Rosa v. Bush , 2022 IL App (1st) 201115-U ( 2022 )

2022 IL App (1st) 201115-UNo. 1-20-1115
Order filed March 24, 2022
Fourth Division
NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the
limited circumstances allowed under Rule 23(e)(1).
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
______________________________________________________________________________
TONI A. ROSA, ) Appeal from the
) Circuit Court of
Plaintiff-Appellant, ) Cook County.
)
v. ) No. 17 L 63020
)
ANNA M. BUSH and BUSH AND HEISE, ) Honorable
) Martin S. Agran,
Defendants-Appellees. ) Judge, presiding.
JUSTICE LAMPKIN delivered the judgment of the court.
Presiding Justice Reyes and Justice Martin concurred in the judgment.
ORDER
¶1 Held: (1) The trial court’s order granting defendants’ motion for summary judgment is
affirmed; and (2) the trial court’s order granting defendants’ motion to strike
plaintiff’s affidavit is affirmed.
¶2 Plaintiff Toni A. Rosa appeals from the circuit court’s order granting summary judgment
for plaintiff’s former attorneys Anna M. Bush (Bush) and the law firm of Bush and Heise.
No. 1-20-1115
Plaintiff’s first amended complaint alleged legal malpractice against defendants based on Bush’s
representation of plaintiff in an underlying divorce action.
¶3 On November 27, 2019, the trial court granted summary judgment for defendants and also
granted defendants’ motion to strike plaintiff’s affidavit. On December 23, 2019, plaintiff filed a
motion to reconsider both rulings. On September 16, 2020, the trial court denied plaintiff’s motion
to reconsider. On October 15, 2020, plaintiff filed a timely notice of appeal. We have jurisdiction
pursuant to Illinois Supreme Court Rule 303 (eff. July 1, 2017). 1
¶4 For the reasons that follow, we affirm the trial court’s judgment.
¶5 I. BACKGROUND
¶6 A. The Underlying Divorce Action
¶7 On November 22, 1997, plaintiff and Timothy R. Wujcik were married. Between 2000 and
2004, the couple had three children, two boys, and one girl. After an unsuccessful attempt at
mediation, the parties hired attorneys to represent them. Plaintiff hired and later fired attorney
Margaret Zuleger while Wujcik hired attorney Patti S. Levinson. On September 30, 2014, plaintiff
hired Bush to represent her in the divorce proceeding brought by Wujcik.
¶8 On April 17, 2015, judgment was entered on the marital settlement agreement reached by
plaintiff and Wujcik. Wujcik’s attorney drafted the agreement. As is pertinent to the claims raised
on appeal, the agreement contained the following provisions:
1
In adherence with the requirements of Illinois Supreme Court Rule 352(a) (eff. July 1, 2018),
this appeal has been resolved without oral argument upon the entry of a separate written order.
-2-
No. 1-20-1115
“1.05 Without collusion in the pending proceedings, and without any intent
to stimulate a dissolution of marriage, [Wujcik] and [plaintiff] believe that it is in
their best interest to settle between themselves all rights and claims against each
other, including, but not limited to, past, present, and future maintenance and
spousal support, and attorneys’ fees and costs, and to forever, finally and fully settle
between themselves all other rights and obligations growing out of any relationship
now or previously existing between them and to fully and finally settle any and all
rights of every kind, nature, description, which either of them now has or may
hereafter have or claim against the other, including, but not limited to homestead,
dower, and all rights and claims in and to the property of the other of every kind,
nature, and description, whether real, personal, beneficial, community, marital,
non-marital, or mixed, now owned or which hereafter may be acquired by either of
them and further including all rights and claims in and to the estate of the other.
The parties also agree that it is in the best interest of their children to settle all issues
relating to their respective obligations regarding their children, including, but not
limited to, child custody, parenting time, college expenses and support. To this end,
the parties have each made complete disclosure of all assets.
1.06 Each party acknowledges that each is sufficiently conversant with
regard to all of the wealth, property and income of the other and any of their
respective rights thereto to enter into this Agreement. The parties acknowledge that
each has been informed to their respective satisfaction as to the wealth, property,
-3-
No. 1-20-1115
estate and income of the other, and that each has been fully informed of his or her
respective rights and obligations in the premises. The parties have been advised that
they may attempt to compel discovery and inspection of the personal and business
financial books and records of the other party with accountants, appraisers,
attorneys, and other investigating, appraising and evaluating [sic] any and all of the
personal and business assets, liabilities, and income of the other. Each party has
specifically waived the exercise of these rights to the extent not pursued and has
elected to take no further steps in connection with such discovery, investigation,
appraisal, or evaluation. Each party expressly states that no representation has been
made to him or her by the other party or his or her attorney other than what is
contained in this Agreement.
1.07 [Wujcik] and [plaintiff] expressly state that they have voluntarily
entered into this Agreement free from any duress and coercion and with full
knowledge and understanding of each and every provision contained in this
Agreement. After carefully considering the terms and provisions of this Agreement,
each of the parties states that he or she believes that this Agreement is fair and
reasonable under the present circumstances and is not unconscionable.
***
2.02 Until the entry of a Judgment of Dissolution of Marriage which
incorporates this Agreement, either directly or by reference, each party reserves the
right to prosecute any action that he or she has brought or may hereafter bring
-4-
No. 1-20-1115
against the other, including the pending action, and each party reserves the right to
defend against any action which may be commenced by the other.
***
11.01 [Wujcik] and [plaintiff] each represent and warrant to the other that
he or she has duly reported all state and federal income taxes due and owing as a
result of his or her income both prior and throughout the marriage from all sources
to and including the year 2014.
***
11.03 With respect to all joint tax returns filed by the parties, [Wujcik] and
[plaintiff] agree as follows:
A. The parties shall notify the other immediately, in writing, of any
deficiency assessment. Either of the parties shall have the right to contest any
deficiency assessment received in connection with the filing of joint returns. In the
event a party so elects, the other party hereby agrees to cooperate fully with the
contesting party’s selected representative in contesting said assessment, including
the execution of any and all documents and the furnishing of testimony, if necessary
and appropriate in pursuing said contest. [Wujcik] shall be solely responsible for
payment of the amount ultimately determined to be due thereon, together with
interest and penalties, and any and all expenses that may be incurred if he decides
to contest the assessment.
-5-
No. 1-20-1115
B. Should either party hereafter deem it necessary or advisable to file an
amended joint state or federal return for any previous year or years, the other party
agrees to execute such returns. Each party’s agreement herein to execute such
amended returns is conditioned upon the requesting party providing the other party
with a written agreement that any Amended Tax Return shall pay and defray any
tax, interest, penalties and all expenses ultimately determined to be due thereon,
and save, indemnify and hold harmless the other with respect to any such return to
the same extent and in the same respects as any other joint tax return referred to in
this Agreement.”
¶9 The parties also executed a joint parenting agreement. In it, the parties agreed that it was
in the best interests of their three minor children that Wujcik have custody, parenting rights, and
responsibilities for the children and that their primary residence remain with him. Wujcik also
assumed all of the financial obligations for the children, including medical, dental, psychiatric,
psychological, orthodontic, health insurance, and extracurricular activities. He also assumed
responsibilities for the children’s college education expenses, for which college accounts had
already been created and substantial sums of money set aside.
¶ 10 The marital settlement agreement provided that Wujcik would pay plaintiff $5,000 per
month in maintenance until September 1, 2019. The amount and duration of the maintenance term
were made nonmodifiable and nonreviewable. Wujcik also agreed to pay plaintiff’s car lease
payments and car insurance premiums until November of 2016, when the lease expired. At the
-6-
No. 1-20-1115
expiration of the lease, Wujcik would pay plaintiff $25,000 towards the purchase of another
vehicle.
¶ 11 The marital settlement agreement contained a “ride-through” provision, i.e., maintenance
payments would not terminate upon plaintiff’s remarriage or entry into another conjugal
relationship. Wujcik waived his right to receive maintenance, alimony, or spousal support of any
kind from plaintiff, whether past, present, or future. These terms were also made nonmodifiable.
Wujcik also agreed to maintain a life insurance policy unencumbered in at least $500,000 with his
children as the sole, irrevocable beneficiaries of such policy.
¶ 12 The parties agreed that title to the family residence at 3123 Old McHenry Road in Long
Grove, Illinois, would be held solely in Wujcik’s name. Upon entry of judgment on the agreement,
plaintiff would execute a quitclaim deed conveying her rights in the property to Wujcik. In
consideration of this agreement, plaintiff retained assets described in “Exhibit B,” the asset
division sheet. Plaintiff’s assets included the leased 2013 Cadillac SRX, and her non-marital
property, totaling $145,000. Wujcik’s non-marital property totaled $787,115.
