.
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¶ 17 II. ANALYSIS
¶ 18 On appeal, Robert contends the trial court erred in dismissing his malpractice lawsuit.
Specifically, Robert argues that the cause should not, in fact, be barred by the doctrine of
res judicata. Robert claims no damages related to the division of his pension but seeks only to
recover the fees incurred on appeal, a refund of the fees billed by defendants from the date the
MSA was signed, and the attorney fees incurred in the malpractice case.
¶ 19 As noted above, defendants’ motion to dismiss alleged that dismissal was appropriate
pursuant to both section 2-615 and 2-619 of the Code. This motion included the argument that
the cause should be dismissed pursuant to section 2-619 based on the doctrine of res judicata
where the same core facts alleged in Robert’s complaint had previously been addressed and
rejected by the court when resolving the fee petition.4 Following a hearing, the trial court
dismissed the malpractice action in its entirety based on the doctrine of res judicata, noting:
“Defendants’ Motion to Dismiss Plaintiffs third amended complaint is granted for reasons
stated in open court (due to the elements of res judicata having been met).” Robert filed a
motion to reconsider, which the trial court denied in February 2017, specifically noting that
“Plaintiff’s Motion to Reconsider is denied for the reasons stated in open court, based on the
requirements of res judicata being met.” This, then, was a dismissal pursuant to section
2-619(a)(4), which allows for involuntary dismissal when “the cause of action is barred by a
prior judgment.” 735 ILCS 5/2-619(a)(4) (West 2014). We therefore address the circuit court’s
dismissal order pursuant to the principles governing section 2-619 of the Code.
4
To the extent Robert argues that the court considered a separate theory for dismissal pursuant to
the doctrine of res judicata, that is, that Robert’s claims were barred by paragraph 12.3 of the MSA,
which required Robert to pay his own “past and future attorneys’ fees” to any other attorney or expert
retained in the divorce case, and that one cannot know upon which res judicata theory the court
dismissed this cause, we disagree. In our estimation, defendants’ motion to dismiss presents one theory
for dismissal based on res judicata grounds—the “core facts” theory—and the sub-issue regarding
paragraph 12.3 is argued as to a section 2-619 dismissal, but not pursuant to the theory of res judicata.
In any event, we cannot know what was considered or discussed at the dismissal hearing as there is no
transcript of the dismissal hearing, any hearing on the motion to reconsider, or any other hearing, and
nor is there an agreed statement of facts or a bystander’s report included in the record on appeal.
Our supreme court has repeatedly held that the burden is on the appellant to present a sufficiently
complete record of the trial proceedings to support a claim of error on appeal. Corral v. Mervis
Industries, Inc., 217 Ill. 2d 144, 156 (2005); Webster v. Hartman, 195 Ill. 2d 426, 432 (2001); Foutch v.
O’Bryant, 99 Ill. 2d 389, 391-92 (1984). “From the very nature of an appeal it is evident that the court
of review must have before it the record to review in order to determine whether there was the error
claimed by the appellant.” Foutch, 99 Ill. 2d at 391. An appellant has the burden of presenting this court
with a record that is sufficient to support his claims of error. Foutch, 99 Ill. 2d at 391-92. Any doubts or
deficiencies arising from an incomplete record will be construed against the appellant. Foutch, 99 Ill.
2d at 392. When presented with an insufficient record, we will indulge every reasonable presumption in
favor of the judgment appealed from. Smolinski v. Vojta, 363 Ill. App. 3d 752, 757-58 (2006).
Accordingly, in the absence of a complete record supporting the plaintiff’s claim of error, we will
resolve “[a]ny doubts which may arise from the incompleteness of the record *** against the
appellant.” Foutch, 99 Ill. 2d at 392. We consider here the dismissal of Robert’s complaint pursuant to
the principles of res judicata as it pertains to whether the malpractice claim is precluded by the previous
fee petition, not to any issue regarding paragraph 12.3.
