                           ILLINOIS OFFICIAL REPORTS
                                          Appellate Court




                      Cullinan v. Fehrenbacher, 2012 IL App (3d) 120005




Appellate Court            STEPHEN A. CULLINAN, Plaintiff-Appellee, v. CLAUDIA E.
Caption                    FEHRENBACHER, Executor of the Estate of Richard G. Fehrenbacher,
                           Deceased, and FEHRENBACHER and FEHRENBACHER, P.C., an
                           Illinois Corporation, Defendants-Appellants.



District & No.             Third District
                           Docket No. 3-12-0005


Filed                      June 4, 2012


Held                       In a legal malpractice action against the estate of a deceased attorney and
(Note: This syllabus       his law firm, the trial court did not abuse its discretion in denying
constitutes no part of     defendants’ motion to stay the case pending the resolution of several
the opinion of the court   other cases between plaintiff and his deceased wife’s estate and living
but has been prepared      trust, notwithstanding defendants’ contentions that plaintiff’s claim of
by the Reporter of         “actual damages” was speculative and that the outcome of the malpractice
Decisions for the          action depended on the resolution of the actions against the wife’s estate
convenience of the         and trust, since the trial court did not set the case for trial, it merely
reader.)
                           denied a stay, and in recognition of the interrelated nature of the issues in
                           the cases, attempted to coordinate the cases’ discovery.


Decision Under             Appeal from the Circuit Court of Peoria County, No. 09-L-400; the Hon.
Review                     Scott A. Shore and the Hon. Stephen Kouri, Judges, presiding.



Judgment                   Affirmed.
Counsel on                  David B. Mueller (argued) and Brian A. Metcalf, both of Cassidy &
Appeal                      Mueller, of Peoria, for appellants.

                            Dean B. Rhoads, Robert H. Rhode (argued), and Edward F. Sutkowski,
                            all of Sutkowski & Rhoads Ltd., of Peoria, and Burt L. Dancey, of Elliff,
                            Keyser, Oberle & Dancey, P.C., of Pekin, for appellee.


Panel                       JUSTICE CARTER delivered the judgment of the court, with opinion.
                            Justices O’Brien and Wright concurred in the judgment and opinion.




                                              OPINION

¶1          The plaintiff, Dr. Stephen A. Cullinan, sued the defendants, law firm Fehrenbacher &
        Fehrenbacher, P.C., and Claudia E. Fehrenbacher, who is the executor of the estate of
        deceased attorney Richard G. Fehrenbacher, alleging legal malpractice. During pretrial
        matters, the defendants filed, inter alia, a motion to stay the case pending the resolution of
        several other cases between the plaintiff and his deceased wife’s estate and living trust. After
        a hearing, the circuit court denied the defendants’ motion to stay. On appeal, the defendants
        argue that the court erred when it denied the motion to stay essentially because the plaintiff
        failed to establish that he suffered “actual damages.” We affirm.

¶2                                              FACTS
¶3          Before they married in 1995, the plaintiff and Theresa Falcon entered into an antenuptial
        agreement in which they agreed upon a certain distribution of assets in the event of divorce
        or death.
¶4          In 2007, Theresa was diagnosed with cancer. In 2008, attorney Richard G. Fehrenbacher
        was retained regarding estate planning, which resulted in the preparation of numerous
        documents, including a joint trust agreement and several amendments thereto. Theresa died
        in 2009.
¶5          In December 2009, the plaintiff filed this action against attorney Fehrenbacher and his
        law firm, alleging legal malpractice, and claiming injuries in excess of $50,000, including
        the loss of certain assets to Theresa and her living trust. Shortly thereafter, the plaintiff also
        filed actions against Theresa’s estate and her living trust, claiming, inter alia, that Theresa
        breached the antenuptial agreement. The plaintiff alleged that he suffered injuries in excess
        of $50,000, including the loss of certain assets to Theresa and her living trust.
¶6          Numerous pretrial motions were filed in this legal malpractice action, including the
        defendants’ motion for summary judgment, which the circuit court denied. After the court

