                                                  FOURTH DIVISION
                                               September 21, 2006




No. 1-04-2950



WENDY WEISMAN,                             )     Appeal from the
                                           )     Circuit Court of
          Plaintiff-Appellant,             )     Cook County.
                                           )
                 v.                        )
                                           )
SCHILLER, DUCANTO AND FLECK, LTD.,         )
                                           )     Honorable
                                           )     Allen S. Goldberg,
          Defendant-Appellee.              )     Judge Presiding.


     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
No. 1-04-2950

(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.


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No. 1-04-2950

     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


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No. 1-04-2950

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
                   1
partner Fohrman.       SDF was aware of that previous valuation, but

     1
      Fohrman had sued the firm upon his departure, and the trial

court held that he was only entitled to the $1,200,000 provided

by the firm's buy-sell agreement.        This court affirmed that

ruling on appeal.      Forhman v. Goldberg, No. 1-93-1546 (1995)

(unpublished order under Supreme Court Rule 23).        However,

Robertson's analysis, which is found in the record, concluded

that as of January 15, 1991, the fair market value of Fohrman's

alleged 32.4886% interest in GWC was $350,000.        At the time,

Larry also had a 32.4886% interest, which increased after

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No. 1-04-2950

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


Fohrman's departure.




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No. 1-04-2950

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.


                                -6-
No. 1-04-2950

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
(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.


                                -7-
No. 1-04-2950

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 the 1994 protective order

entered against plaintiff, it permitted questioning as to

plaintiff's drug use despite her counsel's objection.    During a

side bar, the trial court informed counsel that it was permitting

such questioning because plaintiff placed her credibility in

question on direct examination by presenting a scenario of "a

mother who had idyllic relationships with her children."

     Stephen Katz, a partner at SDF, also testified in

plaintiff's case-in-chief.   He acknowledged that a full financial

deposition of Larry was not conducted during SDF's representation

and also confirmed that the expert disclosures in plaintiff's

underlying case were not filed 60 days before the February 27,

1995, trial date, which put SDF at risk for being barred from

offering expert testimony.

     On cross-examination, Katz stated that he believed that a

full financial deposition of Larry was conducted by successor

counsel.   He further stated that attorneys often agree to do

discovery after the discovery cutoff date, and that he felt that

the judge did not provide enough time to conclude discovery prior


                                -8-
No. 1-04-2950

to the February 27, 1995, trial date.

     Plaintiff then called Stein as an adverse witness pursuant

to section 2-1102 of the Illinois Code of Civil Procedure (735

ILCS 5/2-1102 (West 2004)).    Stein testified as to his knowledge

of the law applicable to divorce proceedings and SDF's

representation of plaintiff.

     In addition, plaintiff presented the testimony of successor

counsel Glen Kaufman, a partner at KLF, and Joseph Mirabella, an

experienced divorce lawyer.    Kaufman asserted that SDF's

representation forced KLF to recommend that plaintiff settle her

divorce case for the stated amount.    Mirabella in turn testified

that he believed that SDF deviated from the proper standard of

care in its representation of plaintiff.    However, on cross-

examination, Mirabella admitted that he had not reviewed the

entire record of the underlying case.

     Finally, plaintiff called Michael Goldman to testify as an

expert on firm valuation.   Goldman intended to testify as to his

report on GWC's valuation, which he found to be $7,902,000 as of

December 31, 1994.   Prior to trial, however, the trial court

granted SDF's motion in limine to bar much of that testimony and

limited his testimony as to his analysis of the 1991 Coopers &

Lybrand valuation report.   The trial court reached that ruling

after finding that Goldman's report incorporated enterprise

goodwill, which was not recognized at the time of SDF's

representation.   The trial court stated in pertinent part:


                                 -9-
No. 1-04-2950

          "But it seems to me that before I allow that

          to be done in this case, there ought to be

          some law at the Supreme Court level, and

          there ought to be law at the Supreme Court

          level at about the time that the Schiller,

          DuCanto & Fleck firm was being held to know

          this law and to apply this law and to

          advocate for Wendy Weisman the concept of

          enterprise goodwill.

                So for that in mind, I will bar Mr.

          Goldman from testifying to enterprise

          goodwill, and I'll grant the motion in limine

          regarding that."

     The trial court upheld that ruling at trial after conducting

a voir dire of Goldman.   In addition, the trial court barred

Goldman from testifying as to a new valuation he derived

following the voir dire since that valuation was not disclosed

prior to trial.   The court stated, "I will allow him to testify

as originally planned, whatever you planned to testify on direct

limited to this Coopers & Lybrand report, let you cross-examine."

     Subsequently, Goldman testified that in analyzing the 1991

Coopers & Lybrand report, he took the numbers therein, carried

them forward to December 31, 1994, and found the value of the

firm to equal $4,155,000.    Goldman determined that Larry's 48%

share of the firm was worth roughly $2 million.


                                 -10-
No. 1-04-2950

     SDF then presented its case-in-chief.    SDF first called

Larry, plaintiff's ex-husband, who testified as to his marriage

with plaintiff.   During his testimony, he alleged that plaintiff

contributed little to the marriage, which he attributed to her

drug use.

