1 

 2024 IL App (5th) 220818 

 NO. 5-22-0818 

 IN THE

 APPELLATE COURT OF ILLINOIS

FIFTH DISTRICT

______________________________________________________________________________ 

DAVID J. FLETCHER, M.D., ) Appeal from the

 ) Circuit Court of 

Plaintiff-Appellant, ) Macon County. 

 ) 

v. ) No. 11-L-64 

 ) 

EDWARD F. FLYNN and WINTERS, ) 

FEATHERSTUN, GAUMER, POSTLEWAIT, ) 

STOCKS & FLYNN, ) Honorable 

 ) James R. Glenn, 

Defendants-Appellees. ) Judge, presiding. 

______________________________________________________________________________ 

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

Justices Moore and Barberis concurred in the judgment and opinion. 

 

 OPINION

¶ 1 The plaintiff, David J. Fletcher, brought a legal malpractice action against the defendants, 

Edward F. Flynn and Winters, Featherstun, Gaumer, Postlewait, Stocks & Flynn (collectively, 

Flynn), alleging that Flynn failed to provide proper legal advice and services in relation to the 

plaintiff’s real estate development project in Macon County, Illinois. Following a trial, the jury

returned a verdict in favor of Flynn. The trial court subsequently denied the plaintiff’s motion for 

a judgment notwithstanding the verdict and the plaintiff appealed. On appeal, the plaintiff claims 

that the trial court erred in denying his motion for judgment notwithstanding the verdict because

the evidence, when viewed in a light most favorable to Flynn, so overwhelming favored the 

plaintiff that no contrary verdict could ever stand. We affirm.

NOTICE

Decision filed 04/08/24. The 

text of this decision may be 

changed or corrected prior to 

the filing of a Petition for 

Rehearing or the disposition of 

the same.
2

¶ 2 I. BACKGROUND

¶ 3 The plaintiff filed a legal malpractice action against Flynn and his law firm on September 

28, 2010.

1 In the second amended complaint, filed September 12, 2019,2 the plaintiff alleged that 

he retained Flynn in November 2004 to provide legal advice and services in regard to a proposed 

homeowners’ subdivision development in Mt. Zion, Illinois, and at the time of the engagement, 

Flynn knew the plaintiff had no experience in real estate development. The plaintiff further alleged

that Flynn breached his duty of care to the plaintiff in, among other things, failing to advise the 

plaintiff to incorporate his real estate development project to limit his potential legal liability and 

failing to investigate and advise the plaintiff about the legal implications of a pipeline easement 

running through the property, including potential restrictions on subdividing and building on the 

property.

3 The plaintiff claimed that he sustained economic losses proximately caused by Flynn’s 

negligence, including diminution in property value, costs to resurvey the property, lost opportunity 

costs, and legal fees to defend himself in a lawsuit by the development’s homeowners’ association.

In his answer, Flynn denied the plaintiff’s allegations of negligence. Flynn filed affirmative 

defenses, alleging plaintiff’s contributory negligence, comparative negligence, failure to mitigate 

his damages, as well as negligence by nonparties.

¶ 4 The trial began September 19, 2022, and ended on September 27, 2022. During the sevenday trial, the jury heard testimony from the parties and their occurrence and expert witnesses, and 

1

The plaintiff’s case was originally filed in Champaign County and subsequently transferred to 

Macon County pursuant to Flynn’s forum non conveniens motion.

2

The second amended complaint included a count alleging breach of oral contract (count II). The 

plaintiff dismissed the contract claim at the close of the proofs at trial, and the jury considered only the

count for legal malpractice during deliberations.

3

The plaintiff also alleged that Flynn failed to supervise an experienced associate attorney in his 

firm and failed to supervise the engineer who prepared and recorded a defective plat of the subdivision;

however, those claims have not been raised in this appeal.
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they viewed numerous documents. An overview of the evidence4 pertinent to the two points on 

appeal follows.

¶ 5 A. The Real Estate Development

¶ 6 At the time of these events, the plaintiff was a licensed physician specializing in

occupational medicine. In 1991, the plaintiff purchased 133 acres of a property that would become 

part of a real estate development called “Woodbine Park Prairie Estates” (Woodbine). The 

Woodbine property is situated between Fort Daniel Conservation Area and Spitler Woods Park in 

Macon County, Illinois. Prior to the purchase, the plaintiff did extensive research into the property. 

