______________________________________________________________________________ 

______________________________________________________________________________ 

 

 

2018 IL App (1st) 171653
 

No. 1-17-1653
 

Filed: September 27, 2018 

Fourth Division 

IN THE
 

APPELLATE COURT OF ILLINOIS
 

FIRST DISTRICT
 

KENNETH A. NELSON, ) Appeal from the 

) Circuit Court of 

Plaintiff-Appellant ) Cook County 

) 

v. ) No. 16 L 5627 

) 

QUARLES & BRADY, LLP, ) Honorable 

) Lorna E. Propes, 

Defendant-Appellee. ) Judge Presiding.
 

JUSTICE BURKE delivered the judgment of the court, with opinion. 

Presiding Justice McBride and Justice Ellis concurred in the judgment and opinion. 

OPINION 

¶ 1 Following a bench trial, the circuit court entered judgment in favor of defendant Quarles 

& Brady in this legal malpractice claim. The claim was predicated on Quarles & Brady’s 

representation of plaintiff Kenneth Nelson in the federal district court in his suit against his 

former business partner in two automobile dealerships (the “Underlying Litigation”). The district 

court ruled against Nelson, but that decision was reversed on appeal by the Seventh Circuit Court 

of Appeals. Rather than pursue further litigation in the federal court on remand, the parties 

settled, and Nelson subsequently filed this legal malpractice action against Quarles & Brady. The 

circuit court found that Nelson had failed to establish that Quarles & Brady’s representation 
 

 

 

 

 

 

 

 

No. 1-17-1653 

deviated from the standard of care or that Quarles & Brady’s representation proximately caused 

him any damages. For the reasons that follow, we affirm the judgment of the circuit court. 

¶ 2 I. BACKGROUND 

¶ 3 A. The Underlying Litigation 

¶ 4 1. Nelson and Curia’s Written Agreements and Stock Purchase Options 

¶ 5 Prior to 1989, Nelson was the sole shareholder in two automobile dealership 

corporations: Ken Nelson Auto Plaza, Inc. (Plaza), located in Dixon, Illinois, and Ken Nelson 

Auto Mall, Inc. (Mall), located in Sterling, Illinois. The two dealerships carried vehicles from 

Toyota, General Motors (GM), Nissan, and Chrysler. In 1989, Nelson hired Richard Curia as 

general manager, and the two entered into a stock purchase agreement (1989 SPA) whereby 

Curia would be able to acquire a 100% ownership interest in both corporations pursuant to a 

series of options. Under the 1989 SPA, Curia would initially pay $100,000 for 1000 shares in 

Plaza and 144 shares in Mall. The 1989 SPA also provided Curia with options to purchase 

additional shares. The first option permitted Curia to purchase an additional 1000 shares of Plaza 

and 144 shares of Mall for an additional $100,000. Under the second option, Curia could 

purchase 2009 shares of stock of Plaza and 300 shares of Mall, “which shares with previous 

purchased shares would represent 49% of the issued and outstanding shares of capital stock in 

said corporations.” This option provided a formula for the purchase price of these shares, which 

was based on the corporations’ net worth, accumulated depreciation, “LIFO (last in first out) 

reserve,” and the total number of shares in each corporation. To determine the metrics for this 

formula, the parties would reference the monthly operating reports issued by GM and Nissan. 

¶ 6 The third and final option provided that “[a]fter exercising the first two options to 

purchase as provided in this Agreement, [Curia] shall have a third option to purchase from 

- 2 ­
 

 

 

No. 1-17-1653 

[Nelson] the remaining 4,171 shares of stock in [Plaza] and 612 shares of stock in [Mall] 

provided that [Curia] also offer to purchase the land and four buildings of the [Plaza] dealership 

*** at its appraised value.” The third option also provided that the purchase price of the shares 

would be based on a valuation formula similar to the formula outlined in the second option. The 

1989 SPA required Curia to provide written notice of his election to exercise each option. 

¶ 7 In 1993, Nelson and Curia entered into another agreement intended to modify the 1989 

SPA (1993 Modification). The 1993 Modification provided that “a mutual mistake of fact was 

made by Nelson and Curia in determining the fair market value of the capital stock of [Plaza and 

Mall.]” The 1993 Modification was therefore intended to “modify the [1989 SPA] to reflect the 

re-evaluation of the minority interest *** and to correct the mutual mistake of the parties.” The 

1993 Modification also included a new formula for calculating the price of the shares Curia 

could purchase from Nelson. Paragraph 5 of the 1993 Modification was titled “Purchase of 

Additional Shares” and provided that: 

“Curia shall have the right to purchase additional shares of stock in said 

corporations upon those terms and conditions subsequently agreed upon by the parties 

hereto. The purchase price for said additional shares of stock shall be determined by 

adding to the total net worth of each corporation a figure representing the accumulated 

‘LIFO’ (last in first out) reserve and dividing the total sum thereof by the number of 

shares of each corporation.” 

Nelson testified that in entering into this modification, he and Curia intended to eliminate the 

options contained in the 1989 SPA, and that they had the understanding that if Curia wanted to 

purchase additional shares, they would be required to enter into a separate agreement. Curia 

testified that, at the time they entered into the 1993 Modification, he did not understand what the 

- 3 ­
 

 

 

 

No. 1-17-1653 

word “subsequently” meant in the first sentence of the Purchase of Additional Shares section. 

Curia testified that the 1993 Modification was not intended to eliminate the 1989 SPA options 

and that he believed that the 1993 Modification, in conjunction with the options in the 1989 SPA, 

would permit him to purchase all of Nelson’s shares. He testified that the parties entered into the 

1993 Modification because he believed he had paid too much for the shares he received in the 

1989 SPA. 

¶ 8 The parties entered into subsequent written agreements in 1997 (1997 Harkness 

Agreement) and 2000 (2000 Agreement). The 1997 Harkness Agreement was drafted when 

Harkness purchased shares of Mall in 1997. The 1997 Harkness Agreement provided that it 

“supersede[d] all prior agreements and understanding between Nelson and Curia referring to 

future purchases of stock of [Mall.]” Harkness subsequently left Mall, and Mall repurchased his 

shares. 

¶ 9 In 2000, Nelson and Curia entered into another agreement (2000 Agreement), titled 

“Amendment to Modification Agreements.” The 2000 Agreement was drafted, at least in part, to 

delineate Curia and Nelson’s intent with respect to the transfer of shares if either of them died. 

The 2000 Agreement also provided that Nelson and Curia “had previously entered into [the 1989 

SPA] and [the 1993 Modification],” and copies of both were attached as exhibits. The 2000 

Agreement provided that if Nelson died while the 1989 SPA and 1993 Modification were “in 

force,” Curia must immediately purchase from Nelson sufficient shares in Plaza to make Curia 

the majority shareholder. The 2000 Agreement also set out another formula for the purchase 

price of those shares and Nelson’s remaining shares, which differed from the formula in the 1989 

SPA and 1993 Modification. The 2000 Agreement provided that it was “not a new modification 

agreement, but an amendment to the [1989 SPA] and the [1993 Modification].” 

- 4 ­
 

 

 

No. 1-17-1653 

¶ 10 In 2002, Nelson and Curia formed CRANK, LLC (CRANK), which owned all of the real 

estate used by the two dealerships. Nelson and Curia each owned 50% of CRANK. 

¶ 11 2. The Stock Purchase Negotiations 

¶ 12 In 2004, Nelson and Curia began discussions regarding Nelson’s desire to retire and sell 

all of his shares in both Plaza and Mall to Curia. According to Nelson, in July 2004, Curia agreed 

to buy Nelson’s majority ownership interest in both corporations for $4.2 million. Nelson 

testified that the $4.2 million amount was based on the June 2004 GM financial statement and 

was calculated using the formula in the 1989 SPA. Nelson testified that this was an oral 

agreement and was never memorialized in writing. He contended, however, that evidence of this 

oral agreement was present in (1) corporate resolutions from both corporations’ board of 

directors to accept the agreement, (2) correspondences from both Nelson and Curia with 

automobile manufacturers informing them of the stock purchase agreement and seeking approval 

for the transfer of ownership, and (3) a loan commitment document from Fifth Third Bank (Fifth 

Third) for $4.2 million obtained at Curia’s request. Curia denied ever agreeing to purchase 

Nelson’s shares for $4.2 million. 

¶ 13 a. The Directors’ Resolutions and Stockholders’ Minutes 

¶ 14 On October 6, 2004, Nelson prepared the Minutes of the Annual Meeting of Stockholders 

for Plaza (Stockholders’ Minutes). The Stockholders’ Minutes provided that “Upon motion duly 

made and seconded, it was unanimously RESOLVED, that the following conditions of the sale 

and transfer of stock from [Nelson] to [Curia] be approved by the Board of Directors.” The 

Stockholders’ Minutes then listed nine “conditions.” The first condition provided that the sale of 

the stock would be in accordance with the 1989 SPA. The remaining eight conditions provided 

that (1) the corporation would provide health care to Nelson and his wife for 10 years, (2) the 

- 5 ­
 

 

 

 

 

 

No. 1-17-1653 

corporation would provide a new vehicle of Nelson or his wife’s choice for 15 years, including 

the dealer license plates, (3) the corporation would provide a second vehicle of Nelson’s choice 

for 10 years, (4) in the event that Nelson or his wife were unable to drive, the corporation would 

provide a driver, (5) the corporation would provide transportation for Nelson and his wife to and 

from the airport and vehicles for when they were “in town” as long as Nelson owned part of the 

properties that the dealership leased, (6) Nelson would have access to monthly GM financial 

statements, (7) the name “Ken Nelson” could be used for the corporation, and (8) a hold 

harmless agreement be written for the protection of Nelson and his family members. Nelson 

testified that these items represented his “retirement package” and were “perks” that he and 

Curia had agreed to after agreeing upon the $4.2 million purchase price. Nelson signed the 

Stockholders’ Minutes, but Curia did not. 

¶ 15 One day later, on October 7, 2004, Nelson prepared separate Special Meetings of 

Directors documents for Plaza and Mall (Directors’ Resolutions). The Directors’ Resolutions 

provided that “[a] resolution was duly moved and seconded to accept an agreement by the 

stockholders, [Nelson and Curia], that [Nelson] would sell his 8000 shares in this corporation 

(52.7%) to [Curia], and that the manufacturers be contacted to facilitate the transaction.” The 

Directors’ Resolutions further provided that Fifth Third would be funding the capital for the 

stock transfer. The Directors’ Resolutions provided that the manufacturers would be contacted 

because automobile manufacturers require their approval for any transfer of majority ownership 

of a franchised dealership. Both Nelson and Curia signed the Directors’ Resolutions. 

¶ 16 b. Communications with Automobile Manufacturers 

¶ 17 Both Nelson and Curia understood that any change of majority ownership interest would 

have to be approved by the automobile manufacturers. On October 28, 2004, Nelson sent letters 

- 6 ­
 

 

 

 

 

No. 1-17-1653 

to the automobile manufacturers, informing them that he “proposes to sell” his shares in both
 

dealerships to Curia. Representatives from the manufacturers responded, requesting additional
 

documentation from both Nelson and Curia, including an ownership change agreement. As
 

evidence of an ownership change agreement, Nelson sent the manufacturers the Directors’
 

Resolutions. In November 2004, Curia submitted documentation to the automobile
 

manufacturers, including the Toyota Minimum Standards, the Toyota Dealer Performance
 

Evaluation, Dealer Biographical Information, and an Application for Nissan Dealer Sales and
 

Service Agreement.
 

¶ 18 c. Fifth Third Loan Commitment
 

¶ 19 In September 2004, Curia and Nelson approached Inghram Debes, the relationship
 

manager in the automobile dealership finance group at Fifth Third, to request a loan for Curia to
 

purchase Nelson’s shares. On November 4, 2004, Debes sent a letter to Curia to “confirm that 

Fifth Third Bank has approved and is committed to lend [Plaza] a term loan totaling $4,200,000. 

The purpose of this loan is to provide you with sufficient funds to buy-out [Nelson’s] remaining
 

ownership interest in [Plaza and Mall].” Curia testified that this letter was necessary to show the
 

automobile manufacturers that he could secure the funds to proceed with the buyout. 

¶ 20 3. Breakdown of Negotiations and Curia’s Option Exercises
 

¶ 21 On October 26, 2004, Nelson sent Curia a document entitled “Chronology of [Nelson]
 

and [Curia] Stock Purchase” (Chronology). Nelson testified that he prepared this document after
 

he learned that Curia was “balking” on the leases and the items in the Stockholders’ Minutes. In
 

the Chronology, Nelson recounted their business partnership, including the 1989 SPA and 1993
 

Modification. Nelson stated that:
 

- 7 ­
 

 

 

 

No. 1-17-1653 

“My offer to have you buy me out at this time was with great consideration for 

you. We have a bank ready and able to handle the transaction for you at very good 

interest rates. However, I didn’t believe that you would be so difficult in extending to me 

things that I really need for retirement; and to this date you have not come up with a 

retirement package for me. 

*** 

I will be calling the manufacturers; however, as I told you when I was in earlier 

this month, there is no reason for me sending any letters of my wish to sell until we have 

a package put together.” 

¶ 22 On November 4, 2004, Curia responded to the Chronology. In response to Nelson’s 

request for a retirement package, Curia responded that he did not “see anywhere in our 

agreement that I was to fund a retirement package.” Curia testified that by “agreement,” he was 

referring to the 1989 SPA and the 1993 Modification. Curia also wrote “please allow this to 

serve as written notice to exercise my option to purchase the remainder of the stock” in Plaza and 

Mall. Curia expressed his desire to close the transaction by the end of the year. On November 3, 

4, and 10, Curia submitted documentation to the automobile manufacturers. On November 4, 

Curia also submitted an Investment Proposal Summary to GM, to which he attached the letter 

from Fifth Third committing to the $4.2 million loan. On November 17, 2004, Debes sent the 

loan documents for the “Curia buy-out” to Toyota and stated that Fifth Third was “ready to fund 

this transaction when instructed by Mr. Curia.” Debes sent the same loan documents to Nissan 

on November 29, 2004. 

¶ 23 On December 3, 2004, Nelson wrote a letter to Curia, offering to sell his shares in Plaza 

and Mall for $3.4 million, using calculations based on the September 2004 GM financial 

- 8 ­
 

 

 

 

 

 

 

 

 

No. 1-17-1653 

statement. On December 21, 2004, Nissan sent a letter to Nelson and Curia, informing them that 

it had approved the proposed stock purchase agreement conditioned on the receipt of several 

documents from both the corporations and Fifth Third. On February 28, 2005, Curia wrote an 

email to Nelson, in which he stated that he “had more than one attorney review our agreements, 

and they all have the same conclusion. All we are asking you to do is honor our agreements.” 

¶ 24 On March 2 and 3, Curia sent Nelson a “Notice of Exercise of Option” for both Mall and 

Plaza (Option Exercises). In the March 2 Option Exercise, Curia stated that he had previously 

exercised his first option under the 1989 SPA. Curia stated that the second option gave him “the 

right to purchase from you an additional number of shares of capital stock of [Plaza] and [Mall] 

that would give me 49% of the outstanding capital stock of each Corporation.” Curia stated that 

he calculated that to be 193 shares of Plaza and 170 shares of Mall. Curia notified Nelson that he 

was exercising his option to purchase those shares in accordance with the terms of the 1989 SPA 

and the 1993 Modification. In the March 3 Option Exercise, Curia stated that he was exercising 

the third option under the 1989 SPA to purchase Nelson’s remaining shares in Plaza and Mall 

and Plaza’s land and four buildings. 

¶ 25 4. Nelson Retains Quarles & Brady 

¶ 26 On March 8, 2005, Nelson sent a letter and a packet of documents to Kimberly Johnson, 

an attorney at Quarles & Brady’s Naples, Florida office who had previously worked on Nelson’s 

estate planning. In the letter (Johnson Letter), Nelson informed Johnson that in September 2004, 

he approached Curia about purchasing his stock in the corporations. Nelson stated that he gave 

Curia some conditions for the purchase, including to meet the selling price set forth in the 1989 

SPA based on the September 2004 GM financial statement. Nelson also stated that the agreement 

was conditioned upon Nelson receiving vehicles from the dealership with insurance, health 

- 9 ­
 

 

No. 1-17-1653 

insurance for him and his wife, transportation to Dixon, Illinois to inspect buildings, hold 

harmless agreements, and access to GM financial statements. Nelson further stated that he and 

Curia met in January 2005 and realized that they were not in agreement with either the purchase 

price or “its application.” Nelson stated that in January and February they met with brokers in an 

attempt to sell the dealerships to a third party, but were unable to choose a broker. Nelson then 

received the letters from Curia, informing him of his intent to exercise his options. 

