Zweig v. Miller , 2020 IL App (1st) 191409 ( 2020 )

2020 IL App (1st) 191409No. 1-19-1409
Opinion filed December 31, 2020
Fourth Division
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
______________________________________________________________________________
ARIE ZWEIG, Individually and as Trustee of the Arie ) Appeal from the
Zweig Self Declaration of Trust Dated June 28, 1990, ) Circuit Court of
) Cook County.
Plaintiff-Appellant, )
)
v. ) No. 17 L 2837
)
GERALD MILLER and VANASCO, GENELLY & )
MILLER, ) Honorable
) Brigid M. McGrath,
Defendants-Appellees. ) Judge, presiding.
JUSTICE LAMPKIN delivered the judgment of the court, with opinion.
Presiding Justice Gordon and Justice Reyes concurred in the judgment and opinion.
OPINION
¶1 This appeal arose from the legal malpractice action that plaintiff, Arie Zweig, individually
and as trustee of the Arie Zweig Self Declaration of Trust Dated June 28, 1990, filed against
defendants, Gerald Miller and Vanasco, Genelly & Miller. The trial court granted summary
judgment in favor of defendants based on the court’s determination that plaintiff’s legal
No. 1-19-1409
malpractice claim was barred by the two-year statute of limitations set forth in section 13-214.3(b)
of the Code of Civil Procedure (Code) (735 ILCS 5/13-214.3(b) (West 2016)).
¶2 On appeal, plaintiff argues that his malpractice action was timely filed within two years of
the date he settled the underlying litigation that involved a business investment where defendants
had represented him. Specifically, plaintiff argues that his malpractice cause of action accrued
when that underlying litigation settled because he did not suffer a pecuniary loss until the
settlement occurred. He also argues that filing his malpractice action before the settlement would
have been premature and contrary to the strong policy rationale against “prophylactic malpractice
cases,” wherein the legal malpractice case is completely dependent on the outcome of the pending
underlying case. Alternatively, plaintiff argues that a genuine issue of material fact exists regarding
when he knew or should have known of his injury.
¶3 For the reasons that follow, we hold that summary judgment in favor of defendants was
proper because plaintiff failed to file his complaint within the two-year statute of limitations, which
began to run, at the latest, when he knew, as a matter of law, of his injury and that it was wrongfully
caused, i.e., when he incurred legal fees directly caused by hiring additional counsel to attempt to
achieve a result in the underlying case that was not achieved during defendants’ representation.
Accordingly, we affirm the judgment of the trial court. 1
¶4 I. BACKGROUND
¶5 In December 2010, plaintiff Zweig and his wife had dinner with their close friends, Mr.
and Mrs. Bozorgi, who discussed an investment opportunity. The Bozorgis asked plaintiff to join
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.
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them in a partnership, Bedford Med, LLC (Bedford), to build an ambulatory surgical center and
medical office building. They asked him to invest $2 million for a 40% membership, which would
be increased to 49% when the project was finished. Bedford was owned by a holding company,
which was owned by four members of the Bozorgi family. Plaintiff forwarded the materials for
the investment to his counsel, defendants Miller and Vanasco, Genelly & Miller, whom plaintiff
had retained for his business transactions for over 20 years. One document of the materials
included exhibit D, which provided:
“The Company shall distribute (in preference to any other Distribution) up
to [redacted] as and when the Company receives such funds from the Investor upon
the issuance of Membership Interests by the Company to the Investor (whether in
a single issuance or in a series of issuances). Upon each such preferential
Distribution to Magna, Investor’s and Magna’s Capital Contributions shall be
deemed to be adjusted on a dollar for dollar basis and Magna’s and Investor’s
Percentage Interests shall be adjusted accordingly.”
¶6 In his deposition, plaintiff explained that English was not his native language, so he relied
on defendants to adequately review the documents, advise him about the implications of the
documents he would sign, and recommend any amendments so that the agreement reflected his
intentions.
