Frank v. Loftus
| Citation | 2014 IL App (1st) 130622 |
| Decision Date | 02 June 2014 |
| Docket Number | No. 1-13-0622,1-13-0622 |
| Court | United States Appellate Court of Illinois |
| Parties | GARY FRANK and GUDRUN FRANK, Plaintiffs-Appellants, v. MARK LOFTUS, Defendant-Appellee. |
NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from the
Circuit Court of
Cook County.
Held: Summary judgment in favor of the defendant attorney was proper because plaintiffs could not establish that the attorney's alleged malpractice, in failing to present and argue for recovery of lost profits, proximately caused plaintiffs' damages to be limited to the differential value of their land.
¶ 1 Plaintiffs Gary Frank and Gudrun Frank appeal the circuit court's grant of summary judgment in favor of defendant Mark Loftus on their legal malpractice claim, alleging that there were genuine issues of material fact to preclude summary judgment. While the circuit court granted summary judgment on the two counts of their legal malpractice complaint, plaintiffs confine their appeal to count I. In their opening brief on appeal, plaintiffs state "Count II of theComplaint which alleges legal malpractice against defendant in connection with Gudrun Frank's personal injuries [is] not at issue in this appeal." Accordingly, we review count I only. For the following reasons, we affirm.
¶ 4 Plaintiffs operated an apple orchard which was allegedly damaged by spray-drift pesticides originating from neighboring lands. In January 1997, plaintiffs filed a complaint including claims for negligence, nuisance and trespass against the caretakers of the neighboring lands (Stephenson County defendants). From 1997 until 2005, plaintiffs were represented in that lawsuit by attorney John Stromstra (Stromstra). In March 2005, Stromstra withdrew and plaintiffs hired Loftus to represent them. Loftus's representation of the plaintiffs in the lawsuit against the Stephenson County defendants continued through a pre-trial conference on November 3, 2006 at which both parties presented their respective motions in limine.
¶ 5 The Stephenson County defendants presented a motion in limine to bar evidence of plaintiffs' lost profits as a result of the alleged spray-drift damage to their apple orchard. In support of their motion, the Stephenson County defendants relied on Collins v. Illinois Central R. Co., 161 Ill. App. 95 (1911), in arguing that the plaintiffs' damages should be limited to the differential value of the land. In response to the motion, Loftus, on behalf of plaintiffs, cited three cases to support his argument for recovery of lost profits. Roark v. Musgrave, 41 Ill. App. 3d 1008 (1976), Wheat v. Freeman, 23 Ill. App. 3d 14 (1974), Schatz v. Abbott Laboratories, Inc., 131 Ill. App. 2d 1091 (1972) rev'd 51 Ill. 2d 143 (1972). The court in Roark, Loftus argued, suggested that the differential value approach did not reflect the "preferable, less rigid, modern approach" and that a court may consider the particular purpose for which the land waspurchased. Roark, 41 Ill. App. 3d at 1013. Loftus also made numerous statements that veered away from the theory of lost profits of an ongoing business saying that, after the initial drifts, the orchard was "doomed" and a "nonfunctioning unit" and that any subsequent drifts were relevant to the nuisance count but "didn't have anywhere near the impact that the initial exposures did." Loftus did not mention the findings of Allan Dassow (Dassow), the plaintiffs' accountant expert, who had written a lengthy report about the plaintiffs' damages from the pesticides including a calculation of plaintiffs' lost profits.
¶ 6 After hearing these arguments on the motion in limine, the trial court granted the Stephenson County defendants' motion to bar evidence of lost profits. The court noted that Loftus had argued that the orchard was "doomed" after the initial drifts. The court concluded that, while the differential value measure of damages (value of the land before the injury minus the value after the injury) relied on dated cases, that measure appeared to be the law in Illinois. Shortly after the court's ruling, Loftus withdrew as plaintiffs' attorney.
¶ 7 Soon thereafter, plaintiffs hired attorney Robert Fink, who filed a timely motion to reconsider the court's order granting defendants' motion in limine to bar lost profits. The trial court denied the motion to reconsider, reasoning that the cases it relied on in ruling on the motion were dated but appeared to be the law in Illinois as it applied to fruit trees and orchards. Fink then filed an interlocutory appeal which we declined to address. With attorney Fink, the plaintiffs settled the underlying suit in July 2008 for $250,000 without an admission of liability by any of the Stephenson County defendants.
