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Sorenson v. Fio Rito

OPINION FILED NOVEMBER 6, 1980.

CATHERINE F. SORENSON, PLAINTIFF-APPELLEE,

v.

MICHAEL FIO RITO, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. WILLIAM H. SPITLER, JR., Judge, presiding.

MR. JUSTICE JIGANTI DELIVERED THE OPINION OF THE COURT:

The plaintiff, Catherine F. Sorenson, brought an attorney malpractice action against the defendant, Michael Fio Rito. The defendant appeals from a judgment of the circuit court of Cook County awarding the plaintiff damages in the form of penalties, interest and attorneys' fees incurred as a result of the defendant's failure to timely file certain inheritance and estate tax forms. The defendant alleges that: (1) the judgment of the trial court was against the manifest weight of the evidence; (2) the court did not properly assess damages; (3) the court committed reversible error in its various rulings on the evidence; and (4) the court was prejudiced against the defendant.

Catherine Sorenson testified that on the night of her husband's death, she had a telephone conversation with attorney Michael Fio Rito. The conversation was arranged by Sorenson's future son-in-law, who was a good friend of Fio Rito. During this call, Sorenson asked Fio Rito if she could use checks signed by her husband before his death to withdraw cash from the bank. He advised her that she could.

Sorenson stated that a few months later, Fio Rito met with her and discussed the probating of her husband's estate. He told Sorenson that since the assets all appeared to be in joint tenancy, there would be no problem in transferring the assets into her name alone. At the end of the meeting, Fio Rito took with him several documents belonging to Sorenson, including deeds to two houses, trust documents, certificates of deposit and a list of stocks. Sorenson said that she called Fio Rito a month after this meeting, and asked him what was happening with her husband's estate. He told her that he was taking care of everything. Sorenson further testified that she received a telephone call in April of 1975 from an attorney named Alvin Seigan. Seigan told her that he was helping Fio Rito while Fio Rito was out of town. He asked her to bring certain documents to his office. When Sorenson arrived at Seigan's office, he inquired whether she had spoken with Fio Rito about fees. She told him that there had been no discussion about fees. Sorenson testified that she made out a check to Seigan with the express understanding that the money would be given to Fio Rito. During the following months, Sorenson allegedly called Fio Rito from time to time to inquire about the estate. Each time, Fio Rito told her not to worry because he was taking care of it.

Sorenson testified that she contacted Greg McHugh, a staff attorney with the Cook County Legal Assistance Foundation in February of 1977. She told him that a couple of years had passed and nothing had been done about her husband's estate. When the attorney contacted Fio Rito he was told that Fio Rito was taking care of the matter. Sorenson continued to visit Fio Rito during the next few months. She testified that on one of these occasions, Fio Rito said, "You have been too nice. You got lost in the shuffle." He also admitted that there would be some tax penalties.

In his testimony at trial, Fio Rito denied speaking to Sorenson on the night of her husband's death. He claimed that she never asked him to work on the estate tax returns. Fio Rito testified that he first met Sorenson at the home of her daughter and son-in-law. Although he looked over certain documents relating to the estate, he denied having taken them with him. Fio Rito said that he recommended Alvin Seigan, an "office associate" to do Sorenson's tax work. Sorenson retained Seigan, but would call Fio Rito from time to time when she could not reach Seigan.

Sometime later, Fio Rito called Sorenson's son-in-law to inform him that Alvin Seigan had died. When Sorenson called to ask about her documents, Fio Rito told Mrs. Seigan to bring them to his office. He held these documents for about a year but did not do any work on them. Fio Rito testified that he advised Sorenson to look for a new "tax man" and she agreed to let an attorney by the name of David Weiner handle the matter. Fio Rito's last contact with Sorenson occurred in December of 1975 when he returned her files. He did not receive a fee from Sorenson.

In June of 1977, Sorenson retained a new attorney, Henry Lawrie, to handle her husband's estate. Lawrie completed the inheritance tax and estate tax returns and filed them on September 29, 1977. Because the returns were filed late, Sorenson was required to pay $6,409.25 in penalties and interest. Also, Sorenson incurred about $1500 in attorneys' fees which arose from unsuccessful attempts to obtain refunds of the penalty and interest charges.

At the trial, the court took judicial notice of Disciplinary Rule 6-101(A)(3) of the Code of Professional Responsibility, which states, "A lawyer shall not neglect a legal matter entrusted to him." The court also allowed Greg McHugh to testify on the standard of care applicable to attorneys practicing in the Chicago area. McHugh had been practicing in the Chicago area since he was licensed to practice law in Illinois in May of 1976. He was employed as the head of the Senior Department of the Cook County Legal Assistance Foundation. In this capacity, he filed many State inheritance tax returns and Federal estate tax returns. McHugh testified that, in his opinion, an attorney of ordinary skill and knowledge in the Chicago area would anticipate that deadlines exist for the filing of State inheritance tax returns and Federal estate tax returns in handling decedents' estates and would know how to find out what those deadlines were.

The defendant first contends that the judgment of the trial court was against the manifest weight of the evidence. He claims that there was no evidence that he and Sorenson entered into an attorney-client employment relationship or that he ever performed legal services for Sorenson.

A reviewing court has a duty to reverse the judgment of the trial court where it determines that the judgment is against the manifest weight of the evidence. (Brongel v. Brongel (1977), 48 Ill. App.3d 27, 362 N.E.2d 750.) However, in making this determination, the appellate court must view the evidence introduced at trial and the inferences drawn therefrom in the aspect most favorable to the prevailing party below. (Fetterman v. Production Steel Co. (1954), 4 Ill. App.2d 403, 124 N.E.2d 637.) Therefore, a judgment by the trial court in favor of the plaintiff should be sustained if there is evidence which, together with all inferences favorable to the plaintiff, tends to prove the essential elements of the plaintiff's claim. Fosdick v. Servis (1963), 40 Ill. App.2d 363, 189 N.E.2d 538.

The record shows that Sorenson gave Fio Rito the documents relating to her husband's estate with the expectation that he would perform whatever legal services were necessary. She called Fio Rito several times to check on his progress. Each time, he told her that everything was fine and that she should not worry. On one occasion, Fio Rito seemed to have acknowledged his neglect of the matter by telling Sorenson, "You have been too nice. You got lost in the shuffle."

Fio Rito claims that Sorenson retained another attorney, Alvin Seigan, to perform services in connection with her husband's estate. It is true that Sorenson made out a check to Seigan. However, according to Sorenson's testimony, Seigan explained to her that he was just helping Fio Rito and assured her that Fio Rito would receive the money. The trial court apparently chose to believe this testimony. It is within the province of the trial court to determine the credibility of witnesses and the weight to be given to their testimony. (Wyman-Gordon Co. v. Lynch Area Fire Protection District (1977), 51 Ill. App.3d 451, 366 N.E.2d 1055.) Based upon these facts, we conclude that the judgment of the trial court was not against the manifest weight of the evidence.

The defendant next contends that the trial court erred in awarding as damages the attorneys' fees incurred by Sorenson in her attempts to obtain refunds of the penalty and interest charges. He claims that allowance of these fees violated the so-called "American rule," which prohibits a successful litigant from recovering his attorneys' fees and expenses of litigation in the absence of a statute allowing such expenses. (Kerns v. Engelke (1979), 76 Ill.2d 154, 390 N.E.2d 859.) Since the plaintiff could not point to a statute ...


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