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¶ 20 A section 2-619 motion to dismiss admits the sufficiency of the complaint, but asserts an
affirmative matter that acts to defeat the claim. Patrick Engineering, Inc. v. City of Naperville,
2012 IL 113148, ¶ 31; King v. First Capital Financial Services Corp., 215 Ill. 2d 1, 11-12
(2005); Wallace v. Smyth, 203 Ill. 2d 441, 447 (2002); see 735 ILCS 5/2-619(a)(9) (West 2014)
(allowing dismissal when “the claim asserted against defendant is barred by other affirmative
matter avoiding the legal effect of or defeating the claim”). The question on review is whether
a genuine issue of material fact precludes dismissal or whether dismissal is proper as a matter
of law. Fuller Family Holdings, LLC v. Northern Trust Co., 371 Ill. App. 3d 605, 613 (2007).
Section 2-619(a)(3) allows for dismissal of the action if “there is another action pending
between the same parties for the same cause.” 735 ILCS 5/2-619(a)(3) (West 2014).
¶ 21 When ruling on a motion to dismiss, a reviewing court must construe the pleadings and
supporting documents in the light most favorable to the nonmoving party and accept as true all
well-pleaded facts in the complaint and all inferences that may reasonably be drawn in the
plaintiff’s favor. Sandholm v. Kuecker, 2012 IL 111443, ¶ 55. Disputed issues of fact are
reserved for trial proceedings. Advocate Health & Hospitals Corp. v. Bank One, N.A., 348 Ill.
App. 3d 755, 759 (2004). “Under section 2-619, the defendant admits to all well-pled facts in
the complaint, as well as any reasonable inferences that may be drawn from those facts
[citation], but asks the court to conclude that there is no set of facts which would entitle the
plaintiff to recover. [Citation.] As long as there is no genuine issue of material fact and the
defendant is entitled to judgment as a matter of law, the complaint may be properly dismissed.”
Advocate Health & Hospitals Corp., 348 Ill. App. 3d at 759. The circuit court’s decision to
grant such a motion will be reviewed de novo. Sandholm, 2012 IL 111443, ¶ 55.
¶ 22 As noted, defendants filed a motion to dismiss based on both sections 2-619 and 2-615. A
section 2-615 motion to dismiss challenges the legal sufficiency of a complaint based on
defects apparent on its face. Marshall v. Burger King Corp., 222 Ill. 2d 422, 429 (2006).
Defendants address a number of issues based on the motion to dismiss pursuant to both
sections 2-615 and 2-619, and fail to acknowledge that the dismissal here was specifically
pursuant to section 2-619. We acknowledge that the trial court’s order granting the motion to
dismiss in its entirety did not specify whether the dismissal was as to section 2-615 or section
2-619. It did, however, specify that the dismissal was for the “reasons stated in open court” and
“due to the elements of res judicata” having been met. Because we are not privy to a transcript
from the hearing, a bystander’s report, or even an agreed statement of facts, we cannot know
what reasons were stated in open court. We do, however, know that the only argument
regarding res judicata made in the motion to dismiss was made pursuant to section 2-619 of the
Code. In addition, we find the res judicata argument persuasive. Therefore, we address here
only the dismissal as to section 2-619 of the Code.
¶ 23 Res judicata is an equitable doctrine designed to encourage judicial economy by
preventing a multiplicity of lawsuits between the same parties where the facts and issues are
the same. Arvia v. Madigan, 209 Ill. 2d 520, 533 (2004). The doctrine also “protects parties
from being forced to bear the unjust burden of relitigating essentially the same case.” Arvia,
209 Ill. 2d at 533.
¶ 24 “The doctrine of res judicata provides that a final judgment rendered by a court of
competent jurisdiction on the merits is conclusive as to the rights of the parties and their
privies, and, as to them, constitutes an absolute bar to a subsequent action involving the same
claim, demand or cause of action.” Nowak v. St. Rita High School, 197 Ill. 2d 381, 389 (2001).
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The essential elements of res judicata are (1) a final judgment on the merits, (2) an identity of
parties or their privies, and (3) an identity of causes of action. Hudson v. City of Chicago, 228
Ill. 2d 462, 467 (2008); Northeast Illinois Regional Commuter R.R. Corp. v. Chicago Union
Station Co., 358 Ill. App. 3d 985, 1000 (2005). “Moreover, the doctrine of res judicata applies
not only to claims that have been fully litigated in an earlier proceeding, but also those that
could have been raised or decided, but were not, thus barring such claims from relitigation at a
later date.” Northeast Illinois Regional Commuter R.R. Corp., 358 Ill. App. 3d at 1000; Rein v.
