Opinion
No. 1-12-0881
12-27-2013
DAVIS FRIEDMAN, Plaintiff/Counter-Defendant/Appellee, v. DAVID KAHN, Defendant/Counter-Plaintiff/Appellant.
NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from the
Circuit Court of
Cook County, Illinois.
No. 09 L 1909
Honorable
Raymond W. Mitchell,
Judge Presiding.
JUSTICE delivered the judgment of the court.
Justices McBride and Palmer concurred in the judgment.
ORDER
HELD: Counter-plaintiff appealed from an adverse judgment on his legal malpractice claim against the firm that represented him in his divorce. We held that (1) the trial court's failure to instruct the jury as to the legal effect of the divorce court rulings was not reversible error, since counter-plaintiff failed to show prejudice; (2) the trial court correctly instructed the jury on professional negligence; (3) the trial court did not err in refusing to give a jury instruction proffered by counter-plaintiff where it sought to address a defense that had been withdrawn by counter-defendant; and (4) the trial court acted within its discretion in excluding cumulative expert testimony. However, the trial court erred in failing to instruct the jury that contingent fee cases were not marital assets, where such principle was potentially central to the issue of liability and a clarification of the law was necessary to prevent jury confusion. Thus, a new trial on that issue only is granted. ¶ 1 David Kahn appeals from a jury verdict rendered against him in his legal malpractice suit against Davis Friedman, the law firm that represented him in his divorce. ¶ 2 Davis Friedman initially brought suit against Kahn for failing to pay legal bills he had incurred in the underlying divorce suit. (Those bills are not at issue in this appeal.) Kahn countersued for legal malpractice, claiming that his counsel's breach of care in the divorce suit led to an unfavorable division of the $12 million marital estate. Following a trial, the jury found in Davis Friedman's favor on both counts. Kahn now appeals the trial court's judgment against him on his legal malpractice counterclaim. For the reasons that follow, we affirm in part and reverse in part.
¶ 3 I. BACKGROUND
¶ 4 On February 7, 2007, Davis Friedman filed its complaint against Kahn. In its complaint, it alleged that Kahn owed them approximately $54,000 in unpaid legal bills, which was roughly one-third of the total bill that he incurred in the divorce litigation. Kahn filed an answer in which he admitted that he received bills from Davis Friedman but denied that Davis Friedman performed its obligations under the engagement agreement signed by the parties. Kahn additionally filed the legal malpractice counterclaim that is the subject of the instant appeal. ¶ 5 Kahn's allegations of malpractice centered on (1) a stipulation to the value of certain assets that he owned and (2) his counsel's failure to fully apprise the divorce judge of the tax consequences inherent in awarding Kahn a disproportionate share of IRA assets. With regard to the first of these issues, it is undisputed that on the first day of Kahn's divorce trial, Kahn signed a stipulation that his law firm possessed bank accounts totaling approximately $477,000. Kahn claimed that the firm was actually worth much less than $477,000, because of various outstanding financial obligations. Nevertheless, according to Kahn, the divorce court read the stipulation as a valuation of the firm and refused to consider any evidence as to the firm's obligations. In ordering an equal division of the marital estate between the parties, the divorce court awarded the firm to Kahn but gave Mrs. Kahn a balancing award equaling half the sum of the firm's bank accounts. Kahn alleged that this division was, in fact, not equal, and it would not have happened but for his counsel's negligence in advising him to sign the stipulation. ¶ 6 With regards to the second issue, it is undisputed that the marital estate included approximately $2.6 million in IRA accounts, and the divorce court awarded approximately 96% of those assets to Kahn. In a motion to reconsider the divorce judgment, Kahn argued that this division was unfair because IRA assets are subject to significantly higher taxes than the other assets awarded to Mrs. Kahn. The divorce court refused to consider this argument, stating that it had been waived since counsel for Kahn had not presented any evidence at trial of such tax consequences. Kahn contended this his counsel's failure to present such evidence constituted legal malpractice. ¶ 7 One of the expert witnesses that Kahn disclosed prior to trial pursuant to Supreme Court Rule 213(f)(3) (Ill. S. Ct. R. 213(f)(3) (eff. Jan. 1, 2007)) was Glenn Dalhart, a certified public accountant. In his initial Rule 213(f)(3) disclosures, filed on March 25, 2008, Kahn stated that Dalhart would testify as to (1) the taxation of IRA assets, particularly as compared to the taxation of non-IRA securities investment accounts that were also part of the Kahn marital estate; (2) the damages that Kahn incurred as a result of the stipulation; and (3) the damages that Kahn incurred as a result of the court awarding Kahn 96% of the IRA assets instead of allocating them equally between the parties. Subsequently, Kahn filed a supplemental Rule 213(f)(3) disclosure in which he added certain opinions of Dalhart relating to a reimbursement claim that is not at issue in this appeal. ¶ 8 On February 15, 2010, Davis Friedman filed its Rule 213(f)(3) disclosures, in which it disclosed liability expert David Pasulka. Among other things, Davis Friedman stated that Pasulka would testify that stipulating to a value of Kahn's law firm was strategically in his favor because a business valuation would likely have assigned a greater value to the firm than its stipulated value. In response, Kahn filed a second supplemental Rule 213(f)(3) disclosure on June 2, 2010, in which he stated that Dalhart would offer rebuttal testimony concerning the value of Kahn's firm as of the date of his divorce. Specifically, Kahn stated that Dalhart would testify that the fair market value of Kahn's firm was "zero." ¶ 9 Prior to trial, Davis Friedman filed a motion in limine requesting that the trial be bifurcated, with the jury deciding the issue of liability and the court deciding the issue of damages. Both the court and the parties agreed to this. The discussion then turned to the admissibility of Dalhart's testimony in the jury portion of the trial. Kahn's lawyers contended that Dalhart should still be allowed to testify to the jury about the value of Kahn's law firm and the tax consequences connected with Kahn's IRAs. They argued that such testimony was relevant to the issue of liability because if the stipulated value of Kahn's law firm was not higher than the actual value of the firm, then agreeing to the stipulation would not be negligent; likewise, if the IRAs would have no negative tax consequences, failing to introduce evidence of their tax consequences would not be negligent. The trial court agreed, stating:
"[I]f causation goes to the jury, they have to find an injury, right? *** And if the testimony [of Dalhart] is sufficiently limited, I don't see a harm in it. In fact, I think it almost has to be before them in order to decide this issue of causation and also relative to some of the defenses."Thus, over Davis Friedman's objection, the trial court agreed to allow Dalhart to testify to the jury for the limited purpose of establishing that Kahn had suffered an injury. ¶ 10 Also prior to trial, Kahn filed a "Motion for the Court to take Judicial Notice of the Trial Court's Findings in the Divorce Action." In that motion, Kahn requested that the court advise the jury as follows:
"a. The trial court found that David Kahn stipulated to the value of his marital business interest in the September 26, 2005 Trial Stipulations. In accordance with the stipulation, the value of his interest was computed based on the total of the three identified accounts. The trial court found that David Kahn was bound by the stipulation and could not counter the stipulation with evidence that the firm had obligations and/or liabilities as of the date of trial.The court denied Kahn's motion, stating: "[I]t seems to me that the best evidence of what those [divorce court] rulings mean is the rulings themselves as opposed to me putting a judicial gloss on them. It seems to me that they speak for themselves." ¶ 11 The case proceeded to a jury trial. Kahn testified on his own behalf. By way of background, Kahn stated that although he was a lawyer, he had never been in divorce court prior to his own divorce, and he knew almost nothing about divorce law. His law firm dealt with securities fraud litigation. ¶ 12 Kahn stated that during the middle of his divorce litigation, he retained Errol Zavett, a senior partner at Davis Friedman with 30 years' experience in divorce litigation. Prior to that time, Kahn was represented by other retained counsel, and he also had appearances on file from himself and other lawyers from his firm. However, when he hired Zavett, he requested that those appearances be withdrawn, and they were. ¶ 13 Kahn testified that Zavett did not represent him with the standard of carefulness, skill, and diligence that he promised in their retainer agreement. He stated that, although the divorce court ruled that he and his wife would divide the marital estate equally, the share he actually received was significantly less than half as a result of Zavett's carelessness. According to Kahn, this carelessness centered on two points: the stipulation to the value of his law firm, and his failure to inform the court of the tax consequences of his IRA accounts. ¶ 14 With regard to the stipulation issue, Kahn testified that the value of his law firm was not equal to the value of the cash it had in its accounts, because it had outstanding financial obligations such as taxes, rent, and employee compensation. As a result of these obligations, Kahn said that the worth of his firm was "functionally zero." He later stated that the net balance for the firm at the end of the year was approximately $1600. However, he said, the divorce court did not consider the firm's outstanding obligations in determining its value. Instead, it treated the firm as if it were worth $477,000 because of a stipulation that Zavett induced him to sign before the start of the trial. ¶ 15 Kahn testified that Zavett presented him with the stipulation on the day of the trial and told him to sign it. At that time, Kahn observed that the stipulation contained a listing of the balances of his firm's bank accounts, which totaled approximately $477,000. Because of this, Kahn was reluctant to sign. Nevertheless, Zavett "insisted" that he sign it, telling him that if he refused to sign, the divorce judge would be angry. Zavett also assured him that the stipulation would not prevent the court from considering evidence that the firm was actually worth less than $477,000. Thus, Kahn signed the stipulation. However, Zavett's assurances regarding the stipulation proved to be incorrect. The divorce court interpreted the stipulation as a valuation of the firm and refused to consider Kahn's evidence relating to the firm's outstanding financial obligations. ¶ 16 Kahn also testified about Zavett's alleged negligence in failing to present evidence of the tax consequences related to IRA assets. He explained that money in an IRA is tax deferred, meaning that there is no payment of taxes until money is withdrawn. However, all the money within is taxable, as opposed to, say, an investment account, where only profits are taxable. Accordingly, the tax consequences for an IRA are much higher than for other kinds of accounts. ¶ 17 Kahn testified that prior to trial, each party submitted a proposed division of the marital assets. Under his wife's proposal, Kahn would receive approximately 96% of the IRA assets. Kahn stated that when he saw this, he emailed Zavett to ask him whether they should object to the proposal and inform the court of the tax consequences of such assets. Zavett told him that it would be unnecessary, since in his experience, judges always divided such assets equally. Kahn said that he regarded this advice as "[n]ot great," but he did not insist on putting in the tax evidence, because he wanted to trust Zavett's extensive divorce law experience over his own lack of experience. ¶ 18 In the end, the trial court did not divide the IRA accounts equally. Instead, it divided them according to Mrs. Kahn's proposal, giving Kahn 96% of those assets. Kahn testified that the taxes on those accounts could be as much as $980,000. He stated that he filed a motion for reconsideration arguing that this division was unequal based on the tax consequences, but the trial court denied his motion, since Kahn had not presented any evidence of such consequences. ¶ 19 Kahn further testified that he appealed the divorce court's division of the marital estate, arguing that it was not a legitimately equal decision due to the factors stated above. The appellate court rejected his arguments, agreeing with the divorce court that Kahn had stipulated to the value of his firm and had waived the right to present evidence of the tax consequences related to his IRA accounts. ¶ 20 Kahn next called Zavett to the stand as an adverse witness. With regard to the stipulation, Zavett testified that he intended to stipulate to the value of the bank accounts held by Kahn's law firm, not the value of the firm itself, but the trial court interpreted the stipulation as the latter and accordingly treated the firm itself as being worth $477,000. Zavett admitted that he advised Kahn to sign the stipulation and told him that if he did not sign it, the judge would not be pleased with him. However, he also said that "Mr. Kahn was not a client who blindly accepted advice. Mr. Kahn argued, debated, discussed many of the decisions. If he agreed to do this, believe me, he was an independent thinker." ¶ 21 Zavett gave two reasons why he advised Kahn to sign the stipulation. First, he stated that the amount of cash in the firm's accounts was an easily verifiable fact, and forcing the other side to subpoena the bank to prove it would be a waste of the judge's time. He additionally stated that as a matter of strategy, he did not want to draw too much attention to the valuation of Kahn's firm, because the firm also had "other significant potential assets" - namely, contingent fee cases in progress that could potentially be argued to contribute to the firm's value. He stated that the firm's primary source of income consisted of contingent fees. However, he admitted that, during his closing argument in the divorce trial, he argued that contingent fees could not be counted in dividing marital assets as a matter of law. ¶ 22 With regard to the IRA accounts, Zavett admitted that during trial, he made no mention of the tax consequences attached to IRA assets. He testified that this was a matter of trial strategy. Under his proposed division of the estate, Kahn was going to give his wife $1 million in IRA assets. Zavett stated that this was a "grand gesture" and "a very attractive way to sell the settlement." Consequently, Zavett testified that he did not want to point out that these assets would be highly taxed. Zavett also stated that Kahn participated in the drafting of this proposed division of the estate and "certainly didn't reject it." But, in any case, Zavett stated that he believed that the divorce judge was aware of the tax consequences attached to IRA assets. He opined that even if he had raised the issue at trial, the result would have been the same. ¶ 23 Zavett denied telling Kahn that the divorce court would make a proportional distribution of the IRA assets. He stated that, in fact, it is not true that divorce courts generally make an equal division of tax-deferred assets