Suburban Real Estate Services, Inc. v. Carlson

2020 IL App (1st) 191953
Nos. 1-19-1953 & 1-19-1973 (consol.)
Opinion filed November 30, 2020
Modified upon denial of rehearing December 31, 2020

First Division
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
______________________________________________________________________________
SUBURBAN REAL ESTATE SERVICES, INC., and )
BRYAN BARUS, ) Appeal from the
) Circuit Court of
Plaintiffs-Appellants,
) Cook County.
v. )
) No. 16 L 5295
WILLIAM ROGER CARLSON JR. and CARLSON )
PARTNERS, LTD., ) Honorable
) Diane M. Shelley,
Defendants-Appellees. ) Judge, presiding.

JUSTICE HYMAN delivered the judgment of the court, with opinion.
Justices Pierce and Coghlan concurred in the judgment and opinion.

OPINION

¶1 Suburban Real Estate Services, Inc., and Bryan Barus retained defendants William Roger

Carlson Jr. and his law firm, Carlson Partners, Ltd., for legal advice in dissolving a company they

co-owned with ROC, Inc. (Plaintiffs will be collectively referred to as “Barus” and defendants as

“Carlson.”) After Barus followed Carlson’s advice, ROC, Inc. (ROC), sued Barus alleging breach

of his fiduciary duties. Barus retained new attorneys. They informed him that he likely had a legal

malpractice claim against Carlson but that he should wait until the claims by ROC were resolved
Nos. 1-19-1953 & 1-19-1973

before pursuing it. The trial court in the underlying lawsuit found Barus had breached his fiduciary

duties and ordered him to pay to ROC 50% of the fair value of the assets he improperly transferred

out of the company. After settling his claims with ROC, Barus filed a legal malpractice complaint

against Carlson.

¶2 Carlson moved for summary judgment on the grounds that the two-year statute of

limitations for legal malpractice claims barred Barus’s claims. The trial court granted Carlson’s

motion, finding that Barus’s legal malpractice claims began to accrue when his new attorneys

advised him he may have a legal malpractice claim against Carlson. The court concluded Barus

knew or should have known when he paid attorney’s fees to the new law firm that he had a legal

malpractice claim against Carlson.

¶3 Barus argues he timely filed his malpractice complaint within two years of the judgment

against him, at which time he first knew he had been injured by Carlson’s purported negligence.

Barus asserts that filing a malpractice claim before then would have been premature because, had

he prevailed in the underlying lawsuit, he would have had no injury. We agree. As the defendant

in the underlying lawsuit, Barus was not injured for the purposes of triggering the statute of

limitations until entry of the adverse judgment in the underlying lawsuit. Further, we reject

Carlson’s contention that summary judgment was warranted because Barus would have had to pay

50% of the fair value of the company’s assets to ROC under the company’s operating agreement.

Instead, Barus suffered no damages from the purported legal malpractice. The damages the trial

court imposed related directly to the steps Barus took in dissolving the company and would not

have been owed had he not breached his fiduciary duties.

¶4 We reverse the trial court order granting summary judgment and remand for further

proceedings.

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¶5 Background

¶6 Bryan Barus is the principal and sole owner of Suburban Real Estate Services, Inc., a

commercial real estate management company. In February 2006, Suburban Real Estate and

another company, ROC, formed a joint company, ROC/Suburban LLC. Suburban Real Estate and

ROC each owned a 50% interest in the new company, which acted as a vendor to Suburban Real

Estate in supplying commercial property management services. (Michael Siurek, the sole

shareholder of ROC, is not a party to the appeal.)

¶7 In 2010, Barus decided to end Suburban Real Estate’s involvement in ROC/Suburban LLC

and retained Carlson and his law firm to represent his company in unwinding the business

relationship. On the advice of Carlson, Barus sent a “break-up” letter to Siurek, notifying him of

the steps he planned to take to terminate his company’s relationship with ROC/Suburban LLC as

of July 1, 2010, including no longer using ROC/Suburban LLC as a vendor and taking most of

ROC/Suburban LLC’s employees.

