                             Illinois Official Reports

                                     Appellate Court



           Construction Systems, Inc. v. FagelHaber, LLC, 2015 IL App (1st) 141700



Appellate Court         CONSTRUCTION SYSTEMS, INC., an Illinois Foreign Corporation,
Caption                 d/b/a Construction Systems of Minnesota, Plaintiff-Appellant, v.
                        FAGELHABER, LLC, an Illinois Limited Liability Corporation, n/k/a
                        Thompson Coburn LLP, d/b/a Thompson Coburn Fagel Haber,
                        Defendant-Appellee.


District & No.          First District, Third Division
                        Docket No. 1-14-1700


Filed                   June 30, 2015


Decision Under          Appeal from the Circuit Court of Cook County, No. 09-L-942; the
Review                  Hon. John C. Griffin and the Hon. Brigid M. McGrath, Judges,
                        presiding.



Judgment                Reversed and remanded.



Counsel on              Carponelli & Krug, of Barrington (Raymond M. Rudnick and Brian
Appeal                  M. Ozog, of counsel), for appellant.

                        Donahue Brown Mathewson & Smyth, LLC, of Chicago (Donald J.
                        Brown, Jr., Karen Kies DeGrand, and Michael J. Borree, of counsel),
                        for appellee.



Panel                   JUSTICE MASON delivered the judgment of the court, with opinion.
                        Presiding Justice Pucinski and Justice Hyman concurred in the
                        judgment and opinion.
                                             OPINION

¶1       Plaintiff-appellant Construction Systems, Inc., filed a legal malpractice action against
     defendant-appellee FagelHaber, LLC, on the grounds that FagelHaber failed to perfect a
     mechanic’s lien on behalf of Construction Systems, resulting in the subordination of the
     mechanic’s lien to a mortgagee’s lien. The trial court first dismissed Construction Systems’
     prayer for prejudgment interest with prejudice. The case was then transferred to another judge
     and FagelHaber’s motion for summary judgment was granted. On appeal, Construction
     Systems contends the trial court erred in granting summary judgment because the release
     signed by the parties was intended solely to resolve an outstanding fee dispute and
     Construction Systems was not aware of its malpractice claim at the time the release was
     signed. Construction Systems also claims the trial court erred in striking its prayer for
     prejudgment interest because the statute on which the underlying claim is based allows
     prejudgment interest. For the reasons that follow, we reverse the judgment of the circuit court
     of Cook County and remand for further proceedings.

¶2                                          BACKGROUND
¶3       On May 30, 2002, Construction Systems, a steel fabrication business that provides material
     and labor on construction projects, commenced work on a building project located at 6 North
     Michigan Avenue in Chicago. Global Real Estate Investors, LLC (Global), was the owner of
     the project and AMEC Construction Services, Inc. (AMEC), was hired as construction
     manager and agent for the project.
¶4       Global’s members were Bassam Haj Yousif and Romel Esmail. Yousif and Esmail also
     established a company called Construction Services International, purportedly to operate as the
     general contractor for the project. However, this company’s registration with the Secretary of
     State was repeatedly allowed to lapse, it was not licensed by the city of Chicago as a general
     contractor, it did not obtain the necessary permits and did not perform any of the necessary
     functions of a general contractor, and AMEC was forced to act as general contractor for the
     project despite the fact that its contract with Global did not provide for such services.
¶5       The contract amount for the work to be performed by Construction Systems was
     $2,684,823. During the course of its work on the project, Construction Systems supplied
     additional materials and labor in the amount of $1,372,477.
¶6       On June 19, 2003, after failing to receive payments for a number of months, Construction
     Systems stopped work on the project. A few additional payments were made, leaving an
     outstanding balance owed to Construction Systems of $3,146,200. Construction Systems then
     retained FagelHaber to record a lien and protect its interest under the Illinois Mechanics Lien
     Act (Act) (770 ILCS 60/1 et seq. (West 2012)), and to collect payment of the outstanding
     balance.
¶7       On April 3, 2003, FagelHaber performed a tract index search on 6 North Michigan. On
     May 6, 2003, Cosmopolitan Bank and Trust (Cosmopolitan) recorded a mortgage on 6 North
     Michigan. Without updating the tract index search, on August 6, 2003, FagelHaber served a
     notice of lien on Global and AMEC. The notice of lien was not served on Cosmopolitan.
     FagelHaber recorded a mechanic’s lien in the amount of $3,146,200 against 6 North Michigan



