knowledge and set forth such facts as would be admissible at trial. “Although ‘personal
knowledge’ may include inferences and opinions, those inferences must be substantiated by
specific facts.” Drake v. Minnesota Mining & Manufacturing Co., 134 F.3d 878, 887 (7th Cir.
1998), quoting Davis v. City of Chicago, 841 F.2d 186, 189 (7th Cir. 1988). In many instances,
that is not the case with Zimmerman’s affidavit which contains unsupported conclusory
assertions and legal conclusions. Indeed, plaintiffs admit that paragraphs 23, 25, 26, 27, 28, 30,
31, and 32 are either legal opinions, hearsay or conclusory statements that should be stricken,
Paragraphs 11 and 18 of Zimmerman’s affidavit also should be stricken as it is contrary to the
testimony Zimmerman offered in his deposition and portions also are inadmissable hearsay.
Thus, the motion to strike is granted in part and denicd in part.
If. Count One — Legal Malpractice
This entire lawsuit is premised on the theory that there was an attorney-client relationship

between plaintiffs Zimmerman and ZPI and defendant Grund. However, it is undisputed that
Grund represented Joan Zimmerman in the underlying divorce and not plaintiffs Gary
Zimmerman and ZPI. To state a claim for legal malpractice, plaintiffs must show: (1) the
existence of an attorney-client relationship; (2) a negligent act of omission on the part of the
atlomey; (3) proximate cause, and (4) actual damages. See National Union Ins. Co. v. Dowd &
Dowd, P.C., 2 F. Supp. 2d 1013 (1998). Ilinois law is clear on what qualifies for the ercation of
an atlomey-client relationship, and one Illinois court has explained:

The attorney-client relationship is consensual and arises only where both the attorney

and the client have consented to the retention, [Citation omitted] A clicnt must

manifest his authorization for an attorney to act of his behalf and the attorney must

indicate his acceptance of the authorization to represent the client’s imterests.

[Citation omitted]
Kehoe v, Saltarili, 337 Ill. App. 3d 669, 786 N.E. 2d 605, 612 (1st Dist. 2003).

3



breach of the covenant of good fair and fair dealings, or fraudulent and negligent
misrepresentation. Without any substantive wrongdoing, plaintiffs carmot sustain a claim for
unjust enrichment, and defendants are entitled to summary judgment on Count VI.
CONCLUSION
For all of the foregoing reasons, the motion for leave to file an amended response to
defendants’ Rule 56.1 statement of facts [105] is granted, the motion to strike [98] is granted in
part and denied in part, and the motion for summary judgment [100] is granted, terminating the

case. This is a final and appealable order.

It is so ordered.

CI). Cz
“Wayne R. Andersen
United States District Court

Dated: Hoban A, AMD 7



attorneys gave their respective clients advice in connection with the dissolution and distribution
of ZP] asscts, which was a marital asset. For this advice, Gary and Joan Zimmerman paid their
attomeys from the assets of ZPT. Grund’s receipt of a payment of $300,000 from the assets of
ZPI does not prove that a contract or any contractual duty existed between Grund and Gary
Zimmerman or ZPI.

Plaintiffs have failed to identify any fact in the record that they sought advice from
Grund. The undisputed facts confirm that no contract or contractual duties existed. Because there
is no contract between plaintiffs and Grund, there was not, and could not have been, any
contractual duty owed by Grund to plaintiffs. Thus, summary judgment should be granted on
Counts II and TTT.
IV. Count LV - Fraudulent Misrepresentation

The essential elements of a claim for fraudulent misrepresentation, which a plaintiff must
affirmatively cstablish by clear and convincing evidence, are: (1) the representation must be a
statement of material fact, rather than a mere promise or opinion; (2) the representation must be
false; (3) the person making the statement must know or believe that the representation is falsc
or made in reckless disregard of the truth; (4) the person to whom the representation is made
must rcasonably rely on the truth of the statement; (5) the statement must have been made for the
purpose of causing the other party to affirmatively act; and (6) the reliance by the person to
whom the statement was made ed to his injury. See Chicago College of Osteopathic Medicine v.
George A. Fuller Co., 719 F.2d 1335, 1347 (7th Cir. 1983).