¶8 On the advice of Carlson, Barus implemented the steps described in the letter including

taking most of ROC/Suburban’s employees in June 2010, while Suburban Real Estate was still a

member of ROC/Suburban and before the vendor relationship ended on July 1. About a month

later, in August 2010, ROC sued Barus in Du Page County alleging breach of fiduciary duty.

Carlson continued as Barus’s attorney for a while; Barus eventually retained new attorneys,

Gaspero & Gaspero Attorneys at Law, P.C. (Gaspero), to represent him. At a pretrial conference

in April 2013, the trial judge told Gaspero he would likely find that Barus’s conduct constituted a

breach of fiduciary duty if the case proceeded to trial. The judge further said that, to the extent

Barus’s conduct was recommended by Carlson, the advice constituted legal malpractice and a

malpractice claim was “a hundred percent” certainty.

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¶9 Gaspero told Barus about the trial judge’s comments and discussed the possibility of a legal

malpractice claim against Carlson. Gaspero also contacted an attorney who specializes in legal

malpractice to assess the viability of a malpractice claim against Carlson.

¶ 10 After a bench trial, the trial court entered judgment for ROC on June 17, 2015. Barus

reached a settlement with ROC and filed this legal malpractice case on May 26, 2016, alleging

that, as a result of Carlson’s legal advice, he had to pay more than $500,000 in claims and

attorney’s fees to ROC.

¶ 11 Carlson moved for summary judgment, arguing that Barus knew or should have known

about his alleged negligence in 2011, when Barus retained and started paying attorney’s fees to

Gaspero or by 2013 at the latest, when the trial judge told Gaspero that a malpractice claim was a

certainty. Carlson argued that the applicable two-year statute of limitations barred Barus’s

malpractice complaint. In response, Barus argued that the statute of limitations began to run on the

entry of the adverse judgment in the ROC litigation in 2015 and, thus, his complaint was timely.

¶ 12 The trial court entered a written order granting Carlson’s motion for summary judgment,

finding that Barus had notice of his malpractice claim as early as 2010, when ROC filed the

underlying lawsuit, and no later than April 2013, when the judge told his new attorney, Gaspero,

that a malpractice action against Carlson was a “one-hundred percent certainty” and Gaspero

sought advice from another attorney about when a malpractice claim needed to be filed.

¶ 13 The court noted that a legal malpractice claim usually does not begin to accrue until the

plaintiff has suffered an adverse judgment, settlement, or dismissal in the underlying action. But,

citing this court’s decisions in Construction Systems, Inc. v. FagelHaber, LLC, 2019 IL App (1st)

172430, and Nelson v. Padgitt, 2016 IL App (1st) 160571, the trial court stated that a legal

malpractice claim can accrue before an adverse judgment where a client has to pay legal fees as a

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result of attorney neglect. The trial court found Barus’s claim barred. It concluded that Barus

discovered or should have discovered the defective legal advice at least as of April 2013, when

Gaspero began investigating a potential malpractice claim and Barus incurred attorney’s fees “as

a direct result of defendants’ allegedly-negligent legal advice.” (The trial court also entered

summary judgment in favor of Gaspero on Carlson’s third-party complaint for contribution.

Carlson separately appealed that order in appeal No. 1-19-1973, which has been consolidated with

appeal No. 1-19-1953 but stayed pending the resolution of this appeal.)

¶ 14 Analysis

¶ 15 Standard of Review

¶ 16 Summary judgment should be applied where no genuine issues of material fact remain and

the moving party is entitled to judgment as a matter of law. 735 ILCS 5/2-1005(c) (West 2018).

The trial court may grant summary judgment after considering “the pleadings, depositions,

admissions, exhibits, and affidavits on file in the case” and construing that evidence in favor of the

nonmoving party. Purtill v. Hess, 111 Ill. 2d 229, 240 (1986). Summary judgment aids in the

expeditious disposition of a lawsuit, but it is a drastic measure that should be allowed only “when

the right of the moving party is clear and free from doubt.” Id. We review the trial court’s grant of

summary judgment de novo. Williams v. Manchester, 228 Ill. 2d 404, 417 (2008).