such as IRAs. However, he agreed that he sent an email to Kahn in which he stated the following: "You know that I think that to the extent [the divorce judge] does a percentage division, she'll divide in kind so this [informing her of tax consequences] will be unnecessary." He characterized this comment as "a throw away" and further stated, "I am of the firm belief that Mr. Kahn understood the risks." ¶ 24 Regarding the extent of the tax consequences, Zavett admitted that in his postjudgment motion for reconsideration, he stated the following: "The potential tax costs to David are significant (at the 35 percent rate payable on ordinary income the potential tax could come to about $980,000 on the IRAs awarded him)." However, Zavett stated that Kahn had given him that sentence to insert into the motion. He stated that it was "very common" for Kahn to direct him regarding what to write in briefs. ¶ 25 Finally, Zavett admitted that he did not at any time explain to Kahn that his trial strategy might cause the divorce court to value Kahn's law firm at $477,000 or award him 96% of the IRA assets. "Mr. Kahn did not need me to explain it," Zavett stated. "Mr. Kahn was a sophisticated, experienced lawyer who had been in court, who had been in much bigger litigation than this. And he certainly understood the risks." ¶ 26 Kahn next called Claudia Oney, a family law attorney, to testify as an expert on the standard of care for a family law attorney. Oney testified that both the divorce court and the appellate court found that the stipulation was controlling as to the value of Kahn's law firm, and that by signing it, he had relinquished the right to present evidence of his firm's obligations. Oney stated that a reasonably careful divorce attorney would have listed the firm's liabilities along with its assets in the stipulation or, alternately, declined to make any stipulation regarding the law firm. This latter option would require the parties to establish the value of the bank accounts at trial, but Oney stated that doing so would typically take about five minutes. ¶ 27 Oney additionally testified that retirement accounts affect the distribution of property in a divorce proceeding because the money in such accounts has not yet been taxed. She noted that when a divorce judge is dividing the marital estate, one of the statutory factors she is required to consider is the tax consequences on the parties. Oney opined that a reasonable divorce lawyer would give the judge information on every statutory factor, including tax consequences, and it was a deviation from the standard of care for Kahn's attorney to fail to bring such consequences to the attention of the court. She explained: "It was a huge amount of money that the judge should have been asked to view in a separate way than the rest of the assets, because no taxes had been paid on $2.7 million, and that's a lot of tax." ¶ 28 After Oney concluded her testimony, counsel for Davis Friedman sought to revisit the issue of whether Dalhart, Kahn's damages expert, would be permitted to testify before the jury. The court decided to bar Dalhart's testimony, stating its reasoning as follows:
b. The trial court found that it is required to consider the tax consequences of the division of marital property upon the respective economic circumstances of the parties, but that it could not do so without evidence of the tax consequences. The court found that it could take judicial notice of the United States tax laws. The court found, however, that David Kahn was not entitled to complain of the court's failure to take judicial notice
where he failed to request that the court do so and failed to bring the tax consequences to the attention of the court. The court held that Mr. Kahn waived his right to present evidence as to the tax consequences of the IRA assets where he failed to offer evidence of tax consequences until after the divorce judgment was entered."
"I just don't know that it's appropriate to put on a damage expert when the jury is not - when they're not deciding damages. And this issue of valuation, if it comes up based on what their expert says, maybe we can revisit it. But as we stand right now, I just don't see it.Kahn then rested. ¶ 29 Davis Friedman called Pasulka, a practicing family law attorney, as its expert on the standard of care. Pasulka opined that Zavett did not breach the standard of care in advising Kahn to enter into the stipulation. He stated that in his review of the documents relating to the case, he saw nothing preventing Zavett from presenting evidence of the firm's liabilities. "The stipulation doesn't prohibit further information," he said. "It just is what it is." On cross-examination, though, he admitted that the divorce court interpreted it as a stipulation to the value of the marital business interest rather than a stipulation of what was in the firm's bank accounts. ¶ 30 Pasulka then commented on Kahn's law firm and its assets. He stated that Kahn had work in progress on multiple contingent fee cases. In particular, he said that at the time of the divorce, Kahn and his firm had $2.85 million worth of time and expenses invested in a case he referred to as "the WRT case," and Kahn was hoping for "a large award of attorney's fees" on that case. On cross-examination, Pasulka admitted that future income is usually not considered by the divorce court in dividing the marital estate. Indeed, he agreed that the Illinois Supreme Court had stated that contingent fees were not to be counted in dividing marital assets. ¶ 31 With regard to the IRA accounts, Pasulka testified that the overall strategy developed by Zavett and Kahn was to obtain a 60-40 division of the estate in Kahn's favor. As part of this strategy, they offered to give $1 million in IRA assets to Kahn's wife. Pasulka testified that this strategy was within the standard of care, and it would have undermined that strategy to focus on the long-term tax consequences of IRA assets, because it would highlight the fact that they were not really giving $1 million to the wife. Pasulka further testified that, in 26 years of family law practice, he had never presented evidence to the court of how an IRA would be taxed upon distribution. He stated that any such tax computation would be speculative, since the applicable tax bracket would depend on the owner's income at the time of withdrawal. ¶ 32 After Pasulka's testimony, Kahn took the stand again in rebuttal. He stated that at the time of the divorce trial, he considered the value of the WRT case to be "[b]asically zero," since his firm had been working on that case for at least 12 years, it was not close to being finished, and it was not going well. He stated that, in fact, he never received anything from that case. ¶ 33 At the close of evidence, Kahn tendered three non-IPI jury instructions that were rejected by the trial court. His first rejected instruction, relating to his status as an attorney, stated, "It is not a defense to David Kahn's professional negligence claim that David Kahn agreed to follow Davis Friedman's advice and/or that he is an attorney." The second instruction, relating to Davis Friedman's duty to advise Kahn of risks, stated in relevant part, "If a lawyer fails to advise his clients regarding the foreseeable risk of a course of action he advises the client to take, the lawyer is negligent regardless of the propriety of the course of action the lawyer recommends." The third instruction, relating to the valuation of Kahn's law firm, stated, "In determining the division of a marital estate, where a spouse has a law practice, a spouse's contingent fee cases are not marital assets and may not be taken into account in dividing the marital estate." ¶ 34 The jury returned verdicts in Davis Friedman's favor on both its breach of contract claim and on Kahn's counterclaim for legal malpractice. Kahn now appeals the adverse judgment on his legal malpractice counterclaim.
