Rouvas v. Eckert & Smestad, LLC.

2023 IL App (1st) 211654-UNo. 1-21-1654
Order filed May 19, 2023
FIFTH DIVISION
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 DISTRICT
______________________________________________________________________________
SYLVIA ROUVAS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellant, ) Cook County.
)
v. )
)
ECKERT & SMESTAD, LLC, EMILY J. ECKERT, )
ADAM B. SMESTAD, MPC LAW GROUP, MELISSA )
P. CASEY, LAW OFFICES OF MICHAEL J. NYKAZA, ) No. 18 L 6706
and MICHAEL J. NYKAZA, )
)
Defendants )
)
(Eckert & Smestad, LLC, Emily J. Eckert, Adam B. ) Honorable
Smestad, Law Offices of Michael J. Nykaza, and Michael ) Gerald Cleary,
J. Nykaza, Defendants-Appellees). ) Judge, presiding.
JUSTICE LYLE delivered the judgment of the court.
Justices Mitchell and Navarro concurred in the judgment.
ORDER
¶1 Held: The trial court’s judgment granting summary judgment in favor of the defendants
is affirmed.
No. 1-21-1654
¶2 The plaintiff-appellant, Sylvia Rouvas, commenced a legal malpractice action against her
former attorneys, Emily J. Eckert and Adam B. Smestad, their law firm, Eckert & Smestad, LLC,
and the referring attorney, Michael J. Nykaza, and his law firm, the Law Offices of Michael J.
Nykaza (collectively “defendants”). The complaint related to the representation in an underlying
personal injury action.1 The trial court granted summary judgment in defendants’ favor. On appeal,
plaintiff argues pro se the trial court erred in finding that her failure to offer expert testimony as to
the standard of care was fatal to her legal malpractice claim. We affirm.
¶3 BACKGROUND
¶4 There is no transcript as part of the record on appeal. The following background is derived
from the common law record, which includes deposition transcripts and pleadings from the
underlying litigation.
¶5 Eckert & Smestad, LLC, represented plaintiff in an underlying negligence claim against
the owners and operators of a mall (the mall-defendants), alleging that plaintiff sustained injuries
when she slipped and fell on an ice cream puddle on the floor of the mall. The mall-defendants
filed a motion for summary judgment, arguing, in relevant part, that plaintiff failed to show that
they had actual or constructive notice of the substance on the floor prior to her fall. The trial court
granted summary judgment in favor of the mall-defendants. We affirmed, finding that there was
1
Eckert & Smestad, LLC, retained attorney, Melissa Casey, to draft plaintiff’s appellate brief in
the underlying personal injury case. Casey and her law firm, MPC Law Group, were also named as
defendants in plaintiff’s original complaint in this case, but the trial court dismissed them as defendants.
Neither is a party to this appeal.
The record also shows the designation of Eckert Law Group, LLC, as Eckert Law Group, LLC f/k/a
Eckert & Smestad, LLC.
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no genuine issue of material fact regarding actual or constructive notice. Rouvas v. Harlem Irving
Cos., 2018 IL App (1st) 163063-U.
¶6 On June 28, 2018, through counsel, plaintiff filed a complaint against defendants, alleging
legal malpractice in litigating the negligence case. She alleged, inter alia, their failures to present
evidence and testimony that “should have been presented to defend the Motion for Summary
Judgment.” On September 17, 2018, plaintiff filed an amended complaint, which was substantially
similar to the original complaint.
¶7 On October 9, 2018, defendants moved to strike and dismiss plaintiff’s amended complaint,
arguing plaintiff made no specific allegations as to how defendants could have successfully
opposed the mall-defendants’ motion for summary judgment.
¶8 On November 14, 2018, plaintiff filed a second amended complaint, alleging “professional
negligence.” She argued defendants failed to obtain evidence from unnamed “key witnesses,”
including at least one person who notified the mall-defendants of the dangerous condition a
significant period of time before plaintiff’s fall. In subsequent pleadings, she would later identify
this person as Ioannis Karagiannis. 2
¶9 On December 5, 2018, defendants filed their answer to the second amended complaint and
attached plaintiff’s mother’s deposition transcript. In the transcript, she states that Mr. Karagiannis
was at the mall with her at all times on the day of the incident and suffered from a brain tumor
which impacted his vision significantly and his memory “a lot.” She asserted that they did not pass
the area of the mall where the incident occurred until after her daughter fell.