¶ 17 Statute of Limitations

¶ 18 An action for legal malpractice must be filed within two years from the time the plaintiff

“knew or reasonably should have known of the injury for which damages are sought.” 735 ILCS

5/13-214.3(b) (West 2018). To trigger the limitations period, the plaintiff must have a reasonable

belief that the injury was caused by the lawyer’s wrongful conduct and the plaintiff, therefore, has

an obligation to inquire further. Dancor International, Ltd. v. Friedman, Goldberg & Mintz, 288

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Ill. App. 3d 666, 673 (1997). But “[k]nowledge that an injury has been wrongfully caused does

not mean knowledge of a specific defendant’s negligent conduct or knowledge of the existence of

a cause of action,” and thus the statute of limitations may run despite the lack of actual knowledge

of wrongful conduct. (Internal quotation marks omitted.) Janousek v. Katten Muchin Rosenman

LLP, 2015 IL App (1st) 142989, ¶ 13 (citing Castello v. Kalis, 352 Ill. App. 3d 736, 744 (2004)).

¶ 19 “Injury” requires a legal client suffer a loss for which he or she may seek monetary

damages. Northern Illinois Emergency Physicians v. Landau, Omahana & Kopka, Ltd., 216 Ill. 2d

294, 306 (2005). Generally, a plaintiff does not sustain an injury until an adverse judgment,

settlement, or dismissal in the underlying action. Nelson, 2016 IL App (1st) 160571, ¶ 13. But “a

malpractice action may accrue before the trial court enters an adverse judgment if it is plainly

obvious that the plaintiff has been injured as the result of professional negligence or where an

attorney’s neglect is a direct cause of the legal expense incurred by the plaintiff.” (Internal

quotation marks omitted.) FagelHaber, 2019 IL App (1st) 172430, ¶ 20; Nelson, 2016 IL App

(1st) 160571, ¶ 14; see also Goran v. Glieberman, 276 Ill. App. 3d 590, 595-96 (1995) (client’s

cause of action for legal malpractice accrued when client retained and paid fees to successor

attorneys to duplicate initial attorney’s efforts).

¶ 20 Like the trial court, Carlson relies on FagelHaber and Nelson to argue that the statute of

limitations began as early as October 2010, when Barus retained Gaspero, incurring legal expenses

related to Carlson’s purportedly negligent legal advice, and no later than April 2013, when Gaspero

advised Barus he likely had a legal malpractice claim. Carlson contends the two-year statute of

limitations had expired when Barus filed the legal malpractice case in May 2016.

¶ 21 Barus asserts, however, that attorney’s fees he paid Gaspero were not actionable for

attorney malpractice, as no clear finding of attorney neglect had been shown in the underlying

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case. Rather, at that time, his malpractice claim against Carlson amounted to speculation. Then, in

June 2015, on the entry of the adverse judgment, his cause of action accrued. For support, Barus

relies on Lucey v. Law Offices of Pretzel & Stouffer, Chartered, 301 Ill. App. 3d 349 (1998), and

Warnock v. Karm Winand & Patterson, 376 Ill. App. 3d 364 (2007).

¶ 22 In Lucey, the plaintiff, relying on his attorney’s advice, solicited clients from his employer

before resigning to start his own company. Lucey, 301 Ill. App. 3d at 351. The plaintiff’s former

employer sued him. Id. at 352. While the lawsuit by the former employer was pending, the plaintiff

sued his attorney for malpractice. Id. The trial court dismissed the malpractice complaint, finding

it premature because the plaintiff had not yet sustained damages, as the underlying lawsuit by the

former employer remained pending. Id. The appellate court affirmed, holding that the legal

malpractice action accrued when the former employer’s lawsuit against the plaintiff concluded. Id.

at 355. The plaintiff could possibly prevail against the former employer, so the damages were

“entirely speculative until a judgment is entered against the former client or he is forced to settle.”

