Adriana Brannen & Standard Bank & Trust v. Joerg Seifert, Individually, Joerg Seifert, Ltd., Docket No. 1–12–2067.

CourtUnited States Appellate Court of Illinois
Writing for the CourtJustice PIERCE delivered the judgment of the court
Citation2013 IL App (1st) 122067,377 Ill.Dec. 209,1 N.E.3d 1096
PartiesAdriana BRANNEN and Standard Bank and Trust, Under Trust No. 3265, Plaintiff–Appellees, v. Joerg SEIFERT, Individually, Joerg Seifert, Ltd., P.C., and Joerg Seifert Law Offices, P.C., Defendants–Appellants.
Decision Date19 November 2013
Docket NumberDocket No. 1–12–2067.

2013 IL App (1st) 122067
1 N.E.3d 1096
377 Ill.Dec.
209

Adriana BRANNEN and Standard Bank and Trust, Under Trust No. 3265, Plaintiff–Appellees,
v.
Joerg SEIFERT, Individually, Joerg Seifert, Ltd., P.C., and Joerg Seifert Law Offices, P.C., Defendants–Appellants.

Docket No. 1–12–2067.

Appellate Court of Illinois,
First District, Second Division.

Nov. 19, 2013.


[1 N.E.3d 1102]


Mulherin, Rehfeldt & Varchetto, P.C., of Wheaton (Patricia L. Argentati and Shana A. O'Grady, of counsel), for appellants.

Robert A. Langendorf, P.C., of Chicago (Philip J. Berenz, of counsel), for appellees.


OPINION

Justice PIERCE delivered the judgment of the court, with opinion.

¶ 1 Plaintiffs, Adriana Brannen, the sole beneficiary of Standard Bank and Trust, trust No. 3265, and Standard Bank and Trust brought a legal malpractice action against the defendants, Joerg Seifert, Brannen's former attorney, and his law firms, Joerg Seifert, Ltd., P.C., and Joerg Seifert Law Offices, P.C., alleging professional negligence in: (a) failing to advise Brannen as to the ramifications of each available remedy under the articles of agreement for deed entered into with a third party and (b) electing to forfeit the agreement without her consent. In March 2012, a jury found in favor of plaintiffs, awarding damages in the amount of $199,500. Defendants raise numerous issues on appeal, including: (1) the trial court erred in (a) denying defendants leave to file the affirmative defense of contributory negligence; (b) improperly allowing plaintiffs' legal expert to opine about an erroneous interpretation of Illinois law; (c) denying defendants' motion for a directed verdict as the third parties were insolvent and plaintiffs had no entitlement to the damages; (d) improperly instructing the jury that plaintiffs were entitled to a double recovery; (e) giving Illinois Pattern Jury Instructions, Civil, No. 60.01 (2006); (f) denying defendants' special interrogatories; and (g) denying defendants' motion for setoff; and (2) the evidence did not support the verdict in favor of plaintiffs. For the following reasons, we affirm as modified.

¶ 2 BACKGROUND

¶ 3 On June 30, 2005, plaintiffs entered into a contract entitled “Articles of Agreement for Deed” (the agreement) with Mark and Theresa LeFevour (buyers), for residential property at 17390 Plainfield Road, LaGrange Highlands, Illinois (the property). The property is the corpus of trust No. 3265, held by Standard Bank and Trust. The agreement stated that the LeFevours agreed to buy the property for $625,000, payable in installments. The LeFevours were to pay $102,750 of principle in installments, as follows: $12,500 at closing, $12,250 on or before December 31, 2005, $27,000 on or before December 31, 2006; $33,000 on or before December 31, 2007, $18,000 on or before June 30, 2008

[1 N.E.3d 1103]

and the remaining principal balance on or before June 30, 2008. A similar schedule for the payment of interest at 4% was also set forth. In the event of the buyers default, section 17(a) of the agreement provided the following remedies to plaintiffs:

“A. If Buyer (1) defaults by failing to pay when due any single installment or payment required to be made to Seller under the terms of this Agreement and such default is not cured within ten (10) days of written notice to Buyer; or (2) defaults in the performance of any other covenant or agreement hereof and such default is not cured by Buyer within thirty (30) days after written notice to Buyer (unless the default involves a dangerous condition which shall be cured forthwith); Seller may treat such a default as a breach of this Agreement and Seller shall have any one or more of the following remedies in addition to all other rights and remedies provided at law or in equity: (i) maintain an action for any unpaid installments; (ii) declare the entire balance due and maintain an action for such amount; (iii) forfeit the Buyer's interest under this Agreement and retain all sums paid as liquidated damages in full satisfaction of any claim against the Buyer, and upon Buyer's failure to surrender possession, maintain an action for possession under the Forcible Entry and Detainer Act, subject to the rights of the Buyer to reinstate as provided in that Act.

