Illinois Official Reports 

Appellate Court

Tebbens v. Levin & Conde, 2018 IL App (1st) 170777

Appellate Court 

Caption

ROBERT TEBBENS, Plaintiff-Appellant, v. LEVIN & CONDE, 

JOEL L. LEVIN, JEAN CONDE, and KATHLEEN N. GRIFFIN, 

Defendants-Appellees. 

District & No. First District, Third Division

Docket No. 1-17-0777

Rule 23 order filed

Motion to publish

allowed

Opinion filed

March 21, 2018

April 10, 2018

April 25, 2018

Decision Under 

Review

Appeal from the Circuit Court of Cook County, No. 2014-L-11339; 

the Hon. John Ehrlich, Judge, presiding.

Judgment Affirmed.

Counsel on

Appeal

Michael G. DiDomenico, of Lake Toback DiDomenico, of Chicago, 

for appellant.

Rebecca M. Rothmann and Brian C. Padove, of Wilson Elser 

Moskowitz Edelman & Dicker LLP, of Chicago, for appellees Levin 

& Conde and Joel L. Levin.

Newton C. Marshall, Edward F. Dunne, and Michelle M. Blum, of 

Karbal, Cohen, Economou, Silk & Dunne, LLC, of Chicago, for other 

appellees.
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Panel JUSTICE FITZGERALD SMITH delivered the judgment of the court, 

with opinion.

Presiding Justice Cobbs and Justice Howse concurred in the judgment 

and opinion.

 OPINION 

¶ 1 Plaintiff-appellant Robert Tebbens appeals from the grant of defendants-appellees Levin & 

Conde, Joel L. Levin, Jean Conde, and Kathleen N. Griffin’s motion to dismiss pursuant to 

sections 2-615 and 2-619 of the Code of Civil Procedure (Code) (735 ILCS 5/2-615, 2-619 

(West 2014)), dismissing with prejudice Robert’s lawsuit alleging legal malpractice against 

defendants, who served as his legal counsel during the dissolution of his marriage against Julie 

Tebbens. In that malpractice action, Robert claimed that his former counsel failed to submit to 

the trial court a marital settlement agreement (MSA) that accurately reflected the parties’ intent 

regarding the division of Robert’s pension plan between himself and Julie. On appeal, Robert 

contends that the trial court erred in finding his claims were barred by the doctrine of 

res judicata. For the following reasons, we affirm. 

¶ 2 I. BACKGROUND 

¶ 3 Robert filed his complaint against defendants in October 2014. By this complaint, Robert 

asserted claims for legal malpractice and breach of contract against all defendants (the 

malpractice case). Thereafter, the malpractice case was stayed due to Robert’s pending appeal 

in his underlying dissolution of marriage proceeding (the divorce case). 

¶ 4 Meanwhile, the underlying divorce case was appealed to this court. In re Marriage of 

Tebbens, 2015 IL App (1st) 140566-U. Our decision in that cause fully lays out the facts, 

which we recite here in relevant part. Robert and Julie were married in 1995 and filed for 

dissolution of marriage in 2009. Both parties were represented by counsel during dissolution 

proceedings. 

¶ 5 In brief, the trial court entered a judgment for dissolution of marriage in October 2012, 

incorporating a MSA into the judgment for dissolution. In part, the MSA divided the parties’ 

retirement accounts and pension plans. Thereafter, the pension administrator requested an 

order that reflected a specific dollar amount for Julie’s distribution, rather than the percentage 

formula that was set out in the MSA. By this time, Robert was represented by new counsel. 

Eventually, the trial court modified the MSA over Robert’s objection. Robert appealed this 

modification, and on appeal, this court enforced the MSA language upon which the parties had 

originally agreed, holding that Robert was entitled to the entry of an order clarifying the dollar 

value of Julie’s share of the pension as Robert had originally requested. 

¶ 6 In more detail, specific to the divorce appeal, Robert challenged the trial court’s entry of a 

Qualified Illinois Domestic Relations Order (QILDRO) by the circuit court, which apparently 

divided the pension percentage-wise in such a way that Julie took more than the parties had 

agreed upon. In April 2015, we reversed in part, vacated in part, and remanded with directions. 

In that cause, we recited the following facts, which are pertinent to the present appeal: 
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“In December 2009, Robert initiated the instant dissolution proceedings. The trial 

court entered a judgment for dissolution of marriage on October 31, 2012. Both parties 

were represented by counsel during dissolution proceedings. A marital settlement 

agreement (MSA) was incorporated into the judgment for dissolution. Amongst other 

things, the MSA divided the parties’ retirement accounts and pension plans:

 * * *

Regarding Robert’s pension from the Chicago Fire Department, the MSA provides:

‘7.5 ROBERT’s interest in the Fireman’s Annuity Fund shall be allocated 

between the parties as follows: 

 a. To JULIE, a sum equal to fifty percent (50%) of the marital value of 

ROBERT’s vested accrued benefit under the Fireman’s Annuity Fund.

 b. To ROBERT, the remaining balance of his vested accrued benefit under 

the Fireman’s Annuity Fund including all sums not otherwise allocated to the 

Wife, and all contributions on or after November 1, 2012. 

 The foregoing allocations to JULIE shall be implemented pursuant to the terms of a 

Qualified Illinois Domestic Relations Order (QILDRO).’

 Other retirement accounts were also divided: 

 ***

In November 2012, Robert filed a ‘motion to amend, or in the alternative, to vacate 

judgment for dissolution of marriage.’ Through this motion, Robert argued, in 

pertinent part, that paragraph 7.5 should be amended, as it did not conform to the 

parties’ true agreement. Specifically, Robert alleged the paragraph as submitted during 

negotiations read: 

‘[Draft] 7.5 ROBERT’s interest in the Fireman’s Annuity Fund shall be 

allocated between the parties as follows: 

 a. To JULIE, a sum equal to fifty percent (50%) of the marital value of 

ROBERT’s vested accrued benefit under the Fireman’s Annuity Fund, valued 

as of __________, 2012. 

 b. To ROBERT, the remaining balance of his vested accrued benefit under 

the Fireman’s Annuity Fund including all sums not otherwise allocated to the 

Wife, and all contributions and accruals to his vested accrued benefit on or after 

_________, ____.’

 The court entered a ruling on the motion on December 21, 2012, stating, in relevant 

part: 

‘Over Robert’s objection, Paragraph 7.5a of the Marital Settlement Agreement 

shall be modified to: 

“2. To JULIE, a sum equal to fifty percent (50%) of the marital value (8-26-95 

to 10-31-12) of ROBERT’s vested accrued benefit under the Fireman’s Annuity 

Fund, and all accruals to her portion after November 1, 2012.” ’ 

 3. By Agreement, Paragraph 7.5b of the Marital Settlement Agreement shall be 

modified to: 
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“To ROBERT, the remaining balance of his vested accrued benefit under the 

Fireman’s Annuity Fund including all sums not otherwise allocated to the wife, 

and all contributions and accruals to his portion after November 1, 2012.” ’

 On January 18, 2013, Robert filed a motion to clarify both the October 31, 2012 

judgment, and the December 21, 2012 order, asking the court to clarify these ‘to 

conform same to the parties’ agreement.’ In support, Robert recounted that while 

Paragraph 7.5 of the MSA awarded Julie 50% of the marital portion of his vested, 

accrued benefit under the Fireman’s Annuity Fund, and awarded Robert all remaining 

benefits and interest, that paragraph stated a percentage amount rather than a dollar 

amount for Julie. According to Robert, this percentage amount was insufficient for the 

Firemen’s Annuity Fund and Benefit Fund of Chicago to divide the asset as agreed 

upon by the parties. In support, Robert relied on a letter dated November 30, 2012, 

from the Fireman’s Annuity Fund. That letter states:

‘In response to your recent request, we quote the following figures: 

 Based on our accountants review of your pension records we estimate that as of 

November 1, 2012 you would be entitled to a monthly annuity in the amount of 

$1,201.21 payable at age 50 with monthly annuity payments continuing for your 

lifetime.

