John Z. Huang, Individually, & John Z. Huang, P.C. v. Brenson

• Citation: 7 N.E.3d 729,2014 IL App (1st) 123231,379 Ill.Dec. 891
• Decision Date: 05 March 2014
• Docket Number: No. 1–12–3231.,1–12–3231.
• Parties: John Z. HUANG, Individually, and John Z. Huang, P.C., Plaintiffs–Appellants, v. Ian BRENSON, Individually, and The Law Offices of Ian Brenson, Defendants–Appellees.
• Court: United States Appellate Court of Illinois

2014 IL App (1st) 123231
7 N.E.3d 729
379 Ill.Dec. 891

John Z. HUANG, Individually, and John Z. Huang, P.C., Plaintiffs–Appellants,
v.
Ian BRENSON, Individually, and The Law Offices of Ian Brenson, Defendants–Appellees.

No. 1–12–3231.

Appellate Court of Illinois,
First District, Third Division.

March 5, 2014.

[7 N.E.3d 732]

Jenna M. Smith, John Z. Huang & Associates, Chicago, for appellants.

Jason M. Zuzniar, Lauren M. Kim, Wilson, Elser, Moskowitz, Edelman & Dickler LLP, Chicago, for appellees.

OPINION
Presiding Justice HYMAN delivered the judgment of the court, with opinion.

Plaintiffs, a lawyer and his firm, brought this legal malpractice claim against the lawyer who defended him in a legal malpractice claim brought by a former client. In the original case, plaintiffs' professional liability insurer retained defendants Ian Brenson and the Law Offices of Ian Brenson (collectively, Brenson) to represent plaintiffs John Z. Huang and his firm John Z. Huang, P.C. (collectively, Huang). The former client prevailed against Huang. (Ultimately, that judgment was reversed on appeal.) Huang's legal malpractice case against Brenson was dismissed, and this appeal followed.

¶ 2 We hold that Huang failed to plead facts that establish a cognizable claim, and, therefore, we affirm.

¶ 3 BACKGROUND

¶ 4 Yongping Zhou, a Chinese citizen, was convicted in 1998 of domestic violence. He received a one-year suspended sentence. As a result, in early 2001, the Immigration and Naturalization Service (INS) detained Zhou and served him with a notice of intent to deport to China, giving 10 days to rebut the charges and contest the deportation. Through a friend, Zhou retained Huang, an immigration lawyer, to represent him in the INS proceedings. Huang represented Zhou from February 2001 until June 2001, when Zhou terminated the relationship and retained another attorney.

¶ 5 The new attorney represented Zhou in the INS proceedings. After hearing Zhou's testimony, the judge denied Zhou's request for asylum and rejected his torture and persecution claims. Zhou hired several more attorneys before he was able

[7 N.E.3d 733]

to have his conviction for domestic violence vacated. After spending two years in prison, Zhou was released on bond in 2003 from INS detention.

¶ 6 In May 2003, Zhou sued Huang for legal malpractice. Zhou's amended complaint alleged that Huang acted negligently, and he sought damages for emotional distress, physical abuse, isolation, humiliation, pain and suffering, loss of education, and loss of income. Huang's professional liability insurer retained Brenson to represent Huang.

¶ 7 Five years later, Brenson moved for summary judgment on Huang's behalf, arguing that Zhou could not recover noneconomic damages in a legal malpractice action. The circuit court denied that motion and set the matter for a jury trial. Before trial, Brenson moved in limine to exclude evidence of noneconomic damages, which the judge denied as well. During the three-week trial, Zhou only presented evidence on damages for emotional distress, loss of normal life, psychological damages, and the cost of future psychological care—damages that are all noneconomic in nature. Brenson argued that the jury should be instructed that it could not award damages based on noneconomic injury, but the trial judge declined the instruction. The jury awarded Zhou $4 million.

¶ 8 After the trial, Huang terminated Brenson and hired two new attorneys for posttrial and asset discovery proceedings: one paid for by his insurer, and the other Huang paid. The trial court granted a remittitur and reduced Zhou's judgment to $1 million, which Zhou rejected. Huang then moved for judgment n.o.v. and for a new trial. The judge denied the motion, and both Zhou and Huang appealed.

¶ 9 In that appeal, Huang argued that the trial court erred in allowing Zhou to recover nonpecuniary damages. The appellate court agreed, holding that Zhou was “prohibited from recovering damages for emotional distress in the instant action.” Zhou v. John Z. Huang, P.C., No. 1–08–2807, 402 Ill.App.3d 1197, 376 Ill.Dec. 791, 1 N.E.3d 124 (2010) (unpublished order under Supreme Court Rule 23). The court reversed and remanded with instructions to enter judgment n.o.v. in favor of Huang and his firm. The supreme court denied Zhou's petition for leave to appeal. Zhou v. John Z. Huang, P.C., 239 Ill.2d 592, 348 Ill.Dec. 200, 943 N.E.2d 1110 (2011)(table).