¶7 However, Miller stated in his deposition that ever since his initial representation of plaintiff
in 1986, plaintiff always made his own business decisions and never sought investment advice or
any financial analysis of any proposed or actual investments from defendants. Regarding the
Bedford investment, plaintiff told Miller that he was contributing capital investment funds to
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increase the equity in Bedford, not to purchase shares of stock. Plaintiff said it was a “done deal”
with his great friends and he wanted Miller to review only the issue of what kind of management
control plaintiff would have as a minority owner in Bedford. The nature, scope and extent of
plaintiff’s engagement of defendants was limited to reviewing plaintiff’s management authority.
Plaintiff personally handled all other aspects of the investment on his own. Based on their long
relationship, where plaintiff would negotiate defendant’s invoices to remove charges for services
he deemed unnecessary or not requested, Miller reviewed just the management provisions of the
agreement and found them to be “pretty standard” and thought they “looked fine.” Miller also
looked at the contribution agreement and transfer provisions that would affect plaintiff’s ability to
use his trust.
¶8 In 2011, plaintiff signed the documents and submitted his investment funds. He did not
communicate with Miller concerning the Bedford investment until mid-2013, when plaintiff
mentioned an unchallenged real estate assessment regarding Bedford and that he had not received
its financial and tax information.
¶9 On September 25, 2013, plaintiff and Miller met with the Bozorgis and their attorney to
discuss management and tax issues involving Bedford. At that meeting, plaintiff and Miller were
shocked when the Bozorgis’ counsel disclosed that plaintiff’s investment had been taken out of
Bedford and distributed to the Bozorgi holding company members. Plaintiff and Miller objected,
stating that plaintiff’s investment was a capital contribution, not a purchase and sale, and the
Bozorgis had no authority to distribute that investment. The Bozorgis, however, asserted they had
a clear right under exhibit D to take the money out.
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¶ 10 According to Miller’s deposition, he argued at the meeting that the contract was a
contribution agreement and pointed out contract provisions that prohibited the distribution and
required management approval of anything in exhibit D, which referred to only $1.6 million. The
meeting became very acrimonious. Plaintiff said the Bozorgis were stealing and cheating him and
he never would have agreed to such a deal. Mr. Bozorgi suggested they could sit down and resolve
the problem, but his daughter remained entrenched. The meeting ended shortly thereafter. Miller
walked to the parking garage with plaintiff and his wife, and plaintiff said he would try to talk to
Mr. Bozorgi and “see what’s going on here.” Plaintiff asked Miller to talk to the Bozorgis’ counsel.
Miller had not read or seen exhibit D before that meeting.
¶ 11 In his deposition, plaintiff said Miller assured him that the Bozorgis had breached their
contract, which prohibited the transfer of his investment. Plaintiff trusted Miller and believed the
transfer was some mistake by Mr. Bozorgi’s daughter and would be resolved soon. A few days
after the meeting, plaintiff spoke to a business colleague who was an experienced real estate
developer. When the colleague read exhibit D, he said, “Oh my God, how did you sign those
things?” and told plaintiff he never should have signed the agreement. Then plaintiff gave his wife
exhibit D to read, and she told him he should not have invested because exhibit D stated that the
holding company would take his money.
¶ 12 Plaintiff, Miller, the Bozorgis, and their counsel had several discussions and eventually
seemed to reach an agreement to resolve the matter. However, after Miller drafted a settlement
agreement in the spring of 2014, the Bozorgis refused to sign it.
¶ 13 On August 8, 2014, plaintiff sued the Bozorgi holding company members and other related
entities and individuals (the holding company actions), alleging breach of contract, breach of
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fiduciary duty, and a statutory violation. Plaintiff sought an accounting, the return of his investment
and damages he suffered from his involvement with Bedford. Plaintiff hired other counsel to
handle the holding company actions because defendants were not litigators. The first payment of
legal fees to plaintiff’s other counsel in the holding company actions was made by December 12,
2014, in the amount of $55,721.20. The holding company actions eventually consisted of four
cases in court and an arbitration forum. Defendants’ involvement in the holding company actions
was limited to consulting and reviewing briefs.