He learned that the property had a rich history and that it was a key environmental corridor with 

wetlands, lakes, and woodlands. Prior to the purchase, the plaintiff also obtained title insurance. 

The title policy disclosed the existence of a natural gas pipeline easement. At the time, the plaintiff 

was not concerned about the easement because he did not anticipate developing the property. The 

plaintiff reviewed the easement document and noted that the easement had been granted to 

Panhandle Illinois Pipeline Company (Panhandle) on December 17, 1930. He also noted that the 

easement document did not identify or define any restrictions. The plaintiff asked one of his former 

4

Although the trial transcript is voluminous, the plaintiff’s statement of facts in his opening brief is 

a single page. The statement of facts contains a sparse summary of the plaintiff’s allegations of negligence

and the defendants’ answer and affirmative defenses, and it identifies the dates of trial proceedings, the date 

on which the verdict it was returned, the date the plaintiff filed his motion for judgment notwithstanding 

the verdict, the date that motion was denied, and the date the notice of appeal was filed. Illinois Supreme 

Court Rule 341(h)(6) (eff. Oct. 1, 2020) requires the appellant to provide a cogent statement of the facts 

necessary to an understanding of the case, without argument and with appropriate references to the record 

on appeal. The plaintiff’s statement of facts fails to acquaint this court with any factual background relative 

to the issue on appeal. The rules of procedure regarding appellate briefs are rules, not mere suggestions; 

and it is within the discretion of the reviewing court to strike a brief and dismiss the appeal for failure to 

comply with the applicable rules of appellate procedure. Venturella v. Dreyfuss, 2017 IL App (1st) 160565, 

¶¶ 22-23. Nevertheless, the plaintiff’s failure to comply with Rule 341(h)(6) does not preclude our review. 

The issues raised on appeal are defined and each party has included citations to the trial testimony and 

exhibits in support of their respective arguments. Accordingly, we will review the merits of the appeal, 

while cautioning plaintiff’s counsel to comply with the rules of procedure in the future.
4

attorneys to do some research into the easement, but there is no testimony regarding the nature or 

result of that research.

¶ 7 Following the purchase of the initial tract in 1991, the plaintiff began to clear the property 

of abandoned cars and other debris. He also worked to restore the wetlands and reintroduce native 

plants and grasses on the property. In 2000, the plaintiff purchased the remainder of the Woodbine 

property. Over the next few years, the plaintiff continued the restoration work on the property.

¶ 8 Sometime in early 2003, the plaintiff began to explore the idea of developing the property 

into a residential community governed by a homeowners’ association. He wanted to maintain the 

“environmental mission” of the property while obtaining a return on his investment. The plaintiff 

testified that he did not have any experience in real estate law or development and that he did not

understand how the pipeline might affect his proposed development. Before obtaining legal 

counsel, the plaintiff contacted Panhandle to inquire about the pipeline easement and discuss his 

development plan.

¶ 9 In a letter dated March 31, 2003, Panhandle provided a written response to the plaintiff’s 

inquiry (the Panhandle letter). Panhandle informed the plaintiff that it had an “open” easement and 

that it operated a 22-inch high-pressure natural gas pipeline across the northwest section of the

property. Panhandle stated that the boundaries of its easement included a 50-foot-wide strip on 

each side of the pipeline and that no permanent structures could be erected or placed in the 

easement area. Forbidden structures included storm drains, catch basis, fire hydrants, sign boards, 

supports, brace poles, and telephone or power line poles. Panhandle also advised that any roads, 

driveways, and utilities must cross the pipeline at right angles, and that road crossings must have 

a minimum cover of 36” between the top of the pipeline and the bottom of the pavement. Proposed 

street intersections and cul-de-sac areas were to be located outside the easement area, and no trees 
5

or shrubs could be placed on the easement. Panhandle required the proposed site plan to 

incorporate and accurately scale the location and depth of the pipeline and to include a warning 

regarding the location of the pipeline. Panhandle requested copies of the preliminary development 

plan and indicated that all planned construction or modifications to the construction design would 

require preapproval by Panhandle. Panhandle indicated that it would send representatives out to 

mark the location of the pipeline and the outer edges of the easement, and it provided contact 

information for its representatives. In addition, Panhandle enclosed four development-planning

documents, entitled “General Requirements for Construction in the Vicinity of Panhandle’s 

Pipeline or Easement,” “Easement Restrictions and Requirements,” “Right of Way Amended 

Requirements,” and “How to Recognize and What to do about a Gas Leak.”