B. As additional security in the event of a default, Buyer assigns to Seller all unpaid rents, and all rents which accrue thereafter, and in addition to the remedies provided above and in conjunction with any one of them, Seller may collect any rent due and owing and may seek the appointment of a receiver.”

Section 18 of the agreement, entitled “Default, Fees,” provided:


“B. (1) All rights and remedies given to Buyer or Seller shall be distinct, separate and cumulative, and the use of one or more thereof shall not exclude or waive any other right or remedy allowed by law, unless specifically waived in this Agreement; (2) no waiver of any breach or default of either party hereunder shall be implied from any omission by the other party to take any action or account of any similar or different breach or default; the payment or acceptance of money after it falls due after knowledge of any breach of this Agreement by Seller or Buyer, or after the termination of Buyer's right of possession hereunder, or after the service of any notice, or after commencement of any suit, or after final judgment for possession of the premises shall not reinstate, continue or extend this Agreement nor affect any such notice, demand or suit or any right hereunder not herein expressly waived.”

¶ 4 Although the initial payment of $12,500 due at closing was paid, the LeFevours immediately fell behind on their payments. In April 2007, roughly two years after the parties entered into the agreement, plaintiffs retained defendants, Joerg Seifert, Joerg Seifert, Ltd., P.C., and Joerg Seifert Law Offices, P.C., to recover the arrearage from the LeFevours and to regain possession of the property.

¶ 5 Defendants made unsuccessful attempts to collect what the LeFevours owed. The LeFevours remained in possession and in default. Despite directives to collect past amounts owed, plaintiffs alleged that defendants sent a letter to the LeFevours on July 18, 2007, that declared a default and forfeiture of the agreement. Plaintiffs alleged that defendants chose the forfeiture remedy without consulting them or explaining the consequences of declaring

[1 N.E.3d 1104]

a forfeiture. The LeFevours moved out in November 2007.

¶ 6 Unaware that their right to collect the arrearage had been terminated when defendants declared a forfeiture, plaintiffs retained the services of another law firm to sue the LeFevours for breach of contract. The LeFevours moved to dismiss the breach of contract suit based on the prior declaration of forfeiture. Despite defendants' claim that they did not declare a contract forfeiture, the court found a forfeiture had been declared and dismissed the breach of contract action with prejudice.

¶ 7 After the breach of contract case was dismissed, plaintiffs filed the instant action against defendants for professional negligence. Plaintiffs alleged defendants breached the standard of care owed a legal client: (1) by declaring a forfeiture, such that the LeFevours did not have to pay back rent and, by choosing this remedy causing any subsequent actions for damages against the LeFevours to be barred; (2) by failing to communicate their wrongdoings to their client; (3) by breaching their fiduciary duties; and (4) by being otherwise careless and negligent. The case proceeded to trial in March 2012.

¶ 8 At trial, Adriana Brannen testified that at the time of trial she was 85 years old and living with her son John. She testified that she is the beneficiary of the trust at Standard Bank and Trust containing the property. In 2005, when the agreement was signed, her son John was helping her with the property. She never saw any checks or payments made by the LeFevours because John handled all of the dealings with the property. The terms of the agreement were that the LeFevours would pay the property taxes and insurance after they moved in. Adriana testified that she ended up paying the taxes and insurance. After the LeFevours stopped paying the installments, Adriana told John to call them because she wanted them out of the property and wanted the money they owed. The LeFevours did not pay, so Adriana instructed John to contact defendants.

¶ 9 Plaintiffs called Joerg Seifert as an adverse witness. Seifert testified that he was a licensed attorney and the corporate representative of Joerg Seifert Limited, P.C., and Joerg Seifert Law Offices, P.C. Seifert knew Adriana and knew that her son John was her representative. Seifert was hired by John Brannen in this matter on April 17, 2007. John initially told Seifert that he wanted the LeFevours to pay what they owed and would give them until the end of July to purchase the house. If the LeFevours did not pay by the end of July, John wanted the contract rescinded and the house placed back on the market. On April 25, 2007, Seifert sent a letter to the LeFevours advising them of the $59,160 arrearage and demanding full payment by the end of June 2007. Seifert sent them a follow-up letter on May 30, 2007, asking about their intention to pay the monies owed. On June 29, 2007, Mark LeFevour responded with a proposed payment schedule. John rejected the payment schedule. On July 3, 2007, Seifert sent a letter to the LeFevours indicating that the new proposed payment schedule was unacceptable and demanded payment of the full arrearage in timely monthly payments or they would be required to buy the property. On July 18, 2007, Seifert sent a letter to the LeFevours informing them that due to the $71,000 in arrearage, “the Seller hereby declares a default and forfeiture pursuant to said agreement and demand is hereby made upon you to immediately vacate the premises but in no event later than July 31, 2007.”