What I was concerned with at the outset when we initially visited this issue, the concern was that there wouldn't be a mechanism. There wouldn't be anything there for the jury to discern any injury and we're asking them to decide proximate cause. But now having heard the testimony, there is. And so I just, I just don't see that it's appropriate."
¶ 35 II. ANALYSIS
¶ 36 On appeal, Kahn raises three main contentions. First, he contends that the trial court erred in denying his "Motion for the Court to take Judicial Notice of the Trial Court's Findings in the Divorce Action." Second, he contends that the trial court erred in refusing to give his non-IPI jury instructions listed above. Third, he contends that Dalhart's testimony should not have been barred, because it was relevant to the issue of liability.
¶ 37 A. Kahn's Judicial Notice Motion
¶ 38 Kahn's first contention is that the trial court should have granted his "Motion for the Court to take Judicial Notice of the Trial Court's Findings in the Divorce Action," in which he requested that the jury be instructed as to the legal effect of the stipulation and his counsel's failure to present evidence of the tax consequences related to IRA assets during the divorce proceedings. ¶ 39 At the outset, Davis Friedman argues that Kahn has waived this argument because he did not properly tender his proposed instruction to the court during the jury instruction conference. Although the full text of the proposed instruction was contained in Kahn's written pretrial motion, Davis Friedman contends that such a motion is not a sufficient substitute for the formal tender of an instruction. However, Davis Friedman presents no support for this assertion. The cases cited by Davis Friedman on this matter are inapposite, since they deal with situations where the appellants failed to provide the court with a proposed instruction in any form, whether in a pretrial motion or otherwise. Auton v. Logan Landfill, Inc., 105 Ill. 2d 537, 549-50 (1984) (applying waiver because plaintiff's failure to tender an instruction "left the trial judge in a position where he did not have before him an instruction covering the manner in which, according to the plaintiff's current argument, comparative fault should correctly have been applied"); Saldana v. Wirtz Cartage Co., 74 Ill. 2d 379, 387 (1978). ¶ 40 Thus, we turn to consider the merits of Kahn's argument. In doing so, we are mindful that the purpose of jury instructions is to inform the jury of the correct principles of law that apply to the submitted evidence. Dillon v. Evanston Hosp., 199 Ill. 2d 483, 507 (2002). The threshold for giving an instruction in a civil case is "not a high one." Heastie v. Roberts, 226 Ill. 2d 515, 543 (2007). As our supreme court has explained:
"Generally speaking, litigants have the right to have the jury instructed on each theory supported by the evidence. Whether the jury would have been persuaded is not the question. All that is required to justify the giving of an instruction is that there be some evidence in the record to justify the theory of the instruction. The evidence may be insubstantial." Id.See also Snelson v. Kamm, 204 Ill. 2d 1, 27 (2003) (a party is entitled to instructions on any theory of the case that is supported by the evidence). The expression "theory of the case" does not refer solely to the plaintiff's theory of liability but, rather, to each party's framing of the issues and arguments in support of its position. Mikolajczyk v. Ford Motor Co., 231 Ill. 2d 516, 549-50 (2008). ¶ 41 The decision to give or deny an instruction is within the discretion of the trial court. Heastie, 226 Ill. 2d at 543; Dillon, 199 Ill. 2d at 505; Mikolajczyk, 231 Ill. 2d at 562. No abuse of discretion will be found where, taken as a whole, the instructions are sufficiently clear so as not to mislead the jury and they fairly and correctly state the law. Id. Moreover, even where the trial court erroneously refuses to give a tendered instruction, such error only warrants reversal where it prejudices a party's right to a fair trial. Heastie, 226 Ill. 2d at 543; Schultz v. Northeast Illinois Regional Commuter R.R. Corp., 201 Ill. 2d 260, 274 (2002) ("A reviewing court ordinarily will not reverse a trial court for giving faulty instructions unless they clearly misled the jury and resulted in prejudice to the appellant."); Brooks v. City of Chicago, 106 Ill. App. 3d 459, 466 (1982) ("A liberal application of the harmless error doctrine to jury instruction issues is favored when it appears that the rights of the complaining party have in no way been prejudiced.") ¶ 42 In this case, we need not consider the propriety of Kahn's proposed instructions, because Kahn has not shown any prejudice resulting from the trial court's refusal to give the instructions. Kahn requested that the jury be instructed on the divorce court's rulings as follows:
"a. The trial court found that David Kahn stipulated to the value of his maritalInitially, Davis Friedman contends that these proposed instructions are improperly argumentative in that they are designed to highlight to the jury aspects of the underlying divorce rulings which Kahn deemed favorable to his case, a contention which is not without merit. See Ill. S. Ct. R. 239(a) (eff. Jan. 1, 2001) (jury instructions "should be simple, brief, impartial, and free from argument"); Fravel v. Morenz, 151 Ill. App. 3d 42, 45-46 (1986) (jury instructions that overemphasize a particular point are argumentative, misleading, and highly prejudicial). In any case, Kahn cannot show any prejudice from the failure to give these instructions where the divorce court rulings were a primary focus of the trial and he had ample opportunity to present testimony reflecting the content of his proposed instructions. Kahn himself testified that both the divorce court and the appellate court found that he had stipulated to the value of his firm and had waived the right to present evidence of the tax consequences of IRA assets. Likewise, both Zavett and Pasulka testified that the divorce court found that Kahn had stipulated to the "value of the marital business interest." Pasulka even stated, "If the court correctly viewed it as that's what they stipulated to, then they're bound by that stipulation." Kahn's testimony in this regard was