¶ 14 On July 1, 2015, plaintiff and defendants entered an agreement to toll the statute of
limitations for any malpractice action plaintiff might have against defendants. Specifically, they
agreed to toll the limitation period for six months or the remainder of any applicable limitations
period, whichever was longer, following the entry of final non-appealable judgments in all the
holding company actions or the execution of a settlement agreement that fully and finally settled
the holding company actions.
¶ 15 On September 15, 2016, the parties settled the holding company actions. Ultimately,
plaintiff’s other counsel in the holding company actions were paid over $2 million. All of those
payments were made by R.A. Zweig, Inc., which was an S corporation wholly owned by plaintiff.
¶ 16 Defendants continued to work for plaintiff until well into 2016, when plaintiff terminated
the relationship, stating that he was sending his legal work to a family member’s law firm.
¶ 17 According to plaintiff’s deposition, Miller told him at some point that he was very sorry
about the case and did not read the contract himself but instead delegated the matter to one of his
associates. Plaintiff said Miller had been a close friend and attended family events, so it was a hard
and uncomfortable decision to sue him. However, if Miller had explained the implications of
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exhibit D, plaintiff never would have invested in Bedford and would have avoided the substantial
financial losses and aggravation of the holding company litigation.
¶ 18 In Miller’s deposition, he testified that plaintiff told him shortly after the September 25,
2013, meeting that he should have “caught” exhibit D. Miller responded that he did what plaintiff
asked him to do, the Bozorgis did not have the right to transfer the funds, and hopefully they could
get this fixed. Plaintiff then said that people were saying he should sue Miller. Miller asked him
what he was talking about and why he would do that, and plaintiff responded that he would be
going after the insurance, not after Miller. Plaintiff then retained other counsel to handle the
Bedford matter, and Miller was “pretty much out of the loop” after drafting the settlement
agreement in the spring of 2014. After plaintiff sued the Bozorgis in August 2014, plaintiff again
complained to Miller that he should have “caught” exhibit D, and Miller responded, “How would
I have seen that? I just did what you asked me to do.” Miller never apologized to plaintiff for his
work involving Bedford and continued working for plaintiff well into 2016. Miller testified that if
he had seen exhibit D during his review of the management provisions, it might have caused him
to look at other provisions in the agreement, but he probably would not have been concerned
because there were enough provisions already in the agreement that prevented the transfer of
plaintiff’s investment funds out of Bedford.
¶ 19 On March 17, 2017, i.e., six months and one day following the settlement, plaintiff filed
this malpractice action against defendants, alleging they breached their standard of care when they
failed to adequately review the 2011 investment documents and their implications, advise him that
the transaction amounted to a purchase of a portion of the holding company’s equity in Bedford
rather than a capital contribution to Bedford, and request changes to the documents to prevent the
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distribution of plaintiff’s investment to the members of the holding company. Plaintiff also alleged
he would not have invested in Bedford if defendants had properly advised him. Finally, plaintiff
alleged that defendants’ negligence caused him to incur attorney fees in the holding company
actions and opportunity costs resulting from the loss of use of his $2 million investment.
¶ 20 Defendants moved for summary judgment, arguing the malpractice action was time-barred
because (1) the statute of limitations began to run on September 25, 2013, when plaintiff learned
that his investment had been distributed and defendants purportedly failed to adequately review
the contract and advise him about the implications of exhibit D, (2) at the latest, plaintiff’s
malpractice action accrued as a matter of law when he sued the holding company members on
August 8, 2014, (3) the statute of limitations for the malpractice action expired before the holding
company actions settled on September 15, 2016, (4) the tolling agreement provided that plaintiff
had six months from the September 15, 2016, settlement to file his malpractice action, and
(5) plaintiff did not file his malpractice action until March 17, 2017, which was six months and
one day after the settlement. Defendants also argued that plaintiff had no recoverable damages
because R.A. Zweig, Inc., a separate corporate entity that was not a plaintiff, had paid the legal
fees incurred in the holding company actions and Illinois law does not allow recovery to a legal
malpractice plaintiff for the loss of use of funds.