¶ 27 Nelson stated that under the written agreements, Curia could exercise his options to 

purchase only if he and Nelson mutually agreed or if one of them died. Nelson stated that “it was 

expressly understood that there would be no sale unless it was mutually agreed to and beneficial 

to both shareholders.” Nelson attached to the Johnson Letter the 1989 SPA, the 1993 

Modification, the 2000 Agreement, the October 26, 2004, Chronology with Curia’s response, the 

unsigned October 6, 2004, Stockholders’ Minutes, Curia’s February 28, 2005, email in which 

Curia asked Nelson to honor their “agreements,” Nelson’s response to that email on the same 

date, and Curia’s March 2 and 3, 2005, Option Exercises (Johnson Packet). Johnson referred 

Nelson to James Gatziolis, a partner and transactional lawyer in Quarles & Brady’s Chicago 

office. 

¶ 28 On March 13, 2005, Nelson sent a draft of his response letter to Curia’s Option Exercises 

to Gatzilios. In the draft letter, Nelson stated that Curia’s Option Exercises had not met the 

conditions of the 1993 Modification. Nelson specifically pointed to the language in the 1993 

Modification that provided that any sale of stock would be based “upon those terms and 

conditions subsequently agreed upon by the parties.” Nelson further stated in August 2004, he 

offered Curia the opportunity to purchase his stock in Plaza and Mall “upon certain terms and 

conditions” which were set forth in a letter Nelson left on his desk on December 3, 2004. Nelson 

- 10 ­
 

 

 

 

No. 1-17-1653 

represented that those terms and conditions were that the October 6, 2004, Stockholders’ 

Minutes be signed by both parties, that the newly agreed leases for the properties owned by 

CRANK be signed by both parties, and that the September 30, 2004, GM financial statement be 

used for the sale price. The draft letter was revised by Gatziolis, then further revised by Nelson, 

and sent to Curia on March 14, 2005. 

¶ 29 On March 29, 2005, Nelson sent a letter to Gatziolis, representing that he made his first 

offer to have Curia purchase his shares in July 2004. On April 20, 2005, Nelson, his wife Carol 

Nelson (Carol), and his son Korey Nelson (Korey) met with Gatziolis at the Quarles & Brady 

Chicago office. Carol took notes at the meeting, but at trial was unable to explain what the 

context of her notations meant outside of the words on the page. Carol wrote mostly in 

unattributed shorthand phrases such as “Any other conditions would be: formula for stock 

price—June 2004” and “Get this deal behind you!” After the meeting, Gatziolis brought Leonard 

Shifflett, a litigation attorney at Quarles & Brady, onto the case to handle the litigation. 

¶ 30 a. The Declaratory Judgment Complaint 

¶ 31 On April 29, 2005, Quarles & Brady filed a complaint, on Nelson’s behalf, for 

declaratory relief in the United States District Court for the Northern District of Illinois. The 

complaint provided that, in July 2004, Nelson approached Curia about purchasing Nelson’s 

shares in the dealerships, but the parties could not reach an agreement about the terms and price. 

Quarles & Brady alleged that Curia’s March 2 and 3, 2005, Option Exercises were defective 

because the 1993 Modification and 1997 Harkness Agreement effectively terminated the options 

in the 1989 SPA. The complaint therefore sought a judgment declaring that Curia had no 

exercisable option to purchase Nelson’s shares in the corporations, that Curia’s March 2 and 3, 

2005, Option Exercises were void, and that Curia was in breach of the 1989 SPA, the 1993 

- 11 ­
 

 

 

 

 

 

 

No. 1-17-1653 

Modification, and the 1997 Harkness Agreement. Curia filed a separate action in the district 

court seeking specific performance of the options, and the two cases were consolidated. 

¶ 32 b. The Summary Judgment Motions 

¶ 33 i. Curia’s Motion for Summary Judgment 

¶ 34 Quarles & Brady and Curia filed cross-motions for summary judgment. In his motion for 

summary judgment, Curia contended that the parties’ written agreements unambiguously 

provided him the right to purchase Nelson’s shares in both corporations and that the price of the 

shares should be $2,269,694.80 based on the formula in the 1993 Modification. Despite arguing 

that the agreements were unambiguous, Curia contended that in Paragraph 5 of the 1993 

Modification, which provided that “Curia shall have the right to purchase additional shares of 

stock in said corporations upon those terms and conditions subsequently agreed upon by the 

parties hereto,” he and Nelson actually intended to use the word “previously,” rather than the 

word “subsequently.” Curia asserted that this construction of the paragraph would allow the nonmaterial terms of the 1989 SPA to be incorporated into the 1993 Modification and that Curia 

would have the right to exercise the 1989 SPA options. This construction of the 1993 

Modification would also defeat Nelson’s contention that the 1993 Modification created an 

“agreement to agree.” Curia contended that such a result was logical because Nelson’s 

construction of the written agreement would give Curia a right to purchase the shares, but not the 

opportunity to do so unless Nelson agreed. 

¶ 35 ii. Nelson’s Communication with Quarles & Brady After Curia’s Motion 

¶ 36 On July 16, 2005, Nelson sent an email to Shifflett and Gatziolis regarding the 1997 

documents. Nelson stated that he “found the items that go with the letter to David Williamson 

our corporate attorney.” Nelson suggested that Quarles & Brady “ask Mr. Williamson for all of 

- 12 ­
 

 

 

 

 

 

 

 

No. 1-17-1653 

his notes and documents on all of the four agreements that he produced for both [Curia] & I and 

Harkness, which includes the ‘subsequently’ one.” 

¶ 37 On July 26, 2005, Nelson faxed Quarles & Brady a document entitled “Ken’s Story” in 

response to Curia’s motion. In Ken’s Story, Nelson stated that in July 2004, he offered to retire 

from the corporations, and in September 2004, he presented Curia with an offer to sell his shares 

for $4.1 million. He stated that he and Curia further negotiated and Nelson made another offer on 

December 4, 2004, for Curia to purchase his shares in both corporations for $3.4 million. Nelson 

further provided that “[a]fter again trying to negotiate with Curia through December 2004 it was 

apparent even though Curia had the financing from Fifth Third Bank to make the purchase, he 

was unwilling to come to terms nor even to make a counter offer.” 

¶ 38 Before filing the summary judgment motion, Quarles & Brady sent a draft of the motion 

to Nelson and Korey for their review. Nelson and Korey sent back an edited version of the 

motion. In a paragraph beginning “[i]n 2004 [Nelson] approached Curia *** about the possibility 

of Nelson selling his majority share of stock in [Plaza] and [Mall]” Nelson and Korey added that 

“Nelson and Curia began negotiating the price and manner of the stock sale,” but “at some point 

Curia began maintaining he possessed” exercisable options. Further, in the statement of facts of 

the motion, Nelson and Korey wrote that in July 2004, Nelson met with Curia and offered to sell 

his shares in the corporations to Curia. They further wrote that, in September 2004, Nelson 

presented an offer to sell his shares to Curia, “but Curia did not accept.” Nelson and Korey 

specifically added language that Curia did not accept Nelson’s September 2004 offer. The 

original draft of the motion also stated that Curia never accepted Nelson’s offer, but Nelson and 

Korey edited it to read that “Curia never accepted any of Nelson’s offers,” changing the word 

“offer” from singular to plural. 

- 13 ­
 

 

 

 

 

 

 

 

 

No. 1-17-1653 

¶ 39 iii. Quarles & Brady’s Motion for Summary Judgment 

¶ 40 On August 3, 2005, Quarles & Brady filed its memorandum in support of Nelson’s 

motion for summary judgment and in opposition to Curia’s motion for summary judgment. In its 

memorandum, Quarles & Brady asserted that a plain reading of the 1993 Modification 

contradicted Curia’s argument that he had a unilateral right to purchase Nelson’s shares pursuant 

to the 1989 SPA. Quarles & Brady contended that, under Paragraph 5 of the 1993 Modification, 

Curia could purchase additional shares only “upon those terms and conditions subsequently 

agreed upon by the parties hereto,” and there was no allegation that the parties ever subsequently 

agreed to any “terms and conditions.” 

¶ 41 As for Curia’s assertion that the parties intended to use the word “previously” rather than 

“subsequently” in Paragraph 5, Quarles & Brady contended that Curia did not raise this issue in 

his affidavit and his motion merely “suggests” that previously was intended because the next 

sentence of Paragraph 5 established the price for the shares. Quarles & Brady contended that 

Curia’s assertion that “any terms that required later determination would not be material” is 

contrary to Illinois law, which provides that if essential terms are missing or uncertain, then there 

is no contract. Quarles & Brady asserted that the court should reject this contention and enforce 

the contract as written, which required Curia to negotiate with Nelson if he wished to purchase 

shares from him, and if they could not come to an agreement, then either party could sell their 

shares to a third party. 

¶ 42 Quarles & Brady also argued that the 1997 Harkness Agreement voided the options or 

any rights Curia held under the 1989 SPA and 1993 Modification. Quarles & Brady further 

contended that Curia’s options failed for lack of consideration. In the alternative, Quarles & 

Brady asserted that even assuming Curia had the option to purchase Nelson’s shares, his Option 

- 14 ­
 

 

 

 

 

 

No. 1-17-1653 

Exercises were deficient because Curia calculated the purchase price under the 1993 

Modification rather than the formula in the 1989 SPA options. Quarles & Brady contended that if 

the court determined that Curia’s Option Exercises were valid, the price of Nelson’s shares 

should be determined by the formula in the 2000 Agreement. 

¶ 43 Quarles & Brady also drafted an affidavit for Nelson, which repeated much of the same 

information from Nelson and Korey’s edited comments to the motion for summary judgment, 

including that Curia did not accept Nelson’s September 2004 offer and that “Curia never 

accepted any of [Nelson’s] offers” despite having financing from Fifth Third. Nelson signed the 

affidavit, and it was attached to the summary judgment motion. 

¶ 44 iv. Curia’s Response 

¶ 45 On September 2, 2005, Curia filed an affidavit and a response to Nelson’s statement of 

undisputed facts. In his response, Curia acknowledged that Nelson offered to sell his shares to 

him in July 2004, but Nelson requested a number of provisions including that the corporations 

provide health insurance for Nelson and his wife and new cars for 15 years. Curia contended that 

these demands and the per-share price demanded by Nelson resulted in a purchase price that 

significantly exceeded the prices calculated under the 1989 SPA and 1993 Modification. Curia 

asserted that he did not accept any of Nelson’s offers, but as a courtesy to Nelson, “he listened 

and reacted to every offer Nelson made.” Curia contended that each of Nelson’s offers contained 

the additional provisions from the July offer. In his affidavit, Curia averred that in Paragraph 5 of 

the 1993 Modification, he and Nelson “intended to use the word ‘previously’ rather than the 

word ‘subsequently.’ ” 

- 15 ­
 

 

 

 

 

No. 1-17-1653 

¶ 46 v. Nelson’s Communications with Quarles & Brady Before District Court Ruling 

¶ 47 On September 17, 2005, Nelson sent an email to Shifflett in which he stated that when he 

went to Curia in July 2004 to retire, he put together a retirement package. Nelson stated that he 

thought it would be fair to have some formula for the basis, so he used a basis that they both 

understood and had agreed to before to negotiate. Nelson concluded that he “was not really going 

to [Curia] with the [1989 SPA] in hand, I was going to him with a package that I felt we could 

negotiate on.” Nelson sent another email to Shifflett and Gatziolis on November 22, 2005, 

indicating that he wanted them to communicate to the presiding magistrate that “we have tried to 

negotiate with [Curia] since July of 2004 and put many offers on the table, but without any 

response to our offers.” 

¶ 48 5. The District Court’s Ruling 

¶ 49 On February 7, 2006, the district court entered its judgment. The district court granted 

Nelson’s motion for summary judgment with respect to Mall, but granted Curia’s motion for 

summary judgment with respect to Plaza. The district court found that there was no indication 

that the 1993 Modification was intended to eliminate the options in the 1989 SPA, but was 

intended to correct a mutual mistake by Nelson and Curia in valuing the stock of the corporations 

purchased by Curia. With regard to the “subsequently” language in Paragraph 5 of the 1993 

Modification, the district court determined that where the sentence following the “subsequently” 

sentence established a method for determining the purchase price of the additional shares, it 

would “def[y] reason (particularly in light of the absence of any expression of intent to change 

Curia’s right to buy all Nelson’s shares) that the parties would provide a mechanism for 

determining the purchase price but intend it to kick in only if they subsequently agreed on other 

terms and conditions.” 

- 16 ­
 

 

 

 

 

No. 1-17-1653 

¶ 50 The district court further found that the 2000 Agreement further reinforced Curia’s right 

to purchase Nelson’s stock in Plaza where it provided Curia the right to purchase Nelson’s shares 

if Nelson died while the 1989 SPA and 1993 Modification were still in force. The court 

determined that the 1989 SPA, in conjunction with the 1993 Modification and the 2000 

Agreement, unambiguously provided Curia with the option to purchase Nelson’s shares in Plaza 

with the price determined under the formula set forth in the 2000 Agreement. 

¶ 51 The district court determined, however, that the 1997 Harkness Agreement superseded 

the 1989 SPA and the 1993 Modification with respect to Mall, but not Plaza. Accordingly, the 

district court found that the Mall shares were subject to the 1997 Harkness Agreement and that 

Curia’s Option Exercises were defective with respect to those shares. The selling price of the 

Plaza shares and other issues remained pending in the district court. 

¶ 52 6. Nelson’s Post-Judgment Communications and Further Proceedings 

¶ 53 On March 10, 2006, at Nelson’s request, Toyota sent him two “resolution letters and an 

ownership change proposal letter” that had been sent to Toyota on October 28, 2004. This 

included the Special Meetings of Directors document for Plaza on October 7, 2004. Nelson 

forwarded these documents to Gatziolis and told him that (1) he had never received the “letter,” 

(2) to his knowledge, Toyota had never received a “Resolution of the Board” or any ownership 

change agreement, and (3) perhaps Curia had “made these up.” Nelson sent a second email to 

Gatziolis later that day, stating that he “did not have a copy of this directors meeting.” 

¶ 54 On March 21, 2006, Nelson emailed Julie Thomas at Toyota. Thomas had taken over the 

position of Market Representation Administrator from Samuel Zangri, who had held the position 

in October and November 2004, when Nelson and Curia first contacted Toyota about the 

- 17 ­
 

 

 

 

 

 

 

 

 

No. 1-17-1653 

ownership change. Thomas replied to Nelson’s email that the “original stock purchase agreement 

included both [Plaza] and [Mall]. The total selling price to our understanding was $4,200,000.” 

¶ 55 On June 5, 2006, Quarles & Brady filed an amended complaint on Nelson’s behalf, 

alleging once again that Curia did not have an exercisable option to purchase Nelson’s shares in 

Plaza. Quarles & Brady also alleged that Curia had breached his fiduciary duty and 

misappropriated the corporation’s funds. In response, Curia filed a motion for summary 

judgment, asking the court to find that his Option Exercises were valid. 

¶ 56 On August 29, 2006, Nelson sent an email to Shifflett and Paul Cahill, another attorney at 

Quarles & Brady who had been assigned to work on Nelson’s case, with his comments on 

Curia’s answers. In his comments Nelson stated that he and Curia intended what they wrote in 

the agreements, “not what we now think.” Nelson stated that he initially began negotiations with 

Curia in July 2004 and sent letters to manufacturers at a price he and Curia negotiated and agreed 

to “4.2m (stock only, both corps).” Nelson also noted that there was a letter from Fifth Third, 

showing that it agreed to loan $4.2 million, but it was “then Curia decided that he didn’t want to 

pay much [sic].” Nelson stated that he did not refuse to cooperate, but in September 2004, prior 

to Curia “circumventing” what they had negotiated, he sent letters to the manufacturers, 

recommending the sale. Nelson stated that he and Curia used the 2000 agreement as a “base” and 

then “began adding other perks,” but there was a delay because Curia refused to do what the 

manufacturers demanded. Nelson stated that the delay was also caused by “Curia not seeking the 

corporations[’] accountants to prepare a selling price” because, if he had done so, he would have 

known about “intangible values and goodwill.” Nelson acknowledged that none of the 

agreements used the words goodwill or intangibles, but asserted that he and Curia discussed 

goodwill every time they wrote a new agreement. 

