Court of Appeals of Illinois, First District, Fourth Division
KENNETH A. NELSON, Plaintiff-Appellant,
QUARLES AND BRADY, LLP, Defendant-Appellee.
Appeal from the Circuit Court of Cook County No. 11 L 2107 Honorable Jeffrey Lawrence, Judge Presiding.
JUSTICE EPSTEIN delivered the judgment of the court, with opinion. Presiding Justice Howse and Justice Lavin concurred in the judgment and opinion.
¶ 1 This case involves an action for legal malpractice filed by plaintiff Kenneth A. Nelson against defendant Quarles & Brady, LLP, the law firm that represented him in a federal action involving a dispute concerning the terms of a stock purchase agreement between plaintiff and his former business partner, Richard Curia. Plaintiff filed this appeal after the circuit court dismissed his third amended complaint with prejudice pursuant to section 2-615 of the Code of Civil Procedure (735 ILCS 2-615 (West 2010)) for failing to state a cause of action. For the reasons that follow, we reverse and remand.
¶ 2 BACKGROUND
¶ 3 For purposes of our review of the ruling on defendant's motion to dismiss, where the legal sufficiency of the complaint has been attacked, we accept as true the allegations in plaintiff's third amended complaint. See Imperial Apparel, Ltd. v. Cosmo's Designer Direct, Inc., 227 Ill.2d 381, 384 (2008); River Park, Inc. v. City of Highland Park, 184 Ill.2d 290, 293 (1998). We also interpret the allegations in the light most favorable to plaintiff. Imperial Apparel, Ltd., 227 Ill.2d at 384.
¶ 4 Underlying Contractual Dispute Between Plaintiff and Richard Curia
¶ 5 According to the allegations of plaintiff's third amended complaint, he was the beneficial owner of a majority of shares in two corporations that owned two car dealerships, Ken Nelson AutoPlaza, Inc. (AutoPlaza), and Ken Nelson AutoMall, Inc. (AutoMall). A dispute arose between plaintiff and Richard Curia, with whom plaintiff had contracts that included a written 1989 stock purchase agreement, a written 1993 modification agreement, and an oral 2004 agreement. The dispute involved Curia's attempt to exercise certain options in the 1989 agreement. Curia claimed it entitled him to purchase shares in the two car dealerships, which would force plaintiff to sell his majority interests in the dealerships and the land upon which they were situated. Plaintiff claimed that the 1989 agreement was inoperative and unenforceable. Specifically, plaintiff alleged that, within a month of its execution, both he and Curia "embarked on a course of conduct over a period of years that materially departed from the terms of the 1989 [agreement] in deed and words, all of which made it impossible for the three 1989 [agreement's] options to be exercised in accordance with their terms."
¶ 6 The 1989 agreement was attached to plaintiff's complaint. As plaintiff notes, the agreement recited that plaintiff was the sole owner of all of the outstanding shares of capital stock in the dealerships, and that, as of that date, AutoPlaza had 8, 180 shares, and AutoMall had 1, 200 shares. The 1989 agreement provided that plaintiff agreed "to sell, assign, transfer, and convey to [Curia] all right, title and interest in and to 1000 shares of capital stock in [AutoPlaza] and 144 shares of capital stock in [AutoMall]." The purchase price was $100, 000 and the closing date was to be on or before February 15, 1989. Plaintiff notes that this would have resulted in plaintiff retaining 7, 180 shares of Plaza stock and 1, 056 shares of Mall stock.
¶ 7 The 1989 agreement also gave Curia a series of three additional, successive options to purchase the remaining shares. Specifically, paragraph 4 provided that Curia had an initial option to purchase an additional 1, 000 shares of capital stock in AutoPlaza and 144 shares of capital stock in AutoMall for an additional $100, 000. Plaintiff notes that this would have resulted in plaintiff retaining 6, 180 shares of Plaza stock and 912 shares of Mall stock, while Curia would have owned 2, 000 shares of Plaza stock and 288 shares of Mall stock. After exercising this initial option, Curia could exercise the next option.
¶ 8 The second option provided that Curia could "purchase from [plaintiff] an additional 2, 009 shares of capital stock of [AutoPlaza] and 300 shares of capital stock in [AutoMall] which shares with previous purchased shares would represent 49% of the issued and outstanding shares of capital stock in said corporations." The purchase price for these shares was to be based on a defined valuation formula and was to "be determined by adding to the total net worth of each corporation a sum representing fifty (50) per cent of the total accumulated depreciation and including the 'LIFO' (last in first out) reserve plus twenty (20) per cent of the total 'LIFO' reserve and dividing the total sum thereof by the number of shares in each corporation." This formula required reference to the monthly operating reports issued by General Motors Corporation and Nissan Motor Corporation.