     SDF also presented the testimony of Timothy Cummins, who

testified as to a report he prepared while he was a managing

director in the "Valuation and Litigation Advisory Services

Group" of Stout Risius Ross, Inc.     The report concerned Larry's

48% interest in GWC, which Cummins determined to amount to $1.2

million pursuant to the buy-sell agreement between the partners.



     SDF then sought to present the video evidence deposition of

James Feldman, a partner at Jenner and Block, who reviewed

Larry's financial information on behalf of defendant.    Prior to

the jury viewing the video, however, plaintiff made several

objections as she argued that Feldman presented opinions during

his evidence deposition that he had not disclosed during his

discovery deposition or in his Rule 213 interrogatory answers

(Official Reports Advance Sheet No. 8 (April 17, 2002), R. 213,

eff. July 1, 2002).   Following the court's rulings on those

objections, SDF played the video for the jury.

     During his evidence deposition, Feldman noted that pursuant

to the supreme court's ruling in In re Marriage of Zells, 143
Ill. 2d 251, 256 (1991), which was the law at the time of the


                               -11-
No. 1-04-2950

underlying divorce, it was "not appropriate for a number of

reasons to value professional goodwill, that is, to try to place

a number on what someone's earning potential is."    He stated that

he had handled divorce cases involving attorneys but had never

hired an expert to value an attorney's goodwill.    Feldman opined

that SDF did not breach its standard of care in not hiring an

expert to value GWC's goodwill or plaintiff's need for indefinite

or reviewable maintenance.   He based his opinion on the facts

that Illinois law did not require the hiring of such an expert

and that several necessary factors for determining maintenance

had already been established during the order of protection

hearing, including plaintiff's drug use.

     Finally, SDF re-called Stein to testify.    During that

testimony, Stein stated, over plaintiff's objections, that he had

participated in previous cases that dealt with the valuation of a

law firm's goodwill.   He specifically referenced a trial court's

ruling in a case in which he represented a partner in the law

firm McDermott, Will, and Emery that disallowed the valuation of

goodwill.   However, the following day, the trial court informed

the parties that it had reconsidered Stein's testimony regarding

another trial court's treatment of goodwill valuation, and

subsequently ordered the jury to disregard it.

     Stein also testified about plaintiff's drug use and the

order of protection entered against her.   However, the trial

court sustained plaintiff's objection to a question as to the


                               -12-
No. 1-04-2950

expiration of the order of protection.    Further, the court

instructed the jury to disregard the contempt finding that had

been entered against plaintiff.

     The court also allowed defense counsel to question Stein as

to SDF's theory that one reason it could not prepare for trial

and sought delays was to allow plaintiff time to clean up her

drug addiction.   In doing so, the trial court denied plaintiff's

motion for mistrial as it determined that Stein had a right to

explain his decision-making.

     Finally, the trial court permitted Stein to testify as to

what he and SDF would have done if they had continued to be

retained as plaintiff's counsel.   That testimony supported an

affidavit he had earlier filed.

     At the close of testimony, the trial court agreed to give

defendant's Illinois Pattern Jury Instruction, Civil, No. 12.04

(1995) hereinafter IPI Civil (1995)), which discussed the sole

proximate cause of a third party's act, and IPI Civil (1995) No.

15.01, which defined proximate cause.    However, it denied

plaintiff's nonpattern instruction 9A in which she sought to

instruct the jury as to SDF's liability based on the viability of

her case following its representation.

     The parties then presented closing arguments, during which

defense counsel stated:

          "We decided not to value the firm.    We

          decided not to get an expert.    They decided


                               -13-
No. 1-04-2950

           the same thing.   I guess Mr. Stein must have

           convinced them yesterday when -- remember

           when we talked about it would be malpractice

           to use that valuation?"

Plaintiff's objection to that statement was overruled.

     Plaintiff also objected to defense counsel's argument that

the supreme court had held that contingent fee contracts and

goodwill were not subject to valuation.     The trial court again

overruled her objection.

     However, the trial court sustained plaintiff's objection to

defense counsel's assertion that Kaufman admitted the underlying

divorce case was a "slam-dunk prove-up."     The trial court also

sustained plaintiff's objection to defense counsel's assertion

that "[plaintiff] has been after her husband now for ten years.

She's after her lawyers relating to her business with her

husband.   She has gone after her husband 12 times for documents."

     Following closing arguments, the jury deliberated and

returned a verdict for defendant.      Subsequently, the trial court

denied plaintiff's motion for a new trial, and she appealed.

                              ANALYSIS

                  I. Sufficiency of the Evidence

     On appeal, we first address plaintiff's contention that the

trial court erred in not granting her motion for a new trial

where she alleges that the jury's verdict was against the

manifest weight of the evidence.     A verdict is against the


                                -14-
No. 1-04-2950

manifest weight of the evidence where the opposite conclusion is

clearly evident from the evidence or where the jury's findings

are unreasonable or arbitrary and not based on the evidence.