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     also denied the defendants’ motion for reconsideration or, alternatively, dismissal without
     prejudice, the defendants filed a motion to stay the action. Throughout these motions, the
     defendants argued that the plaintiff’s claim of “actual damages” was purely speculative, as
     the outcome of the legal malpractice action depended on the resolution of the actions against
     Theresa’s estate and living trust.
¶7       After a hearing on the motion to stay, the court initially stated that it was going to stay
     the trial but allow discovery to proceed:
              “Balancing the interests of the parties and the law applicable, it’s the finding of this
         Court that the ultimate determination of this case, Cullinan v. Fehrenbacher, should be
         stayed, that the case should not go to trial until such time as these other issues, mitigate
         damages or even relieve the defense of liability, can be resolved. However, it would also
         appear that the very same issues are going to be subject to discovery in what’s been
         termed the estate litigation vis-a-vis the legal malpractice litigation, and, therefore, it’s
         my determination that the parties can and should be permitted to participate in all
         discovery having to do with all issues pertaining to the ultimate conclusion of the estate
         litigation as well as the legal malpractice litigation.
              I’m only entering this ruling though in the context of the legal malpractice litigation
         because that is the only case that is before me at this time. The ultimate result is that trial
         is indefinitely stayed and cannot be set until such time as there is a determination by a
         judge that the resolution of the estate litigation has been brought to its final resolution or
         sufficiently final resolution to permit a quantification of the damages to which a plaintiff
         would be entitled in this legal malpractice litigation if liability is shown and that
         discovery is not stayed giving the parties an opportunity to participate in all pending
         discovery.”
     However, defense counsel contended that the defendants’ motion was not severable; that it
     was requesting the action to be stayed in its entirety, including discovery. After a brief
     discussion with defense counsel, the court decided to deny the motion to stay in its entirety.
     The defendants then filed this interlocutory appeal.

¶8                                          ANALYSIS
¶9       On appeal, the defendants argue that the circuit court erred when it denied the motion to
     stay essentially because the plaintiff failed to establish that he suffered “actual damages.” The
     defendants contend that the question of whether the plaintiff has sustained “actual damages”
     in this case cannot be answered until the other pending cases between the plaintiff and
     Theresa’s estate and living trust are resolved.1


             1
               We note that the plaintiff initially questions whether we have jurisdiction on appeal. We
     hold that we do in fact have jurisdiction over the circuit court’s denial of the motion to stay under
     Illinois Supreme Court Rule 307(a)(1) (eff. Feb. 26, 2010). See Aventine Renewable Energy, Inc.
     v. JP Morgan Securities, Inc., 406 Ill. App. 3d 757, 759-60 (2010). We also note that the plaintiff
     argues that the defendants have waived this issue for review because they turned down the circuit
     court’s inclination to stay the trial but allow discovery to proceed. In that regard, we note that waiver

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¶ 10        “A circuit court may stay proceedings as part of its inherent authority to control the
       disposition of cases before it.” (Emphasis added.) Estate of Bass v. Katten, 375 Ill. App. 3d
       62, 68 (2007). Factors to be considered in reaching a decision on a motion to stay include the
       orderly administration of justice and judicial economy. Estate of Bass, 375 Ill. App. 3d at 68.
       We will not disturb a circuit court’s decision on a motion to stay unless that decision
       constituted an abuse of discretion. Aventine, 406 Ill. App. 3d at 760. An abuse of discretion
       occurs if the court “ ‘acted arbitrarily without the employment of conscientious judgment or,
       in view of all the circumstances, exceeded the bounds of reason and ignored recognized
       principles of law so that substantial prejudice resulted.’ ” Zurich Insurance Co. v. Raymark
       Industries, Inc., 213 Ill. App. 3d 591, 595 (1991) (quoting In re Marriage of Aud, 142 Ill.
       App. 3d 320, 326 (1986)).
¶ 11        In this case, the circuit court was initially going to stay the case but allow discovery to
       continue. In its analysis, the court noted that the issues between the legal malpractice and
       estate actions were interrelated, and it sought to coordinate the cases’ discovery. It is true that
       the resolution of this case will be impacted by the resolution of the other pending cases.
       However, even though the trial in this case was not stayed, the court did not set the case for
       trial, either.
¶ 12        This case is not before us to decide whether the circuit court erred when it found that the
       complaint’s claim for “actual damages” was sufficient to allow the case to proceed. By
       denying the defendants’ motion for summary judgment, the court has already decided that
       this case can proceed. Rather, this case is before us to review the propriety of the court’s
       discretionary act of denying a motion to stay. By denying that motion, all the court has done
       to this point is ruled that discovery can take place. Given the aforementioned interrelated
       issues between the legal malpractice and estate actions, we cannot say that the court abused
       its discretion when it denied the defendants’ motion to stay.

¶ 13                                                CONCLUSION
¶ 14       The judgment of the circuit court of Peoria County is affirmed.

¶ 15       Affirmed.




       is a limitation on the parties rather than the reviewing court (Van Gelderen v. Hokin, 2011 IL App
       (1st) 093152, ¶ 26), and even if we did agree with the plaintiff, we would still choose to address the
       merits of the defendants’ argument.

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