David A. Noyes & Co., 172 Ill. 2d 325, 334-35 (1996) (res judicata “extends not only to what
was actually decided in the original action, but also to matters which could have been decided
in that suit”). In addition, the issue of whether a claim is barred by res judicata is an issue of
law that mandates de novo review by this court. Northeast Illinois Regional Commuter R.R.
Corp., 358 Ill. App. 3d at 1000.
¶ 25 Initially, we must address the issue of forfeiture. As defendants point out, Robert failed to
contest in the trial court that the three elements of res judicata were met, either in his response
to the motion to dismiss or in his motion to reconsider. Rather, he only argued that an
exception to res judicata applied. He has therefore forfeited any challenge to the base elements
of res judicata having been met. See Robinson v. Toyota Motor Credit Corp., 201 Ill. 2d 403,
413 (2002) (an appellant may not raise a new argument for the first time on appeal; arguments
not raised in the trial court are considered forfeited).
¶ 26 Forfeiture aside, we find that the elements of res judicata are met here. First, it is
undisputed that Robert was a party to both actions. Conde and Robert were both parties to the
fee petition. Griffin was in privity with Conde, as Griffin was Conde’s associate and the fee
petition pertained to Griffin’s work. In the same manner, Levin & Conde and Joel Levin were
in privity with Conde because Levin & Conde is the law firm with which Conde was affiliated,
and Joel Levin was a partner of the firm. See, e.g., 750 ILCS 5/508(c) (West 2014) (an attorney
who files a fee petition becomes a party to the proceeding); Purmal v. Robert N. Wadington &
Associates, 354 Ill. App. 3d 715, 722-23 (2004) (an attorney is in privity with an employer law
firm). We find a sufficient identity of the parties for purposes of the doctrine of res judicata.
¶ 27 Second, we also find the requirement of a final judgment on the merits by a court of
competent jurisdiction is met.
“A final judgment is one that fixes absolutely and finally the rights of the parties in
the lawsuit; it is final if it determines the litigation on the merits so that, if affirmed, the
only thing remaining is to proceed with the execution of the judgment. [Citation.] To be
final, a judgment must dispose of or terminate the litigation or some definite part of it.”
In re Adoption of Ginnell, 316 Ill. App. 3d 789, 793 (2000).
Robert challenges this element for the first time in his reply brief on appeal.5 In so doing, he
presents this court with a case filed after the filing of his opening brief, In re Marriage of
Teymour, 2017 IL App (1st) 161091, which he argues is dispositive of this issue in his favor.
Specifically, relying on Teymour, he argues that there is no final judgment in the case at bar
because the trial court did not provide Rule 304(a) language when ruling on the fee petition.
See Ill. S. Ct. R. 304(a) (eff. Mar. 8, 2016). We disagree.
5
We allowed defendants to file a surresponse regarding this issue and granted Robert an
opportunity to file a surreply to defendants’ surresponse.
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¶ 28 In Teymour, this court held, in part, that where other claims were pending and there was no
Rule 304(a) finding, an order finding a party in contempt was not appealable. Initially, even if
we were to find that Teymour affected the finality of the fee judgment in the case at bar,
Teymour cannot be applied retroactively to reopen a final fee judgment, which was entered in
August 2013. More to the point, however, even if Teymour had existed at the time of the fee
judgment, it would still not have had effect on the finality of the fee judgment. Teymour,
decided on September 6, 2017, provided that, if there are multiple postdissolution matters
pending, a judgment on one of those orders is not final and appealable in the absence of a Rule
304(a) finding. Ill. S. Ct. R. 304(a) (eff. Mar. 8, 2016); Teymour, 2017 IL App (1st) 161091,
¶¶ 35-41.
¶ 29 Under the case law existing in the First District at the time the fee judgment was entered,
the fee judgment was a final judgment on the merits and was immediately appealable under
Illinois Supreme Court Rule 301 (eff. Feb. 1, 1994)6 without the need for a Rule 304(a) finding
because the fee judgment was unrelated to any other matters still pending in the divorce.