Maple v. Gustafson, 151 Ill. 2d 445, 454 (1992).    We will not

disturb the trial court's ruling on a motion for new trial absent

an abuse of discretion.   Maple, 151 Ill. 2d at 455.    In

determining whether an abuse of discretion occurred, we consider

whether the evidence supported the jury's verdict and whether

defendant was denied a fair trial.     Maple, 151 Ill. 2d at 455.
We also note that in ruling on a motion for new trial, the trial

court had the benefit of observing the witnesses and the

circumstances determining their credibility.    Maple, 151 Ill. 2d

at 456.

     In this case, plaintiff alleged that SDF committed legal

malpractice by failing to conduct proper discovery and to obtain

expert witnesses to value the marital estate.    To establish a

complaint of legal malpractice, plaintiff had to prove the

existence of an attorney-client relationship establishing a duty

on the part of the attorney, a negligent act or omission

constituting a breach of that duty, a proximate causal

relationship between the breach and the damages sustained, and

actual damages.   Governmental Interinsurance Exchange v. Judge,
221 Ill. 2d 195, 199 (2006); Lopez v. Clifford Law Offices, P.C.,

362 Ill. App. 3d 969, 974-75 (2005).    " 'Even if negligence on

the part of the attorney is established, no action will lie


                               -15-
No. 1-04-2950

against the attorney unless that negligence proximately caused

damage to the client.' "   Judge, 221 Ill. 2d at 199-200, quoting

Northern Illinois Emergency Physicians v. Landau, Omahana, &

Kopka, Ltd., 216 Ill. 2d 294, 306-07 (2005).   The existence of

actual damages is essential to a viable cause of action for legal

malpractice.    Tri-G, Inc. v. Burke, Bosselman, & Weaver, Nos.

99584, 99595 cons. slip op. at 2 (June 22, 2006), citing Northern

Illinois Emergency Physicians, 216 Ill. 2d at 306-07.

          "Where the alleged legal malpractice involves

          litigation, no actionable claim exists unless

          the attorney's negligence resulted in the

          loss of an underlying cause of action.   If

          the underlying action never reached trial

          because of the attorney's negligence, the

          plaintiff is required to prove that but for

          the attorney's negligence, the plaintiff

          would have been successful in that underlying

          action.   A legal malpractice plaintiff must

          therefore litigate a 'case within a case.'"

          Tri-G, Inc., Nos. 99584, 99595 cons. slip op.
          at 3.

     The "case within a case" on which plaintiff's malpractice

claim is predicated was plaintiff's marital dissolution case

involving Larry.    To prove her legal malpractice claim, plaintiff

had to establish that she would have received a larger share of


                                -16-
No. 1-04-2950

the marital estate as a result of the divorce proceedings but for

SDF's malpractice.   Judge, 221 Ill. 2d at 200.

     Here, the record clearly establishes that an attorney-client

relationship existed between plaintiff and SDF, and that SDF had

a duty to represent plaintiff.    The record, however, also shows

that plaintiff failed to establish that she suffered damages due

to SDF's representation.    Plaintiff failed to present any

concrete evidence that demonstrated that she would have received

more than the $2,070,000 in assets and the $1,033,747 in non-

modifiable maintenance to which she agreed had she not settled

the case out of court.    At trial, plaintiff testified and put

forth the testimony of her successor attorney Kaufman, her expert

Mirabella, whose testimony revealed that he had not reviewed much

of the record, and Goldman, who valued Larry's share of the firm.

 SDF countered with the testimony of Larry, Cummins, and Stein.

On appeal, plaintiff essentially argues that her witnesses were

more credible than those of defendant.

     Based on the evidence presented by plaintiff and SDF, we

cannot say that the jury's verdict was against the manifest

weight of the evidence.    Consequently, we decline to disturb the

circuit court's denial of plaintiff's motion for a new trial.

                      II. Trial Court Errors

                      A. Evidentiary Rulings

     We next address plaintiff's numerous allegations that the

trial court erred by admitting and excluding certain evidence.


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No. 1-04-2950

The admission of evidence during a trial is within the discretion

of the trial court and will not be disturbed absent an abuse of

discretion.     Brax v. Kennedy, 363 Ill. App. 3d 343, 355 (2005).

An abuse of discretion occurs where no reasonable person would

agree with the disposition of the trial court.    Brax, 363 Ill.

App. 3d at 355.

          1. Testimony Concerning Plaintiff's Drug Use

     Plaintiff first contends that the trial court erred when it

denied her pretrial motion in limine to bar evidence of her use

of quaaludes.    In particular, she alleges that she suffered

prejudice when Larry testified that he saw plaintiff take drugs

in front of their children more than 100 times.

     Plaintiff argues that marital property is to be divided

without regard to marital misconduct (750 ILCS 5/503(d) (West

2004)), as is maintenance (750 ILCS 5/504(a) (West 2004)), and

thus argues that such evidence of her drug use was irrelevant.

She further argues that even if such evidence was proper as the

trial court determined for the limited issues of dissipation and

to show that she was a candidate for permanent maintenance in the

underlying case, SDF failed to stay within those parameters.

