Judgment

Jury Instruction Is Harmless Error Unless Plaintiff Shows Verdict Is Unsustainable On All Other Defenses Presented

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Whirlpool Corporation (“Whirlpool”) requested an opinion from attorney William Rucker (“Rucker”) on whether certain products it imported would be subject to new duties imposed by the U.S. Department of Commerce.  Rucker responded that he believed the products were not subject to these duties and so Whirlpool continued to import them.  However, a shipment of the product was later tagged as subject to the new duties, forcing Whirlpool to pay duty deposits of 407% of their value.  Id. at ¶7.  Whirlpool retained new counsel and sued Rucker and his firm, Faegre Drinker Biddle & Reath LLP (together with Rucker, “the Defendants”), for legal malpractice.  The jury returned a verdict in favor of the Defendants.

Whirlpool appealed, arguing that the Trial Court made multiple errors, including giving a jury instruction on the “informed judgment” defense.  Id. at ¶49.  The Appellate Court affirmed.  With respect to the “informed judgment” defense, it explained that “[u]nder the two-issue rule, where the jury returns a general verdict, multiple claims or defenses were presented to the jury, and the challenging party did not request a special interrogatory that would test the basis of the jury’s verdict, the verdict will be upheld so long as there was sufficient evidence to support any one of the presented claims or defenses.”  Id. at ¶51.  In such a situation, the Appellate Court continued, “unless plaintiff can show that the jury’s verdict cannot be sustained on any of the other defenses presented to the jury, we must conclude that any error in giving the informed judgment defense instruction was harmless.”  Id.  Here, no special interrogatories were given to the jury that would reveal the basis of the verdict and Whirlpool made no arguments that the jury’s verdict could not be sustained on the other defenses presented.  Id. at ¶61.  As for the other errors alleged by Whirlpool, the Appellate Court held that it “need not address these issues” because “even if plaintiff is correct… they would not have affected the outcome of the trial because the jury’s verdict can be sustained on the unrelated grounds of general negligence, causation, and plaintiff’s contributory negligence.”  Id. at ¶66.

Whirlpool Corporation v. Faegre Drinker Biddle & Reath LLP & William Randolph Rucker, 2020 IL App (1st) 191042-U

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

Legal Malpractice Requires Causation and Damages

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McHenry Savings Bank (“MSB”) sued attorney Michael Cortina and his law firm, SmithAmundsen (“Defendants”), for legal malpractice arising from their representation of MSB in an unsuccessful foreclosure action.  The trial court granted Defendants’ motion to strike and dismiss.  The Appellate Court of Illinois, Second District, affirmed.  With respect to alleged pretrial errors, it explained that “a trial was held in the foreclosure case” and so “it cannot be said that, but for Cortina’s alleged negligent pretrial conduct, MSB lost its case and suffered damages.”  Id. at ¶ 36.  As for any errors during the trial, the Appellate Court held that the Foreclosure Court’s basis for granting judgment against MSG was “legally unsound,” meaning “Cortina cannot be held accountable.”  Id. at ¶ 42.  Even if causation could have been shown, the Appellate Court explained that no damage resulted since MSB would be “seeking damages from defendants that it was never entitled to due to mortgagors’ discharge in bankruptcy.”  Id. at ¶ 51.

McHenry Sav. Bank v. Cortina, 2019 IL App (2d) 180901-U

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

Tenancy by the Entirety not Exempt in Bankruptcy

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Laverne Williams (“Williams”) sued her former attorney Scott Jaffe (“Jaffe”) for legal malpractice.  She obtained a default judgment against him and recorded her judgment on a property that Jaffe and his wife owned as tenants by the entirety.   Jaffe then filed for chapter-seven bankruptcy, but his wife died before the proceedings were complete.  According to Illinois law, this converted Jaffe’s tenancy by the entirety to a fee-simple interest.  Jaffe insisted his property was exempt from the bankruptcy proceeding, as his interest had been a tenancy by the entirety when the bankruptcy commenced.  Williams responded that Jaffe’s property was not exempt even as a tenancy by the entirety because federal bankruptcy law “looks to state law to determine whether a tenancy property is exempt,” and Illinois “does not exempt contingent future interests” like Jaffe’s.  Id. at 605.  The District Court disagreed, and Williams appealed.