Section 508(c) acknowledges the legislature’s express intent that attorney fee petitions be
decided independently from other issues in a dissolution of marriage case. 750 ILCS
5/508(c)(2) (West 2014) (“Irrespective of a Petition for Setting Final Fees and Costs being
heard in conjunction with an original proceeding under this Act, the relief requested under a
Petition for Setting Final Fees and Costs constitutes a distinct cause of action. A pending but
undetermined Petition for Setting Final Fees and Costs shall not affect appealability of any
judgment or other adjudication in the original proceeding.”). Acknowledging a split in the
various districts of this court, Teymour aligned the First District with the Second and Third
Districts of this court and stated:
“Where a party files one postdissolution petition, several more are likely to follow.
Allowing or requiring parties to appeal after each postdissolution claim is resolved
would put great strain on the appellate court’s docket and impose an unnecessary
burden on those who would prefer not to appeal until the trial court resolves all pending
claims. To be sure, justice may on occasion require that a final order disposing of a
claim be immediately appealed, rather than held at bay until another pending
postdissolution claim is resolved. Yet, Rule 304(a) accommodates those
circumstances: the trial court need only enter a Rule 304(a) finding.” In re Marriage of
Teymour, 2017 IL App (1st) 161091, ¶ 39 (citing John G. Phillips & Associates v.
Brown, 197 Ill. 2d 337, 344-45 (2001)).
¶ 30 Robert does not argue on appeal that the fee judgment is not final now. Instead, Robert
seems to argue that, at the time the fee judgment was entered, that is, in August 2013, the trial
court had yet to resolve his motion to clarify the MSA and the competing motions for entry of
QILDROs. We addressed these issues in the prior appeal, issued in April 2015, where we
found Robert was entitled to clarification of the MSA language regarding division of the
pension, vacated the April 20, 2014, amended QILDRO, and remanded for entry of an
appropriate QILDRO.
6
Rule 301 provides: “Every final judgment of a circuit court in a civil case is appealable as of right.
The appeal is initiated by filing a notice of appeal. No other step is jurisdictional. An appeal is a
continuation of the proceeding.” Ill. S. Ct. R. 301 (eff. Feb. 1, 1994).
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¶ 31 Although Robert alleges that the finality element of res judicata was not met at the time the
fee judgment was entered, he fails to include documentation regarding these pending motions.
Instead, he directs this court to the fee petition order decided on August 2, 2013 (and quoted
above), and to this court’s previous Rule 23 order (Ill. S. Ct. R. 23 (eff. July 1, 2011)) in this
matter, which do not illuminate what was pending and when. As noted above, the burden is on
the appellant to present a sufficiently complete record of the trial proceedings to support a
claim of error on appeal. Corral, 217 Ill. 2d at 156; Webster, 195 Ill. 2d at 432; Foutch, 99 Ill.
2d at 391-92. Any doubts or deficiencies arising from an incomplete record will be construed
against the appellant. Foutch, 99 Ill. 2d at 392. When presented with an insufficient record, we
will indulge every reasonable presumption in favor of the judgment appealed from. Smolinski,
363 Ill. App. 3d at 757-58. From what we can ascertain based on the record presented on
appeal, all postdissolution claims in Robert’s divorce had been resolved long before the trial
court dismissed Robert’s malpractice case on October 21, 2016, and it appears the August
2013 fee judgment—which he failed to timely challenge—was final at that time. Teymour is
inapposite to the instant case, and we find no error in the trial court’s determination that the
“final judgment on the merits” element for res judicata was met.
¶ 32 Third, we find sufficient identity of cause of action for purposes of preclusion by the
doctrine of res judicata. As noted above, the doctrine of res judicata bars “not only *** what
was actually decided in the original action, but also *** matters which could have been
decided in that suit.” Rein, 172 Ill. 2d at 334-35. Accordingly, a litigant cannot bring a
malpractice claim that is based on the same core facts that were previously addressed in a fee
petition. See Bennett v. Gordon, 282 Ill. App. 3d 378, 383-84 (1996).