2
Mr. Karagiannis is also referred to in the record as John. He is plaintiff’s stepfather.
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¶ 10 On February 4, 2021, the court entered an agreed case management order, stating that
plaintiff “will not be disclosing a [Illinois Supreme Court Rule] 213(f)(3) witness and waives the
right to do so.”
¶ 11 On July 2, 2021, defendants filed a motion for summary judgment. Defendants argued that
plaintiff failed to support her legal malpractice claim with expert testimony as to the standard of
care and, therefore, could not establish that defendants breached the standard.
¶ 12 On July 19, 2021, plaintiff’s counsels moved to withdraw as attorneys of record. The trial
court allowed counsels to withdraw, and plaintiff proceeded pro se. On that same date, plaintiff
filed a pro se “opposition to defendant’s motion for summary judgment.” Plaintiff argued she was
not required to present expert testimony in support of her legal malpractice claim and, in any event,
the negligence was “so grossly apparent as to warrant submission to the finder of fact without
expert testimony to establish the applicable standard of professional conduct.” Plaintiff attached
to the motion her affidavit and the affidavit of Mr. Karagiannis.
¶ 13 In Mr. Karagiannis’ affidavit, he averred that he went to buy a bottle of water in the mall
food court. On the way to purchasing the water bottle, he observed ice cream on the floor near the
information desk and informed the two women working at the desk. Approximately 30 minutes
later, plaintiff slipped and fell on a puddle of ice cream in front of the information desk.
¶ 14 On August 30, 2021, the trial court granted summary judgment in favor of defendants,
finding plaintiff’s failure to present expert testimony was fatal to her legal malpractice claim.
¶ 15 On September 28, 2021, plaintiff filed a pro se “motion to reopen proofs, reconsider and
vacate the court’s August 30, 2021, order.” On November 30, 2021, the court denied the motion.
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¶ 16 On December 20, 2021, plaintiff filed a pro se notice of appeal, which listed the date of
judgment appealed from as December 18, 2021, and alleged jurisdiction through Illinois Supreme
Court Rule 301(a). As relief, plaintiff requested that this court reverse the trial court’s judgment
and order the trial court to investigate defendants’ misconduct and fraud in the case.
¶ 17 On March 10, 2022, defendants filed a motion to dismiss plaintiff’s appeal and then filed
an amended motion on March 14, 2022, asserting that this court lacked jurisdiction. In the motion,
defendants’ counsel stated that no order or judgment was entered on December 18, 2021.
¶ 18 On March 16, 2022, plaintiff filed a response to defendants’ motion to dismiss, requesting
the motion be denied. She did not request leave to file an amended notice of appeal.
¶ 19 On March 18, 2022, this court entered an order denying defendants’ motion to dismiss and
allowing plaintiff until March 31, 2022, to file an amended notice of appeal correcting any
deficiencies in the original notice of appeal.
¶ 20 On March 25, 2022, plaintiff filed a pro se amended notice of appeal in the trial court. The
amended notice of appeal was filed in this court on March 31, 2022. In the amended notice of
appeal, plaintiff listed the dates of the judgments appealed from as September 30, 2021, 3 and
November 30, 2021. As relief, plaintiff requested this court to order the trial court to “[v]acate the
circuit court’s order granting the Defendant’s Motion for Summary Judgment and remand the Case
back to the Circuit Court for trial.”
¶ 21 ANALYSIS
¶ 22 This court has an independent duty to consider its jurisdiction. Johansson v. Glink, 2021
IL App (1st) 210297, ¶ 35. The timely filing of a notice of appeal is the jurisdictional step that
3
The record on appeal does not reflect that a judgment was entered on September 30, 2021.