     Plaintiff's claim of legal malpractice hinged on her ability

to show that but for SDF's alleged errors she would have received

more than the combined $3,103,747 for which she settled.    As

such, the evidence of her drug use was relevant in assessing the

effect such use had on her contributions as a homemaker and to


                                 -18-
No. 1-04-2950

the family unit (750 ILCS 5/503(d)(1) (West 2004)).   Furthermore,

Larry's testimony that plaintiff used drugs in front of their

children was admissible rebuttal evidence in light of plaintiff's

testimony that she was a good mother.   See Barth v. Massa, 201

Ill. App. 3d 19, 33 (1990)   ("Rebuttal evidence is used to

answer, explain, repel, contradict or disprove evidence

introduced by the [the other party]. [Citations.] The admission

of rebuttal evidence is left to the discretion of the trial

court, and its decision will not be disturbed on review unless an

abuse of discretion is shown").

     Moreover, the record shows that the trial court sustained

plaintiff's objections whenever SDF attempted to present evidence

of her drug use for reasons outside the trial court's parameters.

 In addition, the trial court informed the jury prior to its

deliberations that it was to consider the evidence only for the

consideration of each spouse's contributions to the marital

assets and whether it affected plaintiff's eligibility for

permanent or reviewable maintenance, and the jury is presumed to

have followed that instruction (McDonnell v. McPartlin, 192 Ill.
2d 505, 535 (2000)).

     Accordingly, we find no error with the trial court's

admission of evidence of plaintiff's drug use.

                 2. Michael Goldman's Testimony

     Plaintiff also contends that the trial court erred in

limiting the testimony of her expert Goldman.    Prior to trial,


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No. 1-04-2950

Goldman prepared a valuation report of GWC in which he found the

firm's value to equal approximately $7.9 million based on the

average of three different analyses.    However, the trial court

ruled that Goldman could not testify as to that report since he

incorporated enterprise goodwill in his valuation.      As a result,

it restricted his testimony to the 1991 Coopers & Lybrand report.

     On appeal, plaintiff relies heavily on language from our

supreme court's holding in In re Marriage of Schneider, 214 Ill.

2d 152, 167-68 (2005):

          "The goodwill in a professional practice is

          generally personal in nature, while the

          goodwill in a corporation might include both

          personal and enterprise goodwill.    [In re
          Marriage of Talty, 166 Ill. 2d 232, 239

          (1995)].   As we recognized in Talty, the

          duplication of the factors set forth in

          section 503(d) of the Act is limited to

          personal goodwill and does not extend to

          enterprise goodwill.    Talty, 166 Ill. 2d at
          239-40."

In making its ruling in the instant case, the trial court

reviewed case law concerning the valuation of goodwill, including

the supreme court's decision in Schneider.    The trial court then

noted that the governing law at the time of the underlying

divorce proceedings was the supreme court's holding in In re


                                 -20-
No. 1-04-2950

Marriage of Zells, 143 Ill. 2d at 256, which determined that

since goodwill was reflected in maintenance and support awards,

additional consideration of it as a divisible asset was

"duplicative and improper."    That ruling, however, addressed only

personal goodwill, not enterprise goodwill.

       As discussed in Schneider, the concept of enterprise

goodwill was first recognized in Talty, which was filed on June

22, 1995.    In this case, plaintiff discharged SDF on December 28,

1994.    KLF and plaintiff settled the dissolution action on

February 25, 1995.    For plaintiff to prevail, she had to show

that SDF's negligent act or omission proximately caused damage to

her.    As the concept of enterprise goodwill was not recognized

until Talty in June of 1995, SDF was not negligent in failing to
value Larry's enterprise goodwill in his law firm when SDF

represented plaintiff in 1994.    An inability to foretell the

future cannot provide a basis to find an attorney liable for

malpractice.    Based on this same reasoning, the trial court

deemed it improper to consider enterprise goodwill and, thus,

barred Goldman from testifying as to much of his report which

relied heavily on enterprise goodwill in valuing GWC.

       Plaintiff counters in this court that the $7.9 million

figure proposed by Goldman did not include goodwill value, and

thus, the trial court's ruling was erroneous.    For support, she

cites Goldman's report, which states, "we have estimated the Fair

Market Value of 100% of Goldberg, Weisman, & Cairo as of December


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No. 1-04-2950

31, 1994 to be $7,902,000 before adjusting for different

components of Goodwill."

     Plaintiff misreads Goldman's report.      The next line of the

report reads, "As shown in the Capitalization of Excess Earnings

section, approximately 94% of the value of the Firm lies in

Goodwill."   The report then indicates that the value of the firm

is $7,159,000 when personal goodwill is subtracted from the

overall value.   Goldman's report further states that 94% of the

$7.9 million valuation consisted of goodwill and 90% of that

goodwill was enterprise goodwill.       Since enterprise goodwill was

not a recognizable element of distribution at the time of the

underlying divorce (see In re Marriage of Head, 273 Ill. App. 3d
404, 409 (1995)), it was inappropriate to consider it in

determining the value of GWC for purposes of this legal

malpractice action. 2

     For these reasons, we find that the trial court properly

limited Goldman's testimony.

     2
      We further note that Larry is a lawyer and both Schneider

and Talty recognized that "the goodwill in a professional

practice is generally personal in nature" as opposed to

enterprise goodwill.     See Schneider, 214 Ill. 2d at 167; Talty,

166 Ill. 2d at 239.     In spite of this, Goldman opined that

Larry's interest in GWC constituted enterprise goodwill rather

than personal goodwill.