¶ 33 Illinois law applies the “transactional test” to determine if there is an identity of cause of
action. River Park, Inc. v. City of Highland Park, 184 Ill. 2d 290, 310-11 (1998). Under the
“transactional analysis” adopted by our supreme court in River Park, separate claims are
considered the same cause of action and are barred by the doctrine of res judicata where they
arise from a single group of operative facts, regardless of whether they assert different theories
of relief. River Park, 184 Ill. 2d at 311. Claims may be considered part of the same cause of
action “even if there is not a substantial overlap of evidence, so long as they arise from the
same transaction.” River Park, 184 Ill. 2d at 311. The River Park court explained that, in the
transactional analysis, the claim is viewed in “ ‘factual terms’ ” and considered “ ‘coterminous
with the transaction regardless of the number of substantive theories, or variant forms of relief
flowing from those theories, that may be available to the plaintiff; *** and regardless of the
variations in the evidence needed to support the theories or rights.’ ” River Park, 184 Ill. 2d at
309 (quoting Restatement (Second) of Judgments § 24 cmt. a, at 197 (1982)). Additionally, a
“final judgment will bar a plaintiff’s claim to all or any part of a transaction or series of
connected transactions from which the action arose.” Doe v. Gleicher, 393 Ill. App. 3d 31,
37-38 (2009) (citing River Park, 184 Ill. 2d at 311).
¶ 34 In Bennett v. Gordon, 282 Ill. App. 3d 378, 383-84 (1996), this court agreed with the trial
court’s finding that the plaintiff’s malpractice claims arising out of a divorce judgment were
barred by res judicata, as the allegations involved the same subject matter that had been
addressed in the former counsel’s fee petition in the divorce. The plaintiff had already
challenged the attorney fee petition on the basis that the attorneys had committed various
errors, and thus the plaintiff did not have a right to relitigate those issues. Bennett, 282 Ill. App.
3d at 380-85. The Bennett court explained:
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“ ‘The proper test to determine identity of causes of action for res judicata purposes
is whether actions are based upon a common core of operative facts.’ Horton v.
Caterpillar, Inc., 260 Ill. App. 3d 150, 153 *** (1994). A plaintiff may plead more than
one theory of recovery arising from a single group of facts. However, these multiple
theories of relief constitute but a single cause of action for purposes of res judicata.
Torcasso v. Standard Outdoor Sales, Inc., 157 Ill. 2d 484 *** (1993). ‘If the same facts
are essential to maintain both proceedings or the same evidence is necessary to sustain
the two, there is identity between the causes of action asserted, and res judicata bars the
latter one.’ Torcasso, 157 Ill. 2d at 491 ***.” Bennett, 282 Ill. App. 3d at 382-83.
¶ 35 Similar to the case at bar, the litigant in Bennett contested the fee petition by criticizing the
services the attorney had provided. Bennett, 282 Ill. App. 3d at 383-84. The Bennett court
found that the fee petition and malpractice claim were based on “the same core of facts,” and
thus there was an identity of cause of action, regardless of the fact that the allegations in the
malpractice claim were more fully developed. Bennett, 282 Ill. App. 3d at 383-84. Specifically,
in finding the element of identity of cause of action existed, the Bennett court said:
“We find that there is a nexus between plaintiff’s defense to the fee petition and her
malpractice action. It is apparent from a review of the record that plaintiff raised
substantially the same issues in her defense to the fee petition as she raised in her first
amended complaint. For example, in plaintiff’s defense to the fee petition, plaintiff
alleged that defendants conducted inadequate discovery in failing to obtain appraisals
and accountings of all of Bennett’s assets. In her malpractice action, plaintiff alleges
that defendants failed to contact critical witnesses necessary to ascertain the value of
Bennett’s holdings. Similarly, in her defense to the fee petition, plaintiff alleged that
defendants failed to execute the paperwork necessary to transfer stocks, property and a
pension to her. In her amended complaint, plaintiff alleged that defendants failed to
execute the documents necessary to effectuate an immediate transfer of marital
property and the policeman’s fund pension to plaintiff upon entry of judgment.
While plaintiff’s malpractice claims are more fully developed, both sets of
allegations arise from the same core of facts. Unlike Torcasso, the resolution of
plaintiff’s cause of action involves an examination of the same facts and issues raised
in defense to the fee petition. Recovery under these facts constitutes but a single cause
of action.” Bennett, 282 Ill. App. 3d at 383-84.