 This calculation is made pursuant to ILCS 5/6-126, and is based on your years 

of pensionable service credit at 17.93 years from your date of hire on December 1, 

1994 through November 1, 2012 and total contributions made to the Fund during 

that period.’

 Because Robert and Julie were married August 26, 1995, argued Robert, his 

pre-marital service credits from December 1, 1994, through September 25, 1995, are 

his non-marital property. Thus, Robert submitted, it was the intent of the MSA that 

Julie should receive 50% of a monthly annuity of an amount less than the $1,201 

amount, but rather should receive 50% $1,201 minus the credit for his premarital 

service. However, because of the ‘mechanics’ of a QILDRO and because a percentage 

order (rather than a dollar amount order) was entered, Julie ‘will not only receive the 

monies stated above, but also [ ] any increases in the pension earned by Robert through 

his post-divorce, non-marital efforts, including without limitation, promotions, salary 

raises, and the like.’ 

The record on appeal also contains a document entitled ‘Firemen’s Annuity and 

Benefit Fund of Chicago QILDRO Benefit Estimate Statement’ dated November 1, 

2012, reflecting Robert’s ‘Monthly Retirement Benefit as of last available payroll’ as 

$1,201.

 In her response, Julie admitted that service credits earned by Robert prior to the 

marriage would be considered Robert’s non-marital asset. Julie generally denied all 

other allegations or alleged she had insufficient information to provide an answer. She 

also stated: 

‘JULIE further states that pursuant to the terms of the Judgment, the division of 

ROBERT’s pension will be effectuated by entry of a QILDRO. JULIE stipulates 

that any QILDRO entered in this matter with respect to ROBERT’s pension shall 

be in conformity with the stated requirements of the Fireman’s Annuity Fund.’ 
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Julie then filed her ‘memorandum in support of response to motion to clarify’ in 

which she argued that Robert’s motion to clarify was actually seeking a modification of 

the judgment and was therefore barred by res judicata. In the alternative, Julie also 

asked the court to apply the Hunt formula, as set forth in In re Marriage of Hunt, 78 Ill. 

App. 3d 653 (1979), to the pension division. 

 Robert then filed his ‘motion to strike, or in the alternative, response to 

memorandum in support of response to motion to clarify.’ The motion contained two 

counts: Count I, a motion to strike; and Count II, a motion to clarify. By Count I, 

Robert asked that Julie’s memorandum be stricken, alleging she filed it late and 

without leave of court. Additionally, Robert argued that Julie could not now seek to 

have the pension divided under the Hunt formula. By Count II, Robert argued that res 

judicata did not bar his clarification motion because he was ‘not seek[ing] to amend, 

modify, vacate or otherwise change the substance of the Judgment or December 21, 

2012 order, but rather to clarify the orders for the purpose of the preparation and entry 

of a [QILDRO].’ Additionally, he argued that ‘through no fault of the parties, the 

Fireman’s Annuity Fund is unable to give effect to the intention of the parties with the 

current [percentage] language of the Judgment, and therefore the Judgment must be 

clarified to include a dollar amount.’ He specified: 

‘Robert is not trying to amend or vacate the Judgment, but to clarify the 

December 21, 2012 order. Robert does not dispute that Julie is entitled to 50% of 

his pension plan as of October 31, 2012, and does not seek to change this fact. 

However, in order for Julie to receive 50% of his pension plan as of October 31, 

2012, that number must be reduced to a dollar amount. There exists no other way to 

accomplish the mandate of the orders. Robert further does not dispute that Julie is 

entitled to accruals to her portion of the plan, i.e. cost of living increases. However, 

she is not entitled to accruals to Robert’s portion of the plan, as those accruals are 

and will be due to Robert’s post-marital efforts. This is not an attempt at a second 

bit [sic] of the apple, but an attempt to effectuate the language contained in the 

December 21, 2012 order, and accordingly that order must be clarified to list a 

specific dollar amount, which has already been calculated by Firemen’s Annuity 

Fund.’ 

 In addition, Robert argued that the application of the Hunt formula for the first time 

in postjudgment motions was inappropriate, as, in a motion to clarify, the application of 

a new division formula would not possibly effectuate the intent of the parties. 

 The court heard arguments from the parties, and took the matter under advisement. 

 In July 2013, the trial court entered a memorandum opinion in which it denied the 

motion to clarify, finding that it ‘function[ed] effectively as a motion to reconsider’ and 

was, therefore, barred by the doctrine of res judicata. Specifically, regarding the 

motion to clarify versus the motion to reconsider, the court found: 

‘Because the language of the agreement was modified in a prior Order, this 

Court finds the proposed clarification to be previously decided on the merits in the 

December 21, 2012 Order. Additionally, ROBERT’s motion changes the 

distribution of the pension in question [by adding a specific dollar amount], altering 

the substantive nature of the Judgment. Because a motion to clarify cannot enlarge 
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the judgment, ROBERT’s Motion to Clarify functions effectively as a motion to 

reconsider.’

The court also determined that the Firemen’s Annuity letter on which Robert relied 

was not new evidence and ‘does not purport to necessitate a dollar amount, but rather 

details the current value of the pension fund benefits as they stand.’ The court 

determined that the Hunt formula already applied to the pension division where ‘the 

plain language of ¶ 7.5 of [the MSA] uses Hunt as written.’ 

 Thereafter, Julie filed a motion for entry of a QILDRO in which she asked the court 

to enter a QILDRO consistent with the July order, that is, consistent with the Hunt

formula for division of the pension. 

Robert also filed a motion for entry of a QILDRO in which he urged ‘[t]he plain 

language of the MSA and the December 21, 2012 order provides that only Robert’s 

vested accrued benefit as of November 1, 2012 is to be divided, and that Robert is to 

receive all contributions after November 1, 2012.’ Specifically, it stated, ‘[a]s Robert’s 

future employment is not “fully and unconditionally guaranteed,” any increase in his 

pension as a result of his continued employment and/or continued monetary 

contributions to the pension were not part of the “vested accrued benefit” as of 

November 1, 2012. Therefore, the plain language of the December 21, 2012 order (and 

the MSA) provide that Julie is not entitled to any portion of the pension that was not a 

vested accrued benefit as of the date of entry of Judgment. *** Further, while Julie is 

awarded “all accruals to her portion” after November 1, 2012, the term “accrual” 

implies increases in value intrinsic to the asset, i.e. interest or dividend reinvestments, 

or in this case costs of living allowances.’ Robert proffered a draft dollar-amount 

QILDRO, which he submitted was consistent with the Firemen’s Annuity and Benefit 

Fund’s calculation of Robert’s vested benefits as of October 31, 2012. Robert also 

submitted an alternative draft percentage-division QILDRO in which Julie is awarded 

one-half the marital portion of Robert’s vested accrued benefit as of October 31, 2012, 

while still providing Julie with accruals to her portion after November 1, 2012. 

 After briefing and short arguments from the parties on January 17, 2014, the court 

‘declin[ed] to conduct an evidentiary hearing as to the parties’ intent,’ entered Julie’s 

proposed QILDRO instanter; denied Robert’s motion for entry of QILDRO; and 

ordered that the ‘QILDRO calculation order to be entered in accordance with FABF 

policies and Robert’s motion to enter QILDRO calculation order is denied, without 

prejudice, based upon time not being right.’ ” In re Marriage of Tebbens, 2015 IL App 

(1st) 140566-U, ¶¶ 4-21. 

¶ 7 Robert and Julie each initialed every page of the MSA containing the paragraph 7.5 

language prior to tendering the proposed MSA to the court for entry. 