¶ 21 Plaintiff responded that his malpractice action was timely filed because it did not accrue
until he suffered an actual pecuniary injury, which occurred when the holding company actions
settled on September 15, 2016. According to plaintiff, before that settlement occurred, any
pecuniary injury he suffered as a result of defendants’ malpractice was speculative because he
could have succeeded on his claims in the underlying holding company actions. Moreover,
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concurrently pursuing his claims against the holding company and malpractice action against
defendants would have forced him to take inconsistent positions regarding the interpretation of
exhibit D and thereby undermine his claims in the holding company actions. Plaintiff also argued
that the legal fees constituted his damages because he was the sole shareholder of the pass-through
S corporation that paid the legal fees 2 and that he could recover for the loss of use of his funds
because the holding company actions included equitable claims.
¶ 22 The trial court granted summary judgment in favor of defendants, finding that plaintiff
failed to file his legal malpractice action within the two-year limitation period of its accrual, which
occurred when he suspected that the members of the holding company had defrauded him.
Specifically, the court found that the two-year limitation period was triggered at the September 25,
2013, meeting because plaintiff realized that his injury was wrongfully caused when he and Miller
were shocked to learn that plaintiff’s investment was taken out of Bedford, Miller admitted that he
did not review exhibit D, plaintiff suspected that the members of the holding company had
defrauded him, and defendants investigated the breach of contract issue. Plaintiff appealed.
¶ 23 II. ANALYSIS
¶ 24 Summary judgment is proper where the pleadings, admissions, depositions, and affidavits
on file demonstrate there is no genuine issue as to any material fact and that the movant is entitled
to judgment as a matter of law. 735 ILCS 5/2-1005 (West 2016). All evidence is construed strictly
against the moving party and liberally in favor of the nonmoving party. Buenz v. Frontline
2
Plaintiff states that, as an S corporation, any profits R.A. Zweig, Inc. generated passed through
directly to his personal income, and R.A. Zweig, Inc.’s direct payment of his personal expenses was
treated as a distribution of profits to him. See 26 U.S.C. §§ 1368, 1375(d) (2012); Attebury v. United
States, 430 F.2d 1162, 1166-67 (5th Cir. 1970); Steinberg v. Buczynski, 40 F.3d 890, 891-92 (7th Cir.
1994).
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Transportation Co., 227 Ill. 2d 302, 308 (2008). Summary judgment is a drastic measure that
should only be granted if the movant’s right thereto is clear and free from doubt. Outboard Marine
Corp. v. Liberty Mutual Insurance Co., 154 Ill. 2d 90, 102 (1992). We review a trial court’s
decision granting summary judgment de novo. Id.; see Thomas v. Weatherguard Construction Co.,
2015 IL App (1st) 142785, ¶ 63 (de novo consideration means the reviewing court performs the
same analysis that a trial court would perform). The reviewing court may affirm the circuit court’s
grant of summary judgment on any basis appearing in the record. Gallaher v. Hasbrouk, 2013 IL
App (1st) 122969, ¶ 17.
¶ 25 A claim for legal malpractice requires (1) an attorney-client relationship, (2) a duty arising
from that relationship, (3) a breach of that duty, and (4) actual damages or injury proximately
caused by the breach. Romano v. Morrisroe, 326 Ill. App. 3d 26, 28 (2001). Section 13-214.3(b)
of the Code provides that
“[a]n action for damages based on tort, contract, or otherwise *** against an attorney
arising out of an act or omission in the performance of professional services *** must be
commenced within 2 years from the time the person bringing the action knew or reasonably
should have known of the injury for which damages are sought.” 735 ILCS 5/13-214.3(b)
(West 2016).