¶ 13 The parties agreed that the fair market value of the Long Grove home was $1,200,000. The
property was mortgaged for $563,726 and had an equity value of $635,274. Prior to the execution
of the marital settlement agreement, Wujcik gave plaintiff the equivalent of her share of the equity
in the home from money realized from Wujcik’s sale of another property. Wujcik would retain
sole possession of the marital residence and be responsible for monthly mortgage payments and
real estate taxes.
¶ 14 On April 29, 2015, the court entered judgment for dissolution of marriage.
-7-
No. 1-20-1115
¶ 15 B. Post-Judgment Litigation
¶ 16 Nearly two years after the entry of judgment for dissolution of marriage, plaintiff retained
attorney Sally Lichter to explore the possibility of obtaining child support for the couple’s
daughter, who had begun living with plaintiff in May of 2017. In a letter dated March 9, 2017,
Lichter informed Wujcik that plaintiff was seeking an additional $1,500 per month to assist her
with their daughter’s living expenses.
¶ 17 Wujcik replied via email, informing Lichter that he continued to maintain sole residential
custody of their children, but that plaintiff had accepted his offer of increased visitation. Wujcik
maintained that plaintiff was reimbursed for any and all expenditures related to their children while
in her care. She personally incurred no costs nor provided any monetary benefits to the children.
Plaintiff did not pay for any meals, entertainment costs, supplies, or purchases, including clothes.
¶ 18 On April 14, 2017, plaintiff informed Lichter that she did not wish to pursue the matter of
child support any further.
¶ 19 In the meantime, on March 3, 2017, plaintiff had filed a complaint in the instant case.
Plaintiff alleged that defendant committed legal malpractice in her representation of plaintiff in the
divorce proceeding.
¶ 20 On August 8, 2017, the trial court granted defendants’ motion to dismiss. Plaintiff was
granted 28 days to file a first amended complaint.
¶ 21 On September 5, 2017, plaintiff filed her first amended complaint. In it, she alleged that in
early 2014, Wujcik instituted a dissolution of marriage proceeding against her in Lake County,
-8-
No. 1-20-1115
Illinois. After consulting with another attorney, plaintiff retained Bush to represent her in the
dissolution proceeding.
¶ 22 Plaintiff alleged that defendant breached the standard of care by: (1) failing to conduct
discovery to determine Wujcik’s true income and assets; (2) failing to determine whether the
marital residence was marital or non-marital property; (3) failing to depose Wujcik; (4) failing to
conduct discovery against third parties or non-party witnesses to determine Wujcik’s true income;
(5) failing to obtain Wujcik’s 2014 and 2015 tax returns prior to advising plaintiff to accept the
agreement; (6) falsely informing plaintiff that until the judgment for dissolution was entered she
could still litigate the matter; (7) advising plaintiff that the agreement was the best deal she could
get and would not get as good a deal after a trial; (8) advising plaintiff to accept a non-permanent,
nonreviewable maintenance award of $5,000 per month for only four years; (9) failing to utilize
the financial planner’s valuation numbers for retirement accounts and assets in drafting the
agreement; and (10) otherwise breaching the retainage agreement.
¶ 23 Plaintiff alleged that absent “complete discovery” to determine the true value of Wujcik’s
business and assets that Bush should not have dispensed advice to her. Plaintiff averred that Bush’s
actions and inaction damaged her in excess of $840,000. The alleged damages included a $100,000
shortfall in marital assets where the calculations of a financial planner had been disregarded.
¶ 24 Plaintiff maintained that she should have received maintenance for 80% of the years that
she was married, i.e., a total of 13 years. Plaintiff opined that her maintenance award for the first
four years should have been $480,000 and that she should have received an additional $500,000
for the nine remaining years.
-9-
No. 1-20-1115
¶ 25 Plaintiff alleged that defendant pressured her into accepting the maintenance award and
that in addition to being half of what it ought to have been that it should not have been made
nonreviewable. Plaintiff admitted, however, that her calculation of maintenance was based on her
belief that Wujcik’s business was worth several million dollars, a belief that resulted in calculations
that were “just rhetorical.” In actuality, plaintiff had no idea how much money Wujcik actually
made, and plaintiff admitted that she had nothing to substantiate these numbers, which were simply
based on her and Wujcik’s “lifestyle.” Plaintiff also admitted that she was the one who had
determined the $5,000 per month maintenance amount, which Wujcik agreed to, and that this
number was used as a baseline thereafter.
¶ 26 On October 27, 2017, defendants filed a motion to dismiss plaintiff’s first amended
complaint.
¶ 27 On November 27, 2017, plaintiff filed a response to defendants’ motion to dismiss
plaintiff’s first amended complaint.
¶ 28 On December 4, 2017, defendants filed a reply to plaintiff’s response to defendants’ motion
to dismiss plaintiff’s first amended complaint.
¶ 29 On December 13, 2017, the trial court denied defendants’ motion to dismiss plaintiff’s first
amended complaint. Defendants were ordered to answer the complaint within 28 days, and
discovery commenced.
¶ 30 On January 10, 2018, defendants filed an answer to plaintiff’s complaint. The respective
parties filed answers to interrogatories. In the 15 months that followed, depositions were also
taken.
- 10 -
No. 1-20-1115
¶ 31 On September 24, 2018, plaintiff was deposed. Plaintiff testified that her marriage
deteriorated after Wujcik bought the family home in Long Grove at an auction without her
knowledge or consent. The house was everything that plaintiff did not want. Plaintiff stayed with
Wujcik for the next five years but eventually decided to divorce him.
¶ 32 Initially, the parties attempted to achieve a divorce through mediation. Such efforts failed
when the mediator, Sara Stolberg informed her that based on the materials that the parties had
provided, Stolberg believed that plaintiff would have to pay Wujcik maintenance. Plaintiff testified
that with respect to the couple’s assets, Wujcik felt that “every penny belonged to him” because
their assets were derived from a trust held by him that he established prior to the marriage.
¶ 33 When the mediation failed, Stolberg gave plaintiff and Wujcik the names of two attorneys.
Plaintiff and Wujcik each picked one to represent them. After hiring and firing Margaret Zuleger,
plaintiff, hired Bush. Plaintiff gave Bush the same documents that she had previously given
Zuleger.
¶ 34 Plaintiff stated that the couple’s jointly filed tax returns showed that Wujcik’s annual
income was between $80,000 and $130,000. Plaintiff testified that she “was not involved with any
financial stuff” and neither reviewed nor approved the filed tax returns. When plaintiff saw a
document that indicated Wujcik made $80,000 one year and $100,000 another year, plaintiff
thought that this was impossible given their lifestyle. Plaintiff testified that she shared these
thoughts with Bush, informing her that the couple spent about $30,000 a month so that it did not
“add up.”
- 11 -
No. 1-20-1115
¶ 35 Plaintiff testified that Wujcik owned a recruiting company, Chase Winters, and operated
out of the family home. After Wujcik initiated the divorce action, plaintiff learned that she was
named an employee of the company. Additionally, she learned that a 401(k) plan had been set up
in her name, despite the fact that she never signed any paperwork and was never an employee of
the company. Plaintiff had, however, seen some W-2s in her name for 2007 and 2008 and had
asked Wujcik about them because she had never received any money from his company.
¶ 36 Plaintiff alleged that Wujcik forged her name on a number of documents, including the
mortgage for a previous house in Highland Park and the current Long Grove house, but also
admitted that she had occasionally signed documents without asking what they were or knowing
their contents.
¶ 37 Plaintiff was “deflated” by the settlement offer because she knew Wujcik had more money.
Plaintiff testified that Bush “lacked confidence” to try to get plaintiff more money by investigating
the business and said that Bush told her that if she went to trial, it would cost plaintiff more money
and possibly result in her receiving the same sum or even less than what Wujcik had offered.
¶ 38 Plaintiff admitted that Bush was “the one that suggested we could possibly get a forensic
attorney to do that, but she didn’t encourage it because, once again, it was very costly and people
who own their own business, such as Tim, the outcome might not have been what we were hoping
for.”
¶ 39 Plaintiff also admitted receiving a letter from Bush dated January 14, 2015, memorializing
a conversation between the two of them that day. Plaintiff said that when she and Bush discussed
the discrepancy between the filed tax returns and the couple’s lifestyle, it was “more of a
- 12 -
No. 1-20-1115
discouragement and not a debate.” Plaintiff agreed to the terms set out in the marital settlement
agreement because she was “frustrated.” She admitted to signing each page of the agreement but,
when asked whether she understood its contents, stated: “probably not.”
¶ 40 Plaintiff also admitted that while Bush represented her, that cost was a concern because
Wujcik had refused to assume plaintiff’s attorney fees. Plaintiff testified: “I was wanting to be
done with it, but I also felt like – I truly feel had [defendant] given me the encouragement to go
further because we could get more, I would have; but when I didn’t get that encouragement, yes,
I was ready to settle.”