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       on October 6, 2003, but the lien likewise failed to include Cosmopolitan as an interested party
       and Cosmopolitan was not included on the service list.
¶8          On December 19, 2003, FagelHaber performed a second tract index search and the results
       of that search disclosed Cosmopolitan as an interested party. On January 14, 2004,
       Cosmopolitan filed an appearance in Pinnacle Waste Services, Inc. v. North Star Trust
       Company, No. 02-CH-09958 (Cir. Ct. Cook Co.) (hereinafter Pinnacle litigation), litigation
       involving various mechanics’ liens, including Construction Systems’ lien. FagelHaber
       represented Construction Systems in the Pinnacle litigation, an action Construction Systems
       joined but did not initiate. In late 2004, FBOP Corporation (FBOP) acquired Cosmopolitan
       and filed an appearance in the Pinnacle litigation.
¶9          Construction Systems became dissatisfied with FagelHaber’s representation. Due to a lack
       of progress and the amount of fees charged by FagelHaber, Construction Systems retained
       Karen Berres as substitute counsel in the case. Berres had previously represented Construction
       Systems in connection with the construction project but had not been involved with either the
       filing of the mechanic’s lien or the Pinnacle litigation. On August 28, 2004, FagelHaber was
       allowed to withdraw as counsel for Construction Systems. The court ordered FagelHaber to
       turn over the client file in seven days. Berres received some documentation from FagelHaber
       but later learned she had not received the entire file. FagelHaber withheld the complete file
       until the issue of unpaid legal fees was resolved. As far as the record shows, FagelHaber never
       disclosed to Construction Systems its failure to serve Cosmopolitan with the notice of lien or
       include Cosmopolitan as an interested party on the recorded lien between the date it performed
       the updated tract index search in December 2003 and August 2004 when FagelHaber withdrew
       as Construction Systems’ counsel.
¶ 10        In November 2004, Construction Systems and FagelHaber executed a general release as
       part of a settlement of the fee dispute. The release stated that Construction Systems engaged
       FagelHaber to perform legal services and had an outstanding balance due the firm in the
       amount of $81,566.80, defined as “the Indebtedness.” The release further stated: “Disputes and
       disagreements have arisen between FagelHaber and [Construction Systems], including,
       without limitation, with regard to the Indebtedness. FagelHaber and [Construction Systems]
       desire to compromise and settle all disputes and disagreements between them, including,
       without limitation, the payment and satisfaction of the Indebtedness ***.” The release then
       provided details of the settlement with dates and amounts of the payments agreed to by the
       parties, and noted that upon receipt of the first payment, FagelHaber would release all
       remaining documents in the case file. Finally, the release provided:
                “[Construction Systems] *** does hereby fully remise, release and forever discharge
                FagelHaber *** of and from any and all claims, demands, actions, causes of action,
                suits, *** existing at the date hereof or hereafter arising, both known and unknown,
                foreseeable and unforeseeable, *** arising from or in connection with any matter, ***
                including, without limitation, any Claims in connection with the legal services
                provided by FagelHaber to [Construction Systems] or the Indebtedness.”
¶ 11        In the meantime, Construction Systems and FBOP (as successor to Cosmopolitan) filed
       cross-motions for summary judgment in the Pinnacle litigation. In its motion for summary
       judgment, Construction Systems sought to determine the priority of its mechanic’s lien with
       respect to the mortgage of FBOP and determine the validity of its lien. Construction Systems
       argued that it was not subject to the notice requirement in section 24 of the Act (770 ILCS