¶ 10 In 2004, the plaintiff hired a local engineering company to perform a feasibility study on 

the project. The study was never completed because the company required the plaintiff to hire the 

company for the engineering work and to retain a real estate development attorney for the project.

¶ 11 In November 2004, the plaintiff retained Flynn to provide legal advice and services related 

to the Woodbine development. The plaintiff had an ongoing professional relationship with Flynn

and his firm, and he was aware that Flynn had experience in real estate development. The plaintiff

described himself as “a complete rookie,” who had no experience in real estate development and 

who needed a lot of “handholding.” He testified that he hired Flynn to handle “all aspects” of the 

real estate development. The legal work included taking all necessary actions to limit the plaintiff’s 

personal liability related to his role as developer of the property, advising the plaintiff about any 

encroachments that could affect his ability to subdivide the property for sale to future homeowners, 

and preparing an owners’ declaration document that set forth the rights and obligations of the 

developer and the homeowners. The plaintiff testified that “in his mind, as the client,” he believed 
6

the scope of representation was “all-encompassing” and “open ended” to ensure the project was 

successful. The plaintiff acknowledged that there was no written engagement letter or other 

document memorializing the agreed-upon representation.

¶ 12 In November 2004, the plaintiff also hired Phillip Cochran as a surveyor and engineer to 

analyze the property and determine what could be built on it given the existing flood plain and 

waterways. The plaintiff knew that Cochran and Flynn had worked together on several projects. 

He hired Cochran based upon Flynn’s recommendation. The plaintiff testified that he notified 

Cochran about the pipeline easement and that Cochran indicated he would investigate it. The 

plaintiff also testified that he provided a copy of the Panhandle letter to Cochran and Flynn. At 

this time, the plaintiff was still considering whether to develop the Woodbine property or sell it as 

a whole. The plaintiff knew that the Woodbine development would require rezoning and approval 

from certain governmental agencies and that the project was not a “done deal.”

¶ 13 In March 2005, Cochran prepared a preliminary development plan for the Woodbine

property and sent it to the plaintiff. On April 25, 2004, the plaintiff sent an e-mail addressed to 

Cochran, with a copy to Flynn. In the e-mail, the plaintiff indicated that he reviewed the plan and 

had three “minor” concerns, only one of which involved the pipeline easement. The plaintiff’s 

concern was that proposed lots 33 and 34 were adjacent to the easement and there was no driveway 

to access those lots from Fletcher Lane. Three weeks later, Cochran sent the plaintiff a revised 

plan reflecting a driveway that would provide access to lots 33 and 34 from Fletcher Lane. The 

plaintiff testified that he had several conversations with Cochran about the pipeline easement and 

that Cochran thought that the northwest corner lots could be developed and that a road could be 

constructed to provide access to those lots.
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¶ 14 In June 2005, Cochran created a plat that included 43 individual lots along with a defined

common area consisting of wetlands, lakes, walking trails, and a private road system. The common 

area was to be conveyed to and maintained by a soon-to-be formed homeowners’ association. On 

June 30, 2005, Cochran presented the plaintiff’s development plan to the Village of Long Creek 

and the plan was approved. In the meantime, Flynn had completed the original owners’ declaration

document. The plaintiff signed that document on August 3, 2005. The plat and the owners’ 

declaration were recorded in Macon County that same day.

¶ 15 During the latter part of 2005, the plaintiff decided to develop the Woodbine property in 

two phases to limit his initial financial outlay for infrastructure costs. Phase I included the common 

areas depicted in the June 2005 plat and the property south of the common areas. It was subdivided 

into 32 lots. The pipeline did not interfere with the development of those lots. Phase II involved 

the acreage north of the common areas, identified as Lot 33. The long-term plan was to subdivide

Lot 33 into eight smaller lots for sale to individual homeowners.