¶ 8 On November 27, 2012, around the time Robert filed the motion to amend, defendants 

sought leave to withdraw as counsel for Robert, alleging a “breakdown in the attorney-client 

relationship.” The court granted the motion to withdraw on December 21, 2012. The same day, 

the circuit court entered the order described above regarding the motion to amend, stating in 

relevant part: 

“THIS CAUSE coming on to be heard this 21st day of December, 2012, before this 

Honorable Court for hearing on Robert’s Motion to Amend, or in the Alternative, to 

Vacate Judgment for Dissolution of Marriage, counsel for Robert’s Motion to 
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Withdraw, and Julie’s Petition for Rule to Show Cause, and the court being fully 

advised in the premises: 

 IT IS HEREBY ORDERED: 

 ***

2. Over Robert’s objection, Paragraph 7.5a of the Marital Settlement Agreement 

shall be modified to: 

‘2. To JULIE, a sum equal to fifty percent (50%) of the marital value (8-26-95 

to 10-31-12) of ROBERT’s vested accrued benefit under the Fireman’s Annuity 

Fund, and all accrued benefit under the Fireman’s Annuity Fund, and all accruals to 

her portion after November 1, 2012.’

 3. By Agreement, Paragraph 7.5b of the Marital Settlement Agreement shall be 

modified to: 

‘To ROBERT, the remaining balance of his vested accrued benefit under 

the Fireman’s Annuity Fund including all sums not otherwise allocated to the 

wife, and all contributions and accruals to his portion after November 1, 

2012.’ ”

¶ 9 Robert obtained new counsel, who filed an appearance with the court on January 18, 2013. 

This counsel filed the motion to clarify after the Firemen’s Annuity Fund administer requested 

a specific dollar amount for each party’s share of the pension rather than the percentage 

formula set forth in the MSA. The circuit court, however, did not grant Robert the clarification 

he requested through his subsequent counsel but instead modified the MSA in a manner 

unfavorable to Robert, entering a July 17, 2013, order that improperly applied, contrary to the 

parties’ agreement regarding the division of the pension, the reserved-jurisdiction method, also 

known as the Hunt formula, for the first time. See In re Marriage of Hunt, 78 Ill. App. 3d 653 

(1979). 

¶ 10 On appeal, we noted that “[t]here is no dispute here that the parties agreed to the division of 

Robert’s pension benefits in the MSA. Therefore, the terms of the MSA are binding on the 

parties and on the court.” In re Marriage of Tebbens, 2015 IL App (1st) 140566-U, ¶ 25. We 

also found that Robert’s motion to clarify should not have been recharacterized as a motion to 

reconsider, noting: 

“through that motion, Robert was merely requesting clarification of a vague term in the 

judgment of dissolution, that is, the specific dollar amount of the 50% division. We 

think this motion was not an attack on the correctness of the judgment, but rather was a 

request for a clarification of the trial court’s findings.” In re Marriage of Tebbens, 2015 

IL App (1st) 140566-U, ¶ 26.

We further found that the circuit court’s application of the Hunt formula was in error. We said: 

“We are cognizant here that ‘the terms of the marital settlement agreement are 

binding on the parties and the court.’ See Blum, 235 Ill. 2d at 32; see also 750 ILCS 

5/502(b) (West 2012) (‘The terms of the agreement *** are binding upon the court 

unless it finds, after considering the economic circumstances of the parties and any 

other relevant evidence produced by the parties, on their own motion or on request of 

the court, that the agreement is unconscionable’). Additionally, the terms of a marital 

settlement agreement are interpreted in the same manner as a contract, that is, the court 

must ascertain the parties’ intentions from the language of the contract. Blum, 235 Ill. 
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2d at 32. Here, it is evident from the plain language of the MSA that the parties’ intent 

was for Julie to receive one-half of the marital portion of Robert’s vested accrued 

benefit as of October 31, 2012, and Robert to retain the other one-half of the marital 

portion of the vested accrued benefit as of October 31, 2012, plus all contributions after 

October 31, 2012. The marital portion of the vested accrued benefit, as detailed in the 

December 21, 2012, order, is from August 26, 1995, through October 31, 2012. 

 While the Hunt formula on which the trial court relied in its July 2013 

memorandum opinion is a recognized method of dividing a pension upon dissolution of 

marriage, it is but one method of doing so. The parties herein, however, bargained for 

and chose another approach, that is, one in which Julie was awarded ‘all accruals to her 

portion’ of Robert’s pension after November 1, 2012, including increases in the value 

intrinsic to her portion such as interest, dividend reinvestments, or costs of living 

allowances, but not any portion of the pension that was not a vested accrued benefit as 

of the date of the entry of judgment. When the court applied the Hunt formula, it 

changed the calculations in such a way that the division no longer reflects the parties’ 

bargained-for intent.” In re Marriage of Tebbens, 2015 IL App (1st) 140566-U, 

¶¶ 35-36. 

¶ 11 We remanded with instructions that the circuit court grant Robert the clarification he 

requested (entry of an order with a dollar amount for Julie’s share of the pension) so that the 

Fireman’s Annuity Fund could put the intended original terms of the MSA into effect. In re 

Marriage of Tebbens, 2015 IL App (1st) 140566-U, ¶ 37. 

¶ 12 On November 30, 2012, while all of the above was transpiring, defendant Conde filed a 

petition for setting final fees and costs. By that petition, Conde alleged Robert had made 

payments totaling $6000, but still owed $42,345 in legal fees as of November 29, 2012. Robert 

objected to the fee petition, arguing in part that defendants should not be awarded the full 

amount of their fees because the motion to amend that they filed was unsuccessful, Robert had 

to hire new counsel due to defendants’ failure to obtain a satisfactory outcome, and new 

counsel had to incur the expense of a separate motion for clarification. After a hearing on the 

petition, the court granted the fee petition, entering the following written order: 

“This matter coming before this court for hearing on the Petition for Setting Final 

fees and Costs, Jean Conde and counsel for Robert appearing and the court conducting 

a hearing and being fully advised in the premises: 

 The Court hereby finds that the fees charged were fair and reasonable and 

necessary. 

 That Robert Tebbens acknowledged receipt of the Clients Rights and 

Responsibilities and executed a written engagement letter. Robert Tebbens received 

concurrent monthly billing statements and made no objections to the fees charged. 

 It is hereby ordered: 1. Judgment is entered in favor of Jean Conde against Robert 

Tebbens in the amount of $42,345.25 (forty two thousand three hundred forty five and 

25/100).”

Robert did not appeal this August 2, 2013, ruling. 

¶ 13 Following the resolution of the divorce case, the trial court removed the malpractice case 

from the stay calendar. Robert maintains this malpractice suit against defendants, seeking as 

damages the attorney fees he incurred during a portion of the divorce proceedings, attorney 
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fees incurred in the prior appeal, and attorney fees incurred in this malpractice action.1 By his 

complaint, Robert alleged, in relevant part: 

“6. Tebbens retained Levin & Conde in March of 2012, pursuant to a written 

agreement ***, to represent him in a Dissolution of Marriage action he previously had 

filed concerning his marriage to Julie Tebbens (hereafter ‘Julie’). 

 * * *

 11. The gravamen of this Complaint is the failure of the Defendants to protect 

Robert’s interest in his pension benefits in accordance with the agreement Robert had 

with his counsel. 

