{ "id": 5215663, "name": "CHARLES W. HOTZE, Plaintiff-Appellant, v. NORBERT A. DALEIDEN et al., Defendants-Appellees", "name_abbreviation": "Hotze v. Daleiden", "decision_date": "1992-02-10", "docket_number": "No. 1\u201489\u20143221", "first_page": "301", "last_page": "310", "citations": [ { "type": "official", "cite": "229 Ill. App. 3d 301" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "555 N.E.2d 725", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "198 Ill. App. 3d 51", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2474056 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/198/0051-01" ] }, { "cite": "526 N.E.2d 599", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "172 Ill. App. 3d 364", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5082707 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/172/0364-01" ] }, { "cite": "360 N.E.2d 448", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "45 Ill. App. 3d 947", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2897367 ], "weight": 2, "pin_cites": [ { "page": "949" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/45/0947-01" ] }, { "cite": "464 N.E.2d 818", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "124 Ill. App. 3d 508", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3427971 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/124/0508-01" ] }, { "cite": "548 N.E.2d 811", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "192 Ill. App. 3d 23", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2507019 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/192/0023-01" ] }, { "cite": "532 N.E.2d 493", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "177 Ill. App. 3d 555", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3621676 ], "weight": 2, "pin_cites": [ { "page": "564" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/177/0555-01" ] }, { "cite": "564 N.E.2d 778", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "pin_cites": [ { "page": "780" }, { "page": "780" } ], "opinion_index": 0 }, { "cite": "139 Ill. 2d 229", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5573832 ], "weight": 2, "pin_cites": [ { "page": "233" }, { "page": "234" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/139/0229-01" ] }, { "cite": "545 N.E.2d 184", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "189 Ill. App. 3d 55", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2681772 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/189/0055-01" ] } ], "analysis": { "cardinality": 798, "char_count": 18970, "ocr_confidence": 0.768, "pagerank": { "raw": 1.0902774515546435e-07, "percentile": 0.5654538160332899 }, "sha256": "c4172e3f23fb304d391a9cda44f40c0749fba40ba0f566b8e2bf50ea95d79812", "simhash": "1:86967d786850a4a2", "word_count": 3112 }, "last_updated": "2023-07-14T21:04:36.221708+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "CHARLES W. HOTZE, Plaintiff-Appellant, v. NORBERT A. DALEIDEN et al., Defendants-Appellees." ], "opinions": [ { "text": "JUSTICE CAMPBELL\ndelivered the opinion of the court:\nPlaintiff, Charles W. Hotze, appeals from an order granting summary judgment in favor of defendants Norbert A. Daleiden and the law firms of Hosier, Niro & Daleiden, Ltd., and Niro, Daleiden & Jager, Ltd. (Daleiden or defendants), as to count VI of plaintiff\u2019s seventh amended complaint. On appeal, plaintiff contends that the trial court erred in granting defendant Daleiden\u2019s motion for summary judgment. For the following reasons, the judgment of the trial court is reversed and remanded for further proceedings.\nThe record sets forth the following facts relevant to this appeal. In 1984, plaintiff filed a lawsuit against defendants alleging, inter alia, that the legal fees charged by defendants were excessive and unreasonable. From 1978 through May 1984, plaintiff engaged attorney Daleiden for professional legal services on his behalf and for certain corporations in which plaintiff was a principal shareholder. In his seventh amended complaint, plaintiff alleged that from approximately April 1972 through January 1981 he suffered from pheochromocytoma, a tumor of the adrenal gland, which impaired his physical and mental condition and affected his business judgment and general comprehension. As a result of his diminished mental capacity, plaintiff entered into various business transactions to his detriment. Daleiden instituted several lawsuits on plaintiff\u2019s behalf to recover plaintiff\u2019s losses incurred in these business transactions.