also corroborated by Oney, his liability expert. Oney testified that the divorce court found the stipulation to be "written in stone" and "controlling" as to the value of Kahn's firm, and by entering into that stipulation, Kahn had relinquished his right to present evidence of the firm's obligations. "You do not get a do-over when you enter into a stipulation," she explained. She also stated that no evidence of tax consequences was presented to the divorce court prior to the entry of the divorce judgment, leaving the divorce court unable to make a decision on that basis. Finally, in addition to the foregoing, counsel for Kahn argued vigorously about the effect of the stipulation and the waiver of tax-related arguments during both opening and closing arguments before the jury. Thus, even in the absence of any explicit instructions as to the meaning of the underlying divorce orders, the jury was certainly adequately informed as to the content and effect of the rulings at issue. ¶ 43 Kahn nevertheless argues that the rulings were embedded in lengthy orders that might have been confusing to a lay jury. This argument overlooks the fact that the relevant portions of the rulings were not only discussed at length by several witnesses, but also shown to the jury via projection device on multiple occasions. Indeed, counsel for Kahn commented on this very fact during his cross-examination of Pasulka, when he used a projection device to display the portion of the divorce court's ruling where the court held that Kahn had "stipulated to the value of the marital business interest." As he did so, he stated, "Mr. Pasulka, you're joining us late in the case, but I'm afraid everybody has probably committed this language to memory by now." ¶ 44 In light of this extensive testimony and argument that Kahn presented to the jury, we find that Kahn's right to a fair trial was not prejudiced by the trial court's denial of his judicial notice motion. In this regard, we find Schultz, 201 Ill. 2d at 281, to be instructive. The Schultz defendant argued on appeal that the trial court erred in giving an IPI instruction instead of defendant's tendered non-IPI instruction. Id. at 272-73. The Schultz court agreed with the defendant that the IPI instruction was unclear, while defendant's instruction accurately and clearly stated the applicable rule of law. Id. at 280. It further found that there was ample evidence to support the giving of defendant's instruction. Id. The Schultz court concluded that the trial court erred in giving the IPI instruction, but stated: "Nonetheless, we hold that the trial court's failure to properly instruct the jury is not reversible error. *** It is not clear from the record that the jury was misled by the error." Id. at 281. Thus, the Schultz court affirmed the judgment of the trial court. See also Linhart v. Bridgeview Creek Development, Inc., 391 Ill. App. 3d 630, 638 (2009) (omission in jury instructions was not reversible error where it did not prejudice defendants). Similarly, in the instant case, even supposing that we were to accept the proposition that Kahn's proposed instructions were fair and correct statements of the law, there is no indication that the jury would have been misled by their omission, and "it appears that the rights of the complaining party have in no way been prejudiced" (Brooks v. City of Chicago, 106 Ill. App. 3d at 466).
business interest in the September 26, 2005 Trial Stipulations. In accordance with the stipulation, the value of his interest was computed based on the total of the three identified accounts. The trial court found that David Kahn was bound by the stipulation and could not counter the stipulation with evidence that the firm had obligations and/or liabilities as of the date of trial.
b. The trial court found that it is required to consider the tax consequences of the division of marital property upon the respective economic circumstances of the parties, but that it could not do so without evidence of the tax consequences. The court found that it could take judicial notice of the United State tax laws. The court found, however, that David Kahn was not entitled to complain of the court's failure to take judicial notice where he failed to request that the court do so and failed to bring the tax consequences to the attention of the court. The court held that Mr. Kahn waived his right to present evidence as to the tax consequences of the IRA assets where he failed to offer evidence of tax consequences until after the divorce judgment was entered."
¶ 45 B. Kahn's Non-IPI Jury Instructions
¶ 46 Kahn's next contention is that the trial court erred in refusing to give his non-IPI instructions relating to Davis Friedman's duty to inform him of risks, his own status as an attorney, and the impact of contingent fee cases in the valuation of his law firm. ¶ 47 As previously discussed, the decision to give or deny an instruction is generally reviewed for an abuse of discretion. Heastie, 226 Ill. 2d at 543; Dillon, 199 Ill. 2d at 505; Mikolajczyk, 231 Ill. 2d at 562. However, when the question is whether the applicable law was conveyed accurately, that is a question of law that we review de novo. Studt v. Sherman Health Systems, 2011 IL 108182, ¶ 13. ¶ 48 Additionally, our supreme court has mandated a presumption in favor of IPI instructions. See Pruett v. Norfolk and Western Ry. Co., 261 Ill. App. 3d 29, 36 (1994). Under Supreme Court Rule 239, if there is an applicable IPI instruction, it "shall be used, unless the court determines that it does not accurately state the law." Ill. S. Ct. R. 239(a) (eff. Jan. 1, 2001). Non-IPI instructions must be "simple, brief, impartial, and free from argument." Id.
¶ 49 1. Davis Friedman's Duty to Advise Kahn of Risks
¶ 50 Kahn first contends that the trial court erred by refusing to instruct the jury as follows: "If a lawyer fails to advise his clients regarding the foreseeable risk of a course of action he advises the client to take, the lawyer is negligent regardless of the propriety of the course of action the lawyer recommends." Kahn argues that this instruction is based upon this court's ruling in Metrick v. Chatz, 266 Ill. App. 3d 649, 653-56 (1994). Davis Friedman contends that this instruction misstates the Metrick holding and is an inaccurate statement of law.