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initiates appellate review. Huber v. American Accounting Ass’n, 2014 IL 117293, ¶ 8. Unless there
is a properly filed notice of appeal, we lack jurisdiction over the matter and must dismiss the
appeal. Id.¶ 23 Illinois Supreme Court Rule 303(b)(2) (eff. July 1, 2017) provides that a notice of appeal
“shall specify the judgment or part thereof or other orders appealed from and the relief sought from
the reviewing court.” A notice of appeal confers jurisdiction on this court “to consider only the
judgments or parts of judgments specified in the notice of appeal.” General Motors Corp. v.
Pappas, 242 Ill. 2d 163, 176 (2011). To confer this court’s jurisdiction over a judgment not
specified in the notice of appeal, the appellant must amend the notice of appeal to specify the
judgment. See People v. Smith, 228 Ill. 2d 95, 105 (2008).
¶ 24 The timeliness of a notice of appeal is governed by our supreme court rules. American
Accounting Ass’n, 2014 IL 117293, ¶ 9. Rule 303(a)(1) (eff. July 1, 2017) requires a party in a
civil case to file a notice of appeal with the clerk of the circuit court “within 30 days after the entry
of the final judgment appealed from, or, if a timely posttrial motion directed against the judgment
is filed, *** within 30 days after the entry of the order disposing of the last pending postjudgment
motion directed against that judgment or order.”
¶ 25 Rule 303(b)(5) (eff. July 1, 2017) provides that “a notice of appeal may be amended
without leave of court within the original 30-day period to file a notice of appeal.” Thereafter, a
notice of appeal may be amended only on motion filed in the reviewing court within an additional
30-day period after expiration of the original 30-day period. Ill. S. Ct. R. 303(b)(5), (d) (eff. July
1, 2017). After expiration of the additional 30-day period, however, we lack jurisdiction to permit
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amendment of the notice of appeal. Heller Financial, Inc. v. Johns-Byrne Co., 264 Ill. App. 3d
681, 688 (1994).
¶ 26 Here, the trial court denied plaintiff’s motion to reconsider on November 30, 2021. She
timely filed a pro se notice of appeal within 30 days, on December 20, 2021. Ill. S. Ct. R. 303(a)(1)
(eff. July 1, 2017). In March 2022, defendants moved to dismiss the appeal based on insufficiencies
in the notice of appeal, and, on March 16, 2022, plaintiff filed a response. On March 18, 2022, this
court denied defendants’ motion to dismiss and allowed plaintiff until March 31, 2022, to file an
amended notice of appeal. Plaintiff filed her pro se amended notice of appeal in the trial court on
March 25, 2022.
¶ 27 However, the period for requesting leave to file an amended notice of appeal had expired
on January 30, 2022, which was 30 days after expiration of the original 30-day time period for
filing a notice of appeal. Ill. S. Ct. R. 303(b)(5), (d) (eff. July 1, 2017); Heller Financial, Inc., 264
Ill. App. 3d at 688. Plaintiff did not file a motion requesting leave to file an amended notice of
appeal before January 30, 2022. See Ill. S. Ct. R. 303(b)(5), (d) (eff. July 1, 2017) (a notice of
appeal may be amended “only on motion” filed in the reviewing court within the statutorily
permissible timeframe). Likewise, plaintiff did not request leave to file an amended notice of
appeal in her response, filed on March 16, 2022, to defendants’ motion to dismiss. Further, even
if we were to consider plaintiff’s response as a request for leave to file an amended notice of appeal,
that request was untimely filed long after the period for requesting leave to file an amended notice
of appeal had expired on January 30, 2022.
¶ 28 As our supreme court has said, even when “well-intentioned,” this court “does not have the
authority to excuse the filing requirements of the supreme court rules governing appeals.” Secura
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Insurance Co. v. Illinois Farmers Insurance Co., 232 Ill. 2d 209, 217-18 (2009). Accordingly,
when this court entered its March 18, 2022, order allowing plaintiff to amend her notice of appeal
without having timely requested leave to do so within the jurisdictional time period, we
improvidently did so as we lacked the authority to permit it. Heller Financial, Inc., 264 Ill. App.
3d at 688. We therefore look to the original notice of appeal and the issues contained within. Id.
at 688; See Alpha Gamma Rho Alumni v. People ex rel. Boylan, 322 Ill. App. 3d 310, 313 (2001)
(stating that the court would consider the case based on the original notice of appeal where the
amended notice of appeal was untimely).