¶ 9 A few months after settling the underlying suit, plaintiffs filed the instant malpractice action against Loftus. Plaintiffs complained that, in the underlying suit, Loftus argued that theearliest incidents of pesticide drift inflicted complete and permanent damage to their land instead of arguing for damage to an ongoing business venture. Plaintiffs further contended that because of Loftus's faulty arguments of permanent damage, the trial judge granted the motion in limine to bar evidence of lost profits and confined plaintiffs' damages to the differential value of the land.
¶ 10 To support their malpractice allegations in the instant complaint, plaintiffs rely on the opinions of their legal expert, Duane Young. In both his expert report and deposition testimony which were part of the pleadings on summary judgment, Young opined that Loftus breached the standard of care in the way that he formulated the plaintiffs' theory of damages in the underlying suit against the Stephenson county defendants. Young's expert report stated that the "position taken (repeatedly) by Mr. Loftus that the damages 'to the land' were permanent resulted in the trial court's ruling that the only damages recoverable were to be measured by the difference between the value of the land established before the injury to it and the residual value, or value after the injury." Young's report also stated that Loftus's argument of permanent damage foreclosed the opportunity to prove damages to the orchard as a business venture and precluded the plaintiffs from presenting and relying on their accountant expert in the underlying suit, Dassow, who found that plaintiffs' lost profits amounted to $555,630.
¶ 11 On August 15, 2012, the circuit court granted summary judgment in favor of Loftus. In its oral ruling, the court addressed both breach of duty and proximate cause, stating that: (1) Loftus's pre-trial argument of permanent damage was consistent with other experts who had opined that the orchard was a total loss after the initial drifts; (2) Loftus made an argument for recovery of lost profits under a nuisance theory; and (3) the plaintiffs - through their legal expert Young - had not shown that the trial court's ruling on the motion in limine would have been different but for the alleged malpractice nor had plaintiffs shown that they would have prevailedon the issue of lost profits. The court also stated that Young's expert opinion that Loftus should have presented an alternative, ongoing business basis for lost profits was ill-advised and an alternative argument would not have changed the ruling that lost profits were not recoverable as a matter of law.
¶ 12 In denying plaintiffs' subsequent motion to reconsider, the court focused on the proximate cause element of plaintiffs' complaint:
Now, my understanding here is that Mr. Young says that Attorney Loftus should have presented the fact that -- or facts that this was an ongoing business. . . And, therefore [lost] profits should be recoverable. Now, to me, when I look at that, that's the basis for an opinion that [lost] profits should be recovered. That's the basis of an opinion. It's not a legal theory. It's a basis of that expert's opinion. . . It is consistent with my original ruling on the motion for summary judgment, the Judge [in the underlying suit] ruled as a matter of law, and whether you call it [lost] profits from an ongoing business or you call it [lost] profits from a nuisance theory or you call - [lost] profits for whatever reasons, it's not recoverable under the law according to the [trial] Judge.
Plaintiffs now appeal.
¶ 14 On appeal, plaintiffs contend that the trial court's grant of summary judgment was improper because there were genuine issues of material fact as to whether Loftus committed legal malpractice. The standard of review for a grant of summary judgment, as well as for a motion to reconsider that only asks a court to consider again its application of the law to the case as it existed at the time of judgment, is de novo. Kyles v. Maryville Acad., 359 Ill. App. 3d 423, 433 (2005). Plaintiffs, as in this case, who settled an underlying claim, are not automatically barred from bringing a malpractice action against the attorney who represented them in that claim. McCarthy v. Pedersen & Houpt, 250 Ill. App. 3d 166, 172 (1993). But, if the plaintiffs fail to establish any element of the cause of action, summary judgment for the defendant is proper. Governmental Interinsurance Exch. v. Judge, 221 Ill. 2d 195, 215 (2006), citing Pyne v.Witmer, 129 Ill. 2d 351, 358 (1989). As the court of review, we are required to determine whether the trial court correctly entered summary judgment by reviewing the facts of this case in the light most favorable to the party opposing the motion for summary judgment. Lindenmier v. City of Rockford, 156 Ill. App. 3d...
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