Larson v. O'Donnell
Case Date: 09/30/2005
Court: 1st District Appellate
Docket No: 1-05-0489 Rel
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THIRD DIVISION
Plaintiff, Edward F. Larson, filed an action against defendants, Kevin O'Donnell and O'Donnell & Associates, Ltd., alleging legal malpractice and breach of fiduciary duty arising out of defendants' representation of plaintiff in connection with his divorce proceedings. During the pendency of discovery, the trial court granted defendants' motion for extension of time to respond to plaintiff's requests to admit, finding good cause had been established for the delay in responding. Subsequently, the trial court granted defendants' motion for summary judgment, finding that plaintiff was estopped from bringing his cause of action. On appeal, plaintiff contends that (1) the trial court abused its discretion in finding that defendants established good cause for their failure to timely respond to plaintiff's request to admit; (2) the trial court abused its discretion in allowing defendants to be heard on a motion for summary judgment beyond the time allowed by local rule; and (3) the trial court erred in granting defendants' motion for summary judgment. For the following reasons, we affirm the judgment of the circuit court. BACKGROUND A. Underlying Litigation By letter agreement dated November 23, 1999, plaintiff retained defendants to represent him in connection with his divorce proceeding. At issue in the divorce proceeding, among other issues, was plaintiff's responsibility for child support and maintenance payments. Pursuant to settlement negotiations and advice from defendants, plaintiff agreed to pay 20% of his net income for child support and 10% of his net income for maintenance. Subsequently, on January 31, 2001, plaintiff became unemployed. Thereafter, on February 13, 2001, the parties and their respective counsel appeared before the court to present the parties' marital settlement agreement for approval. The agreement with respect to child support payments provided in pertinent part as follows: "3.1 [Plaintiff] shall pay to Nancy as and for child support the total sum of $1,032.00 per month, beginning on the first pay period immediately following the entry of judgment herein as for so long as there is a duty of child support by virtue of this agreement or any court order. The parties acknowledge that [plaintiff's] gross income in the year 2000 was $129,930 per year and that his properly calculated net income was $86,000.00 for that year; however, [plaintiff's] employment with El Camino Resources, Ltd. was terminated on January 31, 2001 and that [plaintiff's] future employment status is presently unknown. Under the circumstances, the parties acknowledge that [plaintiff] has the ability to earn a gross income of at least $90,000 per year, and with a properly calculated net income of at least $62,000 per year, upon which the parties have agreed to base child support as set forth above, and that the payment of support hereunder conforms to the 20% child support guideline under Section 505 of the Illinois Marriage and Dissolution of Marriage Act. 3.2 Further, the parties acknowledge that child support cannot be expressed exclusively as a dollar amount because all or a portion of [plaintiff's] income is uncertain as to the source, time of payment, or amount, and, therefore, in addition to the above stated dollar figure, [plaintiff] shall pay as and for child support an additional 20% of any and all net income for all sources in excess of $62,000 per year." Similarly, the agreement with respect to maintenance was based upon the parties acknowledgment that plaintiff was unemployed, but had the ability to earn a net income of at least $62,000 per year. Based upon that amount, the parties agreed that plaintiff would be responsible to pay $517 per month in maintenance for four and a half years, and would be required to pay an additional 10% of any net income for all sources of income in excess of $62,000 per year. At the hearing to approve the settlement, plaintiff gave the following pertinent testimony when questioned by defendant O'Donnell: "Q: Now, you have entered into a Marital Settlement Agreement, is that correct? A: Yes. Q: Do you understand the terms and conditions of that Agreement? A: Yes. Q: Do you feel that the Agreement is fair? A: Yes. * * * Q: You are to pay the amount of child support in the amount of $1,032 which is based on a net income of $86,000, is that correct? A: Yes. Q: We have informed the court and we have informed the respondent's attorney that you are currently unemployed but you believe that is a fair approximation of what you can make, is that correct? A: Yes. Q: Your income will be verified and the amount of child support will be based on that 20% statutory net of whatever you are making, is that correct? A: Yes. * * * Q: You further agree to pay to your wife maintenance for 4 |
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