Plaintiffs again rely upon Paragraph 5.2 of the Marital Settlement Agreement and claim
that the intentional misrepresentation was the statement that the $300,000 fee was eared for
providing tax advice and that Grund, in fact, agreed to provide tax advice to ZPT. However, the

7



There is absolutely no evidence of an attorney-client relationship between Zimmerman
and ZPI and Grund, and nothing in paragraph 5.2 of the Marital Separation Agrcement creates
such a relationship. Plaintiffs do not offer any evidence that they consented to be represented by
Grund or that Grund consented to represent cither Zimmerman or ZPI. Indeed, Gary
Zimmerman, in fact, acknowledges that Grund represented his wife and not him or ZPI. Without
any evidence of an attorney-client relationship, Grund did not have any duty to Zimmerman or
ZPI. Thus, plaintiffs fail to state a claim for legal malpractice, and defendants are entitled to
summary judgment on Count 1.

TI, Counts Two and Three — Breach of Contract and Breach of Good Faith

The second and third counts alleging breach of contract and breach of contractual duty of
good faith and fair dealing basically are duplicative of the allegations of legal malpractice
alleged in Count One. Counts Two and Three suffer the same fatal flaw -. there is no evidence of
the existence of an allomey-client relationship or a contract between Zimmerman and ZP] and
Grund.

For a contract to be valid, it must incorporate an offer, acceptance and valuable
consideration to be enforceable, and the terms must be sufficiently definite. See Olge v. Lotto,
273 Ul. App. 3d 313, 319, 652 N.E.2d 815, 819 (1994). The Manital Settlement Agreement does
not create a contract between plaintiffs and Grund, The Marital Settlement Agreement is an
agrecment between Gary Zimmerman and Joan Zimmerman, and Grund in not a party to that
agreement, Plaintiffs do not offer any evidence of a contract, and the record does not provide any
support that a contract existed between plaintiffs and Grund.

Gary Zimmerman again relies solely on Paragraph 5.2 of the Marital Settlement
Agreement to allege a claim against Grund. The language in Paragraph 5.2 is unambiguous. The

6



There is no evidence that Grund made any representation to Gary Zimmerman or that
Zimmerman, in fact, relied on any statement made by Grund. Thus, plaintiffs have failed to
establish any fraudulent misrepresentation, and summary judgment should be granted to
defendants on Count IV.
V. Count V - Negligent Misrepresentation

The elements needed to properly state a cause of action for negligent misrepresentation
include (1) a duty owed by defendant to plaintiff; (2) breach of such duty; and (3) injury
proximately resulting from the breach. See Davis v. G.N. Mortgage Corp., 396 F.3d 869, 883
(7th Cir, 2005). Such a claim also requires a showing of actual reliance. Jd. As explained above,
this court has determined that defendants did not have any duty, attorney-client, contractual or
otherwise, to plaintiffs. In addition, this court also previously concluded that there is no evidence
that representations were made by Grund to plaintiffs or that there was any reliance on any
Tepresentation. Consequently, there can be no claim for negligent misrepresentation, and
summary judgment should be granted to defendants on Count V.
VI. Count VI— Unjust Enrichment

Under Illinois law, a claim for unjust enrichment is not a separate cause of action, and
there cannot be the basis for lability in the absence of the elements for fraud, constructive trust
or other recognized cquitable remedy. See Fire Fighters Pension Fund v. Liberty Group, 708 F.
Supp. 1504, 1507 (N.D. I]. 1989) (applying Illinois law) (“A claim for unjust enrichment is not
an independent cause of action but instead is a remedy for some other substantive
wrongdoing.”); Charles Hester Enterprises, Inc. v. Illinois Founders Ins, Co., 137 Tl. App. 3d
84, 90-91, 484 N.E.2d 349, 354-55 (5th Dist. 1985). As explained in detail above, plaintiffs have
failed to provide any evidence to support thcir claims for legal malpractice, breach of contract,

9


IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

ZIMMERMAN PROPERTIES, INC.
and GARY ZIMMERMAN,

Plaintiffs,
No, 03 C 3359
v.

DAVID GRUND and GRUND &
STARKOPF, P.C., n/k/a GRUND,
STARKOPF & LEAVITT, P.C.,

)

)

)

)

)

)

) Wayne R. Andersen
) District Judge
)

)

)

)

Defendants.

