Law of the Case

Board of Managers of Eleventh Street Loftominium Association v. McDonald Hopkins, LLC, 2018 IL App (1st) 172304-U

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The Board of Managers of the Eleventh Street Loftominium Association (“Association”) retained McDonald Hopkins, LLC (“McDonald”) in an action against the developer of its building.  That suit was dismissed for want of prosecution after a McDonald attorney failed to appear at two successive case management conferences.  For this, the Association fired McDonald and retained new counsel, Nyhan, Bambrick, Kinzie & Lowry, P.C. (“Nyhan”), but McDonald never formally withdrew.  Thereafter, Nyhan failed to file a new suit within a year of dismissal, foreclosing any possibility of relief.

The Association sued McDonald for legal malpractice, accusing the firm of breaching its duty of care in multiple ways, causing Nyhan to not file a timely petition to reinstate.  McDonald moved to dismiss, claiming it did not represent the Association during the last months in which a petition to reinstate could have been filed, and that the Association’s hiring of Nyhan created an intervening cause.  The motion was denied and affirmed on appeal.  Back before the trial court, McDonald moved for summary judgment on similar grounds, which was granted.

On appeal, the Association argued that granting summary judgment contradicted the law of the case established when McDonald’s earlier motion to dismiss was denied.  There, it was held that McDonald was still the Association’s counsel of record when the window to reinstate closed because it had not formally withdrawn.  The appellate court agreed, stating “the trial court erred in disregarding our earlier ruling, which is law-of-the-case.”  Id. at ¶ 28.  McDonald argued that this case lacked a final judgment necessary for the law-of-the-case doctrine to apply, but the Appellate Court stated that “permitting a Rule 308 appeal and answering the certified questions” as done in this case renders “a final judgment.”  Id. at ¶ 31.  McDonald also claimed that the facts of the case had changed during discovery, that the different standards for a motion to dismiss and for summary judgment allow different outcomes, and that the Appellate Court’s use of the law-of-the-case doctrine was palpably erroneous.  The Appellate Court disagreed with all three assertions, holding that none of them changed the already-established fact that “the firm’s failure to withdraw as counsel meant it remained attorney of record and could potentially be liable.”  Id. at ¶ 29.

Board of Managers of Eleventh Street Loftominium Association v. McDonald Hopkins, LLC, 2018 IL App (1st) 172304-U

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