Id. “[A] cause of action for legal malpractice will rarely accrue prior to the entry of an adverse

judgment, settlement, or dismissal of the underlying action in which plaintiff has become entangled

due to the purportedly negligent advice of his attorney.” Id. at 356. The court explained that

requiring a client to bring a provisional malpractice suit would undermine judicial economy and

the attorney-client relationship. Id. at 357.

¶ 23 In Warnock, defendants-attorneys represented the sellers in a real estate transaction.

Warnock, 376 Ill. App. 3d at 365. Before closing, the purchasers asked for more time to obtain

financing. Id. at 366. The defendants drafted a letter to the purchasers’ attorney agreeing to extend

the closing date should the purchasers deposit money in an escrow account. Id. The letter

agreement also contained a liquidated damages clause stating that the earnest money would be

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forfeited if the closing did not occur. Id. When the purchasers failed to secure the necessary

financing before closing, the earnest money was released to the sellers, who refused to return it to

the purchasers. Id.

¶ 24 The purchasers sued the sellers alleging unjust enrichment. Id. The sellers retained another

law firm to represent them in the purchasers’ lawsuit. The trial court held that the letter agreements

defendants drafted were unenforceable and entered judgment against the sellers. Id. at 367. The

sellers then filed a legal malpractice action against the defendants, who moved for summary

judgment. The defendants argued the two-year statute of limitations began to accrue when the

sellers retained another law firm to defend them against the purchasers. Id. The sellers countered

that the statute of limitations began to run when the judgment was entered against them in the

underlying action. Id. The trial court granted summary judgment for the defendants. Id.

¶ 25 The appellate court reversed, reasoning that, when the purchasers filed the underlying

action, the sellers did not know whether the purchasers would or would not recover the earnest

money held in escrow. Id. at 370. The appellate court stated that “a cause of action for legal

malpractice will not accrue prior to the entry of an adverse judgment, settlement, or dismissal of

the underlying action in which plaintiff has become entangled due to the purportedly negligent

advice of his attorney.” Id. at 372. Until the trial court entered judgment in the purchasers’ favor,

the sellers did not actually discover and reasonably could not have discovered that the letter

agreements were negligently prepared. Id. Thus, the entry of the adverse judgment marked the date

on which the statute of limitations period commenced. Id.

¶ 26 Lucey and Warnock are directly on point. As in those cases, Barus did not suffer a realized

injury until the trial court entered the judgment against him on June 17, 2015. Before then, Barus’s

damages were “entirely speculative,” because he might have prevailed in the underlying case.

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Although Barus paid attorney’s fees to Gaspero before the judgment, there had not yet been a clear

finding of attorney neglect. If Barus had filed a malpractice complaint against Carlson and

prevailed in the underlying lawsuit, the malpractice complaint would have been pointless and, as

this court found in Lucey, would undermine judicial economy and the attorney-client relationship.

Lucey, 301 Ill. App. 3d at 357.

¶ 27 We reject defendant’s reliance on FagelHaber and Nelson for the proposition that the

payment of attorney’s fees here constituted a “plainly obvious” injury triggering a claim of legal

malpractice.

¶ 28 In Nelson, the attorney negotiated an employment agreement on the plaintiff’s behalf,

which stipulated a loss of salary and commission on termination for cause. Nelson, 2016 Il App

(1st) 160571, ¶ 15. After the plaintiff was terminated for cause, he brought a malpractice action

against his former attorney for failing to negotiate an employment contract that was in his best

interests. Id. ¶¶ 4, 7. There, an adverse judgment was unnecessary for the plaintiff to discover

injury—its existence was established when the client filed the underlying suit alleging he had

already sustained injury. Id. ¶ 16. The court differentiated the case from Lucey “where ‘actionable

damages were a mere potentiality’ until there was an adverse judgment.” Id. ¶ 21 (quoting Lucey,

301 Ill. App. 3d at 359). The court explained that, because the client in Lucey was the defendant

in the underlying suit, he did not know of his injury “until after the adverse judgment because he

was not the one to pursue legal action.” Id. ¶ 22.