MEMORANDUM. OPINION AND ORDER

This lawsuit arises out of the divorcee and Marital Settlement Agreement entered into
between Gary Zimmerman and his former wife, Joan Zimmerman. Plaintiffs Gary Zimmerman
and Zimmerman Properties, Inc. (“ZPI”) (collectively, plaintiffs) filed this lawsuit against
defendants David Grund and the law firm Grund & Starkopf, P.C. for legal malpractice, breach
of contract, breach of the covenant of good fair and fair dealings, fraudulent and negligent
misreprescntation, and unjusi enrichment, This matter is before the court on defendants’ motion
for summary judgment [100], defendants’ motion to strike plaintiffs’ response to defendants’
statement of facts and supporting affidavit [98], and plaintiffs’ motion for leave to file an
amended response to defendants’ Rule 56.1 statement of facts [105]. For the following reasons,
the motion for summary judgment is granted, the motion to strike is granted in part and denied in

part, and the motion for leave to file an amended response is granted.


unambiguous language of Paragraph 5.2 of the Agreement does not comport with plaintiffs’
allegations. Again, Paragraph 5.2 of the Marital Settlement Agreement specifically provides:

Zimmerman Properties, Inc. shall pay to Gary Cohen and Grund &

Starkopf, P.C. the sum of $300,000 each for and as attorney fecs in

connection with services rendered to Zimmerman Properties, Inc. with

respect to tax planning, counseling and in matters relating to advice and

consultation given to Zimmerman Properties, Inc. and to Husband and

Wife in conjunction with the preservation of and disposition of income

producing properties.
This paragraph recites that attorneys for both parties were paid $300,000 {rom the assets of ZPI
for providing advice and counsel to their respective clients. Moreover, the record shows that
Gary Zimmerman admitted that he did not speak to Grund about the fee, and there is no evidence
that Gary Zimmerman relied on any advice, received any advice or even spoke to Grund. In fact,
Zimmerman admitted that he would not rely on any tax advice from Grund. Plaintiffs have not
identified any facts in the record that Zimmerman relied on a statement by Grund, that Grund
rendered tax advice to him or ZPI prior to signing the Manital Settlement Agreement or that any
representation was false.

Without evidence of a statement or conversation and reliance thereon, there can be no

fraudulent misrepresentation. In fact, in Paragraph 12.3 of the Marital Settlement Agreement,

Gary Zimmerman acknowledged that all tax advice came from outside counsel and {rom his own

divorce atlomey. Paragraph 12.3 specifically provides:

Husband and Wife admit and agree that each of them has had the
opportunity to discuss with independent tax counselors, other than the
attorneys of record in the divorce action filed pertaining to the parties,
concerning the income tax and estate tax implication and consequences
with respect to the agreed upon division of properties and indebtedness,
and that the law firm of GRUND & STARKOPF, P.C. and ECKER &
STANDISH, P.C., and the law firms of GARY I]. COHEN and
JIMMERSON & ASSOCIATES, were not expected to provide and, in
fact, did not provide tax advice concerning this Agreement.

8



partics support all disputed facts with specific refercnces to the record and further emphasizes
that it is inappropriate to include legal conclusions and/or argument in the Rule 56.1 statements
of facts. See Jupiter Aluminum Corp. v. Home Ins. Co., 225 F.3d 868, 871 (7th Cir. 2000) (all
relevant facts denied without supporting documentation must be accepted as true provided the
facts are “properly supported by references to the record or other evidentiary materials”), The
Seventh Circuit repeatedly has sustained the entry of summary judgment when the non-movant
has failed to submit a factual statement in the form called for by the local rules and regularly
upholds strict enforcement of Rule 56.1. See Midwest imports, Ltd. y. Coval, 71 F.3d 1311, 1316
(7th Cir. 1995) (citing cases).

Defendants filed a statement of facts consisting of 80 numbered paragraphs. Plaintiffs
admitted 25 paragraphs and denied the remaining 55 paragraphs but did not provide any specific
reference lo the record or other supporting materials to support the denials. “A general denial is
insufficient to rebut a movant’s factual allegations; the non-movant must cite specific
evidentiary material justifying the denial. .. . [A] non-movant’s failure to adhere to there
requirements is equivalent to admitting the movant’s case.” Malec v. Sanford, 191 F.R.D. 581,

584 (N.D, Ll, 2000). Although untimely, plaintiffs filed a motion for leave to file an amended

response to defendants’ statement of facts which remedied their failure to comply with Local

Rule 56.1(b)(3). Defendants objected to plaintiffs’ amended response. However, the court will
grant plaintiffs’ motion for leave to file the amended response. Thus, the portion of defendants’
motion to strike relating to the 55 paragraphs without a record citation is denied.

