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.)

Settling Questions Before Settling an Estate

Posted on Updated on

Francisco Contreras and his wife, Sandra, hired Fluxgold & Baron, P.C. (“Fluxgold”) to represent them in a lawsuit against a hospital and its staff.  The matter settled for $18.75 million.  Francisco then hired Waterville Advisors, LLC (“Waterville”) to help him purchase four annuities for himself using approximately one-third of the settlement money.  Waterville prepared an annuitant checklist for Francisco, who input his personal information, but failed to designate a beneficiary.  Waterville notified Fluxgold, and received a new signed checklist with Sandra designated the primary beneficiary, and her and Francisco’s minor daughter the secondary.  When Francisco died intestate two years later, Sandra was appointed representative of his estate.

Francisco’s three adult sons from a previous relationship filed a petition for citation to recover assets in the probate court, arguing that Sandra had exercised undue influence over Francisco to insert herself and her daughter as beneficiaries of the annuities, rather than no one.  The court converted Sandra’s role from an independent to a supervised administrator, at which Francisco’s sons moved to have Sandra’s position terminated entirely.  Francisco’s sons sued Fluxgold and its employees as well, insisting that Fluxgold and several employees were negligent and breached their duty to Francisco, his estate, and heirs by permitting Sandra to exercise her influence over Francisco and failing to use reasonable care and diligence.  Fluxgold successfully moved to dismiss, citing the statute of repose for actions against attorneys where the injury does not occur until the death of the person for whom the legal services were rendered (735 ILCS 5/13-214.3(d)).

On appeal, the First District held that “this cause most certainly falls within the auspices of section 13214.3(d),” but that questions still remained which precluded its application.  Id. at ¶46.  Specifically, facts had not yet been established as to “whether plaintiffs’ legal malpractice action against defendants was commenced ‘within the time for filing claims against the estate’ as provided in the Probate Act via incorporation by section 13-214.3(d).”  Id. at ¶68.  This was due in part to Sandra’s as yet undetermined status as a supervised administrator.  Were she to be removed, it would “directly impact when plaintiffs were required to file their claim.”  Id. at ¶74.  Also, proper publication and notice to the creditors of Francisco’s estate still needed to be accomplished.  Doing so could “restart the clock” for filing claims against the estate.  Id.  In light of so many open issues, the First District reversed and remanded, holding that the trial court lacked the “reasonable certainty” necessary for dismissal.  ¶78.

Estate of Contreras by Contreras v. Fluxgold, 2019 IL App (1st) 172916-U

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

 

Cause of Action Before an Adverse Judgment

Posted on Updated on

Construction Systems provided labor and material for a building project.  When the owner of the project failed to pay, Construction Systems retained the law firm FagelHaber to record a lien against the subject property.  To that end, FagelHaber conducted a tract search.  One month later, Cosmopolitan Bank and Trust (“Cosmopolitan”) recorded a mortgage on the property.  FagelHaber waited six months before serving notice of Construction Systems’ lien on the project owner and construction manager.  In that time, it did not update the tract search and so did not discover Cosmopolitan’s mortgage or include Cosmopolitan on the service list.  Construction Systems retained Karen Berres (“Berres”) as new counsel during the litigation surrounding its mechanic’s lien, and executed a general release in settlement with FagelHaber concerning disagreements over outstanding fees.

Three years later, the mechanic’s lien litigation settled for approximately $1.3 million less than the recorded lien.  Id. at ¶12.  Construction Systems sued FagelHaber for legal malpractice, claiming FagelHaber’s failure to perfect the mechanic’s lien caused it to be subordinate to Cosmopolitan’s mortgage lien.  At issue was whether Construction Systems’ general release with FagelHaber included a release of legal malpractice actions.  The court granted summary judgement for FagelHaber, but that decision was reversed on appeal.  On remand, FagelHaber moved unsuccessfully for summary judgment again, this time on statute of limitations grounds.  FagelHaber then moved successfully to compel production of Berres’ bills, which showed her various attempts to address FagelHaber’s error.  FagelHaber used these bills to move for reconsideration of its earlier motion to dismiss, claiming they demonstrated that Construction Systems’ attorney knew of FagelHaber’s mistake more than two years before suing for malpractice.  The motion was granted.

At issue on appeal was whether FagelHaber’s failure to perfect the mechanic’s lien was “plainly obvious” such that the malpractice action would have accrued before entry of an adverse judgment.  Id. at ¶20.  In affirming the motion, the appellate court held that both FagelHaber’s negligence and the injury it caused became obvious when Berres discovered the defect in the lien and Construction Systems paid her for her attempts to address it.  Id. at ¶29.  All of this occurred before an adverse judgment had been issued against Construction Systems, but the court held that an adverse judgment is only a necessary prerequisite where it was needed to discover a defendant’s mistake.  Id. at ¶27.  “Actual knowledge of FagelHaber’s negligence,” the court explained, “was not required under the discovery rules.”  Id. at ¶24.  Rather, “the limitations period was triggered when Construction Systems had a reasonable belief that its injury was caused by FagelHaber’s negligence.”  Id.

Construction Systems, Inc. v. FagelHaber, 2019 IL App (1st) 172430

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

Jamison v. Goldman, 2018 IL App (1st) 173168-U

Posted on Updated on

Ismaaeel Jamison (“Ismaaeel”) assaulted multiple passengers on a Chicago city bus.  When police arrived, officers shot and tazed Ismaaeel before arresting him.  The next month, Gloria Jamison (“Gloria”), Ismaaeel’s mother, hired attorney Steven Goldman (“Goldman”) as defense counsel for the criminal charges against her son.  She alleged Goldman also agreed to handle Ismaaeel’s planned civil suit against the city for use of excessive force.  In the meantime, Goldman and one of his employees allegedly assured Ismaaeel and Gloria that they had two years in which to file.  However, this was only true with respect to a federal claim for deprivation of rights.  A “distinctly separate” state tort claim against the City must be filed within one year. Id. at ¶20.