¶ 16 On September 23, 2006, the plaintiff sent an e-mail addressed to Flynn and Cochran. The 

plaintiff advised them that Phase I was nearly complete and that all of the infrastructure was in 

place. The plaintiff stated that he intended to proceed with Phase II and get the county board to 

approve the project. The plaintiff indicated that he needed Cochran’s “input and work with the 

pipeline people” regarding “where and how to construct a private driveway for lots 33 to 35” on 

the northwest part of the property. The plaintiff testified that though he directed his inquiry to 

Cochran, he expected Flynn, as his attorney, to investigate and make sure the plaintiff could 

proceed.

¶ 17 Over the next few years, the Woodbine development was beset with problems. The newly 

formed Woodbine Park Prairie Estates Homeowners’ Association (Woodbine HOA) and 
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individual homeowners objected to the lack of a legal description of the common areas in the 

owners’ declaration, and the plaintiff agreed to several amendments to address those objections.

At the plaintiff’s direction, Flynn prepared amended versions of the owners’ declaration. The 

Woodbine HOA also objected to the plaintiff’s failure to convey the common areas in the time 

promised. In addition, material defects were identified in the plats prepared by Cochran. The 

plaintiff directed Cochran to complete a proper survey and legal description of the common area

and to correct the defects so that the common area could be conveyed to the Woodbine HOA. In 

October 2008, Cochran provided a corrected plat and survey. The plaintiff then attempted to 

convey the common areas, but the Woodbine HOA refused to accept the conveyance.

¶ 18 On October 13, 2008, the plaintiff terminated Flynn’s services on the Woodbine 

development. Thereafter, the plaintiff became involved in additional litigation regarding the 

development. In October 2009, the Woodbine HOA filed a lawsuit against the plaintiff. The suit 

alleged that the plaintiff failed to deliver the common area in a timely fashion and that he failed to 

meet Illinois Department of Transportation specifications for the design and construction of the 

roads, bridges, and culverts in the development. The plaintiff brought an action against individual 

members of the Woodbine HOA. The plaintiff also filed a lawsuit against Cochran and ultimately 

settled the case for $550,000.

¶ 19 B. The Litigation Against Flynn

¶ 20 In September 2010, the plaintiff filed this legal malpractice action against Flynn. As noted 

earlier, the plaintiff alleged that Flynn failed to advise him to incorporate the Woodbine 

development and failed to investigate and advise him about the effect of the pipeline easement on 

the Woodbine development. During his testimony, the plaintiff stated that he did not have any 

discussions with Flynn about whether the Woodbine development should be placed under a 
9

corporate entity. The plaintiff testified that he did not know about the potential pitfalls of real estate 

development, and he did not realize the extent of the risk to himself as an individual. The plaintiff 

admitted, however, that he was aware that there had been a drowning accident in one of the lakes 

prior to his purchase of the property and that he had concerns about that type of liability. The 

plaintiff also admitted that he was aware of the option of incorporating a business, having created 

limited liability companies for businesses in December 2002 and January 2004. He also 

acknowledged that he had incorporated his medical practice into a limited liability company in 

January 2005, based upon the advice of an attorney. The plaintiff explained that as a “stand-alone” 

practitioner, he had a lot of risks. He sought to limit his risks as a medical provider and as an 

employer.

¶ 21 The plaintiff testified that he had several conversations with Flynn about the pipeline 

easement. The plaintiff stated that he asked Flynn to investigate the easement and advise him of 

any restrictions. He testified that he documented his requests, and he referred to the e-mail dated 

April 25, 2004, and the e-mail dated September 23, 2006, as evidence of his request. The plaintiff 

“believed” he provided a copy of the Panhandle letter to Flynn. He could not recall when he 

provided the letter to Flynn, and he could not recall having any conversations about its contents. 

The plaintiff described the pipeline easement as a “major” issue. He was concerned about street 

access to the most desirable part of property—the northwest corner lots of the Woodbine property. 

The plaintiff claimed that Flynn indicated that he would investigate the matter, and that Flynn 

never looked into the restrictions on development and whether it would be feasible to build a road

over the easement.

¶ 22 During cross-examination, the plaintiff admitted that he knew of the existence of the 

pipeline and the easement before he retained Flynn. Based upon his correspondence with 
10

Panhandle, the plaintiff knew that he could not build on the pipeline easement, including 50 feet 

on either side of the pipeline. The plaintiff admitted that the pipeline easement was not the only 

issue affecting the development of Phase II. He acknowledged that the land was partially on a 

floodplain and that a bridge that provided access to the lots in Phase II had washed out.