¶ 41 Plaintiff testified that when she settled with Wujcik based on Bush telling her that this was
the best deal that she was going to get, that plaintiff felt like she “lost.” Deep down inside plaintiff
felt like she could get more. Plaintiff had put her faith in Bush to fight for her, and if Bush did not
do so, plaintiff did not know what she could do about it. Plaintiff did not think about going to see
another attorney because she was exhausted, did not want to, and because she believed that Wujcik
would put up a hard fight.
¶ 42 As her marriage was ending, plaintiff began a relationship with Chip Woods, who lived in
Texas. Plaintiff intended to move to Texas but changed her mind immediately after arriving there.
¶ 43 Two years after the divorce, plaintiff’s daughter began living with her. Plaintiff consulted
attorney Sally Lichter to see if she could get additional monetary support from Wujcik. According
to plaintiff, Lichter recommended that she seek out an attorney to determine whether she had a
potential malpractice claim against defendant.
- 13 -
No. 1-20-1115
¶ 44 Lichter was deposed on January 10, 2019. In 2017, plaintiff consulted with her on a post-
divorce matter. Plaintiff wanted child support for the couple’s daughter, who was now living with
plaintiff. Lichter prepared a letter for plaintiff addressed to Wujcik requesting an additional $1,500
per month in child support. In the process of representing plaintiff, Lichter looked at the marital
settlement agreement. She asked plaintiff why the agreement only provided for five years’
maintenance and why the house was considered a nonmarital asset.
¶ 45 Lichter provided no testimony regarding the standard of care and explicitly testified that
she had no opinion on whether Bush violated the standard of care. Lichter testified that plaintiff
decided not to go forward with her efforts to gain child support because she believed that it would
be extremely difficult to work with Wujcik and, if successful, her daughter might be forced to
change schools.
¶ 46 Bush was deposed on April 11, 2019. Bush had practiced law in Barrington, Illinois, for
42 years, and her practice was limited to family law. In 2014, Super Lawyers recognized Bush as
one of Illinois’s top 50 women lawyers. Bush testified that plaintiff was initially represented by
Margaret Zuleger but later hired Bush because plaintiff felt that Zuleger was not moving the case
quickly enough.
¶ 47 Plaintiff told Bush that she did not want to pay for a valuation of Wujcik’s business, which
was, according to plaintiff, a non-marital asset. Bush testified that she encouraged plaintiff to value
the assets by conducting a forensic accounting or at least some discovery to “find out what there
was.” Discovery would have included depositions, written interrogatories, request of production
of documents, forensic accounting, and appraisals. Plaintiff decided not to investigate further
- 14 -
No. 1-20-1115
because she wanted the divorce to be quickly concluded. Bush’s January 14, 2015 letter
memorialized her conversation with plaintiff wherein plaintiff instructed Bush not to initiate any
further discovery.
¶ 48 Defendant determined that a $5,000 monthly maintenance award was adequate based on
what plaintiff would have been statutorily entitled to. The sum was arrived at based on joint tax
returns filed by plaintiff and Wujcik. While the maintenance term was shorter than what plaintiff
was statutorily entitled to (750 ILCS 5/504(b-1) (West 2014)), based on Wujcik’s income, the
dollar amount of the award was higher than what was statutorily required. Additionally, the
agreement had a “ride-through” provision that disallowed any change to the maintenance amount
even if plaintiff entered into a conjugal relationship or remarried. The agreement also prohibited
Wujcik from seeking any modification to the maintenance amount, even if his income decreased.
Plaintiff had expressed concern that Wujcik’s income could decrease in the future.
¶ 49 Bush testified that no issue existed as to the status of the Long Grove home because it was
included in Wujcik’s assets, and plaintiff’s portion of the equity in the home had been paid out to
her from the sale of another one of Wujcik’s properties.
¶ 50 On July 15, 2019, defendants filed a motion for summary judgment pursuant to 735 ILCS
5/2-1005 (West 2014). In it, defendants alleged that summary judgment should be granted for
several reasons. Defendants maintained that the undisputed facts established that Bush advised
plaintiff of the opportunity to conduct discovery, and plaintiff declined to do so. Defendants
maintained that the deposition testimony established that Bush complied with the standard of care.
Defendants further maintained that no named expert supported plaintiff’s malpractice claim.
- 15 -
No. 1-20-1115
Plaintiff also failed to establish proximate cause or damages based on Bush’s representation of
her.
¶ 51 Defendants maintained that the evidence showed that when plaintiff inquired whether an
investigation into or discovery of Wujcik’s business could be conducted based on her belief that
he had more money than was reflected on their joint tax returns or financial disclosures, Bush told
her that it could but would cost additional time and money. Despite Bush encouraging plaintiff to
conduct discovery, including forensic accounting, depositions, interrogatories, requests for
production, and appraisals, plaintiff decided not to investigate further. The conversation between
Bush and plaintiff was memorialized in Bush’s January 14, 2015 letter.
¶ 52 Defendants maintained that the evidence established that plaintiff told defendant that
Wujcik’s business was a non-marital asset that predated her marriage and that she did not want to
pay for its valuation. Defendants maintained that plaintiff failed to provide any support to establish
that Wujcik’s business was part of the couple’s marital assets or that plaintiff had any interest in
the business.
¶ 53 Relying on Barth v. Reagan, 139 Ill. 2d 399 (1990), defendants maintained that plaintiff
failed to present evidentiary facts to support the elements of a legal malpractice claim. Such an
action required that plaintiff establish (1) an attorney-client relationship, (2) a breach of the
standard of care, and (3) but for the breach of the standard of care, plaintiff would have received a
different sum of money or benefit. Defendants alleged that plaintiff had only established the
existence of an attorney-client relationship and failed to show a breach of the standard of
reasonable care, proximate cause, or damages. Attorney Lichter’s deposition testimony failed to
- 16 -
No. 1-20-1115
satisfy plaintiff’s burden of proof. Defendants also alleged that plaintiff failed to establish that, but
for the alleged breach of duty by defendant, that plaintiff would have been successful in obtaining
a better result.
¶ 54 Defendants further maintained that it was plaintiff’s responsibility to ensure the accuracy
of her own tax filings and was reasonable for defendants to rely on the joint filings. Defendants
also relied on portions of the marital settlement agreement to support their request for summary
judgment.
¶ 55 On August 19, 2019, plaintiff filed a response to defendants’ motion for summary
judgment. In her first argument, plaintiff opposed the motion based on her failure to name an expert
witness. Plaintiff alleged that the trial court should deny defendants’ motion on this basis where
the motion was premature. Alternatively, plaintiff argued that the court should grant her leave to
disclose an expert’s opinions prior to the court ruling on defendants’ motion.
¶ 56 In the three arguments that followed, plaintiff maintained that the evidence produced in the
course of discovery established a breach of the standard of care, proximate cause, and resulting
damages. Plaintiff relied on “Exhibit A,” an affidavit authored by her, to support her claim that a
genuine issue of material fact existed as to whether or not she told Bush not to conduct discovery.
In pertinent part, the affidavit alleged:
“4. I never told [Bush] that I did not want her to conduct discovery in my
divorce.
5. [Bush] did not encourage nor advise me that discovery was necessary.
- 17 -
No. 1-20-1115
6. When reviewing my former husband’s financial documents with [Bush]
I told her the numbers were wrong and that he makes more money than he claimed.
7. [Bush] never explained to me what nonreviewable maintenance was,
prior to signing the Marital Settlement Agreement.
***
11. I did not become aware that I was on the Highland Park home and Long
Grove home mortgages until after the divorce.
12. Sally Lichter told me that my maintenance award should have been for
thirteen years, not for four years.
13. Sally Lichter told me that my maintenance award should not have been
nonreviewable.”
¶ 57 Plaintiff also relied on her affidavit to support her claim that she had sufficiently shown
that, but for the actions and inactions of Bush that plaintiff would have gotten a better result.
¶ 58 The conclusion of plaintiff’s response to defendants’ motion for summary judgment
averred:
“Due to the factual questions that exist as to all of the issues raised by
[Bush]; i.e., breach, proximate cause, and damages, summary judgment at this point
must be denied and reserved for a trier of fact. Factual disputes further demonstrate
that summary judgment would be improper. More importantly, all of the evidence
has not yet been presented before this Court, the parties have yet to begin expert
testimony on the factual issues. Thus, this Honorable Court must deny the Motion
- 18 -
No. 1-20-1115
for Summary Judgment and set expert disclosure dates or in the alternative, allow
for [plaintiff] to obtain an expert affidavit prior to ruling on the motion for
Summary Judgment.
WHEREFORE, your Plaintiff, TONI A. ROSA, prays this Honorable Court
denies Defendants’ ANNA M. BUSH AND BUSH & HEISE’S Motion for
Summary Judgment, or in the alternative, your Plaintiff TONI A. ROSA prays for
a reasonable time to obtain an expert affidavit prior to the Court’s ruling on this
Motion, and for any other relief deemed equitable and just.”