- 18 ­
 

 

 

 

 

 

No. 1-17-1653 

¶ 57 On November 17, 2006, the district court granted Curia’s motion for partial summary 

judgment in part and denied it in part. The district court found that Curia properly exercised his 

option to purchase all of Nelson’s Plaza shares through his Option Exercises on March 2 and 3, 

2005. The court found that the purchase price would be calculated, using the formula in the 2000 

Agreement, and would be based on the February 2005 GM financial statement. 

¶ 58 On November 27, 2006, Korey emailed Shifflett, advising him that “[a]pparently 

sometime back in November of 2004, [Nelson], [Curia] and [Debes] had a meeting where 

[Curia] agreed to pay 4.2 million [for] the stock.” Debes then sent Curia a letter confirming the 

amount and the financing. Korey emailed Shifflett again on December 3, 2006, with suggestions 

for Quarles & Brady’s motion for reconsideration. Korey suggested adding a sentence in the 

motion that stated: “For example, in November or December[ ] 2004, Curia and Nelson agreed 

on a price of 4.2 million for the stock in the presence of Ghram Debes, as evidenced by [the] 

attached letter.” Korey suggested that Quarles & Brady then include the Fifth Third letter from 

November 2004, committing to the $4.2 million loan as an exhibit. 

¶ 59 On June 27, 2007, the district court entered an order granting Curia’s motion for 

summary judgment with regard to specific performance for the sale of Nelson’s Plaza shares. 

The court also found that the 2000 Agreement clearly and unambiguously did not include any 

adjustment for goodwill or other intangible assets in determining the purchase price. The court 

therefore set the purchase price at $2,188,720 for Nelson’s shares in Plaza. The court also left a 

number of issues pending, including whether Curia was entitled to use the name “Ken Nelson” 

for Plaza after he purchased the shares, and whether Curia was required to provide vehicles for 

Nelson and his wife. 

- 19 ­
 

 

 

 

 

No. 1-17-1653 

¶ 60 7. Appeal and Motion for Stay 

¶ 61 Quarles & Brady appealed the district court’s judgment granting Curia’s motion for 

specific performance with regard to the Plaza shares to the Seventh Circuit while the unresolved 

issues the district court identified in its order remained pending in the district court. On 

September 5, 2007, Quarles & Brady filed a motion to stay the district court’s order. In that 

motion, Quarles and Brady alleged for the first time that in “September 2004, Curia and Nelson 

reached a verbal commitment whereby Curia would pay $4,200,000.00 for Nelson’s shares in 

both companies and would provide Nelson with certain perks including two automobiles of his 

choice for a period of 15 years.” The motion also alleged that Curia and Nelson continued to 

negotiate a fair market price for Curia to purchase all of Nelson’s shares in the two corporations, 

but sometime in late 2004 or early 2005, Curia decided that he could pay less than fair market 

value for Nelson’s shares if he tried to enforce the 1989 SPA and 1993 Modification. This 

information mirrored the statements in Nelson’s affidavit that accompanied the motion to stay. 

The district court denied the motion to stay. 

¶ 62 On February 15, 2008, while the appeal was still pending in the Seventh Circuit, Quarles 

& Brady filed a second amended complaint for declaratory relief in the district court. In its claim 

for breach of fiduciary duty in the amended complaint, Quarles & Brady alleged that in 2004 

Curia agreed to purchase Nelson’s shares of Plaza and Mall for $4.2 million. Quarles & Brady 

alleged that Nelson, in reliance on this agreement, worked to obtain the automobile 

manufacturers’ approval for the sale, and Curia indicated to several third parties that he and 

Nelson had reached an agreement, but he subsequently reneged. 

- 20 ­
 

 

 

 

 

No. 1-17-1653 

¶ 63 8. Nelson Discharges Quarles & Brady 

¶ 64 In April 2008, Nelson discharged Quarles & Brady. That same month, pursuant to the 

district court’s order, Nelson sold his shares in Plaza to Curia for $2.188 million. Nelson retained 

attorney Stewart Weltman, who handled the appeal, the remaining issues in the district court, and 

the ultimate settlement with Curia. 

¶ 65 9. Seventh Circuit Ruling and Settlement 

¶ 66 On November 20, 2009, the Seventh Circuit reversed the district court’s ruling granting 

Curia’s motion for summary judgment and remanded the case for further proceedings. Curia v. 

Nelson, 587 F.3d 824, 832 (7th Cir. 2009). In so ruling, the Seventh Circuit found that, despite 

neither party raising the issue, the parties’ written agreements were ambiguous. Id. at 829. 

Specifically, the court found that Paragraph 5 of the 1993 modification did not explicitly cancel 

the options, but it also was not inconsistent with the continued existence of the options. Id. at 

830. Accordingly the court found that summary judgment was inappropriate under the 

circumstances. Id. at 832. 

¶ 67 Rather than continuing the litigation in the district court after remand, in August 2010,
 

Curia and Nelson reached a settlement agreement whereby Nelson transferred all of his shares in
 

Mall to Curia in exchange for releasing Nelson of personal liability for Mall’s debt to Fifth 

Third. As part of the settlement agreement, Curia also paid Nelson $855,888 for Nelson’s 50%
 

ownership stake in CRANK. 

¶ 68 B. Nelson’s Malpractice Action Against Quarles & Brady 

¶ 69 Following the settlement with Curia, Nelson filed a complaint for legal malpractice 

against Quarles & Brady, alleging that it was negligent in its representation of him in the 

Underlying Litigation. The complaint was subsequently amended, and eventually dismissed by 

- 21 ­
 

 

 

 

 

 

 

 

No. 1-17-1653 

the circuit court pursuant to section 2-615 of the Code of Civil Procedure (Code) (735 ILCS 5/2­

615 (West 2010)). Nelson appealed, and this court reversed and remanded, finding that, based on 

Nelson’s allegations, it could not be said that Nelson could prove no set of facts from which a 

jury could find Quarles & Brady’s alleged negligence was the proximate cause of Nelson’s 

damages. Nelson v. Quarles & Brady, LLP, 2013 IL App (1st) 123122, ¶ 75. 

¶ 70 On remand, Nelson filed the complaint at bar, alleging that Quarles & Brady was 

negligent in its representation throughout the Underlying Litigation. Specifically, Nelson alleged 

that Quarles & Brady was negligent in (1) failing to argue that Curia’s Option Exercises were 

ineffective because they were not the mirror image of the 1989 SPA options, (2) failing to argue 

that the 1989 SPA and subsequent agreements were ambiguous, and (3) failing to investigate and 

enforce the $4.2 million oral agreement that Nelson and Curia reached in 2004. At trial, 15 

witnesses testified over the course of 15 days, including Shifflett, Gatziolis, Nelson, Curia, and 

two expert witnesses. 

¶ 71 1. Curia’s Option Exercises 

¶ 72 Shifflett testified that his primary goal in filing the complaint was to defeat Curia’s 

Option Exercises. He acknowledged Curia’s Option Exercises attempted to purchase a different 

number of shares than the amount of shares listed in the 1989 SPA options, but testified that he 

did not raise an argument that the Option Exercises were defective because they were not the 

mirror image of the 1989 SPA options because he did not think it would be persuasive. He 

testified that Quarles & Brady considered raising that argument, and the argument appeared in a 

draft of the reply brief in the Underlying Litigation, but Quarles & Brady ultimately chose to not 

raise that argument because the changes in the number of shares were agreed to by the parties in 

subsequent documents and because the second option in 1989 SPA provided Curia the option to 

- 22 ­
 

 

 

 

 

No. 1-17-1653 

purchase 49% of the outstanding shares and third option provided Curia the option to purchase 

Nelson’s “remaining” shares, which is what Curia sought in his Option Exercises. He noted that 

because the 1989 SPA options provided a percentage, he believed that relevant case law would 

have supported the idea that as long as Curia purchased 49% of the shares with the second option 

and the remaining shares with the third option, as specified in the 1989 SPA, the district court 

could make an equitable adjustment to the actual number of shares to allow the purchase to go 

forward. 

¶ 73 Edward Joyce, Nelson’s expert witness, testified that Quarles & Brady should have 

argued that Curia’s Option Exercises were defective because they were not a mirror image of the 

1989 SPA options. Joyce testified that as a result of the corporations’ recapitalization following 

the 1989 SPA, it would have been impossible for Curia to exercise the options pursuant to the 

terms of the 1989 SP, and thus his Option Exercises were ineffective. Joyce also testified that the 

case Shifflett relied on in contending that the court could make equitable adjustments to the 

number of shares was not relevant because the agreement in that case had a provision allowing 

the number of shares to be adjusted in the event of recapitalization, but there was no such 

provision in Nelson and Curia’s agreements. Joyce opined that had Quarles & Brady raised this 

argument, it was more likely true than not that they would have defeated Curia’s summary 

judgment motion. Joyce noted that there would be no disadvantage to raising this argument as an 

alternative method of relief and that Quarles & Brady’s failure to raise this argument showed a 

failure to exercise the knowledge, skill, and care ordinarily used by a reasonably careful attorney 

under the circumstances. 

¶ 74 On cross-examination, Joyce acknowledged that Quarles & Brady made a version of the 

mirror image argument by including a contention that Curia’s Option Exercises erroneously used 

- 23 ­
 

 

 

 

 

 

No. 1-17-1653 

the price formula from the 1993 Modification. However, Joyce testified that these were the 

wrong facts to support this claim and that Quarles & Brady should have instead argued that Curia 

attempted to purchase the wrong number of shares or that the options required Curia to offer to 

purchase Plaza’s real estate. Joyce also acknowledged that Nelson could have raised these 

arguments on remand from the Seventh Circuit. 

¶ 75 Gino DiVito, Quarles & Brady’s expert, testified that it was unnecessary for Quarles & 

Brady to argue that the number of shares had changed from the 1989 SPA, because, as Shifflett 

testified, the second option specified a percentage of shares, 49%, for Curia to purchase and then 

the third option specified that Curia could purchase the “remaining” shares. DiVito noted that 

Curia’s Option Exercises mirrored these terms. DiVito also acknowledged that this argument 

was included in a draft brief by Quarles & Brady, but ultimately was not raised. 

¶ 76 2. Ambiguity 

¶ 77 With regard to ambiguity, Shifflett testified that he argued the written agreements were 

unambiguous in the motion for summary judgment because he did not believe there were any 

issues of fact to resolve. He also testified that Nelson did not provide any extrinsic evidence that 

would offer a different interpretation of the 1993 Modification. Gatziolis testified that part of 

their strategy at trial was to avoid discovery and get a ruling on their summary judgment motion. 

Shifflett testified that if there were an ambiguity in the written agreements, the district court 

could identify it, sua sponte, and deny the motion for summary judgment, and Quarles & Brady 

would be able to better focus its discovery. 

¶ 78 Joyce testified that Quarles & Brady should have argued that the written agreements were 

ambiguous. Joyce noted that Paragraph 5 of the 1993 Modification, the “subsequently” 

paragraph, did not specify how many shares Curia would purchase or how Curia would pay for 

- 24 ­
 

 

 

 

 

 

No. 1-17-1653 

them. Joyce further testified that it was ambiguous whether this paragraph was consistent with 

the 1989 SPA. Joyce testified that reading all of the agreements together, there was no clear 

indication of how Curia could exercise his options or whether he had a right to purchase 

Nelson’s shares. Joyce further testified that if the district court found the agreements were 

ambiguous, it would not have granted Curia’s motion for summary judgment, and there would 

have been an evidentiary hearing where Quarles & Brady could have introduced extrinsic 

evidence to demonstrate what Curia and Nelson thought when they entered into the agreement. 

Joyce testified that, within a reasonable degree of certainty, he believed that this argument would 

have prevailed had Quarles & Brady raised it before the district court. On cross-examination, 

Joyce acknowledged that although the Seventh Circuit found the agreements ambiguous, it also 

found that the interpretation of the written agreements urged by Quarles & Brady before the 

district court was a reasonable one. 

¶ 79 DiVito testified that it was reasonable under the circumstances for Quarles & Brady to 

argue that the written agreements were not ambiguous. He testified that it was reasonable for 

Quarles & Brady’s to argue that Paragraph 5 of the 1993 Modification negated any unilateral 

right by Curia to exercise the options. He opined that there was no downside to arguing that the 

agreements were not ambiguous because the district court could find, sua sponte, that the 

agreements were ambiguous, regardless of what the parties claimed. He also noted that arguing 

ambiguity could have opened the door for Curia to raise arguments about what the parties 

intended when they entered into the agreements. 

¶ 80 3. $4.2 Million Oral Agreement 

¶ 81 Nelson testified that in 2004, he decided he wanted to leave the automobile dealership 

business and retire. He approached Curia about buying out his share of stock in Plaza and Mall, 

- 25 ­
 

 

 

 

 

 

No. 1-17-1653 

and Curia agreed. They based the price on the formula in the 1989 SPA and the June 2004 GM 

financial statement and came up with a price a little more than $4.1 million, so they rounded it up 

to $4.2 million for Nelson’s shares in both Plaza and Mall. Nelson testified that he said “I’ll sell 

you my shares for [$]4,200,000,” and Curia was “very excited” and said “yes.” 

¶ 82 Nelson testified that they did not discuss when the deal would close at that time, but they 

knew they needed the automobile manufacturers’ approval for the transaction to approve Curia 

as the dealer. Nelson testified that he would have handled that process and that he could not 

direct the manufacturers to process an approval within a certain period of time. Nelson testified 

that neither he nor Curia said that the deal would not take place if they could not close the 

transaction by December 31, 2004. 

¶ 83 Nelson further testified that in August or September, he and Curia met with Debes to ask 

Fifth Third to fund the $4.2 million to buy the stock. After that meeting, Nelson and Curia 

discussed the perks that Nelson was seeking, such as the health insurance and vehicles, and Curia 

indicated that he would be willing to provide those perks in exchange for the continued use of 

Nelson’s name for the dealerships. Nelson testified that he prepared the Stockholders’ Minutes 

and the Directors’ Resolutions. He believed that the nine conditions in the Stockholders’ Minutes 

were a separate agreement from the $4.2 million stock purchase agreement. He also testified that 

the “agreement” referred to in the Directors’ Resolutions was the $4.2 million oral agreement. 

Nelson testified that Curia signed the Directors’ Resolutions, but did not sign the Stockholders’ 

Minutes because he said it was “too much.” Nelson nonetheless moved forward with contacting 

the manufacturers to obtain approval for the transaction. 

¶ 84 Curia testified that, in 2004, he told Nelson that he wanted to “abide” by their written 

agreements and buy out his shares. Nelson, however, wanted more than what was provided for in 

- 26 ­
 

 

No. 1-17-1653 

the agreements; he wanted a retirement package. Curia testified that he never accepted any of 

Nelson’s offers to sell his shares, and he never agreed to two separate agreements—one for the 

sale of Nelson’s shares and one for the retirement package for Nelson. Curia testified that when 

he signed the Directors’ Resolutions, he believed he had an agreement to buy Nelson’s shares for 

a “sum certain” as calculated in accordance with the 1989 SPA. Curia further testified that when 

he went to Fifth Third in 2004 and secured funding for the purchase of Nelson’s shares, it was 

merely a preapproval and was not tied to any purchase price because the actual price of the 

shares could change each month, depending on the performance of the dealership, and the GM 

financial statements. Curia knew that as part of the approval process, he would have to provide 

manufacturers with proof that he could secure the funds to proceed with the buyout. Curia 

testified that his intention was to borrow enough money to purchase Nelson’s shares and to use 

the remainder as working capital and “combine loans.” 

¶ 85 Nelson testified that, in late November or early December 2004, Curia told him that he 

was paying too much for Nelson’s shares. On December 3, 2004, he sent a letter to Curia, 

attempting to renegotiate the sale. He testified that he did not mention their $4.2 million oral 

agreement in this letter because Curia had already rejected that offer, so he was attempting to 

make another offer to sell his shares for $3.4 million, but Curia did not accept. In January 2005, 

he and Curia discussed approaching a broker to find a third party to purchase the dealerships and 

the real estate. 