Section 13-214.3(b) incorporates the discovery rule, which delays commencement of the statute
of limitations until the plaintiff “ ‘knows or reasonably should know of his injury and also knows
or reasonably should know that it was wrongfully caused.’ ” Morris v. Margulis, 197 Ill. 2d 28,
35-36 (2001) (quoting Witherell v. Weimer, 85 Ill. 2d 146, 156 (1981)).
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¶ 26 Knowledge that an injury has been wrongfully caused “does not mean knowledge of a
specific defendant’s negligent conduct or knowledge of the existence of a cause of action.”
(Internal quotation marks omitted.) Carlson v. Fish, 2015 IL App (1st) 140526, ¶ 23. “A person
knows or reasonably should know an injury is ‘wrongfully caused’ when he or she possesses
sufficient information concerning an injury and its cause to put a reasonable person on inquiry to
determine whether actionable conduct is involved.” Id. Once a party knows or reasonably should
know both of his injury and that it was wrongfully caused, “the burden is upon the injured person
to inquire further as to the existence of a cause of action.” (Internal quotation marks omitted.) Id.¶ 27 Plaintiff argues that defendants were not entitled to summary judgment on his malpractice
action because the two-year statute of limitations period did not commence until he settled the
underlying holding company actions on September 15, 2016, at which time he suffered an actual
pecuniary injury. Plaintiff argues that if he had commenced his malpractice claim before the
September 2016 settlement, the case would have been subject to dismissal as premature.
Furthermore, pursuing his malpractice claim against defendants while the underlying holding
company actions were pending would have required him to take inconsistent positions regarding
the interpretation of exhibit D and the appropriateness of defendants’ conduct in adequately
reviewing that document. Alternatively, plaintiff argues that a genuine issue of material fact exists
regarding when he knew or should have known of his injury and that it was wrongfully caused
because he trusted defendants, who had represented him for 30 years, and believed Miller’s
assertion that the contract prohibited the Bozorgis from taking plaintiff’s investment funds out of
Bedford.
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¶ 28 Defendants argue that summary judgment in their favor was proper because plaintiff’s
malpractice action accrued on September 25, 2013, when plaintiff was shocked to discover that
his investment funds had been distributed. At that time, plaintiff knew he had been harmed and
that at least the Bozorgi holding company members had harmed him. Defendants argue that
plaintiff did not have to be aware that defendants’ purported malpractice caused his harm to trigger
the statute of limitations on his malpractice action; he had to be aware only that he was wrongfully
harmed. Furthermore, shortly after September 25, 2013, plaintiff’s colleague and wife told him
that exhibit D allowed his investment funds to be distributed. Because plaintiff’s malpractice
action was premised on the theory that defendants failed to advise him about the effect of exhibit
D, his malpractice action accrued at that time.
¶ 29 Defendants contend that the tolling agreement determined whether plaintiff’s malpractice
action was timely because the statute of limitations had already expired when the underlying
holding company actions settled. The tolling agreement provided that plaintiff had to file his
malpractice action six months after that settlement, but he missed that deadline by one day. Further,
defendants argue that plaintiff has no actionable damages because the 2016 settlement made him
whole regarding his $2 million investment and another entity besides plaintiff paid the attorney
fees plaintiff incurred in the underlying holding company actions. Defendants also argue that
plaintiff is not entitled to damages for the loss of use of his investment funds because that relief
would constitute prejudgment interest, which is not recoverable.
¶ 30 The statute of limitations for a legal malpractice claim does not begin to run when the
attorney allegedly commits a negligent act but only when the plaintiff realizes an injury as a result
of that negligence. Hermitage Corp. v. Contractors Adjustment Co., 166 Ill. 2d 72, 90 (1995).
