Miller v. Davis , 2018 IL App (4th) 170337-U

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Mark Miller was committed to the Department of Human Services as a sexually violent person, but his commitment was reversed on appeal because of ineffective representation by his former trial attorney, W. Keith Davis.  For this, Miler sued Davis pro se for legal malpractice, filing his complaint on October 25, 2013.  Davis was not served until almost three years later on October 14, 2016, well after the two-year statute of limitations had lapsed.  Davis moved to dismiss with prejudice pursuant to Illinois Supreme Court Rule 103(b) for failure to exercise reasonable diligence in service.  The trial court granted Davis’ motion.

On appeal, the dismissal was affirmed.  The appellate court explained that Miller’s status as a pro se litigant did not exempt him from compliance with the same rules of procedure as a litigant represented by counsel.  Moreover, it noted that “there was a lengthy period of time, over two years, where Miller did nothing to move his case forward.”  Id. at ¶ 23.  Although the record indicated Davis knew of Miller’s complaint soon after it was filed, the appellate court held that “the presence of actual knowledge and the absence of prejudice do not require this court to find reasonable diligence” as they do not “outweigh the other factors.”  Id. at ¶ 24.

Miller v. Davis , 2018 IL App (4th) 170337-U

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

 

White v. Richert , 2018 WL 4101512

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Anna White filed a petition against her niece, attorney Elizabeth Richert, alleging violation of Richert’s duty of honesty and loyalty as White’s attorney and as trustee of a trust from which both women were to receive distributions.  Richert moved for summary judgment on both claims, arguing that they were time-barred.

With respect to White’s claim against Richert as an attorney, White affirmatively pleaded that she discovered the injury giving rise to her claim in February, 2013, but did not file her complaint until July, 2015.  Thus, the court held that the claim was time-barred. Illinois’ statute of limitations for actions “against an attorney arising out of an act or omission in the performance of professional services,” requires that they “be commenced within 2 years from the time the person bringing the action knew or reasonably should have known of the injury…”  Id. at 5; 735 ILCS 5/13-214.3.

As for White’s claim against Richert as a trustee, the court held that Illinois’ five-year catch-all provision applied, since “Illinois does not provide a specific statute of limitations for claims of breach of fiduciary duty by a trustee.”  Id. at 6; 735 ILCS 5/13-205. The Court held that the statute of limitations had not lapsed, since White could not have known about this claim against Richert until shortly before she amended her complaint in 2017 to include it, “when it became evident during discovery that there was more than one version” of the trust.  Id. at 7.

White v. Richert, 2018 WL 4101512

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

 

Gines v. Wilson, 2018 IL App (4th) 170811-U

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Cordell Gines filed a pro se complaint against his defense attorneys, Ryan R. Wilson, Lawrence Bapst, and Martin J. Ryan, alleging legal malpractice and a breach of fiduciary duty. Specifically, Gines alleged that the defendants had caused him to serve a sentence for various criminal acts of which he had been convicted that was at least five years longer than it should have been. The defendants filed a motion to dismiss, which the court granted. It found that Gines had failed to allege facts sufficient to state a claim upon which relief could be granted because he did not plead facts presenting arguments defendants failed to make that would have resulted in a reversal or modification of his conviction or sentence. The court also found that collateral estoppel barred Gines’ claim for malpractice. Gines appealed.

The appellate court affirmed the dismissal, stating that “a legal malpractice cause of action does not accrue until the plaintiff’s conviction is overturned.” Id. at ¶ 30. It explained that because another court had already established the correctness of Gines’ sentence, Gines was collaterally estopped form challenging the validity of the same sentence in the current action. Thus he could not overturn it so as to sue the defendants for malpractice.

Gines v. Wilson, 2018 IL App (4th) 170811-U

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

Anne v. Altenbernt, 2018 IL App (2d) 170614-U

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On February 10, 2017, Remesh Anne filed a legal malpractice complaint against his former attorney, Marc Altenbernt, who had represented Anne through the dissolution of Anne’s marriage. He alleged that Altenbernt had failed to properly inform the Court of the nature of his wife’s state retirement plan during the dissolution proceedings, resulting in the Court grossly undervaluing the plan when it divided up the marital property between Anne and his wife.