                                 -22-
No. 1-04-2950

                     3. Arnold Stein's Testimony

     Plaintiff also alleges that the trial court erred in its

rulings on Stein's testimony.    Specifically, she challenges three

points of his testimony.

            a. Testimony Regarding Unrelated Divorce Case

     Plaintiff first contends that the trial court erred where

Stein testified as to a trial court's ruling on the valuation of

goodwill in an unrelated divorce case he had handled.    Plaintiff

argues that not only was the testimony irrelevant and hearsay,

but that Stein testified falsely because records show that the

noted case occurred after plaintiff's case, and thus, he violated

the trial court's pretrial order barring testimony to events that

occurred after February 25, 1995.

     We, however, find no error.    The record shows that although

the trial court initially overruled plaintiff's objections to

that testimony, the trial court instructed the jury to disregard

that portion of Stein's testimony the following day, thereby

curing any defect.    See Kass v. Resurrection Medical Center, 316
Ill. App. 3d 1108, 1114 (2000) ("we note that sustaining an

objection and ordering an improper comment stricken generally is

a prompt cure for any prejudicial impact that may have been

caused").   Further, unlike the cases plaintiff relies upon in her

brief, the record fails to show that Stein's testimony was an

attempt to defraud the court or that it was material to the case.

     Nonetheless, even if the brief injection of that testimony


                                -23-
No. 1-04-2950

was erroneous, it was harmless given plaintiff's failure to

establish damages resulting from SDF's representation.

      b. Testimony of Plaintiff's Alleged Comparative Fault

     Plaintiff also contends that the trial court erred by

denying her motion in limine to bar Stein from testifying that

plaintiff did not cooperate during trial preparations.    She

argues that it was an inappropriate opinion as to comparative

fault that was not disclosed during discovery pursuant to Supreme

Court Rule 213 (Official Reports Advance Sheet No. 8 (April 17,

2002), R. 213, eff. July 1, 2002), and thus, its admission at

trial resulted in prejudice, particularly when Stein mentioned a

contempt order against her in the underlying action.

     The record, however, shows that the trial court did not

allow the evidence of plaintiff's conduct to show comparative

fault.   Rather, the trial court permitted it for the limited

purpose of allowing SDF to explain its legal theory for filing a

motion to extend the trial date.   Plaintiff fails to cite any

cases that assert SDF could not have presented evidence

explaining its reasoning for decisions made in the handling of

plaintiff's marital dissolution.

     In addition, the trial court explicitly stated that evidence

of plaintiff's conduct did not constitute evidence of comparative

fault, and it did not provide the jury with an instruction that

comparative fault could be considered.   The trial court also

informed the jury to disregard Stein's testimony regarding a


                               -24-
No. 1-04-2950

contempt order against plaintiff in the marital dissolution

action.    Thus, we find no error in the trial court's ruling.

                c. Testimony as to Stein's Intentions

     Plaintiff further contends that the trial court erred by

denying her motion in limine to bar Stein's intentions as to what

SDF would have done if plaintiff had not dismissed the firm as

counsel.    She argues that such evidence, which SDF introduced

through an affidavit signed by Stein and Stein's testimony at

trial, was speculative and violated Supreme Court Rule 213

(Official Reports Advance Sheet No. 8 (April 17, 2002), R. 213,

eff. July 1, 2002) because it contained previously undisclosed

opinions.    We disagree.

     We first note that plaintiff contends that Stein's affidavit

and testimony were speculative.    In making that argument, she

erroneously relies on Soto v. Gaytan, 313 Ill. App. 3d 137
(2000).    In Soto, 313 Ill. App. 3d at 148, the appellate court

held that the trial court improperly allowed the opinion

testimony of a treating physician as to the permanency of the

plaintiff's injuries where a substantial time had passed between

the physician's last examination of plaintiff and the date of

trial.    In the instant case, however, Stein's affidavit and

testimony did not provide an opinion.    Rather, as SDF contends,

the evidence provided factual considerations of plaintiff's case

based on the existing law at the time of the marital dissolution.

 As such, we determine that the evidence was not speculative.


                                -25-
No. 1-04-2950

     In so ruling, we also find that Stein's testimony as to

SDF's plan for handling plaintiff's case was similar to that of

an occurrence witness.    See Hernandez v. Paschen Contractors,

Inc., 335 Ill. App. 3d 936, 945-946 (2002) (trial court did not

err in allowing witness to testify as to factual observations

where witness was disclosed as a factual witness but not deposed

prior to trial and court instructed him not to provide any

opinion during his testimony).    As such, unlike Clayton v. County
of Cook, 346 Ill. App. 3d 367 (2004), upon which plaintiff also

relies, Stein did not provide opinion testimony for which SDF had

to disclose the bases therefor in its answers to plaintiff's

interrogatories.   Consequently, SDF did not violate Supreme Court

Rule 213 where the record shows that it did disclose that Stein

would testify as to SDF's representation of plaintiff in its

October 20, 2003, answer to plaintiff's interrogatories.    See

Official Reports Advance Sheet No. 8 (April 17, 2002), R.