¶ 86 After receiving Curia’s Option Exercises in March 2005, Nelson sent a letter to Johnson 

at Quarles & Brady. Nelson testified that the Johnson Letter did not mention the $4.2 million oral 

agreement because at the time he was only concerned with Curia’s Option Exercises. With the 

assistance of Gatziolis, Nelson sent a letter to Curia on March 14, 2005, with an offer to sell his 

- 27 ­
 

 

 

 

 

 

No. 1-17-1653 

shares for $3.4 million based on the September 2004 GM financial statement. Nelson understood 

that if Curia accepted the offer in this letter, he would not receive any retirement package or 

perks. Nelson acknowledged that he sent an email to Gatziolis on March 29, 2005, in which he 

did not mention the $4.2 million oral agreement. 

¶ 87 On April 20, 2005, Nelson, Carol, and Korey met with Gatziolis at the Quarles & Brady 

office in Chicago. Nelson testified that, at that meeting, he told Gatziolis about the $4.2 million 

oral agreement and that Fifth Third had agreed to fund the transaction. Nelson testified that 

Gatziolis told him that oral agreements were not recognized in Illinois and did not ask him if he 

could provide any more information about the oral agreement. Carol testified that during the 

meeting, she was taking notes, but was not paying close attention. Referring to her notes, Carol 

testified that Gatziolis told them to “get over it,” and she believed that when he said that, he was 

referring to the $4.2 million oral agreement based on a “4.2” she had also written on the page. 

She acknowledged on cross-examination, however, that, based on her notes, she could not be 

sure whether that was said by Gatziolis or Nelson or whether the notes were her own thoughts. 

¶ 88 Korey, who was the secretary of Mall and Plaza, and also a director, testified that the 

purpose of the April 20, 2005, meeting with Gatziolis was to try to reach a resolution with Curia 

after he had sent notice of his intent to exercise his options to purchase Nelson’s shares. Korey 

testified that Nelson told Gatziolis that he and Curia had reached an oral agreement to sell his 

shares in both Plaza and Mall for $4.2 million. Gatziolis asked Nelson if he had written the 

agreement down, but Nelson told him that they had not. Gatziolis told Nelson that “oral 

agreements are not enforceable in the state of Illinois. You can ask Korey about it. He knows. He 

studied the statute of frauds in law school.” Throughout the meeting, Gatziolis repeatedly told 

Neslon to get a deal done with Curia so that he could move on and retire. 

- 28 ­
 

 

 

 

No. 1-17-1653 

¶ 89 Gatziolis testified that when he first became involved in Nelson’s case, Nelson wanted to 

know if he was required to honor Curia’s Option Exercises. He learned that Nelson wanted to 

sell all of his shares and retire, but wanted a different price than what Curia had offered. He 

helped Nelson write a letter to Curia on March 13, 2005, and did not recall Nelson telling him 

about any oral agreement for $4.2 million. Before meeting with Nelson, Gatziolis reviewed the 

Directors’ Resolutions, the 1989 SPA, and subsequent written agreements; the November 2004 

Fifth Third loan commitment letter for $4.2 million; and the other materials in the Johnson 

Packet, including the Chronology with Curia’s responses. Gatziolis testified that none of these 

documents raised a question in his mind that Curia and Nelson had entered into an oral 

agreement in 2004. Specifically, Gatziolis testified that the comments made by Curia and Nelson 

in the Johnson Packet showed that they were not in agreement about the retirement package. 

Gatziolis further noted that there was no mention of sale price of $4.2 million in any of the 

documents he reviewed. 

¶ 90 Gatziolis further testified that Nelson did not tell him about a $4.2 million oral agreement 

at the April 2005 meeting or in any of their communication before the meeting. He testified that 

he did not tell the Nelsons at the April 2005 meeting that oral contracts were not enforceable in 

Illinois. He further testified that, in April 2005, he understood that an oral agreement for the sale 

of stock could be enforced in Illinois with adequate evidence. He acknowledged, however, at his 

deposition that he testified that he did not recall whether the Nelsons told him there was an oral 

agreement for $4.2 million or whether he told them it was not enforceable and to get the deal 

behind them. 

¶ 91 On April 27, 2005, Nelson sent an email to Gatziolis, in which he stated that he and Curia 

began “this process” in September 2004. Nelson said that he and Curia met with Debes at Fifth 

- 29 ­
 

 

 

 

 

 

 

 

No. 1-17-1653 

Third to discuss their needs and “came up with 4.2M of funds” and Debes approved that amount. 

Nelson stated that “[s]ince that was the figure we agreed that we needed, perhaps that would be 

the selling price including all the perks, etc[.], that [Curia] would be more comfortable with.” 

Gatziolis forwarded the email to Shifflett and Cahill, and stated, “[f]ood for thought, although 

more like a fast.” 

¶ 92 On April 29, 2005, hours before Quarles & Brady filed the initial complaint in the district 

court, Nelson sent another email to Gatziolis in which he stated, among other things, that Fifth 

Third agreed to loan Curia “up to” $4.2 million to purchase his shares in both corporations. 

Nelson further stated that “[Curia] and I agreed along with the Bank that the [$4.2 million] 

would be about what the selling price would be.” Nelson then identified the issues that he 

believed needed to be addressed going forward including the stock sale “which includes some 

type of Retirement Package.” 

¶ 93 Gatziolis testified that neither of these emails raised the question of an agreement in his 

mind because the words “perhaps” and “about” and the phrase “up to” suggested that Nelson and 

Curia had agreed approximately what the selling price would be, but did not indicate an 

agreement because these were not definite terms. Gatziolis testified that Nelson did not tell him 

at any point before Quarles & Brady filed the complaint in the district court that he and Curia 

had agreed on a selling price of $4.2 million. Gatziolis further testified that he knew from his 

prior experience that in order for a change of ownership for an automobile dealership to be 

approved, the owners would have to submit information to the automobile manufacturers. 

Gatziolis acknowledged, however, that he did not contact the automobile manufacturers to 

determine if they had documentation that would support a claim for an agreement between 

Nelson and Curia for $4.2 million. 

- 30 ­
 

 

 

No. 1-17-1653 

¶ 94 Gatziolis testified that throughout the representation, his understanding was that Nelson 

would not settle unless he obtained the selling price he was looking for the shares and a 

retirement package. Gatziolis encouraged Nelson to settle while the litigation was pending and 

testified that he allowed Nelson to determine his own offers for a selling price during the 

negotiations. 

¶ 95 Gatziolis and Shifflett testified that the initial complaint was filed on April 29, 2005. 

Both testified that the purpose for filing the complaint was to have something pending in the 

court before the closing date on Curia’s Option Exercises on May 2. Shifflett and Gatziolis 

testified that Shifflett handled the litigation while Gatziolis mostly handled the settlement 

negotiations. Shifflett testified that when he filed the complaint, he had the information in the 

Johnson Packet, the Directors’ Resolutions, and the emails Nelson sent to Gatziolis on April 27 

and April 29. Shifflett was unsure whether he had the letter from Fifth Third from November 

2004, committing to the loan of $4.2 million, but in any event he testified that he did not ask 

Nelson about the letter before filing suit. Shifflett testified that none of the information he 

received before filing the complaint put him on notice to investigate a potential oral agreement 

between Curia and Nelson. 

¶ 96 Shifflett testified that he did not believe he had a duty to investigate a potential oral 

agreement because Nelson’s letters to Curia indicated that they were not in agreement. Shifflett 

also observed that Curia had not signed the Stockholders’ Minutes, and at no point did Nelson 

say that he and Curia had an agreement to sell his shares for $4.2 million. Shifflett also knew that 

Nelson and Curia would be required to submit information to the automobile manufacturers in 

order to approve the sale, but he did not know what information they had submitted. When he 

- 31 ­
 

 

 

 

 

 

 

No. 1-17-1653 

started working on the complaint, he asked Nelson to give him everything he had, but did not 

contact the manufacturers. 

¶ 97 Shifflett testified that his primary goal in filing the complaint was not to force Curia to 

purchase Nelson’s stock for $4.2 million, but was to defeat Curia’s Option Exercises. Shifflett 

testified that he believed that if Curia’s options were “knock[ed] out,” Nelson would be able to 

negotiate the sale of his shares to Curia, but as long as the options existed, Curia would not 

negotiate. Shifflett believed Nelson’s goal was to establish a purchase price for all the stock, with 

the addition of some added benefits, and not just for the stock alone. 

¶ 98 Shifflett acknowledged that the complaint did not include a contention that Curia and 

Nelson had reached an agreement for Curia to buy Nelson’s shares for $4.2 million. Shifflett 

testified that he believed there was insufficient evidence to support such a claim. Shifflett knew 

that Curia and Nelson had negotiated in the summer of 2004, but did not believe they had 

reached an agreement at any point. Like Gatziolis, Shifflett testified that the emails Nelson sent 

on April 27 and April 29 did not raise the possibility of an agreement because Nelson used words 

like “perhaps,” “about,” and “up to.” Shifflett testified that he discussed the filings with Nelson 

and that Nelson never mentioned an oral agreement to sell his shares to Curia for $4.2 million. 

¶ 99 Nelson conceded that he did not say anything about the oral $4.2 million agreement in the 

Johnson Letter or the Johnson packet. He acknowledged that there was nothing about the 

agreement in the March 2005 letter to Curia that Gatziolis helped him write or in the July 2005 

Ken’s Story. Nelson further acknowledged that neither he nor Korey included any information 

about a July 2004 agreement or an oral agreement for $4.2 million when they edited the filings 

and returned them to Quarles & Brady. 

- 32 ­
 

 

 

 

 

 

No. 1-17-1653 

¶ 100 After the district court granted Curia’s motion for summary judgment, Nelson testified 

that he contacted Thomas at Toyota to ask for the purchase price that Curia included with his 

application. Thomas replied that the original agreement was for both Plaza and Mall and that 

Toyota’s “understanding” was for a purchase price of $4.2 million. Nelson testified that he 

shared this information with Gatziolis and Shifflett in March 2006, but neither of them recalled 

receiving this information at that time. 

¶ 101 Shifflett testified that the first time he received any communication about a potential oral 

agreement for $4.2 million was Nelson’s email from August 29, 2006, after the district court had 

ruled on the summary judgment motions. Shifflett, however, did not believe that this email was 

definitive because Nelson said in the email that he sent the information about the agreement to 

the manufacturers, but Shifflett noted that Nelson’s letters to the manufacturers did not include 

any information about a $4.2 million agreement. Shifflett had no reason to believe Nelson had 

sent any additional documentation to the manufacturers because Shifflett had previously asked 

Nelson to send him “everything.” In addition, Shifflett testified that he believed Nelson still 

wanted all of his retirement perks and that he and Curia were still negotiating those items and 

had not actually reached an agreement. Shifflett testified that the information in this email did 

not create a sufficient basis to file an amended complaint alleging the existence of an oral 

agreement for $4.2 million. 

¶ 102 Shifflett also acknowledged that he received emails from Korey in November and 

December of 2006, in which Korey stated that Curia agreed to purchase Nelson’s shares for $4.2 

million and that they discussed this agreement in the presence of Debes. Shifflett testified that he 

did not contact Debes for more information, because he believed Debes was biased toward Curia. 

- 33 ­
 

 

 

No. 1-17-1653 

¶ 103 Debes testified that Nelson and Curia approached him in September 2004 about a request 

for a loan for Curia to purchase all of Nelson’s shares in the two dealerships. Debes testified, 

however, that Nelson and Curia never told him that they had reached an oral agreement for the 

sale of the shares, but could not say whether Curia and Nelson had conversations between each 

other in which they reached an agreement. He testified that when generating the loan documents, 

he understood that Curia and Nelson were still negotiating toward a deal because they had 

differing views about what Curia would pay for the shares and what Nelson would accept for 

them. Debes testified that Fifth Third would not have disbursed the funds based on an oral 

agreement and would have also needed the manufacturers’ approval before it would disburse the 

funds. 

¶ 104 With regard to the November 2004 letter committing Fifth Third to the $4.2 million loan, 

Debes testified that the commitment letter provided that the funds would be issued for the 

purchase of Nelson’s shares in Plaza and Mall, and that it would be inconsistent with Fifth 

Third’s approval for Curia to use the funds for another purpose. He testified, however, that it was 

common in a situation like this one to get preapproval even before the final terms of the 

agreement were established. Debes acknowledged that he sent these loan documents to Toyota 

and Nissan at Curia’s request. Debes also acknowledged that he cooperated with Curia’s attorney 

during the Underlying Litigation because Fifth Third wanted Curia to become the owner of the 

dealerships. 

¶ 105 Shifflett testified that, in early 2008, Nelson told him that he received information from 

Thomas at Toyota about a $4.2 million price, and Shifflett told him to get more information. 

Shifflett testified that he did not contact Thomas because he believed she would direct him to 

Toyota’s legal department because he was a lawyer. On February 15, 2008, Quarles & Brady 

- 34 ­
 

 

No. 1-17-1653 

filed an amended complaint in the district court, alleging that in 2004 Curia agreed to purchase 

Nelson’s shares for $4.2 million. Shifflett said this allegation was based on the information from 

Nelson that Thomas had documentation reflecting a purchase price of $4.2 million. On March 

20, 2008, Nelson emailed Shifflett to inform him that he asked Thomas when she received 

information from Curia that he was paying $4.2 million for the two dealerships. Nelson learned 

that Curia did not send a document to Toyota containing that information, but Thomas told him 

there was notation in her notes that the figure came from a communication with Curia that 

occurred in November 2004, before Thomas started in the position and Zangri was the Market 

Representation Administrator for Toyota. 

¶ 106 Thomas testified that she had no personal knowledge of what happened between Zangri 

and Nelson or Curia. She testified that she likely would have had some documentation to support 

the $4.2 million figure in her email to Nelson, but she did not know where that amount came 

from. She testified that Toyota would have to know the purchase price of the shares in order to 

finalize the approval process. Zangri testified that in connection with the change of ownership 

for Plaza and Mall, Toyota received the Directors’ Resolutions. Based on these documents, 

Zangri made an “assumption” that Curia had negotiated a deal to buy out Nelson’s remaining 

shares. Zangri testified that he started the review process based on the information provided by 

Nelson and Curia and that he would not start that process unless there was an agreement that had 

been reached. He further testified, however, that in all the information Toyota received from 

Nelson or Curia, there were no terms of a deal or a price term. Zangri also testified that Toyota 

would not have approved the transaction based on the November 2004 loan commitment letter 

from Fifth Third because the loan agreement allowed shares of the dealership to be pledged to a 

- 35 ­
 

 

 

 

 

No. 1-17-1653 

third party and allowed for the debt to be cross-collateralized, which ran afoul of Toyota 

standards. 

¶ 107 Fariborz Nour testified at his deposition that he was the market representation specialist 

for Nissan in 2004 and 2005, and similarly testified that Nissan did not have documentation 

showing the purchase price or terms of an agreement between Nelson and Curia. He testified, 

however, that based on his experience, a request for the approval of a change of majority 

ownership interest would “not really get off the ground” without an asset or stock purchase 

agreement, but could not say whether such an agreement was provided in this case. Nour 

testified that he could not say whether Nissan required owners to provide a purchase price for the 

shares, but testified that it was not one of his requirements. 

¶ 108 a. Expert Witness Testimony 

¶ 109 Joyce testified that based on the information Quarles & Brady had prior to filing the 

complaint, they should have been aware of a potential agreement between Curia and Nelson for 

the sale of Nelson’s shares. Specially, Joyce testified that based on the Fifth Third letter from 

November 2004, it should have been “obvious” to Quarles & Brady to contact the bank and 

determine the purpose of the loan commitment. Joyce also observed that the Directors’ 

Resolutions provided that Nelson would contact the manufacturers in connection with an 

agreement, which should have prompted Quarles & Brady to contact the manufacturers to 

determine what documentation they had related to the sale of the corporations’ shares to Curia. 

Joyce testified that, in his opinion, a reasonably careful attorney under the circumstances would 

have conducted this investigation before filing the complaint. Joyce acknowledged, however, 

that the Directors’ Resolutions did not refer to a $4.2 million agreement. 

- 36 ­
 

 

 

No. 1-17-1653 

¶ 110 Joyce further testified that if Quarles & Brady had contacted Nissan and Toyota, they 

would have obtained documents that Curia had submitted to those manufacturers, which could 

have contained terms of the agreement and showed that Curia had been contacting the 

manufacturers in connection with a potential agreement. Joyce noted that Thomas told Nelson 

that her notes reflected that Curia told Toyota that he had agreed to purchase Nelson’s shares for 

$4.2 million. He acknowledged, however, that Thomas could not provide any documentation 

supporting this statement, and that Thomas was not employed at that position at Toyota when the 

approval process started, so she had no personal knowledge of Curia’s representations. Joyce 

also noted that there were documents that Nissan had sent to Nelson and Curia that stated that 

Nissan had approved the stock purchase agreement between Nelson and Curia. He further opined 

that Quarles & Brady would have learned from the manufacturers that they will not start 

processing an approval for a sale of a majority ownership interest until they are satisfied there 

has been an agreement between the parties. 