\nIn counts I through V, plaintiff alleged that defendants breached the fiduciary duties owed to him. Plaintiff alleged that due to his diminished mental capacity, he was unable to fully understand what legal services were necessary and actually performed by defendants, and that he was prevented from understanding the nature and extent of defendants\u2019 charges and fees for legal services allegedly rendered.\nIn count VI, plaintiff alleged that from April 5, 1973, through May 27, 1983, he engaged the medical services of Dr. Dongsuk Kim for various medical complaints. According to count VI, the tumor on plaintiff\u2019s adrenal gland was not diagnosed until December 25, 1980, and was not removed until January 5,1981.\nPlaintiff alleged that Dr. Kim had mishandled his medical condition and plaintiff wanted a medical malpractice suit filed on his behalf against Dr. Kim. Plaintiff alleged that in November 1982 he met with Daleiden in his office and at that time directed Daleiden to file a lawsuit against Dr. Kim. Daleiden responded that he did not handle medical malpractice lawsuits. Plaintiff alleged that he then specifically directed Daleiden to retain the services of a malpractice attorney and to consult with him on the matter. Plaintiff alleged that he wanted Daleiden to participate in the medical malpractice case against Dr. Kim since plaintiff had paid Daleiden and his firm considerable money and since Daleiden knew the facts of plaintiff\u2019s medical condition.\nPlaintiff alleged that he continued to meet with Daleiden to discuss other legal matters and continued to ask Daleiden if he had found a lawyer to handle the action against Dr. Kim. Plaintiff alleged that Daleiden responded each time that he had not yet found suitable counsel but that he would do so.\nPlaintiff alleged that in September 1983 he again asked Daleiden if counsel had been retained for the malpractice case. Daleiden responded that plaintiff probably did not have grounds for a suit against Dr. Kim and that the statute of limitations had probably expired.\nIn count VI, plaintiff alleged that defendants committed \u201clegal malpractice\u201d by (a) negligently allowing the statute of limitations to run by not obtaining an attorney; (b) failing to refer plaintiff to a medical malpractice attorney when Daleiden knew he did not have the experience to handle medical malpractice cases; and (c) failing to advise plaintiff of the status of his claim.\nDefendants moved for summary judgment on the ground that there is no evidence of an agreement between the plaintiff and Daleiden that Daleiden was to find another attorney to file a lawsuit against Dr. Kim. Defendants contended that without evidence of such an agreement, count VI fails as a cause of action. Defendants argued that both plaintiff\u2019s and Daleiden\u2019s deposition testimony support the conclusion that no agreement existed.\nFollowing a hearing, the trial court entered summary judgment in favor of defendants, concluding that there was no attorney-client relationship between plaintiff and Daleiden as to the medical malpractice suit. In reaching its decision, the trial court noted that according to statements purportedly made by plaintiff in his deposition, plaintiff wanted Daleiden to handle the case. These statements will be discussed below as necessary. Plaintiff appeals from the order granting summary judgment.\nPlaintiff argues that the trial court erred in its application of the law to the facts of the case. Plaintiff contends that the proper focus of the motion was whether or not a disputed issue of material fact exists as to whether an attorney-client relationship existed, not whether an attorney-client relationship existed. Section 2 \u2014 1005(c) of the Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 2 \u2014 1005(c)), which sets forth the requirements for a grant of summary judgment, provides, in relevant part:\n\u201cThe judgment sought shall be rendered without delay if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.\u201d\nDefendants argue that the trial court properly found on summary judgment that no attorney-client relationship existed.\nIn order to survive a motion for summary judgment, the non-moving party must come forward with evidentiary material that establishes a genuine issue of fact. (Salinas v. Chicago Park District (1989), 189 Ill. App. 3d 55, 545 N.E.2d 184.) Nevertheless, because summary judgment is a drastic method of terminating litigation, the movant\u2019s entitlement must be free from doubt. (Logan v. Old Enterprise Farms, Ltd. (1990), 139 Ill. 2d 229, 233, 564 N.E.2d 778, 780.) Accordingly, the court must construe the evidence strictly against the movant and liberally in favor of the nonmoving party. Logan, 139 Ill. 2d at 234, 564 N.E.2d at 780.