¶ 59 On September 16, 2019, defendants filed a “Motion to Strike Plaintiff’s Affidavit and
Extension of Time to File Reply in Support of Summary Judgment.” Defendants maintained that
plaintiff’s affidavit was noncompliant with Illinois Supreme Court Rule 191 (Ill. S. Ct. R. 191 (eff.
Jan. 4, 2013)), where it contained statements that were both conclusory and inadmissible and
further directly contradicted evidence and testimony adduced in this matter. Defendants
maintained that plaintiff’s assertion that she was not encouraged to conduct discovery nor advised
on such matter were “self-serving statements made to attempt to contradict a detailed, unequivocal
and conclusive record.” Defendants further maintained that plaintiff’s reference to what Lichter
told her was hearsay and inadmissible.
¶ 60 On November 27, 2019, the court held a hearing on defendants’ motion for summary
judgment and motion to strike plaintiff’s affidavit. After making extensive findings, the trial court
granted both defense motions.
- 19 -
No. 1-20-1115
¶ 61 On December 23, 2019, plaintiff filed a motion to reconsider the trial court’s granting of
defendants’ motion for summary judgment and motion to strike plaintiff’s affidavit. Plaintiff
requested that the trial court grant her leave to amend her stricken affidavit to create a genuine
material fact issue. The proposed amended affidavit now alleged:
“4. I never told [Bush] that I did not want her to conduct discovery in my
divorce. I did not at any time receive the letter dated January 14, 2015. The only
materials I ever received from [Bush] in the U.S. mail were bills. All written
communication was through email.
5. [Bush] did not encourage nor advise me that discovery was necessary. In
fact, [Bush], prior to January 14, 2015, advised me that discovery would cost so
much that it was not worth it. I do not recall the exact date of our conversation, but
it was in-person and not on the telephone. It would not be part of the December
phone conferences.
6. When reviewing my former husband’s financial documents with [Bush]
I told her that he makes more money than he claimed. I do not recall the date of this
conversation, but this conversation was verbal.
7. [Bush] never explained to me, verbally or in writing, what nonreviewable
maintenance meant nor did she inform me of any statute as to nonreviewable
maintenance. Instead [Bush] told me, verbally, that the maintenance award that I
received is a good deal and that I should accept it because trial will be costly, and I
- 20 -
No. 1-20-1115
may get less at trial. I do not recall the date of this conversation, but it was prior to
the prove up on April 29, 2015.
8. If [Bush] would have explained to me what the statute as to maintenance
stated as to the statutory basis and the amount for maintenance based on the length
of my marriage, I would not have agreed to signing the Marital Settlement
Agreement, which only gave me maintenance for only four years.
9. I entered into the Marital Settlement Agreement based on the advice
[Bush] gave me prior to April 29, 2015, that this was the best outcome I was going
to receive.
10. For the first time, I became aware that I was on home mortgages for the
Highland Park home and the Long Grove after the divorce, sometimes after April
29, 2015, when I was reviewing my credit score and noticed the mortgages listed.”
¶ 62 On February 11, 2020, defendants filed a response to plaintiff’s motion to reconsider.
¶ 63 On September 16, 2020, the trial court denied plaintiff’s motion to reconsider.
¶ 64 On October 15, 2020, plaintiff filed a notice of appeal.
¶ 65 II. ANALYSIS
¶ 66 On appeal, plaintiff alleges that the trial court erroneously granted defendants’ motion for
summary judgment. Plaintiff maintains that the trial court should have (1) denied the motion based
on the evidence before it, (2) denied the motion based on her claim that it was prematurely brought,
or (3) deferred ruling on the motion. Additionally, plaintiff avers that the trial court erroneously
granted defendants’ motion to strike her affidavit, specifically, paragraphs 4 and 5.
- 21 -
No. 1-20-1115
¶ 67 Defendants maintain that the trial court’s entry of judgment in their favor on both motions
was proper. For the reasons that follow, we agree with defendants.
¶ 68 A. The Trial Court Properly Granted Defendants’ Motion for Summary
Judgment Where the Evidence Established That There
Was No Genuine Issue of Material Fact
¶ 69 1. Standard of Review
¶ 70 Summary judgment is appropriate where the pleadings, depositions, and admissions on
file, together with any affidavits and exhibits, when viewed in the light most favorable to the
nonmoving party, indicate that there is no genuine issue of material fact and that the moving party
is entitled to judgment as a matter of law. 735 ILCS 5/2–1005(c) (West 2014); Suburban Real Est.
Servs., Inc. v. Carlson, 2022 IL 126935, ¶ 15; Universal Underwriters Insurance Company v.
Judge & James, Ltd., 372 Ill. App. 3d 372, 377-78 (2007).
¶ 71 “In determining whether a genuine issue as to any material fact exists, a court must construe
the pleadings, depositions, admissions, and affidavits strictly against the movant and liberally in
favor of the opponent.” Gilbert v. Sycamore Municipal Hospital, 156 Ill. 2d 511, 518 (1993). We
review cases involving summary judgment de novo. Suburban Real Estate Services, 2022 IL
1269365, ¶ 15; Universal Underwriters, 372 Ill. App. 3d at 377-78. We may affirm the trial court’s
ruling on any basis appearing in the record. Jinkins v. Evangelical Hospitals Corp., 336 Ill. App.
3d 377, 384-85 (2002).
¶ 72 2. Claims of Legal Malpractice
¶ 73 A complaint of legal malpractice requires that plaintiff prove the existence of an attorney-
client relationship establishing a duty on the part of the attorney, a negligent act or omission
- 22 -
No. 1-20-1115
constituting a breach of that duty, a proximate causal relationship between the breach and the
damages sustained, and actual damages. Governmental Interinsurance Exchange v. Judge, 221 Ill.
2d 195, 199 (2006); Universal Underwriters, 372 Ill. App. 3d at 377.
¶ 74 “An attorney must exercise a reasonable degree of care and skill in the representation of
his clients.” Los Amigos Supermarket, Inc. v. Metropolitan Bank and Trust Co., 306 Ill. App. 3d
115, 130 (1999). The plaintiff bears the burden of pleading and proving that “but for” the attorney’s
negligence, the plaintiff would have succeeded in the underlying suit. Universal Underwriters,
372 Ill. App. 3d at 377. Therefore, a legal malpractice plaintiff must litigate a “case within a case.”
Tri-G, Inc. v. Burke, Bosselman Weaver, 222 Ill. 2d 218, 226-27 (2006). This is because
malpractice cannot exist in the absence of the loss of an underlying suit. Fabricare Equipment
Credit Corp v. Bell, Boyd & Lloyd, 328 Ill. App. 3d 784, 788 (2002).
¶ 75 “Even if negligence on the part of the attorney is established, no action will lie against the
attorney unless that negligence proximately caused damage to the client.” Northern Illinois
Emergency Physicians v. Landau, Omahana, & Kopka, Ltd., 216 Ill. 2d 294, 306-07 (2005). The
“injury” in a legal malpractice claim is the pecuniary injury to an intangible property interest
caused by the lawyer’s negligent act or omission. Northern Illinois Emergency Physicians, 216 Ill.
2d at 306.
¶ 76 Where a plaintiff contends that her attorney negligently represented her in a divorce action,
she must prove that, but for the defendant’s negligence, she would have received a larger share of
the marital estate. Weisman v. Schiller, Ducanto and Fleck, Ltd, 368 Ill. App. 3d 41, 52 (2006).
Actual damages are never presumed. Northern Illinois Emergency Physicians, 216 Ill. 2d at 306-
- 23 -
No. 1-20-1115
07. Damages are established by showing that the plaintiff suffered a monetary loss as a result of
the attorney’s negligence and may not be proved by speculation or conjecture. Id.¶ 77 Where the pleadings, depositions, and admissions on file, along with the affidavits, show
that there is no genuine issue as to any material fact, the moving party is entitled to judgment as a
matter of law. 735 ILCS 5/2-1005(c) (West 2014). Summary judgment should only be allowed
where the right of the moving party is clear and free from doubt. Bagent v. Blessing Care Corp.,
224 Ill. 2d 154, 163 (2007).
¶ 78 In a motion for summary judgment, the movant bears the initial burden of production.
Universal Underwriters, 372 Ill. App. 3d at 378. The burden is satisfied where the movant presents
evidence that left unrebutted would entitle it to judgment as a matter of law or by the movant
demonstrating that the plaintiff is unable to prove an element of his cause of action. Id. If a plaintiff
fails to establish any element of their cause of action, summary judgment in favor of the defendant
is proper. Judge, 221 Ill. 2d 195, 214-15 (2006).
¶ 79 With these principles in place, we now turn to the trial court’s ruling in this matter.
¶ 80 3. The Trial Court’s Ruling
¶ 81 In granting the defendants’ motion for summary judgment, the trial court made the
following findings:
“As to defendants’ motion for summary judgment, in the case of Adams v.