¶ 36 We think Bennett is remarkably similar to the case at bar, where there is a nexus between
Robert’s defense to the fee petition and his malpractice action. For example, the trial court
previously rejected Robert’s argument that defendants should not be awarded the full amount
of their fees because the motion to amend they filed was unsuccessful. Now, the court
dismissed Robert’s malpractice claim by which he argued his attorneys were negligent in filing
the motion to amend. Like Bennett, there is a common core of facts between Robert’s defense
to the fee petition (e.g., counsel failed in regards to the motion to clarify) and his malpractice
action (e.g., counsel was negligent in regards to the motion to clarify). When ruling on a
petition for attorney fees under section 508(c) of the Illinois Marriage and Dissolution of
Marriage Act, a court must analyze the attorney’s performance, the attorney’s skill, and the
benefits obtained by the client, among other factors. See 750 ILCS 5/508(c) (West 2014); In re
Marriage of Patel, 2013 IL App (1st) 112571, ¶ 103 (“In determining whether the fees charged
are reasonable, the trial court considers not only the number of hours the attorney spent on the
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case but the following factors as well: (1) skill and standing of the attorneys; (2) the difficulty
of the issues; (3) the amount and importance of the subject matter in the field of family law; (4)
the degree of responsibility involved in the management of the case; (5) the usual and
customary charge in the community; and (6) the benefits to the client.”). In our opinion, the
malpractice claim and the fee petition in the case at bar are even more closely related to one
another than the Bennett claim and petition where Robert only claims his attorney fees as
damages, and the Bennett litigant claimed her attorneys failed to accurately assess the
husband’s assets and failed to conduct adequate discovery. Robert cannot now bring this
malpractice suit to relitigate issues that were already resolved against him and that he chose not
to fully develop in the first proceeding. We find a sufficient identity of the parties for purposes
of the doctrine of res judicata.
¶ 37 We acknowledge there is some disagreement regarding whether a judgment on a fee
petition has res judicata effect with respect to a subsequent malpractice claim based on the
same legal services. See, e.g., Bennett, 282 Ill. App. 3d 378 (finding that a judgment on a fee
petition has res judicata effect on a subsequent malpractice claim based on the same services);
Purmal, 354 Ill. App. 3d at 722 (same); Corcoran-Hakala v. Dowd, 362 Ill. App. 3d 523
(2005) (same). But see Wilson v. M.G. Gulo & Associates, Inc., 294 Ill. App. 3d 897 (1998)
(finding no res judicata effect); Weisman v. Schiller, Ducanto & Fleck, 314 Ill. App. 3d 577
(2000) (same).
¶ 38 Defendant urges us to find Wilson dispositive of this issue. In Wilson, which was decided
before our supreme court adopted the transactional test for addressing questions of res
judicata, a divided panel of this court concluded that res judicata did not bar a divorce
litigant’s malpractice suit against her former attorney. Wilson, 294 Ill. App. 3d at 902. In that
malpractice suit, the plaintiff had alleged her attorney negligently failed to investigate both her
and her husband’s marital assets. The attorney responded that the suit was barred by res
judicata because the trial court had rejected the plaintiff’s contest to the number of hours billed
when it ruled on the fee petition. The appellate court rejected the attorney’s argument with the
majority reasoning that the fee petition decision had not dealt with the reasonableness of the
attorney’s representation and that, because the plaintiff had not contested the reasonableness of
the attorney’s representation in the earlier proceeding, that issue could not have been fully
litigated in the earlier proceeding. Wilson, 294 Ill. App. 3d at 901-02.
¶ 39 Justice Holdridge dissented, arguing that “the doctrine of res judicata extends not only to
those claims that are fully litigated in the first proceeding, but also to those issues that could
have been decided or litigated” and, because the claim of professional malpractice could have
been raised as a defense to the fee petition, the later malpractice suit should be barred. Wilson,
294 Ill. App. 3d at 902-03 (Holdridge, J., dissenting).
¶ 40 We find Wilson distinguishable from the case at bar and not of help to Robert. In Wilson,
unlike the case at hand, the plaintiff could not have fully litigated her malpractice claim during
the fee proceedings as it was only “ambiguously referenced” in the first proceedings (Wilson,
294 Ill. App. 3d at 901 (majority opinion)), and the trial court “expressly excluded any
evidence relating to the [defendant attorneys’] competency” (Wilson, 294 Ill. App. 3d at 901).
