dissenting:
I respectfully dissent. As the majority points out, 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. La Salle National Bank v. County Board of School Trustees, 61 Ill. 2d 524 (1975). Because I believe that the claim of professional malpractice could have been raised as a defense to Gulo’s claim for fees, I would affirm the trial court.
Professional negligence (malpractice) is a defense to a claim for attorney fees. See Bennett v. Gordon, 282 Ill. App. 3d 378 (1996). Thus, Wilson could have raised malpractice as a defense to Gulo’s fee petition. If Gulo’s lack of competent representation could have been raised as a defense to the fee petition, a final judgment in the fee litigation precludes Wilson from raising the issue of competency in subsequent litigation. La Salle National Bank, 61 Ill. 2d at 526.
I must disagree with the majority’s conclusion that the trial court precluded Wilson from raising negligence claims at the hearing on the fee petition. The record indicates that Wilson attempted to raise the issue, but her evidence was ruled inadmissible based upon a hearsay objection. Thus, Wilson could have raised competency as a defense, but her evidence was ruled inadmissible.
I would hold that the trial court was correct in holding that Bennett v. Gordon would control, and I would affirm the holding of the trial court.