                                                  -3-
       60/24 (West 2012)) (“Sub-contractors *** furnishing labor, materials, fixtures, apparatus,
       machinery, or services *** shall, within 90 days after the completion thereof, *** cause a
       written notice of his or her claim and the amount due or to become due thereunder, to be sent
       by registered or certified mail *** or personally served on the owner of record *** and to the
       lending agency ***.”). See Parkway Bank & Trust Co. v. Meseljevic, 406 Ill. App. 3d 435, 447
       (2010) (“If the subcontractor does not provide a known lender with the mandated section 24
       notice, the lien is unenforceable against the lender.”). Construction Systems argued that the
       notice requirement did not apply because it was an original contractor rather than a
       subcontractor. In the alternative, Construction Systems argued that even if it was a
       subcontractor, it was not subject to the notice requirement because Cosmopolitan had notice of
       its work on the project.
¶ 12       FBOP argued that Construction Systems was a subcontractor and therefore subject to
       section 24’s notice requirement. On August 29, 2007, the trial court denied both motions for
       summary judgment and FBOP and Construction Systems entered into settlement negotiations.
       In December 2007, Construction Systems settled its claim with FBOP in exchange for the
       payment of $1,825,000.
¶ 13       On January 27, 2009, Construction Systems filed the underlying legal malpractice action
       against FagelHaber, alleging that as a result of FagelHaber’s failure to perfect its lien,
       Construction Systems’ lien was subordinate to Cosmopolitan’s lien and it suffered a loss of
       $1,321,200. FagelHaber filed a motion to dismiss, claiming that the general release signed by
       the parties as part of the fee dispute barred all claims relating both to fees and to legal services.
¶ 14       Berres testified at her deposition that she had no knowledge that FagelHaber failed to
       perfect the lien when the release was signed on November 10, 2004. She further testified that
       the fee dispute was the only matter she was aware of at the time the release was executed. On
       January 29, 2010, the trial court denied the motion to dismiss, concluding that it could not
       determine as a matter of law that the claim was within the contemplation of the parties at the
       time the release was executed.
¶ 15       On January 25, 2012, Construction Systems filed its first amended complaint in which it
       sought interest pursuant to section 21 of the Act (770 ILCS 60/21 (West 2012)), which
       Construction Systems claimed it would have recovered but for FagelHaber’s negligence.
       FagelHaber filed a motion to dismiss the request for interest with prejudice and the motion was
       granted on June 13, 2012. The trial court found that although the underlying case dealt with a
       mechanic’s lien, the action against FagelHaber was for legal malpractice and prejudgment
       interest is not available in legal malpractice actions.
¶ 16       Yousif and Esmail were not parties and did not otherwise participate in any capacity in the
       lawsuits related to the project. Yousif was under indictment for fraud and eventually pled
       guilty and Esmail left the country. Testimony indicated that Global was actually a land trust,
       with Yousif and Esmail as the sole beneficiaries, and had no assets. Construction Services
       International was a corporation but it likewise had no assets.
¶ 17       The written contract in the amount of $2,684,823 between Construction Systems, the
       purported subcontractor, and Construction Services International, the purported general
       contractor, was never signed. It contained multiple phrases and sentences that had been crossed
       out and handwritten additions with initials next to each of the changes, but was not executed by
       either party.


                                                     -4-
¶ 18       Perry Haberer, the vice president of Construction Systems, was deposed once during the
       Pinnacle litigation and twice during the underlying malpractice litigation against FagelHaber.
       Haberer testified that the bid he initially submitted for the project was accepted, and when that
       happens, the bid is typically considered the contract. He was directed to move forward by
       AMEC on the basis of the bid, and Construction Systems began the work without any type of
       formal contract in place. The formal contract was not drawn up until much later and was
       delivered to him by AMEC, not Construction Services International, the putative general
       contractor. Haberer crossed out certain items in the contract and added handwritten
       modifications. Haberer received correspondence from AMEC in both September and
       December 2002 asking him to return a signed copy of the contract. But Haberer was instructed
       by Berres not to sign the contract and he informed AMEC that Construction Systems would
       complete the project under the terms of its bid proposal.
¶ 19       In addition to the base contract amount, Construction Systems submitted numerous cost
       estimates for extra work based on changes requested by either the owners or AMEC. Several
       AMEC employees were also deposed in the legal malpractice suit and conflicting testimony
       was provided regarding whether these additional cost estimates had been approved.
       Construction Systems contended that more than 100 change orders were approved over the
       course of the project. Haberer testified that instead of his cost estimates being incorporated into
       change orders, which is how it is normally done, on this project he simply received verbal
       approval from AMEC to proceed with the work detailed in the cost estimate. It was Haberer’s
       understanding that AMEC was the general contractor for the project.
¶ 20       FagelHaber filed a motion for summary judgment, claiming: (1) Construction Systems’
       legal malpractice action was barred by judicial estoppel; (2) no genuine issue of material fact
       existed on the issue of whether Construction Systems was a subcontractor; (3) the release
       signed by both parties barred all future claims related to legal services provided by
       FagelHaber; and (4) FagelHaber was entitled to partial summary judgment on Construction
       Systems’ claim for sums due to extra work. On May 14, 2014, the trial court granted summary
       judgment on the ground that the release barred known and unknown claims, including those for
       legal malpractice. The court denied summary judgment on the first two grounds, finding that
       the action was not barred by judicial estoppel and that a genuine issue of material fact existed
       regarding Construction Systems’ status as a subcontractor. Because it granted summary
       judgment based on the release, the trial court did not consider whether FagelHaber was entitled
       to partial summary judgment on the extra work issue. Construction Systems timely filed this
       appeal.