Here, on the other hand, Robert’s malpractice claims are based on concepts the trial court
rejected when Robert contested defendants’ fee petition. Robert objected to the petition and
denied that the defendants’ services were all reasonable and necessary. Robert argued that the
defendants had to seek clarification of the divorce judgment and that he had to retain new
- 17 -
counsel to further seek clarification of the judgment due to the defendants’ lack of success with
the motion to amend. The court rejected Robert’s arguments in this regard, found that all of the
defendants’ fees were fair, reasonable, and necessary, and entered judgment against Robert for
the full $42,345.25 in unpaid fees. This is the precise core of facts that form the basis of the
malpractice suit. Although we do not have a transcript of any hearing on the fee petition, a
bystander’s report, or an agreed statement of facts, unlike in Wilson, it does not appear that the
court barred or excluded evidence relating to attorney competency. Unlike Wilson, here Robert
was not precluded from litigating those issues in the first case. We find no error in the trial
court’s determination that the three elements of res judicata are met.
¶ 41 Robert next argues that, even if the three elements of res judicata are met, we should
nonetheless reverse and remand for a full trial where exceptions to the doctrine of res judicata
apply. Where defendants have established a prima facie case for application of res judicata, it
is Robert’s burden to establish the applicability of any exception. Venturella v. Dreyfuss, 2017
IL App (1st) 160565, ¶ 32 (“ ‘[O]nce a party establishes a prima facie case of res judicata, the
burden shifts to the opposing party to properly plead the existence of an exception to
res judicata.’ ” (quoting Deutsche Bank National Trust Co. v. Bodzianowski, 2016 IL App (3d)
150632, ¶ 19)).
¶ 42 There are six exceptions to the doctrine of res judicata recognized in Illinois:
“ ‘(1) the parties have agreed in terms or in effect that plaintiff may split his claim or
the defendant has acquiesced therein; (2) the court in the first action expressly reserved
the plaintiff’s right to maintain the second action; (3) the plaintiff was unable to obtain
relief on this claim because of a restriction on the subject-matter jurisdiction of the
court in the first action; (4) the judgment in the first action was plainly inconsistent with
the equitable implementation of a statutory scheme; (5) the case involves a continuing
or recurrent wrong; or (6) it is clearly and convincingly shown that the policies
favoring preclusion of a second action are overcome for an extraordinary reason.’ ”
Hudson, 228 Ill. 2d at 472-73 (quoting Rein, 172 Ill. 2d at 341).
¶ 43 Robert argues that three exceptions apply: first, that applying res judicata here is
inconsistent with the implementation of the statutory scheme concerning when legal
malpractice claims can be filed; second, that this case involves a continuing wrong; and third,
that fundamental fairness compels this court to reverse the dismissal. We disagree with these
arguments.
¶ 44 As to his first argument, that applying res judicata here is inconsistent with the
implementation of a statutory scheme, Robert specifically argues that pursuant statute, there
are no compulsory counterclaims in Illinois and, because there are no compulsory
counterclaims, dismissing his petition on res judicata grounds “necessarily compels a holding
that not only are there compulsory counterclaims in this context but also that this compulsion
to sue acts to ‘cut short’ the time the legislature has otherwise said a plaintiff has to file a legal
malpractice claim.” The Second District of this court addressed a similar issue in Dowd. In
Dowd, an attorney filed a fee petition to recover a referral fee from a client. The trial court
granted the fee petition and ordered the client to pay the lawyer a certain fee. The client then
filed a complaint against the lawyer alleging, in part, that the referral was obtained through
fraud and that if she and the attorney had an attorney-client relationship, the attorney
committed malpractice by failing to properly advise her before she signed a contingency
agreement. The trial court dismissed the complaint on res judicata grounds, and the plaintiff
- 18 -
appealed, arguing that, because counterclaims are not mandatory in Illinois, she should not be
precluded from filing her lawsuit to raise those claims. Dowd, 362 Ill. App. 3d at 530. On
review, the appellate court affirmed the trial court, stating that “plaintiff’s current claims
involve the same operative facts as the earlier litigation” and that “successful prosecution of
plaintiff’s current suit would in effect nullify the prior judgment.” Dowd, 362 Ill. App. 3d at
531. There, “plaintiff could have—and should have—raised those claims in that proceeding.”
Dowd, 362 Ill. App. at 531.
