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08/04/88 Donald Lurz, v. Lawrence R. Panek Et Al.

August 4, 1988

DONALD LURZ, PLAINTIFF-APPELLEE AND CROSS-APPELLANT

v.

LAWRENCE R. PANEK ET AL., DEFENDANTS-APPELLANTS AND CROSS-APPELLEES (AMERICAN NATIONAL BANK AND TRUST



APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

Company of Chicago et al., Defendants and

Cross-Appellees)

527 N.E.2d 663, 172 Ill. App. 3d 915, 123 Ill. Dec. 200 1988.IL.1214

Appeal from the Circuit Court of Du Page County; the Hon. William E. Black, Judge, presiding.

APPELLATE Judges:

JUSTICE DUNN delivered the opinion of the court. INGLIS and REINHARD, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE DUNN

Defendant, attorney Lawrence Panek, appeals from a judgment awarding plaintiff, Donald Lurz, compensatory and punitive damages stemming from defendant's failure to disburse promptly funds obtained on behalf of plaintiff in an underlying personal injury action. Plaintiff cross-appealed. The initial appeal by defendant and the initial cross-appeal by plaintiff were dismissed by this court because there was no final appealable order entered in the trial court. (Lurz v. Panek (1988), 166 Ill. App. 3d 179, 519 N.E.2d 1110.) The trial court has since entered a final and appealable order, and we have agreed to take the case on the existing record as supplemented and the briefs on file. We affirm.

This case arises from defendant's representation of plaintiff in a personal injury action against the Chicago, Milwaukee, St. Paul & Pacific Railroad Company (Railroad). The personal injury case was tried by Joseph Lascaro and resulted in a verdict in plaintiff's favor of $66,596.64. A check in satisfaction of the judgment was drawn by the Railroad and made payable to plaintiff, defendant, and Lascaro. The check was delivered to defendant's office and was payable through the Continental Illinois National Bank & Trust Company of Chicago (Continental). Upon receipt of the check, defendant endorsed it with plaintiff's name and deposited it into his client fund account at the American National Bank & Trust Company of Chicago (American). American thereafter negotiated the check to Continental. Continental then negotiated the check to the Railroad, and payment was approved. Over seven months later, defendant issued a check to plaintiff in the amount of $43,358.34; the remainder was retained to satisfy attorney fees and costs.

Plaintiff filed suit in the circuit court seeking compensatory and punitive damages against defendant and Lascaro for fraud (count I), breach of fiduciary duty (count II), and conversion (count III). Thereafter, the complaint was amended to add count IV, which alleged defendant and Lascaro had violated the Consumer Fraud and Deceptive Business Practices Act (Ill. Rev. Stat. 1987, ch. 121 1/2, par. 261 et seq.). In addition, separate counts were brought against American, Continental, and the Railroad alleging conversion and seeking the face value of the check issued by the Railroad.

The claims against defendant and Lascaro were considered first. Lascaro was voluntarily dismissed by plaintiff on account of plaintiff's inability to serve Lascaro. The cause then proceeded solely against defendant. Summary judgment on liability as to counts I and II was entered in favor of plaintiff; summary judgment on liability and actual damages (interest on the funds for the interim period) on count III was entered in favor of plaintiff; and summary judgment on liability was entered in favor of defendant on count IV. A jury trial for purposes of assessing the remaining damages resulted in an award of $2,000 in compensatory damages and $39,000 in punitive damages.

As to the claims against American, Continental, and the Railroad, the court determined on summary judgment that American and the Railroad were liable for $2,000 plus 8% interest from August 31, 1983, to December 11, 1985, and the sum of the interest on $43,358.34 at the rate of 8% from August 31, 1983, to April 6, 1984. The court further determined plaintiff was entitled to only one satisfaction of the "$2000 plus interest judgment."

The issues presented by defendant on appeal, as we perceive them, are: (1) whether the trial court abused its discretion in denying defendant's motion to dismiss on grounds plaintiff failed to exercise due diligence in serving Lascaro; (2) whether the trial court's summary judgment rulings on counts I, II, and III were improper; (3) whether count I should have been dismissed because it stated the same cause of action as count II and separate damages were not proved under counts I and II; (4) whether the trial court erred in denying a motion in limine ; (5) whether the evidentiary rulings at trial were proper; and (6) whether the jury was properly instructed. Three issues are raised by plaintiff on cross-appeal: whether the trial court erred in granting summary judgment in favor of defendant on count IV; whether plaintiff should have been awarded the entire contingent fee retained by defendant as compensatory damages; and whether the trial court used the wrong measure of damages in the causes of action against American and the Railroad, and whether granting setoffs was improper. I

We first address the contentions raised in defendant's first argument which were not disposed of in the opinion dismissing the initial appeal. Defendant contends the trial court abused its discretion in denying his motion to dismiss brought pursuant to Supreme Court Rule 103(b) (107 Ill. 2d R. 103(b)). Defendant further asserts the court erred in feeling compelled to grant plaintiff's motion to dismiss voluntarily the complaint against Lascaro (Ill. Rev. Stat. 1987, ch. 110, par. 2-1009), before ruling on defendant's Rule 103(b) motion.