 12. The proposed MSA contained a Paragraph 7.5 which addressed the allocation 

of Robert’s pension benefits between Robert and Julie. Specifically, the proposed MSA 

provided that Julie was to receive fifty percent (50%) of the accrued value of Robert’s 

City of Chicago Fireman’s Annuity and Benefit Fund as of the day of the Dissolution 

decree subject to a modest reduction based upon Robert’s employment by the City of 

Chicago for several months prior to his marriage to Julie. ***

 13. However, the version of the MSA tendered to the Court by Defendants on 

October 31, 2012, as an agreed MSA erroneously omitted the agreed upon valuation 

date. *** 

 14. Thus, rather than Julie receiving the intended and agreed to Fifty Percent of the 

accrued value of Robert’s pension benefits as of the day of the Dissolution decree, the 

MSA presented to the Court as agreed resulted in an Order which provided that Julie’s 

interest in Robert’s pension benefit would be ‘50% of the martial value of Robert’s 

vested accrued benefit under the Fireman’s Annuity Fund (sic)’. The difference in 

value between these two versions was calculated at approximately $368,820. ***

 15. In an attempt to correct this error, the Defendants filed, on November 30, 2012, 

a ‘Motion to Amend or Vacate’ the October 31, 2012, judgment order in an effort to 

restore the agreed upon language from the draft used during hallway negotiations 

(using defendant counsel’s terms). *** 

 16. In support of this motion, Defendants stated at Paragraph 14 that ‘The language 

of Paragraph 7.5 of the entered Marital Settlement Agreement entered on October 31, 

2012 does not reflect the agreement of the parties.’ 

 17. Further, at Paragraph 16 of their Motion to Vacate, Defendants stated: 

‘Paragraph 7.5 of the Marital Settlement Agreement that was entered on October 31, 

2012 is erroneous and should be amended to reflect the parties’ agreement...’ ***

18. The omitted portion of the parties’ agreement required a specific valuation date, 

the absence of which created the possibility that Julie’s portion of Robert’s pension 

benefit would be over $368,000 more than had been agreed to. *** 

 [19]. That Defendants did not proof read [sic] the MSA they erroneously submitted 

to the trial court is made abundantly clear by the fact that the Motion to Vacate [ ] 

identified a second remarkable error.[2]

 

1Robert was given leave to file a series of amended complaints. The final complaint of which we 

are concerned here is his third amended complaint. For the reader’s ease, we refer to this third amended 

complaint simply as “the complaint.”
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 * * *

 22. The result of the Motion to Amend was an order entered December 21, 2012, 

which provided, in pertinent part, that Julie was to receive (a) ‘...fifty percent (50%) of 

the marital value of ROBERT’S vested accrued benefit under the Fireman’s Annuity 

Fund and all accruals to her portion after November 1, 2012.’ *** 

 23. Defendants in their Motion to Amend made a judicial admission to the trial 

Court that the erroneous term contained in the MSA which allocated a larger share of 

Robert’s pension benefits to Julie was made possible because Tebbens’ attorneys did 

not review the complete final version of the MSA tendered to the Court by Julie’s 

counsel. 

 * * *

 27. Simply put, had the tendered MSA truly been one which was agreed to by the 

parties, there would have been no occasion to file a Motion to Amend and no necessity 

for an appeal. 

 28. In trying to place responsibility of their error on the trial court judge who was 

misinformed by the Defendants about the actual terms of the MSA, they are causing 

Tebbens additional financial harm.” (Emphasis added.)

The complaint includes, as an exhibit, the client engagement agreement between Robert and 

defendants. 

¶ 14 The defendants filed a motion to dismiss the malpractice action,3 which was fully briefed. 

Specifically, defendants argued in part that the cause should be dismissed pursuant to section 

2-615 because (1) the trial court’s error in rewriting the MSA rather than simply clarifying the 

parties’ intent was an intervening cause of any injury sustained by plaintiff; (2) the malpractice 

claim cannot stand where the plaintiff ultimately prevails on appeal, e.g., Robert’s position 

remained viable through his success on appeal, and thus he cannot now claim that defendants 

proximately caused any harm; and (3) Robert failed to allege that defendants breached the 

standard of care. Defendants also argued that the cause should be dismissed pursuant to section 

2-619 because (1) the claims are barred by the principles of res judicata, where the same core 

facts alleged in Robert’s complaint had previously been addressed and rejected by the court in 

resolving the fee petition and (2) Robert fails to allege a breach of contract claim. The trial 

court dismissed the malpractice action in its entirety based on the doctrine of res judicata in 

October 2016, noting: “Defendants’ Motion to Dismiss Plaintiffs third amended complaint is 

granted for reasons stated in open court (due to the elements of res judicata having been met).”

¶ 15 Robert filed a motion to reconsider, which the trial court denied in February 2017, 

specifically noting that: “Plaintiff’s Motion to Reconsider is denied for the reasons stated in 

open court, based on the requirements of res judicata being met.”

¶ 16 Robert appeals. 

 

2The error referenced in paragraph 18 was a scrivener’s error regarding the valuation of the marital 

residence. This error was remedied by the trial court. 

3Defendants Conde and Griffin filed the initial motion to dismiss, and defendants Levin and Levin 

& Conde joined. 
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¶ 17 II. ANALYSIS 

¶ 18 On appeal, Robert contends the trial court erred in dismissing his malpractice lawsuit. 

Specifically, Robert argues that the cause should not, in fact, be barred by the doctrine of 

res judicata. Robert claims no damages related to the division of his pension but seeks only to 

recover the fees incurred on appeal, a refund of the fees billed by defendants from the date the 

MSA was signed, and the attorney fees incurred in the malpractice case. 

¶ 19 As noted above, defendants’ motion to dismiss alleged that dismissal was appropriate 

pursuant to both section 2-615 and 2-619 of the Code. This motion included the argument that 

the cause should be dismissed pursuant to section 2-619 based on the doctrine of res judicata

where the same core facts alleged in Robert’s complaint had previously been addressed and 

rejected by the court when resolving the fee petition.4

 Following a hearing, the trial court 

dismissed the malpractice action in its entirety based on the doctrine of res judicata, noting: 

“Defendants’ Motion to Dismiss Plaintiffs third amended complaint is granted for reasons 

stated in open court (due to the elements of res judicata having been met).” Robert filed a 

motion to reconsider, which the trial court denied in February 2017, specifically noting that 

“Plaintiff’s Motion to Reconsider is denied for the reasons stated in open court, based on the 

requirements of res judicata being met.” This, then, was a dismissal pursuant to section 

2-619(a)(4), which allows for involuntary dismissal when “the cause of action is barred by a 

prior judgment.” 735 ILCS 5/2-619(a)(4) (West 2014). We therefore address the circuit court’s 

dismissal order pursuant to the principles governing section 2-619 of the Code. 

 

4To the extent Robert argues that the court considered a separate theory for dismissal pursuant to 

the doctrine of res judicata, that is, that Robert’s claims were barred by paragraph 12.3 of the MSA, 

which required Robert to pay his own “past and future attorneys’ fees” to any other attorney or expert 

retained in the divorce case, and that one cannot know upon which res judicata theory the court 

dismissed this cause, we disagree. In our estimation, defendants’ motion to dismiss presents one theory 

for dismissal based on res judicata grounds—the “core facts” theory—and the sub-issue regarding 

paragraph 12.3 is argued as to a section 2-619 dismissal, but not pursuant to the theory of res judicata. 

In any event, we cannot know what was considered or discussed at the dismissal hearing as there is no 

transcript of the dismissal hearing, any hearing on the motion to reconsider, or any other hearing, and 

nor is there an agreed statement of facts or a bystander’s report included in the record on appeal. 

 Our supreme court has repeatedly held that the burden is on the appellant to present a sufficiently 

complete record of the trial proceedings to support a claim of error on appeal. Corral v. Mervis 

Industries, Inc., 217 Ill. 2d 144, 156 (2005); Webster v. Hartman, 195 Ill. 2d 426, 432 (2001); Foutch v. 

O’Bryant, 99 Ill. 2d 389, 391-92 (1984). “From the very nature of an appeal it is evident that the court 

of review must have before it the record to review in order to determine whether there was the error 

claimed by the appellant.” Foutch, 99 Ill. 2d at 391. An appellant has the burden of presenting this court 

with a record that is sufficient to support his claims of error. Foutch, 99 Ill. 2d at 391-92. Any doubts or 

deficiencies arising from an incomplete record will be construed against the appellant. Foutch, 99 Ill. 