¶ 29 Although timely filed, the original notice of appeal listed December 18, 2021, as the
judgment date appealed from but the record on appeal shows no order or judgment was entered on
that date. As to the substance of the original notice of appeal, plaintiff requested this court to
“[o]rder the trial Court to conduct an investigation into the misconduct and fraud of the Defendants
in this cause of action. (Request the ARDC) to conduct an investigation and grant any other relief
that the court finds appropriate.” Yet, plaintiff also indicated that it was an appeal pursuant to
Illinois Supreme Court Rule 301(a) (eff. Feb. 1, 1994), which corresponds with civil appeals of
final judgments, and checked the boxes that she sought to reverse the judgment and send the case
back to the trial court.
¶ 30 If we liberally construe the plaintiff’s notice of appeal and consider it as a whole, it asks
this court to review the final judgment in this case and reverse and remand the case to the trial
court. Smith v. American Heartland Insurance Co., 2017 IL App (1st) 161144, ¶ 17 (stating we
construe a notice of appeal liberally and consider it as a whole). While the notice of appeal stated
it was challenging an order on a date on which an order was not entered, the language of the notice
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of appeal arguably refers to the final judgment in this case and presumably the post-judgment order
as well. In this case, plaintiff’s notice of appeal does not refer to other orders which could cause
confusion and instead was a mistake of form not substance. Compare General Motors Corp., 242
Ill. App. 2d 95 (finding that when the appellant filed a notice of appeal where it cited other orders
in the record instead of the intended date of the order being appealed from, the appellate court
lacked jurisdiction to consider an appeal on that order), with People v. Hayes, 2022 IL App (1st)
190881-B, ¶ 17 (finding the appellate court had jurisdiction where an incarcerated defendant listed
the date of the order appealed from as the day he received the notice from the clerk rather than the
date on the final order). Therefore, the notice of appeal sufficiently informed defendants of the
orders that plaintiff sought to have reviewed. General Motors Corp., 242 Ill. App. 2d at 176; See
Lang v. Consumers Insurance Service, Inc., 222 Ill. App. 3d 226, 230 (1991) (stating where a
notice of appeal is deficient in form, not substance and “the appellee is not prejudiced, the failure
to comply strictly with the form of notice is not fatal”). As such, we find that we have jurisdiction
to consider this appeal. See Smith, 2017 IL App (1st) 161144 (asserting a notice of appeal confers
jurisdiction on this court “when it fairly and adequately sets out the judgment complained of and
the relief sought.”
¶ 31 On appeal, plaintiff contends, pro se, that the trial court erred in granting defendants’
motion for summary judgment without ruling on the malpractice issue and “sole[l]y on the issues
of m[a]terial fact regarding the plaintiff’s slip and fall action and agreed order not to disclose an
expert witness.”
¶ 32 As an initial matter, defendants assert that plaintiff’s brief fails to comply with appellate
rules of procedure “so significant[ly]” that it renders her arguments “unintelligible” and prejudices
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their ability to respond to her contentions on appeal. Nevertheless, defendants responded to the
arguments in plaintiff’s opening brief.
¶ 33 We agree that plaintiff failed to file a brief in compliance with Illinois Supreme Court Rule
341(h) (eff. Oct. 1, 2020), which governs the form and content of appellate briefs. Among the
deficiencies, plaintiff’s brief fails to provide a proper statement of jurisdiction, omits a statement
of facts, and fails to set forth a clear legal argument supported by citation to pertinent legal
authorities. Ill. S. Ct. R. 341(h) (eff. Oct. 1, 2020).