The Seventh Circuit disagreed with the District Court.  Illinois law, the Court explained, states that “judgment liens may attach to ‘real estate’ and defines ‘real estate’ broadly to include all lands, tenements, hereditaments, and all legal and equitable rights therein.”  Id. at 607.  Additionally, the Illinois legislature had “enumerated the precise interests tenants by the entirety enjoy individually, including the following contingent future interests:  (a) an interest as a tenant in common in the event of a divorce, (b) an interest as a joint tenant in the event that another homestead is established, and (c) a survivorship interest in the entire property in the event of the other tenant’s death.”  Id. at 605.  Therefore, the Seventh Circuit concluded that “contingent future interests” such as Jaffe’s “fall within the statute’s broad definition of ‘real estate,’” and so were subject to judgment liens.  Id. at 605.  Thus, the District Court’s decision was reversed and remanded.

In re: Jaffe, 932 F.3d 602 (7th Cir. 2019)

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

Counsel Cannot Claim Judicial Error if Client is not Properly Informed of His Rights

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Iurii Rypninskyi (“Rypninskyi “) and Joseph Hope (“Hope”) were involved in a vehicular accident.  Hope sued Rypninskyi for negligence in Illinois state court.  American Inter-Fidelity Exchange (“AIFE”), the insurer for the owner of the truck Rypninskyi was driving, agreed to defend Rypninskyi and retained the law firm Cassiday Schade to do so.  Throughout the discovery phase and the subsequent trial, Cassiday Schade had repeated trouble contacting Rypninskyi and ensuring his presence.  Rypninskyi did not even appear at trial to testify.  Id. at 1.  The trial court sanctioned him for this by ordering in limine that he could not introduce a report prepared by the trooper who had responded to the accident or Hope’s statements to the trooper.  When the trial court found that Rypninskyi, through Cassiday Schade, violated that order, it entered a default judgement against him as to liability.  Id.  The jury then returned a $400,000 verdict for Hope, but Cassiday Schade did not file an appeal.  Rypninskyi sued Cassiday Schade for legal malpractice, arguing that their failures had caused him not to appear at trial and suffer the judgment against him.

Cassiday Schade moved for summary judgment, invoking the “judicial error” doctrine.  Id. at 2.  They asserted that the trial court had erred in defaulting Rypninskyi as to liability, and that its error was an intervening cause “that severed the causal connection between its alleged malpractice and Rypninskyi’s injury.”  Id.   The Court rejected this argument, pointing out that “had Rypninskyi known about the judgment, he would have asked Cassiday Schade to appeal it.”  Id. at 1.  This indicated that Cassiday Schade had not kept Rypninskyi apprised of the progress of his case.  Having failed to inform Rypninskyi that there was a judgment against him that warranted reconsideration, the Court found that “Cassiday Schade was responsible for failing to appeal.”  Id. at 2.  It explained that “where an allegedly negligent attorney elects not to appeal a judgment that the attorney contends resulted from a judicial error, the attorney may not invoke judicial error as a defense to the client’s malpractice claim.”  Id.