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To be considered injured, a legal client must suffer a loss for which he may seek monetary
damages. Northern Illinois Emergency Physicians v. Landau, Omahana & Kopka, Ltd., 216 Ill. 2d
294, 306 (2005). If the damages are as yet “speculative,” then the cause of action has not yet
accrued, and the malpractice suit is premature. Lucey v. Law Offices of Pretzel & Stouffer,
Chartered, 301 Ill. App. 3d 349, 353 (1998). Damages are speculative only if their existence is
uncertain, not if the amount is uncertain or yet to be fully determined. Northern Illinois Emergency
Physicians, 216 Ill. 2d at 307. Generally, the legal client’s loss for which he may seek damages
will not occur until he has suffered an adverse judgment, settlement, or dismissal of the underlying
action caused by the attorney’s alleged negligence. Lucey, 301 Ill. App. 3d at 356. However, a
malpractice claim can accrue before an adverse judgment if it is “plainly obvious *** that [the
plaintiff] has been injured as the result of professional negligence or where an attorney’s neglect
is a direct cause of the legal expense incurred by the plaintiff.” (Internal quotation marks omitted.)
Estate of Bass v. Katten, 375 Ill. App. 3d 62, 70 (2007).
¶ 31 According to the record, plaintiff had retained defendants and asked them to review
documents for a business investment where plaintiff would make a capital contribution in Bedford
in exchange for a minority ownership interest in it. In 2011, plaintiff signed the documents and
invested $2 million in Bedford. On September 25, 2013, plaintiff and Miller discovered that,
contrary to plaintiff’s intentions, his investment had been distributed to the members of Bedford’s
holding company, who cited the provisions of exhibit D as their authority to take those funds.
Miller did not review exhibit D, however, he assured plaintiff that the transfer of his investment
funds was a breach of contract. During the following week, plaintiff spoke about the implications
of exhibit D with his business colleague and his wife, who both told him that he should not have
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signed the agreement because exhibit D allowed Bedford to transfer any funds he invested to the
holding company.
¶ 32 Plaintiff, after hiring other attorneys, commenced the underlying holding company actions
on August 8, 2014. These attorneys were first paid by December 12, 2014. On July 1, 2015,
plaintiff and defendants entered an agreement to toll the statute of limitations for any legal
malpractice action. Plaintiff settled the holding company actions on September 15, 2016, and sued
defendants for malpractice on March 17, 2017.
¶ 33 Construing the evidence strictly against defendants and in favor of plaintiff, we find that
there was no genuine issue as to any material fact and that defendants were entitled to judgment
because plaintiff’s malpractice claim accrued, at the latest and as a matter of law, by December
12, 2014, which was when he was aware of defendants’ purported neglect and was injured.
By then, plaintiff knew that the dispute about the interpretation of exhibit D, which document he
alleged defendants negligently failed to review, advise him about, and recommend amendments
to, directly caused plaintiff’s legal expenses in the underlying holding company actions since
plaintiff had to retain other counsel to litigate and arbitrate the holding company actions in an
effort to achieve the result plaintiff initially sought through defendants’ representation in the 2011
transaction. Compare Goran v. Glieberman, 276 Ill. App. 3d 590, 596 (1995) (the plaintiff’s legal
malpractice cause of action accrued when she incurred attorney fees of $1297 to fix the defendant
attorney’s errors because the plaintiff had to hire substitute counsel to redo the record on appeal
and brief that were struck by the appellate court for technical defects), with Warnock v. Karm
Winand & Patterson, 376 Ill. App. 3d 364, 369-70 (2007) (where plaintiffs could not have known
that the letter agreements for a real estate sale drafted by their attorney were faulty until the trial
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court granted defendants’ motion for summary judgment, the limitations period did not begin to
run until the adverse judgment was entered), and York Woods Community Ass’n v. O’Brien,
353 Ill. App. 3d 293, 299 (2004) (when the plaintiff incurred the additional attorney fees, it was
not yet clear that those fees were directly attributable to former counsel’s alleged neglect, so the
plaintiff’s malpractice action did not accrue until the court decided in the underlying litigation that
former counsel’s incorporation of plaintiff had failed).