213(f)(1), eff. July 1, 2002.

     Moreover, we agree with the trial court that Stein had a

right to testify as to what SDF planned to do if plaintiff had

not discharged the firm since plaintiff repeatedly alleged in her

complaint and in court that SDF's representation rendered her

claim no longer viable.    Nonetheless, we again note that even if

any error had occurred, it was harmless where defendant failed to

establish that damages resulted from SDF's representation.

                4. James Feldman's Opinion Testimony


                                 -26-
No. 1-04-2950

     We next address plaintiff's contention that the trial court

should have excluded portions of Feldman's testimony, because

they contained opinions that were not disclosed during his

discovery deposition or in his answers to Supreme Court Rule 213

interrogatories.   Plaintiff, however, makes little effort to

develop this argument.   Rather, she merely makes numerous

citations to a portion of the record that spans well over 100

pages and then concludes that, pursuant to Clayton, 346 Ill. App.

3d at 367, the trial court should have sustained her objections.



     We find that plaintiff's cursory argument does not meet the

standard of Supreme Court Rule 341(e)(7) (188 Ill. 2d R.

341(e)(7)), which requires plaintiff to put forth reasons for her

argument.   We need not sift through the record to find support

for plaintiff's contention.   See Mikrut v. First Bank of Oak
Park, 359 Ill. App. 3d 37, 52 (2005).   Thus, we conclude that the

lack of development of this issue results in its waiver.     Tri-G,
Inc. v. Burke, Bosselman, & Weaver, 353 Ill. App. 3d 197, 220

(2004), aff'd in part & rev'd in part, Nos. 99584, 99595 cons.

(June 22, 2006) (reversing the award of punitive damages and

entering a remittitur on the compensatory damage award).

     Nonetheless, given the other evidence in this case, any

error in the admission of such evidence would have been harmless.

                     5. Evidence of Settlement

     Plaintiff's final contention as to the admission of evidence


                               -27-
No. 1-04-2950

concerns evidence of KLF settling her marital dissolution case.

She argues that such evidence should have been excluded because

her case was no longer viable when KLF took over for SDF.

     We initially note that, in making her argument, plaintiff

again attacks Feldman's testimony.      We have already dismissed

that argument above, and do so here.

     Plaintiff relies on Mitchell v. Schain, Fursel & Burney,

Ltd., 332 Ill. App. 3d 618 (2002), to support her argument that

her case was no longer viable.    In Mitchell, this court affirmed
the trial court's summary judgment for the plaintiff's original

counsel in a legal malpractice action.      That ruling stemmed from

this court's determination that the plaintiff's underlying cause

of action was still viable when plaintiff terminated his original

counsel's representation.   This court noted that although the

original counsel may have provided subpar representation, the

statute of limitations on the plaintiff's claim had two years

before expiration prior to the plaintiff hiring successor

counsel.   Thus, this court determined that the original counsel

was not the proximate cause of damages plaintiff suffered when

her underlying cause of action expired.

     Plaintiff argues that unlike the plaintiff's case in

Mitchell, her case was no longer viable after she dismissed SDF.
 We disagree.

     Plaintiff dismissed SDF on December 28, 1994.      KLF and

plaintiff then settled the marital dissolution case on February


                                 -28-
No. 1-04-2950

25, 1995.   The record shows that the statute of limitations had

not expired prior to KLF's representation and that nothing

prohibited plaintiff from pursuing further litigation.   KLF

possessed detailed information of Larry's financial worth to

proceed with the divorce action.   Although, as plaintiff notes,

Larry had disclosed financial documents for settlement purposes

only, the documents informed KLF that he had substantial assets

worth over $4 million.   In addition, KLF deposed Larry as to his

financial holdings after SDF's dismissal and KLF knew of GWC's

buy-sell agreement, which set the valuation of Larry's share in

GWC at $1.2 million.   Viewing that evidence, combined with

plaintiff's testimony, we conclude that KLF had sufficient

evidence to proceed in the marital dissolution action against

Larry if plaintiff had wanted to do so.   As such, the underlying

cause of action was still viable upon SDF's dismissal.

     In reaching that conclusion, we note that a settlement by

successor counsel does not necessarily bar a malpractice action

against prior counsel.   McCarthy v. Pedersen & Houpt, 250 Ill.
App. 3d 166, 172 (1993).   An attorney malpractice action should

be allowed where the plaintiff can show that she settled for a

lesser amount than she could reasonably expect absent the

malpractice.    Webb v. Damisch, 362 Ill. App. 3d 1032, 1042

(2005).

     Having concluded that this case was still viable after SDF's

dismissal, and considering the holdings in McCarthy and Webb, we


                                -29-
No. 1-04-2950

find that the trial court did not err by permitting evidence of

KLF's settlement.   This evidence countered plaintiff's contention

that SDF's representation was the proximate cause of her not

receiving a greater share of the marital estate.    Further, the

jury would have needed to consider the amount of the settlement

in order to determine whether plaintiff settled for a lesser

amount than she reasonably could have expected absent SDF's

alleged malpractice.

