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Werdell v. Turzynski

AUGUST 18, 1970.




Appeal from the Circuit Court of Cook County; the Hon. RUSSELL J. DOLCE, Judge, presiding. Judgment affirmed.


This appeal arises from a bitter dispute between the plaintiff, a lawyer, and the defendant, a former client, concerning fees. The cause was heard by a jury that returned a verdict for the plaintiff. After overruling a posttrial motion, the trial court entered judgment on the verdict.

In urging us to reverse, defendant contends that (1), he was not given an opportunity to present his meritorious defense; (2), evidence, misleading to the jury and prejudicial to him, was erroneously admitted; (3), plaintiff's conduct at the trial and that of his counsel while arguing to the jury, were prejudicial, misled the jury and prevented a fair and impartial verdict; (4), the trial judge gave the jury two erroneous instructions; and (5), the verdict of the jury was against the law and the evidence. The facts are before us in a voluminous record.

On May 4, 1961 the defendant, Doctor Stanley Turzynski, agreed to buy from a Doctor Samuel A. Libert his medical practice, a medical center and real estate at 6165 and 6169 Archer Avenue in the City of Chicago. A consideration for the sale was a restrictive covenant, without time limitation, that prohibited Doctor Libert from engaging in the practice of medicine, directly or indirectly, within a radius of 15 miles of the medical center he sold. In April 1963, Doctor Libert announced his return to medical and surgical practice in the same block on which the medical center was situated. Doctor Turzynski filed suit to restrain breach of the covenant. Doctor Libert's defense was that on December 1, 1961, the restrictive covenant was canceled by a document which amended the 1961 sales agreement. Doctor Turzynski countered this defense with the claim that the document was obtained by fraud. The cause was referred to a Master who conducted hearings and filed his report.

Plaintiff, Mr. Stanley Werdell, has been a lawyer since 1930. His practice is restricted to chancery, probate and appeals. Ninety-five percent of his cases are referred to him by other members of the bar. On April 17, 1965, on the advice of his lawyer, Doctor Turzynski consulted Mr. Werdell. On April 21, 1965 Doctor Turzynski signed a written agreement to employ Mr. Werdell "as my attorney to prosecute or settle the . . . case: Stanley Turzynski v. Samuel A. Libert, . . . ." According to the document he and Mr. Werdell signed, Doctor Turzynski agreed to pay as a retainer $1500 within five days, an additional $1500 on or before June 9, 1965; "and the following additional amount: (a) the sum of $35 per hour for whatever time he devotes to the above matter. . . ." By the terms of the retainer agreement, Doctor Turzynski consented to pay all court costs, court reporter charges, master's fees, documentary fees and title charges. If there was an appeal, the parties were to enter into a new agreement. The last paragraph provided "[i]t is further understood that the $3,000 above mentioned shall be applied to the amount of time that the said attorney shall devote to this cause."

April 26, 1967 Mr. Werdell filed the suit involved in this appeal. To the complaint, as exhibits, were attached the retainer agreement of April 21, 1965 and a statement to Doctor Turzynski, which acknowledged receipts totaling $6,248 and showed 361 hours and 5 minutes of work devoted by Mr. Werdell to Turzynski v. Libert, at $35 per hour, making the sum of $12,635 for attorney fees. The statement showed disbursements of $48 for costs and $6,200 received and applied to fees. The statement claimed there was due a balance of $6,435. A judgment in this amount was prayed.

Doctor Turzynski appeared by counsel, asked for a jury trial and pleaded to the complaint with a "Separate Affirmative Answer" containing eight paragraphs. In these, Doctor Turzynski alleged he retained Mr. Werdell as his attorney on April 21, 1965 "to represent him in the preparation and presentation of Objections to the Master's Report in the case of Turzynski v. Libert, Case No. 63 S 8949, and for no other purpose; . . . [and that] Stanley Werdell orally represented to Stanley Turzynski that the estimated number of hours for this task would not exceed 60." One paragraph of the "affirmative answer" alleged that because Mr. Werdell failed to perform his duties, he was discharged by Doctor Turzynski "for good cause . . . on December 14, 1966." The remainder of the "affirmative answer" contended that as a matter of law, an attorney who is discharged for good cause cannot enforce a written contract for fees "but may maintain such an action only on Quantum Meruit (sic), if at all, and further that the amounts charged by Stanley Werdell are not fair and reasonable and that the total number of hours claimed are unnecessary and not reasonable or justified." Defendant alleged that the sum he paid Mr. Werdell was $6,700; that he was not indebted to the plaintiff in the amount claimed. On the contrary, it was alleged, Mr. Werdell owed Doctor Turzynski a refund in at least the amount of $2,000.