¶ 45 We acknowledge that, as Robert points out, in Illinois counterclaims are permissive rather
than mandatory. Dowd, 362 Ill. App. 3d at 530. Therefore, a party may generally raise a claim
against a plaintiff either by a counterclaim or in a separate action. Dowd, 362 Ill. App. 3d at
530-31. However, Illinois law further dictates that “if the defendant’s claim involves the same
operative facts as the plaintiff’s claim, res judicata may bar the defendant from raising his or
her claim in a subsequent action.” Dowd, 362 Ill. App. 3d at 531. Additionally, our supreme
court has held that res judicata bars the pursuit of a counterclaim if the successful prosecution
of that counterclaim would have the effect of nullifying a prior final judgment. Blumenthal v.
Brewer, 2016 IL 118781, ¶ 41 (finding a number of a defendant’s counterclaims could no
longer be pursued due to res judicata when the plaintiff’s action addressing the same subject
matter had gone to final judgment).
¶ 46 As noted above, the doctrine of res judicata extends to what was actually decided in the
first action as well as to matters that could have been decided in the first action. River Park,
184 Ill. 2d at 302. Robert’s malpractice claim is based on the same group of operative facts as
his prior fee petition. Robert could have pursued these claims at that time but failed to do so. In
addition, Robert cannot now pursue his malpractice claim because, were he successful, his
malpractice claim would effectively nullify the prior judgment on the fee petition, as the
damages he seeks now are not related to the division of his pension but are only attorney fees,
including those attorney fees determined by the court on the fee petition. The trial court
properly found that res judicata bars this claim.
¶ 47 Regarding the second proposition, that this case involves a continuing wrong, Robert
maintains that we should find an exception for the application of the doctrine of res judicata
here, where the he is the victim of a continuing wrong that started with the attorney negligence
alleged in the malpractice claim but continued via the appellate review, the remand, the
dismissal, and now this appeal. Initially, we note that plaintiff has waived this argument by
failing to raise it in the trial court. Robinson, 201 Ill. 2d at 413 (an appellant may not raise an
issue for the first time on appeal; issues not raised below are considered waived). Waiver aside,
the exception for continuing conduct does not apply here, where the alleged wrong is neither
continuing nor recurring. Rather, Robert contends the defendants committed legal malpractice
during their representation of him in his dissolution case. The specific conduct at issue
occurred when the MSA was executed and submitted to the circuit court in October 2012. The
fee judgment was not entered until August 2013. Additionally, the defendants were given leave
to withdraw as counsel prior to the fee petition being heard. Robert argued in opposition to the
fee petition that defendants had to file a motion seeking to clarify language in the judgment and
that Robert subsequently had to hire new counsel to address the same issue due to defendants’
lack of success. Robert’s malpractice claim is based on those same criticisms of defendants’
work. There is no recurrent or continuing wrong here, and the trial court properly found that
res judicata bars this claim.
- 19 -
¶ 48 Finally, as to the third proposition, that fundamental fairness compels this court to reverse
the dismissal, Robert urges us to find that “[i]f there is a set of facts that fits [the fundamental
fairness exception], it is this case” and that res judicata should not apply for fairness reasons
because he would not have been able to obtain a full remedy in the fee petition proceeding. We
disagree. We understand that Robert is on the hook for a large sum of attorney fees.
Nonetheless, Robert was not restricted to merely contesting the fees he owed but could have
filed a counterclaim in response to the fee petition. Again, the malpractice claim and the earlier
fee petition pertain to the same operative core of facts, and the malpractice claim was properly
barred by the doctrine of res judicata.
¶ 49 In summary, Robert’s malpractice suit is an improper attack on the trial court’s ruling that
found the attorney fees were fair, reasonable, and necessary. The trial court has already ruled,
over Robert’s objection, that all of defendant’s fees for their legal services were “fair
reasonable and necessary.” Robert failed to appeal that ruling and cannot now appeal it by
default.
¶ 50 III. CONCLUSION
¶ 51 Accordingly, for all of the foregoing reasons, the decision of the circuit court of Cook
County is affirmed.
¶ 52 Affirmed.
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