2022 IL App (2d) 210376
No. 2-21-0376
Order filed September 20, 2022
NOTICE: This order was filed under Supreme Court Rule 23(b) and is not precedent
except in the limited circumstances allowed under Rule 23(e)(1).
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
______________________________________________________________________________
MICHAEL K. NUTTER, ) Appeal from the Circuit Court
) of Kane County.
Plaintiff-Appellant, )
)
v. ) No. 20-L-548
)
SCHILLER, DuCANTO & FLECK, LLP and )
GREGORY C. MAKSIMUK, ) Honorable
) James R. Murphy,
Defendants-Appellees. ) Judge, Presiding.
______________________________________________________________________________
JUSTICE HUDSON delivered the judgment of the court.
Presiding Justice Brennan and Justice Birkett concurred in the judgment.
ORDER
¶1 Held: Because the record on appeal is insufficient, we presume that the trial court’s order
dismissing plaintiff’s legal malpractice action as barred by res judicata had a
sufficient legal and factual basis.
¶2 Plaintiff, Michael K. Nutter, appeals from the dismissal of his action against defendants,
Schiller, DuCanto & Fleck, LLP (SDF) and Gregory C. Maksimuk (who worked for SDF), for
legal malpractice in their representation of him in a dissolution of marriage proceeding. We agree
with the trial court that its judgment granting defendant’s petition for fees and costs incurred in the
dissolution action barred, under res judicata, plaintiff’s malpractice action. Thus, we affirm.
2022 IL App (2d) 210376
¶3 I. BACKGROUND
¶4 In 2017, plaintiff hired defendants to represent him in a dissolution of marriage proceeding.
The dissolution proceeding was finalized in February 2019. The order dissolving the marriage
provided that each party was responsible for their attorney fees. Plaintiff appealed, represented by
SDF, and did not challenge the fee provision. In June 2020, this court affirmed the dissolution of
the parties’ marriage. See In re Marriage of Nutter, 2020 IL App (2d) 190480-U.
¶5 Approximately one month later, defendants moved to withdraw. The trial court granted
that motion, and Timothy E. Weiler appeared as plaintiff’s new attorney.
¶6 On August 28, 2020, defendants filed a petition to set the final fees and costs they incurred
in representing plaintiff in the dissolution case. Defendants sought $92,198.84 in fees and costs.
Plaintiff, a partner at a large law firm, received notice of the petition at the beginning of September
2020. On September 21, 2020, the trial court set the fee petition for a hearing on November 16,
2020, at 1:30 p.m.
¶7 Sometime around October 2020, plaintiff hired The Gooch Law Firm (Gooch) to represent
him in a legal malpractice action he wanted to bring against defendants. On October 28, 2020—
19 days before the scheduled hearing on the fee petition—Gooch entered a limited appearance in
the dissolution case and filed a motion to continue the hearing on the fee petition. Gooch asserted
that he was recently retained, needed time to prepare for the fee hearing, and had other cases to
attend to. Gooch asked that a hearing on his motion to continue be held at 9 a.m. on November
16, 2020, 4½ hours before the scheduled hearing on the fee petition.
¶8 On November 10, 2020, defendants responded, claiming that Gooch’s motion to continue
was filed not in good faith but as a delay tactic. On that same date, which was only six days before
the date set for a hearing on the fee petition, Gooch filed on plaintiff’s behalf a legal malpractice
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complaint. The complaint alleged that defendants (1) mishandled the issue of maintenance;
(2) failed to secure as plaintiff’s nonmarital property a sizeable savings account; (3) did not draft
a stipulation that one of plaintiff’s partnership accounts had no present value, as its value would
not be assessed until plaintiff retired; (4) failed to properly apportion incomes taxes due from the
marital estate; and (5) erred in not obtaining an expert to testify about plaintiff’s salary structure.
The complaint also requested a jury trial.