¶ 9 As to the third and final option, paragraph 4 stated: "After exercising the first two options to purchase as provided in this Agreement, [Curia] shall have a third option to purchase from [plaintiff] the remaining 4, 171 shares of stock in [AutoPlaza] and 612 shares of stock in [AutoMall], provided that [Curia] also offer to purchase the land and four buildings of [AutoPlaza]." The purchase price of the shares, similar to that of the shares described in the second option, was to be based on a valuation formula. The purchase price of the land and the buildings was to be determined by an appraiser.
¶ 10 The 1989 agreement required Curia to provide notice in writing of his election to exercise each option. The contract also required that he make a lump-sum cash payment to plaintiff of the amount required under the formula 60 days after notice was sent.
¶ 11 Curia subsequently did not pay the initial $100, 000 for 1, 000 shares of AutoPlaza and 144 shares of AutoMall. Instead, at some point (the complaint contains no date), Curia paid $200, 000. Apparently, at some point (the complaint contains no date), "each corporation was recapitalized such that thereafter [plaintiff] owned 8, 000 shares of [AutoPlaza] (instead of 7, 180 as specified in the 1989 [agreement]), and 1, 200 shares of [AutoMall] (versus 932 specified in the 1989 [agreement])." Curia then "owned 2, 000 shares of [AutoPlaza] (versus 1, 000 specified in the 1989 [agreement]) and 300 shares of [AutoMall] (versus 288 specified in the 1989 [agreement]).
¶ 12 In 1993, plaintiff and Curia executed a modification agreement (the 1993 Modification Agreement), which was also attached to plaintiff's complaint. The agreement recited, in part, that "a mutual mistake was made by [plaintiff] and Curia in determining the fair market value of the capital stock of said corporations and in evaluating the minority interest in said corporations which were intended to be sold by [plaintiff] and purchased by Curia pursuant to paragraph 1 and paragraph 4 of [the 1989 agreement]." The 1993 Modification Agreement further altered the number of shares issued and outstanding and the amounts owned by each which, plaintiff alleges, underscored "the impossibility of transferring the number of shares specified in the 1989 [agreement] options."
¶ 13 Plaintiff alleges that, in the 1993 Modification Agreement, he and Curia "agreed that the corporations would authorize and issue additional stock so that Curia, without the payment of additional monies, would approximately double his ownership interest in each corporation." Pursuant to this agreement, Curia obtained an additional 5, 306 shares in AutoPlaza (which increased his ownership interest to 47.7%) and an additional 480 shares in AutoMall (which increased his ownership interest to 43.3%).
¶ 14 The 1993 Modification Agreement also contained a paragraph 5, entitled "Purchase of Additional Shares, " which stated:
"Curia shall have the right to purchase additional shares of stock in said corporations upon those terms and conditions subsequently agreed upon by the parties hereto. The purchase price for said additional shares of stock shall be determined by adding to the total net worth of each corporation a figure representing the accumulated 'LIFO' (last in first out) reserve and dividing the total sum thereof by the number of shares of each corporation."
Plaintiff alleges that the effect of this paragraph was that "any future purchase of shares by Curia after 1989 could not be taken pursuant to the 1989 [agreement] because exercise of the 1989 options was no longer possible because both the substantial changes in the number of shares issued and outstanding in each corporation and the substantial changes in the number of shares owned by [plaintiff] and Curia were completely different from and inconsistent with the 1989 [agreement]." Plaintiff further alleges: "Because pursuant to the 1993 Modification, Curia received substantial additional shares in each corporation without paying any additional monies, as a matter of law and fact, after the 1993 Modification, the 1989 [agreement's] Options were completely inoperative and incapable of being exercised in accordance with their own terms." As an example, plaintiff notes that if Curia had demanded plaintiff sell him 2, 009 shares in AutoPlaza – pursuant to the second option in the 1989 agreement – that sale would have resulted in Curia owning more than 49% of AutoPlaza. This result, plaintiff contends, would have made Curia a majority owner and was "clearly contrary to the terms of the option." Plaintiff further states: "Likewise, if, in order to avoid becoming a majority owner, Curia offered to purchase less than the 2, 009 shares required under the 1989 [agreement's] Second Option, this would have been contrary to the express terms of the option language and ths would have rendered such an exercise inoperative."
¶ 15 In 2004, plaintiff and Curia began discussing plaintiff's selling all of his remaining stock so that Curia would own 100% of both corporations. According to plaintiff, in July 2004, they entered into an oral agreement that Curia would purchase all of plaintiff's remaining stock for $4.2 million. Plaintiff and Curia agreed that a closing would take place prior to December 31, 2004. They also agreed to, and did, undertake several actions to implement the agreement which included: (1) obtaining corporate resolutions from both boards to accept the oral agreement; (2) Curia applying for, and receiving, a loan commitment from Fifth Third Bank for $4.2 million to buy out plaintiff's remaining ownership interest; and (3) plaintiff's writing letters to the various automobile manufacturers, as required by the dealerships' franchise agreements, informing them of the corporate resolutions and seeking approval for the transfer of ownership.