¶ 23 The plaintiff blamed both Flynn and Cochran for failing to investigate the pipeline 

easement in connection with the Phase II development.

“I placed the blame on both gentlemen. They didn’t investigate the easement. They never 

got a title policy. They never had communication with the Pipeline. They never got any 

permission to put the road that they have on the preliminary plat and the final plat that was 

approved by the Village of Long Creek to be able to do that. They didn’t get any of the 

documents. They didn’t challenge what the significance of the easement was. I know what 

the Pipeline says, but you hire professionals to interpret that and represent you and that’s 

what I did.”

¶ 24 Flynn was called as an adverse witness in the plaintiff’s case, and he also testified in his 

own defense. Flynn stated that he was hired to perform specific tasks. He identified those tasks as

applying for rezoning of the property, preparing the owners’ declaration and later revisions of the

document, and forming a homeowners’ association. He also assisted the plaintiff with the sale of 

a few lots. Flynn testified that he knew of the pipeline easement. Flynn also testified that the 

plaintiff never gave him a copy of the Panhandle letter and never asked him to contact Panhandle

or investigate the pipeline easement.

¶ 25 Flynn also addressed the claim that he failed to recommend incorporation of the Woodbine 

development. Flynn testified that sometime between November 2004 and March 2005, he told the 

plaintiff that he did not think the Woodbine development was a good and prudent business for the 
11

plaintiff. Flynn suggested that the plaintiff partner with a professional real estate developer or sell 

the entire property to a reputable developer. During a subsequent meeting, the plaintiff informed 

Flynn that he intended to proceed as the sole developer. At that point, Flynn advised the plaintiff 

that he needed to consider whether to incorporate. Flynn testified that he discussed the pros and 

cons of incorporation with the plaintiff. He explained why some developers decide to incorporate 

while others do not. Flynn advised the plaintiff to think about it and to let him know what the 

plaintiff decided. Flynn was asked whether he committed legal malpractice in his representation 

of the plaintiff on the Woodbine project. Flynn declined to offer an opinion. He explained that he 

had answered the questions regarding the facts of what had occurred, that he was not testifying as 

an expert, and that the ultimate determination was for the jury.

¶ 26 Cochran testified that he was the engineer and the surveyor for the Woodbine project. In 

that position, Cochran was responsible for preparing a development plan, the plats, and the “metes 

and bounds” legal description of the property. Cochran testified that during a walk around 

Woodbine in 2004, he informed the plaintiff that there could be restrictions on building structures

near the pipeline. Cochran testified that questions regarding restrictions on building around an 

easement are for an engineer, not a lawyer. Cochran testified that the plaintiff never gave him a 

copy of the Panhandle letter. Cochran acknowledged that he had been sued in relation to his work 

on the project and that he settled the case for $550,000.

¶ 27 Thomas Overmyer was the plaintiff’s expert in civil engineering. Overmyer testified that 

he was initially hired to do some work on the Woodbine development in 2016 and that he was later 

retained as an expert witness for the lawsuit. When he was originally hired to work on the 

Woodbine project, one of his first tasks was to obtain title work. Overmyer acknowledged that at 

the time he was hired, the plaintiff did not provide him with a copy of the Panhandle letter. 
12

Overmyer recalled receiving a copy of the letter a few years after he was hired for the project. In 

his capacity as an engineering expert, Overmyer testified that surveyors prepare plats and locate 

easements that might affect property developments, that surveyors and engineers prepare legal 

descriptions for property, and that engineers determine the “buildability” of property. He reviewed 

the plat that Cochran prepared in 2005 and opined that the plat did not correctly depict the pipeline 

easement. He further opined that three of the lots in Phase II of the development were not buildable 

due to the pipeline easement and the topography of the land. Overmyer also testified about the real 

estate development lawyer’s responsibilities as compared to engineers and surveyors. Overmyer 

acknowledged that he was not a lawyer and that he did not know what the “standard of care” was 

for Illinois lawyers.

¶ 28 Kevin Luebchow testified as the plaintiff’s legal expert. Luebchow testified that he is a 

licensed attorney in Illinois. He has a “transactional practice,” primarily focused focusing on real 

estate transactions and estate planning. Luebchow reviewed the depositions of the parties and other

witnesses, the pleadings, Flynn’s billing records, and the documents related to the Woodbine 

development. Luebchow testified that he did not find any documents indicating that Flynn advised 

the plaintiff to incorporate. He opined that Flynn’s failure to advise the plaintiff to incorporate the 

Woodbine development was a breach of the standard of care for a practicing attorney in Illinois. 