¶9 Thereafter, Gooch replied to defendants’ response to the motion to continue, attaching the
legal malpractice complaint to the reply. He stated that he would move to consolidate the fee
petition and the legal malpractice case once the legal malpractice complaint was served on
defendants. He asserted that “[u]nder [Illinois Supreme Court] Rule 232(b) [(eff. Jan. 1, 1967)]
the Fee Petition and the legal malpractice issues should be determined together.” He explained
that “[i]n this case the matters are not severable due to the common issues of fact as to the case.”
He noted that, because plaintiff was entitled to a jury trial for his legal malpractice action but not
entitled to one in the marriage dissolution case, “before anything, there must be a determination
on the Motion to Consolidate to figure out which Court will be hearing the matters.” Plaintiff filed
no response to the fee petition.
¶ 10 On the morning of November 16, 2020, the trial court denied the motion to continue. No
transcript (or acceptable substitute) from that hearing was filed in this court. See Ill. S. Ct. Rule
323(c) (eff. July 1, 2017). That afternoon, the trial court held a hearing on defendants’ fee petition.
The court’s written order provided that, after “hearing evidence and arguments from both parties,”
the court was awarding defendants $92,198.84—the entire amount of fees and costs they sought.
The court found that the rates SDF charged were reasonable and appropriate and that the fees and
costs incurred were reasonable and necessary. No transcript (or acceptable substitute) from the
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fee hearing was filed in this court. See id. Plaintiff never appealed the denial of the motion to
continue or the order awarding defendants’ fees and costs.
¶ 11 On December 18, 2020, defendants moved to dismiss plaintiff’s legal malpractice
complaint. They alleged that res judicata barred plaintiff from bringing the action because (1) the
legal malpractice case and the fee petition concerned the same parties, (2) the order awarding
defendants fees and costs was final, and (3) the fee petition and malpractice action involved the
same legal services. See 735 ILCS 5/2-619 (West 2020). In response, plaintiff asserted that
res judicata did not bar his legal-malpractice action because he had a right to a jury trial in the
legal-malpractice action and no such right in the marriage dissolution proceedings. Thus,
application of res judicata would deprive him of his right to a jury trial.
¶ 12 Although the trial court held a hearing on the motion to dismiss, no transcript (or acceptable
substitute) from that hearing was filed in this court. See Ill. S. Ct. Rule 323(c) (eff. July 1, 2017).
Following that hearing, the trial court granted defendants’ motion to dismiss. In doing so, the court
noted in its written order that “plaintiff recognized that the two competing claims could be
consolidated and tried together, and even acknowledged that the court could try both cases together
or bifurcated with plaintiff’s claim of legal malpractice tried to a jury and defendant’s petition for
Section 508 fees tried in simultaneous or sequential bench trial.” The court continued that “[t]he
divorce court judge had set a longer briefing schedule on the petition for fees, and yet there was
no response filed by the plaintiff, only the last minute filing of the legal malpractice law case.”
The court observed that plaintiff essentially sat on his hands, “pinning all hopes on the motion for
continuance based on the recent filing of this [legal malpractice] case filed in the ‘Law’ division
of the court.” This timely appeal followed.
¶ 13 II. ANALYSIS
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2022 IL App (2d) 210376
¶ 14 On appeal, plaintiff argues that the trial court erred in granting defendants’ motion to
dismiss his legal malpractice action. Defendants respond that the dismissal was proper under
res judicata principles, while also arguing that plaintiff invited the error of which he now
complains and that he is collaterally estopped from attacking the fee award via his legal
malpractice action.
¶ 15 Defendants moved to dismiss plaintiff’s legal malpractice complaint under section 2-619
of the Code of Civil Procedure (735 ILCS 5/2-619 (West 2020)). Section 2-619(a)(3) permits the
dismissal of an action that is barred by res judicata. See Tebbens v. Levin Conde, 2018 IL App
(1st) 170777, ¶ 20. We review de novo the dismissal of an action barred by res judicata. Miller
v. Lawrence, 2016 IL App (1st) 142051, ¶ 20.
¶ 16 The doctrine of res judicata bars not only matters that were raised in a prior proceeding
but also those matters that could have been raised but were not. Hudson v. City of Chicago, 228
Ill. 2d 462, 467 (2008). For res judicata to apply, there must be (1) a final judgment on the merits
rendered by a court of competent jurisdiction, (2) an identity of cause of action, and (3) the same
parties or their privies involved in both actions. Id.
