Weisman v. Schiller, Ducanto and Fleck

• Decision Date: 21 September 2006
• Docket Number: No. 1-04-2950.,1-04-2950.
• Citation: 306 Ill.Dec. 29,856 N.E.2d 1124
• Parties: Wendy WEISMAN, Plaintiff-Appellant, v. SCHILLER, DUCANTO AND FLECK, LTD., Defendant-Appellee.
• Court: United States Appellate Court of Illinois

856 N.E.2d 1124

306 Ill.Dec. 29

Wendy WEISMAN, Plaintiff-Appellant, v. SCHILLER, DUCANTO AND FLECK, LTD., Defendant-Appellee.

No. 1-04-2950.

Appellate Court of Illinois, First District, Fourth Division.

September 21, 2006.

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Philip J. Nathanson, Chicago (Philip A. Nathanson, of counsel) and Goldberg & Goldberg, Chicago (Barth H. Goldberg, of counsel), for Appellant.

Johnson & Bell, Ltd., Chicago (Joseph R. Marconi and David M. Macksey, of counsel) and Shefsky & Froelich, Ltd., Chicago (J. Timothy Eaton, of counsel), for Appellee.

Presiding Justice QUINN delivered the opinion of the court:

Plaintiff Wendy Weisman sued defendant Schiller, Ducanto, & Fleck, Ltd. (SDF), for negligent representation of her interests during divorce proceedings against her former husband, Larry Weisman (Larry), where SDF allegedly failed to conduct adequate discovery on the value of the marital estate and to present expert witnesses. Following a jury trial, a verdict was entered for SDF, and plaintiff appealed. On appeal, plaintiff contends that the verdict was against the manifest weight of the evidence and alleges that the trial court made several errors.

BACKGROUND

The record shows that plaintiff and Larry married in February 1979. Thereafter, in the summer of 1980, Larry formed the law firm Goldberg, Weisman & Fohrman with Michael Goldberg and Donald Fohrman, which later became Goldberg, Weisman & Cairo (GWC) following Fohrman's departure.

In October 1986, Larry filed for divorce but quickly dismissed that action. He then refiled for divorce in April 1992, at which time plaintiff retained the services of SDF. Upon request, SDF received financial documents from Larry dating back to 1987, including annuity contracts, investment statements, and bank statements. Arnold Stein, an attorney at SDF, then deposed Larry on August 25, 1992, and questioned him about his disclosed financial documents. However, in the fall of 1993, Larry again dismissed the divorce action after plaintiff received treatment for her drug use at the Betty Ford Clinic.

In January 1994, plaintiff filed for divorce, and after a failed attempt at reconciliation, she told SDF to proceed with the marital dissolution action. Larry then filed a petition for order of protection on April 26, 1994, which the circuit court granted in an emergency order, and on April 27, 1994, he also filed for divorce.

On May 5, 1994, SDF filed a notice to produce and a notice of deposition on Larry. A limited discovery deposition of Larry was conducted on May 12, 1994, which primarily concerned the order of protection, child support, and attorney fees. Larry, however, failed to fully comply with SDF's production request for financial documents. As a result, SDF filed a motion to compel on June 13, 1994. Larry never responded to that motion and no hearing was ever held on it.

On June 27, 1994, however, Larry sent SDF financial records that which he claimed were for settlement purposes only. The documents included a handwritten financial statement of assets stating his net worth was $4,485,347, various promissory notes, and a notice of his participation in a profit-sharing plan at GWC for the 1993 year. Despite viewing the financial statement as incomplete, SDF sent Larry a settlement proposal on August 2, 1994. SDF estimated Larry's net worth to be $6.5 million based on his financial disclosures and the buy-sell agreement he had with GWC, which asserted that he would receive $1.2 million upon his departure. SDF requested $3.3 million in value of the marital estate, but Larry rejected the proposal.

In September 1994, Larry filed a motion to close discovery, and SDF filed a response that set forth in detail the documents it received from Larry and the documents it still sought. SDF noted in its response that Larry never fully complied with its production requests. The trial court granted Larry's motion and ordered all discovery to be closed on January 5, 1995, and set the trial for February 27, 1995.

Three weeks after the trial court granted Larry's motion to close discovery, SDF sent Larry another request for discovery and disclosure of expert witnesses. In response, Larry sent SDF another handwritten financial statement, dated November 18, 1994, which again noted it was for settlement purposes only. The statement showed he had a net worth of $4,312,567 but no value was listed for his interest in his law firm, GWC.