¶ 21                                           ANALYSIS
¶ 22       Construction Systems contends that FagelHaber was not entitled to summary judgment
       because the release signed by the parties related to an outstanding fee dispute and did not bar
       the subsequent claim for legal malpractice. Construction Systems further claims that it is
       entitled to prejudgment interest as part of its damages in the legal malpractice action because
       the statute upon which the underlying claim is based allows for recovery of prejudgment
       interest.
¶ 23       Summary judgment is appropriate when the pleadings, depositions, and admissions on file,
       together with any affidavits, show that there is no genuine issue as to any material fact and the
       moving party is entitled to judgment as a matter of law. 735 ILCS 5/2-1005(c) (West 2012);

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       Williams v. Manchester, 228 Ill. 2d 404, 417 (2008). “In determining whether a genuine issue
       as to any material fact exists, a court must construe the pleadings, depositions, admissions, and
       affidavits strictly against the movant and liberally in favor of the opponent. A triable issue
       precluding summary judgment exists where the material facts are disputed or where, the
       material facts being undisputed, reasonable persons might draw different inferences from the
       undisputed facts.” Id. We review an order granting summary judgment de novo. Id.

¶ 24                                            The Release
¶ 25        A release is a contract and, as such, is governed by contract law. Farm Credit Bank of St.
       Louis v. Whitlock, 144 Ill. 2d 440, 447 (1991). Where the terms of the release are clear and
       explicit, the court must enforce them as written and construction of the release is a question of
       law. Rakowski v. Lucente, 104 Ill. 2d 317, 323 (1984). “Releases are strictly construed against
       the benefitting party and must spell out the intention of the parties with great particularity.”
       Fuller Family Holdings, LLC v. Northern Trust Co., 371 Ill. App. 3d 605, 614 (2007) (citing
       Scott & Fetzer Co. v. Montgomery Ward & Co., 112 Ill. 2d 378, 395 (1986)). The scope and
       effect of the release are controlled by the intention of the parties, and this intent is determined
       not only from the express language of the release but also from the circumstances surrounding
       its execution. Doctor’s Associates, Inc. v. Duree, 319 Ill. App. 3d 1032, 1045 (2001).
¶ 26        Under Illinois law, a release will not be construed to defeat a valid claim that was not
       contemplated by the parties at the time the agreement was executed, and general words of
       release are inapplicable to claims that were unknown to the releasing party. Whitlock, 144 Ill.
       2d at 447. Indeed, “[n]o form of words, no matter how all encompassing, will foreclose
       scrutiny of a release [citation] or prevent a reviewing court from inquiring into surrounding
       circumstances to ascertain whether it was fairly made and accurately reflected the intention of
       the parties.” (Internal quotation marks omitted.) Carlile v. Snap-on Tools, 271 Ill. App. 3d 833,
       839 (1995). Thus, where the releasing party is unaware of other claims, general releases are
       restricted to the specific claims contained in the release agreement. Whitlock, 144 Ill. 2d at 447.
¶ 27        Here, although the release was broadly drafted to include phrases such as “without
       limitation” and general language purportedly barring any claims, “known and unknown,” in
       connection with legal services provided by FagelHaber, the only claim referenced in the
       release was the outstanding balance owed for legal fees. In fact, “the Indebtedness” is
       mentioned more than half a dozen times in the release. The release provided that Construction
       Systems would pay a total of $60,000 in three separate installments of $20,000 each and, in
       exchange, FagelHaber would release the client file upon timely receipt of the first payment.
¶ 28        Certainly, FagelHaber was aware after it performed the second tract index search that
       Cosmopolitan was an interested party at the time the lien was filed and that Cosmopolitan was
       not included either on the notice of lien or the recorded lien. Thus, it is likely that FagelHaber
       either knew or should have known at the time the release was executed that Construction
       Systems had a potential legal malpractice claim. As noted above, there is no indication in the
       record that FagelHaber ever informed its client of the failure to perfect the lien as against the
       lender’s interest. This court has noted that although a law firm crafting a release in an effort to
       protect itself from all potential claims may have contemplated certain other claims, such an
       undisclosed intent does not bring those claims within the contemplation of both parties.
       Thornwood, Inc. v. Jenner & Block, 344 Ill. App. 3d 15, 22 (2003). Moreover, where, as here,
       a fiduciary relationship exists between the parties, the defendant has the burden to show that a