¶ 17 Plaintiff does not deny that the parties involved in the fee action and the legal malpractice
action are the same. Rather, plaintiff argues that there was neither a final judgment nor identity of
cause of action between the two cases.
¶ 18 First, regarding whether there was a final judgment, plaintiff contends that “although the
Divorce Court entered a judgment on the attorneys’ fees, there was no final judgment entered as
to [defendants’] malpractice during their representation of [plaintiff] in the divorce.” Plaintiff
continues that “[t]he Fee Petition judgment only discussed a payment of fees and did not discuss
any malpractice issues.” We disagree with plaintiff.
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2022 IL App (2d) 210376
¶ 19 A final judgment must be entered in the prior action. See Wilson v. Edward Hospital, 2012
IL 112898, ¶ 9 (bar of res judicata extends “to those matters that could have been decided in the
prior action”) (emphasis added.). The prior action here was the fee petition. A final judgment
awarding fees and costs to defendants was entered on the fee petition. See Berger v. Matthews,
216 Ill. App. 3d 942, 944 (1991) (trial court order became final when the court resolved petition
for attorney fees). A prior judgment has a res judicata effect as to any issues actually raised or
issues that could have been raised. See Wilson, 2012 IL 112898, ¶ 9 Because issues concerning
legal malpractice could have been raised, whether legal malpractice was actually raised during
the fee petition proceedings is irrelevant. Id.; see Bennett v. Gordon, 282 Ill. App. 3d 378, 383
(1996) (fee action and legal-malpractice action had overlapping issues).
¶ 20 Second, while the record on appeal allows us to conclude that a final judgment was entered
on defendants’ fee petition, the record is insufficient to determine whether there is an identity of
cause of action in the two cases. As indicated, the record before us does not contain a transcript
(or acceptable substitute) from either the hearing on the fee petition or the hearing on the motion
to dismiss plaintiff’s legal malpractice action. See Ill. S. Ct. Rule 323(c) (eff. July 1, 2017). Thus,
we do not know what evidence was presented at either hearing. This is fatal to plaintiff’s appeal.
¶ 21 Plaintiff, as appellant, bears the burden of presenting a sufficiently complete record of the
proceedings to support his claim of error. Foutch v. O’Bryant, 99 Ill. 2d 389, 391 (1984); Short v.
Pye, 2018 IL App (2d) 160405, ¶ 48. “[I]n the absence of such a record on appeal, it will be
presumed that the order entered by the trial court was in conformity with law and had a sufficient
factual basis.” Foutch, 99 Ill. 2d at 392. Here, we do not know what, if any, evidence was
presented at the fee-petition or motion-to-dismiss hearings or what arguments were made. To the
extent that the parties conceded at oral argument that issues of legal malpractice were not addressed
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at the fee petition hearing, we determine that we are not bound by such a concession, especially
given that defendants raise the issue of an incomplete record in their brief and the record we do
have does not guide us in any way. See People v. Jackson, 162 Ill. App. 3d 476, 479 (1987) (“[W]e
do not consider ourselves bound by [the parties’] concession because the record is unclear and [the
concession] is directly at odds with the position taken by the [State] in the trial court.”).
Accordingly, we must presume that whatever evidence was presented at those hearings was
sufficient to sustain the court’s judgment.
¶ 22 Helpful on this point is Tebbens. There, the trial court dismissed the plaintiff’s legal
malpractice complaint as barred, under res judicata, by the court’s prior order granting the
defendants’ fee petition. Tebbens, 2018 IL App (1st) 170777, ¶ 14. On appeal, the plaintiff
claimed that res judicata did not apply because the finality element was unmet due to pending
motions. Id. ¶ 31. In considering that issue, the appellate court noted that “[the plaintiff] fail[ed]
to include documentation regarding these pending motions,” as neither the trial court’s written
order on the fee petition nor the appellate court’s prior unpublished order in the case indicated
what matters, if any, were still pending. Id. Although the appellate court ultimately concluded,
based on the record before it, that the motions the plaintiff claimed were still pending were resolved
“long before the trial court dismissed [the plaintiff’s] malpractice case,” it noted that the plaintiff
bore the burden of presenting a sufficiently complete record and that any doubts arising from the
incomplete record had to be resolved against him. Id. This was true even though the defendant—
the party moving to dismiss the legal-malpractice case as barred by res judicata—had the burden
of establishing a prima facie case of res judicata. Id. ¶¶ 31, 41.