Doctor Turzynski filed a countercomplaint against Mr. Werdell. In it he alleged that from April 21, 1965 to December 14, 1966 he paid Mr. Werdell $6,700 for legal services; that Mr. Werdell had the duty to represent him "with all due and reasonable care and diligence such as is required of an attorney . . ."; that notwithstanding this duty, Mr. Werdell "negligently pursued his client's cause and, in particular, negligently prepared the plaintiff's Objections to the Master's Report, . . . ." Ten subparagraphs alleged the manner by which, according to Doctor Turzynski, Mr. Werdell failed or willfully and negligently did acts which were either opposed by Doctor Turzynski or which were to his detriment in Turzynski v. Libert. The countercomplaint then alleged, in three consecutive paragraphs, that on and after December 19, 1966, Mr. Werdell, "willfully and negligently and unethically . . ." injured the cause of his former client, Doctor Turzynski. The concluding paragraphs of the countercomplaint prayed for damages in the sum of $750,000.

In a trial that lasted from May 31 to June 7, 1968, Doctor Turzynski was called and examined as an adverse witness. He was aked whether when he signed the retainer agreement it contained the last paragraph that provided for application of the $3,000 retainer to the amount of time Mr. Werdell devoted to the case. Doctor Turzynski said, "No, was not (sic)." He then added, "he introduced himself as a very qualified lawyer and as a very honest lawyer. I didn't know that I have to deal with a dishonest, corrupt man, and let's state this corrupt and dishonest. I am able to prove this (sic)." Thereafter, over defendant's objections, interspersed in other testimony, plaintiff called five character witnesses: a magistrate, an associate judge, a circuit court judge, a justice of the Appellate Court of Illinois and a justice of the Illinois Supreme Court. The lawyer who referred Doctor Turzynski to Mr. Werdell appeared as plaintiff's occurrence and character witness. Then Mr. Werdell testified to the circumstances under which he was retained by Doctor Turzynski, the way he kept a record of the time he worked on Turzynski v. Libert and the way he discharged his professional responsibility to his client. Mr. Werdell's secretary testified to the way she recorded the time spent by Mr. Werdell in Doctor Turzynski's case and the way she prepared and mailed letters which Mr. Werdell testified were sent to the client. These letters, and other exhibits totaling twenty-four in number, were admitted as plaintiff's evidence. Doctor Turzynski then testified as the only witness for the defense. He described how Mr. Werdell told him the preparation of the objections to the Master's report would not take much time and that the unused portion of the $3,000 retainer would be returned. Doctor Turzynski was shown the retainer agreement and he told the jury his understanding of its terms. He described his experiences with Mr. Werdell and their disagreements concerning the case.

When he was cross-examined, defendant was asked if he was the same Stanley Turzynski who on July 31, 1967 was found guilty of the offense of filing a false and fraudulent income tax return in violation of Section 7201, Title 26, United States Code. After objection to these questions were overruled, Doctor Turzynski admitted he was the defendant named. A certified copy of the record was admitted in evidence. At the conclusion of Doctor Turzynski's testimony, the cause was argued and the jury instructed. After deliberation, the jury returned a verdict against Doctor Turzynski in the sum of $5,935. He appeals.

In this court Doctor Turzynski now represents himself because the lawyers who docketed his appeal, with our leave, have withdrawn from his case. He filed Excerpts of Record and a Brief and Argument for Defendant-Appellant. On a motion made by lawyers for the plaintiff, Mr. Werdell, we struck the Excerpts and Brief because as to form they violated our rules; and as to substance the Brief contained scurrilous attacks on the integrity of the opposing party, the lawyers connected with the case and witnesses who appeared for the plaintiff. Biggs v. Cummins, 16 Ill.2d 424, 158 N.E.2d 58; Skolnick v. Nudelman, 95 Ill. App.2d 293, 237 N.E.2d 804. Doctor Turzynski has filed another set of Excerpts and Brief which corrects, in part, some of the faults that led us to sustain plaintiff's motion to strike.

Doctor Turzynski's first contention is that he was not given an opportunity to present to the jury what he claims was a meritorious defense. However, we are not told how or in what manner he was denied this opportunity. Other than in the statement of the issues presented for review, there is no reference to this contention in Doctor Turzynski's Brief. Thus, the issue is not argued. An issue raised in a brief but not argued is waived. Supreme Court Rule 341(e)(7), Ill Rev Stats 1967, c 110A, § 341(e)(7); Rudolph v. Gersten, 100 Ill. App.2d 253, 241 N.E.2d 600; Soter v. Christoforacos, 53 Ill. App.2d 133, 202 N.E.2d 846; Louis v. Checker Taxi Co., 318 Ill. App. 71, 47 N.E.2d 351.

Doctor Turzynski's second contention is that evidence, misleading to the jury and prejudicial to him, was erroneously admitted. In support of this contention, Doctor Turzynski argues that the sworn complaint was given the jury to read during their deliberation. Although Supreme Court Rule 341(e)(7) requires that contentions on appeal shall contain references to the record page, we are not told where the record shows that the jury was given the complaint to read. Burdened as we are by this failure, we have, nonetheless, scoured this 1176 page record, but fail to find that the incident about which complaint is made occurred.

To the contrary, the record discloses that when the cause was argued to the jury, Doctor Turzynski's lawyer told it that during deliberations it would have "a copy of all the pleadings that were filed in this lawsuit." Mr. Werdell's lawyer objected, saying that when it deliberated, the jury was not going to have copies of all the pleadings. He asked the trial judge to inform the jury accordingly. The trial judge then told the jury, "The only thing you will take with you in the jury room will be ...

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