                III. Trial Court's Jury Instructions

     We next address plaintiff's contention that the trial court

erred in ruling on jury instructions where it provided

defendant's long form of IPI Civil (1995) No. 12.04 but refused

to give plaintiff's nonpattern instruction on the issue of

viability.   The decision as to which jury instructions to use

falls within the discretion of the trial court, which a reviewing

court will not disturb absent an abuse of that discretion.    Stift
v. Lizzardo, 362 Ill. App. 3d 1019, 1025-1026 (2005).    Generally,

the standard for determining the adequacy of jury instructions is

whether they were sufficiently clear so as not to mislead the

jury, while simultaneously stating the law fairly and correctly.

 Baier v. Bostitch, 243 Ill. App. 3d 195, 207 (1993).    A new

trial will only be granted where the instructions were faulty and

misled the jury so as to result in prejudice to appellant.

Bostitch, 243 Ill. App. 3d at 207.

                       A. Issue of Foreseeability


                                 -30-
No. 1-04-2950

     Plaintiff first contends that the trial court erred by

giving defendant's long form instruction on sole proximate cause,

IPI Civil (1995) No. 12.04.          That instruction stated:

          "More than one person may be to blame for causing an

          injury. If you decide that the defendant was negligent and

          that their negligence was a proximate cause of injury to the

          plaintiff, it is not a defense that some third person who is not

          a party to the suit may also have been to blame.

                  However, if you decide that the sole proximate cause

           of injury to the plaintiff was the conduct of some person other

           than the defendant, then your verdict should be for the

           defendant."   IPI Civil (1995) No. 12.04.

     On appeal, plaintiff relies on Dugan v. Sears, Roebuck &
Co., 113 Ill. App. 3d 740 (1983), to argue that the instruction

as given was erroneous because it did not include the concept of

foreseeability.     In Dugan, this court held that a jury verdict
for the defendant on a strict liability claim was not against the

manifest weight of the evidence where it found that the

intervention of a third party was the sole proximate cause of the

injury.   In so ruling, this court determined that the jury could

have reasonably determined that the third party's behavior was

not so foreseeable that the defendant could have taken action to

prevent the superceding cause.           Dugan, 113 Ill. App. 3d at 744.

     We find, however, that Dugan provides little support for

                                       -31-
No. 1-04-2950

plaintiff's argument in this case.     Although Dugan examined the

concept of foreseeability in determining whether a third party's

superceding actions constituted proximate cause, it did not do so

within the context of jury instructions.    As such, we reject

plaintiff's invitation to extend the holding in Dugan so as to

require reversal in this case where the trial court provided the

jury with IPI Civil (1995) No. 12.04 without incorporating the

concept of foreseeability.

     Moreover, IPI Civil (1995) No. 15.01, which the trial court

also gave the jury, provided:

          "When I use the expression 'proximate cause,'

          I mean any cause which, in natural or

          probable sequence, produced the injury

          complained of.   It need not be the only

          cause, nor the last or nearest cause.    It is

          sufficient if it concurs with some other

          cause acting at the same time, which in

          combination with it, causes the injury."    IPI

          Civil (1995) No. 15.01.

Where that instruction spoke of a cause that is "in natural or

probable sequence," it incorporated the concept of

foreseeability.   Pursuant to IPI Civil (1995) No. 15.01, the jury

could have found that SDF's actions or inactions were a proximate

cause of any damages plaintiff sustained.    The fact that the jury

found for SDF does not mean that the instructions were erroneous.


                                -32-
No. 1-04-2950

     As such, we find that the trial court provided the jury with

instructions that fairly and accurately stated the law and, thus,

find no reversible error.

                B. Instruction on Issue of Viability

     Plaintiff's second jury instruction contention is that the

trial court erred in refusing to give her nonpattern instruction

on the issue of viability.   In her brief, she contends that the

instruction was "designed to instruct the jury along the lines of

the case of [Mitchell] where the issue was whether the settlement
reached by the second law firm broke the chain causation as to

the alleged negligence of the first law firm."   In her reply

brief, plaintiff further asserts that this court's recent ruling

in Lopez v. Clifford Law Offices, P.C., 362 Ill. App. 3d 969

(2005), which affirmed the use of the viability standard,

increases the significance of her argument.

     We first note that we agree with plaintiff that the

viability standard that this court applied in Mitchell and

Clifford remains applicable in assessing an original attorney's
liability in a legal malpractice case.   However, those rulings

provide no support for plaintiff's argument that the trial court

erred in not giving the jury a nonpattern instruction on

viability.

     A trial court is required to use pattern instructions when

applicable in a civil case after considering the facts and

prevailing law.   Schultz v. Northeast Illinois Regional Commuter


                                -33-
No. 1-04-2950

R.R. Corp., 201 Ill. 2d 260, 273 (2002).    However, if a pattern

instruction does not accurately state the law, the court may

instruct the jury pursuant to a non-IPI instruction.     Schultz,

201 Ill. 2d at 273.

     Here, plaintiff's nonpattern instruction provided:

          "There are circumstances in which the first

          attorney, Defendant Schiller, Ducanto and

          Fleck, could be held to be a proximate cause

          of plaintiff's damages even though a

          successor counsel took over the case after

          the first attorney's discharge.   Those

          circumstances in where [sic] the defendant's

          acts or omissions leave doubt about the

          subsequent viability of plaintiff's claim

          after the representation of the first

          attorney, defendant Schiller, Ducanto and

          Fleck, Limited, ended.   It is for the jury to

          determine whether the defendant[']s acts or

          omissions left doubt about the subsequent

          viability of plaintiff's claims in the

          Weisman 1994 Lake County divorce case at the

          time of defendant's discharge."