2d at 392. When presented with an insufficient record, we will indulge every reasonable presumption in 

favor of the judgment appealed from. Smolinski v. Vojta, 363 Ill. App. 3d 752, 757-58 (2006). 

Accordingly, in the absence of a complete record supporting the plaintiff’s claim of error, we will 

resolve “[a]ny doubts which may arise from the incompleteness of the record *** against the 

appellant.” Foutch, 99 Ill. 2d at 392. We consider here the dismissal of Robert’s complaint pursuant to 

the principles of res judicata as it pertains to whether the malpractice claim is precluded by the previous 

fee petition, not to any issue regarding paragraph 12.3. 
- 12 - 

¶ 20 A section 2-619 motion to dismiss admits the sufficiency of the complaint, but asserts an 

affirmative matter that acts to defeat the claim. Patrick Engineering, Inc. v. City of Naperville, 

2012 IL 113148, ¶ 31; King v. First Capital Financial Services Corp., 215 Ill. 2d 1, 11-12 

(2005); Wallace v. Smyth, 203 Ill. 2d 441, 447 (2002); see 735 ILCS 5/2-619(a)(9) (West 2014) 

(allowing dismissal when “the claim asserted against defendant is barred by other affirmative 

matter avoiding the legal effect of or defeating the claim”). The question on review is whether 

a genuine issue of material fact precludes dismissal or whether dismissal is proper as a matter 

of law. Fuller Family Holdings, LLC v. Northern Trust Co., 371 Ill. App. 3d 605, 613 (2007). 

Section 2-619(a)(3) allows for dismissal of the action if “there is another action pending 

between the same parties for the same cause.” 735 ILCS 5/2-619(a)(3) (West 2014). 

¶ 21 When ruling on a motion to dismiss, a reviewing court must construe the pleadings and 

supporting documents in the light most favorable to the nonmoving party and accept as true all 

well-pleaded facts in the complaint and all inferences that may reasonably be drawn in the 

plaintiff’s favor. Sandholm v. Kuecker, 2012 IL 111443, ¶ 55. Disputed issues of fact are 

reserved for trial proceedings. Advocate Health & Hospitals Corp. v. Bank One, N.A., 348 Ill. 

App. 3d 755, 759 (2004). “Under section 2-619, the defendant admits to all well-pled facts in 

the complaint, as well as any reasonable inferences that may be drawn from those facts 

[citation], but asks the court to conclude that there is no set of facts which would entitle the 

plaintiff to recover. [Citation.] As long as there is no genuine issue of material fact and the 

defendant is entitled to judgment as a matter of law, the complaint may be properly dismissed.” 

Advocate Health & Hospitals Corp., 348 Ill. App. 3d at 759. The circuit court’s decision to 

grant such a motion will be reviewed de novo. Sandholm, 2012 IL 111443, ¶ 55.

¶ 22 As noted, defendants filed a motion to dismiss based on both sections 2-619 and 2-615. A 

section 2-615 motion to dismiss challenges the legal sufficiency of a complaint based on 

defects apparent on its face. Marshall v. Burger King Corp., 222 Ill. 2d 422, 429 (2006). 

Defendants address a number of issues based on the motion to dismiss pursuant to both 

sections 2-615 and 2-619, and fail to acknowledge that the dismissal here was specifically 

pursuant to section 2-619. We acknowledge that the trial court’s order granting the motion to 

dismiss in its entirety did not specify whether the dismissal was as to section 2-615 or section 

2-619. It did, however, specify that the dismissal was for the “reasons stated in open court” and 

“due to the elements of res judicata” having been met. Because we are not privy to a transcript 

from the hearing, a bystander’s report, or even an agreed statement of facts, we cannot know 

what reasons were stated in open court. We do, however, know that the only argument 

regarding res judicata made in the motion to dismiss was made pursuant to section 2-619 of the 

Code. In addition, we find the res judicata argument persuasive. Therefore, we address here 

only the dismissal as to section 2-619 of the Code. 

¶ 23 Res judicata is an equitable doctrine designed to encourage judicial economy by 

preventing a multiplicity of lawsuits between the same parties where the facts and issues are 

the same. Arvia v. Madigan, 209 Ill. 2d 520, 533 (2004). The doctrine also “protects parties 

from being forced to bear the unjust burden of relitigating essentially the same case.” Arvia,

209 Ill. 2d at 533. 

¶ 24 “The doctrine of res judicata provides that a final judgment rendered by a court of 

competent jurisdiction on the merits is conclusive as to the rights of the parties and their 

privies, and, as to them, constitutes an absolute bar to a subsequent action involving the same 

claim, demand or cause of action.” Nowak v. St. Rita High School, 197 Ill. 2d 381, 389 (2001). 
- 13 - 

The essential elements of res judicata are (1) a final judgment on the merits, (2) an identity of 

parties or their privies, and (3) an identity of causes of action. Hudson v. City of Chicago, 228 

Ill. 2d 462, 467 (2008); Northeast Illinois Regional Commuter R.R. Corp. v. Chicago Union 

Station Co., 358 Ill. App. 3d 985, 1000 (2005). “Moreover, the doctrine of res judicata applies 

not only to claims that have been fully litigated in an earlier proceeding, but also those that 

could have been raised or decided, but were not, thus barring such claims from relitigation at a 

later date.” Northeast Illinois Regional Commuter R.R. Corp., 358 Ill. App. 3d at 1000; Rein v. 

David A. Noyes & Co., 172 Ill. 2d 325, 334-35 (1996) (res judicata “extends not only to what 

was actually decided in the original action, but also to matters which could have been decided 

in that suit”). In addition, the issue of whether a claim is barred by res judicata is an issue of 

law that mandates de novo review by this court. Northeast Illinois Regional Commuter R.R. 

Corp., 358 Ill. App. 3d at 1000. 

¶ 25 Initially, we must address the issue of forfeiture. As defendants point out, Robert failed to 

contest in the trial court that the three elements of res judicata were met, either in his response 

to the motion to dismiss or in his motion to reconsider. Rather, he only argued that an 

exception to res judicata applied. He has therefore forfeited any challenge to the base elements 

of res judicata having been met. See Robinson v. Toyota Motor Credit Corp., 201 Ill. 2d 403, 

413 (2002) (an appellant may not raise a new argument for the first time on appeal; arguments 

not raised in the trial court are considered forfeited). 

¶ 26 Forfeiture aside, we find that the elements of res judicata are met here. First, it is 

undisputed that Robert was a party to both actions. Conde and Robert were both parties to the 

fee petition. Griffin was in privity with Conde, as Griffin was Conde’s associate and the fee 

petition pertained to Griffin’s work. In the same manner, Levin & Conde and Joel Levin were 

in privity with Conde because Levin & Conde is the law firm with which Conde was affiliated, 

and Joel Levin was a partner of the firm. See, e.g., 750 ILCS 5/508(c) (West 2014) (an attorney 

who files a fee petition becomes a party to the proceeding); Purmal v. Robert N. Wadington & 

Associates, 354 Ill. App. 3d 715, 722-23 (2004) (an attorney is in privity with an employer law 

firm). We find a sufficient identity of the parties for purposes of the doctrine of res judicata. 

¶ 27 Second, we also find the requirement of a final judgment on the merits by a court of 

competent jurisdiction is met. 

“A final judgment is one that fixes absolutely and finally the rights of the parties in 

the lawsuit; it is final if it determines the litigation on the merits so that, if affirmed, the 

only thing remaining is to proceed with the execution of the judgment. [Citation.] To be 

final, a judgment must dispose of or terminate the litigation or some definite part of it.” 

In re Adoption of Ginnell, 316 Ill. App. 3d 789, 793 (2000). 