Northern Illinois Gas, 211 Ill. 2d 32, it says in pertinent part, the purpose of
summary judgment is not to try a question of fact, but rather, to determine
whether a genuine issue of material fact exists. Summary judgment is appropriate
- 24 -
No. 1-20-1115
only where the pleadings, depositions, and admissions on file, together with the
affidavits if any, show that there is no genuine issue as to any material fact and
that the moving party is entitled to a judgment as a matter of law.
In determining whether a genuine issue as to any material fact exists, the court
must construe the pleadings, depositions, admissions, and affidavits strictly
against the movant and liberally in favor of the opponent.
A triable issue precluding summary judgment exists where the material facts
are disputed or where the material facts being undisputed, reasonable persons
might draw different inferences from the undisputed facts.
The use of the summary judgment procedure is to be encouraged as an aid in
the expeditious disposition of a lawsuit; however, it is a drastic means of
disposing of litigation, and therefore, should be allowed only when the right of the
moving party is clear and free from doubt.
In the case of First National Bank of LaGrange v. Lowrey, 375 Ill. App. 3d
181, it says in pertinent part, to prevail in an action for legal malpractice, plaintiff
must prove the following elements.
1, the existence of an attorney-client relationship that establishes a duty on the
part of the attorney. 2, a negligent act or omission constituting a breach of that
duty. 3, proximate cause establishing that but for the attorney’s negligence, the
plaintiff would have prevailed in the underlying action. 4, damages. An attorney
must exercise a reasonable degree of care and skill in the representation of his
clients.
- 25 -
No. 1-20-1115
The plaintiff must generally present expert testimony to establish the standard
of care against which the attorney’s conduct must be measured. Failure to present
such testimony is generally fatal to a legal malpractice action unless the attorney’s
negligence is so apparent that a lay person would have no difficulty seeing it.
Proximate causation in a legal malpractice case is generally a factual issue to
be decided by the trier of fact. Our Supreme Court has explained that the basis for
this principle is that issues that could cause reasonable persons to reach different
results should never be determined as questions of law. The debatable qualities of
issues such as proximate cause, the fact that fair-minded persons might reach
different conclusions, emphasize the appropriateness of leaving such issues to a
fact-finding body.
The case of Barth v. Reagan, 139 Ill. 2d 399, it says in pertinent part,
attorneys are liable to their clients for damages in malpractice actions only when
they fail to exercise a reasonable degree of care and skill. The law distinguishes
between errors of negligence and those of mistaken judgment.
Generally, the rules of evidence which govern medical malpractice litigation
are applicable to legal malpractice suits, except where it is necessary to
accommodate differences in the nature of the two professions. Because the
concept of res ipsa loquitur is not applicable in legal malpractice cases, the
standard of care against which the attorney defendants’ conduct will be measured
must generally be established through expert testimony.
- 26 -
No. 1-20-1115
Failure to present expert testimony is usually fatal to a plaintiff’s legal
malpractice action; however, Illinois courts have recognized that where the
common knowledge or experience of lay persons is extensive enough to recognize
or infer negligence from the facts or where an attorney’s negligence is so grossly
apparent that a lay person would have no difficulty in appraising it, expert
testimony as to the standard of care is not required.
In the case of Leon v. Max E. Miller & Son, Inc., 23 Ill. App. 3d 694, it says in
pertinent part, one is under a duty to learn or know the contents of a written
contract before he signs it and is under a duty to determine the obligations which
he undertakes by the execution of a written agreement. And the law is that a party
who signs an instrument relying upon representations as to its contents when he
has had an opportunity to ascertain the truth by reading the instrument and has not
availed himself of the opportunity, cannot be heard to say that he was deceived by
misrepresentations.
Apart from the above rules, to avoid a contract for false representations, the
character of the representation and the circumstances under which it was uttered
must have been such as to give the injured person a right to rely thereon.
The gist of plaintiff’s amended complaint is that Defendant Bush conducted
little or no meaningful discovery, including the valuation of the plaintiff’s then
husband’s company and what his true income was, received very minimal tax
return information, did little or nothing to ascertain the true nature of the marital
- 27 -
No. 1-20-1115
home being marital or nonmarital, and did little or nothing to discover the true
income and assets of the parties.
In an email from the plaintiff to the defendant on November 26, 2014,
plaintiff asked defendant what can we do to get this process going, what can we
do to make this go quicker.
In an email from the defendant to plaintiff on November 29th, 2014,
defendant asked the plaintiff if she was trying to settle this quickly or are we
doing the complete investigation that we discussed.
On January 13th, 2015, plaintiff sent a text to Defendant Bush indicating the
possibility of looking under rocks and scheduled a phone conference with
defendant for January 14th, 2015. Defendant Bush’s January 14th, 2015 letter to
plaintiff memorializes the phone conversation with plaintiff, in which defendant
encouraged and plaintiff declined to proceed with formal discovery.
And that email reads as follows.
‘Dear Toni, I want to memorialize our conversation of today, mostly so that
you can have this information in black and white letter format rather than just an
email or phone conversation.
We talked today about the possibility of looking under the rocks, which
means, as we discussed, full discovery. That means that we would issue written
interrogatories, a request for the production of documents, income and expense
affidavits, (which are actually required by statute but which we have not -- which
- 28 -
No. 1-20-1115
have not been exchanged). And based on the responses, future depositions or
subpoenas issued to third parties.
To do this and receive any response would likely take 30 to 90 or more days.
In all likelihood, in your -- if you issued discovery, they will also do so. This will
extend the case for several more months. You can begin the process and later
cancel it, if you wish. It can also be very costly to do formal discovery and could
cost more than $2,000, if both sides do so.
I always encourage clients to do formal discovery if they have any doubt at all
about the honesty of the other party or feel that they are not informed about the
finances of either or both parties.
Based on my statements to you about the length of time and cost, you have
chosen not to do formal discovery or even complete the income and expense
affidavit and you believe that you are comfortable enough with the finances to
finish the case. If this is not your understanding of our conversation, please let me
know immediately. Very truly yours, Anna Markley Bush.’
Plaintiff acknowledged that she received this letter in her deposition on Page
134. Furthermore, the marriage settlement agreement contains the following
language in pertinent part.
[Paragraph] 1.05. In pertinent language, [‘]Timothy and Toni believe that it is
in their best interest to settle between themselves all rights and claims against
each other. To this end, the parties have made complete disclosure of all assets.[’]
- 29 -
No. 1-20-1115
Paragraph 1.06. [‘]Timothy has had the benefit of counsel of Patti S. Levinson
of Patti S. Levinson, P.C. and Toni has had the benefit of counsel of Anna
Markley Bush of Bush & Heise. Each party acknowledges that each is sufficiently
conversant with regard to all of the wealth, poverty, and income of the other and
any of their respective rights to -- thereto to enter into this agreement.
The parties acknowledge that each has been informed to their respective
satisfaction as to the wealth, property, estate, and income of the other and that
each has been fully informed of his or her respective rights or obligations in the
premises.
The parties have been advised that they may attempt to compel discovery and
inspection of the personal and business financial books and records of the other
party with accountants, appraisers, attorneys, and others investigating, appraising,
and evaluating any and all of the persona and business assets -- personal and
business assets, liabilities, and income of the other.
Each party has specifically waived the exercise of these rights to the extent
not pursued and has elected to take no further steps in connection with such
discovery, investigation, appraisal, or evaluation. Each party expressly states that
no representation has been made to him or her by the other party or his attorney
other than that which is contained in this agreement.[’]
Paragraph 1.07. [‘]Timothy and Toni expressly state that they have voluntarily
entered into this agreement free from any duress and coercion and with full
- 30 -
No. 1-20-1115
knowledge and understanding of each and every provision contained in this
agreement.
After carefully considering the terms and provisions of this agreement, each of
the parties states that he or she believes that the agreement is fair and reasonable
under the circumstances and is not unconscionable.[’]
Plaintiff initialed each page of the settlement agreement and signed the last
page. Based on the various emails and depositions, in my opinion, no genuine
issue as to any material fact exists, and as such, defendants’ motion for summary
judgment is granted. Thanks.”
¶ 82 4. Application of De Novo Review
¶ 83 We have set forth the trial court’s findings verbatim because they provide ample support
for our determination that the trial court properly granted defendants’ motion for summary
judgment. The trial court correctly determined that plaintiff failed to establish a breach of the
standard of care based on her deposition testimony and emails.
¶ 84 Plaintiff’s allegations all stemmed from her belief that Bush failed to undertake the
necessary discovery to value Wujcik’s income and assets properly. According to plaintiff, such
failure resulted in a marital settlement agreement that deprived plaintiff of what she should have
received in terms of her monthly maintenance, the duration of that maintenance, proceeds from
Wujcik’s business, and a correctly calculated amount of proceeds from a retirement fund.