Luebchow testified that this was a “prime case” for setting up a limited liability company because 

the development involved several lots, the client was required to make a significant financial outlay 

for infrastructure, the client was not a professional developer, and the client had significant assets 

outside of the real estate venture. Luebchow also testified that a real estate attorney has a duty to 

investigate an easement that could restrict development and that Flynn’s failure to do so was a 

breach of the standard of care. Luebchow testified that a real estate attorney had the responsibility 
13

to advise the developer as to what restrictions are created by the easement and that the surveyor or 

engineer has the responsibility to tell the developer whether there is enough room to build.

¶ 29 During cross-examination, Luebchow admitted that this was the first time he had testified 

as an expert in a legal malpractice case. Luebchow acknowledged that he was not present at the 

meeting between the plaintiff and Flynn and that he did not know what Flynn said to the plaintiff

in regard to incorporation. Luebchow agreed that the plaintiff knew about the Panhandle pipeline 

easement and that he had some knowledge about the building restrictions on the easement prior to 

retaining Flynn.

¶ 30 The plaintiff presented short excerpts from the testimony of Flynn’s withdrawn legal expert 

witness, Michael Firsel. In one excerpt, Firsel testified that he “generally” agreed with the 

proposition that it would be prudent for a person who derives their main source of income from a 

field unrelated to real estate development to create a corporation or LLC for the purpose of 

developing real estate. In another excerpt in which he responded to a hypothetical question, Firsel 

testified that he would have explained the benefits and detriments of incorporation to a client such 

as the plaintiff and then recommended that the client protect himself with some sort of corporate 

entity. In a third excerpt, Firsel testified that in matters of incorporation, the lawyer has “a duty to 

the client to explain the various options available to the client and the ramifications of making 

decisions on each of those various options, and that the question of whether to incorporate is a 

decision for the client to make.

¶ 31 On September 27, 2022, following seven days of testimony, the jury returned a verdict in 

favor of Flynn. Subsequently, the plaintiff filed a posttrial motion for a judgment notwithstanding 

the verdict. The plaintiff asked the trial court to enter a judgment in his favor as to liability and 
14

order a new trial on damages. The trial court denied the plaintiff’s motion, and this appeal 

followed.

¶ 32 II. ANALYSIS

¶ 33 On appeal, the plaintiff contends that the trial court erred in denying his posttrial motion 

for a judgment notwithstanding the verdict. The plaintiff claims that he was entitled to a judgment

notwithstanding the verdict because he presented unrefuted evidence that Flynn failed to 

investigate and advise him of the legal implications of a pipeline easement running through the 

property, including potential restrictions on development, and failed to advise him to incorporate 

his real estate development project into a corporate entity to limit potential legal liability. As for

relief, the plaintiff asks this court to set aside the judgment on the jury’s verdict, enter a judgment 

for the plaintiff on liability, and remand the case for a new trial on damages.

¶ 34 In analyzing this issue, we are reminded of the differing responsibilities of the jury, the 

trial court, and the appellate court. The jury has the responsibility to resolve conflicts in the 

evidence, to assess the credibility of the witnesses, and to decide what weight should be given to 

the testimony. Maple v. Gustafson, 151 Ill. 2d 445, 452 (1992). The trial court cannot reweigh the 

evidence and set aside a verdict merely because the jury could have drawn different inferences or 

conclusions or because the court feels that another result is more reasonable. Maple, 151 Ill. 2d at 

452. Similarly, the appellate court should not usurp the function of the jury and substitute its 

judgment on questions of fact fairly submitted, tried, and determined from evidence that did not 

greatly preponderate either way. Maple, 151 Ill. 2d at 452-53.

¶ 35 Here, the plaintiff is appealing the denial of his motion for judgment notwithstanding the 

verdict. It is important to note that the standards related to a motion for a new trial and a motion 

for judgment notwithstanding the verdict are distinct. See Pedrick v. Peoria & Eastern R.R. Co., 
15 

37 Ill. 2d 494, 509-10 (1967). In ruling on a motion for a new trial, the court weighs the evidence 

and may set aside a verdict and order a new trial if the verdict is against the manifest weight of the 

evidence. Maple, 151 Ill. 2d at 454. The court’s ruling on a motion for new trial is reviewed under 

the abuse-of-discretion standard. Maple, 151 Ill. 2d at 455. 