¶ 111 Joyce further testified that if Quarles & Brady had undertaken this investigation, they 

would have learned that Nelson’s goal in retaining them was to sell all of his shares of stock in 

the two dealerships for $4.2 million. Based on their investigation, Quarles & Brady should have 

informed Nelson that he had an enforceable oral contract between him and Curia for the sale of 

his shares in the two dealerships for $4.2 million. Joyce testified that Nelson would have had a 

very strong claim for breach of oral contract against Curia based on the evidence from Fifth 

Third that it had committed to the $4.2 million loan and the information from the manufacturers 

that they had been asked to approve a sale of Nelson’s majority interest to Curia. 

¶ 112 With regard to the retirement benefits, Joyce testified that Nelson believed that he had a 

deal for these benefits, but Curia did not. Joyce opined that whether those benefits were part of 

- 37 ­
 

 

 

 

No. 1-17-1653 

the stock sale agreement would be reserved for the trier of fact. Nonetheless, Joyce testified that 

these benefits had no relevance to the stock sale for $4.2 million because Curia and Nelson 

viewed them as separate transaction. Joyce noted that both parties continued to process the sale 

by contacting the manufacturers and Fifth Third even after Curia did not sign the Stockholders’ 

Minutes, which outlined the retirement benefits. Joyce did not believe the perks were a condition 

of the stock sale agreement. 

¶ 113 Joyce also testified that Gatziolis, in telling Nelson that oral contracts are not enforceable 

in Illinois, did not perform as a reasonably careful lawyer under the circumstances. Joyce noted 

that the two emails Nelson sent to Gatziolis on April 27 and April 29, 2005, should have 

provoked Gatziolis to speak to Fifth Third to determine the purpose of the loan. After 

investigating Fifth Third and the manufacturers, Gatziolis should have interviewed Nelson and 

would have learned about Nelson’s goals and his attempts to continue the approval process with 

the manufacturers after Curia reneged. Joyce testified that Gatziolis should have directly asked 

Nelson for any documents related to the sale of stock to identify other potential sources of 

information that would help him determine Nelson’s rights and obligations. 

¶ 114 Joyce testified that Quarles & Brady should have included an argument regarding the 

$4.2 million oral contract in the complaint because merely defeating the stock options, as 

Quarles & Brady sought to do with the complaint, would not have achieved Nelson’s goal; 

Nelson still would have retained his ownership interest in the dealerships if he had prevailed. An 

argument that he and Curia had entered into an oral agreement to sell Nelson’s shares for $4.2 

million, however, would have achieved Nelson’s goal if he had prevailed. Joyce opined that, 

based on the documentation and testimony available to Quarles & Brady, it was more likely true 

than not that Nelson would have prevailed on the argument that he had a valid and enforceable 

- 38 ­
 

 

 

 

No. 1-17-1653 

oral contract with Curia for the sale of his shares for $4.2 million if Quarles & Brady had raised 

that argument before the district court. Joyce concluded that Quarles & Brady’s failure to assert 

this argument demonstrated Quarles & Brady’s failure to perform as a reasonably careful lawyer 

under the circumstances. 

¶ 115 DiVito testified that, in his opinion, Quarles & Brady used the experience, skill, and 

knowledge that a reasonably careful lawyer would use under the circumstances. He testified that 

Quarles & Brady was entitled to rely on the information provided to them by Nelson in the 

Johnson Letter, and the other documents Nelson submitted to Quarles & Brady. DiVito opined 

that this documentary evidence, as well as the other information Nelson provided to Quarles & 

Brady, did not support a claim for an oral agreement. DiVito noted that in the documentation that 

he reviewed in preparation for his testimony, he did not see any contemporaneous evidence that 

referenced, documented, or confirmed the alleged oral agreement. DiVito testified that, instead, 

the documentation indicated that, from the beginning, Nelson was “bemoaning” that Curia would 

not negotiate with him and declined all of his offers. DiVito testified that if Nelson and Curia had 

reached an oral agreement, Nelson would be “screaming it from the rooftops” and not saying that 

Curia had not accepted his offers. DiVito testified that Quarles & Brady did not have a duty to 

interview Nelson about a potential oral agreement because they did not have any information 

regarding the possibility of the existence of such an agreement in 2005. DiVito testified that 

Gatziolis’ testimony and the documentary evidence indicated that Gatziolis may have known 

about the loan commitment from Fifth Third and the negotiations between Nelson and Curia, but 

he had no reason to know about any oral agreement. 

¶ 116 DiVito further testified that Quarles & Brady had no duty to contact the automobile 

manufacturers because they already had all of the information from Nelson. Quarles & Brady 

- 39 ­
 

 

 

 

No. 1-17-1653 

had no reason to suspect that there was an oral agreement because all of the information they had 

from Nelson indicated there was no agreement. DiVito testified that Quarles & Brady also had 

no duty to contact Fifth Third. DiVito concluded that, at the time the complaint was filed, there 

was no evidence to allege the existence of an oral agreement for $4.2 million and the arguments 

Quarles & Brady made in the complaint were reasonable in an attempt to defeat Curia’s Option 

Exercises. DiVito noted that the evidence showed that Quarles & Brady did not become aware of 

a potential oral agreement until the second half of 2006, after the district court had already ruled. 

¶ 117 4. The Circuit Court’s Ruling 

¶ 118 The circuit court delivered its judgment in a written order. In its order, the circuit court 

recounted the testimony of Joyce and found that the evidence presented failed to show that 

Quarles & Brady was aware, before filing the lawsuit in the district court on April 29, 2005, that 

Nelson believed he had reached an oral agreement for the sale of his shares only for $4.2 million. 

The court continued that even after Quarles & Brady filed the lawsuit, Nelson’s continued 

communication with Quarles & Brady did not reveal such an agreement. Instead, the court found 

that the evidence suggested that Nelson desired to reach an agreement with Curia, made efforts 

in furtherance of a sale, and negotiated over terms, but ultimately did not reach an agreement 

with Curia. The court determined that it only became clear after the district court ruled that 

Nelson was claiming that he had reached an enforceable oral agreement with Curia. Ultimately, 

the court determined that “[w]hen segregating the evidence of what [Quarles & Brady] was told, 

or learned over time, from the evidence which would have been admissible at a trial for breach of 

contract, it becomes clear that plaintiff has failed to establish that it is more likely than not that 

Nelson would have won that breach of contract case.” The court therefore determined that 

Nelson had failed to establish the proximate cause element of his legal malpractice claim. 

- 40 ­
 

 

 

 

 

 

No. 1-17-1653 

¶ 119 The court further found that Nelson had failed to establish negligence with regard to his 

claims that Quarles & Brady should have argued that Curia’s Option Exercises were invalid 

because they were not the mirror image of the 1989 SPA options and that the written agreements 

were ambiguous. The court determined that Quarles & Brady’s positions could not judged by 

their outcome, but rather should be judged by whether Quarles & Brady deviated from the 

standard of care. The court further found that Nelson failed to establish proximate cause with 

regard to Quarles & Brady’s failure to raise those arguments because, after the Seventh Circuit 

reversed and remanded the case, Nelson elected to settle with Curia and thus forfeited his right to 

pursue further litigation on remand. Nelson now appeals. 

¶ 120 II. ANALYSIS 

¶ 121 On appeal, Nelson contends that the circuit court erred in rejecting his legal malpractice 

claim where the evidence overwhelming showed that Nelson and Curia entered into an oral 

agreement for Curia to purchase Nelson’s stock for $4.2 million and that Quarles & Brady was 

aware of the agreement by the time it filed the complaint in April 2005. Nelson contends that the 

court erred in rejecting his claim that Quarles & Brady was negligent for failing to assert this 

claim in the district court. Nelson further contends that the court erred in rejecting his claim that 

Quarles & Brady deviated from the standard of care by failing to argue that Curia’s Option 

Exercises were defective because they were not the mirror image of the options in the 1989 SPA. 

Nelson also asserts that the court erred in rejecting his claim that Quarles & Brady deviated from 

the standard of care by failing to argue that the written agreements were ambiguous. Finally, 

Nelson contends that the court erred in finding that Quarles & Brady’s negligence was not the 

proximate cause of his damages. 

- 41 ­
 

 

 

No. 1-17-1653 

¶ 122 A. Standard of Review 

¶ 123 To prevail on a claim of legal malpractice, a plaintiff must show (1) an attorney-client 

relationship, (2) that the defendant attorney owed the plaintiff client a duty of care arising out of 

that attorney-client relationship, (3) that the defendant attorney breached that duty, and (4) that 

the plaintiff client suffered injury as a proximate result of the defendant attorney’s breach. 

Warnock v. Karm Winand & Patterson, 376 Ill. App. 3d 364, 368 (2007) (citing Northern Illinois 

Emergency Physicians v. Landau, Omahana & Kopka, Ltd., 216 Ill. 2d 294, 306 (2005)). In 

order to establish proximate cause in a legal malpractice action, the plaintiff client must 

essentially prove “a case within a case,” i.e., that “but for” the attorney’s negligence, the plaintiff 

would have prevailed in the underlying action. See First National Bank of LaGrange v. Lowrey, 

375 Ill. App. 3d 181, 196 (2007). The injury in a legal malpractice action is not a personal injury, 

or the attorney’s negligent act itself, but is a “pecuniary injury to an intangible property interest 

caused by the lawyer’s negligent act or omission.” Northern Illinois Emergency Physicians, 216 

Ill. 2d at 306. 

¶ 124 As both parties recognize, generally, the standard of review in a bench trial for a legal 

malpractice action is whether the court’s judgment was against the manifest weight of the 

evidence. Eychaner v. Gross, 202 Ill. 2d 228, 251 (2002); Kalata v. Anheuser-Busch Cos., 144 

Ill. 2d 425, 433 (1991). “A decision is against the manifest weight of the evidence only when an 

opposite conclusion is apparent or when the findings appear to be unreasonable, arbitrary, or not 

based on the evidence.” Eychaner, 202 Ill. 2d at 252. On review, we will not substitute our 

judgment for that of the trier of fact. Id. 

¶ 125 Despite acknowledging this general rule, Nelson nonetheless contends that this court 

should not accord the circuit court’s ruling any deference. Nelson asserts that, in its order, the 

- 42 ­
 

 

 

 

 

 

 

 

No. 1-17-1653 

circuit court did not make any specific factual findings and that aspects of its decision were 

contrary to uncontested facts and documentary evidence. Nelson contends that, as such, we 

should not defer to the court’s judgment, which ignores the uncontradicted testimony at trial and 

the documentary evidence establishing the oral $4.2 million stock purchase agreement. Nelson 

further maintains that this court should review de novo the trial court’s ruling that Nelson failed 

to prove the proximate cause element of his claim because he settled the Underlying Litigation 

after the Seventh Circuit’s remand because this finding was “incorrect as a matter of law.” 

¶ 126 1. The Manifest Weight Standard Applies to this Action 

¶ 127 Contrary to Nelson’s contentions, the deference afforded to the trial court under the 

manifest weight of the evidence standard is not applied only where the circuit court makes 

specific factual findings and credibility determinations on the record. Rather, we give deference 

to the circuit court because it is in the best position to observe the conduct and demeanor of the 

parties and the witnesses, and is intimately familiar with the evidence. Best v. Best, 223 Ill. 2d 

342, 350 (2006); In re D.F., 201 Ill. 2d 476, 498-99 (2002). Here, it is apparent from the record 

that the court was required to make credibility determinations and factual findings in determining 

when Quarles & Brady knew about Nelson’s claim that he entered into an oral agreement with 

Curia for the sale of his shares, given the contradictory testimony that was presented on this issue 

by Nelson, Korey, Gatziolis, Shifflet, and others, as well as the documentary evidence presented. 

It would defy this court’s function to hold that we should not defer to the circuit court’s 

determination on these matters because they were not made on the record. Instead, on review, we 

should not substitute our judgment for that of the circuit court regarding the credibility of the 

witnesses, the weight to be given the evidence presented, or the inferences to be drawn from that 

evidence. In re D.F., 201 Ill. 2d at 499. In addition, as discussed in detail below, we cannot say 

- 43 ­
 

 

 

 

 

No. 1-17-1653 

that the evidence presented regarding the oral stock purchase agreement was “uncontradicted,” 

as Nelson suggests. 

¶ 128 We are not persuaded by the precedent cited by Nelson, Chicago Investment Corp. v. 

Dolins, 107 Ill. 2d 120 (1985), and Long v. Arthur Rubloff & Co., 27 Ill. App. 3d 1013 (1975). In 

neither case did the court hold that a reviewing court should not defer to the findings of the 

circuit court where the circuit court failed to make specific factual findings and credibility 

determinations on the record. In Chicago Investment Corp., the supreme court did not find that 

trial court had an “obligation” to make factual findings on the record, but merely stated that 

where the trial court is the finder of fact, it has the obligation to make such findings. Chicago 

Investment Corp., 107 Ill. 2d at 124. Similarly, in Long, this court specifically found that such 

factual findings are “not required” to be on the record, but merely stated that it would be “better 

practice” for the trial court to set forth the reasons for its judgment. Long, 27 Ill. App. 3d at 1022 

n.4. We express no opinion regarding whether such a procedure would be “better practice,” but 

we observe that our precedent is clear that a trial court is not required to state the reasoning for 

its judgment on the record in order for the manifest weight of the evidence standard to apply and 

for this court to accord deference to its credibility and factual findings. Here, it is clear from the 

evidence presented that the circuit court was required to make certain credibility and factual 

determinations, and our well-established precedent directs us to accord deference to such 

determinations, whether or not the court explains the reasoning for its determinations or whether 

or not such determinations are made on the record. Accordingly, we will review the court’s 

ruling to determine whether its judgment was against the manifest weight of the evidence. 

- 44 ­
 

 

 

 

 

 

 

 

 

 

No. 1-17-1653 

¶ 129 B. $4.2 Million Oral Agreement 

¶ 130 Nelson first contends that evidence presented at trial established that Nelson and Curia 

entered into an oral agreement for Curia to purchase Nelson’s stock for $4.2 million and that 

Quarles & Brady was aware of that agreement before it filed the complaint in April 2005. Nelson 

asserts that there is overwhelming evidence of the agreement from the testimony of both Curia 

and Nelson, their conduct after the oral agreement, the documentary evidence, and the testimony 

of third parties. Nelson contends that the circuit court’s determinations that Quarles & Brady did 

not know about the oral agreement before the district court ruled and that Nelson presented 

insufficient evidence to show that he would have prevailed on a breach of contract claim based 

on the $4.2 million oral agreement was against the manifest weight of the evidence. 

¶ 131 1. The Circuit Court’s Ruling that Quarles & Brady Did Not Know About Nelson’s Claim 

for a $4.2 Million Oral Agreement Before the District Court Ruled1 Was Not 

Against the Manifest Weight of the Evidence 

¶ 132 Here, the evidence presented at trial shows that when Nelson approached Quarles & 

Brady in March 2005, he was seeking legal advice with regard to his rights after Curia’s Option 

Exercises. None of the documentation Nelson submitted to Quarles & Brady at that time 

included information that would indicate that he and Curia had entered into an oral agreement for 

the sale of his shares for $4.2 million. In fact, in the Johnson Letter, Nelson specifically stated 

that he approached Curia in September 2004 about purchasing his stock with “some conditions,” 

but he and Curia met in January 2005 and realized they “were not in agreement with either the 

1

Nelson contends that in its written order, the circuit court focused on whether Quarles & Brady 

knew about the oral agreement before filing the complaint in April 2005, where the relevant inquiry 

should have been whether Quarles & Brady knew about Nelson’s claim before the district court ruled on 

the motions for summary judgment. However, the circuit court’s order reflects that it also considered that 

“[e]ven after the lawsuit was filed, ongoing discussions and receipt of emails and documents never 

revealed such a claim from Nelson.” The court also found that “at no time before the lawsuit was filed, or 

until after the district court ruled, did it become clear that Nelson was making the claim that an 

enforceable oral agreement existed since 2004.” (Emphasis added.) 