On June 10, 1985, some 10 months after the original complaint was filed, defendant moved to dismiss the complaint against him on the ground plaintiff had failed diligently to serve co-defendant Lascaro. Plaintiff responded by submitting an affidavit of a special process server which stated attempts to locate Lascaro had been unsuccessful. In addition, plaintiff's counsel stated another process server had also failed to locate Lascaro. Counsel further stated he had unsuccessfully searched telephone directories and the post office. The telephone number listed was the number for defendant's law office. Counsel called the number on 25 to 30 occasions from the time the summons was issued up until two days before the hearing and was told on each occasion that Lascaro was not available. He also had another attorney attempt to contact Lascaro by telephone, but he was unsuccessful as well. Defense counsel claimed he was able to contact Lascaro within 15 minutes based on information obtained during defendant's deposition. Although the court was troubled by the sparse factual basis in the affidavit of the special process server, the court denied the motion.

A trial court's ruling on a Rule 103(b) motion to dismiss will not be disturbed absent an abuse of discretion. (Semersky v. West (1988), 166 Ill. App. 3d 637, 642, 520 N.E.2d 71, 74.) Whether a plaintiff has carried its burden of showing reasonable diligence in attempting to serve a defendant depends on several factors which need not be repeated here. (Viking Dodge, Inc. v. Hofmann (1987), 161 Ill. App. 3d 186, 189, 514 N.E.2d 248, 250.) We have reviewed the record, as outlined above, and conclude the trial court did not abuse its discretion in denying defendant's Rule 103(b) motion to dismiss.

As to defendant's assertion that the trial court erred in ruling on plaintiff's section 2 -- 1009 motion to dismiss Lascaro voluntarily prior to ruling on defendant's Rule 103(b) motion to dismiss, we find no reversible error. In O'Connell v. St. Francis Hospital (1986), 112 Ill. 2d 273, 492 N.E.2d 1322, our supreme court determined when a plaintiff relies on a section 2 -- 1009 motion in response to a pending Rule 103(b) motion, the Rule 103(b) motion must be heard on the merits prior to ruling on the section 2 -- 1009 motion. The court reasoned the critical judicial function of administering Justice without delay would be unduly infringed upon if a plaintiff were permitted to avoid the consequences of failing to exercise due diligence in serving process simply by filing a motion to dismiss under section 2 -- 1009. (O'Connell, 112 Ill. 2d at 282-83, 492 N.E.2d at 1326.) The O'Connell decision has retroactive application. (Muskat v. Sternberg (1988), 122 Ill. 2d 47, 49-50, 521 N.E.2d 932, 935-36.) Therefore, the fact the hearing in the present case occurred prior to the O'Connell decision is not dispositive. However, although the court granted plaintiff's motion to dismiss Lascaro prior to considering defendant's Rule 103(b) motion on the merits, plaintiff did not avoid the consequences of failing to exercise due diligence in serving process on Lascaro. Immediately following the granting of the section 2 -- 1009 motion, the court considered and denied defendant's Rule 103(b) motion to dismiss. As stated, our review indicates the court's ruling was not an abuse of discretion. In other words, there was no failure to exercise due diligence in serving process. Under the circumstances of this case, we conclude the technical violation of the ruling in O'Connell does not require reversal. II

Defendant next contends the trial court's summary judgment rulings on counts I, II, and III were improper. In support of their respective contentions in the trial court, both parties placed significant reliance on the testimony contained in the defendant's deposition. The court, in turn, relied in part on the defendant's deposition in reaching its decision to enter summary judgment on counts I and II as to liability and count III as to liability and damages. On appeal, defendant maintains there were questions of fact that precluded summary judgment. However, the record on appeal does not contain a transcript of the defendant's deposition. To determine whether summary judgment was properly entered by the trial court, it is imperative that a court of review be provided with a sufficient record from which to render a decision. (Fitzgerald v. Van Buskirk (1974), 16 Ill. App. 3d 348, 349-50, 306 N.E.2d 76, 77.) The burden of supplying a sufficient record on ...


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