Kahn's proposed instruction is based upon the following passage from Metrick: "It is the duty of every attorney to inform a client of the available options for alternative legal solutions, as well as to explain the foreseeable risks and benefits of each. The purpose of such a rule is to enable the client to make an informed decision as to whether the foreseeable risks of a proposed legal course of action are justified by its potential benefits when compared to other alternative courses of action. If a client suffers damage because of the happening of a foreseeable risk of which he or she was not informed, the attorney may be liable. In such a case, the attorney's liability is not predicated upon the impropriety of the chosen course of action, but rather upon the failure to inform the client sufficiently to enable him or her to voluntarily accept the risk attendant thereto." Id. at 653-54.Both in his proposed instruction and in his briefs before this court, Kahn interprets this passage as articulating a per se rule of negligence: that is, if an attorney fails to advise his client of a foreseeable risk of a course of action that he advises the client to take, such inaction constitutes negligence per se. Davis Friedman, on the other hand, argues that such inaction is merely one factor that the jury must consider in determining whether the defendant acted negligently. ¶ 51 Unfortunately, the Metrick decision itself does little to cast light on this interpretative dispute between the parties. At issue in Metrick is a legal malpractice suit in which plaintiffs alleged, among other things, that their counsel negligently failed to inform them of the consequences of pursuing chapter 11 rather than chapter 7 bankruptcy. Id. at 652. The Metrick court held that plaintiffs' claims were properly dismissed because they failed to allege the element of proximate cause. Id. at 654. Accordingly, the court had no need to reach the issue of whether counsel's alleged failure to disclose would have constituted negligence, per se or otherwise. ¶ 52 However, the Metrick court also states that the rule quoted above is "nothing more than an application of the long-standing rule pertinent to a cause of action for medical negligence premised upon a lack of informed consent." Id. (citing Green v. Hussey, 127 Ill. App. 2d 174 (1970)). Thus, we turn to the Green decision for guidance on this issue. See Ziegert v. South Chicago Community Hospital, 99 Ill. App. 3d 83, 92 (1981) ("Green has been correctly described as 'the leading case in Illinois dealing with informed consent.' ") (quoting Casey v. Penn, 45 Ill. App. 3d 573, 584 (1977)). ¶ 53 The plaintiff in Green was allegedly injured as a result of X-ray and cobalt therapy and claimed that her doctor's failure to inform her of the risks of such therapy constituted medical malpractice. Green, 127 Ill. App. 2d at 176. The plaintiff argued, just like Kahn does in the instant case, that the failure to inform her of the foreseeable risks of the treatment was negligence per se. Id. at 179-80 (quoting plaintiff's brief as stating, "A physician who fails to obtain his patient's consent to treatment must answer for the resulting damages.") (emphasis added). The Green court rejected this argument. Id. at 184. Rather, it held that plaintiff had the burden of proving by expert testimony that a reasonable medical practitioner would have informed the patient of such risks in the same or similar circumstances. Id. It explained that such a requirement is consistent with the basic theory of malpractice cases, under which a professional is negligent where he fails to adhere to a standard of reasonable professional care, such that the service rendered is substandard. Id. at 182 (citing Aiken v. Clary, 396 S.W.2d 668, 673 (Sup. Ct. Mo. 1965)). ¶ 54 This holding is equally applicable to the case at hand. See Metrick, 266 Ill. App. 3d at 654 (an attorney's duty to inform his client of foreseeable risks is an application of the doctrine of informed consent in medical malpractice cases as expressed in Green). Contrary to what Kahn states in his proposed instruction, it is not true that whenever a lawyer fails to inform his client of a foreseeable risk, the lawyer is automatically negligent. Rather, the question is whether a reasonable divorce attorney would have informed his client of such a risk in similar circumstances. The trial court correctly instructed the jury on this principle of law by giving Illinois Pattern Jury Instructions, Civil, No. 105.01 (2008), which defines "professional negligence" as "the failure to do something that a reasonably careful divorce attorney would do or the doing of something that a reasonably careful divorce attorney would not do, under circumstances similar to those shown by the evidence." Accordingly, the trial court acted properly in rejecting Kahn's instruction.
¶ 55 2. Kahn's Status as Attorney
¶ 56 Kahn next contends that the trial court erred by refusing to give his tendered instruction stating that "It is not a defense to David Kahn's professional negligence claim that David Kahn agreed to follow Davis Friedman's advice and/or that he is an attorney." Davis Friedman does not argue that this proposed instruction was incorrect, nor would we agree with such an argument. See Wildey v. Paulsen, 385 Ill. App. 3d 305, 313 (2008) (where client drafted and sent a defective pre-suit notice that defeated her claim, her attorney was negligent for failing to cure the defect, despite the fact that the client was also a licensed attorney). Instead, Davis Friedman argues that the instruction was properly rejected, since it sought to address a defense which had been withdrawn by Davis Friedman. ¶ 57 The facts pertaining to this argument are as follows. Prior to trial, Davis Friedman filed an affirmative defense of contributory negligence in which it argued that Kahn was contributorily negligent because, as an attorney, he had filed an appearance in the divorce proceeding and had approved Zavett's allegedly negligent conduct. In apparent response, Kahn tendered the above-quoted instruction. The trial court rejected this instruction, stating that it was in conflict with the contributory negligence instruction that it intended to give to the jury. After the jury instruction conference, but prior to the presentation of closing arguments, Davis Friedman withdrew its contributory negligence affirmative defense. Based upon that withdrawal, the trial court modified the previously-accepted contributory negligence instruction to remove any reference to affirmative defenses. ¶ 58 In light of its withdrawal of the contributory negligence defense, Davis Friedman argues that it was not error for the trial court to refuse Kahn's tendered instruction. We agree. Davis Friedman was no longer raising any defense premised upon Kahn's status as attorney, and all reference to any such defense was excised from the jury's instructions. Accordingly, any need for Kahn's proposed instruction would have been obviated. ¶ 59 Kahn points out that the trial court rejected his proposed instruction before Davis Friedman withdrew its defense of contributory negligence. Although this is true, it has no bearing upon our decision on this issue. It is well established that we review the judgment of the trial court, not its reasoning, and may affirm on any basis supported by the record. People v. Rajagopal, 381 Ill. App. 3d 326, 329 (2008). Thus, even though the trial court did not base its initial rejection of Kahn's instruction on Davis Friedman's withdrawal of its defense, we may still find its decision proper on those grounds. Moreover, we note that, in its order denying Kahn's posttrial motion for reconsideration, the trial court concurred that the withdrawal of Davis Friedman's contributory negligence defense rendered Kahn's proposed instruction unnecessary. ¶ 60 Notwithstanding the foregoing, Kahn argues that his tendered instruction was necessary to correct the mistaken notion, as argued by Davis Friedman to the jury, that his status as a lawyer and his involvement in the case served as a bar to liability. Davis Friedman contends that such a correction would be superfluous, since it never made any such argument to the jury in the first place. ¶ 61 Based upon our review of the trial transcript, we agree with Davis Friedman. Although the jury was presented with various facts about Kahn's status as a lawyer and his involvement in the case, these facts were not argued as being a bar to liability. Rather, they were relevant to the issue of risk disclosure discussed above. As noted, one of Kahn's central arguments at trial was that Davis Friedman breached the standard of care by failing to disclose risks that a reasonable lawyer would have disclosed under the circumstances. In response, Davis Friedman sought to portray Kahn as a savvy and knowledgeable client who would have been aware of such risks even without explicit instruction from Zavett. On this point, Kahn's legal experience and involvement in the case were relevant - not as a bar to liability, but rather as a factor to be considered in gauging the reasonableness of Zavett's failure to disclose. Zavett himself pursued this line of argument when he stated: "Mr. Kahn did not need me to explain [the risks]. Mr. Kahn was a sophisticated, experienced lawyer who had been in court, who had been in much bigger litigation than this. And he certainly understood the risks." ¶ 62 Thus, since Davis Friedman did not advance the mistaken notion that Kahn's status as an attorney would be a bar to liability, there was no need for a jury instruction to correct such a notion, and the trial court did not abuse its discretion in rejecting Kahn's proposed instruction. See Mikolajczyk, 231 Ill. 2d at 562 (no abuse of discretion will be found where instructions are sufficiently clear so as not to mislead the jury and they fairly and correctly state the law).