- 45 ­
 

 

 

 

No. 1-17-1653 

purchase price or its application.” Although Nelson stated that funding was “available” for the 

stock sale through Fifth Third, Nelson did not state that he and Curia had reached an agreement 

and that Curia had reneged. 

¶ 133 Similarly, none of the documents in the Johnson Packet would indicate to Quarles & 

Brady that Nelson and Curia had entered into an oral agreement for the sale of Nelson’s shares 

sometime in 2004. Like the Johnson Letter, the Chronology makes no reference to a $4.2 million 

oral agreement, and, in fact, Nelson stated that there was “no reason” for him to send letters to 

the manufacturers of his “wish” to sell until they had put together a retirement package. The 

Stockholders’ Minutes likewise lack any detail about an oral agreement for the sale of Nelson’s 

shares and, in any event, are not signed by Curia. 

¶ 134 We observe that there was some discussion at trial, and in the briefs before this court, 

regarding whether Shifflett and Gatziolis had the Directors’ Resolutions before filing the 

complaint. Whether or not Quarles & Brady had these documents before the district court ruled, 

however, does not change our conclusion. The Directors’ Resolutions simply stated that the 

stockholders would accept an agreement whereby “[Nelson] would sell his 8000 shares in this 

corporation (52.7%) to [Curia], and that the manufacturers [would] be contacted to facilitate the 

transaction.” At trial Nelson testified that the “agreement” referred to in the Directors’ 

Resolutions was the same agreement referenced in the Stockholders’ Minutes. The Stockholders’ 

Minutes provided that it was “resolved that the following conditions of the sale and transfer of 

stock from [Nelson] to [Curia] be approved by the Board of Directors.” The Stockholders’ 

Minutes then listed nine conditions, the first of which provided that the sale of the stock to Curia 

be in accord with the 1989 SPA. Gatziolis acknowledged that the Directors’ Resolutions may 

have put him on notice of an agreement between Curia and Nelson for the sale of shares, but 

- 46 ­
 

 

 

 

 

 

 

 

 

 

 

No. 1-17-1653 

referred to the Stockholders’ Minutes, which were dated the day before and not signed by Curia. 

Thus, Gatziolis had no reason to believe that there had been an agreement between Nelson and 

Curia. Again, neither the Stockholders’ Minutes nor the Directors’ Resolutions contain any 

reference to an oral agreement for $4.2 million. 

¶ 135 We also find the November 2004 commitment letter from Fifth Third was insufficient to 

put Quarles & Brady on notice of an oral agreement between Nelson and Curia. The letter does 

not refer to an agreement, but provides that Fifth Third was committed to lend Plaza $4.2 million 

to provide Curia with sufficient funds to buy out Nelson’s ownership interest in Plaza and Mall. 

In examining this document, Quarles & Brady could rely on the information provided by Nelson 

in the Johnson Letter that, although funding for a stock sale was “available” from Fifth Third, 

Nelson and Curia had not reached an agreement. This letter must also be viewed in context with 

the other information Nelson provided to Quarles & Brady. For example, on April 27 and 29, 

2005, Nelson emailed Gatziolis to provide some context for the Fifth Third commitment letter. In 

both emails, Nelson stated that Fifth Third agreed to loan $4.2 million and that would “perhaps” 

be the selling price, and it would be “about” what Curia needed to purchase his shares. Gatziolis 

testified that this uncertain language did not put him on notice of any agreement between the 

parties. Also, in both emails, Nelson indicated that the agreement for the sale of shares included 

a retirement package or “perks.” The previous documents Nelson had provided to Quarles & 

Brady, including the Chronology and the Stockholders’ Minutes, unequivocally showed that 

Curia had not agreed to provide a retirement package, and thus would indicate to Quarles & 

Brady that there had been no agreement between the parties. 

¶ 136 Similarly, the record shows that while drafting the complaint, Quarles & Brady sent 

drafts to Nelson and Korey for their review. In revising the complaint, Nelson and Korey 

- 47 ­
 

 

 

 

 

No. 1-17-1653 

specifically amended sections of the complaint to provide that Nelson had approached Curia 

about selling his shares, but that Curia did not accept any of Nelson’s offers. Again, in July 2005, 

Nelson sent Ken’s Story to Quarles & Brady in which he again stated that he had approached 

Curia with an offer to buy his shares, but Curia had not accepted his offers and had refused to 

even make a counteroffer. Nelson contends that he stated that Curia did not accept any of his 

offers because he was relying on Gatziolis’ legal advice that oral contracts were not enforceable 

in Illinois. However, it is a different matter for Nelson to state that Curia orally accepted his 

offer, but that it is not enforceable, than it is for Nelson to say that Curia did not accept his 

offers. Moreover, Nelson indicated in various documents, including the Chronology, that Curia 

did not accept his offers to sell his shares even before the April 20, 2005, meeting where Nelson 

claims Gatziolis told him that oral agreements were not enforceable in Illinois. 

¶ 137 In short, every documented communication Nelson had with Quarles & Brady until after 

the district court’s ruling suggested that Nelson had approached Curia with offers to sell his 

shares, but Curia had not accepted. As DiVito testified, if Nelson and Curia had reached an oral 

agreement, Nelson would be “screaming it from the rooftops” and not saying that they had not 

reached an agreement. Despite Joyce’s testimony that the information Nelson provided to 

Quarles & Brady should have put them on notice of the oral agreement, given the abundant 

evidence presented suggesting that Curia and Nelson had not reached an agreement, we cannot 

say that the circuit court’s ruling was against the manifest weight of the evidence. 

¶ 138 Nelson contends, however, that he, Carol, and Korey each testified that at the April 20, 

2005, meeting, Nelson told Gatziolis about the oral agreement and Gatziolis told him that it was 

not enforceable in Illinois. Nelson asserts that the court “completely ignored” this testimony in 

rejecting his claim. The court’s order suggests, however, that the court did not ignore this 

- 48 ­
 

 

 

No. 1-17-1653 

testimony, but instead accepted Gatziolis’ testimony that Nelson did not tell him about the oral 

agreement at the meeting, and that Gatziolis did not tell Nelson that oral agreements are not 

enforceable in Illinois. Nelson asserts that this testimony contradicted Gatziolis’ testimony at his 

deposition where he stated that he could not recall whether Nelson told him about an oral 

agreement; however, this apparent contradiction created a credibility determination that was 

within the province of the circuit court to resolve. As discussed, we defer to the judgment of the 

circuit court on these issues because the circuit court is in the best position to observe the 

conduct and demeanor of the parties and the witnesses. Best, 223 Ill. 2d at 350. The court’s order 

implicitly suggests that it accepted Gatziolis’ testimony on this issue and did not accept the 

testimony of Nelson, Carol, and Korey. We cannot say, based on the record before us, that such a 

determination was against the manifest weight of the evidence. 

¶ 139 Nonetheless, Nelson asserts that Gatziolis’ testified at trial he was “generally” aware in 

April 2005 that Nelson and Curia had entered into an oral agreement for the sale of Nelson’s 

shares for $4.2 million and Curia had reneged. Nelson contends that the trial court’s ruling is 

therefore impossible to sustain in light of this admission. To support this contention, however, 

Nelson relies on testimony that was taken out of context and that Gatziolis later clarified. At trial, 

Nelson’s counsel asked Gatziolis about a letter Nelson had written to Debes that Gatziolis 

reviewed in April 2008. 

“Q. And what it says here is: You [(Debes)], [Curia] and I met at the corporation 

offices in Dixon, Illinois in September of 2004 at which time Mr. Curia and I asked Fifth 

Third Bank to loan Mr. Curia our agreed upon purchase price of *** 4,200,000 for my 

shares in the two corporations. On November 4th, 2004 we received your commitment 

letter stating that you would loan Rick Curia 4,200,000 to purchase my shares in Auto 

- 49 ­
 

 

 

 

 

 

No. 1-17-1653 

Plaza and Auto Mall. The stock *** purchase was to close by year-end, but Mr. Curia 

reneged on our agreed price as stated in your letter. 

* * * 

Q. This was the same thing Mr. Nelson told you from the time you first met with 

him back in April of ‘05, isn’t it? 

A. That he attempted to sell the stock, yes. 

Q. Sir, the information that’s in here. Isn’t this precisely the information Mr. 

Nelson told you back in April of ’05? 

A. There may not have been all this detail, but generally that’s correct.” 

Later, Quarles & Brady’s counsel asked Gatziolis about his testimony regarding the letter. 

“Q. At any time up to the time this complaint was filed on the next to last day of 

April 2005, had Mr. Nelson ever told you that he had reached an oral agreement that Mr. 

Curia had agreed to buy his shares and his shares only for $4.2 million? 

A. No, he did not. 

Q. Had he said something like that to you, is that something you would have 

recalled? 

A. It would be.” 

Viewed in light of Gatziolis’ other testimony, the portion highlighted by Nelson does not support 

his contention that Gatziolis admitted that he knew about the oral agreement for $4.2 million and 

that the trial court ignored that testimony. As Gatziolis testified, he “generally” knew the 

information in the letter, i.e., that Nelson wanted to sell his shares to Curia and that Fifth Third 

agreed to loan the money for the purchase, but he denied that Nelson ever told him that he and 

- 50 ­
 

 

 

 

 

 

No. 1-17-1653 

Curia had reached an agreement for the sale of his shares, which was consistent with his other
 

testimony on this issue. 

¶ 140 Nelson also points to another portion of Gatziolis’ testimony that he contends constitutes
 

an admission by Gatziolis that he knew about the oral agreement for $4.2 million in April 2005.
 

After Gatziolis’ testimony clarifying his earlier testimony about the letter, Nelson’s counsel’s 

asked Gatziolis:
 

“Q. I think you told us earlier today that right from the very beginning of your 

relationship or your meetings with Mr. Nelson, he basically told you what was in that last 

letter about having had a $4.2 million agreement and Mr. Curia reneged on it. Remember 

that testimony from this morning? 

A. Yes.” 

This testimony does not constitute an admission by Gatziolis that he knew about the $4.2 million 

agreement as Nelson contends, but is rather Gatziolis acknowledging that he recalled his 

testimony on this subject matter from earlier that day. Viewed in light of Gatziolis’ unequivocal 

testimony that Nelson did not tell him about the $4.2 million oral agreement, we cannot say that 

the portions of the Gatziolis’ testimony identified by Nelson render the trial court’s ruling 

contrary to the manifest weight of the evidence. 

¶ 141 Nelson next contends that, in 2007 and 2008, Quarles & Brady filed pleadings in the 

district court asserting that Curia and Nelson had entered into a $4.2 million oral agreement in 

2004. Nelson asserts that the evidence shows that Quarles & Brady did not have any additional 

information about the oral agreement at that time than it did when the original complaint was 

filed in April 2005. This is demonstrably false. The evidence shows that after the district court 

ruled in 2006, both Nelson and Korey emailed Shifflett to inform him about the $4.2 million oral 

- 51 ­
 

 

 

No. 1-17-1653 

agreement. Nelson emailed Shifflett in August 2006, stating that he and Curia negotiated and 

agreed to a price of “4.2m (stock only, both corps),” but then Curia decided that he did not want 

to pay that much. Shifflett testified that this email was the first time he had received any 

communication about a potential oral agreement for $4.2 million. Similarly, Korey emailed 

Shifflett in November and December 2006 and stated that in November 2004, Nelson, Curia, and 

Debes “had a meeting where [Curia] agreed to pay 4.2 million [for] the stock.” Korey suggested 

that Quarles & Brady add such a claim to the impending motion. In addition, Shifflett testified 

that in early 2008 Nelson told him about an email he had received from Thomas where she stated 

that it was Toyota’s understanding that the stock purchase agreement included both Plaza and 

Mall and was for $4.2 million. Thus, the record shows that Quarles & Brady had significantly 

more information about a potential oral agreement in 2007 and 2008 than it did when it filed the 

original complaint in April 2005 or by the time the district court ruled in February 2006. 

Accordingly, we find that the circuit court’s holding that Quarles & Brady did not know about 

Nelson’s claim for a $4.2 million oral agreement before the district court ruled was not against 

the manifest weight of the evidence. 

¶ 142 2. The Circuit Court’s Finding that Nelson Failed to Prove that it Was More Likely Than 

Not that Nelson Would Have Prevailed on a Breach of Contract Claim for the 

$4.2 Million Oral Agreement Was Not Against the Manifest Weight of the 

Evidence. 

¶ 143 Although we have already found that the circuit court did not err in ruling that Quarles & 

Brady did not know about the oral agreement for $4.2 million before the district court ruled, we 

also find that even if Nelson had shown that Quarles & Brady did know about the agreement, his 

legal malpractice claim would nonetheless fail because he failed to establish the proximate cause 

element of this claim. That is, Nelson has failed to establish the “case within a case” aspect of his 

legal malpractice action. See Orzel v. Szewczyk, 391 Ill. App. 3d 283, 290 (2009). Nelson’s claim 

- 52 ­
 

 

 

 

 

 

No. 1-17-1653 

is fundamentally that he would have prevailed on a breach of oral contract action against Curia if 

Quarles & Brady had properly investigated and raised the claim of an oral agreement in the 

Underlying Litigation. In order prevail on a claim for breach of contract, a plaintiff must prove 

(1) the existence of a contract, (2) the performance of the conditions precedent, (3) breach by 

defendant, and (4) damages as result of the breach. Van Der Molen v. Washington Mutual 

Finance, Inc., 359 Ill. App. 3d 813, 823 (2005). Here, Nelson has failed to establish even the 

existence of a contract. 

¶ 144 In contending that he would have succeeded on a breach of contract claim in the 

Underlying Litigation, Nelson asserts that the uncontradicted evidence shows that he and Curia 

entered into an enforceable oral agreement for the sale of his shares only for $4.2 million. He 

maintains that the agreement for retirement benefits or “perks” was a separate agreement, and 

not a condition to the stock sale agreement. Nelson asserts that Curia’s testimony and 

contemporaneous conduct, Joyce’s testimony, and the evidence available from the automobile 

manufacturers and Fifth Third demonstrates that he would have prevailed on this claim in the 

district court if Quarles & Brady had investigated and raised this claim. 

¶ 145 a. Agreement for Shares Only 

¶ 146 As a threshold matter, we observe that the record does not support Nelson’s contention 

that the oral agreement Nelson contends existed was for the “stock only” and that the retirement 

benefits or perks were a separate agreement. Nelson contends that the oral agreement for the sale 

of Nelson’s shares for $4.2 million was already in existence when Nelson approached Curia 

regarding the retirement benefits. Thus, Nelson contends that Curia’s refusal to provide the 

retirement benefits has no bearing on Curia’s acceptance of the stock sale agreement. Nelson 

- 53 ­
 

 

 

 

 

 

 

 

 

 

 

 

No. 1-17-1653 

asserts that the documentary evidence and Curia and Nelson’s testimony support his claim that 

the agreements were separate. 

¶ 147 However, Nelson’s own statements support the proposition the stock purchase agreement 

and the retirement benefits or perks agreement was one agreement. For instance, in the 

Chronology, Nelson stated Curia had been “difficult” in extending to him the things he needed 

for retirement and putting together a “retirement package.” Nelson stated that he would be 

contacting the manufacturers even though there was “no reason” for him to send a letter of his 

“wish to sell until we have a [retirement] package put together.” In Curia’s response, he stated 

that he did not see anywhere in their “agreement” that he was required to provide Nelson with a 

retirement package. Curia testified that he was referring to their written agreements. Similarly, in 

the Johnson Letter, Nelson stated that when he approached Curia about selling his shares, he 

“gave him some conditions at that time for the purchase” (emphasis added), which included most 

of the nine items listed in the Stockholders’ Minutes. Again, in the March 14, 2005, letter Nelson 

sent to Curia, Nelson stated that in August 2004 he offered Curia the opportunity to purchase his 

stock in Plaza and Mall “upon certain terms and conditions” that were set forth in a letter Nelson 

left on his desk on December 3, 2004. Nelson represented that those terms and conditions were 

that the October 6, 2004, Stockholders’ Minutes, which outlined Nelson’s retirement package, be 

signed by both parties, that the newly agreed leases for the properties owned by CRANK be 

signed by both parties, and that the September 30, 2004, GM financial statement be used for the 

sale price. 