However, defendants’ motion to strike also identified deficiencies with Zimmerman’s
affidavit submitted as support for some of the facts in plaintiffs’ counter-statement of facts. Rule
56(c) requires that affidavits offered in opposition to summary judgment be made on personal

4



DISCUSSION

J. Summary Judgment Standard

Under Federal Rule of Civil Procedure 56, summary judgment only may be granted when
“there is no genuine issue as to any material fact and . . . the moving party is entitled to a
judgment as a matter of law.” Fep. R. Civ. P. 56(c). Nevertheless, “an adverse party may not
rest upon the mere allegations or denials of the adverse party’s pleading, but... must set forth
specific facts showing that there is a genuine issue for trial.” FED. R. Civ. P. 56(e). A party must
present “more than a scintilla of evidence” to defeat summary judgment. Senner v. Northcentral
Technical College, 113 F.3d 750, 757 (7th Cir. 1997).

Indeed, “Rule 56 demands something more specific than the bald assertion of the gencral
truth of a particular matter, rather it requires affidavits that cite specific concrete facts
establishing the existence of the truth of the matter asserted.” Hadlev v. County of DuPage, 715
F.2d 1238, 1243 (7th Cir. 1983). Conclusory allegations alone will not defeat a motion for
summary judgment. See Thomas v. Christ Hosp. and Medical Center, 328 F.3d 890, 893-94 (7th
Cir, 2003), citing Lujan v. Nat'l Wildlife Federation, 497 U.S. 871, 888-89 (1990). “Speculation
does not create a genuine issue of fact, instead, it crcatcs a false issuc, the demolition of which is
a primary goal of summary judgment.” Hedberg v. Indiana Bell Tel. Co., 47 F.3d 928, 932 (7th
Cir. 1995) (emphasis added). The court is not obligated to “scour the record” for factual disputes
to help a plaintiff avert summary judgment. Greer v. Bd. Of Ed. Of the City of Chicago, 267 F.3d
723, 727 (7th Cir. 2001).

TI. Motion to Strike Plaintiffs’ Rule 56.1 Pleadings and Supporting Affidavit

Defendants have filed a motion to strike plaintiffs’ entire response to defendants’

statement of facts for failure to comply with Local Rule 56.1. Local Rule 56.1 requires that

3


BACKGROUND
The following fucts are undisputed. Gary Zimmerman brought a divorce action against
his wife in the State of Connecticut. Shortly thereafter, Joan Zimmerman initiated a competing
divorce action against her husband in the State of Nevada. In the divorce proceedings, Gary
Zimmerman was represented by Gary Cohen, and Joan Zimmerman was represented by David
Grund. As an alternative to procceding to trial in two separate jurisdictions, the parties agreed to
mediate the divorce action before trial. The parties participated in a week long mediation in
Chicago and reached a resolution. Attomeys Cohen and Grund jointly drafted a Marital
Settlement Agreement, which both Gary and Joan Zimmerman signed.
The provision around which the dispute revolves is Paragraph 5.2 of the Marital
Settlement Agreement which provides:
Zimmerman Properties, Inc. shall pay to Gary Cohen and Grund &
Starkopf, P.C. the sum of $300,000 each for and as attorney fees in
connection with services rendered to Zimmerman Properties, Inc. with
respect to tax planning, counseling and in matters relating to advice and
consultation given to Zimmerman Properties, Inc. and to Husband and
Wife in conjunction with the preservation of and disposition of income
producing properties.
Zimmerman, on his behalf and on behalf of ZP1, objected to this provision and the payment of
the fees, yet ultimately signed the Marital Scttlemont Agreement and paid the fees.
Thereafter, Zimmerman, on his behalf and on behalf of ZPI, sued David Grund and
Grund & Starkopf for legal malpractice, breach of contract, breach of the covenant of good fair
and fair dealings, fraudulent and negligent misrcpresentation, and unjust enrichment, claiming

that the $300,000 fee plaintiffs paid to Grund created an altorney-client relationship between ZPT

and Grund. Defendants’ motion for summary judgment now is ripe for review.