¶ 34 While we acknowledge that plaintiff is proceeding pro se, this court will not apply a more
lenient standard to pro se litigants, and she must comply with the appellate practice rules required
of attorneys. Gillard v. Northwestern Memorial Hospital, 2019 IL App (1st) 182348, ¶ 45; see
Steinbrecher v. Steinbrecher, 197 Ill. 2d 514, 528 (2001) (“Pro se litigants are presumed to have
full knowledge of applicable court rules and procedures, including procedural deadlines with
respect to filing motions.”). Rule 341(h) provides that an appellant’s brief should contain a
statement of “the facts necessary to an understanding of the case, stated accurately and fairly
without argument or comment.” Ill. S. Ct. R. 341(h)(6) (eff. Oct. 1, 2020). The argument “shall
contain the contentions of the appellant and the reasons therefor, with citation of the authorities
and the pages of the record relied on.” Ill. S. Ct. R. 341(h)(7) (eff. Oct. 1, 2020). Pursuant to the
rule, a reviewing court is entitled to have issues clearly defined with “cohesive arguments”
presented and pertinent authority cited. Obert v. Saville, 253 Ill. App. 3d 677, 682 (1993). “Points
not argued are forfeited.” Ill. S. Ct. R. 341(h)(7) (eff. Oct. 1, 2020); See Vancura v. Katris, 238 Ill.
2d 352, 373 (2010) (stating “a claim of error that is merely listed but ‘argued’ will not satisfy the
requirements of Rule 341” and is forfeited).
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¶ 35 In plaintiff’s opening brief, she argues that the trial court erred in granting summary
judgment because it allowed her to enter an agreed order which did not permit her to call an expert
witness. She did not cite any authority for the contention that the court erred except for a statute
regarding medical malpractice claims. She mentioned one case in passing, Graham v. St. Luke’s
Hospital, 46 Ill. App. 2d 147, 158 (1964), when stating “[t]he Court never set a hearing date to
determine whether or not this case was so complex that a laymen could not understand the case
[and] the court never ordered the Plaintiff to disclose an expert witness.” Nowhere in plaintiff’s
short brief did she cite authority and argue its application to the facts of this case. As such, her
argument is forfeited. Ill. S. Ct. R. 341(h)(7) (eff. Oct. 1, 2020). While her brief was deficient to
the point that striking the brief and dismissing the appeal would have been appropriate, we find
forfeiture is the better route to address this case. Holzrichter v. Yorath, 2013 IL App (1st)
110287, ¶ 77 (stating where a party fails to comply with Rule 341(h), we may, in our discretion,
strike the brief and dismiss the appeal). As a result, we affirm the trial court’s grant of summary
judgment in favor of defendants.
¶ 36 However, if we were to consider the appeal on the merits as best as they can be understood
from plaintiff’s brief, the result would be the same.
¶ 37 Summary judgment should be granted only where the pleadings, depositions, admissions,
and affidavits on file, when viewed in the light most favorable to the nonmoving party, show that
there is no genuine issue as to any material fact and that the moving party is clearly entitled to
judgment as a matter of law. 735 ILCS 5/2-1005(c) (West 2018); Nine Group II, LLC v. Liberty
International Underwriters, Inc., 2020 IL App (1st) 190320, ¶ 34. “A genuine issue of material
fact exists where the facts are disputed or where reasonable minds could draw different inferences
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from the undisputed facts.” Id. In appeals from summary judgment rulings, our review is de novo,
which means we perform the same analysis that a trial court would perform. Id.¶ 38 In a legal malpractice claim, the plaintiff has the burden to prove: (1) the existence of an
attorney-client relationship, (2) a breach of a duty arising from that relationship, (3) causation, and
(4) damages. Belden v. Emmerman, 203 Ill. App. 3d 265, 268 (1990). “The question of whether an
attorney has exercised a reasonable degree of care and skill in representing and advising his client
is one of fact [citations], and in Illinois the standard of care against which professional actions are
measured has been based on expert testimony.” House v. Maddox, 46 Ill. App. 3d. 68, 71 (1977).
“[A]n attorney is liable to his client only when he fails to exercise a reasonable degree of care and
skill; he is not liable for mere errors of judgment.” Nelson v. Quarles and Brady, LLP, 2013 IL
App (1st) 123122, ¶ 31 (quoting Smiley v. Manchester Insurance & Indemnity Co., 71 Ill. 2d 306,
313 (1978)). Whether a duty is owed is a question of law, but whether an attorney breached a duty
of care owed to his client is a question of fact. Keef v. Widuch, 321 Ill. App. 3d 571, 577-78 (2001).
“[T]he failure to present expert testimony is typically fatal to the plaintiff’s cause of action.” Fox
v. Seiden, 2016 IL App (1st) 141984, ¶ 23.