¶ 148 Nelson reiterated that the stock sale offer and the retirement package were one agreement 

in his subsequent correspondences with Quarles & Brady. For instance, in Nelson’s April 27, 

2005, email to Gatziolis, Nelson stated that the $4.2 million figure would “perhaps being the 

- 54 ­
 

 

 

 

 

 

No. 1-17-1653 

selling price including all the perks.” (Emphasis added.) Similarly, in Nelson’s April 29, 2005, 

email to Gatziolis, Nelson identified the issues that he believed needed to be addressed, including 

a “Stock Sale which includes some type of Retirement Package.” (Emphasis added.) Again, in a 

September 17, 2005, email to Shifflett, Nelson stated that when he approached Curia about 

retiring in July 2004, he put together a retirement package. In fact, both Gatziolis and Shifflett 

testified that they believed that Nelson would not accept a settlement offer or sell his shares 

without a retirement package. Nelson’s correspondences support that conclusion. Nelson did not 

indicate his belief that the purported oral agreement was for the sale of stock only until his email 

to Shifflett and Cahill on August 29, 2006. Even in that email, Nelson stated that when he and 

Curia began negotiating in 2004, they used the 2000 agreement as “base” and then “began 

adding other perks.” 

¶ 149 The fact that Curia did not sign the Stockholders’ Minutes is further evidence that the 

proposed stock sale and the retirement package were one agreement. The Stockholders’ Minutes 

were prepared one day before the Directors’ Resolutions, which Curia did sign, and contained 

the conditions of Nelson’s “retirement package.” Curia testified that he did not sign the 

Stockholders’ Minutes because he “agreed to buy the stock but not all the additional conditions 

that were listed.” Nelson also testified that Curia refused to sign the Stockholders’ Minutes 

because Curia believed it was “too much.” Clearly, if both Curia and Nelson believed that there 

was already an agreement for the sale of stock alone, the parties would have followed through on 

the stock purchase and handled the retirement package in a separate agreement. Instead, the 

evidence suggests that Nelson conditioned the stock sale on Curia providing a retirement 

package and Curia did not agree to those terms. In any event, the circuit court’s determination 

that the proposed stock sale and retirement package were one agreement was not against the 

- 55 ­
 

 

 

 

 

 

 

 

No. 1-17-1653 

manifest weight of the evidence, given the ample evidence discussed above indicating that they 

were one agreement. Accordingly, we find that the circuit court did not err in finding that Nelson 

would not have prevailed on a breach of contract claim in the Underlying Litigation where the 

evidence shows that Nelson’s offer to Curia was to purchase the stock and provide a retirement 

package, and Curia did not accept. Even if we were to find that Nelson had adequately proved 

that the purported oral agreement was for the sale of his stock only, we would nonetheless find 

that Nelson failed to establish that it would be more likely than not that he would succeed on this 

claim before the district court for the reasons discussed below. 

¶ 150 b. Curia’s Testimony and Contemporaneous Conduct 

¶ 151 Nelson first contends that Curia acknowledged at trial that he entered into an agreement 

with Nelson for the sale of the shares only, and his contemporaneous conduct at the time of the 

agreement represents evidence of the agreement. Nelson points to Curia’s testimony regarding 

his perception of their agreement in October 2004, at the time they signed the Directors’ 

Resolutions. 

“Q. So by the time you signed [the Directors’ Resolutions] *** you know what it 

was at that time? 

A. Sure. 

Q. And then you told us that you proceeded after, so you had an agreement as of 

that date to buy the shares only? 

A. I believed I had an agreement.” 

Curia’s testimony illustrates that at the time he signed the Directors’ Resolutions, he believed 

that he had an agreement to buy Nelson’s shares for a “sum certain.” Nelson contends that this 

constitutes an admission by Curia that they had entered into an agreement for the purchase of 

- 56 ­
 

 

 

 

No. 1-17-1653 

Nelson’s stock only. Under questioning from Quarles & Brady’s counsel, however, Curia 

testified that the agreement that he believed was in place at the time he signed the Directors’ 

Resolutions in October 2004 was an agreement under the terms of the 1989 SPA and the “written 

agreements that [they] had *** in place for years,” i.e., the 1989 SPA, the 1993 Modification, 

and the 2000 Agreement. In fact, when asked directly about the oral agreement, Curia denied that 

he had ever accepted to buy Nelson’s shares for $4.2 million. 

“Q. And, sir, is it true that at no time in the year 2004 did you ever agree to pay 

Mr. Nelson $4.2 million for his shares as an agreement, an oral agreement, separate from 

what the 1989 stock purchase agreement was? 

A. Absolutely never.” 

¶ 152 Curia’s contemporaneous conduct also does not support Nelson’s contention that he and 

Curia entered into an oral agreement for the purchase of Nelson’s shares only. First, the Fifth 

Third commitment letter does not serve as proof of an oral agreement. Curia testified that he 

intended to use the funds to purchase Nelson’s shares pursuant the 1989 SPA and for working 

capital or to pay off other loans. Debes testified, however, that based on the terms of the loan 

commitment, Curia could use the funds only to purchase Nelson’s shares. He testified, however, 

that when he met with Curia and Nelson in September 2004, he understood that they had not 

reached an agreement and that they were still negotiating toward a deal because they had 

different views about an acceptable price for the shares. Debes testified that it was common in a 

situation like Curia and Nelson’s for one party to get preapproval for a loan before the final 

terms of the agreement were established. Thus, Curia applying for and receiving a loan 

commitment from Fifth Third does not serve as proof of an oral agreement. 

- 57 ­
 

 

 

 

No. 1-17-1653 

¶ 153 Similarly, Curia’s contact with the automobile manufacturers does not indicate that the 

parties entered into an oral agreement. Nelson contends that the record shows that Curia 

submitted documentation to the automobile manufacturers for approval of the agreement 

demonstrating that they had, in fact, reached an agreement. However, the record shows that 

Curia began submitting documentation in anticipation of exercising his 1989 SPA options. Curia 

sent his response to the Chronology on November 4, 2004, indicating his intent to exercise his 

options. That same day he received the loan commitment letter from Fifth Third. On November 

3, 4, and 10, Curia submitted documentation to the automobile manufacturers, including the 

Toyota Minimum Standards, the Toyota Dealer Performance Evaluation, Dealer Biographical 

Information, and an Application for Nissan Dealer Sales and Service Agreement. On November 

4, 2004, Curia also submitted an Investment Proposal Summary to GM, to which he attached the 

letter from Fifth Third committing to the $4.2 million loan. Curia’s contemporaneous conduct 

therefore suggests that there was no previous agreement, and that he started seeking 

manufacturer approval only after he notified Nelson of his intent to exercise his options under 

the 1989 SPA. Thus, Curia’s testimony and contemporaneous conduct does not support Nelson’s 

contention that he would have prevailed on his claim for an oral agreement if it had been raised 

in the district court. 

¶ 154 c. Joyce’s Testimony 

¶ 155 Nelson next contends that his expert, Joyce, testified that it was more probably true than 

not that Nelson would have won a breach a contract claim for breach of oral agreement if 

Quarles & Brady had pursued such a claim in the district court. Joyce acknowledged that at his 

deposition he opined that Nelson’s odds of success on this claim were “60/40.” Nelson claims 

that Quarles & Brady failed to elicit an opinion from their expert, DiVito, on this issue and 

- 58 ­
 

 

 

 

 

 

 

No. 1-17-1653 

“effectively conceded” Joyce’s opinion that Nelson would have prevailed. The record shows, 

however, that Quarles & Brady did, in fact, elicit an opinion from DiVito on this subject, and his 

opinion contradicted Joyce’s. 

“Q. Sir, do you have an opinion whether the documentary information provided to 

Quarles and Brady by Mr. Nelson demonstrated approvable [sic] oral agreement for the 

sale of those shares? 

* * * 

A. That the documents do not establish such an agreement. 

Q. What is that opinion based on? 

A. From the very beginning before [Quarles & Brady] even talked to [Nelson], he 

was bemoaning the fact that Curia would not negotiate with him, that he said no to 

everything. And although he continued negotiating, he never agreed to anything and there 

is no reference whatsoever to a specific oral agreement.” 

Thus, DiVito did contradict Joyce’s testimony on this issue, testifying that the evidence did not 

show a provable oral agreement for the sale of the shares, i.e., that Nelson would not have 

prevailed on this claim before the district court. It is well settled that “ ‘[a]s the trier of fact, the 

judge may accept one expert opinion over another.’ ” Robrock v. County of Piatt, 2012 IL App 

(4th) 110590, ¶ 42 (quoting City of Marseilles v. Radke, 307 Ill. App. 3d 972, 977 (1999)). Here, 

the circuit court plainly accepted DiVito’s testimony on this issue. Such a decision was within 

the discretion of the circuit court, and we cannot say, based on Joyce’s testimony and the other 

evidence presented, that the circuit court’s ruling was against the manifest weight of the 

evidence. 

- 59 ­
 

 

 

No. 1-17-1653 

¶ 156 d. Automobile Manufacturers 

¶ 157 Nelson next contends that the evidence provided by the automobile manufacturers proved 

the existence of the oral agreement for $4.2 million. Nelson asserts that the evidence 

demonstrates that in October 2004, both Nelson and Curia applied to the automobile 

manufacturers for approval of the stock sale. Nelson points out that both Zangri and Nour 

testified that the manufacturers will not process an application for the sale of shares unless the 

parties notify them that they have entered into an agreement. Nelson contends that the crucial 

piece of evidence demonstrating the existence of the oral agreement is Thomas’s email to 

Nelson, in which she stated that her notes showed that Curia informed Toyota that he had 

reached an agreement to purchase Nelson’s shares for $4.2 million. 

¶ 158 At trial, Thomas acknowledged sending Nelson an email stating that the purchase price to 

Toyota’s “understanding” was $4.2 million, but she acknowledged that she did not know the 

source of that figure. She testified that there would likely be some sort of documentation to 

support the information in her email, but she did not have a purchase agreement and had no 

personal knowledge of what happened between Zangri and Nelson or Curia when the process 

began in October and November 2004. For his part, Zangri testified that he received the 

Directors’ Resolutions and, based on those documents, made an “assumption” that Curia had 

negotiated a deal to buy out Nelson’s remaining shares. In fact, Thomas sent a letter to Nelson on 

January 13, 2005, showing that Toyota still needed a purchase agreement in order for Toyota to 

continue their evaluation of the proposed ownership change. Thus, neither Zangri nor Thomas 

provided corroborating documentation to establish the existence of the oral agreement for $4.2 

million. At most, Zangri offered an “assumption” that Curia and Nelson negotiated a deal, and 

Thomas offered a notation that Curia agreed to buy Nelson’s shares for $4.2 million. However, 

- 60 ­
 

 

 

No. 1-17-1653 

Thomas had no personal knowledge of any such agreement and could not provide any evidence 

to support that figure or an agreement. 

¶ 159 Similarly, Nour from Nissan testified that, based on his experience, there would need to 

be an asset purchase agreement to start the approval process, but he could not say whether one 

was provided in Curia and Nelson’s case. And, in fact, Nour testified that he had not seen any 

documentation that suggested that Nelson and Curia entered into an oral agreement for the sale 

of Nelson’s shares for $4.2 million. Although Nissan conditionally approved the proposed stock 

purchase agreement on December 21, 2004, their approval letter does not state a purchase price 

and is conditioned upon the receipt of additional documentation, including stock certificates and 

documentation from Fifth Third. 

¶ 160 We further observe that in the October 28, 2004, letters that Nelson submitted to the 

automobile manufacturers, he informed them that he “proposes to sell” his shares to Curia, not 

that they had reached an agreement for the sale of his shares. Also, as discussed above, the fact 

that Curia submitted documentation to the automobile manufacturers, seeking approval for the 

stock sale, does not serve as evidence of the oral agreement where Curia submitted the 

documentation in anticipation of exercising his options and after informing Nelson of his intent 

to do so on November 4, 2004. Accordingly, we cannot say that the court’s ruling was against 

the manifest weight of the evidence based on the evidence available from the automobile 

manufacturers. 

¶ 161 e. Fifth Third Bank and Debes 

¶ 162 Nelson finally contends that the evidence provided by Fifth Third and Debes proved the 

existence of the oral agreement for $4.2 million. Nelson acknowledges that Debes testified that 

Curia and Nelson did not tell him that they had an agreement in place, but contends that this 

- 61 ­
 

 

 

 

No. 1-17-1653 

testimony is contradicted by Debes’ contemporaneous conduct and other testimony. Nelson 

asserts that the fact that Curia paid Fifth Third’s lawyers to prepare the documents relating to the 

$4.2 million loan proves the agreement was in place. Nelson notes that the loan documents 

provided that the funds were to be used for the purchase of Nelson’s shares and Debes testified 

that Curia could use the funds only for that the purpose. Debes also knew that the manufacturers 

would not process Nelson and Curia’s applications unless they had an agreement in place, and he 

sent loan documents to the manufacturers at Curia’s request to facilitate the approval process. 

¶ 163 We initially observe that, like Curia’s other communications with the automobile 

manufacturers, Debes did not send the loan documentation to the automobile manufacturers until 

after Curia notified Nelson of his intent to exercise his options. This is consistent with Curia’s 

testimony that he needed to show the manufacturers that he had the funds necessary to purchase 

Nelson’s shares. Although Debes testified that it would be inconsistent with the purpose of the 

loan for Curia to use the funds for any purpose other than purchasing Nelson’s shares, he also 

testified that it was common a situation like Nelson and Curia’s for the buyer to get preapproval 

for a loan before the final terms of the agreement were worked out. Debes testified that while he 

was generating the loan documents, he understood that Curia and Nelson were still negotiating 

because they could not agree on a price for the shares. 

¶ 164 Debes's testimony and the documentation from Fifth Third thus suggest that Curia and 

Nelson approached Debes in anticipation of reaching an agreement for the shares. Curia sought 

preapproval so that he would be able to show the manufacturers that he had the funds necessary 

to complete the purchase. After the parties were unable to come to an agreement about the price 

for the shares, Curia notified Nelson of his intent to exercise his options under the 1989 SPA. 

Curia directed Debes to send the loan documentation to the manufacturers to facilitate the 

- 62 ­
 

 

 

 

 

 

 

No. 1-17-1653 

approval process. Debes did not testify that Nelson and Curia had reached an oral agreement, and 

none of the loan documentation otherwise references an agreement. Accordingly, we cannot say
 

that the court’s ruling was against the manifest weight of the evidence based on the evidence
 

available from Debes and Fifth Third.
 

¶ 165 f. Conclusion 

¶ 166 Accordingly, we find that the circuit court did not err in finding that Nelson failed to
 

establish the proximate cause aspect of his legal malpractice claim with regard to Nelson’s claim
 

for an oral agreement for $4.2 million. The evidence suggests that the proposed agreement was
 

for the sale of Nelson’s shares as well as the retirement package or perks and Nelson failed to
 

establish Curia’s acceptance of his offers. Curia’s testimony and contemporaneous conduct does
 

not suggest that he entered into an oral agreement to purchase Nelson’s shares only for $4.2
 

million. Joyce’s expert testimony was contradicted by DiVito, who testified that Nelson would 

not have been able to demonstrate a provable oral agreement in the Underlying Litigation, and it
 

was within the circuit court’s discretion to accept DiVito’s testimony. In addition, the evidence
 

from third parties—the automobile manufacturers, Debes, and Fifth Third—did not establish the
 

existence of an oral agreement. We therefore find that the circuit court’s ruling that Nelson failed
 

to establish that it was more likely than not that he would have succeeded on a breach of contract
 

claim before the district court was not against the manifest weight of the evidence.
 

¶ 167 C. Quarles & Brady’s Litigation Strategy
 

¶ 168 Nelson next contends that the circuit court erred in rejecting his claims that Quarles & 

Brady was negligent for failing to assert two defenses to Curia’s action for specific performance.
 

Nelson asserts that Quarles & Brady should have raised a claim that Curia’s Option Exercises
 

were invalid because they were not the mirror image of the options in the 1989 SPA and should 

- 63 ­
 

 

 

 

 

 

 

 

 

 

 

 

 

 

No. 1-17-1653 

have argued that the parties’ written agreements were ambiguous. Nelson contends that had 

Quarles & Brady raised these arguments before the district court, they would have been 

successful and would have defeated Curia’s Option Exercises. Nelson further asserts that the 

circuit court erred in finding that Quarles & Brady’s negligence in failing to raise these claims 

did not proximately cause his damages because he settled the case after the Seventh Circuit’s 

remand where there was no practical alternative and continued litigation was unnecessary to 

preserve his legal malpractice claim. 