¶ 36 In contrast, a motion for judgment notwithstanding the verdict presents a question of law 

as to whether, when all of the evidence and reasonable inferences therefrom are considered in a 

light most favorable to the nonmovant, there is a total failure or lack of evidence to prove any 

necessary element of a party’s case or defense. Lawlor v. North American Corp. of Illinois, 2012 

IL 112530, ¶ 37. In ruling on a motion for a judgment notwithstanding the verdict, a court does 

not weigh the evidence, nor is it concerned with the credibility of the witnesses; rather it may only 

consider the evidence, and any inferences therefrom, in the light most favorable to the party 

resisting the motion. Maple, 151 Ill. 2d at 453. 

¶ 37 A judgment notwithstanding the verdict should be granted only where all of the evidence, 

when viewed in a light most favorable to the opponent, so overwhelmingly favors the movant that 

no contrary verdict based on that evidence could ever stand. Pedrick, 37 Ill. 2d at 510. The standard 

for entering a judgment notwithstanding the verdict is a high one, and its entry is not appropriate

if reasonable minds can differ as to the inferences or conclusions to be drawn from the evidence.

Steed v. Rezin Orthopedics & Sports Medicine, S.C., 2021 IL 125150, ¶ 34; Pasquale v. Speed 

Products Engineering, 166 Ill. 2d 337, 351 (1995). A judgment notwithstanding the verdict is not 

proper “if there is any evidence, together with reasonable inferences to be drawn therefrom, 

demonstrating a substantial factual dispute, or where the assessment of credibility of the witnesses 

or the determination regarding conflicting evidence is decisive to the outcome.” Maple, 151 Ill. 2d 

at 454. A judgment notwithstanding the verdict should not be entered merely because a verdict is 
16

against the manifest weight of the evidence. Maple, 151 Ill. 2d at 453. A ruling on a judgment 

notwithstanding the verdict is reviewed de novo. Steed, 2021 IL 125150, ¶ 34.

¶ 38 To prevail on a claim for legal malpractice, a plaintiff must plead and prove the existence 

of an attorney-client relationship that establishes a duty on the part of the attorney, a negligent act 

or omission constituting a breach of that duty, proximate cause, and actual damages. Northern 

Illinois Emergency Physicians v. Landau, Omahana & Kopka, Ltd., 216 Ill. 2d 294, 306 (2005).

The injury resulting from legal malpractice is not a personal injury, but rather a pecuniary injury

to an intangible property interest caused by the lawyer’s negligence. Northern Illinois Emergency 

Physicians, 216 Ill. 2d at 306; Eastman v. Messner, 188 Ill. 2d 404, 411 (1999). That an attorney 

may have breached a duty of care is not, in itself, sufficient to sustain the client’s cause of action, 

and therefore the client must demonstrate that the attorney’s negligence proximately caused actual 

damages to the client. Northern Illinois Emergency Physicians, 216 Ill. 2d at 306-07.

¶ 39 In this case, the plaintiff initially claims that he is entitled to a judgment notwithstanding 

the verdict because he presented unrefuted evidence that Flynn failed to advise him to incorporate 

his real estate development project into a corporate entity to limit potential legal liability. Flynn 

claims that there was conflicting testimony on this matter.

¶ 40 During the trial, Flynn testified that he spoke with the plaintiff sometime between 

November 2004 and March 2005, and he told the plaintiff that he did not think the Woodbine 

development was a good and prudent business for the plaintiff. Flynn suggested that the plaintiff 

partner with a professional real estate developer or sell the entire property to a reputable developer. 

When the plaintiff notified Flynn of his intention to proceed with the development, Flynn advised 

the plaintiff to consider whether to incorporate the project. Flynn testified that he discussed the 

pros and cons of incorporation and explained that some developers create corporations and others
17

do not. Flynn advised the plaintiff to think about it and let him know what the plaintiff decided. 

