Birnbaum, Haddon, Gelfman & Arnoux, LLC v. Mileva

2022 IL App (1st) 220163-UFIRST DISTRICT,
FIRST DIVISION
December 30, 2022
No. 1-22-0163
NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the
limited circumstances allowed under Rule 23(e)(1).
_____________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
FIRST JUDICIAL DISTRICT
_____________________________________________________________________________
BIRNBAUM, HADDON, GELFMAN & ARNOUX, )
Appeal from the
LLC, an Illinois Limited Liability Company, and
)
Circuit Court of
LAW OFFICES OF JANE F. FIELDS, )
Cook County, Illinois.
)
Plaintiffs-Appellees, )
No. 2018 M1 132343
v. )
)
Honorable
DARIA MILEVA, )
Thomas Donnelly,
)
Judge Presiding.
Defendant-Appellant. )
_____________________________________________________________________________
JUSTICE COGHLAN delivered the judgment of the court.
Justices Pucinski and Hyman concurred in the judgment.
ORDER
¶1 Held: Appellant challenged trial court’s ruling that there was an enforceable settlement
agreement between the parties. Appellant’s failure to provide this court with a
complete record hinders meaningful review and requires affirmance of the circuit
court judgment.
¶2 Defendant Daria Mileva (Mileva) retained plaintiffs Birnbaum, Haddon, Gelfman &
Arnoux, LLC (BHGA) and the Law Offices of Jane F. Fields (Fields) in connection with a
dissolution of marriage action. Subsequently, plaintiffs brought the instant breach of contract suit
No. 1-22-0163
against Mileva, seeking $26,114.15 in outstanding legal fees. Mileva filed counterclaims for
legal malpractice and breach of contract, seeking damages “in excess of $100,000.”
¶3 Plaintiffs filed a Motion to Enforce Settlement Agreement, alleging that Mileva breached
an oral settlement agreement “to settle this matter in full” and release all claims against each
other. The circuit court granted plaintiffs’ motion and dismissed the case with prejudice. We
affirm the judgment of the circuit court.
¶4 BACKGROUND
¶5 On August 7, 2015, Mileva retained BHGA to represent her in obtaining a divorce from
her husband Ivan Valkov. In re Marriage of Mileva and Valkov, No. 15-D2-30338 (Cir. Ct. Cook
County). On August 16, 2017, Mileva retained Fields as additional counsel in the same action.
On March 7, 2018, Mileva and Valkov reached a marital settlement agreement and the court
entered a judgment of dissolution.
¶6 On October 1, 2018, BHGA and Fields filed a breach of contract action against Mileva,
alleging that she owed $26,114.15 in outstanding fees for legal services rendered to her during
the divorce action. On April 15, 2019, Mileva answered the complaint and filed counterclaims
for breach of contract and legal malpractice 1, alleging that plaintiffs failed to provide competent
representation in the underlying case.
¶7 On or about September 20, 2021, Anthony Barone, lead counsel for BHGA, and Hristina
Barganska, Mileva’s counsel, had a telephonic settlement conference, during which Barone
alleges that “all parties agreed to release their claims against each other.” Barone reduced the
oral agreement to writing, and forwarded the document to Barganska. A few weeks later,
1
Mileva also filed a counterclaim for fraud which the trial court dismissed.
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Barganska informed Barone that her client had “had a change of heart” and refused to sign the
agreement.
¶8 On October 13, 2021, BHGA filed a Motion to Enforce Settlement Agreement (in which
Fields later joined). In support of its motion, BHGA attached the affidavit of Barone, attesting
that on or about September 20, 2021, he had a settlement conference via telephone with Mileva’s
counsel, Hristina Barganska. During this call, Barone proposed that “each party would dismiss
its claims against the other, with prejudice, and there would be a full and general release of any
and all claims by all parties against each other.” (Emphasis in original.) Barganska “agreed to
these proposed terms.” She did not qualify her acceptance of the settlement or state that she did
not have her client’s authority to settle these claims. Barone “believed that the parties had
reached agreement to settle this matter in full.” Based on this “agreement,” Barone reduced the
oral settlement agreement to writing. After BHGA and Fields executed the written document,
Barone forwarded a copy to Barganska for her client’s signature. On or about October 11, 2021,
Barone was informed that Mileva refused to sign the settlement agreement because of a “change
of heart” and because she “wanted to keep a potential claim against [BHGA] for future
litigation.”
¶9 In her written response to the motion, Mileva acknowledged that settlement negotiations
occurred between Barganska and Barone, but argued that no valid contract was formed because
(1) there was no meeting of the minds regarding the material terms of the purported oral
agreement; (2) her counsel’s negotiations “were specifically made contingent upon Mileva’s
review and approval” of the written settlement agreement, which never occurred; and (3) “even
if there was an oral settlement agreement reached ***, the parties’ subsequent attempt to modify
the terms of the agreement indicates that they effectively withdrew from the agreement.”
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¶ 10 Barganska’s affidavit was attached in support of Mileva’s response. Barganska attested
that on September 17, 2021, she had a three-minute telephone conversation with Barone, who
proposed dismissal of plaintiffs’ breach of contract claim in exchange for dismissal of Mileva’s
breach of contract and legal malpractice claims. No other terms of settlement were discussed,
including “the scope of a general release of liability.” Barganska asked Barone to send her “a
proposed written settlement agreement for [her] client’s review.” On October 1, Barganska
received a proposed written settlement agreement from Jason Jochum, an attorney from Barone’s
office, and forwarded the document to Mileva. On October 2, 2021, Barganska received an email
from Mileva stating that “she did not agree with the terms of the settlement agreement.” Mileva
was “outraged” when she read the general release of liability paragraph and requested that it “be
modified to exclude any potential class actions that Mileva could maintain or participate in
against Plaintiffs.”