¶ 63 3. Contingent Fee Cases and the Marital Estate
¶ 64 Kahn's final contention with regard to jury instructions is that the jury should have been instructed that in divorce cases, future income from contingent fee cases is not taken into account in dividing the marital estate. Davis Friedman makes no attempt to argue that Kahn's proposed instruction was not a correct statement of law in relation to the valuation of his firm in the underlying divorce case. Instead, Davis Friedman argues that it was irrelevant to the issues which the jury was called upon to decide, namely, whether Zavett was negligent and, if so, whether he proximately caused Kahn's injuries. ¶ 65 We begin by looking at the instruction itself. Kahn's proposed instruction stated: "In determining the division of a marital estate, where a spouse has a law practice, a spouse's contingent fee cases are not marital assets and may not be taken into account in dividing the marital estate." This is a correct statement of the law. Our supreme court held in In re Marriage of Zells, 143 Ill. 2d 251, 252 (1991), that it was error to include a spouse's contingent fee cases as part of the marital estate. The Zells court explained that:
"First, the nature of a contingent fee contract indicates that an attorney has neither the right to receive the fee until the case is disposed of, nor any assurance that he ever will receive the fee. Second, the amount of the contingent fee depends on the amount of the award or settlement in the case; therefore its ultimate value, if any, remains highly speculative during the pendency of the case. *** Third, the worth of a contingent fee to an attorney, if any, remains intangible until the firm receives cash or other consideration for the services rendered." (Internal quotation marks omitted.) Id. at 252-53.Thus, under Zells, Kahn's potential future income from contingent fee cases in progress could not be included as part of the value of his law firm when dividing the marital estate. ¶ 66 As mentioned, Davis Friedman does not dispute that Zells applied to the underlying divorce case and has therefore waived any such argument. See Ill. S. Ct. R. 341(i) (eff. Feb. 6, 2013) (points not argued are waived). (Indeed, any such contention would be somewhat disingenuous, since Zavett himself argued the application of Zells to the divorce court in the underlying case.) Instead, Davis Friedman argues that it was not necessary to instruct the jury on Zells because it was irrelevant to the issues which the jury was asked to decide. We disagree. ¶ 67 Kahn's theory of the case was that Zavett negligently entered into a stipulation that caused the divorce court to overvalue his law firm. It was a necessary factual prerequisite to this claim that Kahn's firm was actually worth less than $477,000. To establish this, Kahn testified that his firm was worth "functionally zero" due to its outstanding financial obligations. In response, both Zavett and Pasulka testified that Kahn's firm was worth significantly more because of contingent fee cases in progress. Zavett testified that Kahn's firm "had thousands of hours that he had billed and I'm sure many thousands or hundreds of thousands in costs advanced." He opined that having the divorce court look closely into the valuation of the firm "would have done us more harm than good." Pasulka's testimony was even more damaging in this regard. He testified that at the time of the divorce, Kahn's firm had $2.85 million worth of time and expenses invested in the WRT case and was hoping for "a large award of attorney's fees" from that case. This testimony was potentially central to the issue of liability. If the jury had believed that Kahn's firm was, in fact, worth $2.85 million, then it certainly would not have found that Zavett acted negligently in stipulating that the firm was worth $477,000. ¶ 68 Consequently, in order for the jury to properly determine whether Zavett was negligent in entering into the stipulation, it needed to know that contingent fees could not be taken into account in valuing Kahn's law firm. The trial court abused its discretion in refusing Kahn's request for an instruction to clarify this issue of law. See People v. Mohr, 228 Ill. 2d 53, 66 (2008) (" 'A trial court abuses its discretion if jury instructions are not clear enough to avoid misleading the jury ***.' ") (quoting In re Timothy H., 301 Ill. App. 3d 1008, 1015 (1998)). ¶ 69 In making this decision, we are guided by the principle that a party should not be heard to complain about the necessity of clarifying a potentially prejudicial issue which he himself presented. Villa v. Crown Cork & Seal Co., 202 Ill. App. 3d 1082, 1088 (1990). The facts of Villa are instructive here. The Villa plaintiff brought suit to recover for injuries he sustained in an automobile collision with defendant. Id. at 1084. During trial, plaintiff's counsel made repeated reference to the fact that the road on which the collision occurred was a private road. Id. at 1088. In response, the defendant tendered and the trial court gave a non-IPI instruction stating: "The fact that the Defendant was operating his vehicle on a private roadway should not be a factor for you to consider in deciding the issues presented in this case." Id. at 1087. The Villa court found that this instruction was a correct statement of law and was necessary to clarify to the jury that the defendant did not incur a greater standard of care based upon the location of the accident. Id. at 1088. Therefore, the instruction was properly given. Id. Similarly, in the instant case, Davis Friedman made multiple references to the fact that Kahn had contingent fee cases in progress from which he could potentially receive a large amount of attorney fees - larger, in fact, than the stipulated value of his firm. It cannot now complain about the necessity of giving an instruction that these contingent fees could not have been taken into account by the divorce court in valuing his firm. ¶ 70 Davis Friedman nevertheless argues that Kahn was not prejudiced by this error, because Kahn had the opportunity to cross-examine Zavett and Pasulka regarding the holding of Zells. However, both Zavett and Pasulka were unclear at best about whether Zells would apply to the valuation of Kahn's firm, leaving the possibility of jury confusion high. When Zavett was questioned about Zells, he replied as follows:
"[T]he Zells case was a one-man operation. And I believe what the focus was on contingent fees in personal injury cases. And the wife with Judge, Mr. Justice Heiple, who as you may recall made these sort of curt opinions, simply said it should not be taken into account. I don't see a lot to do with the Kahn case, but it certainly is one that I would cite in a case where I represented the owner of a professional corporation." (Emphasis added.)Thus, Zavett invited the jury to conclude that the Zells decision was not relevant to the valuation of Kahn's firm. Pasulka's testimony on the matter was perhaps even more unclear. When counsel for Kahn asked him whether the previously-referenced sum of $2.85 million would constitute contingent fees under Zells, he answered:
"That's what I previously had explained to the jury, there's a portion that's a work in progress and that's not what we're talking about. This is that contingent fee example that I told the jury that we don't know what that's going to be, but we know what the work in progress is. Zells is dealing and that quote is dealing with a contingent fee. What it ultimately is we don't know."Later, on redirect examination, he stated: "In essence [Kahn] walked away with whatever that value of that lodestar was, the $2.85 million and anything else similar to that that may have been out there, he just received that a hundred percent. That's why I thought Mr. Zavett did an excellent job in representing Mr. Kahn." ¶ 71 Based upon this testimony, a reasonable jury could have erroneously concluded that the Zells decision did not, in fact, have a lot to do with the Kahn case (to paraphrase Zavett), and that the stipulation enabled Kahn to "walk[] away" with $2.85 million that would otherwise have been included in the valuation of his firm. Indeed, this testimony would tend to reinforce, not remove, the prejudice stemming from Zavett and Pasulka's initial assertions that Kahn's firm was worth more than its stipulated value due to contingent fee cases in progress. Under these circumstances, a clarification of the law was necessary in order to prevent jury confusion. Mohr, 228 Ill. 2d at 66. ¶ 72 Accordingly, we find that the trial court's error in refusing to give Kahn's tendered instruction was not harmless. Since the tendered instruction relates solely to Kahn's allegations of negligence with regard to the stipulation, that portion of the judgment must be reversed.