Robert challenges this element for the first time in his reply brief on appeal.5 In so doing, he 

presents this court with a case filed after the filing of his opening brief, In re Marriage of 

Teymour, 2017 IL App (1st) 161091, which he argues is dispositive of this issue in his favor. 

Specifically, relying on Teymour, he argues that there is no final judgment in the case at bar 

because the trial court did not provide Rule 304(a) language when ruling on the fee petition. 

See Ill. S. Ct. R. 304(a) (eff. Mar. 8, 2016). We disagree. 

 

5We allowed defendants to file a surresponse regarding this issue and granted Robert an 

opportunity to file a surreply to defendants’ surresponse.
- 14 - 

¶ 28 In Teymour, this court held, in part, that where other claims were pending and there was no 

Rule 304(a) finding, an order finding a party in contempt was not appealable. Initially, even if 

we were to find that Teymour affected the finality of the fee judgment in the case at bar, 

Teymour cannot be applied retroactively to reopen a final fee judgment, which was entered in 

August 2013. More to the point, however, even if Teymour had existed at the time of the fee 

judgment, it would still not have had effect on the finality of the fee judgment. Teymour, 

decided on September 6, 2017, provided that, if there are multiple postdissolution matters 

pending, a judgment on one of those orders is not final and appealable in the absence of a Rule 

304(a) finding. Ill. S. Ct. R. 304(a) (eff. Mar. 8, 2016); Teymour, 2017 IL App (1st) 161091, 

¶¶ 35-41. 

¶ 29 Under the case law existing in the First District at the time the fee judgment was entered, 

the fee judgment was a final judgment on the merits and was immediately appealable under 

Illinois Supreme Court Rule 301 (eff. Feb. 1, 1994)6

 without the need for a Rule 304(a) finding 

because the fee judgment was unrelated to any other matters still pending in the divorce. 

Section 508(c) acknowledges the legislature’s express intent that attorney fee petitions be 

decided independently from other issues in a dissolution of marriage case. 750 ILCS 

5/508(c)(2) (West 2014) (“Irrespective of a Petition for Setting Final Fees and Costs being 

heard in conjunction with an original proceeding under this Act, the relief requested under a 

Petition for Setting Final Fees and Costs constitutes a distinct cause of action. A pending but 

undetermined Petition for Setting Final Fees and Costs shall not affect appealability of any 

judgment or other adjudication in the original proceeding.”). Acknowledging a split in the 

various districts of this court, Teymour aligned the First District with the Second and Third 

Districts of this court and stated: 

“Where a party files one postdissolution petition, several more are likely to follow. 

Allowing or requiring parties to appeal after each postdissolution claim is resolved 

would put great strain on the appellate court’s docket and impose an unnecessary 

burden on those who would prefer not to appeal until the trial court resolves all pending 

claims. To be sure, justice may on occasion require that a final order disposing of a 

claim be immediately appealed, rather than held at bay until another pending 

postdissolution claim is resolved. Yet, Rule 304(a) accommodates those 

circumstances: the trial court need only enter a Rule 304(a) finding.” In re Marriage of 

Teymour, 2017 IL App (1st) 161091, ¶ 39 (citing John G. Phillips & Associates v. 

Brown, 197 Ill. 2d 337, 344-45 (2001)). 

¶ 30 Robert does not argue on appeal that the fee judgment is not final now. Instead, Robert 

seems to argue that, at the time the fee judgment was entered, that is, in August 2013, the trial 

court had yet to resolve his motion to clarify the MSA and the competing motions for entry of 

QILDROs. We addressed these issues in the prior appeal, issued in April 2015, where we 

found Robert was entitled to clarification of the MSA language regarding division of the 

pension, vacated the April 20, 2014, amended QILDRO, and remanded for entry of an 

appropriate QILDRO. 

 

6Rule 301 provides: “Every final judgment of a circuit court in a civil case is appealable as of right. 

The appeal is initiated by filing a notice of appeal. No other step is jurisdictional. An appeal is a 

continuation of the proceeding.” Ill. S. Ct. R. 301 (eff. Feb. 1, 1994). 
- 15 - 

¶ 31 Although Robert alleges that the finality element of res judicata was not met at the time the 

fee judgment was entered, he fails to include documentation regarding these pending motions. 

Instead, he directs this court to the fee petition order decided on August 2, 2013 (and quoted 

above), and to this court’s previous Rule 23 order (Ill. S. Ct. R. 23 (eff. July 1, 2011)) in this 

matter, which do not illuminate what was pending and when. As noted above, the burden is on 

the appellant to present a sufficiently complete record of the trial proceedings to support a 

claim of error on appeal. Corral, 217 Ill. 2d at 156; Webster, 195 Ill. 2d at 432; Foutch, 99 Ill. 

2d at 391-92. Any doubts or deficiencies arising from an incomplete record will be construed 

against the appellant. Foutch, 99 Ill. 2d at 392. When presented with an insufficient record, we 

will indulge every reasonable presumption in favor of the judgment appealed from. Smolinski, 

363 Ill. App. 3d at 757-58. From what we can ascertain based on the record presented on 

appeal, all postdissolution claims in Robert’s divorce had been resolved long before the trial 

court dismissed Robert’s malpractice case on October 21, 2016, and it appears the August 

2013 fee judgment—which he failed to timely challenge—was final at that time. Teymour is 

inapposite to the instant case, and we find no error in the trial court’s determination that the 

“final judgment on the merits” element for res judicata was met. 

¶ 32 Third, we find sufficient identity of cause of action for purposes of preclusion by the 

doctrine of res judicata. As noted above, the doctrine of res judicata bars “not only *** what 

was actually decided in the original action, but also *** matters which could have been 

decided in that suit.” Rein, 172 Ill. 2d at 334-35. Accordingly, a litigant cannot bring a 

malpractice claim that is based on the same core facts that were previously addressed in a fee 

petition. See Bennett v. Gordon, 282 Ill. App. 3d 378, 383-84 (1996). 

¶ 33 Illinois law applies the “transactional test” to determine if there is an identity of cause of 

action. River Park, Inc. v. City of Highland Park, 184 Ill. 2d 290, 310-11 (1998). Under the 

“transactional analysis” adopted by our supreme court in River Park, separate claims are 

considered the same cause of action and are barred by the doctrine of res judicata where they 

arise from a single group of operative facts, regardless of whether they assert different theories 

of relief. River Park, 184 Ill. 2d at 311. Claims may be considered part of the same cause of 

action “even if there is not a substantial overlap of evidence, so long as they arise from the 

same transaction.” River Park, 184 Ill. 2d at 311. The River Park court explained that, in the 

transactional analysis, the claim is viewed in “ ‘factual terms’ ” and considered “ ‘coterminous 

with the transaction regardless of the number of substantive theories, or variant forms of relief 

flowing from those theories, that may be available to the plaintiff; *** and regardless of the 

variations in the evidence needed to support the theories or rights.’ ” River Park, 184 Ill. 2d at 

309 (quoting Restatement (Second) of Judgments § 24 cmt. a, at 197 (1982)). Additionally, a 

“final judgment will bar a plaintiff’s claim to all or any part of a transaction or series of 

connected transactions from which the action arose.” Doe v. Gleicher, 393 Ill. App. 3d 31, 

37-38 (2009) (citing River Park, 184 Ill. 2d at 311). 

¶ 34 In Bennett v. Gordon, 282 Ill. App. 3d 378, 383-84 (1996), this court agreed with the trial 

court’s finding that the plaintiff’s malpractice claims arising out of a divorce judgment were 

barred by res judicata, as the allegations involved the same subject matter that had been 

addressed in the former counsel’s fee petition in the divorce. The plaintiff had already 

challenged the attorney fee petition on the basis that the attorneys had committed various 

errors, and thus the plaintiff did not have a right to relitigate those issues. Bennett, 282 Ill. App. 