SDF asked the trial court for expert witness fees to hire an expert to value Larry's law practice. Larry provided $5,000 for a retainer for an expert and SDF hired Willamette Management Associates (Willamette).

In November 1994, Willamette sent SDF a list of documents it needed to formulate an opinion as to GWC's value. SDF forwarded that list to Larry in December 1994, and asked him for still outstanding discovery and expert witness disclosures. On December 20, 1994, Larry's attorney sent SDF a letter which disclosed expert witness Robert Robertson of Coopers & Lybrand, Ltd., who had been retained to value Larry's interest in GWC. The letter did not include a valuation of GWC even though Robertson had previously valued each partner's interest in GWC during the 1991 partnership dissolution case brought by former partner Fohrman.¹ SDF was aware of that previous valuation, but Willamette had not yet valued Larry's interest in GWC.

On December 28, 1994, plaintiff sent Stein a letter which informed him that she was dismissing SDF as counsel. In that letter, plaintiff informed Stein that he "had been great" but that she felt a change was necessary. She then retained the services of Kaufman, Litwin, & Feinstine (KLF) as counsel.

Prior to its January 13, 1995, withdrawal, SDF filed a motion to extend discovery and to continue the trial on January 5, 1995. In that motion, SDF rejected Larry's contention that his interest in GWC was of no value and asserted that Willamette had not yet valued Larry's interest. Further, SDF noted that Larry had not produced all requested financial documents. The trial court denied SDF's motion.

SDF also wrote to KLF on January 4, 1995, and January 11, 1995, asking them to retrieve plaintiff's file, which KLF did on January 18, 1995. Those files included the parties' tax returns from 1989 to 1993 as well as GWC's tax returns for those years.

Meanwhile, KLF also filed a motion to extend the discovery cutoff date and to continue the trial date, which the trial court denied. However, the trial court entered an order by agreement that Larry would appear for a deposition by January 31, 1995.

On January 20, 1995, Larry's attorney responded to KLF's notice of the deposition and the attached request for documents spanning six years by informing KLF that all relevant documents had already been produced. Subsequently, on January 26, 1995, Larry appeared for a deposition and presented updated versions of the documents he had previously provided SDF. During the deposition, Larry testified as to his assets, which included $2.62 million in a money market account with Mesirow Financial, $80,000 deposited with Fidelity, $30,000 in a personal checking account at Midcity Bank, two other accounts valued under $2,000, and an individual retirement account (IRA) worth about $36,000. Larry valued the couple's home at $580,000 and stated that it was fully paid for. He also testified that he earned $1.265 million in 1994 and provided details as to other business deals and loans, including financial dealings with GWC.

KLF was aware of Larry's interest in GWC. KLF was also aware that Fohrman received $1.2 million following his lawsuit upon his departure from the firm. The record contains a letter between partners of KLF, which suggests that the firm believed that the $1.2 million in the buy-sell agreement represented the value of Larry's interest in the firm for purposes of marital property division and distribution.

On February 25, 1995, at the advice of KLF, plaintiff settled her marital dissolution case with Larry out of court. Plaintiff received approximately $3,103,747 in the settlement, which consisted of $2,070,000 in assets and $1,033,747 in non-modifiable maintenance to be paid in varied sums over 10 years. At the prove-up hearing, Larry stated that all of his assets were set forth in the settlement agreement and acknowledged that he had made over $1 million each of the previous three years.

Thereafter, SDF filed a fee petition for its services, and the trial court ordered plaintiff to pay SDF $26,216.15 for the dissolution proceedings and $28,659 for the order of protection proceedings.

Plaintiff then filed a legal malpractice lawsuit against defendant. The trial court, however, dismissed that action under the doctrine of res judicata because plaintiff had raised the issue of legal malpractice in response to plaintiff's fee petition action. This court reversed that ruling on appeal (Weisman v. Schiller, Ducanto, & Fleck, 314 Ill.App.3d 577, 248 Ill.Dec. 143, 733 N.E.2d 818 (2000)) and remanded the case for trial.

During the subsequent jury trial, plaintiff testified first and acknowledged that she took quaaludes during her marriage because they helped her cope with her sense of loneliness. She stated that she knew she had to quit using drugs in order to "concentrate on her kids." Plaintiff received care at the Betty Ford Clinic and worked with a therapist thereafter.

Plaintiff's testimony further related that she worked as a paralegal at GWC prior to having her and Larry's two children. Plaintiff detailed her care of their household following the birth of the children, including driving the children to school and personal appointments and buying their clothes. She concluded her direct testimony by presenting and describing several family pictures.

On cross-examination, although the trial court disallowed defense counsel from reading from...