                                                    -6-
       full and frank disclosure of all relevant information was made to the other party. Id. at 25-26
       (quoting Rizzo v. Rizzo, 3 Ill. 2d 291, 305 (1954), and Peskin v. Deutsch, 134 Ill. App. 3d 48, 55
       (1985)).
¶ 29        Berres was representing Construction Systems at the time it signed the release. Berres was
       not aware at the time the release was executed that FagelHaber had failed to perfect the lien
       and, thus, was not aware of a potential legal malpractice claim. The circumstances surrounding
       the execution of the release lend support to this testimony, as Berres clearly did not have the
       entire client file at the time of its execution, given that obtaining the client file in exchange for
       payment of legal fees was the subject matter of the release and the specific issue in dispute
       between the parties.
¶ 30        The case relied on by the trial court, Goodman v. Hanson, 408 Ill. App. 3d 285, 299 (2011),
       is inapposite. In Goodman, a client sued his former attorney for malpractice based on the
       attorney’s handling of certain Illinois estate and tax matters. After the case settled, the parties
       executed a general release, which barred any and all claims that could have been brought in the
       first malpractice action as well as any claims related to the management of the trust and estate.
       Id. at 293. The client later filed a second malpractice action for claims related to a federal tax
       return. This court concluded the general release barred the second action because the federal
       tax claims could have been brought as part of the original malpractice action and the claims fell
       within the specific language of the release. Id. at 294, 299.
¶ 31        Here, there is no evidence to suggest Construction Systems contemplated a potential legal
       malpractice claim at the time the release was executed. Construction Systems was not satisfied
       with the progress of the lawsuit filed to enforce its lien and thought FagelHaber was billing
       excessive amounts. Construction Systems then retained substitute counsel but, despite a court
       order to turn over the client file, FagelHaber withheld the file because of a dispute over fees.
       Given that FagelHaber’s alleged legal malpractice resulted in a claimed loss of $1.3 million, it
       is highly unlikely that Construction Systems–in exchange for a $20,000 reduction in legal
       fees–would have agreed to release its legal malpractice claim. There is, at a minimum, a
       genuine issue of material fact on this point.
¶ 32        Similarly, FagelHaber’s reliance on Gavery v. McMahon & Elliott, 283 Ill. App. 3d 484
       (1996), is unavailing. In Gavery, the plaintiff entered into an asset purchase agreement and a
       noncompetition agreement to sell his medical practice while represented by the defendant law
       firm. Id. at 485. In a later dispute with the purchaser, the plaintiff was represented by a
       different law firm. In order to facilitate cooperation between the two law firms, the plaintiff
       agreed to release the original law firm from any claims he might have against it. The language
       of the release was “very specific and unambiguous” and included recitals stating that the
       plaintiff had been informed by the new law firm prior to executing the release that he might
       have claims against the original law firm, as well as language specifically referencing the asset
       purchase agreement and the noncompetition agreement. Id. at 487. After executing the release,
       the plaintiff filed claims against the original law firm related to the noncompetition agreement.
       This court held that the release barred the claims because it was specific and unambiguous, the
       claims fell within the scope of the release, and the plaintiff was advised by separate counsel
       that he may have claims against the original law firm arising out of the agreements. Id. at
       488-89.
¶ 33        In contrast, there is no evidence prior to the execution of the release that Construction
       Systems was advised that it may have a legal malpractice claim against FagelHaber, and the

                                                     -7-
       release contains no recitals to that effect. Moreover, the only language in the release related to
       FagelHaber’s overall representation is the general clause barring any claims in connection with
       the legal services provided. But because the release specifically identifies the dispute over
       legal fees as the issue being negotiated by the parties, the inclusion of one clause containing
       broad language purporting to cover any claim related to FagelHaber’s representation cannot
       operate to bring legal malpractice claims within the contemplation of the parties. Likewise,
       because of the specific language relating to the Indebtedness in the release, the phrase “known
       and unknown” does not indicate that the parties intended to bar legal malpractice claims.
¶ 34       Both the language of the release and the surrounding circumstances establish that a genuine
       issue of material fact exists regarding whether legal malpractice claims were within the
       contemplation of the parties at the time the release was executed. Therefore, the trial court
       erred in granting summary judgment in favor of FagelHaber on the basis of the release.