\nPlaintiff argues that the pleadings, his own deposition testimony and the deposition testimony of Daleiden show disputed issues as to material facts. In support thereof, plaintiff submits quotations from his deposition testimony and the deposition testimony of Daleiden as the testimony appeared summarized in defendants\u2019 motion and plaintiff\u2019s response. Plaintiff failed, however, to include in the record on appeal either complete transcripts of the depositions referenced or any actual deposition excerpts. The record also indicates that the parties failed to provide the trial court with the complete deposition transcripts for consideration on the motion for summary judgment.\nIt is the duty of the appellant to present a complete record on appeal so the reviewing court will be fully informed regarding the issues in the case. (International Amphitheatre Co. v. Vanguard Underwriters Insurance Co. (1988), 177 Ill. App. 3d 555, 532 N.E.2d 493.) A reviewing court will not consider matters which are not contained in the record. (Vanguard, 177 Ill. App. 3d at 564.) While it is required that this court take the deposition testimony in its entirety (Riley v. Physicians Weight Loss Centers, Inc. (1989), 192 Ill. App. 3d 23, 548 N.E.2d 811), as the record does not show that the parties objected to the procedure of submitting merely quoted portions of testimony, and as the testimony summaries presented in plaintiff\u2019s response are not inconsistent with the testimony summaries presented in defendants\u2019 motion, this court may accept and consider for purposes of review the facts set forth therein. See Murphy v. Chestnut Mountain Lodge, Inc. (1984), 124 Ill. App. 3d 508, 464 N.E.2d 818.\nPlaintiff argues that the facts, as shown through the following deposition excerpts, reveal he met with Daleiden and asked him to handle the medical malpractice case:\n\u201cQ. Do you recall \u2014 I am now asking about 1982. Do you recall the dates or times of any meetings with Mr. Daleiden in 1982 where the subject of Dr. Kim was discussed?\nA. Yes.\nQ. Please relate for me.\nA. In November, either before or after Thanksgiving, I asked Norb to file a suit against Dr. Kim and I believe at that time he told me that he didn\u2019t handle that type of litigation. And I believe my answer to that was he is handling these cases and that if he did not handle it, get somebody who would and he said he would.\n* * *\nQ. Can you tell us where this conversation took place?\nA. In his office.\nQ. Was anyone else present?\nA. No.\u201d\nDefendants respond that the dates upon which the parties discussed the possible filing of a lawsuit against Dr. Kim are irrelevant to the determination as to whether an attorney-client relationship had been created.\nThe situation in the present case is distinguishable from Mid States Vending Service, Inc. v. C.A.P., Inc. (1977), 45 Ill. App. 3d 947, 360 N.E.2d 448, relied on by defendants. In Mid States Vending, defendant failed to pay on a promissory note. Plaintiff filed a complaint and received a judgment in his favor. Defendant\u2019s pleaded defense to the confirmation of judgment was that the loan arose out of an illegal contract between the parties, and he was therefore not obligated to pay. Subsequently, summary judgment was granted in plaintiff\u2019s favor and defendant appealed on the same grounds.\nOn appeal, the reviewing court found there was no material factual issue as to the debt due, which was the subject matter of plaintiff\u2019s cause of action, because on its face, the promissory note was silent as to any contract between the parties. The court held that \u201c[fjacts unrelated to the essential elements of the plaintiff\u2019s cause of action are immaterial and regardless of how sharply controverted, their presence in the record will not warrant denial of a motion for summary judgment.\u201d (45 Ill. App. 3d at 949.) By contrast, in the present case, at issue is whether a material question of fact exists as to whether an attorney-client relationship was created between the parties. The meetings between the parties, the dates of these meetings, and the subject matter discussed during these meetings are facts directly relating to the essential element of defendants\u2019 motion: whether an attorney-client relationship was created between the plaintiff and Daleiden.