¶ 169 As a threshold matter, we observe that Illinois law “distinguishes between negligence and 

mere errors of judgment.” Shanley v. Barnett, 168 Ill. App. 3d 799, 803 (1988). The question of 

whether an attorney has exercised a reasonable degree of care and skill is one of fact, and expert 

testimony is generally required to establish the standard of care against which to measure the 

attorney’s conduct. See Barth v. Reagan, 139 Ill. 2d 399, 407 (1990).2 Here, both parties 

presented expert testimony regarding whether Quarles & Brady’s litigation decisions deviated 

from the standard of care. 

¶ 170 1. The Circuit Court Did Not Err in Finding that Quarles & Brady Did Not Deviate from 

the Standard of Care in Not Raising a Claim that Curia’s Option Exercises Were 

Ineffective Because They Were Not the Mirror Image of the Options in the 1989 

SPA. 

¶ 171 Nelson first contends that Quarles & Brady was negligent in failing to challenge Curia’s 

Option Exercises by arguing that the number of shares he sought to purchase in his Option 

Exercises did not match the number of shares listed in the 1989 SPA options. As an example, 

2

We observe that there is a generally recognized exception to the rule requiring expert testimony 

to establish the standard of care “where the common knowledge or experience of lay persons is extensive 

enough to recognize or infer negligence from the facts, or where an attorney’s negligence is so grossly 

apparent that a lay person would have no difficulty in appraising it.” Barth, 139 Ill. 2d at 407. We find, 

however, that this exception is not applicable to the case at bar and expert testimony was necessary to 

establish the standard of care. 

- 64 ­
 

 

 

 

 

No. 1-17-1653 

Nelson points out that the 1989 SPA provided Curia with a second option to purchase 2009 

shares of Plaza, but Curia’s March 2, 2005, option exercise letter sought to purchase only 193 

shares. Nelson asserts that Curia’s March 3, 2005, option exercise was similarly defective 

because Curia “demanded” that Nelson sell his interest in Plaza’s land and buildings, but the 

1989 SPA provided that Curia must offer to purchase the land and buildings. 

¶ 172 Under second option in the 1989 SPA, Curia could purchase 2009 shares of stock of 

Plaza and 300 shares of Mall, “which shares with previous purchased shares would represent 

49% of the issued and outstanding shares of capital stock in said corporations.” The third option 

provided that “[a]fter exercising the first two options to purchase as provided in this Agreement, 

[Curia] shall have a third option to purchase from [Nelson] the remaining 4,171 shares of stock 

in [Plaza] and 612 shares of stock in [Mall] provided that [Curia] also offer to purchase the land 

and four buildings of the [Plaza] dealership *** at its appraised value.” 

¶ 173 In his March 2, 2005, option exercise notices, Curia stated that the second option in the 

1989 SPA “gives me the right to purchase from you an additional number of shares of capital 

stock of [Plaza] and [Mall] that would give me 49% of the outstanding capital stock of each 

Corporation, which I calculate to equal 193 shares and 170 shares, respectively.” In his March 3, 

2005, option exercise, Curia sought to purchase Nelson’s remaining shares in Plaza and Mall and 

offered to also purchase Plaza’s land and buildings in accordance with the third option in the 

1989 SPA. 

¶ 174 Joyce testified that a reasonably careful lawyer, seeking to prevent Curia from exercising 

the options in his March 2005 Option Exercises, would have raised the argument that Curia’s 

Option Exercises were defective because they were not a mirror image of the options in the 1989 

SPA as required by Illinois law. Joyce testified that as a result of the corporations’ 

- 65 ­
 

 

 

 

 

 

No. 1-17-1653 

recapitalization after the 1989 SPA, it would have been impossible for Curia to exercise his 

options under the terms of the agreement because the 1989 SPA did not permit the percentages 

or number of shares to be modified because of recapitalization. Joyce opined that if Quarles & 

Brady had raised an argument that Curia’s Option Exercises were defective because they were 

not a mirror image of the options in the 1989 SPA, it was more probably true than not that the 

argument would have “prevailed.” 

¶ 175 Joyce acknowledged that Quarles & Brady did raise an argument before the district court 

that the Option Exercises were defective because Curia attempted to use the price formula in the 

1993 Modification rather than the formula provided by the options in the 1989 SPA, but that 

argument was rejected by the district court. Joyce testified that although Quarles & Brady made 

this mirror image argument, it included the wrong facts to support the argument, and should have 

raised the discrepancy in the number of shares. 

¶ 176 In contrast, DiVito testified that the standard of care did not require Quarles & Brady to 

raise an alternative argument that Curia’s Option Exercises were defective because the number 

of shares he sought to purchase did not match the 1989 SPA. DiVito testified that the second 

option in the 1989 SPA provided Curia with the option to purchase a percentage of the remaining 

shares, 49%, and the third option permitted him to purchase the “remaining” shares, which is 

what Curia sought in his Option Exercises. DiVito also noted that, in his review of Quarles & 

Brady’s materials, a draft brief contained an argument that Curia’s Option Exercises were invalid 

because the number of shares he sought to purchase were different from the options in the 1989 

SPA. DiVito testified that the fact that this argument did not appear in the final draft of the brief 

suggests that Quarles & Brady made a judgment to not include this argument, which was 

reasonable and consistent with the standard of practice. 

- 66 ­
 

 

 

No. 1-17-1653 

¶ 177 The circuit court’s order demonstrates that it clearly accepted DiVito’s testimony on this 

issue and not Joyce’s. As discussed, it was within the province of the trial court to accept 

DiVito’s testimony over Joyce’s on this issue. See Robrock, 2012 IL App (4th) 110590, ¶ 42. 

The trial court is accorded such deference because it is in the best position to resolve conflicting 

testimony and observe the witnesses’ demeanor and determine their credibility. Radke, 307 Ill. 

App. 3d at 977 (citing Flynn v. Cohn, 154 Ill. 2d 160, 169 (1992)). Here, the court was required 

to weigh conflicting testimony from the expert witnesses. The court could also consider 

Shifflett’s testimony that he considered raising an argument regarding the discrepancy in the 

number of shares, but ultimately decided not to, as evidenced by the draft brief containing this 

argument. Shifflett testified that he did not raise the issue because the 1989 SPA options granted 

Curia the right to purchase “49%” and then the “remaining” shares and this language was echoed 

in Curia’s Option Exercises, as DiVito also acknowledged. 

¶ 178 Nelson contends, however, that Shifflett testified that his decision to not raise this 

argument was based on McCarthy v. Johnson, 122 Ill. App. 3d 104 (1983). Nelson asserts that 

there is no evidence that Quarles & Brady was aware of this case during Quarles & Brady’s 

representation of Nelson and that McCarthy does not even support Shifflett’s position, as Joyce 

testified. As discussed, the circuit court heard Shifflett’s testimony that he relied on McCarthy to 

support his decision and heard Joyce’s testimony that McCarthy did not support Shifflett’s 

position. The court also heard DiVito’s testimony that Quarles & Brady did not deviate from the 

standard of care in not raising a mirror image argument because the percentages listed in Curia’s 

Option Exercises matched the percentages listed in the 1989 SPA options, as Shifflett also 

testified. Thus, there was conflicting testimony on this issue and, as noted, in such situations we 

accord deference to the decisions of the circuit court. Radke, 307 Ill. App. 3d at 977. Here, there 

- 67 ­
 

 

 

 

 

 

 

 

No. 1-17-1653 

was ample evidence to support the circuit court’s conclusion, and we cannot say, based on the 

record before us, that circuit court’s decision was against the manifest weight of the evidence. 

¶ 179 Finally, although not expressly addressed by either expert, Nelson contends that Curia’s 

attempt to exercise his third option was defective because he “demanded” that Nelson sell 

Plaza’s land and buildings rather than merely offering to purchase them as provided in the 1989 

SPA. In his March 3, 2005, option exercise notice, however, Curia noted that the third option 

“gives me the right to purchase your remaining shares of the Corporations; [sic] provided that I 

also offer to purchase the land and four buildings of [Plaza].” Curia then stated that he was 

giving notice of the exercise of his option to “purchase all of your remaining shares of capital 

stock in the Corporations and the Land and Buildings for the consideration and upon the terms 

set forth in the [1989 SPA] and the [1993 Modification].” This language does not suggest a 

“demand” that Nelson sell his interest in Plaza’s land and buildings, but rather shows Curia’s 

intent to comply with the terms of the 1989 SPA. Thus, there was no basis for Quarles & Brady 

to raise an argument concerning the Curia’s March 3, 2005, option exercise in the district court. 

¶ 180 Even assuming, arguendo, that we determined that Nelson had adequately established 

that Quarles & Brady deviated from the standard of care in failing to raise this argument, we 

would nonetheless find that he failed to establish the proximate cause or “case within a case” 

element of his legal malpractice claim on this issue. Although Joyce testified that, in his opinion, 

it was more likely true than not that Nelson would have prevailed on this argument if Quarles & 

Brady had raised it before the district court, DiVito testified that such an argument would be 

meritless because Curia’s Option Exercises essentially comported with the 1989 SPA options by 

seeking to purchase “49%” and the “remaining” shares outstanding. As discussed, the circuit 

court accepted the testimony of DiVito over Nelson on this issue, and that is consistent with its 

- 68 ­
 

 

 

 

 

 

 

 

No. 1-17-1653 

role as the trier of fact. The record also shows that the district court rejected a “mirror image” 

argument by Quarles & Brady regarding the formula for determining the price of the shares. 

Furthermore, as illustrated above, Nelson’s contention that Curia’s March 3, 2005, option 

exercise was defective because Curia “demanded” that Nelson sell Plaza’s land and buildings is 

similarly meritless. Accordingly, we cannot say that the circuit court’s ruling that Nelson failed 

to establish the proximate cause element of his legal malpractice claim with respect to this 

argument was against the manifest weight of the evidence. 

¶ 181 2. The Circuit Court Did Not Err in Finding that Quarles & Brady Did Not Deviate from 

the Standard of Care in Not Raising a Claim that the Written Agreements Were 

Ambiguous. 

¶ 182 Nelson finally contends that Quarles & Brady deviated from the standard of care in 

failing to argue that the written agreements were ambiguous. Nelson asserts that this argument 

would have defeated Curia’s motion for summary judgment because an ambiguous contract 

cannot be interpreted as a matter of law and therefore cannot be disposed of by summary 

judgment. Nelson maintains that if Quarles & Brady had raised this argument, the parties would 

have been permitted to enter extrinsic evidence showing that when Curia and Nelson entered into 

the 1993 modification, they intended to dissolve the options in the 1989 SPA. Nelson contends 

that Quarles & Brady also would have been able to introduce extrinsic evidence regarding the 

meaning of the word “subsequently” in Paragraph 5 of the 1993 Modification, and would have 

been able to question Curia about his understanding of that paragraph at a deposition. 

¶ 183 As with the mirror image argument, the parties offered conflicting expert testimony on 

this issue. Joyce testified that reading Nelson and Curia’s written agreements together, there is no 

clear specification for how Curia could exercise his options. Joyce testified that if Quarles & 

Brady had argued ambiguity, it would have prevented a summary judgment ruling and the parties 

- 69 ­
 

 

 

 

 

No. 1-17-1653 

could have introduced extrinsic evidence regarding what Curia believed when he entered into the 

agreements. Joyce opined that within a reasonable degree of certainty, an argument that the 

contracts were ambiguous would have prevailed. 

¶ 184 In contrast, DiVito testified that it was reasonable under the circumstances for Quarles & 

Brady to argue that the agreements were not ambiguous. He opined that Quarles & Brady’s 

argument that Paragraph 5 of the 1993 Modification negated any unilateral right by Curia to 

exercise the options in the 1989 SPA was a reasonable one. DiVito further testified that there 

was no downside to arguing that the agreements were not ambiguous because the district court 

could find ambiguity regardless of what the parties claimed. 

¶ 185 As discussed above, the circuit court was entitled to accept DiVito’s testimony over 

Joyce’s on this issue. The court also heard Shifflett’s testimony that he believed it was not in 

Nelson’s best interest to advance an argument that the agreements were ambiguous in the motion 

for summary judgment. Shifflett testified that he considered doing discovery on the issue of 

ambiguity, but believed that Quarles & Brady had a good basis to argue that the agreements were 

not ambiguous, given the language that Nelson and Curia used in them. Shifflett believed that it 

would not have been in Nelson’s best interest to spend money taking depositions to try to prove 

an ambiguity. 

¶ 186 Nelson contends, however, that if Quarles & Brady had raised a claim that the 

agreements were ambiguous, it could have challenged Curia’s assertion that, in Paragraph 5 of 

the 1993 Modification, the parties intended to use the word “previously” instead of 

“subsequently.” The record shows, however, that Quarles & Brady did challenge this assertion in 

their briefing before the district court. In conjunction with arguing that the agreements were not 

ambiguous, Quarles & Brady contended that the court should not accept Curia’s interpretation of 

- 70 ­
 

 

 

 

 

 

No. 1-17-1653 

Paragraph 5 of the 1993 Modification and should enforce the contract as written, which would 

require Curia to negotiate with Nelson if he wished to purchase his shares. Given the evidence 

presented, we cannot say that the circuit court’s findings “appear to be unreasonable, arbitrary, or 

not based on the evidence.” Eychaner, 202 Ill. 2d at 252. Accordingly, we find that the circuit 

court’s ruling that Nelson failed to demonstrate that Quarles & Brady was negligent in deciding 

to not argue that the agreements were ambiguous was not against the manifest weight of the 

evidence. 

¶ 187 We further find that Nelson has failed to establish the “case within a case” aspect of his 

legal malpractice claim with respect to his argument that Quarles & Brady should have raised a 

claim that the agreements were ambiguous. Nelson asserts that such an argument would have 

permitted Quarles & Brady to submit extrinsic evidence to show the parties’ intent with respect 

to the agreements, but Nelson did not identify any evidence in the circuit court or before this 

court in support of this claim. At trial, Joyce testified that Quarles & Brady may have been able 

to offer testimony from the person who drafted the contracts or the corporations’ accountants, 

but acknowledged that he did not know what these witnesses would say. Joyce also testified that 

Quarles & Brady could depose Curia, who might testify that he did not know what the word 

“subsequently” meant in Paragraph 5 of the 1993 Modification. Nelson also offered his own 

testimony that he and Curia intended to eliminate the 1989 SPA options when they entered into 

the 1993 Modification. 

¶ 188 Contrary to Nelson’s testimony that he and Curia intended to abrogate the 1989 SPA 

options when they entered into the 1993 Modification, Curia’s conduct suggests otherwise. Most 

notably, Curia notified Nelson of his intent to exercise those options, once in November 2004 

and again in March 2005. On September 2, 2005, Curia submitted an affidavit in the district 

- 71 ­
 

 

 

 

 

 

 

 

 

 

 

 

No. 1-17-1653 

court in which he averred that he did not believe that the 1993 Modification abrogated the 1989
 

SPA options. Joyce identified some potential witnesses who could offer extrinsic evidence, but
 

offered no testimony regarding what they might say and Nelson offered no other evidence to 

suggest that these potential witnesses could offer any admissible extrinsic evidence. Thus, 

Nelson has failed to identify any evidence, other than this own testimony, that could have been
 

submitted as extrinsic evidence if Quarles & Brady had raised a claim that the written
 

agreements were ambiguous in the district court. Accordingly, we find that the circuit court’s 

ruling that Nelson failed to establish the proximate cause element of his legal malpractice claim 

with respect to this argument was not against the manifest weight of the evidence.3
 

¶ 189 III. CONCLUSION
 

¶ 190 For the reasons stated, we affirm the judgment of the circuit court of Cook County.
 

¶ 191 Affirmed.
 

3

We observe that the circuit court found that Nelson failed to establish the proximate cause 

element of this claim and that Quarles & Brady was negligent in failing to raise a claim that Curia’s 

Option Exercises were defective because they were not the mirror image of the 1989 SPA options. The 

circuit court found that Nelson elected to settle the case with Curia after the Seventh Circuit reversed and 

remanded the case and thus forfeited his right to pursue these claims on remand. Both parties addressed 

this issue in their briefs before this court; however, we find that it is unnecessary to examine this issue 

where we have determined that Nelson failed to establish the proximate cause element of these claims for 

the reasons discussed above. Although the circuit court did not rely on the factors identified by this court 

in rendering its judgment, we observe that we may affirm the circuit court’s ruling on any basis in the 

record, regardless of whether the circuit court relied on those grounds and regardless of whether the 

circuit court’s reasoning was correct. Leonardi v. Loyola University Chicago, 168 Ill. 2d 83, 97 (1995). 

- 72 ­