¶ 35                                           Judicial Estoppel
¶ 36        Because this court may affirm on any basis appearing in the record, regardless of whether
       the lower court relied on that ground (see Home Insurance Co. v. Cincinnati Insurance Co.,
       213 Ill. 2d 307, 315 (2004)), we address FagelHaber’s contention that the doctrine of judicial
       estoppel warranted summary judgment in its favor. FagelHaber argues that all of the elements
       of judicial estoppel have been established and that the trial court erred in concluding that
       because Construction Systems’ motion for summary judgment was denied, it obtained no
       benefit.
¶ 37        Judicial estoppel is an equitable doctrine designed to prevent a party who takes a certain
       position in a legal proceeding from taking the contrary position in a subsequent legal
       proceeding. Moy v. Ng, 371 Ill. App. 3d 957, 962 (2007). The following elements are required
       for the doctrine to apply: (1) a party must have taken two positions; (2) the positions must have
       been taken in judicial proceedings; (3) the positions must be given under oath; (4) the party
       must have successfully maintained the first position and obtained some benefit thereby; and (5)
       the two positions must be “totally inconsistent.” (Internal quotation marks omitted.) Holland v.
       Schwan’s Home Service, Inc., 2013 IL App (5th) 110560, ¶ 113.
¶ 38        Judicial estoppel is a flexible doctrine that should not be used when to do so would result in
       an injustice. Ceres Terminals, Inc. v. Chicago City Bank & Trust Co., 259 Ill. App. 3d 836,
       850-51 (1994). The doctrine’s design and function are to protect the court from unscrupulous
       litigants and preserve the integrity of the court system. Id. at 856. Courts have warned that the
       doctrine is “an extraordinary one which should be applied with caution” because it impinges
       on the trial court’s role as fact finder by “preclud[ing] a contradictory position without
       examining the truth of either statement.” (Internal quotation marks omitted.) Id. at 856-57.
¶ 39        We review a trial court’s determination of whether to apply judicial estoppel under an
       abuse of discretion standard. Holland, 2013 IL App (5th) 110560, ¶ 114. An abuse of
       discretion occurs only when the trial court’s decision is arbitrary, fanciful or unreasonable or
       where no reasonable person would adopt the view taken by the trial court. Id.
¶ 40        The trial court denied FagelHaber’s motion for summary judgment on judicial estoppel
       grounds for three reasons. First, the court noted that while Construction Systems presented
       alternative arguments in the Pinnacle litigation, FagelHaber had not established that the
       positions were factually inconsistent. Second, the court found persuasive Construction
       Systems’ argument that it was forced to advance alternative arguments because of