3d at 380-85. The Bennett court explained: 
- 16 - 

“ ‘The proper test to determine identity of causes of action for res judicata purposes 

is whether actions are based upon a common core of operative facts.’ Horton v. 

Caterpillar, Inc., 260 Ill. App. 3d 150, 153 *** (1994). A plaintiff may plead more than 

one theory of recovery arising from a single group of facts. However, these multiple 

theories of relief constitute but a single cause of action for purposes of res judicata. 

Torcasso v. Standard Outdoor Sales, Inc., 157 Ill. 2d 484 *** (1993). ‘If the same facts 

are essential to maintain both proceedings or the same evidence is necessary to sustain 

the two, there is identity between the causes of action asserted, and res judicata bars the 

latter one.’ Torcasso, 157 Ill. 2d at 491 ***.” Bennett, 282 Ill. App. 3d at 382-83. 

¶ 35 Similar to the case at bar, the litigant in Bennett contested the fee petition by criticizing the 

services the attorney had provided. Bennett, 282 Ill. App. 3d at 383-84. The Bennett court 

found that the fee petition and malpractice claim were based on “the same core of facts,” and 

thus there was an identity of cause of action, regardless of the fact that the allegations in the 

malpractice claim were more fully developed. Bennett, 282 Ill. App. 3d at 383-84. Specifically, 

in finding the element of identity of cause of action existed, the Bennett court said: 

“We find that there is a nexus between plaintiff’s defense to the fee petition and her 

malpractice action. It is apparent from a review of the record that plaintiff raised 

substantially the same issues in her defense to the fee petition as she raised in her first 

amended complaint. For example, in plaintiff’s defense to the fee petition, plaintiff 

alleged that defendants conducted inadequate discovery in failing to obtain appraisals 

and accountings of all of Bennett’s assets. In her malpractice action, plaintiff alleges 

that defendants failed to contact critical witnesses necessary to ascertain the value of 

Bennett’s holdings. Similarly, in her defense to the fee petition, plaintiff alleged that 

defendants failed to execute the paperwork necessary to transfer stocks, property and a 

pension to her. In her amended complaint, plaintiff alleged that defendants failed to 

execute the documents necessary to effectuate an immediate transfer of marital 

property and the policeman’s fund pension to plaintiff upon entry of judgment.

While plaintiff’s malpractice claims are more fully developed, both sets of 

allegations arise from the same core of facts. Unlike Torcasso, the resolution of 

plaintiff’s cause of action involves an examination of the same facts and issues raised 

in defense to the fee petition. Recovery under these facts constitutes but a single cause 

of action.” Bennett, 282 Ill. App. 3d at 383-84. 

¶ 36 We think Bennett is remarkably similar to the case at bar, where there is a nexus between 

Robert’s defense to the fee petition and his malpractice action. For example, the trial court 

previously rejected Robert’s argument that defendants should not be awarded the full amount 

of their fees because the motion to amend they filed was unsuccessful. Now, the court 

dismissed Robert’s malpractice claim by which he argued his attorneys were negligent in filing 

the motion to amend. Like Bennett, there is a common core of facts between Robert’s defense 

to the fee petition (e.g., counsel failed in regards to the motion to clarify) and his malpractice 

action (e.g., counsel was negligent in regards to the motion to clarify). When ruling on a 

petition for attorney fees under section 508(c) of the Illinois Marriage and Dissolution of 

Marriage Act, a court must analyze the attorney’s performance, the attorney’s skill, and the 

benefits obtained by the client, among other factors. See 750 ILCS 5/508(c) (West 2014); In re 

Marriage of Patel, 2013 IL App (1st) 112571, ¶ 103 (“In determining whether the fees charged 

are reasonable, the trial court considers not only the number of hours the attorney spent on the 
- 17 - 

case but the following factors as well: (1) skill and standing of the attorneys; (2) the difficulty 

of the issues; (3) the amount and importance of the subject matter in the field of family law; (4) 

the degree of responsibility involved in the management of the case; (5) the usual and 

customary charge in the community; and (6) the benefits to the client.”). In our opinion, the 

malpractice claim and the fee petition in the case at bar are even more closely related to one 

another than the Bennett claim and petition where Robert only claims his attorney fees as 

damages, and the Bennett litigant claimed her attorneys failed to accurately assess the 

husband’s assets and failed to conduct adequate discovery. Robert cannot now bring this 

malpractice suit to relitigate issues that were already resolved against him and that he chose not 

to fully develop in the first proceeding. We find a sufficient identity of the parties for purposes 

of the doctrine of res judicata.

¶ 37 We acknowledge there is some disagreement regarding whether a judgment on a fee 

petition has res judicata effect with respect to a subsequent malpractice claim based on the 

same legal services. See, e.g., Bennett, 282 Ill. App. 3d 378 (finding that a judgment on a fee 

petition has res judicata effect on a subsequent malpractice claim based on the same services); 

Purmal, 354 Ill. App. 3d at 722 (same); Corcoran-Hakala v. Dowd, 362 Ill. App. 3d 523 

(2005) (same). But see Wilson v. M.G. Gulo & Associates, Inc., 294 Ill. App. 3d 897 (1998) 

(finding no res judicata effect); Weisman v. Schiller, Ducanto & Fleck, 314 Ill. App. 3d 577 

(2000) (same). 

¶ 38 Defendant urges us to find Wilson dispositive of this issue. In Wilson, which was decided 

before our supreme court adopted the transactional test for addressing questions of res 

judicata, a divided panel of this court concluded that res judicata did not bar a divorce 

litigant’s malpractice suit against her former attorney. Wilson, 294 Ill. App. 3d at 902. In that 

malpractice suit, the plaintiff had alleged her attorney negligently failed to investigate both her 

and her husband’s marital assets. The attorney responded that the suit was barred by res 

judicata because the trial court had rejected the plaintiff’s contest to the number of hours billed 

when it ruled on the fee petition. The appellate court rejected the attorney’s argument with the 

majority reasoning that the fee petition decision had not dealt with the reasonableness of the 

attorney’s representation and that, because the plaintiff had not contested the reasonableness of 

the attorney’s representation in the earlier proceeding, that issue could not have been fully 

litigated in the earlier proceeding. Wilson, 294 Ill. App. 3d at 901-02. 

¶ 39 Justice Holdridge dissented, arguing that “the doctrine of res judicata extends not only to 

those claims that are fully litigated in the first proceeding, but also to those issues that could 

have been decided or litigated” and, because the claim of professional malpractice could have 

been raised as a defense to the fee petition, the later malpractice suit should be barred. Wilson, 

294 Ill. App. 3d at 902-03 (Holdridge, J., dissenting). 

¶ 40 We find Wilson distinguishable from the case at bar and not of help to Robert. In Wilson, 

unlike the case at hand, the plaintiff could not have fully litigated her malpractice claim during 

the fee proceedings as it was only “ambiguously referenced” in the first proceedings (Wilson, 

294 Ill. App. 3d at 901 (majority opinion)), and the trial court “expressly excluded any 

evidence relating to the [defendant attorneys’] competency” (Wilson, 294 Ill. App. 3d at 901). 

Here, on the other hand, Robert’s malpractice claims are based on concepts the trial court 

rejected when Robert contested defendants’ fee petition. Robert objected to the petition and 

denied that the defendants’ services were all reasonable and necessary. Robert argued that the 

defendants had to seek clarification of the divorce judgment and that he had to retain new 
- 18 - 

counsel to further seek clarification of the judgment due to the defendants’ lack of success with 

the motion to amend. The court rejected Robert’s arguments in this regard, found that all of the 

defendants’ fees were fair, reasonable, and necessary, and entered judgment against Robert for 

the full $42,345.25 in unpaid fees. This is the precise core of facts that form the basis of the 

malpractice suit. Although we do not have a transcript of any hearing on the fee petition, a 

bystander’s report, or an agreed statement of facts, unlike in Wilson, it does not appear that the 

court barred or excluded evidence relating to attorney competency. Unlike Wilson, here Robert 

was not precluded from litigating those issues in the first case. We find no error in the trial 

court’s determination that the three elements of res judicata are met. 