The plaintiff denied that this conversation occurred. The plaintiff, however, did not deny being 

aware of the risks of operating a business, such as a medical practice, and the risks he faced as a 

practitioner and as an employer. The plaintiff acknowledged that he incorporated his own medical 

practice. He also recognized some risks of liability attendant to the Woodbine property, such as 

accidental drownings in the lakes and waterways. The plaintiff’s legal expert opinion, Kevin 

Luebchow, opined that Flynn should have recommended that the plaintiff incorporate and that his 

failure to so do constituted legal malpractice. Luebchow acknowledged he was not present for the 

conversations between the plaintiff and Flynn and did not know what Flynn told the plaintiff.

¶ 41 A review of the record reveals conflicting testimony regarding Flynn’s advice as to 

incorporation. The jury was required to decide whether the plaintiff or Flynn was more credible 

on this point. The jury was also required to assessthe credibility of plaintiff’s expert witness. Based 

upon the trial testimony, a reasonable jury could have found that Flynn met the applicable standard 

of care when he initially advised the plaintiff to partner with or sell to a qualified professional 

developer, and subsequently advised the plaintiff to consider whether to incorporate the 

development, and that the plaintiff ignored Flynn’s legal advice. Alternatively, the jury may have 

concluded that the plaintiff was more than 50% contributorily negligent in failing to follow Flynn’s 

advice.

¶ 42 The plaintiff also claims that he is entitled to a judgment notwithstanding the verdict 

because he presented unrefuted evidence that Flynn failed to investigate and advise him of the 

legal implications of the pipeline easement. The plaintiff testified that he asked both Cochran, as 

the engineer, and Flynn, as legal counsel, to investigate and advise him about the impact of the 

pipeline easement on the development, and he produced two e-mails to support his testimony. In 
18

those e-mails, the plaintiff made specific requests to Cochran, asking him to investigate the 

pipeline easement and to contact Panhandle about its easement. Flynn testified that the plaintiff 

never asked him to investigate the pipeline. Additionally, there was evidence that the plaintiff had 

contacted Panhandle in 2003, and Panhandle provided information as to the boundaries of the 

easement and various restrictions regarding placement of structures and roads on the easement.

There was also evidence that the plaintiff did not provide the Panhandle letter to Flynn or Cochran

or otherwise inform them of its contents. Cochran admitted that he, as the engineer, was 

responsible for determining how the easement impacted buildability of the lots at issue, and the 

plaintiff’s engineering expert agreed. 

¶ 43 Again, the jury was tasked with making credibility determinations and resolving conflicts 

in the testimony, and it could have found that Flynn’s testimony was more credible than the 

plaintiff’s testimony. Based upon the evidence, a reasonable jury could have found that the plaintiff 

had conducted his own independent research into the pipeline easement and learned about the 

building restrictions attendant to the pipeline before he retained Flynn. The jury could have 

concluded that the plaintiff did not ask Flynn to conduct further research into the pipeline 

easement. Additionally, the jury could have found that Cochran, not Flynn, was responsible for 

providing the plaintiff additional information related to the “buildability” of lots touching the 

easement. Based upon this testimony, the jury could have reasonably concluded that the plaintiff 

failed to prove that Flynn breached the standard of care in regard to providing legal advice about 

the easement. There was also evidence that other factors impacted the development of the lots near 

the pipeline easement, including the inadequacy of the roads and bridges and the fact that one part 

of a lot was in a floodplain. As a result, the jury could have concluded that the plaintiff’s alleged 

damages resulted from the negligence of others.
19

¶ 44 III. CONCLUSION

¶ 45 After reviewing the record, and viewing all of the evidence in a light most favorable to 

Flynn, we cannot say that the evidence so overwhelmingly favored the plaintiff that no contrary 

verdict could ever stand. Therefore, we find the trial court did not err in denying the plaintiff’s 

motion for a judgment notwithstanding the verdict. Accordingly, the judgment is affirmed.

¶ 46 Affirmed.
20

Fletcher v. Flynn, 2024 IL App (5th) 220818

Decision Under Review: Appeal from the Circuit Court of Macon County, No. 11-L-64; 

the Hon. James R. Glenn, Judge, presiding.

Attorneys

for

Appellant:

Michael T. Franz, of Lewis Brisbois Bisgaard &Smith LLP, of 

Chicago, for appellant.

Attorneys

for

Appellee:

Daniel B. Meyer and Edward C. Eberspacher IV, of Meyer Law 

Group LLC, of Chicago, for appellees.