\nPlaintiff argues that an attorney-client relationship is further evidenced by the following deposition excerpts:\n\u201cQ. Mr. Hotze, did you ask Mr. Daleiden to sue Dr. Kim or did you ask Mr. Daleiden to refer you to somebody to sue Dr. Kim?\nA. I asked him to handle it because he was handling everything else and he knew the whole picture.\n* * *\nA. I expected him to handle it. I didn\u2019t want to deal with another attorney. He knew from our numerous conversations what the problem was. I couldn\u2019t see the amount of money I was paying that I should have to go to another attorney to initiate another lawsuit all by myself. It tied in with what we were trying to prove in my mind. I\u2019m not a lawyer.\n* * *\nQ. Did you tell Norb that you did not want your contemplated malpractice claim given to another attorney because he was handling everything else for you?\nA. No.\nQ. You never told him that?\nA. I wanted \u2014 if he had to get another attorney, I wanted him to handle the whole thing through the attorney because their firm did not handle medical malpractice suits.\nQ. You wanted him to handle the whole thing through what attorney?\nA. Through Mr. Daleiden. In other words\u2014\nQ. Go ahead.\nA. I wanted Mr. Daleiden to handle it; get the attorney upon [sic] whom we had spoken of before, that he would have to get an outside consultant, whatever you call it.\n* * *\nQ. So in other words, you asked Norb to handle your malpractice claim against Dr. Kim?\nA. With the understanding that he would have a consultant because they didn\u2019t handle those cases. In other words, I wanted Norb to handle the whole thing because he was handling anything I had anyway with the exception of a few minor things.\nQ. You made that request of Norb, is that correct?\nA. That\u2019s right.\nQ. Then what did Norb say to you?\nA. He said he would do it.\nQ. He said he would accept your request?\nA. It\u2019s a question of interpretation. He said he would do it.\nQ. Do you recall what he specifically said to you?\nA. Just that. That, okay, he would do it.\nQ. Do what though?\nA. My interpretation, go outside, get an expert on this thing, direct him, the expert, what to do and just do it.\nQ. You wanted Norb to direct the expert what to do?\nA. Well, yes, give him the assignment.\nQ. So then did you want Norb to make a telephone call to another attorney who specialized in medical malpractice to handle your possible claim against Dr. Kim?\nA. I do not know what Norb would have done. I wanted him to handle the case and he said he would get somebody. He would have to get an outside consultant.\u201d\nIn addition, an affidavit attached to plaintiff\u2019s response states that he asked Daleiden to \u201cobtain the services of a lawyer\u201d who handled medical malpractice litigation, and that Daleiden \u201csaid he would obtain the medical malpractice lawyer.\u201d Plaintiff contends that his testimony above, and his affidavit, combined with the following excerpts of Daleiden\u2019s deposition testimony, show that an attorney-client relationship existed, and therefore, a genuine issue of fact remains:\n\u201cQ. Did you discourage [Hotze] with respect to a potential lawsuit against Dr. Kim based solely upon your seeing Dr. Kim as a potential favorable witness on the issue of diminished capacity, mentally and physically?\nA. Not solely.\nQ. For what other reasons did you dissuade or discourage Mr. Hotze from pursuing the malpractice case?\nA. I am not certain that I persuaded him or dissuaded him not to file against Dr. Kim. My whole feeling about it was I didn\u2019t know anything about the medical malpractice area. If he wanted to talk to somebody in that area, I would refer them to him. If he wanted to talk to a medical malpractice specialist, perhaps other things would have come out from those discussions, but he didn\u2019t want to.\nQ. Did he say he did not want to pursue or investigate a claim against Dr. Kim?\nA. Well, he talked about it, but never wanted to know who to go to. Starting, as I said in the summer of \u201983 and then maybe a couple follow-ups [sic] during \u201983, he wasn\u2019t ready. He didn\u2019t want to go to a medical malpractice specialist.\u201d\nDefendants argue that Daleiden submitted an affidavit which stated that \u201cAt no time *** did Hotze tell me that he wanted to talk to an attorney specializing in medical malpractice.\u201d Defendants contend that Daleiden\u2019s affidavit and all of the above deposition testimony clearly support the conclusion that there was no attorney-client relationship between Daleiden and the plaintiff.