¶ 85 Plaintiff’s allegations were insufficient to withstand summary judgment based on the
evidence presented. The evidence established no breach in the duty of care where Bush’s failure
- 31 -
No. 1-20-1115
to conduct additional discovery resulted from plaintiff’s knowingly made decision not to have her
do so. We have reviewed the record in its entirety and agree with the trial court’s conclusion that
plaintiff failed to establish a genuine issue of material fact.
¶ 86 Defendant misplaces reliance on Wolfe v. Wolf, 375 Ill. App. 3d 702, 704-05 (2007). Wolfe
involved the dismissal of a complaint under section 2-619 of the Code of Civil Procedure (735
ILCS 5/2-619) (West 2000)), not an order of summary judgment. Additionally, the case is
distinguishable where the trial court’s ruling in Wolfe was based on the doctrine of judicial
estoppel. Id. at 704-05.
¶ 87 In this case, while the trial court referenced the terms of the marital settlement agreement
in its findings, it did so to underscore that such terms were consistent with plaintiff’s deposition
testimony and emails, which indicated her waiver of the right to conduct additional discovery. The
trial court did not grant summary judgment based on the doctrine of judicial estoppel, and we find
no error in the trial court’s reference to the contents of the marital settlement agreement.
¶ 88 We next address plaintiff’s affidavit wherein she denies that she told Bush to not conduct
additional discovery. For reasons that will later be discussed in greater detail, we find that the trial
court properly granted defendants’ motion to strike the affidavit. Even if we were to consider
plaintiff’s assertion in her affidavit that she never told Bush that she did not want Bush to conduct
discovery, that assertion stands in clear contradiction to Bush’s own deposition testimony and
email communications. Even if considered, it did not create a genuine issue of material fact.
Pedersen v. Joliet Park Dist., 136 Ill. App. 3d 172, 175-76 (1985) (Plaintiff cannot create a genuine
issue of material fact by contradicting a statement made in his deposition with a later affidavit.)
- 32 -
No. 1-20-1115
¶ 89 The evidence did not establish the existence of a genuine issue of material fact where it
showed that plaintiff knew that additional discovery could be conducted, knew that it was
customarily conducted, knew what such discovery could consist of, and instructed Bush not to do
so. Bush, in turn, followed her client’s instructions, as she was obliged to do. Ill. R. Prof’l Conduct
R. 1.2(a) (eff. Jan 1, 2016).
¶ 90 In pertinent part, Rule 1.2 provides:
“(a) Subject to paragraphs (c) and (d), a lawyer shall abide by a client’s
decisions concerning the objectives of representation and, as required by Rule 1.4,
shall consult with the client as to the means by which they are to be pursued. A
lawyer may take such action on behalf of the client as is impliedly authorized to
carry out the representation. A lawyer shall abide by a client’s decision whether to
settle a matter. *** ”
¶ 91 The first comment to Rule 1.2 further provides:
“[1] Paragraph (a) confers upon the client the ultimate authority to
determine the purposes to be served by legal representation, within the limits
imposed by law and the lawyer’s professional obligations. The decisions specified
in paragraph (a), such as whether to settle a civil matter, must also be made by the
client. See Rule 1.4(a)(1) for the lawyer’s duty to communicate with the client about
such decisions. With respect to the means by which the client’s objectives are to be
pursued, the lawyer shall consult with the client as required by Rule 1.4(a)(2) and
- 33 -
No. 1-20-1115
may take such action as is impliedly authorized to carry out the representation.” Ill.
R. Prof’l Conduct (201) R. 1.2, Committee Comments (eff. Jan. 1, 2010).
¶ 92 In turn, Rule 1.4(a)(2) requires a lawyer to “reasonably consult with the client about the
means by which the client’s objectives are to be accomplished.” Ill. R. Prof’l Conduct R. 1.4(a)(2)
(eff. Jan. 1, 2010).
¶ 93 We conclude that plaintiff’s deposition testimony and emails showed that plaintiff relieved
Bush of any obligation to conduct further discovery in this matter. Bush’s conduct also comported
with the aforementioned Rules of Professional Conduct.
¶ 94 We agree with defendants that plaintiff’s claim boils down to a complaint that Bush failed
to properly “encourage” her to undertake additional discovery:
“I was wanting to be done with it, but I also felt like – I truly feel [Bush]
given me the encouragement to go further because we could get more, I would
have; but when I didn’t get that encouragement, yes, I was ready to settle.”
¶ 95 Coercion has been defined as “the imposition, oppression, undue influence, or the taking
of undue advantage of the stress of another, whereby that person is deprived of the exercise of her
free will.” In re Marriage of Gorman, 284 Ill. App. 3d 171, 180 (1996) (citing Flynn v. Flynn, 232
Ill. App. 3d 394, 401 (1992)). Plaintiff allegations of “coercion” or undue “pressure” are neither
borne out by the evidence nor supported by relevant case law.
¶ 96 In conclusion, having reviewed the pleadings, depositions, and admissions on file, together
with any affidavits and exhibits presented, when viewed in the light most favorable to the plaintiff,
we find that summary judgment was proper in the absence of any genuine issue of material fact.
- 34 -
No. 1-20-1115
¶ 97 B. The Trial Court Did Not Rule Prematurely on
Defendants’ Motion for Summary Judgment
¶ 98 Plaintiff also contends that the trial court’s order granting summary judgment was
premature since she had not yet named an expert witness. Plaintiff maintains that the trial court
should have denied defendants’ motion for summary judgment or deferred ruling on it until
controlled expert discovery was completed pursuant to Rule 213(f)(3). Ill. S. Ct. R. 213 (eff. Jan.
1, 2018).
¶ 99 Having previously found summary judgment proper, based on grounds wholly unrelated
to the failure to obtain an expert, we fail to see, as a threshold matter, how an expert could alter
that conclusion. Put differently, it is difficult to conceive how any expert could cure the deficiency
that resulted from the evidence, which showed that plaintiff waived her right to conduct additional
discovery.
¶ 100 Nevertheless, to ensure full consideration of plaintiff’s claims on appeal, we consider her
charge that the trial court’s ruling was premature. For the reasons that follow, we find that it was
not.
¶ 101 1. Standard of Review
¶ 102 A trial court has extremely broad discretionary powers regarding pretrial discovery.
Hayward v. C.H. Robinson Co., 2014 IL App (3d) 130530, ¶ 45. As such, our review of such
rulings is highly deferential. People v. Taylor, 2011 IL App (1st) 093085, ¶ 23. A trial court’s
pretrial discovery rulings will not be interfered with on appeal absent a manifest abuse of
discretion. Hayward, 2014 IL App (3d) 130530, ¶ 45. A court abuses its discretion when its
- 35 -
No. 1-20-1115
discovery ruling is “arbitrary, fanciful, unreasonable, or where no reasonable person would take
the view adopted by the trial court.” Taylor, 2011 IL App (1st) 093085, ¶ 23.
¶ 103 2. The Pleadings
¶ 104 We begin with a discussion of the factual development of this claim in the trial court.
Defendant issued interrogatories requesting disclosure of experts pursuant to Rule 213(f)(3).
Specifically, defendant sought the following information:
“8. State the names and addresses and identities of all lawyers and attorneys
or experts in any field who have been contacted for expert opinion (excluding
purely consulting experts) by you or your attorney, or anyone acting on your behalf,
regarding any facts alleged in the complaint. As to each person, state the following:
(a) Name, business and residence address, and telephone number;
(b) Area of expertise;
(c) Whether his opinion relates to the liability aspect or to the damages
aspect of your claim or both;
(d) Identify, with particularity, any and all statements, reports, letters, tape
recordings, photographs, memoranda, or documentation of any type furnished by
said expert or experts.”
¶ 105 Plaintiff responded to this request in the following manner:
“See 213F disclosures. Experts will be disclosed in the time frame set forth
by the Court, when they do so.
- 36 -
No. 1-20-1115
Investigation continues, Plaintiff reserves the right to supplement this
answer.”
¶ 106 Defendants also sought disclosure of any “controlled expert witnesses” who would testify
on plaintiff’s behalf. In response to this request, plaintiff replied, “Rule 213(f)(3) witnesses will
be disclosed in the time frame set by the court in any 218 Case Management Order.”
¶ 107 As has been previously discussed, defendants’ motion for summary judgment rested on
multiple grounds. One such ground was plaintiff’s failure to disclose the name of any expert
witness to support plaintiff’s malpractice claims. Another was that the affirmative evidence
adduced in the discovery process affirmatively disproved three elements of a claim of attorney
malpractice: no breach of the standard of care, no proximate cause, and no resulting injury to
plaintiff.
¶ 108 Plaintiff responded to defendants’ motion on two bases. First, plaintiff defended against
defendants’ charge that she failed to name an expert, maintaining that such disclosure was not
required until the trial court ordered discovery pursuant to Rule 213(f)(3) and that the trial court
should defer ruling on defendants’ motion until she was given an opportunity to do so. This
alternative request was not accompanied by a Rule 191(b) affidavit.