¶ 11 Barganska further attested that on October 11, she relayed Mileva’s modification request
to Jochum. Later that day, she received an email from Jochum stating that BHGA “did not agree
to Mileva’s requested modification of the Settlement Agreement and Release, that there was no
claim for misbilling against his clients”, and BHGA “would bring a motion to enforce” if Mileva
did not sign the agreement. Mileva did not sign the agreement. BHGA’s motion to enforce the
settlement agreement was filed on October 13.
¶ 12 Following a hearing, the trial court issued a written order on January 10, 2022 granting
the motion to enforce the settlement agreement. The court found that there was a valid and
enforceable settlement agreement between the parties “[f]or the reasons stated on the Record.”
Pursuant to the terms of the settlement agreement, the court further found that “the parties have
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released all claims against one another raised in this matter” and dismissed the case with
prejudice.
¶ 13 ANALYSIS
¶ 14 On appeal, Mileva argues that the trial court erred in finding that the parties reached an
oral settlement agreement, because there was no evidence that she gave her counsel authority to
settle her claims. “When presented with a challenge to a trial court’s determination that the
parties reached an oral settlement agreement, a reviewing court will not overturn that finding
unless it is against the manifest weight of the evidence.” Condon & Cook, L.L.C. v. Mavrakis,
2016 IL App (1st) 151923, ¶ 55.
¶ 15 “A settlement agreement is a contract and is governed by principles of contract law.”
County Line Nurseries & Landscaping, Inc. v. Glencoe Park Dist., 2015 IL App (1st) 143776,
¶ 33. An oral settlement agreement is enforceable if there is an offer, an acceptance, and a
meeting of the minds between the parties regarding the terms of the agreement. Id.; see Lampe v.
O’Toole, 292 Ill. App. 3d 144, 147-48 (1997) (enforcing oral settlement agreement despite
plaintiffs’ subsequent refusal to execute a written release).
¶ 16 An attorney representing a client “has no authority to compromise, consent to a judgment
against the client, or give up or waive any right of the client” without the client’s express
authorization. Brewer v. Nat’l R.R. Passenger Corp., 165 Ill. 2d 100, 105 (1995); see also
McAllister v. Hayes, 165 Ill. App. 3d 426, 428 (1988) (settlement agreement was not enforceable
where plaintiff’s counsel accepted defendant’s settlement offer “without plaintiff’s permission or
authority”). Our supreme court has explained:
“Where a settlement is made out of court and is not made a part of the judgment, the
client will not be bound by the agreement without proof of express authority. This
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authority will not be presumed and the burden of proof rests on the party alleging
authority to show that fact. [Citation.] *** [I]n such a case, opposing counsel is put on
notice to ascertain the attorney’s authority. If opposing counsel fails to make inquiry or to
demand proof of the attorney’s authority, opposing counsel deals with the attorney at his
or her peril.” Brewer, 165 Ill. 2d at 105-06.
¶ 17 It is well established that the appellant has the burden of presenting a sufficiently
complete record to support her claims of error on appeal. Webster v. Hartman, 195 Ill. 2d 426,
432 (2001) (citing Foutch v. O’Bryant, 99 Ill. 2d 389, 391-92 (1984)). “Absent a sufficient
record, a reviewing court presumes that the trial court’s order conformed to the law and had a
sufficient factual basis.” Wing v. Chicago Transit Authority, 2016 IL App (1st) 153517, ¶ 9.
Here, the record contains no transcript or bystander’s report of the January 10, 2010 hearing on
plaintiffs’ motion to enforce, which the court granted “[f]or the reasons stated on the Record.”
As a result, we do not know the findings or reasoning underlying the trial court’s decision.
Absent such knowledge, we cannot determine whether the trial court’s findings “were against the
manifest weight of the evidence.” O’Malley v. Udo, 2022 IL App (1st) 200007, ¶ 60.
¶ 18 Mileva argues that the record is sufficiently complete to allow review on the merits, since
“[t]he entire controversy hinges upon the communications between Barone and Barganska,”
which are addressed in their affidavits of record. We disagree. Barganska’s affidavit does not
affirm that she lacked the authority to settle Mileva’s claims. More importantly, we do not know
what additional factual information may have been disclosed, or what admissions may have been
made, at the January 10, 2022 hearing. In this case, where the written order indicates that the
court’s ruling was based on “the reasons stated on the Record,” Mileva’s failure to provide us
with a sufficiently complete record hinders meaningful appellate review.
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¶ 19 The record before us does not support Mileva’s claim on appeal that that Barganska’s
alleged lack of authority to settle her claims was presented in the trial court. Accordingly, this
argument is forfeited on appeal. See Kane v. Option Care Enterprises, 2021 IL App (1st)
200666, ¶ 33 (“Arguments that have not been raised in the trial court are forfeited and cannot be
raised for the first time on appeal”). The forfeiture rule is designed to preserve judicial resources
by requiring parties to bring issues to the trial court’s attention and give the court an opportunity
to correct any errors. People v. McKay, 282 Ill. App. 3d 108, 111 (1996). It is well established
that “[a]ny doubts which may arise from the incompleteness of the record will be resolved
against the appellant.” Foutch, 99 Ill. 2d at 392. Defendant’s failure to provide this court with a
complete record requires us to “presume[] that the order entered by the trial court was in
conformity with law and had a sufficient factual basis.” Id.¶ 20 For the reasons set forth above, the judgment of the circuit court is affirmed.
¶ 21 Affirmed.
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