¶ 10 In December 2010, Huang filed this case in the circuit court, alleging Brenson committed legal malpractice while defending the Zhou malpractice case. Huang's second amended complaint contained 10 counts, including 8 counts alleging “negligence/legal malpractice” on the following grounds:

• Brenson negligently conducted discovery, causing Huang to be unprepared for his deposition (count I);

• Brenson failed to communicate with Huang for eight months, contributing to Huang's being unprepared at trial (count II);

• Brenson failed to procure an expert for trial (count III);

• Brenson failed to depose or call as witnesses the immigration judge, INS officers, Zhou's former wife, or other attorneys who represented Zhou in the immigration proceeding (count IV);

• Brenson failed to advise Huang of the possibility of a multimillion dollar verdict (count VII);

• at trial, Brenson failed to introduce key documents into evidence (count VIII);

• at trial, Brenson failed to object to inadmissible evidence (count IX); and

• Brenson failed to move the case forward in a timely manner, leaving it

[7 N.E.3d 734]

pending in the circuit court for five years (count X).

¶ 11 Huang also filed claims for breach of fiduciary duty. In count V, Huang alleged that Brenson concurrently represented Huang and the professional liability insurance company, and, as a result, failed to relay several of Zhou's settlement offers to Huang. Similarly, in count VI, Huang alleged that Brenson breached his fiduciary duty of loyalty by failing to relay Zhou's settlement offers. He sought damages of $154,855 for attorney fees paid to the posttrial and appellate counsel.

¶ 12 Brenson moved to dismiss the second amended complaint, which the trial court granted. Dismissed with prejudice were most of the legal malpractice claims (counts I, II, III, IV, VIII, IX, and X). The circuit judge reasoned that Brenson could not be held responsible for a judicial mistake that required an appeal to correct. The court further dismissed counts V, VI, and VII without prejudice because Huang did not allege that his insurer was willing to settle the case, or that he could settle the case on his own.

¶ 13 Huang repleaded counts V, VI, and VII in a fourth amended complaint. Brenson again moved to dismiss, and, again, the circuit judge dismissed. The trial court held that the fourth amended complaint failed to “adequately allege that Huang had the authority to demand his insurance company settle, and that Lloyd's [the insurer] would have paid the demand.”

¶ 14 Huang now appeals the dismissal of the second and fourth amended complaints.

¶ 15 STANDARD OF REVIEW

¶ 16 We review motions to dismiss under sections 2–619 and 2–615 of the Code of Civil Procedure de novo. Dratewska–Zator v. Rutherford, 2013 IL App (1st) 122699, ¶ 16, 375 Ill.Dec. 95, 996 N.E.2d 1151; 735 ILCS 5/2–615, 2–619(a) (West 2008). Accordingly, we may affirm or reverse on any basis found in the record. Raintree Homes, Inc. v. Village of Long Grove, 209 Ill.2d 248, 261, 282 Ill.Dec. 815, 807 N.E.2d 439 (2004).

¶ 17 Dismissal is proper under section 2–615 when it is clear that the plaintiff has not pled a set of facts that would entitle it to relief. Central Austin Neighborhood Ass'n v. City of Chicago, 2013 IL App (1st) 123041, ¶ 8, 377 Ill.Dec. 89, 1 N.E.3d 976. Opposition to a section 2–615 motion cannot rely on mere conclusions of law unsupported by specific factual allegations. Karimi v. 401 North Wabash Venture, LLC, 2011 IL App (1st) 102670, ¶ 13, 352 Ill.Dec. 52, 952 N.E.2d 1278. Though, for the purposes of the motion, well-pleaded factual allegations and reasonable inferences are treated as true. Illinois Insurance Guaranty Fund v. Liberty Mutual Insurance Co., 2013 IL App (1st) 123345, ¶ 14, 377 Ill.Dec. 69, 1 N.E.3d 956.

¶ 18 A motion under section 2–619 admits the legal sufficiency of the pleading, but asserts affirmative matter. Czarobski v. Lata, 227 Ill.2d 364, 369, 317 Ill.Dec. 656, 882 N.E.2d 536 (2008). These motions dispose of issues of law and easily proved issues of fact early in the litigation. Id. Construing the pleadings and supporting documents in the light most favorable to the nonmoving party, we consider whether the existence of a genuine issue of material fact precluded dismissal. Id.

¶ 19 ANALYSIS ¶ 20 Forfeiture of Issue of Proximate Cause

¶ 21 Brenson argues that Huang forfeited the issue of proximate cause by not raising it in the trial court. We disagree.

[7 N.E.3d 735]

¶ 22 Failure to raise an issue in the trial court generally results in forfeiture of that issue on appeal. Fillmore v. Walker, 2013 IL App (4th) 120533, ¶ 27, 372 Ill.Dec. 33, 991 N.E.2d 340. Issues raised on appeal must be at least “commensurate with” those raised before the trial court. Greer v. Illinois Housing Development Authority, 122 Ill.2d 462, 509, 120 Ill.Dec. 531, 524 N.E.2d 561 (1988). Here, Brenson raised the issue of proximate cause in the motion to dismiss the second amended complaint, and Huang argued in response that the trial judge's mistake in Zhou v. Huang did not excuse Brenson's negligence. Huang's responsive briefing was sufficient to preserve the issue for our review. Accordingly, Huang did not forfeit the proximate cause issue.

¶ 23 Legal Malpractice

¶ 24 Huang argues that the trial court erred in ruling that Brenson did not proximately cause Huang's damages. We disagree.

¶ 25 The elements of a cause of action for legal malpractice are: (i) the defendant attorney owed the plaintiff client a duty of due care arising from an attorney-client...