                                                    -8-
       FagelHaber’s professional negligence. Third, the alternative arguments were denied and,
       therefore, did not benefit Construction Systems.
¶ 41       In the Pinnacle litigation, Construction Systems included alternative arguments in its
       motion for summary judgment. First, Construction Systems argued that it was actually an
       original contractor and, therefore, not subject to the notice requirement in section 24 of the Act
       (770 ILCS 60/24 (West 2012)). In the alternative, Construction Systems argued that even if it
       was a subcontractor, it was not subject to the notice requirement because Cosmopolitan had
       notice of Construction Systems’ work on the project.
¶ 42       We agree with the trial court that although Construction Systems presented alternative
       legal arguments, these arguments did not entail factual inconsistencies. See Giannini v. Kumho
       Tire U.S.A., Inc., 385 Ill. App. 3d 1013, 1018-19 (2008) (judicial estoppel does not apply to all
       types of inconsistencies but only to factual inconsistencies). On the separate issue of whether
       Construction Systems could prove the existence of a subcontract with AMEC, the trial court
       determined that genuine issues of material fact existed with regard to Construction Systems’
       status.
¶ 43       Our examination of the record discloses evidence in support of both alternative
       positions–that Construction Systems was an original contractor and that it was a subcontractor.
       At one point, Haberer testified that he believed his verbal agreement was with the owners
       directly, thus making him an original contractor. There was conflicting testimony regarding
       whether Construction Services International was, in fact, a general contractor. The unsigned
       contract identified Construction Systems as a subcontractor and the contracting party was
       identified as Construction Services International, the purported general contractor. However,
       Haberer also testified that he believed his verbal agreement was actually with AMEC, the
       construction manager. At another point during one of his depositions, Haberer testified that he
       believed AMEC was a general contractor. Therefore, we disagree with FagelHaber’s
       contention that “[t]he record eliminates any genuine issue of fact” on the issue of whether
       Construction Systems was a subcontractor. Given that Haberer would not have been privy to
       the corporate structure of and interrelationships between and among Global, AMEC and
       Construction Services International, we do not view this as a factual inconsistency implicating
       judicial estoppel. Ultimately, Construction Systems’ legal status as a contractor or a
       subcontractor will have to be determined by a trier of fact after hearing evidence as part of the
       “case within a case” in the malpractice action. See Eastman v. Messner, 188 Ill. 2d 404, 411
       (1999); Fox v. Berks, 334 Ill. App. 3d 815, 817 (2002).
¶ 44       Moreover, we note that because of FagelHaber’s alleged malpractice in failing to perfect
       the lien as to Cosmopolitan, Construction Systems was forced to attempt to salvage the priority
       of its lien by advancing the legal argument that it was not subject to the notice requirement.
       The fact that Construction Systems pursued all available legal arguments against FBOP as
       successor to Cosmopolitan in an attempt to recover something rather than nothing on its lien
       inures to FagelHaber’s benefit in the event that Construction Systems is successful in its legal
       malpractice action because FagelHaber will be entitled to offset the settlement amount against
       any judgment in the malpractice case.
¶ 45       Finally, we note that FagelHaber cites authority for the proposition that a settlement may
       establish that a party has prevailed and thus received a benefit in the context of judicial
       estoppel (see Smeilis v. Lipkis, 2012 IL App (1st) 103385, ¶¶ 51-53). However, under the facts
       of this case, Construction Systems’ settlement with FBOP resulted in recovering an amount

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       less than it was owed in order to avoid the possibility of recovering nothing. To the extent that
       Construction Systems could have prevailed in recovering the entirety of its lien had
       FagelHaber given notice to Cosmopolitan, the measure of damages in the malpractice suit
       would be the difference between the settlement amount and the full amount of the lien.
       Therefore, the fact that Construction Systems presented alternative arguments would not allow
       it to obtain a double recovery but merely put it in the same position it would have been had the
       lien been properly perfected.
¶ 46        As previously noted, judicial estoppel is an extraordinary doctrine that should be applied
       with caution because it impinges on the trial court’s role as fact finder and should not be used
       when to do so would result in an injustice. We cannot say that the trial court abused its
       discretion in declining to apply the doctrine under these circumstances.

