No Malpractice Causation if Client Can Remedy Attorney’s Misconduct

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In 2001, Multiut Corporation (“Multiut”) sued Mariam Draiman (“Draiman”), her husband, and five corporations that they owned or controlled.  Count V of the complaint was directed against all defendants except Draiman.  Attorney Glenn Seiden and his firm, Glenn Seiden & Associates, P.C. (together “Seiden”) initially represented each defendant.  The circuit court found in Multiut’s favor on Count V and awarded attorneys’ fees and costs thereunder against “defendants” without excluding Draiman.  Id. at ¶5.  Multiut then filed a petition for attorneys’ fees and costs in February, 2003, to which Seiden responded.  At no point did Seiden argue that Draiman was not subject to the petition, since Count V was not directed at her.  The circuit court issued an order drafted by Multiut’s counsel awarding attorneys’ fees “against defendants.”  Id. at ¶7.  Two weeks later, Seiden filed a motion to clarify, but again failed to raise the issue.  Seiden then filed a notice of appeal “on behalf of all defendants” in August, 2003, and withdrew its representation shortly thereafter.  Id. at ¶8.

Before briefing for the appeal was complete, the First District issued an order sua sponte saying Draiman was “not liable as to [the attorney fee] portion of the judgment” because she “was not named as a defendant below in the count that resulted” in the fee award.   Id. at ¶9.  Draiman’s new appellate counsel then withdrew, at which point she filed her brief pro se.  In it, she failed to argue that the court should reverse the award of attorneys’ fees against her because Count V was not directed at her.  Rather, she asserted inaccurately that the court should reverse all judgments against her because the judgment under Count V “had been reversed.”  Id.  When the First Circuit affirmed the circuit court’s judgment, it found that Draiman’s omission constituted a waiver of any right to contest the fees.

Draiman then sued Seiden for malpractice in March, 2006 for its repeated failure to argue that she could not be liable under Count V and for failure to preserve the issue for appeal.  After multiple cycles of judgment, appeal, and remand, Seiden filed for summary judgment in September, 2017, arguing that the March, 2003 notice of appeal divested the circuit court of jurisdiction, meaning Seiden was not the proximate cause of Draiman’s damages.  Although Draiman disagreed with Seiden’s conclusion, both parties acknowledged that this jurisdictional matter was a legal question to be ruled upon by a judge.  However, the circuit court disagreed, and ordered that the issue be put to a jury.  When the jury found in Seiden’s favor, Draiman filed a motion for a judgment notwithstanding the verdict or a new trial.  The motion was denied, which resulted in the present appeal.

The First District affirmed, readily agreeing with both parties that the question of jurisdiction “should not have been submitted to a jury.”  Id. at ¶40.   As to Seiden proximately causing Draiman’s damages, the court stated that “where a claim or defense is alleged to have been compromised by… an attorney, but the claim or defense is still viable when the attorney is discharged, the attorney is not the proximate cause of any resulting loss.”  Id. at ¶41.  Thus whether the court retained jurisdiction was potentially dispositive, “because if Seiden is correct… then, as a matter of law, he could not have been the proximate cause of Draiman’s adverse ruling.”  Id. at ¶40.  To that point, the First District cited Illinois Supreme Court Rule 304(a):

“If multiple parties or multiple claims for relief are involved in an action, an appeal may be taken from a final judgment as to one or more but fewer than all of the parties or claims only if the trial court has made an express written finding that there is no just reason for delaying either enforcement or appeal or both. *** In the absence of such a finding, any judgment that adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties is not enforceable or appealable and is subject to revision at any time before the entry of a judgment adjudicating all the claims, rights, and liabilities of all the parties.”

It added that “upon filing a notice of appeal, the circuit court is divested of jurisdiction… and the jurisdiction of the appellate court attaches instanter.”  Id. at ¶46.  In this case, the circuit court’s February, 2003 order stated that there was no just cause for delay in enforcement or appeal of its ruling with respect to Count V, and Seiden filed a notice of appeal on Draiman’s behalf.  Thus, “to the extent that the circuit court’s award of attorneys’ fees… included Draiman, such an order was void as the circuit court no longer had the jurisdiction to enter such an award against her.  And because a void judgment may be attacked collaterally at any time, the defense was still viable when Seiden withdrew from the case.  Accordingly, Seiden cannot, as a matter of law, have been the proximate cause of Draiman’s loss.”  Id. at ¶47.

Fox v. Seiden, 2019 IL App (1st) 180598-U, appeal pending (Sep Term 2019)

(This is for informational purposes and is not legal advice.)


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