Am. Inter-Fid. Exch. v. Hope, No. 17 C 7934, 2019 WL 4189657 (N.D. Ill. Sept. 4, 2019)

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

A Plaintiff’s Responsibilities: Keeping Appointments, Presenting Expert Testimony, and Providing Records

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Loxley Johnson (“Johnson”), the sole proprietor of L.A. Transportation (“LAT”), stood accused of vendor fraud and theft.  He hired Stephen Komie (“Komie”) to represent him during the corresponding investigation by the Illinois Attorney General; paying Komie $5,000 in advance and signing a retainer agreement.  On Komie’s advice, Johnson agreed to extend the statute of limitations on the claims against him so a more thorough investigation could be conducted.  When a grand jury finally issued an indictment, Johnson signed a second retainer agreement to include the indictment within the scope of Komie’s representation.  The state later notified Johnson that there would be an administrative hearing at which LAT could be heard, but neither Johnson nor Komie appeared.  With that, LAT was defaulted, monetary damages were imposed, and both LAT and Johnson were excluded from certain state programs.  Komie then withdrew as Johnson’s counsel due to “irreconcilable differences.”  Id. at ¶13.  Johnson sued Komie for legal malpractice, accusing him of negligent representation and breaching their retainer contract when Komie failed to appear at the administrative hearing.  Id. at ¶1.  Komie filed a counterclaim for outstanding legal fees.  After a bench trial, the trial court found in favor of Komie on the malpractice claim and on his fee claim.

Appearing pro se, Johnson made multiple unsuccessful arguments.  First, he asserted that the trial court erred in granting summary judgment regarding Komie’s negligent recommendation that Johnson extend the statute of limitations and Komie’s allegedly bad-faith withdrawal.  The appellate court disagreed, holding that “absent an expert opinion” that Johnson never provided, “it is impossible for plaintiff to establish the applicable standard of care and whether defendant deviated from that standard.”  Id. at ¶39.  Next, Johnson argued that Komie’s victory on his counterclaim was against the manifest weight of the evidence.  Here, the appellate court was not able to properly examine the issue because Johnson had not provided a report of the relevant trial proceedings.  Johnson’s last argument as to Komie’s ineffective representation in the form of failing to appear at the administrative hearing was similarly flawed.  Moreover, the appellate court pointed out that “it is every litigant’s duty to follow the progress of his case, rather than to merely assume that counsel is doing all that is necessary and proper.”  Id. at ¶48.

Johnson v. Komie, 2019 IL App (1st) 171189-U

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

 

Pastry Partners, Inc. v. Greenswag

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In this unpublished opinion, the First District affirmed the grant of summary judgment for the defendants on statute of limitations grounds.   The court held that the plaintiff knew of its injury before an adverse judgment was entered against it and that the statute began to run before the judgment was entered.   The court also rejected the plaintiff’s arguments based upon equitable tolling, equitable estoppel and judicial estoppel.

Pastry Partners, Inc. v. Greenswag, 2016 IL App (1st) 152259-U

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

Recent Illinois Case: Navar v. Tribler, Orpett and Meyer, P.C.

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In this unpublished opinion, the Appellate Court affirmed the dismissal of three claims against lawyers. A breach of contract claim was properly dismissed because the plaintiff failed to identify a specific contract term that was breached. The malpractice claim was properly dismissed because the complained of acts involved judgment and not malpractice. The fraud claim was properly dismissed because predictions of future events do not constitute fraud. The Appellate Court also affirmed the trial court’s refusal to allow a further amendment.

Navar v. Tribler, Orpett and Meyer, P.C., 2015 IL App (1st) 142641-U

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

Gelsomino v. Gorov, 149 Ill. App. 3d 809, 502 N.E.2d 264 (1st Dist. 1986)

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Gelsomino v. Gorov, 149 Ill. App. 3d 809, 502 N.E.2d 264 (1st Dist. 1986)

DeSeno v. Becker, 291 Ill. App. 3d 421, 683 N.E.2d 159 (1st Dist. 1997)

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DeSeno v. Becker, 291 Ill. App. 3d 421, 683 N.E.2d 159 (1st Dist. 1997) (consider at time of breach; lawyer need not advise of remote possibilities)

Oda v. Highway Ins. Co., 44 Ill. App. 2d 235, 194 N.E.2d 489 (1st Dist. 1963)

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Oda v. Highway Ins. Co., 44 Ill. App. 2d 235, 194 N.E.2d 489 (1st Dist. 1963)