We find that this instruction in large part repeated the pattern

instructions as to proximate cause, which were given, but with

the intermixing of facts from this case.    Thus, the nonpattern


                              -34-
No. 1-04-2950

instruction was unnecessary.

     Further, the "left doubt" standard utilized in plaintiff's

proffered instruction was erroneous.    In Mitchell, 332 Ill. App.

3d at 621, this court explained:

            "We recognize that there may be circumstances

            where the first attorney could be held to be

            a proximate cause of plaintiff's damages

            where his acts or omissions leave doubt about

            the subsequent viability of plaintiff's claim

            after his representation ends, such as when a

            statute of limitations expires one day after

            an attorney ceases representation and a new

            attorney could not reasonably recognize that

            problem in the time allowed."

This court then affirmed the circuit court's entry of summary

judgment for the defendant law firm utilizing the "leave doubt"

standard.    See Purtill v. Hess, 111 Ill. 2d 229, 240 (1986)
(summary judgment should be allowed "when the right of the moving

party is clear and free from doubt").    The instant case, however,

did not involve a summary judgment, and thus, the "leave doubt"

standard did not apply.    As such, we find that the proffered

nonpattern instruction was erroneous.

     For these reasons, we find no error in the trial court's

ruling.

                IV. Defense Counsel's Closing Argument


                                 -35-
No. 1-04-2950

     Finally, plaintiff argues that defense counsel's closing

argument denied her a fair trial.     Specifically, plaintiff

references her objections to four of defense counsel's comments

during closing argument as grounds for a new trial.

     In making closing arguments, attorneys are generally given

broad latitude.   Lewis v. Cotton Belt Route-St. Louis

Southwestern Ry. Co., 217 Ill. App. 3d 94, 111 (1991).     The trial

court has discretion in the scope of a closing argument and its

judgment as to the propriety of comments therein will not be

reversed unless they were of such character that they prevented

the opposing party from receiving a fair trial.     Lewis, 217 Ill.
App. 3d at 111.   A reviewing court gives great deference to the

trial court due to its superior position to assess the accuracy

and effect of counsel's statements.     Lauman v. Vandalia Bus

Lines, Inc., 288 Ill. App. 3d 1063, 1071 (1997).

     Plaintiff first argues that defense counsel's statement as

to plaintiff's decision to present an expert witness on the

valuation of Larry's firm was erroneous because it allegedly

constituted improper commentary on Stein's credibility where

defense counsel alleged that plaintiff's decision was because

"Mr. Stein must have convinced them yesterday."     Plaintiff

further argues that the statement constituted an opinion not

disclosed pursuant to Supreme Court Rule 213, and that it

misstated the evidence.   As defendant argues, however, defense

counsel's statement was not made to bolster Stein's credibility


                               -36-
No. 1-04-2950

but, rather, served as conjecture as to plaintiff's trial

decisions.   Further, no violation of Rule 213 occurred as the

comment clearly was not an improper assertion of undisclosed

opinion testimony.   Finally, although the record shows that

plaintiff had Goldman testify as an expert at trial, her counsel

did not even comment on his testimony in her closing argument.

Thus, we find that no prejudice resulted from defense counsel's

comment regarding plaintiff's use of an expert.

     Plaintiff also argues that defense counsel misstated the law

when he stated that, pursuant to the supreme court's ruling in In
re Marriage of Zells, contingent fees and goodwill are not

marital assets subject to distribution and division.   However,

the holding in In re Marriage of Zells, which was the law at the

time of the underlying case, was just as defense counsel stated,

and thus, we find no error.

     Plaintiff further argues that defense counsel misstated the

testimony of Kaufman by claiming that he acknowledged that the

underlying case was a "slam-dunk prove-up."   We find, however,

that any error resulting from that remark was cured when the

trial court sustained plaintiff's objection and counsel admitted

his error in open court.   Kass, 316 Ill. App. 3d at 1114.
     Plaintiff's final argument regarding closing argument was

that defense counsel "made up facts that were not in evidence"

where he argued, "[Plaintiff] has been after her husband now for

ten years.   She's after her lawyers relating to her business with


                               -37-
No. 1-04-2950

her husband.     She has gone after her husband 12 times for

documents."    The record, however, shows defense counsel's

statement did not "make up facts" where nearly 10 years had

passed since the original settlement, plaintiff had sued her

former counsel, and through SDF and KLF, plaintiff had requested

documents from Larry multiple times during the years of

litigation.    Morever, the trial court sustained plaintiff's

objection, thereby curing any defect.

     For these reasons, we find that defense counsel's closing

argument did not deprive plaintiff of a fair trial.

                              CONCLUSION

     Accordingly, we affirm the judgment of the circuit court of

Cook County.

     Affirmed.

     GREIMAN and MURPHY, JJ., concur.




                                 -38-