¶ 109 Second, plaintiff disputed defendants’ claim that the evidence to date supported the
granting of summary judgment, maintaining that it established the existence of highly disputed
questions of fact.
¶ 110 We now turn our attention to the question of whether the trial court abused its discretion
by ruling prematurely on defendants’ motion for summary judgment.
- 37 -
No. 1-20-1115
¶ 111 3. The Trial Court Did Not Abuse Its Discretion
¶ 112 At the hearing on defendants’ motion for summary judgment, plaintiff abandoned her
written request that the trial court permit her to produce an expert witness before ruling on the
motion. She neither sought a continuance nor urged the trial court to defer ruling on defendants’
motion. Rather, the parties engaged in a disputed hearing devoted to whether the evidence
developed until that point supported a grant of summary judgment. And as has been extensively
discussed, the trial court granted defendants’ motion for summary judgment based solely on its
determination that the evidence affirmatively established no genuine issue of material fact, not
based on plaintiff’s failure to disclose an expert opinion.
¶ 113 Defendants maintain that plaintiff’s claim fails where she did not comply with Rule 191(b).
Illinois Supreme Court Rule 191(b) provides:
“(b) When Material Facts Are Not Obtainable by Affidavit. If the affidavit of
either party contains a statement that any of the material facts which ought to
appear in the affidavit are known only to persons whose affidavits affiant is
unable to procure by reason of hostility or otherwise, naming the persons and
showing why their affidavits cannot be procured and what affiant believes they
would testify to if sworn, with his reasons for his belief, the court may make any
order that may be just, either granting or refusing the motion, or granting a
continuance to permit affidavits to be obtained, or for submitting interrogatories
to or taking the depositions of any of the persons so named, or for producing
documents in the possession of those persons or furnishing sworn copies thereof.
- 38 -
No. 1-20-1115
The interrogatories and sworn answers thereto, depositions so taken, and sworn
copies of documents so furnished, shall be considered with the affidavits in
passing upon the motion.”
¶ 114 A party that fails to attach a Rule 191(b) affidavit to its pleading to assert his need for
additional discovery in order to oppose a motion for summary judgment may not later seek reversal
of the trial court’s order on the basis that it was denied important discovery. Cordeck Sales, Inc. v.
Construction Systems Inc., 382 Ill. App. 3d 334, 345 (2008). The failure to comply with Rule
191(b) will defeat a claim of error based on a trial court’s disallowance of additional time to
conduct discovery. Kane v. Motorola, Inc., 335 Ill. App. 3d 214, 225 (2002). A plaintiff may not
complain on appeal that a circuit court improperly denied discovery when it failed to explain the
need for discovery in Rule 191(b) affidavit. MEP Construction, LLC v. Truco MP, LLC, 2019 IL
App (1st) 180539, ¶ 20.
¶ 115 Plaintiff maintains, however, that her failure to file a Rule 191(b) affidavit does not
preclude judgment in her favor. She relies on Besco v. Henslee, Monek & Kenslee, 297 Ill. App.
3d 778 (1998), and Williams v. Covenant Medical Center, 316 Ill. App. 3d 682 (2000), to support
her claim.
¶ 116 Besco is inapposite. In Besco, the appellate court found that the trial court imposed an
unduly harsh discovery sanction of barring plaintiffs from naming an expert witness based on their
failure to meet a deadline or appear at a scheduled case management conference. Besco, 297 Ill.
App. 3d at 784-85.
- 39 -
No. 1-20-1115
¶ 117 Before we explain why Williams fails to support the plaintiff’s claim, we believe it is
helpful to begin with a discussion of a case that followed it; the court’s decision in Jiotis v. Burr
Ridge Park District, 2014 IL App (2d) 121293. In Jiotis, the appellate court considered defendants’
claim that the trial court abused its discretion by not ruling on his motion for summary judgment,
continuing the motion until additional discovery had been conducted, despite plaintiff’s failure to
file a Rule 191(b) affidavit. Id. ¶ 12.
¶ 118 The court noted that there are two separate bases for seeking a summary judgment: (1) the
“traditional” method, where the movant affirmatively disproves an element of the nonmovant’s
case, or (2) a “Celotex-type” 2 motion, where the movant establishes that the nonmovant’s evidence
is insufficient to avoid judgment as a matter of law. Id. ¶ 25. The characterization of a motion as
traditional or as Celotex-type is significant because strict compliance with Rule 191(b)’s affidavit
requirement is only applicable to traditional motions. Id. ¶ 26. On the other hand, compliance with
the requirement is not automatically necessary when a defendant files a Celotex-type motion. Id.
¶ 26. Celotex-type motions require that the nonmovant have an adequate opportunity to conduct
discovery before summary judgment is granted. Id. (citing Williams v. Covenant Medical Center,
316 Ill. App. 3d 682, 692 (2000)).
¶ 119 Having noted the two distinct forms of summary judgment, we now turn to a discussion of
Williams, a medical malpractice case involving a Celotex motion. In Williams, a medical
malpractice case, the defendants filed a motion for summary judgment based on the injured
2
A “Celotex-type motion” references the rule articulated in Celotex Corp. v. Catrett, 477 U.S.
317 (1986).
- 40 -
No. 1-20-1115
individual’s inability to remember how she came to be injured. Williams, 316 Ill. App. 3d at 685.
The plaintiffs filed a response and attached depositions from multiple witnesses, including two
registered nurses and the plaintiff’s treating physician. Id. at 685-86. The defendants filed a
Celotex-type reply in which they now asserted that the plaintiffs had no expert testimony to
establish the standard of care and a breach of that standard. Id. at 687. The plaintiffs moved to
strike the motion as untimely because it attempted to circumvent expert discovery. Id.
¶ 120 When the trial court denied the plaintiffs’ motion to strike that portion of the defendants’
motion that sought summary judgment based on Celotex grounds, the plaintiffs orally moved for
a continuance to obtain the affidavit of an expert to respond to the summary judgment motion. Id.
The trial court denied the plaintiffs’ motion for a continuance and granted summary judgment. Id.
¶ 121 On review, the appellate court found that the defendants’ motion was insufficient to place
the burden on the plaintiffs to come forward with expert opinions where the motion contained no
affidavits and only a bare assertion that the plaintiffs failed to establish proximate cause in the
absence of expert testimony. Id. at 690. Additionally, the court found that the trial court
prematurely granted the motion for summary judgment, where the plaintiffs should have been
given adequate time to gather evidence-based on the defendants’ Celotex-type motion Id. at 690-
91. The trial court erred by denying the plaintiffs’ oral motion for a continuance, and the plaintiffs’
failure to file a Rule 191(b) affidavit was inconsequential where they sought to continue the
hearing on the defendants’ premature motion for summary judgment. Id. at 690-92.
¶ 122 In this case, unlike Williams, we are presented with a hybrid situation where defendants’
motion invoked both forms of summary judgment. Plaintiff was placed on full notice that
- 41 -
No. 1-20-1115
defendants had alleged a traditional basis for granting summary judgment. Defendants did not
bring a premature motion. Nevertheless, we find it unnecessary to decide whether Rule 191(b)
strictly applies under these circumstances where we find that plaintiff’s actions as a whole were
insufficient to require the trial court to sua sponte defer the entry of judgment on defendants’
motion for summary judgment.
¶ 123 Our conclusion is supported by the marked distinction between this case and Williams. In
this case, plaintiff effectively abandoned the alternative request contained in her response to
defendants’ motion for summary judgment by only addressing the traditional basis alleged by
defendant as a basis for granting summary judgment in this matter. In light of plaintiff’s silence at
the hearing, we cannot find that the trial court abused discretion that it was never asked to exercise.
¶ 124 Our conclusion finds support in Hayward v. C.H. Robinson Co., 2014 IL App (3d) 130530.
In Hayward, the plaintiff died from severe injuries she sustained when her vehicle collided with a
tractor-trailer driven by an employee of an independent contractor for the defendant. Id. ¶ 1. In the
negligence suit that followed, the defendants filed a motion for summary judgment which the
plaintiffs opposed. Id. ¶ 6.
¶ 125 Prior to a hearing held on the defendants’ motion for summary judgment, the plaintiffs
filed a motion to compel disclosure of records in the defendants’ possession regarding their
knowledge of the previous poor safety record of another tractor-trailer company owned by the
independent contractor. Id. ¶¶ 7, 11. The plaintiffs alleged that they had not previously requested
such discovery because they believed they had a sufficient basis for the court to deny the motion
for summary judgment. Id. ¶ 8.
- 42 -
No. 1-20-1115
¶ 126 The trial court set both motions for a combined hearing on the same day. Id. The trial court
granted the defendants’ motion for summary judgment and denied the plaintiffs’ motion to compel
disclosure in a single written order. Id. ¶¶ 22-23.