¶ 10 The attorney Brannen hired to...

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6 practice notes
  • Young v. Alden Gardens of Waterford, LLC, Nos. 1–13–1887
    • United States
    • United States Appellate Court of Illinois
    • March 31, 2015
    ...verdict is reviewed de novo, as is the decision denying a motion for judgment n.o.v. Brannen v. Seifert, 2013 IL App (1st) 122067, ¶ 59, 377 Ill.Dec. 209, 1 N.E.3d 1096. ¶ 45 The standard for obtaining a judgment n.o.v. is a “ ‘very difficult standard to meet,’ ” and limited to “ ‘extreme s......
  • Old Second Nat'l Bank v. Jafry, No. 2–15–0825.
    • United States
    • United States Appellate Court of Illinois
    • June 28, 2016
    ...(2010). The right to setoff is derived from either a contractual right or equity. Brannen v. Seifert, 2013 IL App (1st) 122067, ¶ 95, 377 Ill.Dec. 209, 1 N.E.3d 1096. Without a contractual right, there is no inherent right to setoff in equity; rather, equitable setoff was conceived as a lim......
  • In re Dorris, NO. 4-14-0303
    • United States
    • United States Appellate Court of Illinois
    • February 24, 2015
    ...a claim for possession and unpaid rent in a forcible entry and detainer complaint. Brannen v. Seifert, 2013 IL App (1st) 122067, ¶ 49, 1 N.E.3d 1096 (citing Campana Redevelopment, LLC v. Ashland Group, LLC, 2013 IL App (2d) 120988, ¶ 14, 993 N.E.2d 1095). Section 9-209, entitled, "Demand fo......
  • People v. Hancock, NO. 4-17-0253
    • United States
    • United States Appellate Court of Illinois
    • January 9, 2018
    ...is so overwhelming to the moving party that a contrary verdict cannot be reached. Brannen v. Seifert, 2013 IL App (1st) 122067 ¶ 59, 1 N.E.3d 1096; Pedrick v. Peoria & Eastern R.R. Co., 37 Ill. 2d 494, 510, 229 N.E.2d 504, 513-14 (1967). When reviewing the denial of a directed verdict, a re......
  • Request a trial to view additional results
6 cases
  • Young v. Alden Gardens of Waterford, LLC, Nos. 1–13–1887
    • United States
    • United States Appellate Court of Illinois
    • March 31, 2015
    ...verdict is reviewed de novo, as is the decision denying a motion for judgment n.o.v. Brannen v. Seifert, 2013 IL App (1st) 122067, ¶ 59, 377 Ill.Dec. 209, 1 N.E.3d 1096. ¶ 45 The standard for obtaining a judgment n.o.v. is a “ ‘very difficult standard to meet,’ ” and limited to “ ‘extreme s......
  • Old Second Nat'l Bank v. Jafry, No. 2–15–0825.
    • United States
    • United States Appellate Court of Illinois
    • June 28, 2016
    ...(2010). The right to setoff is derived from either a contractual right or equity. Brannen v. Seifert, 2013 IL App (1st) 122067, ¶ 95, 377 Ill.Dec. 209, 1 N.E.3d 1096. Without a contractual right, there is no inherent right to setoff in equity; rather, equitable setoff was conceived as a lim......
  • In re Dorris, NO. 4-14-0303
    • United States
    • United States Appellate Court of Illinois
    • February 24, 2015
    ...a claim for possession and unpaid rent in a forcible entry and detainer complaint. Brannen v. Seifert, 2013 IL App (1st) 122067, ¶ 49, 1 N.E.3d 1096 (citing Campana Redevelopment, LLC v. Ashland Group, LLC, 2013 IL App (2d) 120988, ¶ 14, 993 N.E.2d 1095). Section 9-209, entitled, "Demand fo......
  • People v. Hancock, NO. 4-17-0253
    • United States
    • United States Appellate Court of Illinois
    • January 9, 2018
    ...is so overwhelming to the moving party that a contrary verdict cannot be reached. Brannen v. Seifert, 2013 IL App (1st) 122067 ¶ 59, 1 N.E.3d 1096; Pedrick v. Peoria & Eastern R.R. Co., 37 Ill. 2d 494, 510, 229 N.E.2d 504, 513-14 (1967). When reviewing the denial of a directed verdict, a re......
  • Request a trial to view additional results

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