¶ 23 Here, unlike in Tebbens, the record before us is insufficient to determine whether there was
an identity of cause of action. Thus, unlike in Tebbens, we must presume that the trial court’s
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order granting defendants’ motion to dismiss was proper and supported by a sufficient factual
basis. Like in Tebbens, we reach this conclusion even though defendants bore the burden of
establishing a prima facie case of res judicata.
¶ 24 In reaching our conclusion, we mention that it seems more than likely that issues of
defendants’ malpractice were presented at the hearing on the fee petition. Plaintiff attached the
legal-malpractice complaint to a response filed before the hearing on the fee petition.
¶ 25 That said, even this incomplete record suggests that res judicata bars plaintiff’s legal-
malpractice action. Relying on Wilson v. M.G. Gulo & Associates, Inc., 294 Ill. App. 3d 897
(1998), plaintiff argues that, because he “did not file an answer nor assert any affirmative defenses
to the Fee Petition that would have voluntarily introduced the same facts and evidence of
malpractice into the Fee Petition hearing,” res judicata does not bar his legal-malpractice action.
Wilson does not support plaintiff’s position.
¶ 26 In Wilson, the plaintiff hired the defendants to represent her in dissolving her marriage to
her husband. Id. at 899. When the plaintiff failed to pay the defendants, the defendants filed a fee
petition. Id. The plaintiff neither answered the fee petition nor raised any affirmative defense in
response to the petition. Id. At the hearing on the petition, she contested only the number of hours
for which the defendants billed her. Id. At a hearing, the plaintiff attempted to introduce evidence
that the defendants failed to competently assess the value of her husband’s pension. Id. The
defendants objected, and the trial court sustained the objection, reminding the plaintiff that she
contested only the defendants’ hourly rate. Id. The trial court awarded the defendants fees for the
hours they worked. Id. at 900. More than a year later, the plaintiff filed a legal-malpractice action
against the defendants. Id. The defendants moved for summary judgment, arguing that
res judicata barred the legal-malpractice action, and the trial court granted the motion. Id.
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¶ 27 On appeal, the appellate court determined that res judicata did not bar the plaintiff’s legal-
malpractice case. Id. at 901. The court noted that although legal malpractice was perhaps
ambiguously referenced during the fee petition hearing when the plaintiff attempted to introduce
evidence that the defendants failed to competently assess her husband’s pension, legal malpractice
could not have been fully litigated, as the plaintiff did not challenge the defendants’ hourly rate,
answer the fee petition, file a counterclaim, or assert any defense. Id. at 901-02. “Because [the
hourly rate] was uncontested[,] the trial court expressly excluded any evidence relating to the
defendants’ competency.” Id. at 901. Given that, “the defendants’ argument that [the plaintiff]
could have raised the negligence claim in the fee petition fail[ed].” Id.
¶ 28 Here, not only is the record insufficient, but Wilson supports the conclusion that dismissal
was proper. Unlike in Wilson, plaintiff asserted in the trial court that issues raised in the fee petition
concerned the same issues raised in the legal-malpractice case. Plaintiff not only wished to
consolidate the two cases, noting that the cases were “not severable” given the “common issues of
fact,” but he attached to his pleadings the legal-malpractice complaint. Thus, unlike the plaintiff
in Wilson, plaintiff “voluntarily introduced [at the fee petition proceedings] the same facts and
evidence necessary to sustain [the legal-malpractice] cause of action.” Id. (citing Bennett, 282 Ill.
App. 3d at 380).
¶ 29 III. CONCLUSION
¶ 30 For the foregoing reasons, we affirm the judgment of the circuit court of Kane County.
¶ 31 Affirm.
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