Altenbernt moved to dismiss, citing the statute of limitations imposed by 735 ILCS 5/13-214.3(b) (“An action for damages 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 2 years from the time the person bringing the action knew or reasonably should have known of the injury for which damages are sought.”). Altenbernt contended that, at the latest, Anne knew or should have known to inquire further about any actionable wrong on the day the final judgment had been issued: January 15, 2015. The trial court dismissed Anne’s claim.

On appeal, Anne argued that the date by which he knew or should have known about any wrongdoing was February 12, 2015, when his new attorney told him of Altenbernt’s error. This would mean he filed his complaint against Altenbernt two days before the statute of limitations had expired. The Appellate Court of Illinois, Second District, disagreed, and affirmed the dismissal. In so doing, it held that “as a matter of law, plaintiff’s duty of inquiry began no later than January 27, 2015, when he retained his new attorney.” Id. at ¶16.

Anne v. Altenbernt, 2018 IL App (2d) 170614-U

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

 

Zombro v. Jones, 2018 IL App (4th) 170442-U

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The third-party plaintiff, Vicky Jones, sued the third-party defendant, attorney Kevin Hammer, for legal malpractice in a real estate transaction where Hammer had represented her.

Jones alleged that Hammer had grossly understated the price of her land in the contract he drafted, threw the contract at Jones during a meeting, and lambasted the deal in front of the buyers, thereby inducing Jones to sell her land for one eighth its supposed market value. Conversely, Hammer and the buyer alleged that Hammer had correctly stated the agreed-upon price in the contract, and that Hammer didn’t throw anything at Jones. Hammer also said Jones had read the final contract and asked him questions before signing.

The Trial Court granted summary judgment in Hammer’s favor. When Jones appealed, Hammer argued that he had not breached any duty to Jones, because he had technically performed the two tasks she had hired him to do. The Appellate Court rejected this “scope-of-engagement” argument, holding that Hammer, as Jones’ attorney and therefore his agent, was not merely obligated to perform certain tasks, but also owed Jones a fiduciary duty “to treat his principal with the utmost candor, rectitude, care, loyalty, and good faith—in fact to treat the principal as well as the agent would treat himself.” Id. at ¶41. This fiduciary duty extended to all tasks he was hired to perform and “all matters connected” with those tasks. Id.

Nevertheless, the Appellate Court found that there was no genuine issue of material fact with respect to one critical element of Jones’ claim: damages. Specifically, the deal Hammer allegedly ruined didn’t actually exist, since the deal Jones claimed she had hired Hammer to pursue differed from the deal the buyers believed they were entering into. In fact, the buyers swore that they could not have afforded the land at the price to which Jones believed they had agreed. Moreover, the Court explained that even if it were to assume “for the sake of argument, that Hammer did indeed bully Jones into selling the land for only $5,000, it appears she suffered no resulting harm, because […] Jones presented no admissible evidence that the land was worth more” and “the arm’s-length transaction […] is evidence of the highest rank to determine the true value of property.” Id. at ¶55. Summary judgment was therefore affirmed.

Zombro v. Jones, 2018 IL App (4th) 170442-U

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

 

 

Alonso v. Weiss, 301 F. Supp. 3d 885 (N.D. Ill. 2018)

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Limited partners in investment funds filed suit on their own behalf and derivatively on behalf of their funds against a court-appointed receiver, alleging she had violated the Investment Advisers Act and Securities and Exchange Commission Rules, breached her fiduciary duties and engaged in legal malpractice. Among other things, the plaintiffs asserted that the receiver had failed to pursue certain litigation opportunities or needlessly pursued others, all to the detriment of the receivership estate.

The primary issue in the case was whether the receiver had intentionally tried to harm the estate. In the Seventh Circuit, “an injured party can only ‘recover from the receiver when the receiver intentionally acts in clear contravention of duty,’ and the receiver will not be held liable for ‘exercise of poor judgment.’” Id. at 894, citing In re Kids Creek Partners, L.P., 248 B.R. 554, 560-561 (Bankr. N.D. Ill. 2000). With that in mind, the plaintiffs alleged that the receiver was motivated in part by malice toward a former manager of the funds’ general partner. They also claimed that she breached her duties in order to ingratiate herself with the SEC so it would give her more receivership work in the future.

The Northern District of Illinois granted summary judgment in favor of the court-appointed receiver. The court held that the plaintiffs failed to demonstrate that any of the receiver’s allegedly improper actions had been intended to harm the receivership estate.

Alonso v. Weiss, 301 F. Supp. 3d 885 (N.D. Ill. 2018)

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

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

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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.)