¶ 47                                       Prejudgment Interest
¶ 48       Construction Systems also claims that it is entitled to prejudgment interest pursuant to the
       Act as part of its damages in the legal malpractice action and the trial court erred in dismissing
       its request for prejudgment interest with prejudice. Construction Systems concedes that
       prejudgment interest is not available in malpractice actions but contends that because the
       underlying basis of the claim is FagelHaber’s failure to perfect the lien under the Act, and
       section 21 of the Act (770 ILCS 60/21(a) (West 2012)) provides for prejudgment interest, it
       may be recovered as an element of damages. We agree.
¶ 49       FagelHaber filed a motion to dismiss the prayer for prejudgment interest pursuant to
       section 2-619.1 of the Code of Civil Procedure (Code) (735 ILCS 5/2-619.1 (West 2012)).
       Section 2-619.1 of the Code allows a party to combine a section 2-615 motion to dismiss with
       a section 2-619 motion to dismiss. 735 ILCS 5/2-619.1 (West 2012). A section 2-615 motion to
       dismiss tests the legal sufficiency of the complaint while a section 2-619 motion to dismiss
       admits the sufficiency of the complaint but asserts affirmative matter that defeats the claim.
       Bjork v. O’Meara, 2013 IL 114044, ¶ 21. We review de novo an order granting a motion to
       dismiss under either section 2-615 or section 2-619. Id.
¶ 50       In its first amended complaint, Construction Systems sought judgment against FagelHaber
       in the amount of $1,321,200 “plus the interest it is entitled to under the Illinois Interest Act and
       the Illinois Mechanics Lien Act.” FagelHaber filed a motion to dismiss and strike the request
       for interest on the ground that prejudgment interest is not recoverable in legal malpractice
       actions. Relying on Tri-G, Inc. v. Burke, Bosselman & Weaver, 222 Ill. 2d 218 (2006), the trial
       court determined that although the underlying suit dealt with a mechanic’s lien, the Act did not
       apply to the legal malpractice suit and prejudgment interest was not available.
¶ 51       FagelHaber relies on Goldfine v. Barack, Ferrazzano, Kirschbaum & Perlman, 2014 IL
       116362, ¶¶ 35-37, as additional support for its argument that prejudgment interest is not
       available here. This reliance is misplaced. In Goldfine, our supreme court distinguished cases
       in which the interest is hypothetical and depends on the amount of the judgment the party
       would have received but for the alleged malpractice–the situation in Tri-G–and cases in which
       the interest is a component of the remedial relief the plaintiffs would have recovered in the
       underlying case but for the alleged malpractice. Id. ¶ 37.
¶ 52       Here, the interest is not hypothetical but is based on the amount of the mechanic’s lien that
       should have been perfected and, under the Act, is a component of the relief Construction
       Systems would have been awarded but for FagelHaber’s failure to perfect the lien. Pursuant to

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       the Act, the interest is not based on the amount of a hypothetical judgment but on the amount of
       the lien. Therefore, Tri-G is inapplicable and the trial court erred in dismissing Construction
       Systems’ request for prejudgment interest with prejudice.

¶ 53                                         Extra Work Claim
¶ 54       The final ground on which FagelHaber seeks to uphold its right to summary judgment, at
       least in part, relates to charges for extra work included in the lien asserted by Construction
       Systems. The mechanic’s lien filed by Construction Systems included $1,372,477, which
       Construction Systems claimed represented charges for extra work on the project ordered by the
       owner. Citing provisions in the written documents requiring the owner’s approval in writing of
       any change orders and Haberer’s testimony that Construction Systems never received written
       approval for the extra work, FagelHaber argues that Construction Systems cannot demonstrate
       by clear and convincing evidence its right to recover such sums. See Ambrose v. Biggs, 156 Ill.
       App. 3d 515, 520 (1987) (in order to recover for extra work, contractor must prove by clear and
       convincing evidence that extras were (i) outside the original contract, (ii) requested and
       approved by the owner, and (iii) not necessitated by the contractor’s own conduct or
       undertaken voluntarily by the contractor (citing Watson Lumber Co. v. Guennewig, 79 Ill. App.
       2d 377, 389-90 (1967))). As noted in Watson, an owner’s agreement to pay for extras may be
       evidenced by either words or conduct. Watson, 79 Ill. App. 2d at 390.
¶ 55       Our review of the record convinces us that there are genuine issues of material fact as to
       whether the extra work performed by Construction Systems on the project was approved by the
       owners. Haberer testified that the owners requested the additional work and that Construction
       Systems submitted 151 change orders and was assured on numerous occasions that it would be
       paid. While a trier of fact is certainly entitled to consider the lack of written approval in
       determining whether Construction Systems has satisfied its burden, this fact is not
       determinative. Thus, we reject FagelHaber’s argument that it was entitled to partial summary
       judgment on this issue.

¶ 56                                          CONCLUSION
¶ 57       The trial court erred in granting summary judgment in favor of FagelHaber on the basis of
       the language in the release because genuine issues of material fact exist regarding whether
       legal malpractice claims were within the contemplation of the parties at the time the release
       was executed. The trial court did not abuse its discretion in declining to apply judicial estoppel
       under the circumstances of this case. The trial court further erred in granting the motion to
       dismiss the request for prejudgment interest because the interest sought is a component of the
       remedial relief that Construction Systems would have been entitled to but for the alleged
       malpractice. Finally, FagelHaber is not entitled to partial summary judgment on Construction
       System’s claim for extra work. The trial court’s orders entering judgment in favor of
       FagelHaber and dismissing the request for interest with prejudice are reversed and the cause is
       remanded for further proceedings.

¶ 58      Reversed and remanded.




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