¶ 16 Subsequently, although plaintiff was ready, willing and able to complete the sale, Curia failed to tender the $4.2 million and refused to perform. Instead, on March 2, 2005, Curia sent a "Notice of Exercise of Option" informing plaintiff that he was exercising the second option under the 1989 agreement. By doing so, Curia was attempting to acquire all of plaintiff's remaining shares for far less that the $4.2 million that the 2004 Oral Agreement required. Curia stated that he had "previously exercised [his] first option, " referring to the $200, 000 payment he had already made. Curia offered to purchase and pay for 193 shares of AutoPlaza stock and 170 shares of AutoMall stock. However, as plaintiff notes, the second option in the 1989 agreement required Curia to purchase and pay for 2, 009 shares in AutoPlaza and 300 shares in AutoMall.
¶ 17 On March 3, 2005, Curia sent plaintiff a second notice seeking to exercise the third option of the 1989 agreement. He did not seek to purchase the number of shares delineated in the agreement but did seek to purchase all of plaintiff's remaining shares, the land, and the buildings as set forth in the third option. Plaintiff's position was that Curia's attempts were ineffective because the 1989 agreement's options were no longer operative, and that Curia breached the 2004 oral agreement.
¶ 18 Plaintiff's Legal Malpractice Action Against Defendant
¶ 19 On or about March 9, 2005, plaintiff retained defendant to represent him in this dispute with Curia to, among other things, protect his stock ownership interests in the dealerships, enforce plaintiff's contractual rights, and prevent Curia from attempting to enforce Curia's purported rights. Shortly after plaintiff retained defendant, it filed a declaratory judgment action in federal court against Curia seeking to have the court declare that Curia could not exercise the options in the 1989 Agreement. Curia then initiated a separate action against plaintiff in the same court seeking, among other things, specific performance of the 1989 agreement to force plaintiff to sell all of his shares in the dealerships.
¶ 20 On February 6, 2006, the district court entered partial summary judgment in Curia's favor, holding that he could exercise the options in the 1989 agreement. On June 27, 2007, the district court entered an additional partial summary judgment in Curia's favor, ordering plaintiff to sell all of his remaining shares in AutoPlaza to Curia. On July 13, 2007, defendant filed a motion to stay the June 27, 2007 order. Defendant did not recommend that plaintiff post a bond pending appeal. On July 18, 2007, defendant filed a notice of appeal of the decisions in Curia's favor. On August 10, 2007, the district court denied the motion to stay. On September 5, 2007, defendant filed a motion to stay the district court's order and, again, did not offer to post a bond. The Seventh Circuit denied the motion to stay.
¶ 21 While the appeal was pending in the Seventh Circuit, pursuant to the district court orders, plaintiff was forced to, and did, sell all of his remaining shares to Curia on or about April 30, 2008. Plaintiff then discharged defendant and hired new counsel to represent him in his appeal. On June 3, 2008, the court granted plaintiff's motion for substitution of attorney. On November 20, 2009, the Seventh Circuit, sua sponte, decided that the contract was ambiguous, reversed the district court's judgment, and remanded the case.
¶ 22 During the 1½ years between the time Curia obtained plaintiff's shares on April 30, 2008, and the Seventh Circuit's decision, Curia had obtained substantial loans and encumbered AutoPlaza's assets by using them as security for the loans. Plaintiff alleges that, as a result, Curia materially and negatively impaired AutoPlaza's assets and there was no practical means for plaintiff to undo the sale of his shares to Curia. Plaintiff settled with Curia to minimize his continued losses and was unable to regain his majority ownership of AutoPlaza.
¶ 23 Plaintiff filed the instant legal malpractice action against defendant, alleging that, during the course of representing him, defendant breached its duties to him in that it "either negligently and carelessly omitted and failed to perform, or negligently and carelessly performed, certain services." Plaintiff further alleged that defendant's "negligent and careless conduct included but is not limited to the complete failure to assert a meritorious cause of action against Curia on [plaintiff's] behalf and the complete failure to assert meritorious defenses to Curia's alleged causes of action."
¶ 24 Plaintiff subsequently amended his complaint. After a hearing, the trial court dismissed plaintiff's second amended complaint for failure to state a cause of action. Plaintiff then filed a motion to reconsider or, in the alternative, for leave to file a third amended complaint. Plaintiff incorporated into the third amended complaint the affidavit of a legal malpractice expert, Edward T. Joyce, a Chicago attorney with over 45 years of experience in complex commercial litigation.
¶ 25 On October 17, 2012, after a hearing, the trial court allowed plaintiff's motion to reconsider and allowed him to file a third amended complaint, which the court dismissed. The court decided, as a matter of law, that defendant's actions constituted nonactionable ...