¶ 34 Plaintiff cites Lucey, 301 Ill. App. 3d 349, to support his claim that filing his malpractice
lawsuit before the settlement of the holding company actions would have been premature.
In Lucey, the plaintiff started his own brokerage firm and consulted a law firm to determine
whether he could solicit his former employer’s clients. The plaintiff followed the law firm’s
advice, and a main client of his former employer transferred its account to the plaintiff’s firm.
The former employer sued the plaintiff for the loss of the account, and while that action was
pending, the plaintiff filed a legal malpractice action against the law firm he consulted, alleging he
had received inaccurate advice. This court held that the plaintiff’s malpractice action was
premature and subject to dismissal without prejudice on statute of limitations grounds because,
under the circumstances, his damages were speculative and no cause of action for malpractice
could be said to exist since it was not clear that he had been injured as the result of professional
negligence. Id. at 353, 355, 358. His damages were only a mere potentiality until the underlying
litigation with his former employer was resolved. Id. at 359.
¶ 35 The holding in Lucey is inapposite to this case. Plaintiff was not sued for any alleged
negligence by defendants. Unlike Lucey, where it was unclear that the attorneys had provided any
negligent service to the plaintiff, here, plaintiff Zweig argued that defendant’s negligence was a
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direct cause of the legal expenses he incurred to rectify the damage he sustained when the holding
company distributed his $2 million. Furthermore, the possibility of plaintiff’s success in the
underlying holding company actions would not have negated the injury caused by defendants’
alleged malpractice, namely, incurring additional attorney fees by having to hire litigation counsel
to compel the holding company members to return plaintiff’s transferred investment funds.
Consequently, the policy rationale against “prophylactic malpractice cases,” as mentioned in
York Woods Community Ass’n, 353 Ill. App. 3d at 299, is not a factor in this case.
¶ 36 Finally, plaintiff argues that pursuing his malpractice action against defendants while his
claims in the holding company actions were still pending would have forced him to take
inconsistent positions regarding the interpretation of exhibit D and thereby undermined his claims
in the holding company actions. Plaintiff’s argument is not persuasive. As is commonly done in
the context of legal malpractice actions, the parties entered into an agreement that tolled the statute
of limitations pending the outcome of the underlying litigation. Consequently, plaintiff avoided
the quandary of taking inconsistent positions regarding the interpretation of exhibit D.
¶ 37 III. CONCLUSION
¶ 38 We conclude that the statute of limitations for plaintiff’s legal malpractice claim
commenced at the latest and as a matter of law by December 12, 2014, the date he first paid
attorney fees to other counsel in the underlying holding company actions to attempt to avoid the
effect of defendants’ alleged error regarding exhibit D in the Bedford investment. As a result,
plaintiff’s lawsuit, filed on March 17, 2017, failed to comply with the two-year statute of
limitations. Consequently, the parties’ tolling agreement, which required plaintiff to file his
malpractice lawsuit within six months of the September 15, 2016, settlement of the holding
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company actions, determined whether plaintiff’s malpractice action was timely filed. Because it
was filed six months and one day after the settlement, the lawsuit was not timely. Accordingly, we
conclude that the trial court properly granted summary judgment in favor of defendants.
¶ 39 For the foregoing reasons, the judgment of the circuit court is affirmed.
¶ 40 Affirmed.
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Cite as: Zweig v. Miller, 2020 IL App (1st) 191409Decision Under Review: Appeal from the Circuit Court of Cook County, No. 17-L-2837;
the Hon. Brigid M. McGrath, Judge, presiding.
Attorneys Robert D. Sweeney, John J. Scharkey, and Garrett H. Nye, of
for Sweeney, Scharkey & Blanchard LLC, of Chicago, for appellants.
Appellant:
Attorneys Adam R. Vaught, Terrance P. McAvoy, and Steven R. Bonanno,
for of Hinshaw & Culbertson LLP, of Chicago, for appellees.
Appellee:
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