\nThe trial court examined the above deposition excerpts and affidavits in considering defendant\u2019s summary judgment motion. The trial court then addressed whether Daleiden agreed to \u201cget or secure the services of another lawyer for Mr. Hotze.\u201d\nThe trial court concluded that no attorney-client relationship was created between the parties as to the medical malpractice suit, stating:\n\u201cTHE COURT: Well, there seems to be no clear evidence that he [Hotze] said: \u2018Will you get a lawyer for me to handle this matter?\u2019 and he [Daleiden] said: \u2018Yes, I will.\u2019 That is what is lacking here.\n* * *\nThere was the: T would like for you to handle it.\u2019 \u2018But my firm doesn\u2019t handle this kind of case.\u2019 Apparently, and now we are speculating, that he wanted him to get someone whom he would supervise.\u201d\nOur review of the record indicates that plaintiff presented evidence which creates an issue as to whether Daleiden agreed to obtain an attorney for plaintiff\u2019s proposed medical malpractice claim against Dr. Kim. In light of the contradictory evidence presented in deposition testimony and affidavits, the trial court erred in granting summary judgment in favor of defendants as to count VI. The trial court stated that there was \u201cno clear evidence\u201d that Daleiden agreed to obtain an attorney for plaintiff. Summary judgment should be granted cautiously so that the opponent\u2019s right to trial is not usurped in the presence of conflicting facts and inferences. (Diamond Headache Clinic, Ltd. v. Loeber Motors, Inc. (1988), 172 Ill. App. 3d 364, 526 N.E.2d 599.) Whether Daleiden agreed to obtain an attorney for plaintiff is a question of fact, not properly decided on a summary judgment motion.\nDefendants further urge that an exhibit to the summary judgment motion contains a judicial admission by plaintiff that he did not intend to sue Dr. Kim. Defendants attach Daleiden\u2019s letter to plaintiff of May 8, 1984, in which Daleiden advised plaintiff that he was not aware until May 7, 1984, that plaintiff was determined to sue Dr. Kim. Defendants contend that the words, \u201cWho said I had?\u201d written by plaintiff on the face of the letter constitute a judicial admission. Plaintiff counters that he was distressed when he wrote the comment on the letter and intended to write \u201cWho said I hadn\u2019t[?]\u201d\nDefendants admit that the trial court did not expressly hold that the exhibit was a judicial admission. Where the record fails to show that a matter urged on appeal was decided by the trial court, the issue is not properly preserved for review. (Morris v. Illinois State Board of Education (1990), 198 Ill. App. 3d 51, 555 N.E.2d 725.)\nFor the aforementioned reasons, the judgment is reversed and remanded for further proceedings.\nReversed and remanded, as modified.\nO\u2019CONNOR and MANNING, JJ., concur.\nOn January 31, 1989, defendants filed a motion for summary judgment in response to count IV of plaintiff\u2019s sixth amended complaint. On February 14, 1989, plaintiff filed his seventh amended complaint, wherein count IV of the sixth amended complaint reappeared renumbered as count VI. Defendants\u2019 summary judgment motion was granted as to count VI of the seventh amended complaint and is the subject of this appeal.", "type": "majority", "author": "JUSTICE CAMPBELL" } ], "attorneys": [ "Robert W. Karr & Associates, Ltd., and David A. Novoselsky & Associates, both of Chicago (David A. Novoselsky, of counsel), for appellant.", "Arnstein & Lehr, of Chicago (Arthur L. Klein and Richard K. Hellerman, of counsel), for appellee Norbert A. Daleiden.", "Johnson & Bell, Ltd., of Chicago (Thomas H. Fegan, William V. Johnson, Robert L. Nora, and Charles P. Rantis, of counsel), for other appellees." ], "corrections": "", "head_matter": "CHARLES W. HOTZE, Plaintiff-Appellant, v. NORBERT A. DALEIDEN et al., Defendants-Appellees.\nFirst District (1st Division)\nNo. 1\u201489\u20143221\nOpinion filed February 10, 1992.\nModified on denial of rehearing June 1,1992.\nRobert W. Karr & Associates, Ltd., and David A. Novoselsky & Associates, both of Chicago (David A. Novoselsky, of counsel), for appellant.\nArnstein & Lehr, of Chicago (Arthur L. Klein and Richard K. Hellerman, of counsel), for appellee Norbert A. Daleiden.\nJohnson & Bell, Ltd., of Chicago (Thomas H. Fegan, William V. Johnson, Robert L. Nora, and Charles P. Rantis, of counsel), for other appellees." }, "file_name": "0301-01", "first_page_order": 323, "last_page_order": 332 }