¶ 127 The appellate court found that the trial court’s entry of summary judgment was proper and
that it need not address the merits of plaintiffs’ motion to compel where:
“Here, plaintiffs advised the court they were willing to proceed with the
motion for summary judgment without the additional discovery. Therefore, we
observe the time to establish the plaintiffs’ case of negligent hiring against
Robinson was at that summary judgment motion hearing. [citation].
Since plaintiffs agreed the court should consider both motions at the same
time, without requesting a continuance and further discovery pursuant to Rule
191(b) (Ill. S. Ct. R. 191(b) (eff. July 1, 2002)), once the trial court granted the
motion for summary judgment in favor of Robinson, the court did not abuse its
discretion in denying plaintiffs motion to compel further discovery at that stage of
the proceedings.” Id. ¶¶ 47-48.
¶ 128 As in Hayward, we decline to find that the trial court’s actions were in error. Plaintiff
cannot establish that the trial court abused its discretion by ruling on defendants’ motion for
summary judgment on the date that the motion was heard where he acquiesced to having it decided
on the basis of the traditional grounds alleged by defendants.
- 43 -
No. 1-20-1115
¶ 129 C. The Trial Court Properly Exercised its Discretion in Striking
Paragraphs Four and Five of Plaintiff’s Affidavit
¶ 130 In her final claim of error, plaintiff alleges that the trial court erred in striking paragraphs
four and five of her affidavit, which accompanied her response to defendants’ motion for summary
judgment. For the reasons that follow, we disagree.
¶ 131 1. Standard of Review
¶ 132 A court’s determination whether an affidavit offered in connection with a motion for
summary judgment complies with Illinois Supreme Court Rule 191 is a question of law subject to
de novo review. Roe v. Jewish Children’s Bureau of Chicago, 339 Ill. App. 3d 119, 128 (2003). In
determining whether an affidavit following a deposition is properly stricken, we consider the
entirety of the deposition testimony. Chmielewski v. Kahlfeldt, 237 Ill. App. 3d 129, 134 (1992).
¶ 133 2. Supreme Court Rule 191(a)
¶ 134 In pertinent part, Supreme Court Rule 191(a) provides:
“Affidavits in support of and opposition to a motion for summary judgment
*** shall be made on the personal knowledge of the affiants; shall set forth with
particularity the facts upon which the claim, counterclaim, or defense is based; shall
have attached thereto sworn or certified copies of all papers upon which the affiant
relies; shall not consist of conclusions but of facts admissible into evidence; and
shall affirmatively show that the affiant, if sworn as a witness, can testify
competently thereto.”
- 44 -
No. 1-20-1115
¶ 135 3. Trial Court’s Findings
¶ 136 In ruling on defendants’ motion to strike plaintiff’s affidavit, the court made the following
findings:
“All right. Thanks. All right. As to the defendants’ motion to strike the
affidavit, in the case of Madden v. F.H. Paschen, S.N. Nielson, Inc., 395 Ill. App.
3d 362, it says in pertinent part, an affidavit satisfies the requirements of 191(a) if
-- Rule 191(a) if from the document as a whole, it appears that the affidavit is
based on the personal knowledge of the affiant and there is reasonable inference
that the affiant could competently testify as to its contents.
Conversely, an affidavit will be stricken under Rule 191(a) to the extent
that it contains unsupported assertions and self-serving or conclusory statements.
In Roe v. Jewish Children's Bureau of Chicago, 339 Ill. App. 3d 119, it
says in pertinent part, when only portions of an affidavit are improper under
Supreme Court Rule 191(a), the Trial Court should only strike those portions.
In the case of Beauvoir v. Rush, 137 Ill. App. 3d 294, it says in pertinent
part, hearsay statements will not be considered except for the purpose of
impeachment.
In the case of Morris v. Margulis, 197 Ill. 2d 28, it says in pertinent part, a
party’s later submission of an affidavit inconsistent with that party's deposition
testimony will not raise a disputed issue of fact or prevent the entry of summary
judgment.
- 45 -
No. 1-20-1115
Paragraphs 4 and 5 of [plaintiff’s] affidavit contradict her deposition
testimony and will not be considered. Paragraphs 12 and 13 are hearsay and will
not be considered. Paragraph 9 is speculative and self-serving. The remaining
paragraphs of the affidavit are in direct contradiction with Sections 1.05, 1.06, and
1.07 of the marital settlement agreement which plaintiff initialed and signed. For
those reasons, defendants’ motion to strike the affidavit is granted.”
¶ 137 4. De Novo Review of Plaintiff’s Claim
¶ 138 In Chmielewski, as in this case, after he was deposed, plaintiff attached an affidavit to his
response to the defendant’s motion for summary judgment that contradicted his deposition
testimony. Chmielewski, 237 Ill. App. 3d at 132. Plaintiff maintained that the affidavit should be
considered where the defendant’s attorney did not take an exhaustive deposition of him and where
later-named parties sought to use the deposition to their advantage. Id. at 135-36. Plaintiff argued
that striking an affidavit on such a basis was improper where it essentially means that a plaintiff
could not amend a complaint to add a new theory of liability after a deposition is taken. Id. at 136.
¶ 139 The court rejected plaintiff’s claim. Id. As is relevant to this case, the court held:
“A party may not create a genuine issue of material fact by taking
contradictory positions, nor may he remove a factual question from consideration
just to raise it anew when convenient. “[Citations.]” Admissions at pretrial
depositions which are so deliberate, detailed, and unequivocal, as to matters
within the party's personal knowledge, will conclusively bind the party-deponent,
and he will not be heard to contradict the admissions at trial. “[Citation.]” The
- 46 -
No. 1-20-1115
judicial policy behind this rule, which is well accepted in summary judgment
cases, is that once a party has given sworn testimony he should not be allowed to
change his testimony to avoid the consequences of his prior testimony.”
“[Citation.]” Id. at 132-33.
¶ 140 In Morris v. Margulis, 197 Ill. 2d 28, 36 (2001), plaintiff relied on his affidavit to defeat
the defendant’s motion for summary judgment where the motion alleged that plaintiff’s complaint
was untimely. The court found plaintiff’s reliance to be misplaced:
“This affidavit, however, contradicts his deposition testimony, and we
have held previously that a party’s later submission of an affidavit inconsistent
with that party's deposition testimony will not raise a disputed issue of fact or
prevent the entry of summary judgment.” Id. at 37 (citing Vesey v. Chicago
Housing Authority, 145 Ill. 2d 404, 422 (1991)).
¶ 141 Here, plaintiff alleges that the trial court erroneously struck paragraphs four and five of
her affidavit, wherein plaintiff alleged that she never told Bush that she did not want her to conduct
discovery and that Bush did not encourage or advise her that discovery was necessary.
¶ 142 We agree with the trial court’s determination that these allegations contradicted plaintiff’s
deposition testimony wherein she admitted that defendant was the one who raised the issue of
conducting additional discovery, admitted receiving January 14, 2015 letter that memorialized the
substance of the conversation held by plaintiff and Bush that same day, and never contested its
contents after being confronted with the letter during her deposition. Additionally, the letter
instructed plaintiff to immediately contact her if anything contained in the letter did not comport
- 47 -
No. 1-20-1115
with plaintiff’s account of what had transpired that day, yet plaintiff took no further actions to
countermand Bush’s understanding of plaintiff’s wishes as expressed in the letter. Based on the
foregoing, we conclude that the trial court properly struck paragraphs four and five of plaintiff’s
affidavit.
¶ 143 We further reject plaintiff’s undeveloped claim that the trial court also erred by disallowing
her to file an amended affidavit. In the proposed amended affidavit, which was offered in support
of plaintiff’s motion to reconsider, plaintiff now alleged, inter alia, that she never received Bush’s
January 14, 2015 letter.
¶ 144 The trial court has discretion as to whether to consider new evidence presented for the first
time after a motion for summary judgment. Soderlund Brothers, Inc. v. Carrier Corp., 278 Ill.
App. 3d 606, 617 (1995). A party may not submit new evidence in a motion to reconsider following
a ruling on a motion for summary judgment without providing a reasonable explanation as to why
the evidence was late. Delgatto v. Brandon Associates, Ltd., 131 Ill. 2d 183, 195 (1989).
¶ 145 We reject plaintiff’s unsupported apparent belief that a motion to reconsider a trial court’s
granting of a motion to strike an affidavit is an appropriate vehicle for curing an otherwise
defective affidavit by supplanting it with a new one as was done in this case. Even if we could
imagine a circumstance where such an amendment might be allowed, in this case, this newest
iteration of plaintiff’s complaint is flatly contradicted by her deposition testimony wherein she
admitted receiving Bush’s letter. In sum, we reject plaintiff’s contention of error.
¶ 146 III. CONCLUSION
¶ 147 For the foregoing reasons, we affirm the judgment of the circuit court.
- 48 -
No. 1-20-1115
¶ 148 Affirmed.
- 49 -