¶ 41 Robert next argues that, even if the three elements of res judicata are met, we should 

nonetheless reverse and remand for a full trial where exceptions to the doctrine of res judicata

apply. Where defendants have established a prima facie case for application of res judicata, it 

is Robert’s burden to establish the applicability of any exception. Venturella v. Dreyfuss, 2017 

IL App (1st) 160565, ¶ 32 (“ ‘[O]nce a party establishes a prima facie case of res judicata, the 

burden shifts to the opposing party to properly plead the existence of an exception to 

res judicata.’ ” (quoting Deutsche Bank National Trust Co. v. Bodzianowski, 2016 IL App (3d) 

150632, ¶ 19)). 

¶ 42 There are six exceptions to the doctrine of res judicata recognized in Illinois: 

“ ‘(1) the parties have agreed in terms or in effect that plaintiff may split his claim or 

the defendant has acquiesced therein; (2) the court in the first action expressly reserved 

the plaintiff’s right to maintain the second action; (3) the plaintiff was unable to obtain 

relief on this claim because of a restriction on the subject-matter jurisdiction of the 

court in the first action; (4) the judgment in the first action was plainly inconsistent with 

the equitable implementation of a statutory scheme; (5) the case involves a continuing 

or recurrent wrong; or (6) it is clearly and convincingly shown that the policies 

favoring preclusion of a second action are overcome for an extraordinary reason.’ ” 

Hudson, 228 Ill. 2d at 472-73 (quoting Rein, 172 Ill. 2d at 341). 

¶ 43 Robert argues that three exceptions apply: first, that applying res judicata here is 

inconsistent with the implementation of the statutory scheme concerning when legal 

malpractice claims can be filed; second, that this case involves a continuing wrong; and third, 

that fundamental fairness compels this court to reverse the dismissal. We disagree with these 

arguments. 

¶ 44 As to his first argument, that applying res judicata here is inconsistent with the 

implementation of a statutory scheme, Robert specifically argues that pursuant statute, there 

are no compulsory counterclaims in Illinois and, because there are no compulsory 

counterclaims, dismissing his petition on res judicata grounds “necessarily compels a holding 

that not only are there compulsory counterclaims in this context but also that this compulsion 

to sue acts to ‘cut short’ the time the legislature has otherwise said a plaintiff has to file a legal 

malpractice claim.” The Second District of this court addressed a similar issue in Dowd. In 

Dowd, an attorney filed a fee petition to recover a referral fee from a client. The trial court 

granted the fee petition and ordered the client to pay the lawyer a certain fee. The client then 

filed a complaint against the lawyer alleging, in part, that the referral was obtained through 

fraud and that if she and the attorney had an attorney-client relationship, the attorney 

committed malpractice by failing to properly advise her before she signed a contingency 

agreement. The trial court dismissed the complaint on res judicata grounds, and the plaintiff 
- 19 - 

appealed, arguing that, because counterclaims are not mandatory in Illinois, she should not be 

precluded from filing her lawsuit to raise those claims. Dowd, 362 Ill. App. 3d at 530. On 

review, the appellate court affirmed the trial court, stating that “plaintiff’s current claims 

involve the same operative facts as the earlier litigation” and that “successful prosecution of 

plaintiff’s current suit would in effect nullify the prior judgment.” Dowd, 362 Ill. App. 3d at 

531. There, “plaintiff could have—and should have—raised those claims in that proceeding.” 

Dowd, 362 Ill. App. at 531. 

¶ 45 We acknowledge that, as Robert points out, in Illinois counterclaims are permissive rather 

than mandatory. Dowd, 362 Ill. App. 3d at 530. Therefore, a party may generally raise a claim 

against a plaintiff either by a counterclaim or in a separate action. Dowd, 362 Ill. App. 3d at 

530-31. However, Illinois law further dictates that “if the defendant’s claim involves the same 

operative facts as the plaintiff’s claim, res judicata may bar the defendant from raising his or 

her claim in a subsequent action.” Dowd, 362 Ill. App. 3d at 531. Additionally, our supreme 

court has held that res judicata bars the pursuit of a counterclaim if the successful prosecution 

of that counterclaim would have the effect of nullifying a prior final judgment. Blumenthal v. 

Brewer, 2016 IL 118781, ¶ 41 (finding a number of a defendant’s counterclaims could no 

longer be pursued due to res judicata when the plaintiff’s action addressing the same subject 

matter had gone to final judgment). 

¶ 46 As noted above, the doctrine of res judicata extends to what was actually decided in the 

first action as well as to matters that could have been decided in the first action. River Park, 

184 Ill. 2d at 302. Robert’s malpractice claim is based on the same group of operative facts as 

his prior fee petition. Robert could have pursued these claims at that time but failed to do so. In 

addition, Robert cannot now pursue his malpractice claim because, were he successful, his 

malpractice claim would effectively nullify the prior judgment on the fee petition, as the 

damages he seeks now are not related to the division of his pension but are only attorney fees, 

including those attorney fees determined by the court on the fee petition. The trial court 

properly found that res judicata bars this claim. 

¶ 47 Regarding the second proposition, that this case involves a continuing wrong, Robert 

maintains that we should find an exception for the application of the doctrine of res judicata

here, where the he is the victim of a continuing wrong that started with the attorney negligence 

alleged in the malpractice claim but continued via the appellate review, the remand, the 

dismissal, and now this appeal. Initially, we note that plaintiff has waived this argument by 

failing to raise it in the trial court. Robinson, 201 Ill. 2d at 413 (an appellant may not raise an 

issue for the first time on appeal; issues not raised below are considered waived). Waiver aside, 

the exception for continuing conduct does not apply here, where the alleged wrong is neither 

continuing nor recurring. Rather, Robert contends the defendants committed legal malpractice 

during their representation of him in his dissolution case. The specific conduct at issue 

occurred when the MSA was executed and submitted to the circuit court in October 2012. The 

fee judgment was not entered until August 2013. Additionally, the defendants were given leave 

to withdraw as counsel prior to the fee petition being heard. Robert argued in opposition to the 

fee petition that defendants had to file a motion seeking to clarify language in the judgment and 

that Robert subsequently had to hire new counsel to address the same issue due to defendants’ 

lack of success. Robert’s malpractice claim is based on those same criticisms of defendants’ 

work. There is no recurrent or continuing wrong here, and the trial court properly found that 

res judicata bars this claim. 
- 20 - 

¶ 48 Finally, as to the third proposition, that fundamental fairness compels this court to reverse 

the dismissal, Robert urges us to find that “[i]f there is a set of facts that fits [the fundamental 

fairness exception], it is this case” and that res judicata should not apply for fairness reasons 

because he would not have been able to obtain a full remedy in the fee petition proceeding. We 

disagree. We understand that Robert is on the hook for a large sum of attorney fees. 

Nonetheless, Robert was not restricted to merely contesting the fees he owed but could have 

filed a counterclaim in response to the fee petition. Again, the malpractice claim and the earlier 

fee petition pertain to the same operative core of facts, and the malpractice claim was properly 

barred by the doctrine of res judicata.

¶ 49 In summary, Robert’s malpractice suit is an improper attack on the trial court’s ruling that 

found the attorney fees were fair, reasonable, and necessary. The trial court has already ruled, 

over Robert’s objection, that all of defendant’s fees for their legal services were “fair 

reasonable and necessary.” Robert failed to appeal that ruling and cannot now appeal it by 

default. 

¶ 50 III. CONCLUSION 

¶ 51 Accordingly, for all of the foregoing reasons, the decision of the circuit court of Cook 

County is affirmed. 

¶ 52 Affirmed.