The Zells court also discusses the ethical conflict posed by a court-ordered division of contingent fees between a lawyer spouse and a non-lawyer spouse. Id. at 253. Based upon this discussion, the trial court expressed doubt as to whether Zells was applicable in the instant case, since Kahn's wife was an attorney. However, this court has made clear that Zells applies even where both spouses are attorneys. In re Marriage of Steinberg, 302 Ill. App. 3d 845, 856 (1998).
¶ 73 C. Dalhart's Testimony
¶ 74 The final issue that Kahn raises on appeal is whether the trial court erred in excluding the testimony of Dalhart, a certified public accountant who was prepared to testify that the fair market value of Kahn's firm was "zero" and that Kahn incurred an estimated $454,000 to $552,000 in additional taxation as a result of the court's allocation of the IRA assets. Davis Friedman contends that the trial court acted within its discretion in barring Dalhart's testimony, since it primarily pertained to the non-jury issue of damages and, to the extent that it did not, it was cumulative of other testimony presented at trial. Kahn disputes both of these assertions. ¶ 75 It is well established that the decision whether to admit expert testimony is within the sound discretion of the trial court and will not be disturbed absent an abuse of that discretion. Thompson v. Gordon, 221 Ill. 2d 414, 428 (2006); Snelson v. Kamm, 204 Ill. 2d 1, 24 (2003). The exclusion of cumulative evidence is also within the discretion of the trial court. Dillon v. Evanston Hosp., 199 Ill. 2d 483, 495 (2002) (trial court acted within its discretion in excluding expert witness where it determined that his testimony was cumulative); Yassin v. Certified Grocers of Illinois, Inc., 150 Ill. App. 3d 1052, 1061 (1986) (where plaintiff sought to call three officials whose testimony would have been cumulative, trial court did not err in requiring her to choose just one); Kozasa v. Guardian Elec. Mfg. Co., 99 Ill. App. 3d 669, 678 (1981) (upholding trial court decision to exclude cumulative evidence). ¶ 76 We begin by considering Dalhart's proposed testimony on the tax consequences attached to Kahn's IRA assets. On this issue, we agree with Kahn that Dalhart's testimony would have been relevant to the issue of liability; however, we also find that it was entirely cumulative of other testimony adduced at trial, so the trial court acted within its discretion in barring it. ¶ 77 In order to establish liability on this point, Kahn had to establish that the tax consequences attached to IRA assets were higher than the tax consequences of the other assets distributed in the divorce. However, Kahn presented ample evidence on this point through his own testimony and the testimony of his liability expert Oney. Kahn testified that the taxes on the IRA assets he received in the divorce could be as much as $980,000. He explained that an IRA account is subject to significantly more taxation than, say, an investment account, because an IRA account is tax deferred, meaning that all the money within is taxable on withdrawal. Oney corroborated this testimony, stating that Kahn's counsel should have brought the tax consequences to the divorce court's attention "because no taxes had been paid on $2.7 million, and that's a lot of tax." Dalhart's testimony would have essentially echoed Kahn and Oney on these points. The only unique point of evidence that Dalhart would have raised was his damage computation, which differed from Kahn's; however, the jury did not need to hear evidence on this point, since damages were not a jury issue in this case. Therefore, the trial court acted within its discretion in excluding Dalhart's testimony as cumulative. See Dillon, 199 Ill. 2d at 495; Yassin, 150 Ill. App. 3d at 1061; Kozasa, 99 Ill. App. 3d at 678. ¶ 78 Finally, we need not decide whether the trial court erred by excluding Dalhart's testimony on the valuation of Kahn's business, since we have already determined that the judgment of the trial court must be reversed on the stipulation issue. However, because this issue may arise again on remand, we shall note briefly that we disagree with Davis Friedman's characterization of Dalhart's testimony on this issue as "unnecessary rebuttal evidence." As noted above, Kahn's second supplemental Rule 213(f)(3) disclosures stated that Dalhart would attempt to rebut Pasulka's testimony regarding the valuation of Kahn's firm. At trial, Pasulka did in fact testify about the valuation of Kahn's firm: although he did not place a precise dollar figure on the firm as a whole, he stated that the firm had $2.85 million worth of time and expenses in the WRT case, and he further stated that Kahn "walked away with" that $2.85 million. By giving such testimony, Pasulka effectively opened the door for Kahn to present rebuttal testimony from Dalhart on that issue. See Lagestee v. Days Inn Management Co., 303 Ill. App. 3d 935, 942 (1999) (rebuttal evidence is admissible where it tends to explain, repel, contradict or disprove evidence presented by defendant). ¶ 79 Therefore, for the foregoing reasons, we affirm the trial court's judgment for Davis Friedman on that portion of Kahn's legal negligence claim dealing with the distribution of IRA assets, but we reverse on that portion dealing with the pretrial stipulation and remand for a new trial on that issue alone. ¶ 80 Affirmed in part, reversed in part, and remanded.