Nearly two years later, no civil suit having been filed, Gloria asked attorney Michelle Gonzalez (“Gonzalez”) to file a civil lawsuit against the city on Ismaaeel’s behalf.   Gonzalez did so, but failed to appear for two consecutive status hearings, resulting in dismissal for want of prosecution.  By then the statute of limitations for Ismaaeel’s federal claim had expired as well, and Ismaaeel never filed a motion to vacate the dismissal.  Rather, he sued Goldman for malpractice for not filing a civil complaint.  Goldman moved successfully for summary judgment, denying that he agreed to represent Ismaaeel in the civil suit, and that Ismaaeel “could not show any damages from this alleged malpractice because Gonzalez’s failure to pursue the §1983 case operates as a superseding cause.”  Id. at ¶9.

The Appellate Court reversed, holding that Ismaaeel had presented sufficient evidence to create a question of damages insofar as he “lost his respondeat superior cause of action against the City… because Goldman did not file the complaint within one year of the incident” and “might have recovered damages… on a different cause of action” as well.  Id. at ¶20.  Moreover, “Gloria’s corroborated testimony sufficiently creates a material issue of fact as to whether Goldman ever agreed to file a civil complaint against the City on Ismaaeel’s behalf.”  Id. at ¶23.  “Even if the trier of fact finds that Goldman did not agree to file the civil complaint,” the Appellate Court added, “Goldman could still bear liability for misinforming his client that he had two years to file his civil claim, where tort claims against the City must be filed not later than one year after the date of injury.”  Id.

Jamison v. Goldman, 2018 IL App (1st) 173168-U

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

 

Fifth District Holds Two-Year Statute of Limitations for Actions Against Lawyers is Not Just for Malpractice

Posted on Updated on

Defendants Betty A. Lauth, Rose Zimmer, Carol Heilman, Ralph Bauer, and Ruth Smith (the “Lauths”) filed a mortgage foreclosure action against Donald, Lauretta, Karla, and David Bauer (the “Bauers”).  The Lauths were represented by E.T. Graham, Jr. and The Law Firm of Beavers, Graham & Calvert (the “BGC Defendants”).  The trial court entered an order of foreclosure on October 18, 2013.  Id. at ¶4.  On March 14, 2017, the Bauers sued the BGC Defendants and others on several counts, including civil conspiracy.  Id. at ¶25.  They alleged that the BGC Defendants conspired to file and present documents in the underlying foreclosure action that were “false representations of the evidence,” leading the court to enter a $280,000 judgment against them.  Id. at ¶25.  The trial court dismissed the civil conspiracy counts as to the BGC Defendants based upon the two-year statute of limitations for actions against attorneys: 735 ILCS 5/13-214.3(b).  It states that a claim based on tort, contract, or otherwise “against an attorney arising out of an act or omission in the performance of professional services” must be commenced within two years from the time the party bringing the action knew or reasonably should have known of the injury for which damages are being sought.  Id. at ¶26.

On appeal, the Bauers argued that the two-year statute of limitations applied only to cases of legal malpractice, not civil conspiracy.  The Fifth District rejected this argument, and affirmed dismissal.  It explained that “[a]s there is no language in the statute restricting its application to legal malpractice claims, the plain language of the statute directs that the two-year limitation applies to all claims against an attorney arising out of acts or omissions in the performance of the professional services, and not just legal malpractice claims.”  Id.

Bauer v. Niemerg, 2019 IL App (5th) 180229-U

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

One Cause, One Count, One Judgment: Drafting and Judging a Complaint that Complies with 735 ILCS 5/2-603

Posted on Updated on

Adriana Mazutis (“Mazutis”) filed a multi-count complaint against Warren Lupel, Lawrence Karlin, and Lupel Wieninger, LLP (“Defendants”) for legal malpractice, among other things.  Two counts were dismissed, at which point Mazutis voluntarily dismissed her suit and re-filed a six-count complaint.  It included a count for legal malpractice.  Defendants moved for summary judgment based on Mazutis’ failure to establish proximate causation, statute of limitations, and lack of evidence to show any negligence or misconduct on their part.  The motion was granted, disposing of Mazutis’ case “in its entirety” despite the fact that the order only discussed the timeliness of the legal malpractice count and the question of proximate causation.  Id. at ¶7.  Mazutis appealed.

The appellate court noted at the outset that multiple counts within Mazutis’ complaint contained more than one cause of action and therefore violated 735 ILCS 5/2-603.  This made it “almost impossible to discern the facts that relate to each claim.”  Id. at ¶11.  However, Defendants only addressed Mazutis’ legal malpractice claims in their motion for summary judgment.  Consequently, the appellate court found “that the defendants’ motion and the circuit court’s order did not address all of the claims pled by the plaintiff, and it was, therefore, error to grant summary judgment on the entirety of the complaint.”  Id. at ¶12.  It then struck Mazutis’ complaint, and remanded with leave to file a new, concise complaint that complied with 735 ILCS 5/2-603.

Mazutis v. Lupel, 2019 IL App (1st) 173048-U

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

 

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

Posted on Updated on

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.)