¶ 29 In FagelHaber, the plaintiff, a steel fabricator, retained the defendant-lawyer to prepare

and record a mechanic’s lien. FagelHaber, 2019 IL App (1st) 172430, ¶ 4. The lawyer filed the

mechanic’s lien but failed to provide notice to a bank, which later filed a mortgage against the

property. Id. When litigation over the liens ensued, the client retained a different attorney and

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learned that the previous attorney had not provided proper notice of the mechanic’s lien to the

bank. Id. ¶ 6. The plaintiff sued the attorney for legal malpractice, asserting that failure to perfect

the mechanic’s lien resulted in its lien being subordinate to the bank’s mortgage lien. Id. ¶ 8. The

attorney moved for summary judgment, asserting that the statute of limitations barred the

plaintiff’s legal malpractice action because, when plaintiff retained new counsel, the plaintiff knew

or should have known about the failure to serve the required statutory notice of its mechanic’s lien

on the bank. Id. ¶ 9.

¶ 30 The trial court granted the motion for summary judgment, and the appellate court affirmed.

Relying on Nelson, the court found that the plaintiff’s legal malpractice action against the law firm

for failing to perfect its mechanic’s lien accrued when it paid attorney’s fees to replacement

counsel. Id. ¶ 24. The court noted that replacement counsel sent a letter to the original attorney

asking for his cooperation in addressing the “problematic situation” in regard to priority of the

plaintiff’s mechanic’s lien. Id. The letter demonstrated (i) the replacement attorney knew of the

law firm’s error in perfecting the mechanic’s lien, (ii) the error caused injury to the plaintiff, and

(iii) the plaintiff paid the replacement attorney for services to minimize the law firm’s negligence.

Id. ¶ 29.

¶ 31 The court distinguished Warnock and similar cases that have “reiterated the admonishment

against provisional or prophylactic legal malpractice cases.” Id. ¶ 29. Those “cases all have the

common thread that the attorney’s negligence could not have reasonably been discovered before

the trial court entered an adverse judgment.” Id. Conversely, the court found that an adverse

judgment was unnecessary for discovering the negligence “because the negligence was obvious

*** when substitute counsel discovered the defect in the lien and began researching and

developing alternative theories regarding its unperfected mechanic’s lien.” Id. ¶ 27.

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¶ 32 We agree with the holdings in FagelHaber and Nelson, but neither applies here. In both

cases, the clients were the plaintiffs in the underlying suits, and their injuries were established

before a judgment in the underlying suit. Hence, the clients knew when they retained new counsel

and began paying attorney’s fees that they had likely been injured by the attorney’s negligence.

Conversely, as in Lucey and Warnock, Barus, as the defendant in the underlying lawsuit, could not

have known he had been injured until entry of the judgment against him. As noted, had Barus

prevailed in the underlying lawsuit and the trial court found that he did not breach his fiduciary

duties by following Carlson’s legal advice, he would have no claim for legal malpractice against

Carlson. So, filing a complaint before the judgment would have been premature and pointless.

¶ 33 The judge’s comments before trial in the underlying case that a legal malpractice claim

against Carlson was “a hundred percent” certainty are misplaced. As noted, with limited exceptions

not relevant here, a plaintiff does not sustain an injury until suffering an adverse judgment,

settlement, or dismissal in the underlying action. Nelson, 2016 IL App (1st) 160571, ¶ 13. The

judge’s comments may have been made for any number of reasons, and they do not and cannot

substitute for adverse judgment, settlement, or dismissal.