¶ 39 In rare cases, a plaintiff can prevail on a case of legal malpractice as a matter of law without
expert testimony about the “standard of care—cases in which the common knowledge or
experience of lay persons is extensive enough to recognize or infer negligence from the facts, or
where an attorney’s negligence is so grossly apparent that a lay person would have no difficulty in
appraising it.” (Internal quotations omitted.) Fox v. Seiden, 2016 IL App (1st) 141984, ¶ 23.
¶ 40 Here, plaintiff argues that the trial court should have held a hearing as to whether the legal
malpractice allegations against defendants was of a nature that could be understood by a layperson.
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Plaintiff does not cite any authority stating a separate hearing is necessary to see if the allegations
fell under the common knowledge exception as expressed in Fox, and her contention does not
acknowledge the fact that the trial court did consider the exception in its ruling. As our review is
de novo, we look at the issue anew without deference to the trial court’s ruling. Nine Group II,
LLC, 2020 IL App (1st) 190320, ¶ 34.
¶ 41 In this case, plaintiff’s allegations stem from the fact that defendants did not depose or call
Mr. Karagiannis as a witness in her case against the mall-defendants. Defendants argue that it was
not obvious that they should have called Mr. Karagiannis as a witness because plaintiff’s mother’s
deposition testimony was that she was with him the whole time that they were at the mall, and they
were not near the area of the slip and fall incident prior to it happening. Therefore, there were
serious doubts as to his ability to observe the puddle. Moreover, plaintiff’s mother testified in the
deposition that Mr. Karagiannis had a brain tumor which significantly affected his memory and
eyesight. If Mr. Kargiannis was called to testify, his credibility would likely be challenged on each
of the aforementioned grounds and likely damage plaintiff’s case. The deposition of plaintiff’s
mother and Mr. Karagiannis’ affidavit created a scenario with two witnesses presenting
contradictory testimony, in which one witness cast doubt on the vision and memory of the second
witness. That did not present a fact pattern “where an attorney’s negligence [was] so grossly
apparent that a lay person would have no difficulty in appraising it.” Fox, 2016 IL App (1st)
141984, ¶ 23
¶ 42 Plaintiff claims this case falls under the common knowledge exception. In the cases where
courts have found the common knowledge exception applies, the attorneys missed an obvious
deadline or failed to take any action whatsoever in a client’s case. House, 46 Ill. App. 3d at 73;
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See also Sorenson v. Fio Rito, 90 Ill. App. 3d 368, 374 (1980). Those examples are not similar to
the case before us, and this case does not fall under the common knowledge exception. As such,
we find that an expert witness was necessary to establish defendants’ duty to plaintiff. Therefore,
the trial court did not err by not conducting a separate hearing on the common knowledge exception
and did not err as plaintiff’s claim did not fall within the exception.
¶ 43 Turning to whether the trial court had an obligation to stop plaintiff from entering into an
agreed order that was fatal to her case, we note that pro se litigants are held to the same standard
as attorneys. U.S. Bank Trust National Ass’n v. Junior, 2016 IL App (1st) 152109, ¶ 16. In fact,
they are presumed to have full knowledge of court procedures and rules as an attorney and expected
to comply with them. Id., ¶ 16. In our adversarial system, “in both civil and criminal cases, in the
first instance and on appeal, we follow the principle of party presentation. That is, we rely on the
parties to frame the issues for decision and assign to courts the role of neutral arbiter of matters
the parties present.” Greenlaw v. U.S., 554 U.S. 237, 243 (2008).
¶ 44 Plaintiff claims that the trial court should have intervened prior to the agreed order if an
expert witness was necessary. However, plaintiff is essentially asking for the court to change its
role from that of a neutral arbiter to that of an advocate. That is not the court’s role even when
dealing with pro se litigants. Accordingly, we find that the trial court did not err by not alerting
plaintiff to the fatal mistake of the agreed order. Moreover, we find that the trial court did not err
in granting summary judgment in favor of defendants and affirmed the judgment of the trial court.
¶ 45 CONCLUSION
¶ 46 For the foregoing reasons, we affirm the judgment of the circuit court of Cook County.
¶ 47 Affirmed.
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