Damage

Nothing Is Not a Plan: District Court Holds Doing Nothing Does Not Involve Judgment, Strategy, or Tactics

Posted on Updated on

Michael Cadena retained attorney Helen Ogar to represent him in a child custody dispute.  Cadena won custody of his minor son, and was encouraged by the Department of Children and Family Services to relocate for the child’s safety.  Cadena e-mailed Ogar repeatedly asking if there were any legal barriers to him moving to another state with his son.  Ogar did not respond substantively.  After Cadena moved to Massachusetts, he was arrested and jailed.  He also lost custody of his son.  Cadena, now a citizen of Massachusetts, sued Ogar and her law firm in federal court based upon diversity jurisdiction.

The defendants moved to dismiss, arguing that the domestic relations exception to federal diversity jurisdiction barred Cadena’s lawsuit from federal court.  The court denied the motion, explaining that Cadena was “suing his lawyer for malpractice pursuant to lack of advice on whether or not he could cross state lines… an independent civil action.”  Id.  at 2.

Ogar and her firm also moved to dismiss for failure to state a claim.  They alleged that Cadena did not explain how counsel’s deficient performance did not involve an exercise of judgment, strategy, or trial tactics as required in Person v. Behnke, 242 Ill. App. 3d 933, 940 (4th Dist. 1993), which required such an allegation in a legal malpractice action arising out of allegedly deficient advice in a child custody case.  The court disagreed, and held that while Cadena “failed to expressly plead” that the alleged malpractice did not involve judgment,  his assertion that the defendants did “nothing” implicitly pleaded as much.  Id.  Ogar did find success in arguing that Cadena was not entitled to damages for emotional distress or loss of normal life.  There, the court held that “legal malpractice is not sufficient basis to support damages for emotional distress,” even in custody cases.  Id. at 3.  Regarding loss of normal life, the court held that such damages “belong almost universally to the realm of personal injury cases.”  Id.

Cadena v. Ogar, No. 19-CV-01092, 2019 WL 3325787 (C.D. Ill. July 24, 2019)

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

Atkins v. Robbins, Salomon & Patt, Ltd. , 2018 IL App (1st) 161961

Posted on

The First District reversed a directed finding in favor of a malpractice defendant.   The trial court had found that a professional corporation paid all of its “income” as salaries and therefore had no “profit.” As a result, it could not prove it was damaged by malpractice that allegedly caused it to lose income.   The Appellate Court reversed and allowed the corporation to prove its shareholder’s lost income as a method of proving damage to the corporation.

Atkins v. Robbins, Salomon & Patt, Ltd. , 2018 IL App (1st) 161961

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

Killian v. Minchella, 2017 IL App (1st) 163429-U, appeal denied, 98 N.E.3d 65 (Ill. 2018)

Posted on Updated on

In this unpublished opinion, the First District affirmed the dismissal of a legal malpractice case. The court examined whether unpaid judgments constituted damages to the plaintiff. Although the court noted that an unpaid judgment could damage a malpractice plaintiff, it held that the malpractice complaint failed to state a claim because it failed to allege that the plaintiffs had paid or would have to pay a judgment in excess of what they would have paid in the absence of negligence.

The court also affirmed on statute of limitations grounds. It held that the entry of a non-final summary judgment order put the plaintiff on notice of the alleged malpractice. Thus, the statute began to run at that time. The court rejected the argument that the statute of limitations did not run until the summary judgment became final and appealable.

Killian v. Minchella, 2017 IL App (1st) 163429-U, appeal denied, 98 N.E.3d 65 (Ill. 2018)

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

R.F. Techs., Inc. v. LeClair Ryan, P.C., No. 17 C 1886, 2018 WL 835349 (N.D. Ill. Feb. 12, 2018)

Posted on Updated on

The Northern District held that a complaint that alleged that lawyers’ malpractice caused a client to pay more to settle a case than it otherwise would have had to pay adequately plead proximate cause and damages.   The court also refused to take judicial notice of an order assessing sanctions against the malpractice plaintiff and, therefore, held that there was no evidence to support unclean hands and in pari delicto defenses at the motion to dismiss stage.

R.F. Techs., Inc. v. LeClair Ryan, P.C.

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

Laurent v. Johnson

Posted on Updated on

The Third District affirmed the grant of summary judgment in a legal malpractice case.  The court held that plaintiff had no evidence that she would have been successful in the underlying case within a case but for the legal malpractice because she failed to satisfy the “discrepancy rule” for an insurance case.  The court also held that there was no evidence that the settlement of the underlying case was depressed by the alleged malpractice because the plaintiff settled her underlying case before the court dismissed it.  Thus, there was no evidence of either causation or damage.

Laurent v. Johnson, 2017 IL App (3d) 160627

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

West Bend Mutual Ins. Co. v. Schumacher

Posted on Updated on

The Seventh Circuit affirmed the dismissal of a legal malpractice claim because it did not adequately allege causation and damages.   The court held that the allegations as to how the malpractice plaintiff would have prevailed in the underlying litigation but for the attorney’s malpractice were insufficiently specific to state a claim.

West Bend Mutual Ins. Co. v. Schumacher, Case No. 14-2731, 2016 WL 7395708 (7th Cir. Dec. 21, 2016)

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

Recent Illinois Case: Bachewicz v. Holland & Knight

Posted on Updated on

In this unpublished opinion, the First District affirmed the trial court’s grant of summary judgment to a law firm.

The court held that the case was time-barred despite the plaintiff’s argument that he did not know the amount of his damages until less than two years from the time he brought his claim. The court held that it is not necessary to know the amount of damages for the statute of limitations to begin to run.

The court also held that the plaintiff failed to create a genuine issue of fact sufficient to defeat summary judgment because he did not identify the documents that allegedly led him to discover his damages.

Finally, the court affirmed summary judgment for the defendants on the plaintiff’s legal malpractice claim arising out of a transfer of real estate with which the defendants assisted because the plaintiff admitted that the transfer occurred after the attorney-client relationship had terminated.

Bachewicz v. Holland & Knight, 2016 IL App (1st) 153394-U

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