¶ 34 The dissent contends Barus suffered an adverse disposition triggering the statute of

limitation when the trial court entered a temporary restraining order (TRO) in the underlying

lawsuit. Not so. A TRO preserves the status quo until the case can be decided on its merits. Stocker

Hinge Manufacturing Co. v. Darnel Industries, Inc., 94 Ill. 2d 535, 542 (1983). The TRO

prohibited Barus from denying ROC access to company documents and information and from

taking steps to further dissolve the company. It does not constitute a judgment adverse to Barus,

as it merely required him to maintain the company’s status quo while the case was pending.

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Further, a party may later seek to modify a TRO for any number of reasons, and nothing either

indicates or suggests that the trial court or any party considered the TRO as an adverse ruling.

¶ 35 Also without basis is the dissent’s contention that the trial court order dissolving the

company was an adverse judgment. Indeed, Barus wanted to dissolve the company and, as noted,

took steps to unwind the business relationship with ROC. Again, only the trial court’s June 2015

finding that Barus breached his fiduciary duties to ROC in trying to dissolve the company

constitutes an adverse judgment.

¶ 36 The dissent then asserts that Barus’s claim accrued when he incurred attorney’s fees in

defending against ROC claims. Usually, defendants in a lawsuit pay an attorney to represent their

interests, which is exactly what Barus did here. Not until the trial court found he had breached his

fiduciary duties did Barus have knowledge that he had been injured by Carlson’s legal advice, and

filing a legal malpractice lawsuit before then would have been premature. Under the dissent’s

theory, whenever a legal client follows an attorney’s advice and is later sued, the client would need

to sue the attorney within two years to preserve his or her malpractice claim, likely long before the

outcome of the underlying lawsuit is known and regardless of whether the client believes he or she

will prevail in the underlying suit. Not only is this not the law, but it also would unnecessarily

place lawyers in an untenable position whenever a client is sued as a result of legal advice.

¶ 37 The statute of limitations on Barus’s legal malpractice claim began to accrue when the trial

court in the underlying case entered judgment against him, June 17, 2015. He timely filed his

complaint less than a year later, May 26, 2016.

¶ 38 Carlson alternatively argues that regardless of the statute of limitations, we should affirm

the summary judgment order because the damages Barus was ordered to pay, namely, 50% of the

fair value of the assets Barus improperly transferred to his own company, constituted a pre-existing

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legal obligation under the ROC/Suburban operating agreement, unrelated to Carlson’s legal

advice. In other words, Carlson asserts Barus suffered no damages because he would have been

required to compensate ROC for its 50% share of the ROC/Suburban assets regardless of any

purported attorney malpractice. We disagree. Under the operating agreement, Barus could have

ceased using ROC/Suburban at any time. And, as the trial court in the underlying case noted, had

Barus disassociated properly under the agreement, ROC/Suburban would have no recourse.

Instead, Barus improperly took ROC/Suburban’s employees in June 2010, before the vendor

relationship terminated on July 1, 2010, and his failure to act properly was a decisive factor in the

court’s damages award. The court calculated damages as 50% of the assets Barus took, which

included the full value of the contracts, an amount Barus had to pay due to his breach of his

fiduciary duties.

¶ 39 We reverse the trial court’s summary judgment order and remand for further proceedings.

¶ 40 Reversed and remanded.

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Nos. 1-19-1953 & 1-19-1973

No. 1-19-1953

Cite as: Suburban Real Estate Services, Inc. v. Carlson, 2020 IL App
(1st) 191953

Decision Under Review: Appeal from the Circuit Court of Cook County, No. 16-L-
5295; the Hon. Diane M. Shelley, Judge, presiding.

Attorneys John W. Moynihan, of Downers Grove, for appellants
for Suburban Real Estate Services, Inc. and Bryan E. Barus.
Appellant:

Attorneys John J. D’Attomo, of Nisen & Elliott, LLC, of Chicago, for
for appellees William Roger Carlson Jr. and Carlson Partners, Ltd.
Appellee:
Rebecca M. Rothmann, of Wilson Elser Moskowitz Edelman
& Dicker LLP, of Chicago, for other appellees.

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